issue-1996-07-02•Federal Register final rules — 1996-07-02
Federal Register final rules — 1996-07-02
issue-1996-07-02Federal Register final rules — 1996-07-02Regulation
Published Federal Register documents, not public-inspection drafts. The GPO XML/text rendition is a research aid; the linked complete official PDF retains the printed layout and all graphics. Graphics are retained in that PDF and are not independently reproduced in this text rendition. Publication does not establish that every provision remains legally in force.
FR Doc. 96-16874 Future Development of Paging Systems; Implementation of Section 309(J) of the Communications ActCompetitive Bidding
[Federal Register Volume 61, Number 128 (Tuesday, July 2, 1996)]
[Rules and Regulations]
[Pages 34375-34376]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-16874]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Parts 22 and 90
[WT Docket No. 96-18; PP Docket No. 93-253; FCC 96-260]
Future Development of Paging Systems; Implementation of Section
309(J) of the Communications Act--Competitive Bidding
AGENCY: Federal Communications Commission.
ACTION: Final Rule; Order on Reconsideration of Interim Rules.
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SUMMARY: In this Order on Reconsideration in WT Docket No. 96-18 and PP
Docket No. 93-253, the Commission modifies the First Report and Order
in this docket by expanding the number of licensees that can modify
their paging systems by adding sites, due to the paging industry's
claims that such relief is necessary to allow paging operators to meet
customer needs and improve service to the public while this rulemaking
is pending. The Commission will allow applications for additional sites
by incumbent licensees who had filed paging applications by October 1,
1995, rather than February 8, 1996, thus expanding the potential number
of paging licensees that can expand their systems.
EFFECTIVE DATE: July 2, 1996.
FOR FURTHER INFORMATION CONTACT: Mika Savir or Rhonda Lien, Commercial
Wireless Division at (202) 418-0620.
SUPPLEMENTARY INFORMATION: This Order on Reconsideration in WT Docket
No. 96-18, PP Docket No. 93-253, adopted June 10, 1996 and released
June 11, 1996, is available for inspection and copying during normal
business hours in the FCC Reference Center, Room 230, 1919 M Street
N.W., Washington, DC. The complete text may be purchased from the
Commission's copy contractor, International Transcription Service,
Inc., 2100 M Street, N.W., Suite 140, Washington DC., 20037, (202) 857-
3800.
Synopsis of Order on Reconsideration of First Report and Order:
I. Background
In the Notice of Proposed Rulemaking (NPRM), 61 FR 06199, February
16, 1996, the Commission suspended acceptance of new paging
applications governed by parts 22 and 90 of the Commission's rules in
conjunction with a proposal to convert from site-by-site licensing of
paging channels to licensing on a geographic area basis. In the First
Report and Order (First R&O), 61 FR 21380, May 10, 1996, the Commission
adopted interim measures allowing incumbents on non-nationwide paging
channels to apply for new sites to expand existing systems, subject to
certain limitations, during the pendency of the rulemaking proceeding.
On its own motion, the Commission makes certain modifications to the
interim licensing rules established by the First R&O, as discussed
below.
In the First R&O, the Commission allowed incumbents to expand the
geographic coverage of their systems by adding transmission sites to
their systems within a defined distance of existing, operating sites.
Specifically, the First R&O provided that applications could be filed
for new sites provided that the applicant certifies that the proposed
site is within 65 kilometers (40 miles) of an operating site licensed
to the same applicant on the same channel prior to the NPRM, that is,
February 8, 1996. Thus, under the terms of the First R&O, incumbents
may not use sites licensed after February 8, 1996 as the basis for
filing applications for additional expansion sites under the interim
rules.
II. Order on Reconsideration
At the time the Commission adopted the NPRM, the Wireless
Telecommunications Bureau (Bureau) was engaged in reducing a
significant backlog of pending paging applications, primarily in the
931 MHz band, many of which had been pending for a year or more. Since
the NPRM was adopted, the Bureau has significantly reduced the backlog
by processing all non-mutually exclusive applications filed through
September 30, 1995. In ex parte presentations and in comments filed
with the Commission, incumbent paging operators have argued that the
processing backlog delayed licensing of sites that otherwise would have
been granted prior to February 8, 1996. Accordingly, these commenters
contend that they should not be precluded from using these newly
licensed sites as a basis for expansion.
III. Discussion
The Commission agrees that because of the time it has taken to
process certain paging applications, it should allow incumbents to use
some sites that were not licensed as of February 8, 1996 as a basis for
expansion. Due to the large number of 931 MHz applications filed in the
past few years, the Bureau has developed a computer software program to
identify and process non-mutually exclusive applications. The Bureau
began using the program to process backlogged applications in mid-1995.
However, some applications for 931
[[Page 34376]]
MHz licenses that were filed as early as January 1995 were still
pending on February 8, 1996. The Bureau recently completed its computer
run of 931 MHz applications filed between January 1 and September 30,
1995. The results of the run identified about 2,500 applications that
were not mutually exclusive and are to be granted, if the applications
are otherwise complete, eliminating most of the remaining application
backlog. The Commission believes that the recipients of these license
grants should be allowed to expand their systems based on these sites,
as long as the licensed sites are operational at the time the expansion
applications are filed. Therefore, the Commission will allow incumbents
to expand 65 kilometers (40 miles) from sites for which applications
were filed as of September 30, 1995, whether or not such applications
were granted prior to February 8, 1996. This change to the Commission's
interim measures will benefit applicants most affected by delays prior
to adoption of the NPRM.
IV. Procedural Matters and Ordering Clauses
A. Regulatory Flexibility Act
As required by Section 604 of the Regulatory Flexibility Act, the
Commission has prepared a Final Regulatory Flexibility Analysis of the
expected impact on small entities of the modification of the interim
rules set forth in this Order on Reconsideration.
Statement of the Need for and Objectives of Interim Rules: In this
Order on Reconsideration, the Commission is modifying the interim
measures, specifically, the interim freeze on new paging applications
imposed in the Notice of Proposed Rulemaking, to permit incumbent
paging licensees to apply for additional licenses to add transmission
sites to existing paging systems on the same channel as the existing
systems, provided that the additional transmission site is within 65
kilometers (40 miles) from an operating transmission site in the
applicant's system. This modification of the interim rule will allow
paging companies additional flexibility to expand their systems during
the interim period.
Summary of Significant Issues Raised by Comments to the Initial
Regulatory Flexibility Analysis (IRFA): There were no comments to the
IRFA regarding the interim rules.
All significant alternatives are discussed in the Order on
Reconsideration.
B. Ordering Clauses
It is ordered that, pursuant to the authority of Sections 4(i),
303(r), 309(c), 309(j), and 332 of the Communications Act of 1934, as
amended, 47 U.S.C. 154(i), 303(r), 309(c), 309(j), and 332, and
effective upon publication of this Order on Reconsideration in the
Federal Register, the interim rules set forth in the First Report and
Order in this docket are modified as set forth herein.
List of Subjects
47 CFR Part 22
Communications common carriers.
47 CFR Part 90
Common carriers.
Federal Communications Commission.
William F. Caton,
Acting Secretary.
[FR Doc. 96-16874 Filed 7-1-96; 8:45 am]
BILLING CODE 6712-01-P
Complete official Federal Register PDF
FR Doc. 96-16862 Fisheries of the Exclusive Economic Zone off Alaska; Northern Rockfish in the Western Regulatory Area
[Federal Register Volume 61, Number 128 (Tuesday, July 2, 1996)]
[Rules and Regulations]
[Page 34377]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-16862]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 679
[Docket No. 960129018-6018-01; I.D. 062196A]
Fisheries of the Exclusive Economic Zone off Alaska; Northern
Rockfish in the Western Regulatory Area
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Modification of a closure.
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SUMMARY: NMFS is opening directed fishing for northern rockfish in the
Western Regulatory Area of the Gulf of Alaska (GOA). This action is
necessary to use the total allowable catch (TAC) for northern rockfish
in this area.
EFFECTIVE DATE: 1200 hrs, Alaska local time (A.l.t.), July 1, 1996,
until 2400 hrs, A.l.t., December 31, 1996.
FOR FURTHER INFORMATION CONTACT: Mary Furuness, 907-586-7228.
SUPPLEMENTARY INFORMATION: The groundfish fishery in the GOA exclusive
economic zone is managed by NMFS according to the Fishery Management
Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North
Pacific Fishery Management Council under authority of the Magnuson
Fishery Conservation and Management Act. Fishing by U.S. vessels is
governed by regulations implementing the FMP at Subpart H of 50 CFR
part 600 and 50 CFR part 679.
The annual TAC for northern rockfish in the Western Regulatory Area
was established by the Final 1996 Harvest Specifications of Groundfish
(61 FR 4304, February 5, 1996) as 640 metric tons (mt). See
Sec. 679.20(c)(3)(ii). The Final 1996 Harvest Specifications of
Groundfish also closed the directed fishery for northern rockfish in
the Western Regulatory Area of the GOA. See 679.20(d)(1).
The Director, Alaska Region, NMFS, has determined that the 1996 TAC
for northern rockfish in the Western Regulatory Area has not been
reached. Therefore, NMFS is terminating the previous closure and is
opening directed fishing for northern rockfish in the Western
Regulatory Area of the Gulf of Alaska.
All other closures remain in full force and effect.
Classification
This action is taken under 50 CFR 679.20 and is exempt from review
under E.O. 12866.
Authority: 16 U.S.C. 1801 et seq.
Dated: June 26, 1996.
Richard W. Surdi,
Acting Director, Office of Fisheries Conservation and Management,
National Marine Fisheries Service.
[FR Doc. 96-16862 Filed 6-27-96; 2:46 pm]
BILLING CODE 3510-22-F
Complete official Federal Register PDF
FR Doc. 96-16807 Airworthiness Directives; de Havilland Model DHC-8-301, -311, and -315 Series Airplanes
[Federal Register Volume 61, Number 128 (Tuesday, July 2, 1996)]
[Rules and Regulations]
[Pages 34368-34370]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-16807]
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 39
[Docket No. 95-NM-268-AD; Amendment 39-9685; AD 96-14-03]
RIN 2120-AA64
Airworthiness Directives; de Havilland Model DHC-8-301, -311, and
-315 Series Airplanes
AGENCY: Federal Aviation Administration, DOT.
ACTION: Final rule.
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SUMMARY: This amendment supersedes an existing airworthiness directive
(AD), applicable to certain de Havilland Model DHC-8-301,--311, and--
315 series airplanes, that currently requires modification of the
airspeed limitations placard and revision of the Airplane Flight Manual
to specify operating at lower airspeeds when the airplane is operating
at full flaps. That action also provides for the optional termination
of the requirements of the AD for certain airplanes. That action was
prompted by a report that incorrect rivets were installed on the
outboard flaps assemblies of these airplanes. The actions specified by
that AD are intended to prevent structural failure of the outboard
flaps of the wings due to the installation of incorrect rivets in the
flap assemblies, which could result in reduced controllability of the
airplane. This new amendment requires the installation of the
previously optional terminating modification on certain airplanes.
DATES: Effective August 6, 1996.
The incorporation by reference of de Havilland Service Bulletin
S.B. 8-57-24, Revision `A', dated September 26, 1995; and DHC-8 Model
301 Flight Manual, PSM 1-83-1A, Flight Manual Revision 57, dated
September 26, 1995; as listed in the regulations, was approved
previously by the Director of the Federal Register as of February 27,
1996 (61 FR 5277, February 12, 1996).
ADDRESSES: Service information referenced in this amendment may be
obtained from Bombardier, Inc., Bombardier Regional Aircraft Division,
Garratt Boulevard, Downsview, Ontario M3K 1Y5, Canada. Copies may be
examined at the FAA, Transport Airplane Directorate, 1601 Lind Avenue,
SW., Renton, Washington; or at the FAA, New York Aircraft Certification
Office, Engine and Propeller Directorate, 10 Fifth Street, Third Floor,
Valley Stream, New York; or at the Office of the Federal Register, 800
North Capitol Street, NW., suite 700, Washington, DC.
FOR FURTHER INFORMATION CONTACT: Franco Pieri, Aerospace Engineer,
Airframe Branch, ANE-171, FAA, New York Aircraft Certification Office,
Engine and Propeller Directorate, 10 Fifth Street, Third Floor, Valley
Stream, New York 11581; telephone (516) 256-7526; fax (516) 568-2716.
SUPPLEMENTARY INFORMATION: A proposal to amend part 39 of the Federal
Aviation Regulations (14 CFR part 39) by superseding AD 95-26-17,
amendment 39-9475 (61 FR 5277, February 12, 1996), which is applicable
to certain de Havilland Model DHC-8-
[[Page 34369]]
301,-311, and-315 series airplanes, was published in the Federal
Register on April 23, 1996 (61 FR 17855).
For Model DHC-8-301 series airplanes, the action proposed to
continue to require modification of the airspeed limitations placard
and revision of the airplane flight manual (AFM) to specify operating
at lower airspeeds when the airplane is operating at full flaps.
For Model DHC-8-311 and-315 series airplanes, the action proposed
to require that the previously optional terminating modification
(Modification 8/2066) be installed within two years. Once that
modification is installed, the currently-required airspeed limitations
placard and AFM revision may be removed. Additionally, the action
proposed to require that Modification 8/2066 be installed on certain
outboard flap assemblies prior to their installation on these
airplanes.
Interested persons have been afforded an opportunity to participate
in the making of this amendment. No comments were submitted in response
to the proposal or the FAA's determination of the cost to the public.
Conclusion
The FAA has determined that air safety and the public interest
require the adoption of the rule as proposed.
Cost Impact
There are approximately 18 de Havilland Model DHC-8-301,-311, and-
315 series airplanes of U.S. registry that will be affected by this
proposed AD.
The actions that are currently required by AD 95-26-17
(modification of the airspeed limitations placard and revision of the
Airplane Flight Manual) affect all 18 U.S.-registered airplanes. Those
actions take approximately .5 work hour per airplane to accomplish, at
an average labor rate of $60 per work hour. The cost of required parts
is negligible. Based on these figures, the cost impact on U.S.
operators of the actions currently required is estimated to be $540, or
$30 per airplane.
The new actions that are required by this new AD (installation of
the terminating modification) will affect 14 U.S.-registered Model DHC-
8-311 and-315 series airplanes. The required actions will take
approximately 60 work hours per airplane to accomplish, at an average
labor rate of $60 per work hour. Required parts will be provided by the
manufacturer at no cost to operators. Based on these figures, the cost
impact on U.S. operators of the new requirements of this AD is
estimated to be $50,400, or $3,600 per airplane.
The cost impact figures discussed above are based on assumptions
that no operator has yet accomplished any of the requirements of this
AD action, and that no operator would accomplish those actions in the
future if this AD were not adopted.
Regulatory Impact
The regulations adopted 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.
For the reasons discussed above, I certify that this action (1) is
not a ``significant regulatory action'' under Executive Order 12866;
(2) is not a ``significant rule'' under DOT Regulatory Policies and
Procedures (44 FR 11034, February 26, 1979); and (3) 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. A final evaluation has been prepared for this action
and it is contained in the Rules Docket. A copy of it may be obtained
from the Rules Docket at the location provided under the caption
ADDRESSES.
List of Subjects in 14 CFR Part 39
Air transportation, Aircraft, Aviation safety, Incorporation by
reference, Safety.
Adoption of the Amendment
Accordingly, pursuant to the authority delegated to me by the
Administrator, the Federal Aviation Administration amends part 39 of
the Federal Aviation Regulations (14 CFR part 39) as follows:
PART 39--AIRWORTHINESS DIRECTIVES
1. The authority citation for part 39 continues to read as follows:
Authority: 49 U.S.C. 106(g), 40113, 44701.
Sec. 39.13 [Amended]
2. Section 39.13 is amended by removing amendment 39-9475 (61 FR
5277, February 12, 1996), and by adding a new airworthiness directive
(AD), amendment 39-9685, to read as follows:
96-14-03 de Havilland, Inc.: Amendment 39-9685. Docket 95-NM-268-AD.
Supersedes AD 95-26-17, Amendment 39-9475.
Applicability: Model DHC-8-301, -311, and -315 series airplanes;
as listed in de Havilland Service Bulletin S.B. 8-57-24, Revision
`A', dated September 26, 1995; certificated in any category.
Note 1: This AD applies to each airplane identified in the
preceding applicability provision, regardless of whether it has been
otherwise modified, altered, or repaired in the area subject to the
requirements of this AD. For airplanes that have been modified,
altered, or repaired so that the performance of the requirements of
this AD is affected, the owner/operator must request approval for an
alternative method of compliance in accordance with paragraph (f) of
this AD. The request should include an assessment of the effect of
the modification, alteration, or repair on the unsafe condition
addressed by this AD; and, if the unsafe condition has not been
eliminated, the request should include specific proposed actions to
address it.
Compliance: Required as indicated, unless accomplished
previously.
To prevent structural failure of the outboard flaps of the wings
due to the installation of incorrect rivets in the flap assemblies,
which could result in reduced controllability of the airplane,
accomplish the following:
(a) Within 30 days after February 27, 1996 (the effective date
of AD 95-26-17, amendment 39-9475), accomplish the modification of
the airspeed limitation placards (Modification 8/2498) in accordance
with de Havilland Service Bulletin S.B. 8-57-24, Revision `A', dated
September 26, 1995.
(b) Prior to further flight following accomplishment of the
modification required by paragraph (a) of this AD, revise the
Limitations Section of the FAA-approved Airplane Flight Manual (AFM)
by accomplishing either paragraph (b)(1) or (b)(2) of this AD, as
applicable; and operate the airplane in accordance with those
limitations.
(1) For Model DHC-8-301 series airplanes: Include the
information specified in DHC-8 Model 301 Flight Manual, PSM 1-83-1A,
Flight Manual Revision 57, dated September 26, 1995, which specifies
a lower airspeed limitation at full flaps. This may be accomplished
by inserting a copy of Flight Manual Revision 57 into the AFM.
(2) For Model DHC-8-311 and -315 series airplanes: Include the
following statement in section 2, paragraph 2.4.1.2., of the AFM.
This may be accomplished by inserting a copy of this AD in the AFM.
``Flap extended speed (VFE): Flaps 35 degrees 130 knots
IAS''
(c) For Model DHC-8-311 and -315 series airplanes: Within 2
years after the effective date of this AD, install Modification 8/
2066 in accordance with de Havilland Service Bulletin S.B. 8-57-24,
Revision `A', dated September 26, 1995. Such installation
constitutes terminating action for the
[[Page 34370]]
requirements of paragraphs (a) and (b) of this AD. Following
accomplishment of Modification 8/2066, the airspeed limitations
placard (Modification 8/2498) required by paragraph (a) of this AD
and the AFM limitation required by paragraph (b) of this AD may be
removed.
(d) Except as required by paragraph (e) of this AD: As of
February 27, 1996 (the effective date of AD 95-26-17, amendment 39-
9475), Modification 8/2498 must be accomplished in accordance with
de Havilland Service Bulletin S.B. 8-57-24, Revision `A', dated
September 26, 1995, prior to installation of any outboard flap
assembly having a part number and serial number that is listed in de
Havilland Service Bulletin S.B. 8-57-24, Revision `A', dated
September 26, 1995.
(e) For Model DHC-8-311 and -315 series airplanes: As of two
years after the effective date of this AD, prior to the installation
of any outboard flap assembly having a part number and serial number
that is listed in de Havilland Service Bulletin S.B. 8-57-24,
Revision `A', dated September 26, 1995, install Modification 8/2066
on the affected flap assembly in accordance with that service
bulletin. Installation of this modification terminates the
requirements specified in paragraphs (a), (b), and (d) of this AD.
(f) An alternative method of compliance or adjustment of the
compliance time that provides an acceptable level of safety may be
used if approved by the Manager, New York Aircraft Certification
Office (ACO), FAA, Engine and Propeller Directorate. Operators shall
submit their requests through an appropriate FAA Principal
Maintenance Inspector, who may add comments and then send it to the
Manager, New York ACO.
Note 2: Information concerning the existence of approved
alternative methods of compliance with this AD, if any, may be
obtained from the New York ACO.
(g) Special flight permits may be issued in accordance with
sections 21.197 and 21.199 of the Federal Aviation Regulations (14
CFR 21.197 and 21.199) to operate the airplane to a location where
the requirements of this AD can be accomplished.
(h) The modifications shall be done in accordance with de
Havilland Service Bulletin S.B. 8-57-24, Revision `A', dated
September 26, 1995. The AFM revision may be done in accordance with
DHC-8 Model 301 Flight Manual, PSM 1-83-1A, Flight Manual Revision
57, dated September 26, 1995. The incorporation by reference of
these two documents was approved previously by the Director of the
Federal Register, in accordance with 5 U.S.C. 552(a) and 1 CFR part
51, as of February 27, 1996 (61 FR 5277, February 12, 1996). Copies
may be obtained from Bombardier, Inc., Bombardier Regional Aircraft
Division, Garratt Boulevard, Downsview, Ontario M3K 1Y5, Canada.
Copies may be inspected at the FAA, Transport Airplane Directorate,
1601 Lind Avenue, SW., Renton, Washington; or at the FAA, New York
Aircraft Certification Office, Engine and Propeller Directorate, 10
Fifth Street, Third Floor, Valley Stream, New York; or at the Office
of the Federal Register, 800 North Capitol Street, NW., suite 700,
Washington, DC.
(i) This amendment becomes effective on August 6, 1996.
Issued in Renton, Washington, on June 26, 1996.
S.R. Miller,
Acting Manager, Transport Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 96-16807 Filed 7-1-96; 8:45 am]
BILLING CODE 4910-13-U
Complete official Federal Register PDF
FR Doc. 96-16794 General Administration Regulations; Reinsurance Agreement Standards for Approval
[Federal Register Volume 61, Number 128 (Tuesday, July 2, 1996)]
[Rules and Regulations]
[Pages 34367-34368]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-16794]
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Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
Prices of new books are listed in the first FEDERAL REGISTER issue of each
week.
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Federal Register / Vol. 61, No. 128 / Tuesday, July 2, 1996 / Rules
and Regulations
[[Page 34367]]
DEPARTMENT OF AGRICULTURE
Federal Crop Insurance Corporation
7 CFR Part 400
General Administration Regulations; Reinsurance Agreement--
Standards for Approval
AGENCY: Federal Crop Insurance Corporation.
ACTION: Final rule.
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SUMMARY: The Federal Crop Insurance Corporation (FCIC) amends its
General Administrative Regulations by revising Sec. 400.168. This
amendment is intended to bring Sec. 400.168 into conformance with the
Federal Agriculture Improvement and Reform Act of 1996 (1996 Act) by
clarifying the obligations of the reinsured companies with respect to
the sale and service of the catastrophic risk protection (CAT) plan of
insurance in those States, or portions of a State, where the Secretary
of Agriculture has determined that there are, or are not, sufficient
insurance agents and other personnel available to service CAT
policyholders.
EFFECTIVE DATE: June 27, 1996.
FOR FURTHER INFORMATION CONTACT:
Diana Moslak, Account Executive, Risk Management Agency, Insurance
Services Division, Reinsurance Services Liaison Branch, United States
Department of Agriculture (USDA), Washington, D.C. 20250, telephone
(202) 720-2832.
SUPPLEMENTARY INFORMATION: Pursuant to section 161(d) of the 1996 Act,
this rule is issued without regard to (1) the notice and comment
provisions of section 553 of Title 5, United States Code,
(1) the notice and comment provisions of section 553 of Title 5,
United States Code,
(2) the Statement of Policy of the Secretary of Agriculture (36 FR
13804) relating to notice of proposed rulemaking and public
participation in rulemaking, and
(3) the Paperwork Reduction Act of 1995, (44 U.S.C., chapter 35)
notice and comment requirements.
Executive Order 12866 and Departmental Regulation 1512-1
This action has been reviewed under United States Department of
Agriculture (USDA) procedures established by Executive Order 12866 and
Departmental Regulation 1512-1. This action constitutes a review as to
the need, currency, clarity, and effectiveness of these regulations
under those procedures. The sunset review date established for these
regulations is March 31, 1999.
This rule has been determined to be not significant for the
purposes of Executive Order 12866 and, therefore, has not been reviewed
by the Office of Management and Budget (OMB).
Unfunded Mandates Reform Act of 1995
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and private sector. Under section 202 of the UMRA, FCIC
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with Federal mandates that may
result in expenditures of State, local, or tribal governments, in the
aggregate, or to the private sector, of $100 million or more in any one
year. When such a statement is needed for a rule, section 205 of the
UMRA generally requires FCIC to identify and consider a reasonable
number of regulatory alternatives and adopt the least costly, more
cost-effective or least burdensome alternative that achieves the
objectives of the rule.
This rule contains no Federal mandates (under the regulatory
provisions of Title II of the UMRA) for State, local, and tribal
governments or the private sector. Thus, the rule is not subject to the
requirements of section 202 and 205 of the UMRA. Executive Order No.
12612.
It has been determined under section 6(a) of Executive Order No.
12612, Federalism, that this rule does not have sufficient Federalism
implications to warrant the preparation of a Federalism Assessment. The
provisions contained in this rule will not have a substantial direct
effect on states or their political subdivisions, or on the
distribution of power and responsibilities among the various levels of
Government.
Regulatory Flexibility Act
This regulation will not have a significant impact on a substantial
number of small entities. This action does not increase the burden on
the reinsured company because this action merely clarifies the
obligations of participating insurance companies in providing for the
delivery of catastrophic risk protection policies through approved
private insurance providers consistent with the legislative requirement
of the 1996 Act to foster a single delivery system. Although this
action will require approved insurance providers to accept all eligible
applicants for all plans of insurance in all counties within a State
(or a portion of State) where it is determined that there is a
sufficient number of active agents reasonably accessible to producers,
the benefits in terms of greater underwriting capacity for the private
sector will outweigh any increased underwriting risks associated with a
single delivery system. Therefore, this action is determined to be
exempt from the provisions of the Regulatory Flexibility Act (5 U.S.C.
Sec. 605) and no Regulatory Flexibility Analysis was prepared.
Federal Assistance Program
This program is listed in the Catalog of Federal Domestic
Assistance under No. 10.450.
Executive Order No. 12372
This program is not subject to the provision of Executive Order No.
12372, which require intergovernmental consultation with State and
local officials. See the Notice related to 7 CFR part 3015, subpart V,
published at 48 FR 29115, June 24, 1983.
Executive Order No. 12778
The Office of the General Counsel has determined that these
regulations meet the applicable standards provided in sections 2(a) and
2(b)(2) of Executive Order No. 12778. The provisions of this rule will
preempt State and local laws to the extent such State and local laws
are inconsistent herewith. The administrative appeal provisions
[[Page 34368]]
contained in these regulations and the appeal provisions promulgated by
the Board of Contract Appeals, 7 CFR part 24, subtitle A, must be
exhausted before any action for judicial review may be brought.
Environmental Evaluation
This action is not expected to have a significant impact on the
quality of the human environment, health, and safety. Therefore,
neither an Environmental Assessment nor an Environmental Impact
Statement is needed.
National Performance Review
This regulatory action is being taken as part of the National
Performance Review Initiative to eliminate unnecessary or duplicative
regulations and improve those that remain in force.
Background
Prior to enactment of the 1996 Act, CAT coverage was offered
through approved insurance providers and through local offices of the
Farm Service Agency, USDA on a nationwide basis. The 1996 Act amended
the Federal Crop Insurance Act to require the USDA to phase in a single
delivery of CAT coverage unless the Secretary of Agriculture determines
that the number of private insurers in a State (or a portion of a
State) is insufficient to provide the coverage. In response to the
legislative elimination of the delivery of CAT through county Farm
Service Agency offices, except in those areas where there are
insufficient approved private insurance providers to provide CAT
coverage to producers, FCIC must amend this regulation to update and
clarify the obligations of participating insurance companies.
List of Subjects in 7 CFR Part 400
Crop insurance.
Final Rule
Pursuant to the authority contained in the Federal Crop Insurance
Act, as amended (7 U.S.C. Sec. 1501 et seq.), the Federal Crop
Insurance Corporation hereby amends General Administrative Regulations,
7 CFR part 400, subpart L, effective for the 1997 and succeeding
reinsurance years, as follows:
PART 400--GENERAL ADMINISTRATIVE REGULATIONS
Subpart L--Reinsurance Agreement--Standards for Approval;
Regulations for the 1997 and Subsequent Reinsurance Years
1. The authority citation for 7 CFR part 400, subpart L is revised
to read as follows:
Authority: 7 U.S.C. 1506(l), 1506(p).
2. Paragraphs (b) and (c) of Sec. 400.168 are revised to read as
follows:
Sec. 400.168 Obligations of participating insurance company.
* * * * *
(b) The Company shall make available to all eligible producers in
the areas designated in its plan of operations as approved by the
Corporation:
(1) The crop insurance plans for the crops designated in its plan
of operation in those counties within a State, or a portion of a State,
where the Secretary of Agriculture has determined that insurance is
available through local offices of the United States Department of
Agriculture; and
(2) Catastrophic risk protection, limited, and additional coverage
plans of insurance for all crops, for which such insurance is made
available by the Corporation, in all counties within a state, or a
portion of State, where the Secretary of Agriculture has determined
that insurance is no longer available through local offices of the
United States Department of Agriculture.
(c) The Company shall provide the Corporation, on forms approved by
the Corporation all information that the Corporation may deem relevant
in the administration of the Agreement, including a list of all
applicants determined to be ineligible for crop insurance coverage in
accordance with subpart U of part 400 and all insured producers
cancelled or terminated from insurance, along with the reason for such
action, the crop program, and the amount of coverage for each.
* * * * *
Signed in Washington, D.C., on June 26, 1996.
Kenneth D. Ackerman,
Manager, Federal Crop Insurance Corporation.
[FR Doc. 96-16794 Filed 6-27-96; 12:36 pm]
BILLING CODE 3410-FA-M
Complete official Federal Register PDF
FR Doc. 96-16769 Indirect Food Additives: Polymers
[Federal Register Volume 61, Number 128 (Tuesday, July 2, 1996)]
[Rules and Regulations]
[Pages 34370-34371]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-16769]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF HEALTH AND HUMAN SERVICES
Food and Drug Administration
21 CFR Part 177
[Docket No. 93F-0167]
Indirect Food Additives: Polymers
AGENCY: Food and Drug Administration, HHS.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Food and Drug Administration (FDA) is amending the food
additive regulations to provide for the safe use of Nylon 46 resins,
which are manufactured by the condensation of 1,4-butanediamine and
adipic acid, in membrane filters intended to contact beverages
containing not more than 13 percent alcohol. This action responds to a
petition filed by DSM Engineering Plastics.
DATES: Effective July 2, 1996; written objections and requests for a
hearing by August 1, 1996.
ADDRESSES: Submit written objections to the Dockets Management Branch
(HFA-305), Food and Drug Administration, 12420 Parklawn Dr., rm. 1-23,
Rockville, MD 20857.
FOR FURTHER INFORMATION CONTACT: Julius Smith, Center for Food Safety
and Applied Nutrition (HFS-216), Food and Drug Administration, 200 C
St. SW., Washington, DC 20204, 202-418-3091.
SUPPLEMENTARY INFORMATION: In a notice published in the Federal
Register of June 17, 1993 (58 FR 33447), FDA announced that a petition
(FAP 3B4374) had been filed by DSM Engineering Plastics, 501 Crescent
Ave., Reading, PA 19512-5051 (currently c/o Keller and Heckman, 1001 G
St. NW., suite 500 West, Washington, DC 20001). The petitioner proposed
to amend the food additive regulations in Sec. 177.1500 Nylon resins
(21 CFR 177.1500) to provide for the safe use of Nylon 46 resins, which
are manufactured by the condensation of 1,4-butanediamine and adipic
acid, in membrane filters intended to contact alcoholic beverages.
FDA has evaluated the data in the petition and other relevant
material. The agency concludes that the proposed use of the additive is
safe and that Sec. 177.1500 should therefore be amended as set forth
below.
In accordance with Sec. 171.1(h) (21 CFR 171.1(h)), the petition
and the documents that FDA considered and relied upon in reaching its
decision to approve the petition are available for inspection at the
Center for Food Safety and Applied Nutrition by appointment with the
information contact person listed above. As provided in Sec. 171.1(h),
the agency will delete from the documents any materials that are not
available for public disclosure before making the documents available
for inspection.
The agency has carefully considered the potential environmental
effects of this action. FDA has concluded that the action will not have
a significant impact on the human environment, and that an
environmental impact statement is not required. The agency's finding of
no significant impact and the evidence supporting that finding,
contained in an environmental assessment, may be seen in the Dockets
Management Branch (address above) between 9 a.m. and 4 p.m., Monday
through Friday.
Any person who will be adversely affected by this regulation may at
any time on or before August 1, 1996, file with the Dockets Management
Branch (address above) written objections thereto. Each objection shall
be separately numbered, and each numbered objection shall specify with
particularity the provisions of the regulation to which objection is
made and the grounds for the objection. Each numbered objection on
which a hearing is requested shall specifically so state. Failure to
request a hearing for any particular objection shall constitute a
waiver of the right to a hearing on that objection. Each numbered
objection for which a hearing is requested shall include a detailed
description and analysis of the specific factual information intended
to be presented in support of the objection in the event that a hearing
is held. Failure to include such a description and analysis for any
particular objection shall constitute a waiver of the right to a
hearing on the objection. Three copies of all documents shall be
submitted and shall be identified with the docket number found in
brackets in the heading of this document. Any objections received in
response to the regulation may be seen in the Dockets Management Branch
between 9 a.m. and 4 p.m., Monday through Friday.
List of Subjects in 21 CFR Part 177
Food additives, Food packaging.
[[Page 34371]]
Therefore, under the Federal Food, Drug, and Cosmetic Act and under
authority delegated to the Commissioner of Food and Drugs and
redelegated to the Director, Center for Food Safety and Applied
Nutrition, 21 CFR part 177 is amended as follows:
PART 177--INDIRECT FOOD ADDITIVES: POLYMERS
1. The authority citation for 21 CFR part 177 continues to read as
follows:
Authority: Secs. 201, 402, 409, 721 of the Federal Food, Drug,
and Cosmetic Act (21 U.S.C. 321, 342, 348, 379e).
2. Section 177.1500 is amended by adding new paragraph (a)(15) and
in the table in paragraph (b) by adding new entry ``15'' to read as
follows:
Sec. 177.1500 Nylon resins.
* * * * *
(a) * * *
(15) Nylon 46 resins (CAS Reg. No. 50327-77-0) are manufactured by
the condensation of 1,4-butanediamine and adipic acid.
(b) * * *
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Maximum extractable fraction in selected solvents (expressed in
Melting point percent by weight of resin)
Nylon resins Specific (degrees Solubility in Viscosity No. (mL/ -----------------------------------------------------------------------
gravity Fahrenheit) boiling 4.2N HCL g) 95 percent ethyl
Water alcohol Ethyl acetate Benzene
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
15. Nylon 46 resins for use only in food- 1.18 plus- 551-592 Dissolves in 1 ................... 0.3 0.2 0.2 0.3
contact membrane filters intended for minus 0.015 hour
repeated use. The finished membrane filter
is intended to contact beverages containing
no more than 13 percent alcohol, under
conditions of use E, F, and G listed in
table 2 of Sec. 176.170(c) of this chapter.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * *
Dated: June 12, 1996.
Fred R. Shank,
Director, Center for Food Safety and Applied Nutrition.
[FR Doc. 96-16769 Filed 7-1-96; 8:45 am]
BILLING CODE 4160-01-F
Complete official Federal Register PDF
FR Doc. 96-16762 Radio Broadcasting Services; Conway and Myrtle Beach, SC
[Federal Register Volume 61, Number 128 (Tuesday, July 2, 1996)]
[Rules and Regulations]
[Page 34377]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-16762]
-----------------------------------------------------------------------
FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 73
[MM Docket No. 91-75; RM-7230]
Radio Broadcasting Services; Conway and Myrtle Beach, SC
AGENCY: Federal Communications Commission.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Commission, at the request of Lee W. Shubert, Trustee,
reallots Channel 281C1 from Conway to Myrtle Beach, South Carolina, and
modifies Station WYAV(FM)'s license accordingly. See 56 FR 14054, April
5, 1991. Channel 281C1 can be allotted to Myrtle Beach in compliance
with the Commission's minimum distance separation requirements with a
site restriction of 20.2 kilometers (12.6 miles) southwest to avoid a
short-spacing to Station WLTT(FM), Channel 279C3, Shallotte, North
Carolina, at petitioner's present transmitter site. The coordinates for
Channel 281C1 at Myrtle Beach are North Latitude 33-35-27 and West
Longitude 79-02-53. With this action, this proceeding is terminated.
EFFECTIVE DATE: August 5, 1996.
FOR FURTHER INFORMATION CONTACT: Sharon P. McDonald, Mass Media Bureau,
(202) 418-2180.
SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's
Report and Order, MM Docket No. 91-75, adopted June 14, 1996, and
released June 21, 1996. The full text of this Commission decision is
available for inspection and copying during normal business hours in
the FCC Reference Center (Room 239), 1919 M Street, NW., Washington,
DC. The complete text of this decision may also be purchased from the
Commission's copy contractors, International Transcription Service,
Inc., (202) 857-3800, 2100 M Street, NW., Suite 140, Washington, DC
20037.
List of Subjects in 47 CFR Part 73
Radio broadcasting.
Part 73 of title 47 of the Code of Federal Regulations is amended
as follows:
PART 73--[AMENDED]
1. The authority citation for part 73 continues to read as follows:
Authority: Sections 303, 48 Stat., as amended, 1082; 47 U.S.C.
154, as amended.
Sec. 73.202 [Amended]
2. Section 73.202(b), the Table of FM Allotments under South
Carolina, is amended by removing Channel 281C1 at Conway, and adding
Channel 281C1 at Myrtle Beach.
Federal Communications Commission.
John A. Karousos,
Chief, Allocations Branch, Policy and Rules Division, Mass Media
Bureau.
[FR Doc. 96-16762 Filed 7-1-96; 8:45 am]
BILLING CODE 6712-01-F
Complete official Federal Register PDF
FR Doc. 96-16761 Federal-State Joint Board on Universal Service
[Federal Register Volume 61, Number 128 (Tuesday, July 2, 1996)]
[Rules and Regulations]
[Pages 34376-34377]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-16761]
-----------------------------------------------------------------------
FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 36
[CC Docket 96-45; FCC-96-281]
Federal-State Joint Board on Universal Service
AGENCY: Federal Communications Commission.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This Report and Order extends the duration of the indexed
interim cap (``interim cap'') on the rate of growth of the Universal
Service Fund (``USF''), amending the Commission's rules regarding
jurisdictional separations. This action will moderate the growth of the
USF while the Federal-State Joint Board on Universal Service and the
Commission consider changes to the universal service rules. The interim
cap is extended in order to facilitate the transition to any new
universal service rules that are adopted consistent with the mandates
of the Telecommunications Act of 1996.
EFFECTIVE DATE: July 1, 1996.
FOR FURTHER INFORMATION CONTACT: Pam Szymczak, Accounting and Audits
Division, Common Carrier Bureau at (202) 418-0389.
SUPPLEMENTARY INFORMATION: This Report and Order adopts the Recommended
Decision of the Federal-State Joint Board on Universal Service, FCC
96J-1 (released June 19, 1996) and extends the interim cap on the
growth of the Universal Service Fund. The Report and Order extends the
interim cap until the Commission's final rules on universal service, to
be adopted on or before May 8, 1997, become effective. The Federal-
State Joint Board recommended, and the Commission concurs in the Report
and Order, that extending the duration of the cap will facilitate a
transition to any new universal service rules that may be implemented
pursuant to the Telecommunications Act of 1996, Pub. L. No. 104-104,
110 Stat. 56 (1996). For all the reasons stated in the Report and
Order, the Commission finds good cause for making the rule amendments
effective on less than 30 days notice. The Notice of Proposed
Rulemaking initiating this proceeding was released March 8, 1996 (FCC
96-93).
List of Subjects in 47 CFR Part 36
Communications common carriers, Telephone and Uniform System of
Accounts.
Federal Communications Commission.
William F. Caton,
Acting Secretary.
Rule Changes
Part 36 of Title 47 of the Code of Federal Regulations is amended
as follows:
PART 36--JURISDICTIONAL SEPARATIONS PROCEDURES; STANDARD
PROCEDURES FOR SEPARATING TELECOMMUNICATIONS PROPERTY COSTS,
REVENUES, EXPENSES, TAXES AND RESERVES FOR TELECOMMUNICATIONS
COMPANIES
1. The authority citation for Part 36 continues to read as follows:
Authority: 47 U.S.C. Secs. 151, 154 (i) and (j), 205, 221(c),
403 and 410.
2. Section 36.601 is amended by revising paragraph (c) to read as
follows:
Sec. 36.601 General.
* * * * *
(c) During an interim period commencing on January 1, 1994, and
terminating on the effective date of the Commission's universal service
rules, to be adopted in CC Docket 96-45 on or before May 8, 1997, the
annual amount of the total Universal Service Fund shall not exceed the
amount of the total Universal Service Fund for the immediately
preceding calendar year, increased by a rate equal to the rate of
increase in the total number of working loops nationwide during the
calendar year preceding the June filing. The total Universal Service
Fund shall consist of the Universal Service expense adjustments,
including amounts calculated pursuant to Secs. 36.612(a) and 36.631.
The rate of increase in total working loops shall be based upon the
[[Page 34377]]
difference between the number of total working loops on December 31 of
the year preceding the June filing and the number of total working
loops on December 31 of the second year preceding that filing, both
calculated pursuant to Sec. 36.611(a)(8).
3. Section 36.622 is amended by revising paragraph (c) to read as
follows:
Sec. 36.622 National and study area average unseparated loop costs.
* * * * *
(c) During an interim period commencing on January 1, 1994, and
terminating on the effective date of the Commission's universal service
rules, to be adopted in CC Docket No. 96-45 on or before May 8, 1997,
the National Average Unseparated Loop Cost per Working Loop shall be
the greater of:
(1) The amount calculated pursuant to the method described in
paragraph (a) of this section; or
(2) An amount calculated to produce the maximum total Universal
Service Fund allowable pursuant to Sec. 36.601(c).
[FR Doc. 96-16761 Filed 6-28-96; 10:18 am]
BILLING CODE 6712-01-P
Complete official Federal Register PDF
FR Doc. 96-16432 Aircraft Flight Simulator Use in Pilot Training, Testing, and Checking and at Training Centers
[Federal Register Volume 61, Number 128 (Tuesday, July 2, 1996)]
[Rules and Regulations]
[Pages 34508-34568]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-16432]
[[Page 34507]]
_______________________________________________________________________
Part II
Department of Transportation
_______________________________________________________________________
Federal Aviation Administration
_______________________________________________________________________
14 CFR Part 1, et al.
Aircraft Flight Simulator Use in Pilot Training, Testing, and Checking
and at Training Centers; Final Rule
Federal Register / Vol. 61, No. 128 / Tuesday, July 2, 1996 / Rules
and Regulations
[[Page 34508]]
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Parts 1, 61, 91, 121, 125, 135, 141, 142
[Docket No. 26933; Amendment No. 1-45, 61-100, 91-251, 121-259, 125-27,
135-63, 141-7, 142; SFAR-58-2]
RIN 2120-AA83
Aircraft Flight Simulator Use in Pilot Training, Testing, and
Checking and at Training Centers
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This final rule implements new regulations that contain
certification and operating rules for training centers that will use
aircraft flight simulators and flight training devices for pilot
training, testing, and checking. This rule will increase the use of
flight simulators and flight training devices by permitting their use
for most airman certification training, testing, and checking tasks.
This use of simulation for training, testing, and checking is more
liberal than that currently permitted under the Federal Aviation
Regulations. The training center concept will provide a common source
for standardized, quality training accessible to any individual or
corporate operator and air carriers. This action is consistent with a
state-of-the-art training concept and recognizes industry
recommendations for the expanded use of sophisticated flight
simulation. The new rule also adds regulations regarding Category III
instrument landing system operations.
EFFECTIVE DATE: This final rule is effective August 1, 1996.
FOR FURTHER INFORMATION CONTACT: Warren Robbins, Airman Certification
Branch, (AFS-840), General Aviation and Commercial Division, Flight
Standards Service, Federal Aviation Administration, 800 Independence
Avenue SW., Washington, DC 20591, Telephone (202) 267-8196.
SUPPLEMENTARY INFORMATION:
Availability of Final Rules
Any person may obtain a copy of this final rule by submitting a
request to the Federal Aviation Administration, Office of Rulemaking,
ARM-1, 800 Independence Avenue, SW., Washington, DC 20591, or by
calling (202) 267-9677. Communications must identify the notice number
of this final rule.
Persons interested in being placed on the mailing list for future
rules should request from the above office a copy of Advisory Circular
No. 11-2A which describes the application procedure.
Background
Flight simulation technology has shown enormous advancement during
the past 30 years. The Federal Aviation Administration (FAA) has
permitted greater use of aircraft flight simulators and flight training
devices in training, testing, and checking airmen. The increased
complexity and operating costs of the modern turbine-powered aircraft
and the current operating environment have created an even greater need
for the use of flight simulators and flight training devices. In many
cases, flight simulators have proven to provide more in-depth training
than can be accomplished in the aircraft. The use of flight simulators
and flight training devices in lieu of aircraft has resulted in a
reduction in air traffic congestion, noise and air pollution, and
training costs. The increased use of flight simulators is also
consistent with the national policy for fuel conservation.
Flight simulators provide a safe flight training environment. They
may reduce the number of training accidents by allowing training for
emergency situations, such as fire, total loss of thrust, and systems
failures, that cannot be safely conducted in flight. The FAA has
traditionally recognized the value of flight simulation and has awarded
credit for the completion of certain required training, testing, and
checking by use of simulation.
The first aircraft flight simulators approved by the FAA were
relatively unsophisticated and were authorized for only a limited
number of maneuvers and procedures. As flight simulator technology
developed, the FAA expanded the use of flight simulators but still
required students to perform a number of maneuvers in an aircraft.
Among these were takeoffs, landings, taxiing, and some approaches.
In Amendment No. 121-55 (35 FR 84; January 3, 1970), the FAA
revised parts 61 and 121 to authorize the use of flight simulators and
flight training devices for airman training, testing, and checking.
This use applied only to part 121 air carriers.
In Amendment No. 61-60 (38 FR 3156; February 1, 1973), the FAA
authorized the Sec. 61.58 proficiency check for the pilot of an
aircraft requiring more than one pilot to be accomplished in its
entirety either in an airplane or in a flight simulator or flight
training device. In alternating 12-month periods, the proficiency check
consists of maneuvers and procedures that may be performed in a flight
simulator or flight training device as set forth in appendix F of part
121.
Subsequently, the FAA issued Amendments 61-62 and 121-108 (38 FR
35443; December 28, 1973), effective December 19, 1973. These
amendments, in part, revised parts 61 and 121 by authorizing certain
maneuvers and procedures of the pilot-in-command proficiency check to
be performed in an approved visual flight simulator, if the pilot being
checked accomplished two landings in an airplane of the same type.
The FAA issued Amendments 61-69 and 121-161 (45 FR 44176; June 30,
1980), effective July 30, 1980, that further expanded the use of
advanced flight simulators for air carriers. Amendments 61-69 and 121-
161 formed the basis of the Advanced Simulation Plan, which included
Phase I, II, IIA, and III flight simulators (part 121, appendix H).
Since the infancy of simulation training, the training roles of
several elements of the aviation community have expanded, most notably
those of part 121 and part 135 certificate holders providing training
for other certificate holders. Also, aircraft manufacturers are
providing more simulation training now than they did in the past. This
expansion has led to an ever-increasing need to issue exemptions.
In June 1988, the FAA received from a joint industry/FAA task force
1 several recommendations on the expanded use of flight simulators
in new and innovative training programs. The recommendations included
(1) Establishing a training center certificate for a separate training
entity certificated to conduct training, testing, and checking under 14
Code of Federal Aviation Regulations parts 61, 63, 91, 121, 125, 135,
and 141; (2) centralizing an approval process for course programs and
check airmen at the national level, with local approvals only for
specialty (local or unique) courses; and (3) expanding and
standardizing the use of flight simulators and flight training devices,
while at the same time providing relief from certain provisions of part
121, appendix H. The task force recommended single point oversight of a
certificate by the FAA (instead of separate Flight Standards District
Offices (FSDO's) approving centers in
[[Page 34509]]
their geographic areas), defining training center recordkeeping
requirements, and providing relief from the medical certificate
requirements for instructors and check airmen conducting training in
only flight simulators and flight training devices. The task force
submitted aircraft manufacturer recommendations as an addendum
recommending that a manufacturer's training center provide the initial
operating experience (IOE) for air carriers.
---------------------------------------------------------------------------
\1\ This task force was later subsumed by the Air Transportation
Personnel Training and Qualifications Advisory Committee,
established by FAA Order 1110.115, May 2, 1990. Today it continues
to function as an issues area by the same name under the Aviation
Rulemaking Advisory Committee.
---------------------------------------------------------------------------
In April 1989, this task force examined the role of training
centers that provide training, testing, and checking for air carrier
and general aviation pursuant to contracts, particularly training using
flight simulators and flight training devices. This task force, which
was comprised of aviation representatives from special interest groups,
aircraft manufacturers, air carriers, university flight departments,
and training centers such as SimuFlite, FlightSafety International, and
Northwest Aerospace Training Corporation, examined flight simulation
instructor and evaluator issues, including prerequisites; initial and
recurrent training; requirements for current medical certificates;
necessary in-flight experience; training center issues such as
recordkeeping, facilities, and equipment; and the training program
approval process.
The formal recommendations of this task force were forwarded to the
FAA in October 1989. Essentially, the task force recommended that the
FAA standardize the use of flight simulators and flight training
devices, provide a means to certificate entities called training
centers, and permit the training centers to apply for national approval
of core curriculums that could be used by individuals receiving
training under parts 61, 121, 125, and 135. Following receipt of the
recommendations, the FAA appointed an internal working group to
consider the recommendations.
The FAA working group concurred with most of the recommendations of
the task force and recommended that the FAA undertake a rulemaking
project that would include the concept of a certificated training
center.
Related Activity
Several other FAA rulemaking projects address some of the same
sections of 14 Code of Federal Regulations (14 CFR) that are revised in
this rule; however, this rulemaking addresses those sections as they
relate to the use of simulation.
Special Federal Aviation Regulation (SFAR) No. 58, ``Advanced
Qualification Program,'' (Amendment 61-88, effective October 2, 1990,
55 FR 40262) allows air carriers conducting training and testing under
part 121 or part 135 to develop innovative approaches to training. Most
AQP training programs will involve the use of simulation.
Three projects, listed below, are final rules that the FAA expects
to issue soon:
``Pilot, Flight Instructor, Ground Instructor, and Pilot
Certification Rules,'' proposed on August 11, 1995 [60 FR 41160],
revises parts 61, 141, and 143.
``Training and Qualifications Requirements for Check Airmen and
Flight Instructors,'' proposed on February 22, 1996 [61 FR 6898],
changes certain provisions of Secs. 121.411, 121.413, 135.337, and
135.339.
``Part 121; Appendix H, Advanced Simulation Plan Revisions,''
proposed on February 14, 1995 [60 FR 8490], updates and revises
appendix H of part 121.
Discussion of the Amendments and the New Rule
General
This final rule addresses the following: (1) The creation of a new
part 142 that contains certification rules and operating rules for
training centers; (2) an expanded use of, and credit for, training,
testing, and checking conducted in flight simulators and flight
training devices in accordance with approved programs conducted at
training centers to satisfy all or some of the requirements of SFAR 58,
part 61, part 121, part 125, or part 135; and (3) new rules pertaining
to Category III authorizations.
The advantage of the training center concept is that it is a common
source for standardized, quality training, testing, and checking
accessible to any individual, operator, and air carriers. Program
approval will be standardized through national guidance, which should
prove especially helpful for training centers operating in different
FAA regions. The rules applicable to training centers apply nationwide,
and training programs, except specialty training courses, are subject
to approval by local FAA offices only after detailed review for
compliance with national guidance. A key concept in the proposal is
standardization of certain elements of training programs, notably: the
extent of the use of simulation, the prerequisites for the use of
simulation for specific tasks, and simulation instructor and evaluator
qualifications.
The FAA proposed a national office to ensure standardization in
simulation training. Several commenters supported the proposal to
create a national office for standardization purposes. The FAA has
decided not to create a national office at this time, however. In the
present economic environment, government is increasingly exploring
alternative methods of accomplishing many of its missions.
Additionally, the FAA subscribes to the concept of decentralization of
government to make it more responsive to the users, and accomplishing
the objectives of this rulemaking without a national office is
consistent with the precept of government decentralization. The FAA is
convinced that it can attain and maintain the concept of
standardization of simulation training by means more economical than
creating a national office.
Detailed guidance will be provided to FAA inspectors and potential
training center certificate applicants in the form of handbooks,
advisory circulars, and FAA orders. The Flight Standards Service will
appoint an ad hoc group of several persons from within existing
resources with experience in subjects related to simulation training
centers. The ad hoc group will process the initial certificate
applications, training specifications, and curriculum approvals. It
will ensure that those approvals are standardized nationally and that
they represent a smooth transition of existing training programs to the
new training regulations.
The Flight Standards Service also will train all its inspectors on
features of part 142 training centers. It will provide detailed
training to those inspectors who will have training center oversight
responsibilities and to Principal Operations Inspectors (POI's) of air
carrier certificate holders that may use a training center.
After the steps outlined above are accomplished and the initial
workload of certificate applications is completed, the ad hoc group
will be dissolved, and approval of training center certificate
applications and oversight of training centers will be decentralized in
accordance with existing FAA structure and management practices.
This rule does not take away any of the uses for flight training
devices currently allowed by 14 CFR, and will have no adverse impact on
the airmen who use flight simulation. Providers of flight simulation
training, testing, and checking under part 142 will come under new
regulatory controls that will enhance the use of qualified flight
simulation in approved training programs. The changes are consistent
with a state-of-the-art training concept, and they recognize industry
[[Page 34510]]
recommendations for the expanded use of sophisticated flight
simulation. The FAA has determined that, if a student has prerequisite
experience, a qualified flight simulator or flight training device used
in an approved training program will provide for an effective transfer
of skills to the actual aircraft.
In this rule, the FAA implements the joint industry/FAA task force
recommendations concerning training centers by using an operational
concept that requires a training center to obtain a certificate plus a
training specification (similar to an operating specification for part
121 and part 135 operators). This approach will add flexibility to
accommodate changing conditions without changing the certificate
itself.
Part 142 allows training centers that do not hold a part 121 or
part 135 operating certificate to use approved flight simulators and
approved flight training devices for airman training, testing, and
checking. This rule also changes certain sections of parts 61, 121,
125, and 135 to provide a mechanism for crediting training, testing,
and checking in flight simulators toward some of the aeronautical
experience, testing, and checking requirements of 14 CFR. Part 121 and
part 135 certificate holders will continue to train personnel under
those parts; however, those certificate holders will be required to
acquire a part 142 training certificate in order to conduct training,
testing, and checking for persons not subject to those parts.
The authority to issue pilot certificates and the provisions
permitting certain training, testing, and checking in a flight
simulator or flight training device, rather than in an aircraft,
remains in part 61.
Part 142 regulates training center certification and operation to
ensure that qualified flight simulators or flight training devices are
used in conjunction with approved courses and curricula. The benefits
of completing a course of standardized instruction in a structured
training environment, and in a timeframe that allows for a building-
block approach to learning, has been recognized and is reflected in the
part 141 flight experience prerequisites for pilot certificates. Thus,
part 141 flight experience requirements were used as the basis for many
of the part 142 initial requirements.
Part 141 Pilot Schools
Pilot schools certificated under part 141 may continue to operate
as they do now. Certification of new pilot schools will also continue
under part 141. A part 141 pilot school wishing to use a Level A
through Level D flight simulator for more than the hours currently
allowed in a pilot ground trainer as described in Sec. 141.41(a)(1),
however, will have to become certificated under part 142. (See Advisory
Circular (AC) 120-40, Airplane Simulator Qualification, as amended, for
the current descriptions of levels of flight simulators).
This rule does not include an increase in credits for use of
simulators except in the structured environment created by part 142, or
as may be individually approved for an air carrier. Part 141 pilot
schools that desire to undertake training by use of more sophisticated
simulation, in addition to training accomplished by aircraft and flight
training devices, may become training centers certificated under part
142. They would apply for certification and course approval under part
142 in the same manner as other applicants.
Advanced Qualification Program (AQP)
This final rule has minimal impact on AQP. It provides the
administrative structure for presentation of AQP to any group other
than aircrews subject to a part 121 or part 135 approved training
program who might receive the AQP training exclusively from their
employing certificate holder. All AQP approval criteria, application
procedures, instructor qualifications, recordkeeping, and data
collection procedures, among others, remain as they are described in
SFAR 58 or its superseding rules.
This final rule changes the definition of a training center that
appears in SFAR 58 to make it compatible with that term as used in part
142; provides that trainers other than part 121 or part 135 certificate
holders presenting an approved AQP to their aircrew employees will have
to do so under a part 142 certificate; and allows persons other than
part 121 or part 135 certificate holders to present training under AQP
if that training is approved in accordance with SFAR 58.
Specific relationships between training center certificate holders
and holders of AQP authorizations, and of training center certificate
holders who become holders of AQP authorizations, are discussed in the
section of this document entitled ``Section-by-Section Summary of the
Comments'' which follows.
Terms
In response to comments, the FAA has either added or revised terms
to expand and clarify the final rule. Each modification of a term or
word is discussed in the ``Section-by-Section Summary of the
Comments.'' A summary of the important new terms and words is provided
below.
Flight Simulator
Section 61.2 defines a flight simulator. In the past, the terms
``simulator'' and ``training device'' have created confusion, so they
are more clearly defined under this section. As defined, the terms make
clear those devices that are not considered a flight simulator or a
flight training device for purposes of this part.
In this final rule, a flight simulator is defined as a full-sized
replica of a specific type or make, model, and series aircraft cockpit,
including the equipment and programs necessary to represent the
aircraft in ground and flight operations. As defined, a flight
simulator also includes a force cueing (motion) system providing cues
at least equivalent to a three-degree of freedom motion system. A
flight simulator is a device that is approved by the Administrator for
uses that may lead to credit for aeronautical experience, required
training, testing, or checking.
Devices such as airborne ILS simulators, ground trainers,
instrument trainers, and flight trainers are not considered flight
simulators or flight training devices under this part unless
specifically evaluated and approved as such by the Administrator.
Flight Training Device
In several sections in this rule, flight training devices are
listed with aircraft and flight simulators as permitted flight training
equipment for various training, testing, or checking tasks of pilots,
although no flight training device may exist for some tasks. The FAA
intends to allow the possibility of approving flight training devices
for training, testing, and checking a wide variety of tasks to allow
and encourage the development of flight training devices in the future.
By permitting the possibility of a wide variety of uses for flight
training devices, which are generally less expensive than flight
simulators, the FAA hopes to encourage the growth of simulation.
Section 61.2 defines a flight training device as a replica of an
aircraft's instruments, equipment, panels, and controls that is located
in an open flight deck area or in an enclosed aircraft cockpit. This
definition includes the equipment and programs necessary to represent
the aircraft in ground operations and flight conditions. As defined, a
flight training device is not required to have a force cueing or visual
system. However, like a flight simulator, a flight training device is a
device that requires approval by the Administrator
[[Page 34511]]
for all uses that may lead to credit for aeronautical experience,
required training, testing, and checking.
Category III Operations
This rule recognizes that technological advances permit aircraft
operated under part 91 to conduct Category III extreme reduced
visibility landing approaches. Part 91, specifically Sec. 91.191 and
91.205, proposed to include implementing requirements to conduct
Category III operations. Part 61 has been amended to specify the
training and testing requirements for Category III operations. Part 1,
Sec. 1.1, Category III approaches.
Simulated Instrument Flight Rules (IFR) Conditions
Some airmen have expressed concern about the meaning of the terms
``simulated IFR conditions'' or ``simulated instrument conditions'' in
part 61. There appears to be confusion over whether these conditions
can be achieved by the use of hood devices only. These terms are used
throughout the 14 CFR to mean that instrument conditions may be
simulated by artificially limiting pilot visibility outside the
cockpit. Pilot visibility can be limited by a hood device, by
artificially limiting visibility in an approved flight simulator or
flight training device, or by other appropriate means. Section 61.45
permits the artificial limitation of visibility by these various means.
Tests and Checks
Generally, this rule uses the word ``test'' in lieu of the word
``check.'' Specifically, this rule uses the terms ``initial test,''
``recurrent test,'' and ``practical test.'' These terms refer to an
examination, whatever its nature, on which the applicant receives a
grade, even though the grade may be only ``pass'' or ``fail.''
An exception is found in Sec. 61.58 that requires a ``proficiency
check'' for a pilot in command (PIC) of an aircraft. A ``proficiency
check'' is one type of periodic review of a pilot's proficiency as a
PIC, whereas an initial test determines that pilot's qualification to
be a pilot. Thus, when referring to this type of requirement, the FAA
believes that the word ``check'' is more appropriate.
Aircraft
Prior to this rule, the only flight simulators referred to in the
regulations were airplane simulators. The word ``aircraft'' is used
throughout this rule, however, to indicate that the rule applies to
training, testing, and checking in helicopters as well as in airplanes.
When a requirement is meant to apply to only a particular category or
class of aircraft, the appropriate category or class, such as
``airplane,'' ``rotorcraft,'' or ``helicopter,'' is specified.
Normal Landings and Normal Takeoffs
The terms ``normal landing'' and ``normal takeoff'' are used in
several places in the new or amended sections of part 61. ``Normal'' is
meant to describe maneuvers that are not emergency maneuvers or those
that are not done under abnormal conditions. A ``normal'' takeoff or
landing includes those: (1) With different flight path angles, from
steep to shallow; (2) with different configurations, such as flaps down
or up; (3) to or from different surfaces, such as sod, concrete, and
wet or slushy surfaces, or (4) made under various other circumstances
that may be described in an aircraft flight manual. An emergency
takeoff or landing is not a ``normal'' takeoff or landing. A takeoff or
landing is not ``normal'' if it is labeled ``abnormal'' by the aircraft
flight manual.
Easily Reached Controls
There has been some question about the meaning of the term ``easily
reached and operable in a normal manner'' which appeared in Sec. 61.45.
This term, as amended, means that controls that are ``easily reached''
are those that can be reached by any airman or applicant seated in a
designated pilot seat, with seat belts, shoulder harness, or other
provided restraints fastened.
Conventional Manner
This rule also changes the term ``normal manner,'' as it refers to
the operation of an aircraft, to ``conventional manner'' and defines
this term. This new definition should eliminate potential confusion
associated with the use of such terms as ``normal,'' ``abnormal,'' or
``emergency'' performance. These different terms appear in many
aircraft flight manuals and training curriculums. As used in this rule,
in order to perform a normal, abnormal, or emergency maneuver in a
``conventional manner,'' an applicant must use an aircraft that is
equipped with one of the following: (1) A control wheel, stick, yoke,
or cyclic control that in cruise flight, and in a forward movement,
causes a decrease in pitch attitude, and rearward pressure causes an
increase in pitch attitude; a left movement causes a bank to the left,
and a movement to the right causes a bank to the right; and (2) rudder
pedals or antitorque pedals which, when depressing the left pedal,
cause the aircraft nose to yaw left and, when depressing the right
pedal, cause the nose to yaw right. Aircraft with controls that operate
differently than described above may still be used for a practical
test, if the examiner determines that the flight test can be conducted
safely in the aircraft.
Training Center
The characteristics of a training center are addressed in section 2
of SFAR 58 and several sections of part 142. Generally, it is defined
as an entity that must hold an air agency certificate issued under part
142 and must comply with all applicable sections of part 142. It should
be noted that whenever the term training center appears in this rule it
includes satellite training center.
Supervised Operating Experience
Supervised operating experience (SOE) is experience required to
remove certain limitations from an airman's certificate. The limitation
that may be removed by SOE is a limitation on PIC privileges for a
specified aircraft type issued to certain less-experienced pilots who
use high level simulation only for all training and testing for a
certificate, an added rating, or a certificate with an added rating.
The required SOE must be accomplished by serving as PIC under the
supervision of a qualified and current PIC in the airplane type to
which the limitation applies. The SOE must be performed in the seat
normally available to the PIC. The limitation may be removed by
presenting evidence of the SOE to any FSDO. SOE parallels the operating
experience requirement long a feature of air carrier training and
qualification programs, but is less burdensome in that a current and
qualified PIC instead of a check airman may provide the supervision.
More detailed discussion on this matter follows in the response to
comments about Secs. 61.64 and 61.158.
Summary of Comments
Notice 92-10 was published in the Federal Register on August 11,
1992 (57 FR 35888). The comment period closed on December 9, 1992. The
FAA received 328 comments in response to Notice No. 92-10: 223 comments
from various sectors of the interested public, namely pilots and
certificated flight instructors; 48 comments from various aviation
businesses; 13 comments from the major aviation associations; 11
comments from commercial air carriers; 11 comments from the aviation/
academic training school community; and 4 comments from governmental
organizations. Eighteen miscellaneous comments were either duplicates
or entered to this
[[Page 34512]]
docket in error. The FAA considered all of the comments, even those
received after the comment period closed.
Of the 328 comments received, 278 comments made reference to
proposals contained in Sec. 61.197 which addresses renewal of flight
instructor certificates. (Of these 278 comments, 216 comments
referenced only Sec. 61.197, 62 referenced Sec. 61.197 among other
sections.) These comments, as well as those relating to Secs. 61.187,
142.49, and 142.53 concerning instructor flight proficiency, training
center instructor privileges and limitations, and training and testing
requirements, were addressed in Notice No. 92-10A, a Supplemental
Notice of Proposed Rulemaking (SNPRM) published in the Federal Register
on February 19, 1993 [58 FR 9514]. The remaining 50 commenters
expressed both support and opposition to the proposals. Many of these
commenters supported the NPRM in concept and purpose, and made various
recommendations for textual revisions. Other commenters made
recommendations with no statement of strong support or opposition to
the proposals. For purposes of discussion, the comments have been
grouped into several broad categories and are discussed in further
detail below. Each comment is discussed in the section of this document
entitled ``Section-by-Section Analysis of the Comments.''
General Issues Covered in the Comments
The following subjects received the most comments. These comments
are responded to individually in a separate section of this document to
follow entitled ``Section-by-Section Summary of the Comments.'' The
issues raised and the nature of the comments are summarized below:
1. The proposed definitions and guidelines regarding the use of
flight simulators and flight training devices will ensure
standardization of training.
Approximately 15 commenters supported the standardization of
training offered by new part 142. Several of the commenters, including
Simulator Training, Inc., (STI) and the Aircraft Owners and Pilots
Association (AOPA), suggested that part 142 define and standardize
training center operations, and reduce the number of exemptions
required for the use of simulation. Additionally, the Air Line Pilots
Association (ALPA) supported the standardized certification
requirements proposed by part 142. ALPA stated that the certification
process ``will assure some level of minimum performance for these
training centers, require accountability for training programs and
equipment, and provide more consistent FAA oversight.''
Northwest Airlines, Inc., (NWA) stated that ``the proliferation of
programs has reached a level where increased regulatory controls must
be imposed.'' NWA and other commenters, including FlightSafety
International (FSI), strongly supported the proposal of an FAA part 142
national office. These commenters suggested that the establishment of
centralized resources would help to promote standardization and
consistency in training and evaluation.
2. The requirements for obtaining a part 142 certificate are
burdensome, costly, and over restrictive.
Approximately 30 commenters objected to various proposals for the
part 142 certification process. The majority of these commenters
specifically cited proposed Secs. 142.17(b)(3) and 142.17(d),
suggesting that they are unnecessarily burdensome and costly.
Fifteen commenters, primarily pilot schools, opposed the proposal
that the principal business office of a part 142 certificate holder
cannot be shared with another certificate holder. The commenters see
this proposed restriction as imposing costly and unnecessary
administrative duplication. Various commenters indicated that the
requirement that a training center own or lease at least one FAA-
approved flight simulator would exclude many smaller training
institutions from the benefits of part 142 participation due to costs
and thereby preclude some students from receiving the benefits of
advanced simulation training. In addition, several commenting part 121
certificate holders stated that if part 121 certificate holders are
required to apply for a separate certificate under part 142, they would
be required to purchase duplicate flight training equipment and
facilities. They stated further that part 142 certificate holders would
be precluded from leasing ``dry'' simulator time from part 121
certificate holders possessing such training equipment.
3. A part 142 certificate should not be required to continue to
provide training to employees of other part 121 or part 135 certificate
holders.
Several commenters opposed the proposals which would require
training entities providing currently approved training programs to be
certificated under part 142. These commenters represented a diverse
group that included air carrier certificate holders, persons interested
in AQP, and current simulator exemption holders.
4. Flight experience gained from the use of simulation cannot fully
replace the operational experience gained in the actual flight
environment.
Several commenters, namely some individuals and the National
Transportation Safety Board (NTSB), expressed concern regarding the
reduced hours of actual flight experience proposed in various sections
of the NPRM and posited that flight experience gained through the use
of flight simulation cannot fully replace the operational experience
gained in the actual flight environment.
Section-by-Section Analysis of the Comments
NWA suggested that some readers may have been confused by the
structure of the NPRM, in that it set forth the proposed text, but did
not show the text that remained unchanged. Asterisks were used to
designate the text which the FAA proposed to leave unchanged. The use
of asterisks for this purpose is consistent with the Federal Register's
Document Drafting Handbook.
Several commenters said that several of the proposals should be
deleted in this rulemaking and considered in the part 61, 141, and 143
review. The FAA carefully considered which topics to include in this
rulemaking and which to include in the part 61, 141, and 143 review.
Generally, if a topic relates to simulation, it was addressed in the
NPRM for this rulemaking. Some other part 61 topics also are addressed
in this rulemaking if it was necessary to revise the section for
consistency of style and paragraph numbering.
SFAR 58
SFAR 58.2 Definitions. The FAA proposed in Notice 92-10 to make
the definition of training centers in this section compatible with the
definition of that term as contained in Sec. 142.3.
Several commenters expressed the belief that the proposed
definition was confusing or ambiguous. The FAA agrees that the
definition should be more clear and has simplified the definition. The
revised definition includes those persons who obtain, and operate
under, a part 142 certificate, and those part 121 and part 135
certificate holders who present, under AQP, training that they are
required to present under part 121 or part 135.
Other commenters suggested rewording the definition to exclude
those training providers who already hold a part 121 or part 135
certificate, or those persons who might provide AQP training for those
certificate holders. This is an issue of the applicability of part 142,
which is discussed in the section-by-section
[[Page 34513]]
analysis of Sec. 142.1 and further defined in Sec. 142.3.
SFAR 58.11. Approval of Training, Qualification, or Evaluation by a
Person Who Provides Training by Arrangement.
Delta Air Lines, Inc., (Delta) in a comment typical of several
others, said that there appears to be no sound reason to change the
existing SFAR 58 provision for approval of AQP training, qualification,
or evaluation to be offered by a part 142 training center. It went on
to say that approval under SFAR 58 of training programs, instructor or
evaluator qualification, and use of training equipment should
constitute approval under part 142.
The FAA agrees. The FAA had that intent when making the original
proposals. For example, in the NPRM preamble discussion of Sec. 142.39,
the FAA stated:
``The FAA believes that approval of a curriculum under SFAR 58,
Advanced Qualification Program (AQP), should, for that applicant,
constitute complete approval of that curriculum for use by a
training center certificated under part 142, since the AQP
application contains curriculum criteria at least as detailed as the
part 142 curriculum requirements set forth in proposed Secs. 142.39
and 142.77.''
Several air carriers asked why the FAA proposed in this rulemaking
to fix an expiration date for SFAR 58.
SFAR 58 may or may not expire as determined by separate rulemaking
action underway at this time. Under this final rule, a part 121
certificate holder with an AQP authorization may continue, without
certification under part 142, to train persons who are aircrew
employees of another certificate holder who has an AQP authorization.
Minor editorial changes have been made to clarify the intent of the
proposed rule. This section is adopted with the revisions discussed
above.
Part 61
Sec. 61.1a (adopted as Sec. 61.2) Definition of terms. This section
has been amended to include definitions for terms used in part 61. The
following terms are defined:
(1) An instructor who has a valid ground instructor certificate or
current flight instructor certificate with appropriate ratings issued
by the Administrator;
(2) An instructor authorized under SFAR 58, part 121, part 135, or
part 142 of this chapter to give instruction under those parts; or
(3) Any other person authorized by the Administrator to give
instruction under this part.
(b) ``Flight Simulator, Airplane'' means a device that--
(1) Is a full-sized airplane cockpit replica of a specific type of
airplane, or make, model, and series of airplane;
(2) Includes the hardware and software necessary to represent the
airplane in ground operations and flight operations;
(3) Utilizes a force cueing system that provides cues at least
equivalent to those cues provided by a 3 degree freedom of motion
system;
(4) Utilizes a visual system that provides at least a 45 deg.
horizontal field of view and a 30 deg. vertical field of view
simultaneously for each pilot; and
(5) Has been evaluated, qualified, and approved by the
Administrator.
(c) ``Flight Simulator, Helicopter'' means a device that--
(1) Is a full-sized helicopter cockpit replica of a specific type
of aircraft, or make, model, and series of helicopter;
(2) Includes the hardware and software necessary to represent the
helicopter in ground operations and flight operations;
(3) Utilizes a force cueing system that provides cues at least
equivalent to those cues provided by a 3 degree freedom of motion
system;
(4) Utilizes a visual system that provides at least a 45 deg.
horizontal field of view and 30 deg. vertical field of view
simultaneously for each pilot; and
(5) Has been evaluated, qualified, and approved by the
Administrator.
(d) ``Flight Training Device'' means a device that--
(1) Is a full-sized replica of instruments, equipment, panels, and
controls of an airplane or rotorcraft, or set of airplanes or
rotorcraft, in an open flight deck area or in an enclosed cockpit,
including the hardware and software for systems installed, necessary to
simulate the airplane or rotorcraft in ground operations and flight
operations;
(2) Does not require a force (motion) cueing or visual system; and
(3) Has been evaluated, qualified, and approved by the
Administrator.
(e) ``Set of airplanes or rotorcraft'' means airplanes or
rotorcraft which all share similar performance characteristics, such as
similar airspeed and altitude operating envelope, similar handling
characteristics, and the same number and type of propulsion system or
systems.
Aerospace Industries Association (AIA) and Boeing Commercial
Airplane Group (Boeing), in identical comments, stated that this part
should not have new definitions for flight simulators and flight
training devices, but should instead incorporate by reference the
definitions for these items as contained in Advisory Circular (AC) 120-
40B and AC 120-45A.
The definitions of ``flight simulator'' and ``flight training
device'' set forth in new part 142 are, in all aspects, identical to
those contained in the referenced AC's. The FAA has determined that the
definitions should be contained in the regulatory text so that they are
readily available to applicants for, and holders of, a part 142
certificate and other persons who have an interest in the regulations
concerning training centers.
Crew Systems, Andrews University, and an individual stated that
definitions should not be in this section, but rather in part 1 of 14
CFR, and that the proposed definitions might have a different meaning
to different people. The definitions contained in part 61 are
applicable to that part of 14 CFR. Some of the words or terms might
have a different definition in the context of a different part of 14
CFR. Only those definitions that have general applicability to all
parts of 14 CFR are placed in part 1.
Airbus Service Company, Inc., (Airbus) recommended that this
section be amended to include Air Transportation Ground Instructor, Air
Transportation Flight Instructor, and Air Transportation Flight
Instructor (Simulator Only) in the definition of authorized instructor.
The authority of the persons cited by Airbus to function as
instructors is limited to service in part 121 or part 135. The persons
with the instructor titles cited by Airbus are not necessarily holders
of an FAA flight instructor certificate, and may perform certain flight
instructor functions by virtue of holding an airline transport pilot
(ATP) certificate. The privileges of persons cited by Airbus are not
changed by this definition; they remain the same for the operating part
for which the person was designated. Additionally, many of the persons
cited by Airbus could qualify as an authorized instructor in other
parts, including part 142. See the provision of Sec. 61.2 (a)(2) as
adopted.
One person stated that including the words ``full-sized replica''
in the definition of a flight training device precludes the approval of
personal computer flight simulation technology.
The comment is accurate. The FAA is convinced that simulation has
benefit only if behaviors learned can be transferred to the aircraft.
The FAA is convinced that no effective transfer of learning has been
demonstrated except from flight simulators and flight training devices
that accurately replicate the performance of an aircraft. As discussed
in the NPRM, AC 120-45, as amended, describes the minimum criteria for
flight training devices which will result in
[[Page 34514]]
replication of aircraft performance suitable for specific training,
testing, and checking. The FAA has under development a new AC 120-46,
``Use of Airplane Flight Training Devices (In Flight Training and
Checking for Airman Qualification and Certification),'' which will
provide details about which tasks a particular level of flight training
device may be used for training credit and which tasks one may be used
for testing. At this time, no flight training aid based on what is
commonly known as ``personal computers'' meets the criteria of AC 120-
45. Accordingly, the use of personal computer flight simulation
technology is considered unacceptable.
One commenter stated that this section, and all other proposed
revised sections of part 61, should be deleted and considered in the
phase II of the part 61, 141, and 143 review, which was referenced
earlier as a related rulemaking project.
The FAA does not agree that this would be an appropriate action.
The purpose of this rulemaking was to undertake a comprehensive review,
and revision if necessary, of all rules with the potential for
increasing the use of simulation for airman training, testing, and
checking. Many of these rules are contained in part 61; therefore, the
FAA proposed revisions to certain sections contained in that part.
Sec. 61.2 (adopted as Sec. 61.3) Certification of foreign pilots
and flight instructors.
This section proposed rules for training centers and their
satellite training centers for issuing certificates and ratings outside
the United States. Specifically, this section proposed that training
centers, and their satellite training centers, certificated under part
142 of this chapter, be allowed to do the following outside the United
States: (1) Add additional ratings and endorsements to certificates
issued by the Administrator under the provisions of part 142; and (2)
issue certificates to U.S. citizens within the authority granted to the
training center by the Administrator.
The National Association of Flight Instructors (NAFI) commented
that it has long been an FAA policy to not issue U.S. certificates or
additional ratings to foreign nationals outside the United States.
The FAA agrees with the commenter that, under Sec. proposed 61.2
(adopted as Sec. 61.3), the FAA does not issue U.S. certificates to
foreign nationals outside the United States unless issuance meets the
need stipulated in that section. However Sec. 61.2 (adopted as
Sec. 61.3), has, for several years, allowed rating(s) to be added to a
U.S. certificate of a foreign national outside the United States.
Further, Sec. 61.13 has, for several years, allowed the FAA to issue
certificates and added ratings, subject to this need and to collection
of the reimbursement fee required by part 187 [60 FR 19628; April 19,
1995; Fees for Certification Services and Approvals Performed Outside
the United States, Rule and Notices.]
NAFI further states that proposed paragraph (b)(1) does not have a
limitation contained in proposed paragraph (a)(1). It recommends that
the following limitation contained in paragraph (a)(1) be added to
paragraph (b)(1): ``The pilot certificate or rating is needed for the
operation of a U.S.-registered civil aircraft.''
Modern multinational corporations may operate aircraft of different
countries of registry. The commenter has not provided sufficient
rationale for imposing the U. S. certification restriction. The FAA has
determined, therefore, that proposed paragraph (b) should not contain a
restriction on need to operate an aircraft of U.S. registry.
Some commenters, namely United Airlines (United), Trans World
Airlines (TWA), the Air Transport Association (ATA), and the Federal
Express Corporation said, in essence, that the proposed part 142
sections that would permit the certification of training centers
located outside the United States, and that would permit them to add
additional ratings and endorsements, threatens the standardization
concept of part 142 training centers and should be dropped.
The FAA plans to maintain standardization by providing adequate
guidance on instructor and evaluator qualification, simulation
approvals, curriculum approvals, and by emphasizing review and
inspection of that guidance.
Other commenters indicated that maintaining standardization of
training center activities for those training centers outside the
United States will cause a workload on the FAA.
The FAA agrees that creation of foreign training centers will
impose a workload on the FAA. See the FAA plan for compensation for the
workload imposed by training centers outside the United States in the
discussion of comments received in response to proposed Sec. 142.20
(adopted as Sec. 142.19), ``Foreign training centers: Special rules.''
For the reasons discussed, this section is adopted as proposed,
except for editorial changes to make it clear that training centers
prepare, train, and recommend applicants for a certificate or rating,
but do not actually issue a certificate or rating unless the training
center has specific authorization to issue airman certificates.
Sec. 61.3 (adopted as Sec. 61.5) Requirement for certificates,
ratings, and authorizations.
The FAA proposed to amend the lead-in paragraph for Sec. 61.3(d)
(adopted as Sec. 61.5 (d)) and to add a new paragraph (i).
As proposed, paragraph (d) inadvertently would have prevented
lighter-than-air instruction without a flight instructor certificate.
That was not the intent of this rule. Therefore, language allowing such
instruction without a flight instructor certificate is restored to
paragraph (d) of this section. The FAA did not receive any comments on
proposed paragraph (d), therefore, with this minor correction,
paragraph (d) is adopted as proposed.
Proposed paragraph (i) prescribed requirements for pilot category
III authorization. It reads as follows:
(i) Category III pilot authorization.
(1) No person may act as pilot in command of a civil aircraft
during Category III operations unless--
(i) That person holds a current Category III pilot authorization
for that category or class of aircraft, and the type of aircraft, if
applicable; or
(ii) In the case of a civil aircraft of foreign registry, that
person is authorized by the country of registry to act as pilot in
command of that aircraft in Category III operations.
(2) No person may act as second-in-command (SIC) of a civil
aircraft during Category III operations unless that person--
(i) Holds a valid pilot certificate with category and class
ratings for that aircraft and a current instrument rating for that
category aircraft;
(ii) Holds an airline transport pilot certificate with category
and class ratings for that aircraft; or
(iii) In the case of a civil aircraft of foreign registry, is
authorized by the country of registry to act as SIC of that aircraft
during Category III operations.
Some commenters, namely TWA, Delta, American Airlines (American),
ATA, British Aerospace Inc., Training Center (BAe), and AMR Combs
(AMR), believe that part 121 and part 135 certificate holders should
not be required to comply with paragraph (i) of this section, as they
have not been required to comply with the Category II requirements of
paragraph (f) of this section in the past.
There is an alternate mechanism in part 121 to authorize
certificate holders under that part to conduct reduced visibility
instrument approaches. That alternative assures a level of safety
equivalent to this rule. Because of the alternate mechanism in part 121
to
[[Page 34515]]
authorize the commenters and similarly-situated persons to conduct
Category II and Category III operations, the FAA agrees with the
commenters, and has added a new paragraph (j) to except part 121 and
part 135 certificate holders from compliance with paragraph (i).
Current paragraph (f) has been revised in this final rule to conform it
to the format of new paragraph (i). The flush paragraph at the end of
paragraph (f) has been replaced with a new paragraph (j).
Sec. 61.4 Qualification and approval of flight simulators and
flight training devices. In this new section, flight simulators and
flight training devices must be qualified and approved by the
Administrator for training, testing, and checking, if the airman using
flight simulators or flight training devices is to get credit to
satisfy any part of 14 CFR. In addition, each particular maneuver,
procedure, or crewmember function to be performed would be subject to
the approval of the Administrator.
A few commenters suggested that flight simulators and flight
training devices should not have to be approved unless the person using
them expected to get some credit for that use to satisfy some
requirement of 14 CFR.
The FAA agrees, and the rule text has been amended to clarify that
only those flight simulators and flight training devices used to
satisfy training, testing, or checking functions, as may be necessary
to meet FAA regulatory requirements, must be qualified by the
Administrator.
NAFI said that guidelines must be established to specify the
requirements for qualification and approval of flight simulators and
flight training devices to prevent FAA inspectors from arbitrarily
applying their personal standards, and that, once a flight simulator or
flight training device is approved by the FAA, the FAA should not
require another inspector to approve another of the same make and
model.
The FAA agrees that each FAA inspector should not arbitrarily
determine standards for qualification and approval of flight
simulators. The FAA has established guidelines and technical standards
for flight simulators and flight training devices, in AC 120-40, as
amended, and AC 120-45, as amended, respectively. These publications
are available from the Government Printing Office and may be reviewed
at any FSDO. These advisory circulars are made available to facilitate
standardization, qualification, and recommendations for approval of
particular maneuvers and procedures for each flight simulator and level
5 through 7 flight training device, as they are defined at this time.
FAA inspectors may approve the use of flight simulators and flight
training devices for the maneuvers and procedures of a particular
curriculum. To help ensure standardization, the FAA will provide
national guidance for approval of training programs for all part 142
training centers. This guidance should preclude widespread
interpretation on the part of individual inspectors.
Sec. 61.13 Application and qualification. The FAA proposed to
revise paragraph (e) to make this section apply to Category III
authorizations as well as to Category II authorizations. The revised
paragraph reads as follows:
(e) The following requirements apply to a Category II pilot
authorization and to a Category III pilot authorization:
(1) The authorization is issued by a letter of authorization as a
part of the applicant's instrument rating or airline transport pilot
certificate.
(2) Upon original issue the authorization contains a visibility
limitation--
(i) For Category II operations, the limitation is 1,600 feet RVR
and a 150-foot decision height; and
(ii) For Category III operations, each initial limitation is
specified in the authorization document.
(3) Limitations on an authorization may be removed as follows:
(i) In the case of Category II limitations, a limitation is removed
when the holder shows that, since the beginning of the sixth preceding
month, the holder has made three Category II ILS approaches with a 150-
foot decision height to a landing under actual or simulated instrument
conditions.
(ii) In the case of Category III limitations, a limitation is
removed as specified in the authorization.
(4) For the practical test required by this part for a Category II
or a Category III authorization, a flight simulator or flight training
device may be used for simulated instrument conditions, if approved by
the Administrator for simulated instrument conditions.
AIA and Boeing said that Sec. 61.13(e)(3)(i) should contain the
same provision regarding simulated instrument conditions that appears
in Sec. 61.13(e)(4); i.e., ``* * * a flight simulator or flight
training device may be used for simulated instrument conditions. * *
*''
The FAA agrees with the suggestion of the commenters. Paragraph
(e)(4) has been reworded to make it clear that an approved flight
simulator may be used to meet the experience requirement of paragraph
(e)(3) as well as to meet the Category II and Category III practical
test requirements of part 61.
ATA and several air carriers commented that this proposal fails to
include language excepting part 121 and part 135 certificate holders
from compliance with this section. They point out that Sec. 61.3
(adopted as Sec. 61.5) contains an exception for part 121 and part 135
operators from the qualification requirements for Category II
operations.
The provisions of Sec. 61.13 were not intended to apply to
operations conducted by part 121 and 135 certificate holders since the
FAA did not intend to propose, under Sec. 61.3, (adopted as Sec. 61.5)
that a letter of authorization be required for these operations. These
parts prescribe their own requirements for such operations.
Proposed Sec. 61.3 (adopted as Sec. 61.5) has been revised to make
it clear that the exception for part 121 and part 135 certificate
holders also applies to Category III authorization. (See the discussion
of Sec. 61.3 (adopted as 61.5)).
Airbus suggested additional text for this section that would delete
ILS approaches, because MLS, GPS, and other approaches are likely in
the future.
The FAA agrees that the regulations need to be modified to reflect
changing technology; however, this was not a subject of these proposals
and cannot be addressed in this rule at this time.
Airbus also suggested that this section be amended to specify the
quality of the simulated visual scene required for the practical test.
The FAA agrees that the quality of the simulated visual scene that
may be used to complete the Category II or Category III practical test
is of great importance. The sections of the rule that actually require
and authorize training and testing to show competence in reduced
visibility operations, Secs. 61.3 (adopted as Sec. 61.5), 61.67, and
61.68, specify that the practical test must be accomplished under an
approved training program of an air carrier for that air carrier's
aircrews, or in an approved training program of a part 142 certificate
holder. Training program approval criteria for each of those training
programs specify, or will specify, that a flight simulator must be
qualified and approved by the FAA for each maneuver, procedure, and
crewmember task. Further guidance for the technical requirements of
flight simulation is published in AC 120-40 and AC 120-45, as amended.
The FAA believes that the quality control provided by the provisions
described above is satisfactory. Quality of the visual scene in all
modes of flight and the quality of simulation in general is a high
priority for the FAA. For the reasons discussed, this section rewords
[[Page 34516]]
paragraph (e)(4) and is otherwise adopted as proposed.
Sec. 61.21 Duration of Category II and Category III pilot
authorizations. In addition to a change in the title, this section
proposed that Category II and Category III pilot authorizations would
expire 6 months after last issued or renewed.
ATA and a few member air carriers commented that these proposals
included a duration of authorizations that is too restrictive for part
135 and part 121 certificate holders.
The provisions of Sec. 61.21 were not intended to apply to
operations conducted by part 121 and 135 certificate holders since the
FAA did not intend to propose, under Sec. 61.3 (adopted as Sec. 61.5),
that a letter of authorization be required for these operations. These
parts prescribe their own requirements for such operations.
Proposed Sec. 61.3 (adopted as Sec. 61.5) has been revised to make
it clear that the exception for part 121 and part 135 certificate
holders also applies to Category III authorization. (See the discussion
of Sec. 61.3 (adopted as Sec. 61.5)).
Therefore, this section does not apply to a part 121 or part 135
certificate holder.
Therefore, this section is adopted as proposed.
Sec. 61.39 Prerequisites for flight tests. The FAA proposed in
this section to specify a 60-calendar-day time limit for completion of
all increments of the practical test (i.e., the oral increment, the
flight simulator increment, and the flight increment).
In the event that the entire practical test is not satisfactorily
completed within the prescribed 60 calendar days, an applicant is
required to retake the entire practical test, including those
increments satisfactorily completed more than 60 calendar days
previously.
NAFI recommended minor editorial changes to the proposed rule text,
and those minor changes were made in the final rule.
One commenter said that the proposals of this section should be
withdrawn and considered in a subsequent review of part 61.
The FAA cannot defer the implementation of these proposals, since
they relate to simulation testing, a subject covered by this
rulemaking.
No other changes were suggested by commenters. Accordingly, except
for editorial changes, this section is being adopted as proposed.
Sec. 61.45 Flight tests: Required aircraft and equipment.
Proposed paragraph (a) provides that an applicant may use a flight
simulator or a flight training device for those tasks of a practical
test for which the flight simulator or flight training device has been
approved. Previously, this section did not clearly permit the use of
flight simulators or flight training devices for practical tests.
Previously under part 61, a flight simulator or flight training
device could be used only to demonstrate some SIC qualifications and
also to train and test for the ATP certificate. NAFI commented that the
FAA should complete guidelines to specify which maneuvers, procedures,
and crewmember tasks can be trained, tested, or both, by use of each
level of simulation. The FAA agrees, and is drafting such a document
(AC 120-46) at the present time. (See also the response to comments
about Sec. 61.1).
ATA said, in a comment similar to several others, that the proposed
amendments to this section are not necessary, since ``* * * the purpose
of the current rule was not to specify that an aircraft must be used
for the flight test, but rather to prescribe the aircraft requirements
for registration, airworthiness, and equipment.'' ATA continues by
observing that ``Amendment 61.45, effective Feb. 2, 1970, clearly
authorizes the use of simulators for part of the ATPC/TR flight test. *
* *''
Current paragraph (a) of this section deals with the equipment an
applicant must furnish for each test, as well as with the requirements
for registration and airworthiness of that equipment. The wording of
the current paragraph excludes any equipment except aircraft from being
used for the practical test, except as provided in Secs. 61.55 and
61.157. The proposed rule would allow simulation to be used for those
tasks of the practical test for which the simulator is approved. The
FAA considers this expanded use of simulation justified for reasons
stated in the preamble to the NPRM. Accordingly, this section is
adopted as proposed.
Jeppesen-Sanderson and AMR questioned how such tasks as cross-
country skills, rectangular courses, S-turns across a road, and turns
around a point can be evaluated by use of simulation.
At the date of this final rule, there are no flight simulators or
flight training devices that have been approved to evaluate several
tasks, including the examples offered by these commenters.
The intent in the proposal was to permit an increased use of
simulation, in appropriate cases, without having to amend the rules
each time that technological advances permit one of these tasks to be
evaluated in flight simulation. With the assurance that simulation may
be used to meet practical test requirements when it has the technical
capability to do so, manufacturers of such devices should be encouraged
to develop increasingly realistic simulation. Even with regulatory
authority to use simulation for tasks of a practical test, simulation
cannot be used for those tasks until the simulation medium has been
developed, evaluated, and qualified by the FAA to evaluate such tasks.
Airbus commented that the proposed revisions are unworkable for an
aircraft manufacturer's training center and, if implemented, would
impose a severe economic burden on the training center and the part 121
operators it supports.
Although Airbus did not specifically reference Sec. 142.57 in its
comment, it appears Airbus is addressing the aircraft certification,
registration, and airworthiness requirements that are discussed under
Sec. 142.57 below. Training centers, which are to be certificated under
part 142, have distinct requirements for aircraft certification,
registration, and airworthiness. Those requirements, as adopted, are
further discussed in Sec. 142.57.
Proposed paragraph (c) provided that an applicant for a practical
test must provide an aircraft with engine and flight controls that are
easily reached, and that can be operated in a conventional manner by
both the applicant and the evaluator. The paragraph also provided that
the evaluator may conduct a practical test in an aircraft with
different features.
AMR stated that ``* * * 61.45(c)(2)(ii) seems to assume that an
evaluator will be in a pilot's seat when conducting a practical test in
an aircraft. However, evaluators and FAA inspectors currently may
conduct the practical test from a jump seat, or some other location
other than a pilot's seat. * * *'' It recommended rewording to better
state this practice.
The FAA agrees that the practice described by AMR has been and will
be acceptable, and has reworded paragraph 61.45(c)(2)(ii) accordingly.
Proposed paragraph (d) provided that each applicant for a practical
test that requires flight maneuvers and procedures to be accomplished
solely by reference to instruments, must provide equipment that
excludes the applicant's visual reference to objects outside the
aircraft.
Airbus commented that proposed paragraph (d) is unnecessarily
restrictive, in that it prohibits the use of vision-restricting devices
that more realistically create the seeing conditions the pilot is
likely to encounter during
[[Page 34517]]
the instrument-to-visual transition, including visual illusions
associated with maneuvering by visual reference to landing in
restricted seeing conditions. Airbus suggests rewording the paragraph
to allow equipment that restricts an applicant's visual reference to
replicate what might be seen during a reduced visibility approach
transition to a landing.
The FAA notes that this section is directed at maneuvers and
procedures that must be done solely by reference to flight instruments;
it was not intended to, and is not adequate to address, maneuvering
partially by reference to instruments and partially by reference to
obscure visual references to objects outside the cockpit. The FAA
lists, in separate publications, what objects must be visible at a
specified point on an instrument approach in order to continue by
visual reference. The FAA is not aware of a device that can be used in
an aircraft to obscure visibility of objects other than those listed
for continuation of an instrument approach.
The FAA agrees with the commenter that this area of flight is
critical. This is an area of flight that simulation can replicate much
better than an actual aircraft. For simulation, the FAA requires that
the simulated visual presentation be capable of displaying a scene with
visibility as restricted as the visibility that the applicant will be
authorized to observe when completing approaches. Guidance for scene
presentation for simulation is contained in AC 120-40, as amended.
This section is adopted with the changes discussed.
Sec. 61.51 Pilot logbooks.
The FAA proposed to revise paragraph (b)(1)(ii) to allow pilots to
log the time accrued in a simulated flight lesson. The proposed text
read as follows:
``(b) * * *
(1) * * *
(ii) Total time of flight or lesson.
AMR commented that the word ``flight'' should be added before
``lesson.''
The FAA agrees and has changed the paragraph accordingly.
AMR also commented that the requirement of present paragraph
(b)(1)(iii), which states ``Place, or points of departure and arrival''
is pointless in the context of a simulated flight lesson, as it is
quite possible to conduct a simulator training session and have no
point of departure or arrival.
The FAA agrees, and has changed the paragraph to except simulated
flights from those sessions for which a point of departure and arrival
must be entered.
As proposed, Sec. 61.51(c)(2)(i) has been revised, including
shifting the provision for recreational pilots to a new paragraph (iv),
to make that paragraph easier to read. No substantive change has been
made to the previous provision. The reference to a sole occupant of an
aircraft has been removed since such a person by definition is the
pilot in command.
The FAA proposed to revise paragraphs (b)(3)(iii) and (c)(4)(ii) to
permit the logging of instrument flight time in an approved flight
simulator or approved flight training device.
One commenter said that paragraph (c)(4)(ii) ``* * * only permits
logging of simulated instrument conditions in an approved and qualified
flight simulator or qualified and approved flight training device. It
leaves the logging of simulated instrument flight time by utilization
of a view limiting device in limbo and not discussed.''
The FAA points out that the wording of this paragraph states that
flight simulation ``may'' be used, not that it ``must'' be used, and
that, in both the NPRM preamble and in the preamble to this final rule,
a separate section entitled ``Simulated IFR Conditions'' is devoted to
this discussion to make it clear that a variety of view-limiting
devices may be used. Paragraph 61.45(d) as proposed and as adopted
makes it clear that view-limiting devices, as well as flight
simulation, are acceptable for practical tests.
Andrews University commented that paragraph (c)(4)(ii) is good in
that it allows logging of flight simulator and flight training device
time both with and without a flight instructor.
The FAA points out that this rule does not create any new authority
for a pilot to log flight time in simulation equipment without an
authorized instructor. On the contrary, this paragraph specifies that
an authorized instructor must be present in order to log pilot time in
flight simulation equipment. Further, Sec. 61.51(c)(5) provides that
all time logged as instruction time must be certified by the authorized
instructor from whom it was received. This requirement is intended to
ensure that an applicant's logbook reflects all required instruction
which was provided by an authorized instructor.
With the amendment discussed, this section is adopted as proposed.
Sec. 61.55 Second-in-command qualifications. The FAA proposed in
Sec. 61.55 (b)(4) that initial SIC qualification tests for a particular
category and class or type of aircraft require at least one takeoff and
one landing to be satisfactorily completed in an aircraft of that
category, class, and type as applicable.
Several commenters expressed overall agreement with this proposed
section.
Boeing and AIA commented that, if the simulator used is qualified
for the landing maneuver, the use of an airplane is unnecessary.
The FAA believes that some minimal experience with the category,
class, and type of aircraft, if applicable, is required for those SIC
applicants not previously qualified in any capacity in an aircraft
requiring a crew of more than one person. With the exception of the
takeoff and landing that must be performed in the aircraft, the FAA
believes that, based on its evaluation of the results of training and
testing in flight simulators, the training and testing for SIC
qualifications can be satisfactorily demonstrated in a part 142
training course that is subject to FAA approval.
Paragraph (b)(4) of this section was reworded slightly to make it
clear that the requirement to complete only one takeoff and one landing
in an actual aircraft applies only to persons who complete the rest of
the requirements of this section in an approved course at a training
center certificated under part 142.
Sec. 61.56 Flight review. Under the previous Sec. 61.56, the
flight review could be performed only in an aircraft. A new paragraph
61.56(h) to this s
FR Doc. 96-16432 Aircraft Flight Simulator Use in Pilot Training, Testing, and Checking and at Training Centers
ection proposed the use of flight simulators or
flight training devices for the flight review if: (1) The flight
simulator or flight training device is approved by the Administrator
for that purpose; and (2) the flight review is accomplished in an
approved course conducted by a training center certificated under part
142.
Jeppesen-Sanderson and the National Air Transportation Association
(NATA), representing a consensus of General Aviation Manufacturers
Association, Helicopter Association International, and others,
commented that simulation should be allowed for the review, in approved
courses conducted under part 141 or part 142.
The FAA does not agree that part 141 should be changed in this rule
to allow pilot schools to conduct the flight review. Part 142 training
centers may conduct flight reviews using simulation because they will
have substantially more required in the way of training capability by
having the following: (1) at least one flight simulator or Level 6 or
Level 7 flight training device; (2) considerably more detailed and
structured training programs; and (3) more demanding instructor
[[Page 34518]]
qualifications than those required under part 141.
United, in a comment similar to several others, recommended that
the flight review should be permitted by simulation in an approved
course conducted by a training center certificated under part 121 or
part 142.
There are no training centers now certificated under part 121 or
any other part. Part 121 certificate holders have a training apparatus
that may be called a school, branch, division, center, and a variety of
other names. There is little doubt that many of them, with minimal
effort at tailoring present training programs, could become training
centers certificated under new part 142. There is no need to change the
rules to allow part 121 certificate holders to conduct a course to
satisfy Sec. 61.56; several courses presented by part 121 schools
already satisfy the requirements of Sec. 61.56. In accordance with the
current provisions of that section, a person need not accomplish the
flight review if that person has satisfactorily completed a pilot
proficiency check, or a test for a certificate, rating, or operating
privilege. Most, if not all, training and qualification activities
undertaken by a part 121 or part 135 certificate holder are for one of
these purposes.
Jeppesen-Sanderson commented that discussion and provisions for
simulation not qualified for the landing maneuver should be deleted.
Based on experience with simulation, the FAA believes that the
flight review can be successfully accomplished in an appropriate flight
simulator or flight training device. Previously, landing maneuvers,
which likely would be required during a flight review, could be
conducted only in a flight simulator qualified as Level B or higher.
Section 61.57(g)(3), however, provides a means for the review to be
accomplished in a Level A flight simulator or in a flight training
device.
One commenter said, in essence, that he believed the flight review
should be an evaluation of maneuvers and procedures required for the
issuance of the certificate applied for, and that not all maneuvers and
procedures can be evaluated in a simulator.
The FAA agrees that not all maneuvers and procedures can be
evaluated in a flight simulator at the present time. Turns about a
point, chandelles, lazy eights, among others, currently cannot be
simulated. However, Sec. 61.56 does not require any specific maneuvers
and procedures. An airman may complete a flight review in a simulator
only if the review is undertaken after completion of an approved
course. The FAA believes that the potential benefits of a structured
review, subject to FAA approval, consisting of various subjects and a
selection of various, but unspecified, maneuvers and procedures
outweigh the fact that flight simulators cannot, at this time,
replicate all maneuvers and procedures required of all certificate
levels.
For the reasons discussed, this section is adopted as proposed.
Sec. 61.57 Recent flight experience: Pilot in command. In addition
to a change in the title of this section to indicate that it contains
PIC currency requirements, the NPRM proposed to revise paragraphs (c)
and (d) to read as follows:
(c) General experience.
(1) Except as otherwise provided in this paragraph, no person
may act as pilot in command of an aircraft carrying passengers, or
of an aircraft certificated for more than one required pilot flight
crewmember, unless that person meets the following requirements--
(i) Within the preceding 90 calendar days, that person must have
made three takeoffs and three landings as the sole manipulator of
the flight controls in an aircraft of the same category and class
and, if a type rating is required, of the same type of aircraft.
(ii) If the aircraft operated under paragraph (c)(1)(i) of this
section is a tailwheel airplane, that person must have made to a
full stop the landings required by that paragraph in a tailwheel
airplane.
(2) For the purpose of meeting the requirements of this section,
a person may act as pilot in command of a flight under day visual
flight rules or day instrument flight rules if no persons or
property are carried other than as necessary for compliance with
this part.
(3) Paragraph (c) does not apply to operations conducted under
part 121 or part 135 of this chapter.
(4) The takeoffs and landings required by paragraph (c)(1) of
this section may be accomplished in a flight simulator or flight
training device subject to the following--
(i) The flight training device or flight simulator must have
been qualified and approved by the Administrator for landings; and
(ii) The flight simulator or flight training device must be used
in accordance with an approved course conducted by a training center
certificated under part 142 of this chapter.
(d) Night experience.
(1) No person may act as pilot in command of an aircraft
carrying passengers at night (the period beginning 1 hour after
sunset and ending 1 hour before sunrise as published in the American
Air Almanac) unless, within the preceding 90 days, that person has
made not fewer than three takeoffs and three landings to a full
stop, at night, as the sole manipulator of the flight controls in
the same category and class of aircraft.
(2) Paragraph (d)(1) of this section does not apply to
operations conducted under part 121 or part 135 of this chapter.
(3) The takeoffs and landings required by paragraph (d)(1) of
this section may be accomplished in a flight training device or
flight simulator that is--
(i) Qualified and approved by the Administrator for takeoffs and
landings, if the visual system is adjusted to represent the time of
day described in paragraph (d)(1) of this section; and
(ii) Used in accordance with an approved course conducted by a
training center certificated under part 142 of this chapter.
FSI suggested that paragraphs (c) and (d) of this section should be
changed to ``be consistent with Sec. 121.439.''
The FAA must presume that the recommendation is to change paragraph
(c), as paragraph (d) pertains to night recency of experience, and
there is no night recency of experience requirement in Sec. 121.439.
The deletion of the night landing requirement was not proposed and is
not considered in the final rule. To make paragraph (c), general
experience, including day landings, consistent with Sec. 121.439 would
require operators to have check airmen, operations specifications, and
require each airman to have specific previous experience in the
airplane type (with no provision for aircraft not requiring a type
rating) in operating parts other than part 121 and part 135. Such
dramatic changes to part 91, or other parts of 14 CFR, would simply not
be economically justified. This rulemaking is intended to encourage and
accommodate the use of simulation for more extant training, testing,
and checking tasks, but not to change the tasks required for any
particular certificate, rating, or privilege. Therefore, paragraphs (c)
and (d) are adopted as proposed.
Also, the NPRM proposed to amend paragraph (e) to permit pilots to
meet instrument currency requirements in an approved flight simulator
or flight training device.
NWA recommended that proposed paragraph (e) include an exception
stating that the requirements of Sec. 61.57 do not apply to operations
conducted under part 121 and part 135, similar to the construction of
paragraphs (c) and (d) of Sec. 61.57.
During the comment period and final drafting stage for this final
rule, the FAA was separately considering a petition for exemption or
other regulatory relief from the requirements of paragraph (e) for
members of ATA. On November 11, 1994 the FAA published a final rule [59
FR 56385] that revised Sec. 61.57(f) to provide that PICs employed by a
part 121 or part 135 operator are excepted from compliance with the
recency of experience requirements of Sec. 61.57, only if they are
qualified under Secs. 121.437 or 135.243 and meet the recent experience
[[Page 34519]]
requirements under Secs. 121.439 or 135.247. Therefore, this exception
in paragraph (f) will provide the relief suggested by the commenter.
NATA commented that ``approved course,'' as used in this section,
should include ``those courses approved under part 141 and part 61.''
Several other commenters asked what is meant by ``approved course,''
and whether such a course is limited to takeoffs and landings.
The reference is to courses approved for training centers for
establishing or maintaining currency in those tasks specified in this
section. The content of such courses would not have to be restricted to
takeoffs and landings. The courses might include, for example,
different abnormal and emergency situations for takeoffs and landings,
such as power loss, runway contamination, gusts and shear, factors
causing visual illusion, physiological factors affecting night takeoffs
and landings, and others. There is no such course approved under part
141 and, as discussed earlier under Sec. 61.56, adding new courses to
part 141 was not proposed and is not considered in this rulemaking.
AMR commented that the preamble suggests that a simulator or flight
training device can be used to meet instrument currency requirements,
but the regulation requires that at least 3 of the required 6 hours be
conducted in an aircraft. It recommended clarification of this point.
The FAA agrees that there was an apparent conflict between the
preamble to the NPRM and the rule text dealing with instrument
currency. The rule text has been changed to reflect the intent of the
preamble; paragraph (e)(1)(i)(A) has been changed to read, in part:
(A) Logged at least 6 hours of instrument time including at
least six instrument approaches under actual or simulated instrument
conditions, not more than 3 hours of which may be in approved
simulation representing aircraft other than gliders.
A few air carriers commented that they disagree with the proposed
change of verbiage which requires an instrument competency check to be
given by ``a person authorized by the Administrator'' instead of by
``an FAA inspector, a member of an armed force of the United States
authorized to conduct flight tests, an approved FAA-approved check
pilot, or a certified instrument flight instructor.''
The proposed revision is needed to permit other persons to give the
instrument competency check. For example, the new wording will include
evaluators for part 142 training centers, designated examiners, pilot
proficiency examiners, simulator-only instructors who do not hold a
medical certificate, as well as all those persons named in the previous
rule.
For the reasons discussed, this section is adopted as changed.
Sec. 61.58 Pilot-in-command proficiency check: Operation of
aircraft requiring more than one required pilot. The FAA proposed to
revise this section to permit airmen, under certain conditions, to
accomplish required PIC proficiency checks entirely in a qualified and
approved flight simulator.
Proposed paragraph (a) provided that:
(a) Except as otherwise provided in this section, to serve as pilot
in command of an aircraft that is type certificated for more than one
required pilot crewmember, a person must--
(1) Within the preceding 12 calendar months, complete a pilot-in-
command check in an aircraft that is type certificated for more than
one required pilot crewmember; and
(2) Within the preceding 24 calendar months, complete a pilot-in-
command check in the particular type of aircraft in which that person
will serve as pilot in command.
NAFI, apparently commenting on Sec. 61.58(a), commented that this
section should be revised to close a loophole that allows certain large
or turbojet aircraft, such as the DC-3 and some Cessna C-500 series
aircraft, to be operated by a single pilot. It points out that, under
the current and proposed sections, pilots of those aircraft may not be
required to undertake the pilot proficiency checks.
While NAFI's comment may have merit, changing the applicability of
Sec. 61.58 is not the purpose of this rulemaking, and the FAA did not
propose to change the tasks required for proficiency checks. As stated
earlier, the purpose of this rulemaking is to encourage and accommodate
the use of simulation for more training, testing, and checking tasks,
but not to change the tasks required for any particular certificate,
rating, or privilege.
Proposed Sec. 61.58(e)(1) stated the following:
``Except as provided in paragraph (f) of this section, a check or a
test described in paragraphs (d)(1) through (d)(4) of this section may
be accomplished in a flight simulator qualified and approved under part
142 of this chapter subject to the following:
(1) Except as allowed in paragraphs (e)(2) and (e)(3) of this
section, if an otherwise qualified and approved flight simulator used
for a PIC proficiency check is not qualified and approved for a
specific required maneuver--
(i) The training center shall annotate, in the applicant's training
record, the maneuver or maneuvers omitted; and
(ii) Prior to acting as PIC, the pilot shall demonstrate
proficiency in each omitted maneuver in an aircraft or flight simulator
qualified and approved for each omitted maneuver.
Proposed Sec. 61.58(e)(1) would have had the effect of requiring a
flight simulator qualified as Level B or higher to satisfy the
requirements of Sec. 61.58, since only Level B or higher level flight
simulators are qualified for landing.
FSI commented that exemptions have allowed successfully an
alternative that permits the proficiency check to be accomplished in
flight simulators not qualified for landing. That alternative requires
the applicant to complete an approved curriculum, hold a type rating in
the type aircraft for which the proficiency check is required, and have
completed three takeoffs and three landings (one to a full stop) as the
sole manipulator of the flight controls within the 90 days preceding
the proficiency check.
The FAA agrees that the alternative is a current and acceptable
practice. Therefore, paragraph 61.58(e) is reworded to include this
alternative.
Paragraphs 61.58 (e)(2) and (e)(3) contain proposals pertaining to
circling approaches and landings in certain simulators. For example,
under the proposed rule, a proficiency check, which requires a circle-
to-land maneuver, would have to be accomplished in a flight simulator
equipped with a visual system that permits accomplishment of the
circling approach task. If the flight simulator used is not qualified
for circling approaches and the applicant does not demonstrate circling
approaches at the training center, proposed Sec. 61.58(e)(2) would
require that the training center annotate the applicant's records with
the statement, ``Proficiency in circling approaches not demonstrated.''
In addition, proposed Sec. 61.58(e)(2) would restrict the applicant
from performing circling approaches as PIC, during conditions less than
basic VFR weather minimums. This proposed restriction would remain
until proficiency in circling approaches in either an aircraft or a
flight simulator qualified for circling approaches is demonstrated to a
person authorized by the Administrator to conduct the required check.
FSI commented that helicopter pilots should not be required to
perform circling approaches to satisfy the requirement of this section
because, in essence, a helicopter can land to a downwind hover, then
make a hovering
[[Page 34520]]
turn to make a landing to touchdown into the wind.
While this comment may have merit, the FAA did not propose to
change the circling approach requirement. This rule considers what
tasks may be accomplished by use of simulation, either now or in the
future, but does not attempt to determine what tasks should be required
for any particular certificate, rating, or privilege. Those tasks are
being evaluated in a separate rulemaking project (phase II of the part
61, 141, and 143 review).
Airbus commented that Sec. 61.58(e)(3) is not appropriate for
training centers providing training for part 121 and part 135
certificate holders. It continues that an air carrier's operations
specifications prohibit circling approaches unless the pilot is
qualified to perform circling approaches, and that the approved
training for a particular air carrier does not require training in
circling approaches unless the employing air carrier is approved to
conduct circling approaches. Airbus suggests that this paragraph be
written to exclude applicants who are currently employed by a part 121
or part 135 certificate holder.
The FAA agrees in part with the commenter. The comment appears to
pertain to proposed Sec. 61.157 however. Therefore, the commenter's
suggestion will be addressed in the preamble discussion pertaining to
proposed Sec. 61.157.
Section 61.58(f) proposed that, in order to accomplish the
recurrent check entirely in a flight simulator, the pilot must have
performed the 12-and-24-month proficiency checks in an aircraft, as
described in Sec. 61.58(a) (1) and (2).
FSI and Simuflite Training International (SFI) commented that the
words ``if an applicant for a check required by this section has not
satisfactorily completed a PIC check within the period required by
paragraph (a)(1) or (a)(2) * * * '' that appear in proposed
Sec. 61.58(e) are essentially the same as the provisions contained in
proposed paragraph (f) which reads as follows:
(f) If a pilot has not completed a pilot-in-command proficiency
check within the period required by paragraph (a)(1) or (a)(2) of this
section, that pilot must complete the required pilot-in-command
proficiency check in an aircraft.
These commenters point out that both paragraphs would therefore
preclude reestablishment of PIC proficiency by use of a simulator,
which may be more restrictive than current exemptions.
The FAA agrees. It was not intended to propose that Sec. 61.58(e)
be made more restrictive than recent practice has allowed. Accordingly,
Sec. 61.58(e) has been reworded in the final rule. Paragraph (e) now
reads as follows:
(e) A check or a test described in paragraphs (d)(1) through
(d)(4) of this section may be accomplished in a flight simulator
qualified and approved under part 142 of this chapter subject to the
following:
(1) Except as allowed in paragraphs (e)(2) and (e)(3) of this
section, if an otherwise qualified and approved flight simulator
used for a pilot-in-command proficiency check is not qualified and
approved for a specific required maneuver--
(i) The training center shall annotate, in the applicant's
training record, the maneuver or maneuvers omitted; and
(ii) Prior to acting as pilot in command, the pilot shall
demonstrate proficiency in each omitted maneuver in an aircraft or
flight simulator qualified and approved for each omitted maneuver.
(2) If the flight simulator used pursuant to this paragraph is
not qualified and approved for circling approaches--
(i) The applicant's record shall be annotated with the
statement, ``Proficiency in circling approaches not demonstrated;''
and
(ii) The applicant may not perform circling approaches as pilot
in command when weather conditions are less than the basic VFR
conditions described in Sec. 91.155 of this chapter, until
proficiency in circling approaches has been successfully
demonstrated in an approved simulator or aircraft to a person
authorized by the Administrator to conduct the check required by
this section.
(3) If the flight simulator used pursuant to this paragraph is
not qualified and approved for landings--
(i) The applicant must hold a type rating in the airplane
represented by the simulator; and
(ii) Have completed, within the preceding 90 days, at least
three takeoffs and three landings (one to a full stop) as the sole
manipulator of the flight controls in the type airplane for which
the pilot-in-command proficiency check is sought.
In an apparent reference to proposed paragraph (g), which required
a pilot's first PIC proficiency check to be accomplished in an
aircraft, FSI commented that it believes that part 142 will have the
same supervision and scrutiny required of training programs currently
conducted under part 121, and that even the first proficiency check
should be allowed in a flight simulator, as currently permitted under
Sec. 121.439 (sic). (Apparently the commenter was referring to
Sec. 121.441.)
The FAA has considered the comment in the overall context of
increasing the use of simulation in lieu of checking in an aircraft.
The inclusion of a certificate limitation, as described in the
discussion of Secs. 61.64 and 61.158, requiring SOE for certain less
experienced pilots, will assure that pilots first due a PIC proficiency
check in a specific type aircraft will have had some aircraft
experience. Accordingly, after further consideration, the FAA has
concluded that proposed paragraph (g) is unnecessary and it has not
been adopted.
Proposed paragraph (i) stated the following:
(i) If a pilot takes the check required by this section in the
calendar month before, or the calendar month after, the month in
which it is due, the pilot is considered to have taken it when due,
and future proficiency check due dates do not change.
AMR commented, ``The proposed paragraph 61.58(i) leaves open the
same questions that the existing language in parts 61.58(g) and
135.301(a) leave open. The proposed paragraph establishes a base month,
and a 90-day window for checking.'' AMR continues that there are any
number of good reasons why a pilot may not get the check required by
this section within the specified time period, and that the proposed
language does not address the case of a pilot whose currency has
lapsed. It recommends that the period for checking be extended to
include the period from the month before the month a check is due until
2 months after the month a check is due. It further recommends that
another subparagraph be added to specify that, for those pilots who do
not complete a proficiency check during the period due, a new 12-month
period for proficiency check due dates will begin upon completion of
the proficiency check.
The FAA does not agree that extending the acceptable time period
for completion of a proficiency check for 2 months beyond the due date,
and allowing a total window of 4 months for an annual proficiency
check, is warranted. Safety dictates that a pilot's proficiency be
checked regularly and with some degree of frequency. The FAA has found
it acceptable to conduct annual proficiency checks. The scenario
described by the commenter would allow annual proficiency checks to
become 14-month proficiency checks.
The FAA does not agree that a new provision is necessary for pilots
whose currency has lapsed. Paragraph (a) speaks to such a situation in
that the pilot must be able to look back over the current month and the
preceding 12 months or 24 months and find that he or she has completed
the required check.
AIA and Boeing commented that this section should not contain new
flight training device definitions.
Flight training device definitions are contained in Sec. 61.2 as
adopted, and the rationale for adding those definitions is
[[Page 34521]]
provided in the discussion of that section.
As discussed above, the FAA has revised proposed paragraph (e) and
deleted proposed paragraphs (f), (g) and (i), and redesignated
remaining paragraphs accordingly. This section is adopted with the
changes discussed.
Sec. 61.63 Additional aircraft ratings for other than airline
transport pilot certificate (for parts 121 and 135 use only).
The FAA proposed to revise this section title to make it clear that
this section is applicable only to applicants who are pilot crewmember
employees of a part 121 or part 135 certificate holder. This section
would continue to set forth the requirements for adding additional
aircraft ratings to pilot certificates other than ATP certificates.
The NPRM proposed a new Sec. 61.64, titled ``Additional aircraft
ratings for other than airline transport pilot certificates (for other
than parts 121 and 135 use).'' This proposed section contains
provisions for adding ratings for airmen other than pilots applying for
an additional type rating through successful completion of a part 121
or part 135 approved training program. The detailed testing guidelines
are contained in FAA Practical Test Standards. More discussion on PTS
follows in subsequent paragraphs, and under the analysis of comments
about proposed Sec. 61.158 and appendix A of part 61).
Several commenters, including TWA, said that the phrase, ``(for
parts 121 and 135 use only)'' is confusing, and that the FAA should
``enforce one, and only one, set of standards for an ATP certificate.''
Crew Systems said that the proposals appear to create two types of
pilot certificates, one for part 121 and part 135 operations and one
for all other operations.
The FAA has but one set of standards for the ATP certificate, or
for any other certificate. Section 61.63 and Sec. 61.64 are written
differently to articulate the different procedures for gaining added
ratings, including an added rating to the ATP certificate. Neither
section addresses standards for the application of the ATP certificate.
Part 61 has for years listed, under several paragraphs entitled
``Flight proficiency'', broad areas of operations in which each
applicant must demonstrate competence to be awarded any airman's
certificate except for the ATP certificate. For the last several years,
the specific tasks appropriate for an applicant for any certificate or
rating, the conditions under which the tasks are to be performed, and
the standards for each task have been published in PTS.
Additionally, the FAA points out that there are now and have been
for many years at least two different ways to gain an ATP certificate,
or ratings to that certificate, or both. The certificate and ratings
may be earned pursuant to the successful completion of an air carrier
training program or by meeting the requirements of Sec. 61.63 or
Sec. 61.157 outside an air carrier training program. Sections 61.63 and
61.64 recognize the different ways to gain added ratings, and address
the use of simulation for each of those ways.
AIA, Boeing, and AMR commented about this section (and Sec. 61.64)
in general. They stated that these sections are redundant, and that the
requirements for a type rating or an ATP should be the same regardless
of the employment status of the airman concerned.
NATA commented that there was insufficient basis for the formation
of what amounts to two types of ATP certificates, and that the
certification standards for additional ratings should be the same
regardless of employment. These comments were similar to several
others.
To clear some confusion apparently held by the commenters
referenced in the previous paragraph, the FAA points out that
Sec. 61.63 (and new Sec. 61.64) set forth the proposed requirements
that would have to be met to add all additional ratings to airman
certificates other than the ATP certificate, but not the requirements
for the ATP certificate nor added ratings to that certificate.
As stated earlier in the discussion of this section, the FAA agrees
that there is only one standard for any added rating. The commenters
have observed that there have been two different sets of certification
requirements (but not standards) for an added rating to the ATP
certificate. One requirement is the PTS, which requires all applicants
who are not applying by virtue of having successfully completed an
employing air carrier training program to complete all listed tasks.
Another requirement, appendix A of part 61, allows waiver of training,
testing, and checking of tasks that are excluded by an air carrier's
operations specifications for those applicants who are applying by
virtue of having successfully completed an employing air carrier
training program.
Airbus commented that proposed Sec. 61.63 this section
inadvertently imposes an unnecessary economic burden on training
centers of aircraft manufacturers which manufacture airplanes to meet
the standards of part 25. It states that this section proposed
Sec. 61.63 should be applicable to FAA inspectors and employees of a
manufacturer training center, along with aircrew employees of a part
121 or part 135 certificate holder.
The FAA does not see a different economic impact as a result of
applying the alternatives of this section, instead of Sec. 61.64, to
individuals who are not aircrew employees of a part 121 or part 135
certificate holder. The persons mentioned by the commenter have always
been required to complete all the requirements now enunciated in
Sec. 61.64; the exclusion from the requirement to train and test in
certain tasks (for example, the circling approach maneuver) never
applied to a pilot not employed by a certificate holder subject to the
operating rules of part 121. Therefore, the requirements of Sec. 61.64
are not additional requirements for the persons mentioned by the
commenter, and do not impose an additional economic burden.
In response to the comment about the requirements to be met by FAA
inspectors to gain an added rating, the FAA is clear that the
requirements for an individual airman apply to an FAA inspector.
For the reasons described, this section is adopted as proposed.
Sec. 61.64 Additional aircraft ratings for other than airline
transport pilot certificates (for other than part 121 and 135 use). The
FAA proposed in paragraphs (b)(1) and (c)(1) of this section that an
applicant who holds a pilot certificate and applies to add a category
or class rating must present a record of training certified by an
authorized flight instructor showing that the applicant has
accomplished certain training. Paragraph (d)(1) proposed that an
applicant who holds a pilot certificate and applies to add a type
rating must present a record of training certified by an authorized
ground or flight instructor showing that the applicant has accomplished
certain training.
In addition to the comments on this section already addressed in
the discussion relating to proposed Sec. 61.63, FSI commented that the
wording of proposed Secs. 61.64(b)(1), (c)(1), and (d)(1) be changed to
delete the words ``flight'' and ``ground'' wherever they appear before
the word ``instructor.'' In essence, it says that, as proposed, this
section would not allow authorized instructors, who do not hold flight
instructor certificates, to certify flight training accomplished in
simulation. It states that this practice already is permitted under
existing exemptions.
The FAA agrees. Accordingly, the final rule incorporates the
revisions suggested by FSI.
Paragraph (e) proposed the following:
[[Page 34522]]
(e) The tasks required by paragraphs (b), (c), and (d) of this
section shall be performed in--
(1) An airplane of the same type, for which the type rating is
sought; or
(2) Subject to the limitations of paragraph (e)(3) of this
section, a flight simulator or a flight training device that
represents the airplane type for which the type rating is sought.
(3) The flight simulator or flight training device use permitted
by paragraph (e)(2) of this section shall be conducted in accordance
with an approved course at a training center certificated under part
142 of this chapter; or
(4) In another manner approved by the Administrator.
STI asked, ``What could be a possible (sic) another manner approved
by the Administrator?'' It asked if the intent is to allow current part
61 exemption holders to submit a program outside of a part 142
certificated training center. STI believes that to do so would allow
organizations to offer additional type ratings without a part 142
certificate, and that would negate ``the level playing field for all
operators subject to part 142 certification.''
The new rule will allow current part 61 exemption-holding simulator
training centers to continue to operate only if they obtain a part 142
certificate. The phrase in question was intended to allow for approval
of unforeseen circumstances for completing the tasks required to obtain
a part 142 certificate without changing the rule. The FAA has
determined, therefore, that proposed paragraph (e)(4) can be withdrawn
and has renumbered several paragraphs accordingly.
In a general comment concerning actual aircraft flight experience,
the NTSB stated the following:
The Safety Board realizes that there are limitations to
simulation and believes that the proposed regulations must be
sensitive to the safety needs served by retaining some aspects of
actual flight experience.
The NTSB continued:
The Safety Board recognizes that experience in * * * training
devices cannot fully replicate operational experience in the actual
flight environment and the ``seasoning'' that such experience
provides * * *. The Safety Board urges the FAA to review the
proposed regulations to ensure that they achieve the intent while
still safeguarding basic pilot and instructor skills provided by the
physical operating environment.
In another comment addressing general experience in actual aircraft
flight, ALPA stated the following:
While it is true that aircraft simulation has reached
unparalleled levels of realism, and we strongly support increased
use of advanced simulation, there are other factors which are
important, especially for low-time pilots.
One factor is familiarity with and management of the air traffic
control (ATC) environment. Unless every simulator flight is
conducted as line oriented flight training (LOFT), a great deal of
the required ATC interaction is missed. Under ideal circumstances,
LOFT will include realistic interaction with ATC and other aircraft.
Unfortunately, LOFT sessions are not always conducted with this
degree of environmental realism. It is the operation and decision-
making experience which one receives in an aircraft in an ATC
environment, including interaction with other aircraft, which makes
them a safer pilot. This is especially important early in a pilot's
learning experience.
ALPA added: ``For these reasons, caution should be exercised in
relying too heavily on simulator training in a pilot's early training
and experience,'' and ``A pilot who is a candidate for an ATP has
likely flown for a commercial operator for several years. * * *''
The FAA agrees with the commenters' analysis of the importance of
actual aircraft experience when an applicant will use flight simulation
for a large portion of required training and testing. The FAA has had,
for years, mechanisms for part 121 air carriers and for part 91 and
part 125 operators to ensure the flying public that PIC's have actual
aircraft experience prior to acting as PIC for aircraft requiring a
type rating. Part 121 has a requirement for a potential PIC to receive
specified initial operating experience (commonly known as IOE, required
by Sec. 121.434) under the supervision of a check pilot. This operating
experience requirement applies only to the ATP certificate.
Notwithstanding the recency of experience requirement of
Sec. 61.57, experienced pilots who operate under part 91 or under part
125 have no further operating experience requirement. Relatively
inexperienced pilots who intend to operate under part 91 or under part
125 and who gained an airman certificate with a type rating or added a
type rating to any level of airman certificate entirely by training and
testing in a flight simulator have had a limitation placed on their
airman certificate requiring operating experience similar to that
required by Sec. 121.434. The terms of exemptions permitting these
pilots to train and test entirely in flight simulators defined the
experience level thresholds and set the requirements for SOE. The SOE
requirement applies to any level of airman certificate. The SOE
requirement applies only to a pilot who is to act as PIC for the first
time in a particular type aircraft, and may be completed under the
supervision of another qualified and current PIC.
In light of its long-standing requirements for operating experience
for new PIC's of aircraft requiring a type rating and to implement the
NTSB recommendations and those of other commenters, the FAA is
convinced that, in the interest of safety, it is essential to continue
requirements for sufficient operating experience before newly
certificated or rated pilots act as PIC's of aircraft requiring a type
rating.
For the reasons discussed in the preceding paragraphs, the FAA has
added new paragraphs (e)(4) through (e)(12) specifying SOE requirements
for certain less experienced pilots who apply for an additional rating.
These revisions are fully responsive to the NTSB's and ALPA's comments.
They reflect current FAA practice with limitations contained in
exemptions or placed directly on pilot certificates or ratings obtained
through simulation.
With the exception of the revisions discussed above, Sec. 61.64 is
adopted as proposed.
Sec. 61.65 Instrument rating requirements. The FAA proposed in
paragraph (c)(3) of this section, that an applicant for an instrument
rating would have to have received instruction in instrument approaches
using two different nonprecision approach systems and one precision
approach system. Paragraph (g)(3)(i) proposed that the practical test
for the instrument rating must include at least one published
precision, nonprecision, and circling approach. Previously, this
section had listed specific types of precision and nonprecision
instrument approaches that an applicant had to receive instruction for,
and had to satisfactorily accomplish, during practical testing.
One commenter said that this section should continue to list
specific non-precision and precision approaches that an applicant must
train for and show competence in, instead of changing to the generic
description, as proposed.
The FAA believes that this change will help keep the rule from
being or becoming obsolete and will provide relief to some applicants.
With ever-changing technology, some instrument approaches may become
obsolete in a few years. New instrument approaches have been added
since the current rule was written, and other new ones are certain to
be added.
For the reasons discussed, paragraphs (c)(3) and (g)(3)(i) are
adopted as proposed.
Section 61.65(e)(2)(ii) proposed that the 20 hours of instrument
instruction by an authorized instructor in a flight simulator or flight
training device, currently allowed under part 61, be
[[Page 34523]]
increased to 30 hours of instruction in a flight simulator or flight
training device if the instruction is accomplished in an approved
course conducted by a training center certificated under part 142.
Paragraph (h)(1) of the proposed revision to this section would
permit the total pilot aeronautical experience requirement for the
instrument rating to be reduced from 125 hours of pilot flight time as
currently required by Sec. 61.65(e)(1) to 95 hours of pilot flight
time, which may include 35 hours of simulated or actual instrument
flight time if the entire instrument curriculum is accomplished under
an approved part 142 course.
Andrews University asked why the increase in credit, and why part
141 pilot schools could not also have an increase to 30 hours.
AMR Combs (AMR), an affiliate of American Airlines, and NATA
commented that the proposals for certain reductions in aeronautical
experience or instructional hours for the instrument rating conducted
at a part 142 training center place part 141 pilot schools at a
competitive disadvantage. They recommended that the FAA grant similar
authority to part 141 schools that have approved flight simulators or
flight training devices.
Jeppesen-Sanderson commented that if a reduction of required hours
from 125 hours of pilot flying time to 95 hours is valid for part 142
then it is valid for part 141.
Another commenter said that the proposed reduction of pilot flying
time to 95 hours under proposed paragraph (h)(i) does not do justice to
the level of exposure a person should have to operate safely in the IFR
environment. The commenter continues that he can attest to the
difficulties encountered when experience requirements were reduced from
200 to 125 hours. The commenter believes that the level of skill
required of the single-pilot IFR operation is the most demanding in
aviation. The commenter states that the rigid oversight proposed for
part 142 is commendable, but inadequate to compensate for the lack of
experience.
The FAA believes that the proposed changes discussed above are
justified based on innovative training concepts that will be a feature
of part 142 training centers. The reasons for the creation of a new
training entity and assigning specific authorities and privileges to it
are discussed under a previous section in this document entitled
``Discussion of the Amendments and the New Rule.''
While part 141 allows the use of ground trainers, except for part
121 and part 135 certificate holders training their own aircrews, under
this final rule, all flight simulator training, testing, and checking
for which an airman is to receive credit to satisfy any requirement of
14 CFR must be accomplished in part 142 training centers. These
training centers will be subject to more stringent training program
requirements than part 141 pilot schools. Part 142 training centers
will be substantially more sophisticated than schools certificated
under part 141 by virtue of the use of the most advanced levels of
flight simulation. They will have considerably more detailed and
structured training programs, their instructors will be subject to more
demanding qualifications, and they will have more interaction with
potential air carrier clients than part 141 pilot schools have.
Experience has shown that there is a greater efficacy in more
structured training using high fidelity simulation than in traditional
aircraft-only or aircraft and complementary flight training device
training such as provided by a part 141 pilot school. At present, under
Sec. 141.41, a part 141 pilot school may use a flight simulator only to
the extent that a flight training device may be used. The requirements
for the part 142 certificate are discussed in more detail in the
applicable section-by-section discussion.
In response to the comment about placing part 141 pilot schools at
an economic disadvantage, the FAA believes that the considerations
discussed above justify the treatment afforded part 142 training
centers. For the reasons discussed, the aeronautical experience
requirements for the instrument rating can be reduced as proposed; all
other proposals discussed above also are adopted in the final rule.
Sec. 61.67 Category II pilot authorization requirements.
The FAA proposed in paragraph (c)(4) of this section that the
practical test for this authorization include approaches that need not
be conducted down to the alert height or decision height, as
applicable, authorized for Category II operations but only if the
approaches are conducted in a flight simulator or flight training
device. This section applies only to ILS approaches, since Category II
applies only to ILS approaches by definition.
Airbus Service Company, Inc., (Airbus) commented that references to
ILS in this section should be deleted, since other means of conducting
Category II operations will soon be available. It also recommended that
references to alert height be deleted, because it is not appropriate
for Category II operations.
The FAA agrees that other means of conducting precision instrument
approaches may soon be available. Those approach procedures may not
include different categories, as ILS procedures do. It would not be
appropriate to determine category requirements for other instrument
approach procedures that do not yet exist. Therefore, the references to
ILS contained in the proposed rule (this section and Sec. 61.68) are
adopted in this final rule.
The FAA agrees that alert height is a term not normally applicable
to Category II operations, and the term is deleted in the final rule.
The FAA stated in paragraph (d)(3) of this proposed section that
oral questioning could be conducted at any time during the flight
increment of the practical test.
One commenter stated that oral questioning must never be allowed
during the operation of an aircraft. He states that the demands placed
on an applicant being tested are great enough without the applicant
having to interrupt a train of thought to answer a question.
The FAA agrees that an applicant should not be carelessly
questioned during the conduct of a practical test. Routine questions
that can be effectively conducted in an interview situation while on
the ground should and will be conducted on the ground to the maximum
extent possible. However, the FAA believes that it is in the interest
of safety to allow evaluators to conduct limited oral questioning
during the practical test. The FAA needs to be able to determine that
an applicant is capable of recognizing and responding to outside
questions, statements, or directions. A verbal warning from air traffic
control (ATC) or another crewmember, an ATC inquiry about the status of
flight progress or windshear encounter, report of a windshear, traffic,
or other hazard to landing are examples of outside questions or
interruptions that a crewmember must be able to cope with and respond
to in the interest of safety. An effective method to determine that an
applicant can cope with these examples and all the requirements of a
practical test is to allow the person conducting the practical test to
insert realistic distractions or to make simulated instructions or
warnings to an applicant during the actual conduct of practical tests.
The FAA has determined that the duration of this authorization
should remain in Sec. 61.21. Accordingly, proposed paragraph (e) is not
adopted.
For the reasons discussed above, this paragraph is adopted as
proposed
[[Page 34524]]
except for the changes discussed, minor typographical corrections, and
deletion of the term ``alert height.''
Sec. 61.68 Category III pilot authorization requirements. This new
proposed section sets forth the requirements for a pilot to conduct
Category III operations. Several part 121 certificate holders commented
that the section should be amended to include the authority for part
121 and part 135 certificate holders to conduct the authorization
practical test pursuant to their approved training programs.
The FAA agrees that part 121 and part 135 certificate holders
should be authorized to conduct the practical test pursuant to their
approved training programs. A new Sec. 61.3(j) is adopted (as Sec. 61.5
(j) by this final rule to permit this practice.
The FAA stated in paragraph (e)(4) of this proposed section that
oral questioning could be conducted at any time during the flight
increment of the practical test.
Boeing and AIA commented that paragraph (e)(4) should be amended to
clarify that the oral increment and flight increment do not occur
simultaneously.
The FAA agrees that the two increments should be separate to the
extent possible, but believes that the authority of inspectors and
examiners to ask clarifying questions during the flight increment as
and if necessary should be stated in the rule. See the discussion of
oral questioning during the flight increment of the practical test in
the analysis of Sec. 61.67. Therefore, paragraph (e)(4) is adopted as
proposed.
Crew Systems commented that inclusion of Category III pilot
authorization provisions in this rulemaking is inappropriate, for such
provisions do not relate to the purpose of the rulemaking-the
certification of training centers.
One objective of this rulemaking is to facilitate the use of
simulation and to cause growth in that industry. One task that flight
simulators are being used for now, and almost certainly will be more in
the future, is Category III training and testing. Thus, the provisions
of this proposed section relate directly to the primary purpose of this
rulemaking.
AMR commented that the ``excruciatingly detailed practical test
procedures in proposed paragraph 61.68(e)'' are not appropriate
regulatory material. It suggests that the FAA delete proposed paragraph
(e) of Sec. 61.68 in its entirety. It recommends that the proposed
training and practical test procedures be included in AC 120-28C, or
published in PTS. Ferrarese Associates, Inc., made essentially the same
comment.
The FAA has determined that it is appropriate to set forth those
mandatory requirements for experience and testing of airmen applying
for Category III authorization in a regulation. An advisory circular
gives non-mandatory advice only for a means, but not the only means, to
accomplish certain actions. The information in this section is similar
to the regulatory language concerning Category II approach
authorization, contained, for many years, in Sec. 61.67.
The FAA has determined that the duration of this authorization
should remain in Sec. 61.21. Accordingly, proposed paragraph (f) is not
adopted. With this change, this section is adopted as proposed.
Sec. 61.109 Airplane rating: Aeronautical experience. The FAA
proposed to allow credit for instruction received in approved flight
simulators and approved flight training devices in this section. The
FAA previously required 20 hours of flight instruction, and all of that
instruction must have been received in an airplane.
Under this proposed section, a maximum of 2.5 hours of flight
simulator or flight training device instruction from an authorized
instructor is creditable toward the 20 hours of flight instruction
required for a private pilot certificate, whether or not that
instruction is accomplished in a training center certificated under
part 142. The 2.5 hours of instruction time may be increased to 5 hours
of instruction in a flight simulator or flight training device,
provided the instruction is accomplished in an approved course
conducted by a training center certificated under part 142.
The flight instruction received in a flight simulator or flight
training device must be accomplished in a flight simulator or flight
training device representing an airplane.
Previously, Sec. 61.109 required at least 40 hours of flight
instruction and solo flight time. Under this proposed section, the 40
hours of aeronautical experience may be reduced to 35 hours provided
that the entire private pilot curriculum is accomplished under an
approved part 142 course.
The 35 hours of aeronautical experience may be further reduced
under paragraph (i) of this section if the applicant completes an
approved private pilot course and if the Administrator determines that
a further reduction is appropriate based on a demonstration of training
program effectiveness that warrants testing such a reduction. Under
this exception, a training center might propose a test training
curriculum the effectiveness of which might be validated by reference
to post-training data covering at least 1 year of student performance
before such a reduction could be considered for other students.
Andrews University commented that it agrees with this proposed
section.
The Japanese Civil Aviation Bureau commented that the reduced
aeronautical experience requirements of this section and Secs. 61.113,
61.129, and 61.131 may have an impact on Convention on International
Civil Aviation (ICAO) agreements, in that students meeting reduced
aeronautical experience requirements may not meet ICAO member states'
requirements for certificates based on a U.S. certificate.
The FAA points out that the reduced aeronautical experience
requirements authorized for part 142 training centers are the same as
the reduced aeronautical requirements that have been authorized for
part 141 pilot schools for many years. Therefore, certificates and
ratings issued under part 142 would have the same ICAO member states'
acceptance as certificates and ratings issued under part 141. The
provision of paragraph (i), which might allow a particular course with
fewer hours of aeronautical experience than otherwise specified in this
section, might lead to a limitation on an airman's certificate that is
similar to the limitation specified in Sec. 61.111(c) and in several
other sections in this part.
ALPA commented that the preamble discussion of paragraph (i) of
this section, and similar paragraphs contained in other proposed
sections, includes vague statements of data that a training center
would have to track to validate its ability to train effectively in
fewer than the minimum number of hours specified in each proposed
section.
The FAA agrees that the few terms offered as examples are not
elaborately discussed. The intention is to allow maximum flexibility to
a training center to develop, at some future date, innovative
curriculums that might adequately train for a specific certificate or
rating in fewer than the current minimum number of hours. In order to
gain the privilege of further reducing minimum training hours, a
training center will be required to demonstrate that it can provide
proper training in fewer hours. To accomplish this, it would have to
propose a method of tracking graduates and collecting data to validate
training program effectiveness. Data to be tracked to point to program
effectiveness might include incidents, accidents, hours flown, and type
of flying. A training center would have to present historical data
covering at least
[[Page 34525]]
1 year (or other period of time approved by the Administrator) before
it could be granted a reduction in the minimum hours prescribed in this
section. Data covering performance over this period of time is
considered necessary to properly evaluate student performance. Data
covering a shorter term would not be sufficient to allow the FAA to
evaluate performance during varying seasonal conditions.
ALPA also commented that 1 year of data collection is an inadequate
period to collect data from which to draw conclusions used to validate
the effectiveness of training students in fewer than the minimum number
of hours set forth in the proposed rule. In support of this comment, it
stated that accident and incident rates are difficult to quantify for
even 10-year periods.
The FAA points out that accidents and incidents are just examples
of pilot performance that may be tracked, and are not meant to be the
only items tracked. The FAA believes that it is in the public interest,
and safe, to allow a reduction if data collected and evaluated justify
such a reduction. If the performance data do not clearly justify the
reduction, none will be undertaken. If, after a test is undertaken, the
FAA determines that the performance of the pilots in the test group is
below standard, the FAA will modify the validation data collection
period or any other control measure that may be indicated.
AMR commented that part 141 pilot schools would be at a
disadvantage in that, unlike training centers, they would not be
permitted to reduce the number of hours of aeronautical experience as
proposed in this and similar sections. It recommends that pilot schools
be allowed the same opportunity if the pilot school has approved flight
simulators or flight training devices.
The minimum number of hours of aeronautical experience proposed in
the NPRM for purposes of part 142 is the same aeronautical experience
required under part 141 for several years. The potential for an even
further reduction is extended to part 142 training centers only,
because the FAA is convinced that further reduction would be possible
at this time only under the more sophisticated training environment
required of these schools.
AMR also commented that in the training environment it is
relatively normal for a student to have more than one instructor during
a course of instruction. Proposed Sec. 61.109(a), it points out, speaks
of a singular instructor, as does the existing regulation. To better
reflect the training center environment, and to avoid the implication
that a trainee must have one and only one instructor, it recommends
that the proposed language be changed to say ``flight instruction from
an authorized instructor or instructors.''
The FAA agrees that students are likely to have more than one
instructor, and it does not intend to prohibit this practice. The term
``authorized instructor'' as used throughout this final rule is
intended to mean that instruction may be received from one instructor
or from more than one instructor. The interpretive rules in 14 CFR part
1 state that words importing the singular include the plural, and that
words importing the plural include the singular.
Therefore, for the reasons stated, this section is adopted as
proposed.
Sec. 61.113 Rotorcraft rating: Aeronautical experience. Under
current Sec. 61.113, an applicant for a private pilot certificate with
a rotorcraft category rating must have at least 40 hours of flight
instruction and solo flight time in aircraft. Instruction in flight
simulators or flight training devices is not authorized. The FAA
proposed in paragraph (a)(1) of this section that the 40 hours of
flight instruction and solo flight time must include at least 20 hours
of flight instruction from an authorized flight instructor.
AMR made substantially the same comment that it made about proposed
Sec. 61.109 about a student having more than one instructor. See that
section for the FAA response.
With minor revisions to its format and structure, this section is
adopted as proposed.
Sec. 61.129 Airplane rating: Aeronautical experience. Under
proposed Sec. 61.129(b), an applicant for a commercial pilot
certificate with an airplane rating would have to have at least 250
hours of flight time as a pilot, which could include not more than 50
hours of instruction in a ground trainer acceptable to the
Administrator.
Under proposed Sec. 61.129(b)(1)(ii), up to 100 hours of flight
simulator instruction or flight training device instruction could be
credited toward the 250 hours of total flight time if the instruction
is accomplished in an approved course conducted by a training center
certificated under part 142. To be credited toward the total flight
time requirement for a commercial pilot certificate, flight simulator
or flight training device instruction received would have to be
accomplished in a flight simulator or flight training device
representing an airplane.
AMR, in a comment identical to several others, commented that the
terms of proposed Sec. 61.129(b)(1)(ii) should be made applicable to
training under part 121, part 135, part 141, or SFAR 58.
For reasons discussed in the analysis of comments to Sec. 61.65,
additional flight time may be performed in a simulator and credited
toward total flight time, only if the simulated flight time is
accomplished in accordance with a training program approved under part
142, part 121, or part 135.
NATA commented that this section should be left unchanged.
Jeppesen-Sanderson commented that an approved part 142 commercial
course would allow all training, including cross-country experience, to
be conducted in a flight simulator or flight training device, and that
``* * * it is impractical to conduct the entire commercial training
program in a simulator or flight training device.''
In fact, the proposed rule would not affect the current requirement
pertaining to cross country flights, and it proposed that a maximum of
100 hours of the total of 190 hours of aeronautical experience may be
accomplished in a flight simulator under part 142. The justification
for permitting up to 100 hours of training to be accomplished in a
flight simulator may be found in the discussion of comments to
Sec. 61.65 and in the section of this document entitled ``Discussion of
the Amendments and the New Rule.''
The FAA has decided to omit the words ``Approved commercial pilot
training program conducted under part 142'' from the title of paragraph
(c). Paragraphs within a section do not normally have titles. With this
change, this section is adopted as proposed.
Sec. 61.131 Rotorcraft rating: Aeronautical experience. Under
current Sec. 61.131, an applicant for a commercial pilot certificate
with a rotorcraft category rating must have at least 150 hours of
flight time, including at least 100 hours in powered aircraft, 50 hours
of which must have been in a helicopter.
Under the proposed revision to this section, the applicant may
obtain 35 hours of credit toward total flight time requirement in a
flight simulator or flight training device, or a credit of up to 50
hours of the total required flight time in a flight simulator or flight
training device if the flight simulator time or flight training device
time is obtained from a training center certificated part 142.
Previously, there was no provision for crediting flight simulation time
toward this rating. Under the proposed rule, to be credited toward the
total 150-hour flight time requirement, flight simulator or flight
training device instruction received
[[Page 34526]]
would have to be accomplished in a flight simulator or flight training
device representing a rotorcraft.
A provision to allow a further reduction of the 150-hour flight
time requirement, based on demonstrated ability to accomplish training
requirements in less time, was also proposed.
AMR commented that the ratio of dual time to solo time is out of
balance, and that each of those categories of aeronautical experience
should be adjusted.
The ratio of dual to solo aeronautical experience is not
appropriate to consider in this rule, which is aimed at increased use
of simulation. The NPRM did not propose any changes to either solo or
dual flight time requirements.
With minor typographical changes, this section is adopted as
proposed.
Sec. 61.155 Airplane rating: Aeronautical experience. The FAA
proposed to amend this section to allow more credit for the use of
simulation toward the total required aeronautical experience
requirement for an airplane rating on an ATP certificate.
Under existing Sec. 61.155 (b)(2), an applicant for an ATP
certificate with an airplane rating must have had at least 1,500 hours
of flight time as a pilot, including, among other things, at least 75
hours of actual or simulated instrument time, at least 50 hours of
which were in actual flight. Up to 25 hours could have been obtained in
a simulator.
Under the provisions of paragraph (a)(2)(iii)(B) (3)(ii) of the
proposal, the 25 hours of simulated instrument time previously allowed
could have been increased to 50 hours if accomplished in an approved
course conducted by a training center certificated under part 142.
ALPA and Andrews University commented that it is inconsistent to
propose to allow an increase of only 50 hours of simulated flight time
for an applicant for an ATP certificate since proposed Sec. 61.129
would permit a student to credit up to 100 hours of simulated flight
experience toward the total requirement for the commercial certificate.
The FAA believes that the proposal is not inconsistent. The flying
hour credit allowed by proposed Sec. 61.129 was for total flight hours;
the credit in this proposed section is for simulated instrument
experience. However, in response to comments, paragraph (a)(3), as
adopted, allows not more than 100 hours of total simulated pilot
experience to be credited toward the total requirement for this
certificate. This recognizes that those 100 hours could already be a
part of time accumulated in obtaining a commercial pilot certificate.
NATA and ATA commented, in a comment similar to that of several of
its member organizations, that the proposal permitting increased
amounts of simulated flight time to be credited as aeronautical
experience should be extended to part 121 and part 135 certificate
holders, and to holders of AQP authorization.
It was not the purpose of this rulemaking to extend increased
training credits to holders of certificates issued under part 121 or
part 135. However, any curriculum can be organized for presentation
under principles described by AQP, presented to the FAA for approval
and, upon approval, presented to aircrew employees of the authorization
holder or, if the authorization holder also holds a part 142
certificate, to any other person.
Boeing commented that this proposed section is not applicable to
foreign pilots and military pilots.
The provisions of this proposed section, however, do apply to
military pilots and foreign pilots.
This proposed section is adopted with the changes described above.
Sec. 61.157 Airplane rating: Aeronautical skill (for parts 121 and
135 use only). The FAA proposed to revise this section title to make it
clear that it is applicable only to applicants for an ATP certificate
(with an airplane rating) who are pilot crewmember employees of a part
121 or part 135 certificate holder applying pursuant to that employer's
approved training program. The FAA proposed a new Sec. 61.158 that
applies to other applicants, as discussed under the next heading.
Numerous comments were received concerning this section. In
addition to the persons commenting on proposed Sec. 61.63, which
concerns a similar subject, American Airlines (American), Delta, and
FSI commented on this section. The comments were substantially the same
as the comments regarding proposed Sec. 61.63.
See the response to comments concerning proposed Sec. 61.63 for a
discussion of the reasons for reserving Sec. 61.63 for part 121 and
part 135 use. The same rationale applies to this proposed section.
The FAA will continue the practice of allowing waiver of certain
maneuvers, on an individual basis, as currently provided in appendix A
of part 61 and the PTS, for those persons who have successfully
completed an employing air carrier's approved training program for the
type airplane involved within the preceding 6 calendar months. The
waiver authority will apply only to applicants whose employer does not
have the procedure authorized in the operations specifications, for
example, circling approaches authorized by operations specifications.
The waiver authority will not apply to all persons who are employed by
an air carrier simply because of that person's employment.
The FAA restructured proposed paragraph (a) to better conform to
proper outline and grammatical construction. The subject matter of
proposed paragraph (a)(2) is better placed in existing paragraph (c).
However, in the final rule, the FAA has determined that only paragraph
(g) should be added and therefore has withdrawn proposed paragraphs (a)
and (c).
The FAA has, for years, received questions about whether completion
of a proficiency check taken under part 121 or part 135 would suffice
for the certification requirements of this section. The FAA has
maintained a policy that the proficiency checks in question suffice to
meet the certification requirements of this section. To make that
position clear, the FAA has added a new paragraph (g) to this proposed
section.
This section is adopted with the changes discussed.
Sec. 61.158 Airplane rating: Aeronautical skill (for other than
parts 121 and 135 use). The FAA proposed in this new section general
skill requirements for each ATP certificate applicant with a single-
engine or multiengine class rating or type rating if the applicant is
not a participant in an air carrier training program as an aircrew
employee of an air carrier. This proposed section was intended to
clarify which certification procedures apply to aircrew employee
applicants of air carrier approved training programs and which apply to
other applicants.
Paragraph (c) proposed the following:
(c) The tasks required by paragraphs (a) and (b) of
(Sec. 61.158) shall be performed in--
(1) An airplane of the same class, and, if applicable, an
airplane of the same type, for which the class rating or type rating
is sought; or
(2) Subject to the limitations of paragraph (c)(3) of this
section, a flight simulator or a flight training device that
represents the airplane type for which the type rating is sought, or
set of airplanes if the airplane for which the class rating is
sought does not require a type rating.
(3) The flight simulator or flight training device use permitted
by paragraph (c)(2) of this section shall be conducted in accordance
with an approved course at a training center certificated under part
142 of this chapter; or
(4) In another manner approved by the Administrator.
[[Page 34527]]
STI asked, in essence, whether paragraph (c)(4) is intended to
allow current part 61 simulator exemption holders to submit a training
program for FAA approval without first obtaining certification under
part 142.
This is the same question that STI asked concerning proposed
Sec. 61.64. Proposed paragraph (c)(4) is withdrawn for the same reasons
stated in the response to the comment regarding proposed Sec. 61.64,
and subsequent subparagraphs have been added to include the
requirements for SOE for certain pilots who train and test for added
ratings predominately or entirely by flight simulation.
Several other commenters stated that the FAA appears to be
proposing two different standards for the ATP certificate or added
ratings to that certificate, one standard applicable to applicants who
will conduct air carrier operations and a second standard for
applicants who will conduct other than air carrier operations. See
Sec. 61.64 for the FAA response to comments made by the NTSB and ALPA
that applies also to this section.
An editorial change was made to paragraph (a)(1) of this section to
make the titles of the areas of operation exactly match the table of
contents for those areas of operation in PTS ``FAA-S-8081-5.''
Editorial changes were made to paragraph (2) to make it clear that that
paragraph applies only to additional airplane ratings. Additionally,
although no comments were received about these proposals, the FAA has
withdrawn proposed paragraph (2) (iii) and (iv) of this section given
that they cover issues not germane to the objectives of this final
rule.
A few part 121 certificate holders asked if proposed Sec. 61.158
would apply if a type rating is sought from a trainer other than one's
own employer.
As proposed, this section would apply to all applicants, who are
not aircrew employees of a certificate holder, being trained in
accordance with the requirements of subpart N of part 121 or subpart H
of part 135, as applicable.
Andrews University asked what minimum level of flight simulator or
flight training device would be required by proposed paragraph (c)(2)
to conduct a practical test.
As discussed elsewhere throughout the proposal, the simulation
medium, in addition to the requirements set forth under proposed
paragraph (c)(2), must be qualified and approved for each maneuver,
procedure, and crewmember function for which a training center proposes
to use that simulation medium. The qualification standards are listed
in AC 120-40, as amended, and AC 120-45, as amended, as applicable. In
addition to the guidance contained in these AC's, the FAA is preparing
a new AC 120-46, mentioned earlier in the discussion under Sec. 61.1,
which will assist training center certificate applicants by presenting
a matrix showing the level of simulation that is approved for various
maneuvers, procedures, and crewmember functions. The availability of
that AC will be announced separately.
This proposed section is adopted with the changes discussed in the
preceding paragraphs.
Sec. 61.161 Rotorcraft rating: Aeronautical experience. Under
current Sec. 61.161(b), an applicant for an ATP certificate with a
rotorcraft category and helicopter class rating must have had at least
1,200 hours of flight time as a pilot, including 75 hours of instrument
time, 25 hours of which may have been simulated instrument time in a
flight simulator or flight training device. Proposed Sec. 61.161 would
allow the 25 hours of simulated instrument flight time to be increased
to 50 hours if accomplished in an approved course at a training center
certificated under part 142. To be credited toward the total flight
time requirement, f
FR Doc. 96-16432 Aircraft Flight Simulator Use in Pilot Training, Testing, and Checking and at Training Centers
light simulator or flight training device
instruction would have to be accomplished in a flight simulator or
flight training device representing a rotorcraft.
AMR commented that the 25 hours of simulated instrument flight time
should be increased to 50 hours if accomplished under part 121, part
135, or part 141 if accomplished pursuant to an AQP authorization.
The FAA does not agree that it is appropriate to increase simulated
flight time as recommended by this commenter. See the section-by-
section discussion under Sec. 61.65 and the section of this preamble
entitled ``Discussion of the Amendments and the New Rule'' for the
rationale behind FAA's position on this issue.
For the reasons discussed above, this section is adopted as
proposed.
Sec. 61.163 Rotorcraft rating: Aeronautical skill. The FAA
proposed to revise this section to allow an airman to complete the
practical test for a helicopter rating in a flight simulator or flight
training device if the practical test is taken as a part of a
curriculum at a training center certificated under part 142.
FSI asked if it is an oversight that this section does not contain
some of the same proposed paragraphs that are contained in proposed
Sec. 61.158, which is the parallel section for airplane ratings.
It is not an oversight that this section does not exactly parallel
Sec. 61.158. The proposals that FSI questions contain provisions that
would require an applicant to present a record of having received
ground training and flight training on specified subjects, and to have
been shown competent in specified areas of aeronautical knowledge.
Proposed Sec. 61.158(a)(2)(iii) and (iv), which are the two
paragraphs the commenter suggested that the FAA parallel in this
section, have been withdrawn from Sec. 61.158 in this final rule as
issues not germane to the objectives of this rulemaking. The FAA did
not propose similar provisions in proposed Sec. 61.163. Therefore, it
is inappropriate to consider this comment at this time. The comment
will be considered if such proposals are made in the future for
rotorcraft ratings.
FSI also recommended that the proposed areas of operations listed
in Sec. 61.163(a) be titled and re-ordered to be consistent with the
table of contents contained in ``Airline Transport Pilot and Type
Rating,'' (PTS FAA-S-8081-5).
The FAA has changed the listing of areas of operation as suggested.
In response to the comments addressed in the discussion of
Sec. 61.158 and for the reasons stated there, the FAA has placed
additional paragraphs in this section concerning added ratings obtained
substantially or entirely in flight simulation.
This section is adopted as amended.
Sec. 61.169 Instruction in air transportation service. This
proposed section would require that ATP's giving instruction in
Category II or Category III operations be trained and tested in
Category II or Category III operations, as applicable.
Paragraph (a)(3) proposed that all instruction provided by ATP
certificate holders be conducted in aircraft with functioning dual
controls.
BAe, in a comment similar to several others, commented that
proposed paragraph (a)(3) would allow an ATP to instruct only in
aircraft with functioning dual controls, not in flight simulators or
flight training devices.
Although the FAA did not specifically include simulation in this
proposed section, the intent of this rulemaking is to provide for
increased use of simulation wherever practical and where safety
permits. Therefore, the FAA agrees that this paragraph should be
revised to clarify that privileges of an ATP while instructing in air
transportation service includes instruction in a flight simulator or
flight
[[Page 34528]]
training device. A new paragraph (a)(2) has been added accordingly.
Proposed paragraph (b) continued the existing limitation that an
ATP could not instruct in an aircraft for more than 8 hours in any 24-
consecutive-hour period, nor for more than 36 hours in any 7
consecutive days.
Continental Airlines, FSI, and others commented that proposed
paragraph (b) should specify that the instruction time limitations
apply to aircraft only. These commenters specifically remarked that,
with a briefing and debriefing session that each last for 2 hours, a
simulator instructor's duty day may exceed 8 hours. FSI made the same
comment in reference to Secs. 142.49 and 142.87, and this proposed
section.
Proposed paragraph (b) did not include simulation in the
instructor's time limitation and simulator instruction would not have
been permitted by the proposal. However, because the FAA has modified
the proposal to allow simulator instruction, the FAA believes that duty
time limitations should apply to both simulation and aircraft.
Further, flight instruction time limitations regarding preflight
and post flight activities or briefings and debriefings have never been
addressed. The FAA has determined that, in this final rule, it is
appropriate to clarify that time spent performing these activities does
not count toward the proposed flight instruction time limitations.
Therefore, the words ``excluding briefings and debriefings'' have been
added to paragraph (b) of this section in the final rule.
AMR commented that, by proposing time limitations, the FAA is
mandating work rules, and that the FAA does not provide any
justification for the arbitrary limitations imposed.
The proposed time limitations are not new; they have been contained
in current Sec. 61.169 for many years. The clarification to paragraph
(b) discussed above should remove any confusion about not establishing
new instructor duty times for simulation instruction.
SFI commented that this rule is archaic and attaches a privilege
(instructing) to a certificate that demands neither training nor a
demonstration of skill as an instructor. It continues that the rules
applicable to instruction in air transportation service should be
contained in part 61 and that specialized requirements for air
transportation instructors should be contained in Secs. 121.411 and
135.337, as appropriate.
In addition to holding an ATP certificate, persons who instruct in
air transportation service in part 121 and part 135 must train, and in
implementing guidance requirements as an instructor and demonstrate
skill as an instructor, for the specialized application of air
transportation service. The FAA is convinced that these requirements
assure a level of safety for instruction equivalent to provisions of
part 61, for privileges limited to air transportation service.
This section is adopted with the changes discussed above.
Sec. 61.187 Flight proficiency. As proposed, this section would
permit an applicant for the flight instructor certificate to receive
the required instruction for a flight instructor certificate in a
flight simulator or flight training device used as part of an approved
course conducted by a training center certificated under part 142.
Previously, there was no provision for accomplishing the required
instruction in anything other than an aircraft.
An overwhelming number of comments favored expansion of simulation
to authorize its use for part or all of the instruction that flight
instructor applicants are required to receive. Commenters objected,
however, to the apparent requirement that all instruction must be
received in an approved part 142 training center course. Several
commenters, responding to the NPRM, suggested that the instruction
permitted by this section be permitted for air carriers, part 141
schools, and holders of AQP or other authorizations.
The FAA does not agree. This option has been considered in detail
in previous discussion of comments on Secs. 61.56, 61.57, and 61.155.
Jeppesen-Sanderson, and other organizations representing part 141
and part 61 pilot schools commented, also in response to the NPRM, that
a flight simulator could not do all the tasks in which a flight
instructor must demonstrate competence.
The FAA agrees that this comment is true. The reason for extending
the permitted uses for simulation to training and testing for the
flight instructor certificate, even though simulation will not
currently perform all the requisite tasks for that training and
testing, is the same as discussed in the section-by-section discussion
of Sec. 61.56, regarding future use of simulators.
A wording error in NPRM Notice 92-10 resulted in the proposed rule
text saying that an applicant for a flight instructor certificate must
have received instruction in a accordance with an approved course at a
training center certificated under part 142; the intention was to say
an applicant may receive instruction in such a course. Therefore, the
FAA announced in an SNPRM (FR 58 9514, February 19, 1993) that it had
inadvertently proposed to require that all instruction in preparation
for the airman practical test for this for this certificate be
accomplished in a part 142 course, when it intended to propose that, as
an additional option, the required instruction could be obtained in an
approved flight simulator or flight training device, if that
instruction is received during an approved course offered by a training
center.
AOPA, in its comment to the SNPRM, expressed support for the
changes proposed for this section.
One person, in response to the SNPRM, stated that he objected to a
change that would allow simulation to be used to satisfy any flight
time required for a flight instructor certificate. In his comment, he
stated: ``There * * * is no gain to be obtained * * * other than the
cost reduction by the big companies.''
The FAA believes that there are potentially significant cost
benefits for all persons involved in aviation training, including
individuals who may choose to use a training center for flight
instructor training whenever it becomes available.
In addition, the FAA has determined that allowing the training and
testing for a flight instructor certificate would result in additional
safety benefits if accomplished in a simulator rather than in an
aircraft.
After further analysis, the FAA believes that paragraphs (c)(2) and
(c)(4), as they appeared in the SNPRM, are inaccurate, in that
paragraph (c)(2) refers to a nonexistent flight instructor course
meeting part 61, subpart G, requirements, and paragraph (c)(4) refers
to a nonexistent flight instructor course under part 135. Additionally,
paragraph (c)(3) is repetitive of other provisions of subpart G of part
61.
Therefore, the FAA has revised these paragraphs in the final rule.
This section is adopted with the corrections discussed.
Sec. 61.191 Additional flight instructor ratings. The FAA proposed
to revise this section to permit an airman to accomplish the required
practical tests for flight instructor ratings in a flight simulator or
flight training device used as part of an approved course conducted by
a training center certificated under part 142. Previously, there was no
provision for accomplishing the practical test in anything other than
an aircraft.
The comments regarding this section are essentially the same as
those
[[Page 34529]]
submitted in response to proposed Sec. 61.187. For the reasons
discussed in response to proposed Sec. 61.187, this section is adopted
as proposed.
Sec. 61.195 Flight instructor limitations. This section proposed
to require flight instructors giving instruction in Category II or
Category III operations to be trained and tested in Category II or
Category III operations, as applicable.
One commenter agreed with the proposal, but remarked that he would
like a better definition of what the Category II and Category III
training would be.
While development of such a definition is not the purpose of this
rulemaking, testing requirements for these areas are described in
Secs. 61.67 and 61.68 and training should track the requirements of the
appropriate test.
This section is adopted as proposed, with an added reference to
Sec. 61.68.
Sec. 61.197 Renewal of flight instructor certificates. The FAA
proposed to amend this section to permit an applicant for renewal of a
flight instructor certificate to conduct the required practical test in
a flight simulator or flight training device in a course conducted by a
training center certificated under part 142. Previously, there was no
provision for accomplishing the practical test in anything other than
an aircraft.
In addition to the proposal stated above, the FAA inadvertently
included certain other proposals in this section. The inadvertent
proposals would have required medical qualifications for the renewal of
a flight instructor certificate (proposed Sec. 61.197(a)(1) and
(a)(2)), permitted alternative methods of renewal of the certificate
without accomplishing a practical test (Sec. 61.197(b)(1) and
(b)(2)(iv), and prohibited the use of a flight instructor refresher
clinic for more than two consecutive renewals of a flight instructor
certificate (Sec. 61.197(c)). After publication in the Federal
Register, the FAA realized that these proposals had been inadvertently
included in the NPRM. The FAA proposed to correct the error in an
SNPRM, Notice 92-10A, (59 FR 9514, February 19, 1993). In effect, the
SNPRM proposed to restore the provisions of current Sec. 61.197.
Over 200 comments were received concerning this proposed section as
written in the NPRM; nearly all opposed the inadvertent proposals.
However, a few comments were received concerning the proposal to allow
an applicant to renew a flight instructor certificate by taking a
practical test in flight simulation pursuant to part 142. These
comments were generally favorable.
Ten comments were received concerning the revised proposals
contained in the SNPRM. These commenters disagreed with the original
proposals contained in the NPRM, which in fact made them comments in
favor of the SNPRM. No comments were received that opposed the text as
proposed in the SNPRM.
For the reasons discussed, this section is adopted as proposed in
the SNPRM, except for deleting the words ``in an aircraft'' from
proposed paragraph (d). That revision was necessary to avoid an
inference that an applicant has to complete an approved course
conducted by a part 142 certificate holder in order to take the
practical test in an aircraft.
Appendix A to Part 61
The FAA proposed to change the title of appendix A to part 61 to
read ``Practical Test Requirements For Airplane Airline Transport Pilot
Certificate and Associated Class and Type Ratings (For part 121 and
part 135 Use Only).'' This proposal was a companion change to the
proposed change to Sec. 61.157, since appendix A implements
Sec. 61.157.
Boeing, AIA, and Crew Systems had the same comment that they had
concerning proposed Secs. 61.63 and 61.64. Essentially, the comment was
that the proposals appear to create two types of pilot certificates,
one for part 121 and part 135 operations and one for all other
operations.
The FAA response to this comment may be found by reference to the
discussion of comments about proposed Secs. 61.63 and 61.157.
Airbus commented that appendix A should be deleted, and that the
provisions of proposed Sec. 61.158 should be used instead. It adds that
if appendix A cannot be deleted, it must be amended to accommodate
modern aircraft.
The FAA agrees that appendix A has become somewhat obsolete.
However, the deletion or updating of appendix A does not relate to the
purpose of the proposed rulemaking upon which the final rule is based.
Therefore, in this final rule, appendix A is retitled, but
otherwise unchanged. The deletion or updating of appendix A will be
addressed as part of Phase II of the part 61 review which is referred
to under the section entitled ``Related Activity.''
Integration of Appendix B to Part 61 Into Practical Test Standards
The FAA proposed to delete appendix B to part 61. FSI asked about
the future of a document to replace appendix B.
The FAA does not plan to replace appendix B, as such. Instead, the
FAA lists broad areas of aeronautical knowledge in several sections
which specify requirements for various certificates and ratings. The
specific tasks recommended for an airman to demonstrate competence in
the broad areas of aeronautical knowledge are listed in implementing
documents, such as the PTS.
Therefore, appendix B is deleted in this final rule, as proposed.
Part 91
Sec. 91.191 Category II and Category III manual. The FAA proposed
to change the title of this section to include Category III manuals.
The text of the proposed section sets forth the requirements for
Category III manuals for civil aircraft conducting reduced visibility
operations. These operations are defined as Category III operations
elsewhere in part 91. Previously, there were no regulatory provisions
applicable to part 91 operators who might anticipate Category III
operations.
Airbus, in the only comment received, commented that part 91 is not
mature enough to warrant regulatory action.
The FAA does not agree. Earlier in this preamble the FAA discussed
the sophistication of aircraft operated under part 91, and the intent
to not wait until a greater number of aircraft are capable of Category
III operations before changing the rule to permit such operations under
part 91. The FAA is convinced that it is time to amend part 91 to
establish rules for reduced visibility operations.
AMR, in a general comment about the proposed changes to part 91,
stated that the proposals to amend part 91 appear to be totally
unrelated to the thrust of the NPRM.
The FAA believes that these proposals are related to the subject of
the NPRM. Simulation is and will be used as a primary training vehicle
for reduced visibility approaches. The NPRM proposed to require testing
for those persons who will be authorized to conduct such approaches in
a new Sec. 61.68. The proposed changes to Secs. 91.191 and 91.205
provide requirements for aircraft equipment and procedures for Category
III operations, which did not exist previously.
The FAA has determined that, in order to allow time for compliance,
persons desiring to obtain Category III
[[Page 34530]]
authorization should be given until August 1, 1997, to develop a
Category III manual. Persons developing a Category III manual may use
as general guidance Appendix A, modified as applicable, to address
Category III Manual, Instruments, Equipment, and Maintenance. Because
there will be few part 91 operators seeking Category III authorization,
the FAA does not anticipate that development of Category III manual
will impose a significant economic burden on a significant number of
operators.
This section is adopted as proposed, except for a change to
establish a separate effective date.
Sec. 91.205 Powered civil aircraft with standard category U.S.
airworthiness certificates: Instrument and equipment requirements. This
proposed section included requirements concerning instruments and
equipment for Category III operations.
Airbus made the same comment about this section that it made about
proposed Sec. 91.191.
The FAA response is the same as that set forth under Sec. 91.191.
This section is adopted as proposed.
Part 121
The FAA received numerous comments from major airline associations
and air carriers that a part 142 certificate should not be required to
continue to provide training to employees of other part 121 or part 135
certificate holders. These commenters stated that parts 121 and 135
contain sufficient requirements for instructors, evaluators (check
airman), and training program approval and that the FAA does not need
to separately specify those requirements in a new part to 14 CFR (part
142).
After reconsideration of the proposal in light of these comments,
the FAA agrees that parts 121 and 135 contain sufficient requirements
for training, testing, and checking any aircrew subject to those parts.
For that reason, the following proposed revisions to these sections of
part 121 have been withdrawn: Secs. 121.1, 121.401, 121.403, 121.405,
121.407, 121.432a, 121.439, and 121.441. Upon evaluation of comments
received, the FAA has concluded that the proposed subparts of part 142
that were applicable to air carriers also were not needed and should be
withdrawn. Therefore subparts F, G, H, and I, of proposed part 142 also
have been withdrawn.
In addition, the proposed revisions to part 121, appendix H and
appendix I have been withdrawn. Part 121, appendix H issues are being
addressed under separate rulemaking, as discussed under the section of
this document above entitled ``Related Activity,'' and have, therefore,
been removed from this final rule. The discussion below entitled ``Part
142'' explains the rationale for withdrawing proposed appendix I and
all proposed sections relating to drug testing.
The FAA has determined, however, that a part 121 or part 135
certificate holder, without obtaining a part 142 certificate, should
not be allowed to provide training, testing, or checking to persons who
are not aircrew employees of an air carrier certificated under the same
part. Operations conducted by these individuals are not sufficiently
similar to those of certificate holders to warrant such an exception.
An air carrier interested in providing training, testing, or
checking to such persons could modify its training program to suit the
needs of those persons and meet the necessary requirements for a
training program suitable for approval under part 142.
Operating and training environments of other operators are
different from those for air carriers. For example, air carrier
training on dispatch (flight release and flight following) and crew
resource management (CRM) training that includes dispatch as a resource
may not be appropriate for some operators. Therefore, for a part 142
program, a more extensive review of certain flight procedures is
needed. Areas of training not common to all operators is further
discussed in response to comments about Secs. 142.1 and 142.3.
As discussed below, the following sections, Secs. 121.400, 121.402,
and 121.431, are retained for this final rule.
Subpart N--Training Program
Sec. 121.400 Applicability and terms used. Upon reconsideration of
the ability of air carriers to train aircrews of other air carriers,
the FAA has withdrawn most of this proposed section. However, the FAA
will retain the definition of ``training center'' as proposed but will
modify it to conform to the definition used under Sec. 142.3 as
adopted.
In addition, the FAA received a suggestion to add the term
``requalification training'' to the companion section in part 135
(Sec. 135.321). That term is already in common usage and is defined
along with the terms defined in this section in FAA Order 8400.10,
``The Air Transportation Operations Inspector's Handbook.'' Because
requalification training is and will be accomplished in whole or in
part by simulation, the FAA agrees that it should be defined in
Secs. 135.321 and 121.400. Accordingly, a definition of requalification
training is added as paragraph (b)(7) of this section. The FAA further
determined that it would be preferable to place the proposed
definitions of ``facility'' and ``courseware'' only in part 142.
Therefore, these definitions are deleted from this section.
Sec. 121.402 Training program: Special rules. The FAA proposed in
this section that a part 121 certificate holder may provide training,
testing, and checking services to others by contract. To provide
training, testing, and checking for another part 121 certificate
holder, the certificate holder would have been required to also hold a
part 142 certificate and appropriate training specifications issued
under part 142.
Several commenters said that the section is entirely a description
of functions under part 142 and that it duplicates language in part
142.
The FAA agrees with the commenters that the description of
functions proposed in this section duplicates a description of
functions covered in part 142. Therefore, the FAA has revised this
section in order to eliminate the duplication and to expressly allow
part 121 certificate holders to use part 142 training centers to meet
all or part of its training requirements if the POI approves that
training.
NATCO stated that if each instructor, check airman, and evaluator
can be shown to be qualified to fulfill the responsibilities, then a
prerequisite for 1 year of employment should have no bearing on that
person's effectiveness.
The FAA agrees. As mentioned in the section entitled ``Related
Activity'' there is a separate rulemaking action underway, a final
rule, to amend appendix H of part 121 accordingly.
After re-examination following analysis of comments, the FAA
revised proposed Sec. 121.402(a) to provide that a part 121 certificate
holder may continue to provide training, testing, and checking to
another part 121 certificate holder provided the training meets the
requirements of part 121 and the POI of that receiving certificate
holder approves that training.
The FAA further revised this section to indicate that the only
entity, other than another part 121 certificate holder, that may
provide training to a part 121 certificate holder is a training center
certificated under part 142 of this chapter. This revision will ensure
standardization and increase safety through the use of state-of-the-art
training media that are inherent in training centers.
This section is adopted with the changes discussed.
[[Page 34531]]
Subpart O--Crewmember Qualifications
Sec. 121.431 Applicability. The FAA proposed to amend this section
to permit training centers to provide testing and checking services by
contract or otherwise to persons subject to the requirements of part
121.
Several similar comments were received which stated that the
section would preclude part 121 certificate holders from providing
training to other persons without being certified under part 142.
The FAA agrees that the commenters' analysis is true to the extent
that a part 142 certificate will be required for training, testing, and
checking offered to persons other than aircrew employees of another
part 121 certificate holder.
For the reasons discussed earlier, this proposed section is deleted
with the exception of the provision in paragraph (a)(2) permitting a
part 121 certificate holder to contract with a part 142 certificate
holder for all or part of the training required by part 121. Paragraph
(a)(1) as adopted incorporates changes made to this section on June 14,
1996 (61 FR 30432). The section is adopted as revised.
Part 125
Sec. 125.285 Pilot qualifications: Recent experience. There were
no comments concerning this proposed section. Therefore, it is adopted
as proposed.
Sec. 125.296 Training, testing, and checking conducted by training
centers: Special rules. The FAA proposed this new section to permit a
crewmember to credit the training, testing, and checking received under
part 142 toward the training, testing, and checking required by part
125.
AMR commented that training centers certificated under part 121, as
well as those certificated under part 142, should be allowed to
accomplish training, testing, and checking to satisfy this section.
As discussed earlier, there are no training centers certificated
under part 121.
For the reasons in the general discussion of part 121 this section
is adopted as proposed.
Sec. 125.297 Approval of flight simulators and flight training
devices. There were no comments concerning this proposed section.
Therefore, this section is adopted as proposed.
Part 135
As discussed above in part 121, the FAA received numerous comments
from major airline associations and air carriers that a part 142
certificate should not be required for a part 121 or part 135
certificate holder to continue to provide training to other than its
own employees. These commenters stated that parts 121 and 135 contain
sufficient detail regarding requirements for instructors, evaluators
(check airman), and training program approval and that the FAA does not
need to separately specify those requirements in a new part to 14 CFR
(part 142).
In general, the comments about the several new proposals or
proposed revisions to existing sections of part 135 are very similar to
those made in response to similar proposals in part 121. However, there
were considerably fewer comments. Nevertheless, all comments received
have been carefully reviewed and thoroughly considered.
In response to comments, the FAA has decided to allow a part 135
certificate holder to train the flight crewmembers of another part 135
certificate holder without being certificated under part 142. Like part
121 certificate holders, part 135 certificate holders must obtain a
part 142 certificate in order to train persons who are not aircrew
employees of another part 135 certificate holder.
The FAA agrees that parts 121 and 135 contain sufficient
requirements for training, testing, and checking of aircrews subject to
those parts. For that reason, the proposed revisions involving the
following proposed sections of part 135 have been withdrawn:
Secs. 135.1, 135.292, 135.293, 135.297, 135.299, 135.323, and 135.325.
Upon evaluation of comments received, the FAA has concluded that the
proposed subparts of part 142 that were applicable to air carriers also
were not needed and should be withdrawn. Therefore subparts F, G, H,
and I, of proposed part 142 also have been withdrawn.
The FAA has determined, however, that a part 121 or part 135
certificate holder, without obtaining a part 142 certificate, should
not be allowed to provide training, testing, or checking to persons who
are not aircrew employees of an air carrier certificated under the same
part. Operations conducted by these individuals are not sufficiently
similar to those of certificate holders to warrant such an exception.
An air carrier interested in providing training, testing, or
checking to such persons could modify its training program to suit the
needs of those persons and meet the necessary requirements for a
training program suitable for approval under part 142.
Operating and training environments of other operators are
different from those for air carriers. For example, air carrier
training on dispatch (flight release and flight following) and CRM
training that includes dispatch as a resource may not be appropriate
for some operators. Therefore, for a part 142 program, a more extensive
review of certain flight procedures is needed. Areas of training not
common to all operators is further discussed in response to comments
about Secs. 142.1 and 142.3.
As discussed below, the following sections, Secs. 135.291, 135.321,
and 135.324, are retained for this final rule.
Subpart G--Crewmember Testing Requirements
Sec. 135.291 Applicability. There were no comments about the
proposed amendments to this section. However, the FAA decided to revise
the section editorially slightly to more closely parallel Sec. 121.431,
which concerns the same subject. This section is adopted as revised.
Subpart H--Training
Sec. 135.321 Applicability and terms used. The FAA proposed to
amend this section to make the requirements of subpart H of part 135
applicable to a training center if the training center provides
training, testing, or checking by contract or other arrangement for a
certificate holder subject to the requirements of part 135.
Several commenters remarked that this section should be left as
currently worded.
The FAA has determined that certain terms should be added to better
describe the training, testing, and checking required under this
section.
AMR agreed with the section as proposed and suggested that it be
expanded to include a definition of requalification training, which is
already in common usage and which is defined, along with the terms
defined in this section, in FAA Order 8400.10, ``The Air Transportation
Operations Inspector's Handbook.''
Because requalification training is and will be accomplished in
whole or in part by simulation, the FAA agrees that it should be
addressed in this section. Accordingly, a definition of requalification
training is added to paragraph (b) of this section, and the terms have
been rearranged to accommodate this definition in its logical order. It
should also be noted that the definition of ``training center'' used in
this section is modified in the final as set forth in Sec. 142.3 as
adopted.
The FAA determined that it would be preferable to place the
definitions of ``facility'' and ``courseware'' in part 142.
[[Page 34532]]
Therefore, these definitions are deleted from this section.
With the revisions discussed above, the section is adopted.
Sec. 135.324 Training program: Special rules. The FAA proposed
this new section to permit a part 135 certificate holder to contract
with a training center certificated under part 142 to satisfy the
training program requirements of part 135.
The FAA also proposed in this section to permit a part 135
certificate holder to provide training, testing, and checking to others
by contract. Under the proposal, to provide training, testing, and
checking for another part 135 certificate holder, the certificate
holder would have been required to hold a part 142 certificate and
appropriate training specifications issued under part 142.
Under this final rule, a part 135 certificate holder may continue
to provide training, testing, and checking to another part 135
certificate holder. A part 142 certificate will not be needed. The
proposed section was revised further to indicate that the only entity
other than another part 135 certificate holder that may provide
training, testing, and checking to a part 135 certificate holder is a
training center certificated under part 142.
The rationale for these changes may be found by reference to the
general discussion of this part and Sec. 121.402.
Several commenters said that the section is entirely a description
of functions under part 142 and that it duplicates language in part
142.
The FAA agrees with the commenters that this subject is covered in
part 142. However, the FAA considers it necessary to include provisions
in this section expressly allowing a part 135 certificate holder to
contract with a part 142 training center, if the part 135 certificate
holder desires to use a part 142 training center for all or part of its
training. This training meets the requirements of part 135 and the POI
approves that training.
This section is adopted with the changes discussed.
Part 141
Sec. 141.26 Training Agreements.
No comments were received concerning this section, and it is
adopted as proposed.
Broward Community College, Northwest Accelerated Ground School, and
an individual made general comments that pilot schools will be placed
at a disadvantage, apparently from not being able to take advantage of
the capabilities of flight simulators.
The FAA's response to these comments may be found by reference to
the discussion under Secs. 61.65 and 61.109.
Part 142
As discussed above under parts 121 and 135, the FAA received
numerous comments that a part 142 certificate should not be required
for a part 121 or part 135 certificate holder to continue to provide
training to other than its own employees.
After a review of comments received, the FAA has determined that
part 121 and part 135 are adequate for air carrier training programs
and the qualification and training of persons who present those
training programs. For this reason, proposed subparts F, G, H, and I of
part 142 that govern air carrier training, testing, or checking have
been withdrawn.
As explained in the discussion of parts 121 and 135 above, however,
the FAA has determined that a part 121 or part 135 certificate holder,
without obtaining a part 142 certificate, should not be allowed to
provide training, testing, or checking to persons who are not aircrew
employees of an air carrier certificated under the same part.
A number of commenters also noted that the provisions regarding
drug testing appear to be duplicative of requirements adopted since the
publication of the NPRM, primarily in FAA's anti-drug rule, part 121,
appendix I. The FAA concurs with these commenters.
Under part 121, appendix I, individuals who provide flight
instruction, including simulator training, either directly or by
contract for specified aviation employers, must be subject to an FAA-
approved anti-drug program that includes all elements of proposed
Secs. 142. 21, 142.23, and 142.25. Similarly, these individuals must be
subject to an alcohol misuse prevention program, including alcohol
testing, under regulations published in 1994, found primarily at part
121, appendix J. The FAA has determined that these regulations
adequately cover those individuals performing safety-sensitive
functions. Therefore, proposed Secs. 142.21, 142.23, and 142.25, and as
discussed above part 121, appendix I, have not been adopted.
The FAA proposed Sec. 142.11 entitled ``Training center ratings.''
This proposed section would have required that, in addition to a
training center certificate, a training center certificate holder would
have had to obtain a rating to conduct each curriculum. The FAA has
determined that ratings will not be necessary, since the subject matter
that would have been addressed by ratings will be covered by training
specifications. Accordingly, this proposed section has not been adopted
as ``Training center ratings.'' It has been adopted as ``Application
for issuance or amendment.''
The FAA also proposed Sec. 142.51, entitled ``Qualifications to
instruct in a flight simulator or a flight training device.'' Because
the FAA simplified and consolidated instructor eligibility requirements
into Sec. 142.47 as adopted, Sec. 142.51 is no longer needed and has
not been adopted.
Lastly, in this final rule, all references to ``training center
certificate holder'' have been replaced with ``certificate holder''
because the meaning is clear within the context of part 142.
Subpart A--General
This general subpart, subpart A, contains the requirements
necessary to obtain and maintain certification as a part 142 training
center.
Sec. 142.1 Applicability. This section, as proposed, specified the
entities that would have to be certificated under part 142 to provide
training, testing, and checking of flight crewmembers.
Boeing commented that the FAA should permit training centers
operating under exemption and other means to be granted a
``grandfather'' certificate immediately. Other commenters were of the
same opinion.
The FAA has allowed a 2-year period in order to accommodate
applications for certification. Different training entities in
operation now are structured to meet different regulatory standards.
The time allowed for certification will permit current training
entities to design training programs to meet part 142 standards. The
FAA has determined that existing training programs approved for air
carrier certificate holders and exemption holders should require only
minor amendments to receive approval under part 142.
Accordingly, this proposed section has been revised by adding
paragraphs (b)(4) and (5) to indicate that part 121 certificate holders
may continue to train the flight crews of other part 121 certificate
holders and that part 135 certificate holders may continue to train the
flight crews of other part 135 certificate holders without obtaining a
part 142 certificate.
A new paragraph (c) has been added to make it clear that training,
testing, and checking in flight simulators or advanced flight training
devices may only be conducted in accordance with part 142 certificate
and training specifications. Exceptions are listed in paragraph (b).
This section is adopted with the changes discussed above.
[[Page 34533]]
Sec. 142.3 Definitions. This section proposed terms applicable to
part 142.
AIA commented that this section would not allow airplane
manufacturers the flexibility they enjoy today to revise training
programs to accommodate customer-unique training needs.
The FAA believes that the definition of ``specialty training'' can
accommodate any customer need, and was designed specifically to allow
for subjects that are not generic.
ATA and several part 121 certificate holders commented that the
definition of ``core curriculum'' is ambiguous and at odds with an air
carrier POI's authority for approval of all components of an air
carrier training program.
In this final rule, the FAA has more clearly and completely defined
``core curriculum.'' The NPRM incorrectly referred to a ``core training
program.'' The definitions contained in this final rule now make a
clear distinction between ``training program'' and ``core curriculum.''
The FAA reiterates in this final rule that the POI is responsible for
approving all training for the air carrier to which the POI is
assigned.
ATA and others suggested that the term ``Line Oriented Flight
Training'' (LOFT) be changed to ``Line Operational Simulation'' (LOS)
to better accommodate special operational training.
The FAA agrees. The term ``LOFT'' has been retitled as LOS, which
is defined in Sec. 142.3. LOFT was consistent with the term in appendix
H of part 121, but LOS and the new terms included in its definition are
more descriptive and comprehensive, and they appear in certain AC's,
particularly AC 120-35, ``Line Operational Simulations; Line Oriented
Flight Training, Special Purpose Orientation Training, Line Operational
Evaluation,'' as amended.
Boeing and AIA commented that an evaluator need not be a pilot to
certify certain training, such as ground training.
The FAA agrees with Boeing and AIA; however, such a restriction was
not proposed. Under proposed Sec. 142.55, a training center would have
the flexibility to use someone without an airman's certificate to be an
evaluator.
Airbus commented that the definition of ``evaluator'' is ``too
restrictive, narrow in scope, and inconsistent with the definition of
evaluator contained in SFAR 58.''
The FAA believes that the definition of ``evaluator'' now in this
section is sufficiently broad to provide training centers with maximum
flexibility for scheduling and personnel assignments. However, the
proposed definition of ``evaluator'' has been reworded to make it clear
that an evaluator may perform tests for authorizations and proficiency
checks, when the evaluator is qualified under the applicable
operational part, as well as for the test for certification and added
ratings. While the definition of ``evaluator'' under part 142 is
somewhat different than the definition of that term under SFAR 58, the
FAA did not attempt to reconcile the definition with SFAR 58. Although
different, the definition for ``evaluator'' contained in each of these
parts adequately addresses the functions performed in these parts.
Boeing also commented that the proposed definition of ``specialty
training'' could imply that FAA approval is required for training that
is not required by any part of 14 CFR. Several other persons made
similar comments in reference to other sections.
The FAA agrees with the commenters. The definition of ``specialty
training'' has been reworded to exclude training not designed to
satisfy the requirements for any FAA certificate, rating,
authorization, test, review, check, or qualification.
Boeing and AIA also requested that the term ``instructor'' be
defined throughout proposed part 142. They stated that airplane
manufacturers and other training organizations use instructors for
airplane, full-flight simulator, fixed-base simulator, and airplane
systems training. They believe that it would be unreasonable and
unnecessary to require a certificate to perform instructor duties other
than for airplane and full-flight simulator flight instruction.
The FAA did not propose to require an instructor certificate for
persons who would be employed by training centers to instruct in flight
simulators or flight training devices. Further, since the publication
of the NPRM, and in response to a petition from the public to amend
existing exemptions, the FAA has allowed persons to qualify as
simulator-only instructors without holding an instructor certificate,
if those persons meet certain alternative qualifications. The FAA has
determined that it is appropriate to include those alternative
qualifications in this final rule. (See also the discussion below under
Sec. 142.47.)
With the changes discussed, this section is adopted as proposed.
Sec. 142.5 Certificate and training specifications required. This
section proposed that no person may operate a training center without a
training center certificate and training specifications, as described
in part 142. Paragraph (b) further proposed that a training center
certificate applicant would be issued a training center certificate and
training specifications if the applicant complied with the applicable
sections of part 142.
In the only comment received, AIA commented that a training center
certificate should be optional if a training center is now operating
under existing rules.
Prior to this amendment, there have been no training centers
defined and regulated by 14 CFR. Training under previous rules is
addressed in the initial discussion of part 142 above.
For the reasons discussed in the previous section, this section is
adopted as proposed except for deleting a reference to Sec. 142.77.
Sec. 142.7 Duration of a certificate. This section, as proposed,
provided that a training center certificate would have no expiration
date, but that it could be suspended, revoked, or otherwise terminated
by the Administrator. Further, under paragraph (b) of this section, a
certificate holder would have to return its certificate to the
Administrator if that certificate is suspended, revoked, or terminated.
Jeppesen-Sanderson commented that the provision of no expiration
date for a part 142 certificate should be extended to part 141
certificates as well.
The FAA believes that questions about the administration of part
141 that are not directly connected to training by simulation are best
left to the review of that part. That review is discussed in the
section entitled ``Related Activity.'' Therefore, no changes are made
to this section in response to the comment.
Comments made about proposed Secs. 61.2 (adopted as Sec. 61.3) and
142.20, which concern training centers located outside the United
States, and other initiatives of the FAA, caused the FAA to change this
section as it applies to training centers located outside the United
States. Under this final rule, training centers located outside the
United States will be issued a certificate which will expire annually.
This revision is more thoroughly discussed under proposed Sec. 142.20
(adopted as Sec. 142.19).
This proposed section is adopted with the changes discussed.
Sec. 142.9 Deviations or waivers. This section proposed deviation
and waiver procedures for a training center certificate holder or an
applicant for a training center certificate.
Only one comment was received concerning this section. Professional
Instrument Courses, Inc., stated that it does all its training by
traveling to different airports around the country and that it uses an
``apparent'' flight training device instead of a flight simulator. It
asked if the intent of the section entitled ``Deviations and
[[Page 34534]]
waivers,'' is to allow affected companies to operate without facilities
and without at least one flight simulator.
It was not the intent of this section to allow operation without
facilities and at least one flight simulator or advanced flight
training device. It was the intent to allow for unforeseen
circumstances that may arise that may warrant a deviation or a waiver,
as they have in the past with other rules. The scenario described by
the commenter was not unforeseen and is specifically addressed by
Secs. 142.17 and 142.20 (adopted as Sec. 142.19).
Accordingly, the section is adopted as proposed.
Sec. 142.11 (withdrawn) Training center ratings.
Sec. 142.13 (adopted as Sec. 142.11) Application for issuance or
amendment. Paragraph (a) of this section proposed that an application
for a training center certificate be made on a form and in a manner
prescribed by the Administrator. Proposed paragraph (a)(3) provides
timeframes for processing applications.
In response to the requirement to submit an application to the FSDO
with jurisdiction over the area in which the applicant's business
office is located, Boeing asked if it would no longer be acceptable for
it to file an application with the FAA Aircraft Evaluation Group (AEG)
for part 121 training.
The FAA has determined that review and preliminary approval of
certificate applications and training programs is more within the
charter of FSDO's than AEG's. Accordingly, under this final rule, an
application for certification under part 142 must be filed with the
FSDO having jurisdiction over the area in which the applicant's
training center is located.
Paragraph (b), as proposed, would require that each certificate
application provide information about, but not limited to, each
management position, facility, record, and curriculum of the training
center. Paragraph (b)(1) proposed:
(b) Each application for a training center certificate and
training specification shall provide--
(1) A statement showing that the minimum qualification
requirements for each management position are met or exceeded.
Several commenters stated that proposed paragraph (b)(1) is
redundant with proposed Sec. 142.15.
The proposals were different in that proposed paragraph (b)(1)
would require a statement that would have to accompany a certificate
application, while proposed Sec. 142.15 would require qualification of
management personnel and a statement about adequate numbers of those
persons.
In the final rule, however, paragraph (b)(1) has been reworded
slightly in the interest of brevity and clarity.
Paragraph (b)(6) proposed:
(b) Each application for a training center certificate and
training specification shall provide--
* * * * *
(6) A description of the applicant's training facilities,
equipment, qualifications of personnel to be used, and proposed
evaluation plans;
While no comments were received concerning evaluation plans, the
FAA has decided to remove the reference to ``evaluation plans'' in
order to simplify the application process and the quality control
procedures to be used by the certificate holder. Separate evaluation
plans would be largely redundant with features of a quality control
system.
Paragraph (b)(7) proposed the following:
(b) Each application for a training center certificate and
training specification shall provide--
* * * * *
(7) A training program, including curriculum, syllabi, outlines,
courseware, procedures, and documentation to support the items
required in subpart B or subpart F of this part, upon request by the
Administrator.
FSI commented that paragraph (b)(7) should be reworded to prevent
the FAA from being inundated by materials accompanying an application
for certificate. Boeing and Airbus made similar comments.
As suggested by commenters, the FAA has reworded paragraph (b)(7)
to require submission of specified material only upon request of the
Administrator.
Airbus commented that the text of Sec. 142.13(b)(7) should be
changed to improve clarity and to be consistent with FAA Order 8400.10,
VOL 3, Ch 2, Sec 1. It states that the words ``syllabus'' and
``syllabi'' have unclear definitions in the context of crewmember
training programs and were, for that reason, not used in the 8400.10
definitions.
To promote clarity, the FAA has revised several terms pertaining to
training programs. The revised terms are, to the extent possible,
consistent with the definitions contained in the order that the
commenter cites. The term syllabus, however, is retained. The FAA
believes that the generic definition of that word adds clarity to the
training program requirements.
Paragraph (b)(10) proposed the following:
(b) Each application for a training center certificate and
training specification shall provide--
* * * * *
(10) A method of demonstrating the applicant's qualification and
ability to provide training for a certificate or rating in fewer
than the minimum hours prescribed in part 61 of this chapter if the
applicant proposes to do so.
Boeing and AIA commented that paragraph (b)(10) should be made
consistent with SFAR 58.
The FAA believes that this paragraph is consistent with SFAR 58.
This paragraph refers to Sec. 61.109 and other sections of part 61 that
specify minimum hours of aeronautical experience that a part 142
certificate holder may wish to reduce further in non-traditional
courses other than AQP.
United commented that ``to require United, or any other (part) 121
certificate holder similarly situated, to duplicate all of its
facilities, equipment, courseware and personnel in order to continue
training by contract or other arrangement and then have the FAA inspect
and approve the requirements...'' is not conserving resources.
The FAA did not intend to require duplication of facilities and
equipment. The buildings, classrooms, flight training equipment, and
instructors may be the same that are used in pursuit of normal business
in accordance with a part 121 or part 135 certificate. Some training
programs offered to persons other than aircrew employees of another air
carrier may be essentially the same as programs now in use. With minor
modification, training programs can be presented under a part 142
certificate to persons other than air carrier certificate holder
employees. ATA and several part 121 certificate holders had concerns
similar to United in their comments to proposed Sec. 142.17. The FAA
addresses their comments in the discussion below under proposed
Sec. 142.17.
Paragraph (c) proposed that facilities actually be in place at the
time of application, and not simply planned or expected.
Several commenters stated that this would be an unduly burdensome
expenditure for equipment too far in advance of its use, especially for
new entrants into the training industry.
The FAA agrees that facilities need not already be in place at the
time of application. This paragraph has been reworded to require that
facilities and equipment be available for inspection and evaluation
prior to approval. This will preclude expenditure of FAA resources on
frivolous or tentative plans that may never come to fruition due to
[[Page 34535]]
changed business plans. It will permit the FAA to evaluate actual
facilities rather than those that are merely planned and subject to
later change. The FAA believes that such measures are necessary in
order to conserve public resources and in order to maintain the highest
standard of facilities in training centers. Paragraph (d)(2) proposed:
(d) An applicant who meets the requirements of this part and is
approved by the Administrator is entitled to--
* * * * *
(2) Training specifications, issued by the Administrator to the
training center certificate holder, containing--
(i) The type of training authorized, including--
(A) Training center ratings; and
(B) Approved courses;
(ii) The category and class of aircraft that may be used for
training;
(iii) Registration numbers and types of aircraft that are--
(A) Subject to an airworthiness maintenance program required by
parts 91, 121, 125, 135, or any other parts of this chapter; and
(B) Suitable for the type of training, testing, or checking
being conducted;
(iv) For each flight simulator or flight training device, the
make, model, and series of airplane or the set of airplanes being
simulated and the qualification level assigned, or the make, model,
and series of rotorcraft, or set of rotorcraft being simulated and
the qualification level assigned;
(v) For each flight simulator and flight training device subject
to qualification evaluation by the National Simulator Program
Manager, the serial number assigned by the manufacturer;
(vi) The name and address of all satellite training centers, and
the approved courses offered at each satellite training center;
(vii) Authorized deviations or waivers from this part; and
(viii) Any other items the Administrator may require or allow.
Several air carrier operators, commenting on proposed paragraph
(d)(2), stated that training specifications would not be convenient,
and that courses approved under parts 121, 135, or 142 would provide
all the course specification that is required.
Based on prior experience, the FAA believes that many
administrative matters not concerning course specification have been
accommodated very well by the use of operations specifications for air
carrier operators. This is a new concept for training entities, but
experience with similar operating specifications issued to air carrier
certificate holders has shown that the procedure will allow maximum
administrative convenience. Especially in light of the removal of the
proposed requirement for ratings for training centers, the FAA
concludes that providing for training specifications is
administratively wise. As stated previously in this preamble, a part
142 certificate (and attendant training specifications) will not be
required for part 121 certificate holders to train other part 121
certificate holders or for part 135 certificate holders to train other
part 135 certificate holders. Therefore, training specifications will
be applicable to air carrier certificate holders only if those
certificate holders choose to apply for a part 142 certificate.
For the reasons stated, Sec. 142.13(d)(2) is adopted as proposed
and renumbered as Sec. 142.11(d)(2).
FSI commented that proposed paragraph (d)(2)(iii) would preclude
short-notice change of aircraft and the use of customer-owned aircraft
unless there is a 1-day change notification procedure. Airbus made
similar comments about aircraft to be used by aircraft manufacturer
training centers.
The FAA agrees that the proposal may be too restrictive on certain
potential training centers, including aircraft manufacturer training
centers, which might offer training in aircraft rather than in a flight
simulator or flight training device. Therefore, proposed paragraph
(d)(2)(iii) has been deleted. Proposed paragraphs (d)(2)(iv) through
(d)(2)(viii) have been redesignated as (d)(2)(iii) through (d)(2)(vii).
Regarding proposed paragraph (d)(2)(vi), Boeing commented that the
proposed requirement to list the name, address, and courses approved
for each satellite training center would preclude ``offload training.''
The FAA does not agree that these proposed requirements would
preclude the training to which Boeing referred. The proposal does not
prevent training at sites other than the training center location or
satellite training center location, as long as a training center or
satellite training center of the certificate holder complies with the
certification requirements of part 142. Therefore paragraph (d)(2)(vi)
is adopted as proposed; however, since proposed paragraph (d)(2)(iii)
has been deleted, proposed paragraph (d)(2)(vi) is adopted as paragraph
(d)(2)(v).
The FAA has decided that effective reference to and tracking of
simulation equipment requires the use of FAA-assigned identification
numbers for that equipment instead of serial numbers assigned by the
manufacturer of such equipment. Accordingly, proposed paragraph
(d)(2)(v) has been reworded to reflect this requirement and is adopted
as paragraph (d)(2)(iv).
Paragraph (e) proposed the following:
(e) The Administrator may deny, suspend, revoke, or terminate a
certificate under this part if the Administrator finds that--
(1) Any certificate the Administrator previously issued to the
applicant for, or holder of, a training center certificate, was
revoked, suspended, or terminated within the previous 5 years;
(2) An applicant for, or holder of, a training center
certificate employs or proposes to employ a person who--
(i) Was previously employed in a management or supervisory
position;
(ii) Exercised control over any certificate holder whose
certificate has been revoked, suspended, or terminated within the
last 5 years; and
(iii) Contributed materially to the revocation, suspension, or
termination of that certificate and who will be employed in a
management or supervisory position, or who will be in control of or
have a substantial ownership interest in the training center.
STI commented that proposed paragraph (e)(2)(i) should be modified
to specifically state that the management or supervisory person
formerly worked in a management or supervisory position for a
certificate holder whose certificate had been revoked, suspended, or
terminated within the previous 5 years. FSI also suggested that
proposed (e)(2)(i) be linked with subparagraph (e)(2)(ii) with an
``and'' at the end of (e)(2)(i).
The construction of proposed paragraph (e) means that the
conditions of (e)(2)(i), (e)(2)(ii), and (e)(2)(iii) all apply to
persons that a training center employs or proposes to employ. These
three paragraphs are linked together by the semicolons and the ``and''
following (e)(2)(ii). It is not necessary to repeat the ``and'' after
(e)(2)(i). To correct an editorial error in the proposal, the FAA has
inserted the word ``or'' to appropriately separate paragraphs (e)(1)
and (e)(2).
This section is renumbered as Sec. 142.11 and adopted with the
several changes discussed.
Sec. 142.15 (adopted as Sec. 142.13) Management and personnel
requirements. The FAA proposed in this section that a training center
must show that it has and maintains a sufficient number of qualified
instructors, evaluators, and management personnel competent to perform
required duties.
Only one comment was received concerning this section. That comment
stated that this section was unnecessary and should be deleted.
The FAA has determined that the proposal referred to above is
necessary to ensure that a training center can operate in compliance
with the certification provisions contained in proposed part 142. The
FAA needs this information, along with the other information required
by this part, to
[[Page 34536]]
approve applications for certification under part 142. Therefore, this
section is renumbered as Sec. 142.13 and adopted as proposed.
Sec. 142.17 (adopted as Sec. 142.15) Facilities. In this section,
the FAA proposed the following in paragraph (b):
(b) An applicant for, or holder of, a training center
certificate shall establish and maintain a principal business office
that--
(1) Has a mailing address in the name shown on its training
center certificate application, or training center certificate,
after it is issued; and
(2) Has facilities adequate to maintain the records required by
this part.
(3) Is not shared with another certificate holder; however,
automated recordkeeping systems approved by the Administrator may be
shared by more than one training center or certificate holder.
This paragraph would require a training center to establish and
maintain a principal business office that could not be shared with a
part 121, 135, 141, or 142 certificate holder. The intent of this
paragraph was to ensure that the principal business office of a
training center is located at a permanent physical location with the
characteristics of an ordinary business office. It was intended to
preclude the use of transient locations with inadequate facilities for
properly maintaining records.
The FAA proposed this paragraph to preclude certain difficulties
with commingled records or with changing standards for some students of
training entities offering training under more than one part of 14 CFR.
Commingling is considered undesirable because different standards apply
to entities certificated under the several 14 CFR parts. However, upon
reconsideration, the FAA does not believe that proposed paragraph
(b)(3) is necessary because the FAA can prevent the commingling of
records by better guidance on recordkeeping requirements and special
emphasis on surveillance and inspection of that recordkeeping.
Therefore, the proposed restriction has been deleted.
Paragraph (b)(2) of Sec. 142.17 proposed that records required by
part 142 must be kept at a principal business office. This proposed
requirement was to permit the FAA to locate and periodically review
records in order to determine compliance with part 142 standards.
AMR commented that the recordkeeping location requirement in
proposed paragraph (b)(2) would work only where the principal business
office and the training facility are co-located, and in no case would
it be workable for a satellite training center.
The FAA has considered AMR's comment and has revised proposed
paragraph (b) accordingly to provide that records may be kept where
training or testing takes place.
Under the NPRM, training centers certificated under part 142 would
be permitted to provide ground instruction as well as training in
flight simulators, flight training devices, and aircraft; however, in
order to be certificated under part 142 paragraph (d) proposed that a
training center applicant, in effect, would be required to ``have
exclusive use of'' at least one FAA-approved flight simulator.
Several comments had to do with sharing of training facilities or
flight simulators by several arrangements between the sharing parties.
FSI, several part 121 certificate holders, and the Regional Airline
Association (RAA), commenting on proposed paragraph (d) stated, that
the proposed requirement to have ``exclusive use of'' at least one
flight simulator would preclude ``dry leasing'' of flight simulator
time.
For the purposes of this section, the FAA intended that the term
``exclusive use'' include ``dry leasing.'' The FAA recognizes that
``dry leasing'' is a normal practice in the industry, and that its
continuation is essential to the industry for at least the foreseeable
future. However, for clarity, the wording of this provision has been
revised to require that the training center have the flight training
equipment ``available exclusively'' for adequate periods of time. This
is to distinguish the requirements of this section from other
``exclusive use'' requirements of other regulations, which may not
include ``dry leasing.'' It should be noted that the FAA did not
propose to prohibit sharing of flight training equipment. In fact, the
FAA anticipated that such sharing would be likely. Therefore, the FAA
has revised proposed paragraph (d) by adding the words ``available
exclusively for adequate periods of time.''
A few commenters, also commenting on proposed paragraph (d),
recommended that the proposal to have readily available at least one
flight simulator as a prerequisite to apply for a part 142 certificate
be clarified in the rule language. Gateway Technical College commented
that institutions such as theirs are unable to afford to own or lease a
flight simulator, but that they are able to provide a needed service by
use of flight training devices only. Gateway and Broward Community
College suggest that the FAA allow a ``low-end part 142 school'' or a
limited part 142 certificate.
The FAA believes that flight training in aircraft and in flight
training devices is adequately covered by part 141 pilot schools and
that the primary emphasis of part 142 training centers will be training
with flight simulators. However, the FAA believes that essentially
equivalent training can be accomplished by use of advanced flight
training devices that represent a specific aircraft in cockpit
configuration, function, and flight handling characteristics when those
flight training devices are supplemented with training in the same type
aircraft. Advanced flight training devices with those characteristics
are currently qualified by the FAA as Level 6 and Level 7 flight
training devices. Therefore, proposed paragraph (d) has been reworded
to permit an applicant to obtain a part 142 certificate if it has an
advanced flight training device.
In an apparent comment to proposed Sec. 142.17 (d), ATA and several
part 121 certificate holders commented that this section would
``require a part 121 certificate holder...to purchase duplicate
simulators, CBT stations, training aids, and other training devices for
use in the part 142 school even if its part 121 devices are not 100%
utilized and (are) available for contract training.''
As also discussed above under proposed Sec. 142.13 in response to a
comment from United, the FAA did not intend to require duplication of
flight training equipment. The commenters may have interpreted proposed
paragraph (d) to mean that the exclusive use provision of proposed
Sec. 142.17 (d) could require some duplication. The FAA did not intend
for air carriers to needlessly duplicate existing equipment. It only
intended that the training center have exclusive use of the equipment
for the period of time that is needed. As stated above, the FAA has
revised proposed paragraph (d) to state that the facilities must be
available exclusively for adequate periods of time to complete the
required training, testing, or checking. Therefore, the duplication
described by the commenters is not required.
TWA commented that the proposals in this section implied two
different standards for aircraft type ratings - one for part 142
training centers and one for part 121, 135, and 141 certificate
holders.
TWA, and other commenters, also raised this issue in comments to
Sec. 61.63. The FAA disposed of comments on added type ratings in the
section-by-section analysis of Sec. 61.63. In this discussion, the FAA
explains that there are not two different standards for
[[Page 34537]]
airman performance for an added type rating.
This proposed section has been changed as indicated above, has been
renumbered as Sec. 142.15, and is adopted with the changes discussed.
Sec. 142.19 (adopted as Sec. 142.17) Satellite training centers.
This section proposed that training centers would be permitted to
establish satellite training centers.
Boeing and AIA commented that some provision should be made for
training in remote areas.
Although part 142 provides for training centers and satellite
training centers, the FAA does not intend to prevent training at sites
other than the training center location or satellite training center
location. Such training is permissible if the training center or
satellite training center of the certificate holder complies with the
requirements of part 142 relating to that remote training. The FAA will
provide for training at remote sites through the training
specifications.
AMR asked if a satellite training center also would have to have a
flight simulator, its own principal business office, and if the parent
training center's instructors could instruct at both a training center
and at a satellite training center. It stated that there is an
inference that a satellite training center would have to apply for a
certificate, but that proposed Sec. 142.19 would not require a
certificate for a training center. It suggested that only the main
training center hold a certificate.
The FAA agrees. The FAA proposed that only the principal training
center must hold a training center certificate and this proposal has
not been changed in the final rule.
The discussion of this section in the NPRM indicated that a
satellite training center would have to have at least one simulator and
the other facilities required by this part. However, it should be noted
that proposed Sec. 142.17 has been revised in response to comments to
allow a person with an advanced flight training device (i.e., a Level 6
or Level 7 flight training device) to apply for a training center
certificate. Thus, a satellite training center would be permitted to
operate with such a device in lieu of a flight simulator.
A satellite training center need not have separate management
personnel. It does not have to have a separate principal business
office. Instructors and evaluators may work at more than one training
center or satellite training center, provided those persons meet the
requirements of part 142, as required by proposed Sec. 142.19 (a)(2),
which is adopted as Sec. 142.17 (a)(2) in the final rule.
See the discussion of the following section for restrictions on
satellite training centers located outside the United States.
This section is renumbered as Sec. 142.17 and adopted by revising
proposed paragraph (a)(2) to better clarify the location of the
supervisors.
Sec. 142.20 (adopted as Sec. 142.19) Foreign training centers:
Special rules. The FAA proposed, under Sec. 142.20, that a training
center or satellite training center may be located outside the United
States only if it is in a location approved by the Administrator. This
section further proposed that a training center or satellite training
center located outside the United States may issue U.S. pilot
certificates to U.S. citizens only but may add ratings, authorizations,
and endorsements to all pilot certificates issued by the FAA.
Three comments were received concerning this proposed section.
FSI asked what authority the FAA has to approve or deny locations
of tr
FR Doc. 96-16432 Aircraft Flight Simulator Use in Pilot Training, Testing, and Checking and at Training Centers
aining centers outside the United States, since the Departments of
Commerce, Defense, and State have jurisdiction over this matter.
The FAA is withdrawing its proposal to approve the location of
training centers outside the United States. It is sufficient to set the
standards for certification of training centers located inside and
outside of the United States. Therefore, proposed paragraph (a) has
been amended to remove references that the Administrator must approve
the location of training centers outside the United States. Further,
paragraph (a), as adopted, specifically states that certificates for
training centers outside the United States are issued at the discretion
of the Administrator.
AMR commented that this section seems to ignore the possibility of
part 121 and part 135 initial and recurrent checks being conducted at a
foreign training center.
The FAA agrees that those areas need to be specifically addressed.
(See also the Sec. 61.2 (adopted as Sec. 61.3) discussion related to
this matter.) A new paragraph (c) has been added to this section to
make explicit the authority of foreign training centers to conduct
proficiency checks, pilot reviews, recency of experience requirements,
SIC qualifications, and other training subject to approval of the
Administrator.
AIA commented that this section seems to imply that all foreign
training centers must be approved by the FAA.
As indicated above in response to FSI's comment regarding approval
of the location of training centers, the FAA has amended proposed
paragraph (a).
In paragraph (b), the FAA proposed that a training center or
satellite training center located outside the United States may issue
U.S. pilot certificates to U.S. citizens only but may add ratings,
authorizations, and endorsements to all pilot certificates issued by
the FAA when approved to do so.
Proposed paragraph (b) is revised in this final rule to remove the
reference to satellite training centers located outside the United
States.
The FAA has made editorial changes to this section to make it clear
that a training center may prepare and recommend applicants for
certificates and ratings, but may not actually issue a certificate or
rating without authorization to issue a specific kind of certificate or
rating.
Also, the FAA proposed, in Sec. 142.7, a permanent certificate. The
certificate could have been suspended or terminated, but would not
require renewal. The objective of this proposal was to simplify
paperwork and reduce the workload for the FAA and applicants. However,
the FAA has determined that there is a need to provide for periodic
renewal of a certificate for those training centers outside the United
States in order to ensure adequate safety oversight. Other air agencies
outside the United States, such as repair stations certificated under
part 145, have annual renewal requirements.
This section is renumbered as Sec. 142.19 and adopted with the
changes discussed.
Sec. 142.21 Prohibited drugs. Reserved. See the discussion above
entitled ``Part 142.''
Sec. 142.23 Testing for prohibited drugs. Reserved. See the
discussion above entitled ``Part 142.''
Sec. 142.25 Refusal to submit to a drug test. Reserved. See the
discussion above entitled ``Part 142.''
Sec. 142.27 Display of certificate. No comments were received
concerning this proposed section. Therefore, it is adopted as proposed.
Sec. 142.29 Inspections. This proposed section would require
training centers to permit inspections by the FAA at reasonable times
and places.
AMR made some suggestions for essentially editorial changes.
This section was adopted as proposed, with the small editorial
changes suggested by the commenter.
Sec. 142.31 Advertising limitations. This section proposed to
restrict training center advertising to that training that has been
approved by the Administrator.
[[Page 34538]]
Boeing and AIA commented that the proposal would restrict it from
offering non-FAA approved training to non-U.S. customers. Several air
carrier certificate holders commented that the proposal would preclude
the conduct of training not under the jurisdiction of the
Administrator, such as training for foreign corporations that would
meet the requirements of that foreign country. Others commented that
some training centers might want to offer training in ancillary
subjects that are not required by any part of 14 CFR. Commenters
offered first aid, maintenance technician procedures, and meteorology
as examples.
The FAA agrees that the proposed advertising limitations should be
reworded to provide for circumstances such as those described by the
commenters. Therefore proposed paragraph (a) has been revised to
indicate that this section applies to training that is designed to
satisfy any requirement of 14 CFR. Any training offered by a training
center that goes in whole or in part to satisfying a requirement of 14
CFR must be approved. Training for other purposes need not be approved.
Training that is not specifically approved by the FAA may not be
advertised as FAA approved.
Andrews University asked whether this section would preclude a part
142 training center from operating under part 61. It suggested that
training centers should be allowed to operate under part 61.
Part 61 is not considered an ``operating'' part of 14 CFR. Training
centers certificated under part 142 will train to meet the requirements
of part 61, among other parts. A training program or curriculum
approved for presentation under part 142 may not be presented to meet
the requirements of part 61 without a part 142 training center
certificate.
This section is adopted as revised.
Sec. 142.33 Training agreements. No comments were received
concerning this proposed section. Therefore, it is adopted as proposed.
Subpart B--Aircrew Curriculum and Syllabus Requirements
Sec. 142.35 Applicability. This section specifies that the
training programs described by this subpart apply to that segment of
aviation frequently called ``general aviation'' that operates under
part 91, and that is not required by regulation to have a training
program.
Airbus commented that this subpart is not applicable to training
provided ``by part 25 aircraft manufacturer's training centers to its
employees, U.S. certificated employees of the aircraft manufacturer,
and FAA air carrier inspectors.''
This subpart applies to all training center activity except that
provided by a part 121 certificate holder to another part 121
certificate holder or by a part 135 certificate holder to another part
135 certificate holder, unless the certificate holder providing such
training chooses to become a part 142 certificate holder.
This section is adopted as proposed.
Sec. 142.37 Approval of flight aircrew training program.
The FAA proposed, in proposed paragraph (c)(1), that training
programs submitted for approval specify which courses are part of a
specialty training curriculum. Core curricula and specialty curricula
are defined in Sec. 142.3.
Proposed paragraphs (c)(2) and (3) require applicants, when filing
an application for training program approval, to indicate which
requirements the training program curriculum will satisfy and which
requirements the training program curriculum will not satisfy.
AMR commented that the proposed provision of Sec. 142.37 (c)(1)
needs clarification. In simplest terms, it states, not every course
must be designed to accomplish all the learning objectives required for
every practical test.
ATA and several part 121 certificate holders commented that
proposed paragraph (c)(1) does not make clear what constitutes an
approved training program. They cite the detail of Sec. 121.424 and
appendix H of part 121 as examples of training program detail for the
ATP certificate and airplane type rating. They state that it appears
that an approved training program for a particular certificate or
rating would consist of the maneuvers, procedures, and exercises
required for the certification practical test.
The FAA agrees with the commenters about training to meet the
requirements of the PTS. The areas of aeronautical knowledge for each
certificate and rating are listed in the applicable section of part 61.
The PTS lists the tasks, conditions, and standards of performance for
all certificates and ratings. Currently, the PTS, inspector's
handbooks, appendix A of part 61, and appendices E, F, and G of part
121 list maneuvers and procedures for a curriculum for only the ATP
certificate and airplane type rating. Guidance on the content, style,
and length of all written tests is in other documents. Other
considerations to include in a training program are listed in
handbooks, advisory circulars, and in other FAA publications. Section
142.37(d) outlines the general requirements for a training program. It
is not necessary and not practical to put all details in 14 CFR.
FSI commented that, since paragraph (c)(2) requires an applicant
for each curriculum approval to indicate which requirements of part 61
would be satisfied, the requirement in paragraph (c)(3) is redundant.
The FAA believes that both paragraphs are needed to help ensure
that no requirement goes unaddressed by oversight or by assuming that
the requirement will be met in some other way.
In a general comment to this section, ATA and other commenters
stated that they ``would strongly object to any attempt by the FAA to
impose additional requirements or restrictions not related to training
as a condition of (approval of a training program).'' They state that
they would object on the grounds that the public was not given an
opportunity to comment on requirements imposed administratively.
The commenters did not provide information on their specific
concerns; however, the FAA agrees in general that additional
requirements unrelated to training should not be imposed without
opportunity for public comment.
This section was amended by making minor editorial changes and by
adding a new paragraph (b) and rearranging other proposed paragraphs.
The FAA determined that a new paragraph (b) is needed to make clear
that curricula approved under SFAR 58 are approved without modification
for use in this part.
The section is adopted as revised.
Sec. 142.39 Training program curriculum requirements. This section
proposed that each training program curriculum submitted for approval
would have to contain a syllabus, minimum flight training equipment
requirements, and minimum instructor and evaluator qualifications for
each proposed curriculum. However, for AQP, the FAA proposed that
approval of a curriculum under SFAR 58 would, for an applicant,
constitute complete approval of that curriculum for use by a training
center certificated under part 142, since the AQP application contains
curriculum criteria at least as detailed as the part 142 curriculum
requirements set forth in Sec. 142.39.
Airbus commented that the section should be restructured to provide
for initial and final approval of training program curricula.
Different stages of initial and final approval are specifically not
a feature of part 142. After determining that a proposed training
program meets all applicable requirements, the
[[Page 34539]]
Administrator will approve the training program. If approval of a
training program curriculum proves to have been inappropriate, the
Administrator may use the authority of Secs. 142.7 or 142.13(e) to
suspend or revoke a certificate. The intention is to simplify the
application and approval process. For the reason stated, this section
is not revised to include a provision for initial and final approval
stages.
Paragraphs (c) and (d) of this section proposed that each
curriculum submitted for approval must include:
(c) Minimum instructor and evaluator qualifications for each
proposed curriculum;
(d) A curriculum for initial training and continuing training of
each instructor or evaluator employed to instruct in a proposed
curriculum.
United commented that paragraphs (c) and (d) are not required and
are overly burdensome for part 121 certificate holders.
The FAA believes that these paragraphs are necessary controls, and
that presenting the instructor and evaluator qualifications to the FAA
at the time of application for a part 142 certificate and changes to
its curriculums would cause almost no additional burden to a part 121
certificate holder. It is even likely that existing documentation for
these positions could be used in its existing format. The FAA has
determined that these paragraphs should be adopted to ensure that
instructors meet, and maintain, the skills considered essential for
properly instructing their students.
Paragraph (e) proposed:
(e) For each training program that provides for the issuance of
a certificate or rating in fewer than the minimum hours prescribed
by part 61 of this chapter for training, testing, and checking
conducted under part 142 of this chapter--
(1) A means of demonstrating the ability to reduce the minimum
hours prescribed in part 61 of this chapter for training, testing,
and checking conducted under part 142 of this chapter; and
(2) A means of tracking student performance.
Boeing and AIA commented that proposed paragraphs (e)(1) and (2) do
not allow credit for previous experience in similar aircraft ``per AC
120-53.''
Paragraph (e) is directed to those hours which are specified in
part 61, as stated, and has no impact on AC 120-53.
ATA and several part 121 certificate holders commented that the
tracking required in proposed paragraph (e)(2) would be a costly and
near-impossible task, that data would be sparse, and would not
necessarily validate success or failure of the attempted program.
As discussed also in Sec. 61.109, the intention of allowing a
further reduction in the minimum hours of aeronautical experience is to
allow maximum flexibility to a training center to develop, at some
future date, innovative curriculums that might adequately train for a
specific certificate or rating in fewer than the current minimum number
of hours. In order to gain the privilege of further reducing minimum
training hours, a training center will be required to demonstrate that
it can provide proper training in fewer hours. To accomplish this, it
would have to propose a method of tracking graduates and collecting
data to validate training program effectiveness. Data to be tracked to
point to program effectiveness might include incidents, accidents,
hours flown, and type of flying. A training center would have to
present historical data covering at least 1 year (or other period of
time approved by the Administrator) before it could be granted a
reduction in the minimum hours prescribed in this section. Data
covering performance over this period of time is considered necessary
to properly evaluate student performance. Data covering a shorter term
would not be sufficient to allow the FAA to evaluate performance during
varying seasonal conditions.
In a general comment to this section, TWA pointed out that the
requirement for a letter of authorization did not appear in the
proposed rule text.
The FAA did not intend to propose such a requirement. The NPRM
preamble mistakenly stated that proposed paragraph (a)(4) would require
a training center to issue annually a letter of authorization to each
instructor for each course that instructor may teach. The final rule
does not adopt such a requirement.
The FAA has reworded the reference to a curriculum, which appeared
in this proposed section to instead reference a curriculum containing a
syllabus to indicate that a curriculum is implemented by a syllabus.
This editorial change is to maximize standardization with training
program terms already in use and widely accepted.
This section is adopted with the changes discussed.
Subpart C--Personnel and Flight Training Equipment Requirements
This subpart contains instructor and evaluator eligibility
requirements, addresses instructor and evaluator privileges and
limitations, and addresses instructor and evaluator training, testing,
and qualification for training programs approved under subpart B. This
subpart also contains rules governing flight training equipment
requirements.
Sec. 142.45 Applicability. This proposed section sets forth the
personnel and equipment required for training that is to meet the
requirements of part 61.
Airbus commented that this section should be restructured to exempt
employees of the training center, U.S. certificated employees of the
aircraft manufacturer, and FAA inspectors.
The FAA does not agree. The persons cited by the commenter are
required to meet the training and certification requirements of part
61.
AMR commented that the proposal does not make clear whether an
instructor or evaluator would be subject to the proposed requirements
contained in both subpart C and subpart G of this part. It states that
current training center practice is to use instructors to teach pilots
who operate under various parts of 14 CFR.
Because the FAA has decided to delete proposed subpart G, the
commenter's question is academic in this instance. However, an
instructor or evaluator may instruct non-air-carrier customers and air
carrier customers if the instructor or evaluator is otherwise qualified
and designated by the training center to perform both functions.
With editorial changes for clarity and brevity, this section is
adopted as proposed.
Sec. 142.47 Training center instructor eligibility requirements.
To make as many qualified instructors as possible eligible, the FAA
proposed in paragraph (a) of this section that training center
instructors meet only one of the following standards: Hold at least a
commercial pilot certificate with an instrument rating; at the time of
accepting employment, be currently qualified to instruct under part 121
or part 135; or hold a ground instructor certificate with instrument
rating and meet at least the commercial pilot aeronautical experience
requirements.
ATA and several other part 121 certificate holders commented that
the words ``at the time of accepting employment'' in proposed paragraph
(a)(3)(ii) was too restrictive and might preclude the hiring of some
otherwise well-qualified potential instructors.
The FAA agrees with the commenters. Accordingly, this paragraph has
been revised to provide that instructors may qualify for designation by
training centers within 2 years of having been qualified and current to
instruct for a part 121 or part 135 certificate holder in the type
airplane in which the instructor
[[Page 34540]]
is to be designated by the training center.
ATA and others also commented that ATP certificate holders should
be able to instruct others without holding any other certificate.
The FAA does not believe that the holder of an ATP certificate
should be permitted to instruct persons by virtue of holding the ATP
certificate, except in air transportation service as authorized by
Sec. 61.169 of this chapter. The authority of Sec. 61.169 does not
extend to instructing other airmen to qualify for the ATP certificate
or instructing other holders of an ATP certificate for added ratings,
except within the narrow and specific instance of instructing in air
transportation service.
Moreover, in response to these commenters, the FAA has determined
that instructor qualification requirements of part 142 are at least
equivalent to the knowledge and skill requirements for a ground
instructor certificate regardless of whether the instructor holds an
ATP certificate. Accordingly, the FAA has deleted paragraph (a)(3).
Other provisions of proposed paragraph (a)(3) have been moved to other
paragraphs.
AMR commented that training centers should be permitted to employ
persons who are not pilots to be instructors, such as maintenance
instructors, and that the rule language should address that
possibility.
The FAA agrees and paragraph (a) has been reworded to make it clear
that the requirements of the section, and the subpart, apply only to
persons who are employed as instructors in a flight training course
that is subject to approval of the Administrator, as discussed under
Sec. 142.31. The FAA stated in the discussion of that section that any
training offered by a training center that goes in whole or in part to
satisfying a requirement of 14 CFR must be approved; however, training
for other purposes need not be approved.
Paragraph (b) proposed the following:
(b) A training facility operating under an exemption to part 61
prior to August 1, 1996 may allow a person who has been employed as
a simulator instructor for that training facility to continue to
instruct provided the training facility--
* * * * *
(ii) Instructs only in qualified and approved flight simulators
in which that person has been authorized by the Administrator to
instruct within the 12 months immediately preceding certification of
the employing training center.
AIA commented that paragraph (b)(2)(ii) does not allow existing
instructors to transition to new equipment without complying with the
new part 142 instructor qualification provisions. It states that the
proposal is too restrictive and recommends that it be deleted.
AIA is correct in its interpretation that instructors transitioning
to new equipment must comply with part 142 instructor qualification
provisions. As an exception, proposed paragraph (b)(2)(ii) (revised and
adopted as paragraph (a)(6)(iii)) is a ``grandfather'' provision only
for persons who are employed as simulation instructors on the effective
date of this final rule and who instruct only on the same equipment.
Those persons who do not meet the instructor qualifications of part 142
will not be allowed expanded instructor privileges unless the
instructor applicant meets the standards prescribed by part 142.
FSI commented that proposed paragraph (b)(2)(ii) (revised and
adopted as (a)(6)(iii) ) should be reworded to grandfather privileges
of instructors in approved flight training devices as well as
privileges in flight simulators.
The FAA agrees with this recommended change because instructors
will be using simulation media, not just flight simulators. Proposed
paragraph (b)(2)(ii) has been reworded accordingly and, as indicated
above, is adopted as new paragraph (a)(6)(iii).
AMR commented that this section indirectly requires a training
center instructor to hold at least a second class medical certificate.
This is not a correct interpretation of the proposal. The
alternative requirements for instructors that are outlined in preceding
paragraphs provide for a training center to employ instructors in
simulation only who do not hold an airman medical certificate.
Since the publication of the NPRM, and in response to a petition
from the public to amend existing exemptions, the FAA has allowed
persons to qualify as simulator-only instructors without holding an
instructor certificate, if those persons meet certain alternative
qualifications. The FAA has determined that it is appropriate to
include those alternative qualifications in this final rule; therefore,
this section has been restructured accordingly. The alternative
qualifications will allow training centers to employ as instructors
persons who are former military pilots, former or current airline
pilots, and other persons who may not hold an instructor certificate.
Instructors who instruct in a required crewmember seat in flight must
hold a flight instructor certificate with appropriate ratings and an
airman medical certificate. The alternative qualification requires a
training center to train a potential instructor in specified subjects,
and to administer a written test following the instruction. The written
test must be approved as a part of the training program. The test must
be of similar complexity, difficulty, and scope as the written test for
flight instructor airplane and instrument flight instructor. Training
center certificate applicants and training centers may consult
publication FAA-T-8081-18, Flight and Ground Instructor Written Test
Book for guidance in developing the written test. The FAA does not
intend that the test include questions about flight maneuvers such as
turns about a point, chandelles, and spins.
This section is adopted with the changes discussed.
Sec. 142.49 Training center instructor privileges and limitations.
This section proposed that, to instruct in an aircraft, a training
center instructor must hold a current flight instructor certificate
with certificates and ratings applicable to the aircraft used for
instruction, hold at least a valid second class medical certificate,
and meet the recency of experience requirements of part 61. These
proposed requirements for aircraft flight instructors are the same as
those currently required by part 61.
AMR commented that, by using the words ``training, testing, and
checking'' in proposed paragraph (b), the FAA would impose these
requirements on evaluators as well as instructors, and noted that there
are no proposed sections dealing with evaluator privileges and
limitations. AMR suggested changing the title of this section to
include evaluators.
The FAA agrees that the title should be changed as recommended and
has reworded the title accordingly and has added evaluation to this
paragraph.
Proposed paragraph (c) included the following:
(c) A training center may not allow an instructor to--
(1) Excluding briefings and debriefings, conduct more than 8
hours of instruction in any 24-consecutive-hour period.
FSI, ATA, and several air carrier certificate holders commented
that the duty times proposed in this paragraph are too restrictive.
Flight instructor duty time was discussed under Sec. 61.169. As
discussed in that section, the FAA is convinced that it is in the
interest of safety to assure that instructors are not unduly fatigued
when instructing pilots. The proposed duty-time limitations are
considered necessary to ensure that instructors are sufficiently alert
when giving required instruction.
[[Page 34541]]
The FAA has, however, amended this and Sec. 61.169 to exclude
briefings and debriefings in response to the concerns of these
commenters.
FSI commented that the words ``* * * any 24-consecutive-hour
period'' in proposed paragraph (c)(1) be changed to ``* * * a day.''
The FAA disagrees with the commenter's suggested wording, for such
wording would allow an instructor to conduct 16 consecutive hours of
instruction, excluding briefings and debriefings. This practice is
considered unacceptable for the reasons stated above.
Proposed paragraph (c)(3)(iv) states that a training center may not
allow an instructor to provide flight instruction in an aircraft unless
that instructor holds at least a valid second class medical
certificate.
ATA and several part 121 certificate holders commented that this
paragraph should specify that an instructor who instructs only in
simulation need not hold a medical certificate.
AIA commented that there was no need to require a medical
certificate for flight instructors, since it was not required before.
The FAA agrees with both commenters. Paragraph (c)(3)(iv) has been
amended to specify that a medical certificate is required only when
instructing from a required crewmember seat in an aircraft in flight.
This change simply reiterates part 61 requirements for an instructor to
have a medical certificate when acting as required flight crewmember.
This section is adopted with the changes discussed.
Sec. 142.51 Qualifications to instruct in a flight simulator or a
flight training device. Reserved. See the discussion above entitled
``Part 142.''
Sec. 142.53 Training center instructor training and testing
requirements. Section 142.53 proposed initial and annual recurrent
training that would be required of all training center instructors.
Paragraph (a) proposed:
(a) Prior to authorization to instruct a course of training,
testing, and checking, and except as provided in paragraph (c) of
this section, every 12 calendar months beginning the first day of
the month following an instructor's initial authorization, a
training center certificate holder must ensure that each of its
instructors meet the following requirements:
(1) Each instructor must satisfactorily demonstrate to an
authorized evaluator knowledge of, and proficiency in, instructing
each course of training for which that instructor is authorized to
instruct under this part.
FSI commented that the proposal in paragraph (a)(1) should provide
that an instructor's demonstration would be made ``* * * in a
representative segment of a course.'' According to FSI, this change
would provide a more suitable way to determine an instructor's
knowledge and proficiency in multiple subjects in different courses for
various aircraft types.
Paragraph (a) has been reworded. Changing the wording to
``instructing in a representative segment of each curriculum,'' allows
evaluation of instructors in a broad sampling of all subjects. However,
the FAA has specified that the evaluation must include a representative
segment from each curriculum.
Paragraph (b)(2), as originally proposed, provided that ``An
instructor who is unable to hold a medical certificate may not
instruct. * * *'' In the SNPRM referred to earlier, the FAA proposed a
change to paragraph (b)(2) to eliminate the words ``who is unable to
hold a medical certificate,'' because that restriction was believed to
be unnecessary.
For clarification, the FAA has further revised paragraph (b)(2) of
the final rule to specifically permit an instructor to provide
instruction even if he or she does not hold an airman medical
certificate, provided that the instructor is otherwise qualified. It is
also revised by removing an obsolete reference ``advanced simulation
plan.''
Proposed paragraph (b)(2)(ii)(B) requires instructors to
participate in an in-flight observation training course, that includes
three takeoffs and three landings, and that includes performing at
least 1 hour of LOFT as the sole manipulator of the controls. The 1
hour of LOFT must be performed in a flight simulator that replicates an
aircraft of the same class and, if a type rating is required, of the
same type as the aircraft represented by the qualified and approved
flight simulator in which that instructor is designated to instruct.
Several commenters stated that paragraph (b)(2)(ii)(B) refers to
Level C or Level D flight simulators, and suggested that appendix H of
part 121 be changed by this rulemaking to indicate levels instead of
phases.
The proposed requirement contained in this paragraph can be
accomplished only in Level C or Level D flight simulators, as the
Administrator currently qualifies flight simulators. As discussed above
in the section of this document entitled ``Related Activity,'' the FAA
has issued an NPRM entitled ``Part 121; Appendix H, Advanced Simulation
Plan Revisions'' [60 FR 8490; February 14, 1995] to update and revise
appendix H of part 121. In that NPRM, the FAA proposes to change all
references from ``phases'' to ``levels'' in part 121, appendix H.
ATA and several other commenters stated that paragraph (c) of this
section establishes a base-month concept for instructor recurrent
qualifications, and suggested instead an annual requirement only,
similar to the requirement appropriate to part 121 certificate holders.
The FAA does not agree. The commenter's suggestion apparently would
allow training centers to provide recurrent training to instructors as
infrequently as every 24 months. The FAA believes that 12 months is the
maximum period that should be allowed between recurrent qualifications.
Therefore, the FAA has adopted the recurrent training requirement once
each 12-month period, as proposed.
General Comments to Sec. 142.53 as Proposed
ATA commented that, in many cases, part 121 instructor training is
more comprehensive than the training that would be required under this
section and under Sec. 142.55. It recommended that wording be
incorporated to credit an instructor with equivalent training that he
or she may have completed in a part 121 instructor training course.
The FAA agrees. Accordingly, a new paragraph (d) has been added to
permit an instructor to receive credit for equivalent instructor
training courses taken under part 121 or other courses the
Administrator finds equivalent.
AMR commented that this section and title should be amended to
specify that instructors who teach in courses not leading to pilot
certification under part 61 are not subject to the provisions of this
section.
The proposed requirements contained in this section apply to
instruction designed to satisfy only various requirements of 14 CFR.
They address, among other things, courses for review, proficiency,
added ratings, and authorizations in addition to certification. As
discussed in the section-by-section discussion of Sec. 142.31, the
instructor qualification requirements of part 142 do not apply to
courses that are not designed to satisfy any part of 14 CFR and that
are not subject to approval of the Administrator.
One commenter asked why simulation-only instructors are not
required to complete initial or recurrent training in aircraft, the
same as instructors who instruct in flight.
[[Page 34542]]
The FAA has used past experience and recommendations from a joint
industry-FAA working group to form alternatives to in-flight training,
testing, and checking that ensure an equivalent level of safety, since
simulation-only instructors will not be instructing in aircraft.
ATA and several part 121 certificate holders commented that
proposed Sec. 142.91 in subpart G, which paralleled this section and
has been withdrawn, should have a paragraph added to require an annual
written test and an annual proficiency check in each flight simulator,
flight training device, and/or aircraft in which the instructor will be
instructing. According to these commenters, the test and check should
cover the maneuvers that the instructors will be instructing in.
The FAA agrees and has revised this proposed parallel section
accordingly.
AMR asked if an instructor could instruct under subpart C and
subpart G at the same time. It recommended that this should be
permitted.
Although subpart G has been withdrawn, instructors will be
permitted to provide instruction to air carrier clients and non-air-
carrier clients if otherwise qualified.
AIA commented: ``This (sic) is more restrictive than existing check
pilot requirements. Why?''
The commenter apparently is referring to this entire section as
being restrictive. The FAA would not describe this as more, or less,
restrictive than existing check pilot requirements. Check pilots are
employed in parts 121 and 135. They provide checks pursuant to the
comprehensive training programs required by those parts. A check pilot
has functions and responsibilities different from those of a part 142
training center instructor. Thus, the training and checking provisions
proposed for part 142 instructors have been tailored to meet part 142
requirements. They necessarily are different than the training and
testing requirements applicable to check pilots performing checks under
part 121 and part 135.
This section is adopted with the several changes discussed.
Sec. 142.55 Training center evaluator requirements. Paragraph (a)
of this section proposed the requirements for an evaluator, as follows:
(a) In order to authorize a person as evaluator, a training
center must ensure that the person--
(1) Is approved by the Administrator;
(2) Is in compliance with Secs. 142.47, 142.49, and 142.53 of
this part; and
(3) Prior to authorization, and except as provided in paragraph
(b) of this section, every 12-calendar-month period following
initial designation satisfactorily completes a course of training
provided by the training center that includes the following:
(i) Pilot evaluator duties, functions, and responsibilities;
(ii) Methods, procedures, and techniques for conducting required
checks;
(iii) Evaluation of pilot performance; and
(iv) Management of unsatisfactory checks and subsequent
corrective action.
AMR, commenting on proposed paragraph (a), stated that it was not
clear if training center evaluators will have authority equivalent to
designated examiners or pilot proficiency examiners, and asked for
clarification.
Under part 142 an ``evaluator'' is a person who determines
competence of persons applying for a number of different certificates
and ratings subject to 14 CFR on behalf of the Administrator. By
contrast, designated examiners and pilot proficiency examiners have
more limited authority.
ATA and several part 121 certificate holders commented that
proposed Sec. 142.93 in subpart G, which paralleled this section and
has been withdrawn, should have a paragraph added to require an annual
written test and an annual proficiency check in each flight simulator,
flight training device, and/or aircraft in which the instructor will be
instructing. According to these commenters, the test and check should
cover the maneuvers that the instructors will be instructing in.
The FAA agrees and has added a new paragraph (a)(4) to clarify the
request of the commenters.
As discussed above, under Sec. 142.53, pursuant to an ATA comment,
the FAA has determined that it is appropriate to give credit to
potential evaluators who have completed a part 121 evaluator training
course.
Accordingly, a new paragraph (c) has been added to permit an
evaluator to receive credit for equivalent evaluator training courses
taken under part 121 or part 135 that the Administrator finds
equivalent.
In response to several comments on proposed Sec. 142.93 (withdrawn)
the FAA has added a new paragraph (d) to this parallel section to
except evaluators, qualified in accordance with SFAR 58, from the
evaluator requirements of this section.
In addition to the above-referenced revisions, several editorial
changes have been made. In proposed paragraph (b) the term
``instructor'' is replaced with ``evaluator.'' The term ``curriculum''
has been substituted for the term ``training course'' and the term
``tests'' has been substituted for the term ``checks.'' The editorial
changes have been made to bring the terms into conformity with the
commonly accepted definitions as used in numerous other parts of 14 CFR
and numerous FAA publications.
With the changes discussed, this section is adopted as proposed.
Sec. 142.57 Aircraft requirements. Paragraph (a)(1) and (a)(2) of
this section proposed that training center aircraft used for
instruction be civil aircraft of U.S. registry if used in the United
States, and that training centers located outside the country could use
aircraft registered in the host country.
Several commenters, including in effect Airbus, discussed the need
to train in customer-owned aircraft which might be registered in
another country, be operated by the aircraft manufacturer during pre-
certification, or be operated under an export certificate of
airworthiness.
The FAA agrees and has determined that it is unnecessary to
specifically provide for the registration of the aircraft being used.
It is sufficient that the training center will have to comply with the
registration requirements of the country of operation. Accordingly,
proposed paragraphs (a)(1) and (2) have not been adopted. This change
should relieve the commenter's concern. These changes will allow
training centers more flexibility to train customers in customer-owned
aircraft.
With minor editorial changes and restructuring to proposed
paragraph (b), this section is adopted as amended.
Sec. 142.59 Flight simulators and flight training devices. Section
142.59(a) proposed that flight simulators and flight training devices
used in an approved training program must be qualified by the
Administrator. Paragraph (a) of this section also proposed that a
flight simulator or flight training device be approved for use in a
training center training program curriculum. The preamble to paragraph
(a) contained the statements ``Simulation has benefit only if behaviors
learned can be transferred to the aircraft. No effective transfer of
learning has been demonstrated except from flight simulators and flight
training devices that accurately replicate the performance of an
aircraft.''
ATA and several part 121 air carriers commented that the statement
about effective transfer of learning is untrue.
Based on its experience with flight simulation and on study
evidence available to its National Simulator Program Manager (NSPM),
the FAA has concluded that the statements are true. While some learning
may transfer from devices that do not accurately replicate aircraft,
the experience gained is not
[[Page 34543]]
adequate to justify their use as a sole means of training, testing, and
checking.
A few air carriers commented that they were not sure what was meant
by the words ``make, model, and series'' used in an example that was
provided in the NPRM preamble to proposed paragraph (a)(1), which
stated, ``If part 61 * * * requires landing in a particular make,
model, and series aircraft, then a flight simulator used to simulate
that aircraft would have to be qualified and approved both for the
visual landing and to simulate the make, model, and series of
aircraft.'' They provide an example of an aircraft type and different
models of that type.
The commenters are correct. The FAA did not intend to distinguish
between manufacturers' models of the same aircraft type. To make it
clear that only the particular aircraft type need be simulated, as
intended, the FAA has added the words ``or aircraft type'' to the text
of paragraph (a)(1) in the final rule. Section 142.59(c)(1) proposed
that flight simulators and flight training devices used by training
centers be maintained to ensure the reliability of the performances,
functions, and all other characteristics that were required for initial
qualification of the equipment.
One commenter pointed out an editorial omission of the word
``qualification'' in the text of this paragraph. The commenter
indicated that the last word of proposed paragraph (c)(1) should be
``qualification'' and not ``approval.''
The technical guidelines for flight simulators are listed in AC
120-45, as amended. That AC defines qualification as distinct from, and
preceding, approval of a flight simulator. The FAA has determined that
it should continue the use of commonly accepted words to avoid possible
confusion.
Section 142.59(c)(3) proposed that flight simulators and flight
training devices used under part 142 be given a functional check before
being used. Further, this paragraph proposed that training center
instructors must keep a discrepancy log, and enter all discrepancies in
that log at the end of each training session or check.
One commenter asked how often the preflight requirement must be met
and also the purpose of the requirement.
The preflight is required each day the flight simulator is used.
The FAA added the words ``each day'' to proposed paragraph (c)(3) to
make clear the requirement for frequency of preflight inspections. The
purpose of preflight inspections is for the instructor to determine
whether the applicable Simulator Component Inoperative Guide (SCIG), if
any, has been met, or whether all simulator components needed for a
specific training or testing period are present and operative. The FAA
believes that, to ensure effective training, a flight simulator or
flight training devices must accurately replicate the performance of an
aircraft. The FAA can determine that flight simulation accurately
replicates an aircraft only if all components of a flight simulator or
flight training device are checked for proper operation before the
device is used.
Section 142.59(d) proposed that, unless otherwise authorized by the
Administrator (in an SCIG), all components on a flight simulator or
flight training device used by a training center must be operative to
ensure faithful replication of aircraft capabilities.
Several comments were received concerning this proposal. Generally,
the comments addressed aircraft Minimum Equipment List (MEL), and the
fact that the FAA has not developed a master MEL for flight simulators.
The FAA is amending paragraph (d) this section to provide that no
component of a simulator may be inoperative, missing, or malfunctioning
if that component is required for or involved in the planned training,
testing, or checking. A flight simulator or flight training device SCIG
is a guide approved by the Administrator that indicates the specific
training, testing, or testing tasks that are authorized. It also
indicates the restrictions imposed, if a component is inoperative,
malfunctioning, or missing. At this time, the FAA does not plan to
issue an SCIG or master SCIG, but intends instead to allow any training
center applicant or training center to develop its own for the various
courses which it may teach and submit it to the FAA for approval. The
FAA will review and approve an SCIG developed and submitted by a
training center.
Section 142.59(e) proposed to allow training centers to use flight
simulators in approved courses without specific route or terminal aids
and visual scenes.
While the FAA did not receive comments on this proposed section,
ATA and others commented in response to the proposed companion section,
Sec. 142.97, (since withdrawn), that operator specific routes may be
necessary. The commenters stated that the relaxed specific route
requirements during LOFT would not meet the requirements of
Sec. 121.409(b)(3).
The FAA understands the commenter's concern. LOFT or other LOS may
be used for purposes other than necessarily satisfying Sec. 121.409. If
a particular air carrier wants a particular route or other detail
represented, it may require that of the training center with which it
contracts. It is inefficient for certification and type rating training
and testing for all airmen to be subject to an absolute requirement for
training along a particular route, which may be ``repositioned along''
anyway. The FAA believes it is appropriate to leave it to the
discretion of a particular air carrier to determine if it wants a
specific route simulation in its training program. Therefore, this
section is adopted as proposed.
Jet Exam, commented that the language of this section could be
interpreted to mean that a training center applicant would have to
obtain training program approval or a training course approval before
it could request approval of a simulator, and that this would be an
unnecessary burden on the applicant.
The FAA agrees with the commenter's observation that obtaining
approval of a training course before obtaining approval for a flight
simulator could be an economic burden. However, the FAA did not propose
that a certificate applicant would have to obtain training program
approval or a training course approval before it could request approval
of a simulator.
A commenter suggested that the acronym ``NSPM'' should be changed
to ``the Administrator.'' According to the commenter, this would allow
for the possibility of renaming of that function or redelegation of its
functions.
The FAA notes that, while the acronym ``NSPM'' is used in the NPRM
preamble to this section, it did not appear in the NPRM proposed rule
text. However, the FAA did use the term ``Administrator'' in the rule
text of the NPRM and final rule as the commenter has suggested.
The FAA added a clause excepting AQP from the requirements of this
section, to be consistent with the exception of AQP from the
requirements of Sec. 142.39. With that addition, and the other changes
discussed, this section is adopted as proposed.
Subpart D--Operating Rules
This subpart sets forth proposed operating rules for training
centers that provide training in accordance with subpart B of part 142.
Sec. 142.61 Applicability. The FAA proposed in this section that
the operating rules in this subpart would apply to training centers
providing training to clients other than air carrier clients.
Airbus commented that the applicability of subparts D and E should
[[Page 34544]]
be amended to permit aircraft manufacturer training centers who intend
to train only part 121 aircrews, their own employees, U.S. certificated
employees of the manufacturer, and FAA inspectors to conduct that
training under subparts F, G, H, and I of part 121. The commenter
states that part 121 requirements are the most appropriate criteria for
these trainees since their duties are related to large aircraft that
are operating in air carrier service. Airbus made the same comment
about FAA inspectors in comments about several other sections. Other
commenters made an essentially identical comment in reference to some
applicability sections.
The FAA does not agree that the groups of trainees identified by
the commenter should be trained under any rules different from the
rules governing certification and type rating requirements for airmen
at large. The only exception (a waiver under the authority of appendix
A of part 61) is for aircrew employees completing an air carrier
training program and meeting other terms of the waiver provision of
appendix A. The persons identified by the commenters specifically do
not meet the waiver requirements. Large airplanes are operated by
persons other than air carrier certificate holders. The FAA
certificates airmen to operate aircraft of various sizes under the
provisions of several parts of 14 CFR. The part of 14 CFR under which a
pilot is operating, and not the size of the airplane flown by the
pilot, determines the pilot's prerequisite qualification and
certification requirements.
Several of the comments made about this section are similar, or
identical to, comments made about proposed Secs. 61.63, 61.64, 61.157,
and 61.158. The comments generally addressed applicability of specific
training programs to various groups of airmen and the perception of a
dual standard for an ATP certificate.
The FAA response to those similar or identical comments apply also
to this section. Refer to those sections for discussion of related
comments.
For the reasons discussed, this section is adopted as proposed.
Sec. 142.63 Privileges. Section 142.63 proposed to permit training
center instructors and evaluators to meet recency of experience
requirements in a flight simulator or flight training device, if the
flight simulator or flight training device is used in a course approved
in accordance with subpart B or subpart F, as applicable.
This section was revised to delete a reference to subpart F, which
has been withdrawn, and to recognize that AQP makes separate and valid
provisions for recency of experience of simulation instructors. With
the revisions mentioned, this section is adopted as proposed.
Sec. 142.65 Limitations. Because the FAA intends that flight
simulators used in testing, checking, or LOS provide the same time
constraints and sequential, or overlapping, circumstances that occur in
an actual aircraft, Sec. 142.65 (a) proposed to prohibit the use of
flight simulator or flight training device repositioning, freeze, or
slow motion features during testing, checking, and LOFT.
ATA, several part 121 certificate holders, and an aircraft
manufacturer commented that prohibiting the use of repositioning during
LOFT might cause several hours of simulated cruise flight with very
little value.
The FAA agrees with the commenters, and has revised proposed
paragraph (a) by adding paragraph (a)(2) to permit the use of
reposition along a route of flight to a point where the descent and
approach phase of the flight begins. Also, in paragraph (a)(1), any
slow motion, hold, or reposition features may be used at any time
during training and practice, to help stimulate the simulation industry
by helping minimize nonproductive time spent in a flight simulator.
Proposed Sec. 142.65(b)(1) would require a crewmember qualified in
the aircraft category, class, and type, if a type rating is required,
to occupy each crewmember position during testing, checking, or LOS.
During Category II and Category III testing, the copilot position would
have to be occupied by a pilot qualified to perform the duties of an
SIC for Category II or Category III operations, as applicable.
Airbus commented that this section would effectively prohibit the
use of a medically disqualified (simulated) PIC during SIC training and
testing unless the PIC had been fully qualified before serving in this
capacity.
The FAA believes that a PIC should be able to function as a
required crewmember during simulation testing even though he or she
does not hold a valid medical certificate, provided that he or she is
otherwise qualified in the flight simulator or was qualified in the
aircraft type before losing medical certification. The FAA has
determined that there is no safety hazard created by persons operating
flight simulators without a valid medical certificate. Accordingly, a
new paragraph (b)(3) has been added to allow for use of a PIC meeting
the circumstances just discussed, and the section is adopted as
otherwise proposed.
Subpart E--Recordkeeping
Sec. 142.71 Applicability. Proposed subpart E, ``Recordkeeping,''
prescribed the records that a training center certificate holder must
maintain for students who are not aircrew employees of operators under
parts 121, 125, or 135, and the records that would have to be
maintained for instructors and evaluators authorized in accordance with
subpart B of part 142.
Airbus offered the only comment. It suggested that certain persons,
including FAA inspectors, should be excluded from the applicability of
training or testing under this subpart.
The FAA does not agree with the suggestion. All of the persons
identified by Airbus, including FAA inspectors, must complete the same
certification requirements of 14 CFR that apply to other airmen.
For the reason discussed, this section is adopted as proposed.
Sec. 142.73 Recordkeeping requirements. Under this proposed
section, the FAA specified that a training record would have to be
maintained for each person who is enrolled in a course for which that
person is to gain credit toward satisfying any requirement of 14 CFR.
Paragraph (d) proposed:
(d) The certificate holder must provide to the Administrator,
upon request and at a reasonable time and in a reasonable place, the
records required by paragraphs (a) and (b) of this section.
Only one comment was received. The commenter suggested that the
only practical place to keep the required records is at the training
center where the activity requiring records takes place. It suggested
that paragraph (d) be reworded accordingly.
The FAA agrees and has reworded paragraph (d) to require that the
records be kept at the training center or satellite training center
where the training is conducted, or at another site approved by the
Administrator.
The FAA has revised paragraph (c) to provide that records of
qualification to act as instructor or evaluator must be maintained for
the period of time that the individual is employed.
This section is adopted as otherwise proposed.
Subpart J--Other Approved Courses (adopted as Subpart F)
Sec. 142.115 (adopted as Sec. 142.81) Conduct of other approved
courses. The FAA proposed in this section (formerly numbered as
Sec. 142.115 and now renumbered to Sec. 142.81) to provide that
training centers or training center applicants may apply for approval
to
[[Page 34545]]
conduct training for persons other than pilot crew members. Under the
proposal, a course may be approved by the Administrator upon a finding
that it provides a curriculum that will achieve a level of competency
equal to, or greater than that required by the appropriate part of 14
CFR.
A few commenters stressed that many types of training do not
require FAA approval and that subpart J should be deleted.
While it is true that many courses of training do not require FAA
approval, there are several that do, and others that may at some future
date require such approval. This proposed subpart is intended to allow
a training center or a training center applicant to apply for approval
of curricula for persons other than air crews.
TDM Group, Inc., described a flight attendant training program that
it is undertaking with McDonnell Douglas and Continental Airlines. It
remarked that it would like to begin such training under part 142, and
encouraged the Administrator to keep and to expand this subpart.
For the reasons discussed, this section is renumbered as
Sec. 142.81 instead of Sec. 142.115 and is adopted as proposed. A minor
editorial change has been made to proposed paragraph (c) to indicate
that an applicant for course approval must comply with the applicable
requirements of ``subpart A through subpart F of this part'' rather
than ``subpart B or subpart F of this part'' as stated in the proposal.
Editorial Corrections
In addition to the revisions discussed above, a number of editorial
changes have been made to the text of the final rule including the
renumbering of several paragraphs to conform to the current format and
style of the regulations.
Harmonization With ICAO, JAA, and JAR
The proposals adopted in this rulemaking have been compared to ICAO
Annex I, ``Personnel Licensing,'' and the JAA/JAR. This rule is
compatible with international agreements and parallel regulations,
except for the differences which follow:
1. Section 61.65, ``Instrument rating requirements,'' will allow
credit for 35 hours of simulated or actual instrument time for those
applicants who complete an entire approved instrument curriculum at a
training center certificated under part 142. ICAO Annex I, Chapter 2,
Sec. 2.6.1.2.2 allows only 30 hours of credit, and requires 10 hours of
that experience to be in an actual aircraft.
2. Section 61.113, ``Rotorcraft rating: Aeronautical experience,''
will allow an applicant to qualify for this rating with 35 hours of
flight experience, any part of which may be simulated flight, if that
applicant completes an entire approved helicopter rating curriculum at
a training center certificated under part 142. ICAO Annex I, Chapter 7,
Sec. 2.7.1.3.1 requires 40 hours of flight experience for this rating,
of which only 5 hours can be simulated flight.
3. Section 61.129, ``(Commercial) Airplane rating: Aeronautical
experience,'' will allow up to 100 hours of flight time to be simulated
flight if accomplished in an approved flight simulator or approved
flight training device, and any part of the 190 hour total experience
requirement to be simulated flight if the applicant completes an entire
approved commercial airplane curriculum at a training center
certificated under part 142. ICAO Annex I, Chapter 7, Sec. 2.4.1.3
allows credit for only 10 hours of simulated flight experience. It
should be noted that the superseded Sec. 61.129 allowed credit for 50
hours of simulated flight time toward this rating, which was different
from ICAO standards.
The FAA will file a Statement of Differences with ICAO to notify
that body of the listed differences.
Paperwork Reduction Act
The reporting and recordkeeping requirements associated with this
rule have been approved by the Office of Management and Budget and have
been assigned number 2120-0570. Under the Paperwork Reduction Act of
1995 (44 U.S.C. 3507 (d)), no persons are required to respond to a
collection of information unless it displays a valid OMB control
number.
Regulatory Evaluation Summary
Changes to Federal regulations are required to undergo several
economic analyses. First, Executive Order 12866 directs each Federal
agency to 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 effect of regulatory changes on international trade. With respect
to this final rule, the FAA has determined that it: (1) Will generate
benefits that justify its costs and is a ``significant regulatory
action'' as defined in the Executive Order; (2) is significant as
defined in the Department of Transportation's Regulatory 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. Therefore, a full regulatory analysis, which
includes the identification and evaluation of cost-reducing
alternatives to this rule, has not been prepared. Instead, the agency
has prepared a more concise analysis of this final rule in a regulatory
evaluation, which is summarized in the following paragraphs.
Benefits
This rule provides benefits by reducing the amount of training
aircraft flight hours. The increased substitution of on-the-ground
training in flight simulators and flight training devices for in-the-
air training in aircraft decreases the risk of fatal aviation accidents
while training. The increased substitution also yields cost savings
resulting from reduced fuel and oil consumption (energy conservation),
as well as reduced required maintenance costs.
Most of the cost savings come from lowered operations costs,
resulting from using simulators and training devices instead of
aircraft. The estimated savings from existing simulator training
centers training pilots under parts 121, 135, and 91 will be $1.2
billion ($808 million discounted) over the next 10 years. Furthermore,
the final rule will generate additional savings from increased
simulator training of general aviation pilots over the next decade that
total $37 million ($23 million discounted). The total discounted
savings attributed to reduced training aircraft flight hours equals
$831 million over the next 10 years.
The FAA also estimates the value of the safety benefit at $42
million ($26 million discounted) over the same period. Thus, the total
discounted value of part 142 benefits equals $857 million: $832 million
resulting from greater energy conservation, and $26 million resulting
from reduced training accidents.
Costs
Two elements make up the additional administrative cost of part
142: (1) The cost for organizations currently engaged in flight
instruction to apply to qualify for a part 142 certificate; and (2) the
cost for the government to process and to monitor those applications as
well as to inspect and to train the inspectors of part 142 training
centers. Over one-half of the estimated administrative costs to
[[Page 34546]]
implement the simulator rule will be incurred in the first 2 years.
The total 10-year additional administrative cost to implement part
142 is estimated to be about $1.6 million ($1.3 million discounted) of
which over one-half or $881,000 ($797,000 discounted), is expected to
be incurred in the first 2 years. Of this amount, $57,000 ($52,000
discounted) are applicant costs, and $824,000 ($745,000 discounted) are
FAA costs. The balance, $731,000 ($477,000 discounted) represents FAA
monitoring costs over the remaining 8 years.
The FAA expects that the costs of operating simulators for the
newly certificated part 142 training centers will continue to be the
same as those incurred in operating those same simulators under the
rigid standards and requirements imposed by FAA exemptions. The costs
of meeting these FAA standards and requirements are captured in this
analysis as part of the operating costs of a simulator. This cost has
been subtracted from the cost of in-flight training which it replaces,
in computing the cost savings from simulator training.
Benefit-Cost Comparison
The preceding sections show that this final rule will result in
benefits ($858 million discounted) that far exceed the costs ($1.3
million discounted) imposed by the rule. Therefore, the FAA has
determined that the simulator final rule is cost beneficial.
The NPRM established the benefit-to-cost ratio as 3:1; the final
rule, using a more comprehensive definition of benefits, establishes
the benefit-to-cost ratio as approximately 660:1. This is explained, in
part, by a reduction in total costs from approximately Sec. 3.5
million, discounted in the NPRM estimate to approximately Sec. 1.3
million, discounted in the final rule estimate. This reduction results
from the abandoning of the concept of an FAA national field office to
manage certificated simulator training centers.
Most of the increase in the benefit-cost ratio, however, is
explained by the substantial increase in cost-savings benefits ($11
million, discounted NPRM estimate relative to $858 million discounted
final rule estimate) resulting from a more comprehensive definition of
benefits. Both the NPRM and the final rule take into account cost-
saving benefits attributed to the substitution of simulator hours for
training aircraft flight hours as well as to the averting of some
aircraft training accidents. In the NPRM, however, the FAA only
accounted for cost savings attributed to the incremental hours of
simulator training substituted for general aviation pilot training. The
final rule assigns cost savings to not only this subgroup, but to all
parts 121, 135, and other 91 subgroups that currently provide training
under exemption. Finally, the value of life used in the final rule to
measure potential training accident fatalities averted was revised from
$1.5 million to $2.7 million.
International Trade Impact Analysis
The FAA has determined that this rule will not have a significant
impact on international trade. The FAA believes that the final rule
will not negatively effect operators in the training of foreign
citizens who accomplish such pilot training in the United States. Nor
will the final rule have a significant impact on international trade
should the training occur outside the United States, so long as the use
of simulators outside the United States is in compliance with FAA
standards and requirements if the intent is for U.S. pilot
certification.
Final 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 Federal regulations. The RFA requires
agencies to review rules which may have a ``significant economic impact
on a substantial number of small entities.''
The FAA has adopted criteria and guidelines for rulemaking
officials to apply when determining whether a proposed or existing rule
has any significant economic impact on a substantial number of small
entities. Based on these criteria, a small air carrier is one that owns
nine or fewer aircraft. A small simulator training school has 10 or
fewer employees. A substantial number of small entities is not less
than 11 or more than one-third of affected small entities.
The FAA has determined that 37 pilot training schools and 10
contract trainers now train under exemption from specific part 61
requirements. These organizations will incur some costs in applying for
part 142 certification. Most of these schools employ more than 10
employees (the small entity threshold); however, the FAA does not
expect that those that do not will experience any unnecessary and
disproportionate burden by Federal regulations.
With regard to seven part 121 and part 135 operators holding
exemptions to train using simulators, each has more than nine aircraft.
Hence, no part 121 or 135 air carriers affected by this rule are small
entities.
The FAA, therefore, has determined that this rule will not have a
substantial impact on a significant number of small entities.
Federalism Implications
The regulations announced herein would 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 rule
would not have sufficient federalism implications to warrant the
preparation of a Federalism Assessment.
Conclusion
For the reasons discussed in the preamble, and based on the
findings in the Regulatory Flexibility Determination and the
International Trade Impact Analysis, the FAA has determined that this
regulation is not major under Executive Order 12286 and that this rule
would 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). An initial regulatory evaluation of the rule, including a
Regulatory Flexibility Determination and Trade Impact Analysis, has
been placed in the regulatory docket.
List of Subjects
14 CFR Part 1
Air transportation.
14 CFR Part 61
Aircraft, Airmen.
14 CFR Part 91
Air traffic control, Aircraft, Airmen, Airports, Aviation safety.
14 CFR Part 121
Air carriers, Aircraft, Airmen, Aviation safety, Charter flights,
Safety, Transportation.
14 CFR Part 125
Aircraft, Airmen, Aviation safety.
14 CFR Part 135
Air taxis, Aircraft, Airmen, Aviation safety.
14 CFR Part 141
Airmen, Educational facilities, Schools.
[[Page 34547]]
14 CFR Part 142
Administrative practice and procedure, Aircraft, Airmen, Drug
testing, Educational facilities, Reporting and recordkeeping
requirements.
The Amendments
In consideration of the foregoing, the Federal Aviation
Administration amends 14 CFR chapter I as follows:
PART 1--DEFINITIONS AND ABBREVIATIONS
3. The authority citation for part 1 continues to read as follows:
Authority: 49 U.S.C. 106(g), 40113, 44701.
4. Section 1.1 is amended by adding the following definitions in
alphabetical order to read as follows:
Sec. 1.1 General definitions.
* * * * *
Category IIIa operations, an ILS approach and landing with no
decision height (DH), or a DH below 100 feet (30 meters), and
controlling runway visual range not less than 700 feet (200 meters).
Category IIIb operations, an ILS approach and landing with no DH,
or with a DH below 50 feet (15 meters), and controlling runway visual
range less than 700 feet (200 meters), but not less than 150 feet (50
meters).
Category IIIc operations, an ILS approach and landing with no DH
and no runway visual range limitation.
* * * * *
PART 61--CERTIFICATION: PILOTS AND FLIGHT INSTRUCTORS
5. The authority citation for part 61 continues to read as follows:
Authority: 49 U.S.C. 106(g), 40113, 44701-44703, 44707, 44709-
44711, 45102-45103, 45301-45302.
6. Section 61.2, 61.3, and 61.5 are redesignated as Secs. 61.3,
61.5, and 61.6.
6A. A new Sec. 61.2 is added to read as follows:
Sec. 61.2 Definition of terms.
For the purpose of this part:
(a) Authorized Instructor means--
(1) An instructor who has a valid ground instructor certificate or
current flight instructor certificate with appropriate ratings issued
by the Administrator;
(2) An instructor authorized under part 121 (SFAR 58), part 135, or
part 142 of this chapter to give instruction under those parts; or
(3) Any other person authorized by the Administrator to give
instruction under this part.
(b) Flight Simulator, Airplane means a device that--
(1) Is a full-sized airplane cockpit replica of a specific type of
airplane, or make, model, and series of airplane;
(2) Includes the hardware and software necessary to represent the
airplane in ground operations and flight operations;
(3) Utilizes a force cueing system that provides cues at least
equivalent to those cues provided by a 3 degree freedom of motion
system;
(4) Utilizes a visual system that provides at least a 45 deg.
horizontal field of view and a 30 deg. vertical field of view
simultaneously for each pilot; and
(5) Has been evaluated, qualified, and approved by the
Administrator.
(c) Flight Simulator, Helicopter means a device that--
(1) Is a full-sized helicopter cockpit replica of a specific type
of aircraft, or make, model, and series of helicopter;
(2) Includes the hardware and software necessary to represent the
helicopter in ground operations and flight operations;
(3) Utilizes a force cueing system that provides cues at least
equivalent to those cues provided by a 3 degree freedom of motion
system;
(4) Utilizes a visual system that provides at least a 45 deg.
horizontal field of view and 30 deg. vertical field of view
simultaneously for each pilot; and
(5) Has been evaluated, qualified, and approved by the
Administrator.
(d) Flight Training Device means a device that--
(1) Is a full-sized replica of instruments, equipment, panels, and
controls of an airplane or rotorcraft, or set of airplanes or
rotorcraft, in an open flight deck area or in an enclosed cockpit,
including the hardware and software for systems installed, necessary to
simulate the airplane or rotorcraft in ground operations and flight
operations;
(2) Need not have a force (motion) cueing or visual system; and
(3) Has been evaluated, qualified, and approved by the
Administra
FR Doc. 96-16432 Aircraft Flight Simulator Use in Pilot Training, Testing, and Checking and at Training Centers
tor.
(e) Set of airplanes or rotorcraft means airplanes or rotorcraft
which all share similar performance characteristics, such as similar
airspeed and altitude operating envelope, similar handling
characteristics, and the same number and type of propulsion systems.
7. Section 61.3 is revised to read as follows:
Sec. 61.3 Certification of foreign pilots and flight instructors.
(a) A person who is neither a U.S. citizen nor a resident alien may
be issued a pilot certificate or flight instructor certificate under
this part (other than under Sec. 61.75 or Sec. 61.77), outside the
United States, only when the Administrator finds that--
(1) The pilot certificate is needed for the operation of a U.S.-
registered civil aircraft; or
(2) The flight instructor certificate is needed for the training of
students who are citizens of the United States.
(b) Training centers, and their satellite training centers
certificated under part 142 of this chapter, may, outside the United
States--
(1) Prepare and recommend applicants for additional ratings and
endorsements to certificates issued by the Administrator under the
provisions of this part, and award additional ratings and endorsements
within the authority granted to that training center by the
Administrator; and
(2) Prepare and recommend U.S. citizen applicants for airman
certificates, and issue certificates to U.S. citizens within the
authority granted to that training center by the Administrator.
8. Section 61.5 is amended by revising the introductory text of
paragraph (d), revising paragraph (f), and adding new paragraphs (i)
and (j) to read as follows:
Sec. 61.5 Requirement for certificates, rating, and authorizations.
* * * * *
(d) Flight instructor certificate. Unless otherwise authorized by
the Administrator, and except for lighter-than-air instruction in
lighter-than-air aircraft, no person other than the holder of a flight
instructor certificate issued in accordance with subpart G of this
part, with an appropriate rating on that certificate, may--
* * * * *
(f) Category II pilot authorization. (1) No person may act as pilot
in command of a civil aircraft during Category II operations unless--
(i) That person holds a current Category II pilot authorization for
that category or class of aircraft, and the type of aircraft, if
applicable; or
(ii) In the case of a civil aircraft of foreign registry, that
person is authorized by the country of registry to act as pilot in
command of that aircraft in Category II operations.
(2) No person may act as second in command of a civil aircraft
during Category II operations unless that person--
(i) Holds a valid pilot certificate with category and class ratings
for that aircraft and a current instrument rating for that category
aircraft;
(ii) Holds an airline transport pilot certificate with category and
class ratings for that aircraft; or
[[Page 34548]]
(iii) In the case of a civil aircraft of foreign registry, is
authorized by the country of registry to act as second in command of
that aircraft during Category II operations.
* * * * *
(i) Category III pilot authorization. (1) No person may act as
pilot in command of a civil aircraft during Category III operations
unless--
(i) That person holds a current Category III pilot authorization
for that category or class of aircraft, and the type of aircraft, if
applicable; or
(ii) In the case of a civil aircraft of foreign registry, that
person is authorized by the country of registry to act as pilot in
command of that aircraft in Category III operations.
(2) No person may act as second in command of a civil aircraft
during Category III operations unless that person--
(i) Holds a valid pilot certificate with category and class ratings
for that aircraft and a current instrument rating for that category
aircraft;
(ii) Holds an airline transport pilot certificate with category and
class ratings for that aircraft; or
(iii) In the case of a civil aircraft of foreign registry, is
authorized by the country of registry to act as second in command of
that aircraft during Category III operations.
(j) Exceptions. Paragraphs (f) and (i) of this section do not apply
to operations conducted by the holder of a certificate issued under
part 121 or part 135 of this chapter.
9. A new Sec. 61.4 is added to read as follows:
Sec. 61.4 Qualification and approval of flight simulators and flight
training devices.
Each flight simulator and each flight training device used for
training, for which an airman is to receive credit to satisfy any
training, testing, or checking requirement under this chapter, must be
qualified and approved by the Administrator for--
(a) The training, testing, and checking for which it is used;
(b) Each particular maneuver, procedure, or crewmember function
performed; and
(c) The representation of the specific category and class of
aircraft, type of aircraft, particular variation within type of
aircraft, or set of aircraft in the case of some flight training
devices.
10. Section 61.13 is amended by revising paragraph (e) to read as
follows:
Sec. 61.13 Application and qualification.
* * * * *
(e) The following requirements apply to a Category II pilot
authorization and to a Category III pilot authorization:
(1) The authorization is issued by a letter of authorization as a
part of the applicant's instrument rating or airline transport pilot
certificate.
(2) Upon original issue the authorization contains a visibility
limitation--
(i) For Category II operations, the limitation is 1,600 feet RVR
and a 150-foot decision height; and
(ii) For Category III operations, each initial limitation is
specified in the authorization document.
(3) Limitations on an authorization may be removed as follows:
(i) In the case of Category II limitations, a limitation is removed
when the holder shows that, since the beginning of the sixth preceding
month, the holder has made three Category II ILS approaches with a 150-
foot decision height to a landing under actual or simulated instrument
conditions.
(ii) In the case of Category III limitations, a limitation is
removed as specified in the authorization.
(4) To meet the experience requirement of paragraph (e)(3) of this
section, and for the practical test required by this part for a
Category II or a Category III authorization, a flight simulator or
flight training device may be used if it is approved by the
Administrator for such use.
* * * * *
11. Section 61.21 is amended by revising the section heading and
the first sentence to read as follows:
Sec. 61.21 Duration of Category II and Category III pilot
authorization. (for other than part 121 and part 135 use).
A Category II pilot authorization and a Category III pilot
authorization expire on the last day of the sixth month after the month
last issued or renewed. * * *
12. Section 61.39 is amended by adding new paragraphs (a)(6) and
(a)(7) to read as follows:
Sec. 61.39 Prerequisites for flight tests.
* * * * *
(a) * * *
(6) If all increments of the practical test for a certificate or
rating are not completed on one date, all remaining increments of the
test must be satisfactorily completed not more than 60 calendar days
after the date on which the applicant begins the test.
(7) If all increments of the practical test are not satisfactorily
completed within 60 calendar days as required by paragraph (a)(6) of
this section, the applicant must retake the entire practical test,
including those increments satisfactorily completed.
* * * * *
13. Section 61.45 is amended by revising the section heading and
paragraphs (a), (c), and (d) to read as follows:
Sec. 61.45 Practical tests: Required aircraft and equipment.
(a) General. Except when an applicant for a certificate or rating
under this part is permitted to accomplish the entire flight increment
of the practical test in a qualified and approved flight simulator or
in a qualified and approved flight training device:
(1) The applicant must furnish for each required test, except as
provided by paragraph (a)(2) of this section, an aircraft of U.S.
registry--
(i) Of the category and class aircraft, and type aircraft, if
applicable, for which the applicant is applying for a certificate or
rating; and
(ii) That has a current standard or limited airworthiness
certificate.
(2) At the discretion of the person authorized by the Administrator
to conduct the test, the applicant may furnish--
(i) An aircraft that has a current airworthiness certificate other
than standard or limited, but that otherwise meets the requirement of
paragraph (a)(1) of this section;
(ii) An aircraft of the category and class, and type aircraft, if
applicable, of foreign registry that is certificated by the country of
registry; or
(iii) A military aircraft of the category and class aircraft, and
type aircraft, if applicable, for which the applicant is applying for a
certificate or rating.
* * * * *
(c) Required controls. An applicant must furnish for each practical
test an aircraft--
(1) (Other than lighter-than-air) listed in paragraph (a) of this
section.
(2) That has engine controls and flight controls--
(i) That are easily reached; and
(ii) Unless the evaluator conducting the test accepts otherwise,
that can be operated in a conventional manner by the applicant, other
required crewmembers, and the evaluator if the evaluator occupies a
pilot's seat.
(d) Simulated instrument flight equipment. An applicant for any
practical test involving flight maneuvers and flight procedures
accomplished solely by reference to instruments, must furnish equipment
that--
(1) Excludes the applicant's visual reference to objects outside
the aircraft; and
(2) Is otherwise acceptable to the Administrator.
* * * * *
14. Section 61.51 is amended by revising paragraphs (b)(1)(ii),
(b)(1)(iii), (b)(1)(iv), (b)(3)(iii), (c)(2)(i), (c)(4), and
[[Page 34549]]
(c)(5), and by adding new paragraphs (b)(2)(viii) and (c)(2)(iv) to
read as follows:
Sec. 61.51 Pilot logbooks.
* * * * *
(b) * * *
(1) * * *
(ii) Total time of flight or flight lesson.
(iii) Except for simulated flight, the place, or points of
departure and arrival.
(iv) Type and identification of aircraft, flight simulator, or
flight training device.
(2) * * *
(viii) Instruction in a flight simulator or instruction in a flight
training device.
(3) * * *
(iii) Simulated instrument conditions in actual flight, in a flight
simulator, or in a flight training device.
(c) * * *
(2) * * *
(i) A private or commercial pilot may log as pilot-in-command time
that flight time when the pilot is--
(A) The sole manipulator of the controls of an aircraft for which
the pilot is rated; or
(B) Acting as pilot in command of an aircraft on which more than
one pilot is required under the type certification of the aircraft or
the regulation under which the flight is conducted.
* * * * *
(iv) A recreational pilot may log as pilot-in-command time only
that time when the pilot is the sole manipulator of the controls of an
aircraft for which the pilot is rated.
* * * * *
(4) Instrument flight time.
(i) Except as provided in paragraph (c)(4)(iv) of this section, a
pilot may log as instrument flight time only that time when the pilot
operates an aircraft solely by reference to instruments under actual or
simulated instrument flight conditions.
(ii) For simulated instrument conditions a qualified and approved
flight simulator or qualified and approved flight training device may
be used, provided an authorized instructor is present during the
simulated flight.
(iii) Each entry in the pilot logbook must include--
(A) The place and type of each instrument approach completed; and
(B) The name of the safety pilot for each simulated instrument
flight conducted in flight.
(iv) An instrument flight instructor conducting instrument flight
instruction in actual instrument weather conditions may log instrument
time.
(5) Instruction time. All time logged as instruction time must be
certified by the authorized instructor from whom it was received.
* * * * *
15. Section 61.55 is amended by revising paragraphs (b)(2)(ii) and
by adding new paragraphs (b)(3) and (b)(4) to read as follows:
Sec. 61.55 Second-in-command qualifications.
* * * * *
(b) * * *
(2) * * *
(ii) Engine-out procedures and maneuvering with an engine out while
executing the duties of a pilot in command.
(3) Except as provided in paragraph (b)(4) of this section, the
requirements of this paragraph (b)(3) may be accomplished in a flight
simulator that is--
(i) Qualified and approved by the Administrator for such purposes;
and
(ii) Used in accordance with an approved course conducted by a
training center certificated under part 142 of this chapter.
(4) An applicant for an initial second-in-command qualification for
a particular type of aircraft who is qualifying under the terms of
paragraph (b)(3) of this section shall satisfactorily complete a
minimum of one takeoff and one landing in an aircraft of the same type
for which the qualification is sought.
* * * * *
16. Section 61.56 is amended by revising paragraph (e) and adding a
new paragraph (h) to read as follows:
Sec. 61.56 Flight review.
* * * * *
(e) An applicant who has, within the period specified in paragraphs
(c) and (d) of this section, satisfactorily completed a test for a
pilot certificate, rating, or operating privilege, need not accomplish
the flight review required by this section if the test was conducted by
a person authorized by the Administrator, or authorized by a U.S. Armed
Force, to conduct the test.
* * * * *
(h) A flight simulator or flight training device may be used to
meet the flight review requirements of this section subject to the
following conditions:
(1) The flight simulator or flight training device must be approved
by the Administrator for that purpose.
(2) The flight simulator or flight training device must be used in
accordance with an approved course conducted by a training center
certificated under part 142 of this chapter.
(3) Unless the review is undertaken in a flight simulator that is
approved for landings, the applicant must meet the takeoff and landing
requirements of Sec. 61.57 (c) or (d).
(4) The flight simulator or flight training device used must
represent an aircraft, or set of aircraft, for which the pilot is
rated.
17. Section 61.57 is amended by revising paragraphs (c), (d), and
(e) to read as follows:
Sec. 61.57 Recent flight experience: Pilot in command.
* * * * *
(c) General experience. (1) Except as otherwise provided in
paragraph (f) of this section, no person may act as pilot in command of
an aircraft carrying passengers, or of an aircraft certificated for
more than one required pilot flight crewmember, unless that person
meets the following requirements--
(i) Within the preceding 90 calendar days, that person must have
made three takeoffs and three landings as the sole manipulator of the
flight controls in an aircraft of the same category and class and, if a
type rating is required, of the same type of aircraft.
(ii) If the aircraft operated under paragraph (c)(1)(i) of this
section is a tailwheel airplane, that person must have made to a full
stop the landings required by that paragraph.
(2) For the purpose of meeting the requirements of this section, a
person may act as pilot in command of a flight under day visual flight
rules (VFR) or day instrument flight rules (IFR) if no persons or
property are carried other than as necessary for compliance with this
part.
(3) The takeoffs and landings required by paragraph (c)(1) of this
section may be accomplished in a flight simulator or flight training
device--
(i) Qualified and approved by the Administrator for landings; and
(ii) Used in accordance with an approved course conducted by a
training center certificated under part 142 of this chapter.
(d) Night experience. (1) Except as provided in paragraph (f) of
this section, no person may act as pilot in command of an aircraft
carrying passengers at night (the period beginning 1 hour after sunset
and ending 1 hour before sunrise (as published in the American Air
Almanac) unless, within the preceding 90 days, that person has made not
fewer than three takeoffs and three landings to a full stop, at night,
as the sole manipulator of the flight controls in the same category and
class of aircraft.
(2) The takeoffs and landings required by paragraph (d)(1) of this
section may
[[Page 34550]]
be accomplished in a flight simulator that is--
(i) Qualified and approved by the Administrator for takeoffs and
landings, if the visual system is adjusted to represent the time of day
described in paragraph (d)(1) of this section; and
(ii) Used in accordance with an approved course conducted by a
training center certificated under part 142 of this chapter.
(e) Instrument currency. (1) Except as provided by paragraph (f) of
this section, no person may act as pilot in command under IFR, or in
weather conditions less than the minimums prescribed for VFR, unless,
within the preceding 6 calendar months, that person has--
(i) In the case of an aircraft other than a glider--
(A) Logged at least 6 hours of instrument time including at least
six instrument approaches under actual or simulated instrument
conditions, not more than 3 hours of which may be in approved
simulation representing aircraft other than gliders; or
(B) Passed an instrument competency test as described in paragraphs
(e)(2) and (e)(3) of this section; or
(ii) In the case of a glider, the person must have logged at least
3 hours of instrument time, at least half of which was in a glider or
an airplane, except that the person may not carry a passenger in the
glider until that person has completed at least 3 hours of instrument
flight time in a glider.
(2) A person who does not meet the recent instrument experience
requirements of paragraph (e)(1) of this section during the prescribed
time, or within 6 calendar months thereafter, may not serve as pilot in
command under IFR, or in weather conditions less than the minimums
prescribed for VFR, until that person passes an instrument competency
test in the category and class of aircraft involved, given by a person
authorized by the Administrator to conduct the test.
(3) The Administrator may authorize the conduct of all or part of
the test required by paragraph (e)(2) of this section in a qualified
and approved flight simulator or flight training device.
* * * * *
18. Section 61.58 is revised to read as follows:
Sec. 61.58 Pilot-in-command proficiency check: Operation of aircraft
requiring more than one required pilot.
(a) Except as otherwise provided in this section, to serve as pilot
in command of an aircraft that is type certificated for more than one
required pilot crewmember, a person must--
(1) Within the preceding 12 calendar months, complete a pilot-in-
command check in an aircraft that is type certificated for more than
one required pilot crewmember; and
(2) Within the preceding 24 calendar months, complete a pilot-in-
command check in the particular type of aircraft in which that person
will serve as pilot in command.
(b) This section does not apply to persons conducting operations
under part 121, part 125, part 127, part 133, part 135, or part 137 of
this chapter.
(c) The pilot-in-command check given in accordance with the
provisions of part 121, part 125, part 127, or part 135 of this chapter
may be used to satisfy the requirements of this section.
(d) The pilot-in-command check required by paragraph (a) of this
section may be accomplished by satisfactory completion of one of the
following--
(1) A pilot-in-command proficiency check conducted by a person
authorized by the Administrator, consisting of the maneuvers and
procedures required for a type rating;
(2) The practical test required for a type rating;
(3) The initial or periodic practical test required for the
issuance of a pilot examiner or a check airman designation; or
(4) A military flight check required for a pilot in command with
instrument privileges, in an aircraft that the military requires to be
operated by more than one pilot.
(e) A check or a test described in paragraphs (d)(1) through (d)(4)
of this section may be accomplished in a flight simulator qualified and
approved under part 142 of this chapter subject to the following:
(1) Except as allowed in paragraphs (e)(2) and (e)(3) of this
section, if an otherwise qualified and approved flight simulator used
for a pilot-in-command proficiency check is not qualified and approved
for a specific required maneuver--
(i) The training center shall annotate, in the applicant's training
record, the maneuver or maneuvers omitted; and
(ii) Prior to acting as pilot in command, the pilot shall
demonstrate proficiency in each omitted maneuver in an aircraft or
flight simulator qualified and approved for each omitted maneuver.
(2) If the flight simulator used pursuant to this paragraph (e) is
not qualified and approved for circling approaches--
(i) The applicant's record shall be annotated with the statement,
``Proficiency in circling approaches not demonstrated''; and
(ii) The applicant may not perform circling approaches as pilot in
command when weather conditions are less than the basic VFR conditions
described in Sec. 91.155 of this chapter, until proficiency in circling
approaches has been successfully demonstrated in an approved simulator
or aircraft to a person authorized by the Administrator to conduct the
check required by this section.
(3) If the flight simulator used pursuant to this paragraph (e) is
not qualified and approved for landings the applicant must--
(i) Hold a type rating in the airplane represented by the
simulator; and
(ii) Have completed, within the preceding 90 days, at least three
takeoffs and three landings (one to a full stop) as the sole
manipulator of the flight controls in the type airplane for which the
pilot-in-command proficiency check is sought.
(f) For the purpose of meeting the check requirements of paragraph
(a) of this section, a person may act as pilot in command of a flight
under day VFR conditions or day IFR conditions if no person or property
is carried, other than as necessary to demonstrate compliance with this
part.
(g) If a pilot takes the check required by this section in the
calendar month before, or the calendar month after, the month in which
it is due, the pilot is considered to have taken it in the month in
which it was due for the purpose of computing when the next check is
due.
19. Section 61.63 is amended by revising the section heading and
paragraph (a) to read as follows:
Sec. 61.63 Additional aircraft ratings for other than airline
transport pilot certificates (for parts 121 and 135 use only).
(a) General. To be eligible for an additional aircraft rating to a
pilot certificate, an applicant who is a pilot crewmember employee of a
part 121 certificate holder or a part 135 certificate holder must meet
the requirements of paragraphs (b) through (d) of this section, as
applicable to the rating sought.
* * * * *
20. A new section 61.64 is added to read as follows:
Sec. 61.64 Additional aircraft ratings for other than airline
transport pilot certificates (for other than parts 121 and 135 use).
(a) General. To be eligible for an additional aircraft rating to a
pilot certificate, an applicant who is not a crewmember employee
applicant of a part 121 training program or a part 135 training program
must meet the requirements of paragraphs (b) through
[[Page 34551]]
(i) of this section, applicable to the rating sought.
(b) Category rating. An applicant who holds a pilot certificate and
applies to add a category rating must meet the following requirements:
(1) Present a record of training certified by an authorized
instructor showing that the applicant has--
(i) Received ground training on the aeronautical knowledge areas
applicable to the pilot certificate and aircraft category and class
rating sought;
(ii) Received flight training in the category and class of aircraft
on the areas of operation applicable to the pilot certificate and
aircraft category and class rating sought;
(iii) Been found competent by the certifying flight instructor in
the aeronautical knowledge areas required for the pilot certificate to
which the added aircraft category rating would apply; and
(iv) Been found competent by the certifying flight instructor in
the areas of operation required for the pilot certificate to which the
added aircraft category rating would apply;
(2) Pass the knowledge test applicable to the pilot certificate and
aircraft category and class rating sought; and
(3) Pass the practical test required for the pilot certificate
held, and category and class rating sought.
(c) Class rating. An applicant who holds a pilot certificate and
applies to add a class rating must meet the following requirements:
(1) The applicant must present a record certified by an authorized
instructor showing that the applicant has--
(i) Received flight instruction in the class of aircraft on the
areas of operation applicable to the pilot certificate and aircraft
class rating sought;
(ii) Received ground training on the aeronautical knowledge areas
applicable to the pilot certificate and aircraft class rating sought;
(iii) Been found competent by the certifying flight instructor in
the aeronautical knowledge areas applicable to the pilot certificate to
which the category and class rating would apply; and
(iv) Been found competent by the certifying flight instructor in
the areas of operation applicable to the pilot certificate to which the
aircraft class rating would apply;
(2) Pass a knowledge test applicable to the pilot certificate and
aircraft class rating sought; and
(3) Pass a practical test required for the pilot certificate held,
and required for the category and class rating sought.
(d) Type rating. An applicant who holds a pilot certificate and
applies to add a type rating must meet the following requirements--
(1) Present a record of training certified by an authorized
instructor that shows that the applicant has--
(i) Received ground training on the aeronautical knowledge areas
applicable to the type rating sought;
(ii) Received flight training on the areas of operation applicable
to the type rating sought; and
(iii) Been found competent by the certifying flight instructor in
the areas of operation required for the issue of the pilot certificate
for which the aircraft type rating is sought.
(2) Passed a required practical test on the areas of operation
listed in Sec. 61.158 or Sec. 61.163, as applicable, for the aircraft
type rating sought.
(3) If the applicant does not hold an instrument rating, in
addition to the tasks required by paragraph (d)(2) of this section, the
applicant must also demonstrate competency in the operations required
by Sec. 61.65(g).
(e) The tasks required by paragraphs (b), (c), and (d) of this
section shall be performed as follows:
(1) Except as provided in paragraph (e)(2) of this section, the
tasks must be performed in an aircraft of the same category, class, and
type, if applicable, as the aircraft for which the added rating is
sought.
(2) Subject to the limitations of paragraph (e)(3) through (e)(12)
of this section, the tasks may be performed in a flight simulator or a
flight training device that represents the aircraft for which the added
rating is sought.
(3) The flight simulator or flight training device use permitted by
paragraph (e)(2) of this section shall be conducted in accordance with
an approved course at a training center certificated under part 142 of
this chapter.
(4) To complete all training and testing (except preflight
inspection) for an unlimited added rating in a flight simulator--
(i) The flight simulator must be qualified as Level C or Level D;
and
(ii) The applicant must meet at least one of the following:
(A) Hold a type rating for a turbojet airplane of the same class as
the class of airplane for which the type rating is sought, or have been
appointed by a military service as a pilot in command of an airplane of
the same class as the class of airplane for which the type rating is
sought, if a turbojet type rating is sought.
(B) Hold a type rating for a turbopropeller airplane of the same
class as the class of airplane for which the type rating is sought, or
have been designated by a military service as a pilot in command of an
airplane of the same class as the class of airplane for which the type
rating is sought, if a turbopropeller airplane type rating is sought.
(C) Have at least 2,000 hours of actual flight time, of which 500
hours must be in turbine-powered airplanes of the same class as the
class of airplane for which the type rating is sought.
(D) Have at least 500 hours of actual flight time in the same type
airplane as the airplane for which the rating is sought.
(E) Have at least 1,000 hours of flight time in at least two
different airplanes requiring a type rating.
(5) Subject to the limitation of paragraph (e) (6) of this section,
an applicant who does not meet the requirements of paragraph (e)(4) of
this section may complete all training and testing (except for
preflight inspection) for an added rating in a flight simulator if--
(i) The flight simulator is qualified as Level C or Level D; and
(ii) The applicant meets at least one of the following:
(A) Holds a type rating in a propeller-driven airplane if a type
rating in a turbojet airplane is sought, or holds a type rating in a
turbojet airplane if a type rating in a propeller-driven airplane is
sought.
(B) Since the beginning of the 12th calendar month before the month
in which the applicant completes the practical test for the added
rating, has logged--
(1) At least 100 hours of flight time in airplanes in the same
class of airplane for which the type rating is sought and which require
a type rating; and
(2) At least 25 hours of flight time in airplanes in the same type
of airplane for which the rating is sought.
(6) An applicant meeting only the requirements of paragraph (e)(5)
of this section will be issued an added rating with a limitation.
(7) The limitation on certificates issued under the provisions of
paragraph (e)(6) of this section shall state, ``This certificate is
subject to pilot-in-command limitations for the added rating.''
(8) An applicant gaining a certificate with the limitation
specified in paragraph (e)(7) of this section--
(i) May not act as PIC of the aircraft for which an added rating
was obtained under the provisions of this section until he or she has
had the limitation removed from the certificate; and
(ii) May have the limitation removed by serving 15 hours of
supervised operating experience as pilot in
[[Page 34552]]
command under the supervision of a qualified and current pilot in
command, in the seat normally occupied by the pilot in command, in an
aircraft of the same type as the airplane to which the limitation
applies.
(9) An applicant who does not meet the requirements of paragraph
(e)(4) or (e)(5) of this section may be awarded an added rating after
successful completion of one of the following requirements:
(i) Compliance with paragraph (e)(2) and (e)(3) of this section and
the following tasks, applicable to airplane ratings only, which must be
successfully completed on a static airplane or in flight, as
appropriate:
(A) Preflight inspection;
(B) Normal takeoff;
(C) Normal ILS approach;
(D) Missed approach; and
(E) Normal landing.
(ii) Compliance with paragraphs (e)(2), (e)(3), and (e)(10) through
(e)(12) of this section.
(10) An applicant meeting only the requirements of paragraph (e)(9)
of this section will be issued an added rating with a limitation.
(11) The limitation on certificates issued under the provisions of
paragraph (e)(10) of this section shall state, ``This certificate is
subject to pilot-in-command limitations for the added rating.''
(12) An applicant gaining a certificate with the limitation
specified in paragraph (e)(11) of this section--
(i) May not act as PIC of the aircraft for which an added rating
was obtained under the provisions of this section until he or she has
had the limitation removed from the certificate; and
(ii) May have the limitation removed by serving 25 hours of
supervised operating experience as pilot in command under the
supervision of a qualified and current pilot in command, in the seat
normally occupied by the PIC, in an aircraft of the same type as the
airplane to which the limitation applies.
(f) An applicant for a type rating who provides an aircraft not
capable of the instrument maneuvers and procedures required by
Sec. 61.158 or Sec. 61.163 for the practical test may--
(1) Obtain a type rating limited to ``VFR only''; and
(2) Remove the ``VFR only'' limitation for each aircraft type in
which the applicant demonstrates compliance with the instrument
requirements of Sec. 61.158 or Sec. 61.163 or the requirements of
Sec. 61.73(e)(2).
(g) An applicant for a type rating may be issued a certificate with
the limitation ``VFR only'' for each aircraft type not equipped for the
applicant to show instrument competency.
(h) An applicant for a type rating in a multiengine, single-pilot-
station airplane may meet the requirements of this part in another
multiengine airplane.
(i) An applicant for a type rating in a single-engine, single-
pilot-station airplane may meet the requirements of this part in
another single-engine or multiengine airplane if the applicant meets
the instrument currency requirements of Sec. 61.57(e).
21. Section 61.65 is amended by removing and reserving paragraphs
(d) and (f), revising paragraph (b) introductory text, paragraph (c)
introductory text and (c)(1), (c)(3), (c)(4), and (c)(5), paragraph (e)
introductory text and (e)(2) and (g); and adding paragraph (c)(6) and
(h) to read as follows:
Sec. 61.65 Instrument rating requirements.
* * * * *
(b) Ground instruction and written test. An applicant for the
written test for an instrument rating must have received ground
instruction or have logged home study in, and passed a written test on,
at least the following areas of aeronautical knowledge applicable to
the rating sought:
* * * * *
(c) Flight instruction. Except as otherwise provided in this
paragraph, an applicant for the practical test for an instrument rating
must present a record certified by an authorized instructor showing
instrument flight instruction and competency in an aircraft of the same
category for which the instrument rating is sought, in each of the
following areas of operations:
(1) Control and accurate maneuvering of the aircraft solely by
reference to instruments.
* * * * *
(3) Instrument approaches to published minimums using two different
nonprecision approach systems and one precision approach system.
(4) Cross-country flight in an aircraft in simulated or actual IFR
conditions, on Federal airways or as routed by air traffic control,
subject to the following:
(i) The flight must be at least 250 nautical miles (100 nautical
miles for helicopters) including a minimum of one precision instrument
approach and two nonprecision instrument approaches.
(ii) Each instrument approach must be accomplished at a different
airport.
(iii) If the departure and final destination airports are the same
airport, the destination airport may be considered as the third
airport.
(iv) No approach need be done more than once.
(5) Simulated emergencies involving equipment or instrument
malfunctions, missed approach procedures, deviations to unplanned
alternates, recovery from unusual attitudes, loss of communications,
and simulated loss of power on at least one-half of the engines if a
multiengine aircraft is used.
(6) Flight instruction required by paragraphs (c)(1), (c)(2),
(c)(3), and (c)(5) of this section may be accomplished in a qualified
and approved flight simulator or in a qualified and approved flight
training device.
(d) [Reserved]
(e) Flight experience. Except as provided in paragraph (h) of this
section, an applicant for an instrument rating must have at least the
following flight time as a pilot:
* * * * *
(2) 40 hours of simulated or actual instrument time, which may
include--
(i) Not more than a combined total of 20 hours of instrument
instruction by an authorized instructor in a qualified and approved
flight simulator or in a qualified and approved flight training device;
or
(ii) Not more than 30 hours of instrument instruction accomplished
in an approved course conducted by a training center certificated under
part 142 of this chapter.
* * * * *
(f) [Reserved]
(g) Practical test. An applicant for an instrument rating must pass
a practical test consisting of an oral increment and a flight
increment, as follows:
(1) The flight increment required by this paragraph (g) (1) may be
accomplished in any category, class, and type aircraft that is
certificated for flight in instrument conditions, or in a qualified and
approved flight simulator or qualified and approved flight training
device.
(2) The practical test required by this paragraph (g) (2) must
include instrument flight procedures, selected by the person authorized
by the Administrator to conduct the practical test, to determine the
applicant's ability to perform competently the IFR operations described
in paragraph (c) of this section.
(3) The following requirements of the practical test must be
accomplished in an aircraft or in a qualified and approved flight
simulator:
(i) At least one published precision, nonprecision, and circling
approach.
(ii) At least one landing.
(iii) At least one cross-country flight.
(h) Training qualifications. An applicant for the instrument rating
who
[[Page 34553]]
has satisfactorily completed an approved curriculum conducted at a
training center certificated under part 142 of this chapter must have--
(1) A total of at least 95 hours of pilot flight time, including at
least 35 hours of simulated or actual instrument flight time; or
(2) Satisfactorily completed the requirements of an approved
instrument rating course at a part 142 certified training center that
has received approval from the Administrator to conduct a curriculum
satisfying the requirements of the instrument rating in--
(i)Fewer than 95 hours of pilot flight time; or
(ii) Fewer than 35 hours of simulated instrument time or actual
instrument time.
22. Section 61.67 is amended by revising paragraphs (a)(2), (b)
introductory text, (b)(1), (b)(2), (c)(2), (d) introductory text,
(d)(1) introductory text, and (d)(2), by removing the concluding text
at the end of paragraph (c), and by adding paragraphs (c)(3) through
(c)(7) to read as follows:
Sec. 61.67 Category II pilot authorization requirements.
(a) * * *
(2) A type rating for the aircraft for which the authorization is
sought if that aircraft requires a type rating.
(b) Experience requirements. An applicant for a Category II
authorization must have at least--
(1) 50 hours of night flight time as pilot in command;
(2) 75 hours of instrument time under actual or simulated
instrument conditions that may include not more than--
(i) A combination of 25 hours of simulated instrument flight time
in qualified and approved flight simulators or qualified and approved
flight training devices; or
(ii) 40 hours of simulated instrument flight time if accomplished
in an approved course conducted by an appropriately rated training
center certificated under part 142 of this chapter.
* * * * *
(c) * * *
(2) To be eligible for the practical test, an applicant must--
(i) Meet the requirements of paragraphs (a) and (b) of this
section;
(ii) Hold the appropriate class rating; and
(iii) If the applicant has not passed a practical test for this
authorization since the beginning of the twelfth calendar month, meet
the following recent experience requirements--
(A) The requirements of Sec. 61.57(e); and
(B) At least six ILS approaches since the beginning of the sixth
month before the practical test, subject to the following:
(1) The approaches must be conducted under actual or simulated
instrument flight conditions.
(2) The approaches must be conducted down to the minimum decision
height for the ILS approach in the type aircraft in which the practical
test is to be conducted.
(3) Except as provided in paragraph (c)(4) of this section, the
approaches must be accomplished in an aircraft of the same category and
class, and type, as applicable, as the aircraft in which the practical
test is to be conducted.
(4) The approaches may be accomplished in a flight simulator that--
(i) Represents an aircraft of the same category and class, and
type, as applicable, as the aircraft in which the authorization is
sought; and
(ii) Is used in accordance with an approved course conducted by a
training center certificated under part 142 of this chapter.
(5) The approaches need not be conducted down to the decision
height authorized for Category II operations if conducted in a
qualified and approved flight simulator or qualified and approved
flight training device.
(6) At least three of the approaches required by paragraph
(c)(2)(iii)(B) of this section must be conducted manually, without the
use of an approach coupler.
(7) The flight time acquired in meeting the requirements of
paragraph (c)(2)(iii)(B) of this section may be used to meet the
requirements of paragraph (c)(2)(iii)(A) of this section.
(d) Practical test procedures. Oral questioning may be conducted at
any time during the practical test. The practical test consists of two
increments:
(1) Oral increment. The applicant must demonstrate knowledge of the
following:
* * * * *
(2) Flight increment. The following requirements apply to the
flight increment of a practical test:
(i) The flight increment may be conducted in an aircraft of the
same category and class and type, as applicable, as the aircraft in
which the authorization is sought or in a flight simulator that--
(A) Represents an aircraft of the same category and class, and
type, as applicable, as the aircraft in which the authorization is
sought; and
(B) Is used in accordance with an approved course conducted by a
training center certificated under part 142 of this chapter.
(ii) At least two ILS approaches to 100 feet AGL including at least
one landing and one missed approach.
(iii) All approaches must be made with the approved flight control
guidance system, except that if an approved automatic approach coupler
is installed, at least one approach must be hand flown using flight
director commands.
(iv) If a multiengine airplane with the performance capability to
execute a missed approach with one engine inoperative is used, one
missed approach must be executed with an engine, which shall be the
most critical engine, if applicable, set at idle or zero thrust before
reaching the middle marker.
(v) If a flight simulator is used, the missed approach must be
executed with an engine, which shall be the most critical engine, if
applicable, failed.
(vi) For authorizations for aircraft that require a type rating,
the test must be performed in coordination with a second in command who
holds a type rating in the aircraft in which the authorization is
sought.
23. Section 61.68 is added to read as follows:
Sec. 61.68 Category III pilot authorization requirements.
(a) General. An applicant for a Category III pilot authorization
must hold--
(1) A pilot certificate with an instrument rating or airline
transport pilot certificate;
(2) A valid medical certificate;
(3) A category and class rating for the aircraft for which the
authorization is sought; and
(4) A type rating for the aircraft for which the authorization is
sought, if that aircraft requires a type rating.
(b) Experience requirements. An applicant for a Category III
authorization must have at least--
(1) 50 hours of night flight time as pilot in command;
(2) Except as provided in paragraph (c) of this section, 75 hours
of instrument flight time during actual or simulated instrument
conditions that may include not more than a combination of 25 hours of
simulated instrument flight time in qualified and approved flight
simulators or qualified and approved flight training devices; and
(3) 250 hours of cross-country flight time as pilot in command.
(c) Increasing instrument flight time hours. The instrument flight
time
[[Page 34554]]
allowed in flight simulators or flight training devices under paragraph
(b)(2) of this section may be increased to not more than 40 hours if
accomplished in an approved course conducted by a training center
certificated under part 142 of this chapter.
(d) Practical test required. (1) An applicant for the issuance or
renewal of a Category III authorization or for the addition of another
type aircraft to an authorization must pass a practical test.
(2) If the applicant has not passed a practical test for this
authorization since the beginning of the twelfth calendar month, the
applicant must meet the following recency of experience requirements:
(i) The requirements of Sec. 61.57(e).
(ii) At least six ILS approaches since the beginning of the sixth
month before the practical test, subject to the following:
(A) The approaches must be conducted under actual or simulated
instrument flight conditions and flown down to the minimum altitude for
the ILS approach.
(B) Except as provided in paragraph (d)(2)(ii)(C) of this section,
the approaches must be accomplished in an aircraft of the same category
and class, and type, as applicable, as the aircraft in which the
practical test is to be conducted.
(C) The approaches may be accomplished in a flight simulator or
flight training device that--
(1) Represents an aircraft of the same category and class, and
type, as applicable, as the aircraft for which the authorization is
sought; and
(2) Is used in accordance with an approved course conducted by a
training center certificated under part 142 of this chapter.
(D) Conducted down to the alert height or decision height, as
applicable, authorized for Category III operations only if conducted in
a qualified and approved flight simulator or qualified and approved
flight training device.
(e) Practical test procedures. Oral questioning may be conducted at
any time during the practical test. The practical test consists of two
increments:
(1) Oral increment. The applicant must demonstrate knowledge of the
following:
(i) Required landing distance.
(ii) Determination and recognition of the alert height or decision
height, as applicable, including use of a radar altimeter.
(iii) Recognition of and proper reaction to significant failures
encountered prior to and after reaching the alert height or decision
height, as applicable.
(iv) Missed approach procedures and techniques using computed or
fixed attitude guidance displays and expected height loss as they
relate to manual go-around or automatic go-around and initiation
altitude, as applicable.
(v) The use and limitations of RVR, including determination of
controlling RVR and required transmissometers.
(vi) The use, availability, or limitations of visual cues and the
altitude at which they are normally discernible at reduced RVR readings
including--
(A) Unexpected deterioration of conditions to less than minimum RVR
during approach, flare, and rollout;
(B) Demonstration of expected visual references with weather at
minimum conditions; and
(C) The expected sequence of visual cues during an approach in
which visibility is at or above landing minima.
(vii) Procedures and techniques for making a transition from
instrument reference flight to visual flight during a final approach
under reduced RVR.
(viii) Effects of vertical and horizontal wind shear.
(ix) Characteristics and limitations of the ILS and runway lighting
system.
(x) Characteristics and limitations of the flight director system
auto approach coupler (including split axis type if so equipped), auto
throttle system, if applicable, and other Category III equipment, as
applicable.
(xi) Assigned duties of the second in command during Category III
operations, unless the aircraft for which authorization is sought does
not require a second in command.
(xii) Recognition of the limits of acceptable aircraft position and
flight path tracking during approach, flare, and, if applicable,
rollout.
(xiii) Recognition of, and reaction to, airborne or ground system
faults or abnormalities, particularly after passing alert height or
decision height, as applicable.
(2) Flight increment. The following requirements apply to the
flight increment of the practical test:
(i) The flight increment may be conducted in an aircraft of the
same category and class, and type, as applicable, as the aircraft in
which the authorization is sought, or in a flight simulator that--
(A) Represents an aircraft of the same category and class, and
type, as applicable, as the aircraft in which the authorization is
sought; and
(B) Is used in accordance with an approved course conducted by a
training center certificated under part 142 of this chapter.
(ii) All approaches must be made with the approved automatic
landing system or an equivalent landing system approved by the
Administrator and must consist of the following:
(A) At least two ILS approaches to 100 feet AGL, including one
landing and one missed approach initiated from a very low altitude that
may result in a touchdown during the go-around maneuver.
(B) If a multiengine aircraft with the performance capability to
execute a missed approach with one engine inoperative is used, a missed
approach shall be executed with an engine, which shall be the most
critical engine, if applicable, set at idle or zero thrust before
reaching the middle or outer marker.
(C) If a flight simulator or flight training device is used, a
missed approach must be executed with an engine, which shall be the
most critical engine, if applicable, failed.
(D) Subject to the limitations of paragraph (e)(2)(ii)(E) of this
section, for Category IIIb operations predicated on the use of a fail-
passive rollout control system, at least one manual rollout using
visual reference or a combination of visual and instrument references.
(E) The maneuver required by paragraph (e)(2)(ii)(D) of this
section shall be initiated by a fail-passive disconnect of the rollout
control system--
(1) After main gear touchdown;
(2) Prior to nose gear touchdown;
(3) In conditions representative of the most adverse lateral
touchdown displacement allowing a safe landing on the runway; and
(4) In weather conditions anticipated in Category IIIb operations.
(iii) For authorizations for aircraft that require a type rating,
the practical test must be performed in coordination with a second in
command who holds a type rating in the aircraft in which the
authorization is sought.
24. Section 61.109 is revised to read as follows:
Sec. 61.109 Airplane rating: Aeronautical experience.
(a) Except as provided in paragraph (h) of this section, an
applicant for a private pilot certificate with an airplane category
rating must have at least the following aeronautical experience:
(1) At least 20 hours of flight instruction from an authorized
instructor, including at least--
(i) 3 hours of cross-country flight.
(ii) 3 hours of flight at night, including ten takeoffs and ten
landings for applicants seeking night flying privileges.
(iii) 3 hours in airplanes in preparation for the private pilot
[[Page 34555]]
practical test within 60 calendar days prior to that test.
(2) At least 20 hours of solo flight time, including at least-
(i) 10 hours of flight in airplanes;
(ii) 10 hours of cross-country flight; and
(iii) Three solo takeoffs and landings to a full stop at an airport
with an operating control tower.
(b) Each flight required by paragraph (a)(2)(ii) of this section
must include--
(1) A landing at a point more than 50 nautical miles from the
original departure point; and
(2) One flight of at least 300 nautical miles with landings at a
minimum of three points, one of which is at least 100 nautical miles
from the original departure point.
(c) An applicant who does not meet the night flying requirement of
paragraph (a)(1)(ii) of this section may be issued a private pilot
certificate bearing the limitation ``night flying prohibited.'' The
limitation may be removed if the holder of the certificate shows that
he or she has met the requirements of paragraph (a)(1)(ii) of this
section.
(d) Except as provided in paragraph (e) of this section, a maximum
of 2.5 hours of instruction in a flight simulator or flight training
device representing an airplane from an authorized instructor may be
credited toward the total hours required by paragraph (a) of this
section.
(e) A maximum of 5 hours of instruction in a flight simulator or
flight training device representing an airplane may be credited toward
the total hours required by paragraph (a) of this section if the
instruction is accomplished in a course conducted by a training center
certificated under part 142 of this chapter.
(h) Except where fewer hours are approved by the Administrator, an
applicant for a private pilot certificate with an airplane rating who
has satisfactorily completed an approved private pilot course conducted
by a training center certificated under part 142 of this chapter need
have only a total of at least 35 hours of pilot flight time in
aircraft, flight simulators, or flight training devices.
25. Section 61.113 is revised to read as follows:
Sec. 61.113 Rotorcraft rating: Aeronautical experience.
(a) Except as provided in paragraph (g) of this section, an
applicant for a private pilot certificate with a rotorcraft category
rating must have at least the following aeronautical experience:
(1) For a helicopter class rating, 40 hours of flight instruction
and solo flight time including at least--
(i) 20 hours of flight instruction from an authorized flight
instructor, 15 hours of which must be in a helicopter, including--
(A) 3 hours of cross-country flying in helicopters; and
(B) 3 hours of night flying in helicopters, including 10 takeoffs
and 10 landings, each of which must be separated by an en-route phase
of flight;
(ii) 3 hours in helicopters in preparation for the private pilot
practical test within 60 calendar days before that test;
(iii) A flight in a helicopter with a landing at a point other than
an airport; and
(2) 20 hours of solo flight time, 15 hours of which must be in a
helicopter, including at least--
(i) 3 hours of cross-country flying in helicopters, including one
flight with a landing at three or more points, each of which must be
more than 25 nautical miles from each of the other landing points; and
(ii) Three takeoffs and three landings in helicopters at airports
or heliports with operating control towers, each separated by an en-
route phase of flight.
(b) Except as provided in paragraph (c) of this section, a maximum
of 2.5 hours of instruction in a flight simulator or flight training
device representing a helicopter from an authorized instructor may be
credited toward the total hour requirement of paragraph (a) of this
section.
(c) A maximum of 5 hours of instruction in a flight simulator or
flight training device representing a helicopter may be credited toward
the total hours required by paragraph (a) of this section if the
instruction is accomplished in a course conducted by a training center
certificated under part 142 of this chapter.
(d) The applicant for a gyroplane class rating must have a total of
at least--
(1) 20 hours of flight instruction from an authorized flight
instructor, 15 hours of which must be in a gyroplane, including at
least the following--
(i) 3 hours of cross-country flying in gyroplanes;
(ii) 3 hours of night flying in gyroplanes, including ten takeoffs
and ten landings; and
(iii) 3 hours in gyroplanes in preparation for the private pilot
flight test within 60 calendar days before that test.
(2) 20 hours of solo flight time, 10 hours of which must be in a
gyroplane, including--
(i) 3 hours of cross-country flying in gyroplanes, including one
flight with a landing at three or more points, each of which must be
more than 25 nautical miles from each of the other two points; and
(ii) Three takeoffs and three landings in gyroplanes at an airport
with an operating control tower.
(3) Except as provided in paragraph (d)(4) of this section, a
maximum of 2.5 hours of instruction in a flight simulator or flight
training device representing a gyroplane may be credited toward the
total hours required by paragraph (d)(1) of this section.
(4) A maximum of 5 hours of instruction in a flight simulator or
flight training device representing a gyroplane may be credited toward
the total hours required by paragraph (d)(1) of this section if the
instruction is accomplished in an approved course conducted by a
training center certificated under part 142 of this chapter.
(e) An applicant who does not meet the night flying requirements of
paragraph (a)(1)(i)(B) or paragraph (d)(1)(ii) of this section will be
issued a private pilot certificate bearing the limitation ``night
flying prohibited.''
(f) The limitation required by paragraph (e) of this section may be
removed if the holder of the certificate demonstrates compliance with
the requirements of paragraph (a)(1)(i)(B) or paragraph (d)(1)(ii) of
this section, as applicable.
(g) Except where fewer hours are approved by the Administrator, an
applicant for a private pilot certificate with a rotorcraft category
rating who has satisfactorily completed an approved private pilot
course conducted by a training center certificated under part 142 of
this chapter need have only a total of at least 35 hours of pilot
flight time in aircraft, flight simulators, or flight training devices.
26. Section 61.129 is amended by revising paragraph (b)
introductory text and (b)(1) and (b)(2) introductory text, and by
adding paragraphs (b)(4) and (c) to read as follows:
Sec. 61.129 Airplane rating: Aeronautical experience.
* * * * *
(b) Flight time as pilot. Except as provided in paragraph (c) of
this section, an applicant for a commercial pilot certificate with an
airplane rating must have at least the following aeronautical
experience:
(1) A total of at least 250 hours of flight time as a pilot that
may include not more than--
(i) Except as provided in paragraph (b)(1)(ii) of this section, 50
hours of flight simulator instruction or flight training device
instruction from an authorized instructor; or
[[Page 34556]]
(ii) 100 hours of flight simulator instruction or flight training
device instruction, if the instruction is accomplished in an approved
course conducted by a training center certificated under part 142 of
this chapter.
(2) The flight time required by paragraph (b)(1) of this section
must include--
* * * * *
(4) Flight simulator instruction and flight training device
instruction must be accomplished in a qualified and approved flight
simulator or in a qualified and approved flight training device
representing an airplane.
(c) Except where fewer hours are approved by the Administrator, an
applicant for a commercial pilot certificate with an airplane rating
who has satisfactorily completed an approved commercial pilot course
conducted by a training center certificated under part 142 of this
chapter must have a total of at least 190 hours of pilot flight time in
aircraft, flight simulators, or flight training devices.
27. Section 61.131 is amended by revising the introductory text,
paragraph (b) introductory text and (b)(1) introductory text, and by
adding paragraphs (a)(3), (a)(4), (b)(3), (b)(4), and (c) to read as
follows:
Sec. 61.131 Rotorcraft ratings: Aeronautical experience.
Except as provided in paragraph (c) of this section, an applicant
for a commercial pilot certificate with a rotorcraft category rating
must have at least the following aeronautical experience:
(a) * * *
(3) Except as provided in paragraph (a)(4) of this section, a
maximum of 35 hours of flight simulator instruction or flight training
device instruction from an authorized instructor may be credited toward
the total hour requirement for a pilot certificate.
(4) A maximum of 50 hours of flight simulator instruction or flight
training device instruction may be credited toward the total hours
required by paragraph (a)(1) of this section if the instruction is
accomplished in an approved course conducted by a training center
certificated under part 142 of this chapter.
(b) For a gyroplane class rating:
(1) An applicant must have at least 150 hours of flight time in
aircraft, including at least 100 hours in powered aircraft, 25 hours of
which must be in a gyroplane, including at least--
* * * * *
(3) Except as provided in paragraph (b)(4) of this section, a
maximum of 35 hours of flight simulator instruction or flight training
device instruction from an authorized instructor may be credited toward
the total requirement for a pilot certificate if the instruction is
accomplished in a flight simulator or in a flight training device
representing a gyroplane.
(4) A maximum of 50 hours of flight simulator instruction or flight
training device if instruction may be credited toward the total hours
required by paragraph (b)(1) of this section if the instruction is
accomplished in an approved course conducted by a training center
certificated under part 142 of this chapter.
(c) Except as otherwise approved by the Administrator, an applicant
for a commercial pilot certificate with a rotorcraft rating and a
helicopter class rating who has satisfactorily completed an approved
commercial pilot course conducted by a training center certificated
under part 142 of this chapter must have a total of at least 150 hours
of pilot flight time in aircraft, flight simulators, or flight training
devices.
28. Section 61.155 is revised to read as follows:
Sec. 61.155 Airplane rating: Aeronautical experience.
(a) Except as provided in paragraph (d) of this section, for an
applicant for an airline transport pilot certificate with an airplane
category and class rating, the following requirements apply:
(1) The applicant must hold a commercial pilot certificate, a
foreign airline transport pilot, or commercial pilot license without
limitations issued by a member state of ICAO, or meet the requirements
of Sec. 61.73 that would qualify the applicant for a commercial pilot
certificate;
(2) The applicant must have at least 1,500 hours of total time as a
pilot that includes at least--
(i) 500 hours of cross-country flight time;
(ii) 100 hours of night flight time;
(iii) 75 hours of instrument flight time, in actual or simulated
instrument conditions, subject to the following:
(A) Except as provided in paragraph (a)(2)(iii)(B) of this section,
an applicant may not receive more than 25 hours of simulated instrument
time in flight simulators and flight training devices.
(B) A maximum of 50 hours of instruction in a flight simulator or
flight training device may be credited toward the total hours required
by paragraph (a)(2) of this section if the instruction is accomplished
in a course conducted by a training center certificated under part 142
of this chapter.
(C) Instruction in a flight simulator or flight training device
must be accomplished in a qualified and approved flight simulator or in
a qualified and approved flight training device, representing an
airplane; and
(iv) 250 hours of flight time in an airplane as a pilot in command
or as a second in command performing the duties and functions of a
pilot in command under the supervision of a pilot in command, or any
combination thereof, which includes at least--
(A) 100 hours of cross-country flight time; and
(B) 25 hours of night flight time; and
(3) Not more than 100 hours of total pilot experience may be
obtained in a flight simulator or flight training device, provided the
pilot experience is accomplished in an approved course conducted by a
training center certificated under part 142 of this chapter.
(b) An applicant who has performed at least 20 night takeoffs and
landings to a full stop may substitute each additional night takeoff
and landing to a full stop in excess of the minimum 20 takeoffs for 1
hour of night flight time to satisfy the requirements of paragraph
(a)(2) of this section, for a total credited time of no more than 25
hours.
(c) If an applicant with less than 150 hours of pilot-in-command
time otherwise meets the requirements of paragraph (a)(2)(iv) of this
section, the applicant's certificate will be endorsed ``Holder does not
meet the pilot-in-command flight experience requirement of ICAO'', as
prescribed by article 39 of the ``Convention on International Civil
Aviation.'' Whenever the pilot presents satisfactory written evidence
that 150 hours of pilot-in-command time has been accumulated, the
applicant is entitled to a new certificate without the endorsement.
(d) A commercial pilot may credit the following second-in-command
and flight engineer flight time (or a combination of either crewmember
position flight time) toward the 1,500 hours of total time as a pilot
required by paragraph (a) of this section:
(1) All second-in-command time acquired in an airplane required to
have more than one pilot by the airplane's flight manual or type
certificate or by the regulations under which the flight is conducted.
(2) Flight engineer time, provided the time--
(i) Is acquired in an airplane that is required to have a flight
engineer by the airplane's flight manual, the type
[[Page 34557]]
certificate, or the regulations under which the flight is conducted;
(ii) Is acquired while the applicant is participating in a pilot
training program approved under part 121 of this chapter; and
(iii) Is credited at a rate of 1 hour of flight time for each 3
hours of flight engineer time, for a total credited time of no more
than 500 hours.
(e) If an applicant who credits second-in-command or flight
engineer time under paragraph (d) of this section toward the 1,500
hours total flight time requirement of paragraph (a)(2) of this
section--
(1) Does not have at least 1,200 hours of flight time as a pilot
including not more than 50 percent of the second-in-command time and
none of the flight engineer time; but
(2) Otherwise meets the requirements of paragraph (a)(2) of this
section, the applicant's certificate will be endorsed ``Holder does not
meet the pilot flight experience requirements of ICAO,'' as prescribed
by article 39 of the ``Convention on International Civil Aviation.''
Whenever the applicant presents satisfactory evidence of having
accumulated 1,200 hours of flight time as a pilot including no more
than 50 percent of the second-in-command time and none of the flight
engineer time, the applicant is entitled to a new certificate without
the endorsement.
29. Section 61.157 is amended by revising the section heading and
adding a new paragraph (g) to read as follows:
Sec. 61.157 Airplane rating: Aeronautical skill (for parts 121 and 135
use only).
* * * * *
(g) Successful completion of a proficiency check under Sec. 121.441
of this chapter or successful completion of both a competency check,
under Sec. 135.293 of this chapter, and a pilot-in-command instrument
proficiency check, under Sec. 135.297 of this chapter, satisfies the
requirements of this section for the appropriate aircraft rating.
30. Section 61.158 is added to read as follows:
Sec. 61.158 Airplane rating: Aeronautical skill (for other than parts
121 and 135).
(a) An applicant for an airline transport pilot certificate with a
single engine or multiengine class rating or type rating, must--
(1) Pass a practical test based on the following areas of
operation:
(i) Preflight procedures.
(ii) Ground operations.
(iii) Takeoff and departure maneuvers.
(iv) In-flight maneuvers.
(v) Instrument procedures.
(vi) Landings and approaches to landings.
(vii) Normal and abnormal procedures.
(viii) Emergency procedures.
(ix) Postflight procedures.
(2) If seeking an airplane type rating, present a record of
training certified by an authorized instructor showing that the
applicant has--
(i) Received ground training on the aeronautical knowledge areas
required by this section applicable to the airplane type rating sought;
and
(ii) Received flight training on the areas of operation applicable
to the airplane type rating sought.
(b) If the applicant does not hold an instrument rating, in
addition to the areas specified in paragraph (a)(1) of this section,
the applicant must also demonstrate competency in the operations
referenced in Sec. 61.65(g).
(c) The demonstrations required by paragraphs (a) and (b) of this
section must be performed in--
(1) An airplane of the same class, and, if applicable, an airplane
of the same type, for which the class rating or type rating is sought;
or
(2) Subject to the requirements of paragraphs (d)(1) through (d)(8)
of this section, as applicable, a flight simulator or a flight training
device that represents the airplane type for which the type rating is
sought, or set of airplanes if the airplane for which the class rating
is sought, does not require a type rating.
(d) The following requirements apply to a demonstration of
competency under this section in a flight simulator or a flight
training device;
(1) The flight simulator or flight training device use permitted by
paragraph (c)(2) of this section must be in accordance with an approved
course at a training center certificated under part 142 of this
chapter;
(2) To complete all training and testing (except preflight
inspection) for an unlimited added rating in a flight simulator--
(i) The flight simulator must be qualified as Level C or Level D;
and
(ii) The applicant must meet the aeronautical experience
requirements of Sec. 61.155 and at least one of the following:
(A) Hold a type rating for a turbojet airplane of the same class as
the class of airplane for which the type rating is sought or have been
designated by a military service as a pilot in command of an airplane
of the same class as the class of airplane for which the type rating is
sought, if a turbojet type rating is sought.
(B) Hold a type rating for a turbopropeller airplane of the same
class as the class of airplane for which the type rating is sought, or
have been appointed by a military service as a pilot in command of an
airplane of the same class as the class of airplane for which the type
rating is sought, if a turbopropeller airplane type rating is sought.
(C) Have at least 2,000 hours of actual flight time, of which 500
hours must be in turbine-powered airplanes of the same class as the
class of airplane for which the type rating is sought.
(D) Have at least 500 hours of actual flight time in the same type
airplane as the type of airplane for which the type rating is sought.
(E) Have at least 1,000 hours of flight time in at least two
different airplanes requiring a type rating.
(3) Subject to the limitation of paragraph (d)(4) of this section
an applicant who does not meet the requirements of paragraph (d)(2) of
this section may complete all training and testing (except for
preflight inspection) for an added rating if--
(i) The flight simulator is qualified as Level C or Level D; and
(ii) The applicant meets the aeronautical experience requirements
of Sec. 61.155 and at least one of the following:
(A) Holds a type rating in a propeller-driven airplane if a type
rating in a turbojet airplane is sought, or holds a type rating in a
turbojet airplane if a type rating in a propeller-driven airplane is
sought.
(B) Since the beginning of the 12th calendar month before the month
in which the applicant completes the practical test for the added
rating, has logged--
(1) At least 100 hours of flight time in airplanes in the same
class as the class of airplane for which the type rating is sought and
which require a type rating; and
(2) At least 25 hours of flight time in airplanes of the same type
as the type of airplane for which the type rating is sought.
(4) An applicant meeting only the requirements of paragraph
(d)(3)(ii)(A) and (B) of this section will be issued an added rating,
or an airline transport pilot certificate with an added rating, as
applicable, with a limitation. The limitation shall state: ``This
certificate is subject to pilot-in-command limitations for the added
rating.''
(5) An applicant gaining a certificate with the limitation
specified in paragraph (d)(4) of this section
FR Doc. 96-16432 Aircraft Flight Simulator Use in Pilot Training, Testing, and Checking and at Training Centers
--
(i) May not act as pilot in command of the aircraft for which an
added rating was obtained under the provisions of this section until he
or she has had the limitation removed from the certificate; and
[[Page 34558]]
(ii) May have the limitation removed by serving 15 hours of
supervised operating experience as pilot in command under the
supervision of a qualified and current pilot in command, in the seat
normally occupied by the pilot in command, in an airplane of the same
type as the type of airplane to which the limitation applies.
(6) An applicant who does not meet the requirements of paragraph
(d)(2)(ii)(A) through (E) or (d)(3)(ii)(A) and (B) of this section may
be awarded an airline transport pilot certificate or an added rating to
that certificate after successful completion of one of the following
requirements:
(i) An approved course at a training center which includes all
training and testing for that certificate or rating followed by
training and testing on the following tasks, which must be successfully
completed on a static airplane or in flight, as appropriate:
(A) Preflight inspection;
(B) Normal takeoff;
(C) Normal ILS approach;
(D) Missed approach; and
(E) Normal landing.
(ii) An approved course at a training center which includes all
training and testing for that certificate or rating and compliance with
paragraphs (d)(7) and (d)(8) of this section.
(7) An applicant meeting only the requirements of paragraph (d)(6)
of this section will be issued an added rating, or an airline transport
pilot certificate with an added rating, as applicable, with a
limitation. The limitation shall state: ``This certificate is subject
to pilot-in-command limitations for the added rating.''
(8) An applicant gaining a certificate with the limitation
specified in paragraph (d)(7) of this section--
(i) May not act as pilot in command of the aircraft for which an
added rating was obtained under the provisions of this section until he
or she has had the limitation removed from the certificate; and
(ii) May have the limitation removed by serving 25 hours of
supervised operating experience as pilot in command under the
supervision of a qualified and current pilot in command, in the seat
normally occupied by the pilot in command, in an airplane of the same
type as the type of airplane to which the limitation applies.
(e) Unless the Administrator requires certain or all tasks to be
performed, the person authorized by the Administrator to conduct the
practical test for an airline transport pilot certificate may waive any
of the tasks for which the Administrator approves waiver authority.
31. Section 61.161 is amended by revising paragraph (b)(4) and by
adding a new paragraph (b)(5) to read as follows:
Sec. 61.161 Rotorcraft rating: Aeronautical experience.
* * * * *
(b) * * *
(4) 75 hours of actual or simulated instrument time under actual or
simulated conditions. At least 50 hours of this time must be completed
in flight with at least--
(i) 25 hours in helicopters as pilot in command;
(ii) 25 hours in helicopters as second in command performing the
duties of a pilot in command under the supervision of a pilot in
command; or
(iii) Any combination of paragraph (b)(4)(i) and (b)(4)(ii) of this
section that totals 25 hours in helicopters.
(5) Flight simulator or flight training device instruction may be
credited toward the total hour requirement of paragraph (b)(4) of this
section subject to the following:
(i) Flight simulator and flight training device instruction must be
accomplished in a qualified and approved flight simulator or in a
qualified and approved flight training device, representing a
rotorcraft.
(ii) Except as provided in paragraph (b)(5)(iii) of this section,
an applicant may receive credit for not more than a combined total of
25 hours of simulated instrument time in flight simulators and flight
training devices.
(iii) A maximum of 50 hours of flight simulator instruction or
flight training device instruction may be credited toward the total
hours required by paragraph (b)(4) of this section if the instruction
is accomplished in an approved course conducted by a training center
certificated under part 142 of this chapter.
32. Section 61.163 is revised to read as follows:
Sec. 61.163 Rotorcraft rating: Aeronautical skill.
(a) An applicant for an airline transport pilot certificate with a
rotorcraft category and helicopter class rating or a type rating must
pass a practical test based on the following areas of operation:
(1) Preflight procedures.
(2) Ground operations.
(3) Takeoff and departure procedures.
(4) In-flight maneuvers.
(5) Instrument procedures.
(6) Landings and approaches to landings.
(7) Normal and abnormal procedures.
(8) Emergency procedures.
(9) Postflight procedures.
(b) If the applicant does not hold an instrument rating, in
addition to the areas specified in paragraph (a) of this section, the
applicant must also demonstrate competency in the operations required
by Sec. 61.65(g).
(c) The demonstrations required by paragraphs (a) and (b) of this
section must be performed in--
(1) The helicopter for which the class rating or type rating is
sought; or
(2) Subject to the requirements of paragraphs (d)(1) through (d)(8)
of this section, as applicable, a flight simulator or flight training
device that represents the helicopter for which the class rating or
type rating is sought.
(d) The following requirements apply to a demonstration of
competency under this section in a flight simulator or a flight
training device:
(1) The flight simulator or flight training device use permitted by
paragraph (c)(2) of this section must be in accordance with an approved
course at a training center certificated under part 142 of this
chapter.
(2) To complete all training and testing (except preflight
inspection) for an unlimited added rating in a flight simulator--
(i) The flight simulator must be qualified as Level C or Level D;
and
(ii) The applicant must meet the aeronautical experience
requirements of Sec. 61.161 and at least one of the following:
(A) Hold a type rating for a turbine-powered helicopter, or have
been designated by a military service as a pilot in command of an a
turbine-powered helicopter, if a turbine-powered helicopter type rating
is sought.
(B) Have at least 1,200 hours of actual flight time, of which 500
hours must be in turbine-powered helicopters.
(C) Have at least 500 hours of actual flight time in the same type
helicopter as the helicopter for which the type rating is sought.
(D) Have at least 1,000 hours of flight time in at least two
different helicopters requiring a type rating.
(3) Subject to the limitation of paragraph (d)(4) of this section,
an applicant who does not meet the requirements of paragraph (d)(2) of
this section may complete all training and testing (except for
preflight inspection) for an added rating if--
(i) The flight simulator is qualified as Level C or Level D; and
(ii) The applicant meets the aeronautical experience requirements
of Sec. 61.161 and, since the beginning of the 12th calendar month
before the month in which the applicant completes the
[[Page 34559]]
practical test for the added rating, has logged--
(A) At least 100 hours of flight time in helicopters; and
(B) At least 15 hours of flight time in helicopters of the same
type as the helicopter for which the type rating is sought.
(4) An applicant meeting only the requirements of paragraph
(d)(3)(ii) (A) and (B) of this section will be issued an added rating,
or an airline transport pilot certificate with a limitation. The
limitation shall state: ``This certificate is subject to pilot-in-
command limitations for the added rating.''
(5) An applicant gaining a certificate with the limitation
specified in paragraph (d)(4) of this section--
(i) May not act as pilot in command of the aircraft for which an
added rating was obtained under the provisions of this section until he
or she has had the limitation removed from the certificate; and
(ii) May have the limitation removed by serving 15 hours of
supervised operating experience as pilot in command under the
supervision of a qualified and current pilot in command, in the seat
normally occupied by the pilot in command, in an aircraft of the same
type as the type of aircraft to which the limitation applies.
(6) An applicant who does not meet the requirements of paragraph
(d)(2)(ii) (A) through (D) or (d)(3)(ii) (A) and (B) of this section
may be awarded an airline transport pilot certificate or an added
rating to that certificate after successful completion of the of one of
the following requirements:
(i) An approved course at a training center which includes all
training and testing for that certificate or rating followed by
training and testing on the following tasks, which must be successfully
completed on a static aircraft or in flight, as appropriate:
(A) Preflight inspection;
(B) Normal takeoff from a hover;
(C) Manually flown precision approach; and
(D) Steep approach and landing to an off-airport heliport;
(ii) An approved course at a training center which includes all
training and testing for that certificate or rating and compliance with
paragraphs (d)(7) and (d)(8) of this section.
(7) An applicant meeting only the requirements of paragraph (d)(6)
of this section will be issued an added rating or an airline transport
pilot certificate with an added rating, as applicable, with a
limitation. The limitation shall state: ``This certificate is subject
to pilot-in-command limitations for the added rating.''
(8) An applicant gaining a certificate with the limitation
specified in paragraph (d)(7) of this section--
(i) May not act as pilot in command of the aircraft for which an
added rating was obtained under the provisions of this section until he
or she has had the limitation removed from the certificate; and
(ii) May have the limitation removed by serving 25 hours of
supervised operating experience as pilot in command under the
supervision of a qualified and current pilot in command, in the seat
normally occupied by the pilot in command, in an aircraft of the same
type as the type of aircraft to which the limitation applies.
(e) Unless the Administrator requires certain or all tasks to be
performed, the person authorized by the Administrator to conduct the
practical test for an airline transport pilot certificate may waive any
of the tasks for which the Administrator approves waiver authority.
33. Section 61.169 is revised to read as follows:
Sec. 61.169 Instruction in air transportation service.
(a) An airline transport pilot may instruct--
(1) Other pilots in air transportation service in aircraft of the
category, class, and type, as applicable, for which the airline
transport pilot is rated;
(2) In flight simulators and flight training devices representing
the aircraft referenced in paragraph (a)(1) of this section, when
instructing under the provisions of this section;
(3) Only as provided in this section, unless the airline transport
pilot also holds a flight instructor certificate, in which case he or
she may exercise the instructor privileges of subpart G of part 61 for
which he or she is rated; and
(4) When instructing under the provisions of this section in an
actual aircraft, only if the aircraft has functioning dual controls,
when instructing under the provisions of this section.
(b) Excluding briefings and debriefings, an airline transport pilot
may not instruct in aircraft, flight simulators, and flight training
devices under this section--
(1) For more than 8 hours in any 24-consecutive-hour period; or
(2) For more than 36 hours in any 7-consecutive-day period.
(c) An airline transport pilot may not instruct in Category II or
Category III operations unless he or she has been trained and
successfully tested under Category II or Category III operations, as
applicable.
34. Section 61.187 is amended by adding a new paragraph (c) to read
as follows:
Sec. 61.187 Flight proficiency.
* * * * *
(c) The flight instruction required by this section may be
accomplished--
(1) In an aircraft; or
(2) In a flight simulator or in a flight training device used in
accordance with an approved course at a training center certificated
under part 142 of this chapter.
35. Section 61.191 is amended by revising paragraph (c) and adding
a new paragraph (d) to read as follows:
Sec. 61.191 Additional flight instructor ratings.
* * * * *
(c) Pass the written and practical test prescribed in this subpart
for the rating sought.
(d) If accomplished in accordance with an approved course conducted
by a training center certificated under part 142 of this chapter, the
practical test may be conducted in a flight simulator, or a flight
training device.
36. Section 61.195 is amended by adding paragraph (h) to read as
follows:
Sec. 61.195 Flight instructor limitations.
* * * * *
(h) A flight instructor may not give instruction in Category II or
Category III operations unless the flight instructor has been trained
and tested in Category II or Category III operations, pursuant to
Sec. 61.67 or Sec. 61.68, as applicable.
37. Section 61.197 is revised to read as follows:
Sec. 61.197 Renewal of flight instructor certificates.
(a) Except as provided in paragraph (b) of this section, the holder
of a flight instructor certificate may renew that certificate for an
additional period of 24 calendar months if that individual
satisfactorily completes a practical test for--
(1) Renewal of the flight instructor certificate and rating sought;
or
(2) An additional flight instructor rating.
(b) The holder of a flight instructor certificate may renew that
certificate and its ratings without accomplishing a practical test, by
presenting to an FAA Flight Standards District Office evidence of one
of the following:
(1) A record showing that, during the preceding 24 calendar months,
the instructor has served--
(i) As a company check pilot;
(ii) As a chief flight instructor;
(iii) As a company check airman or flight instructor in a part 121
or part 135 operation; or
[[Page 34560]]
(iv) In a comparable position involving the regular evaluation of
pilots.
(2) A graduation certificate from an approved flight instructor
refresher course, provided that--
(i) The course was completed prior to the expiration date of the
flight instructor certificate; and
(ii) The course consists of not less than 24 hours of ground
training, flight training, or a combination of ground training and
flight training.
(c) If an instructor satisfactorily completes the requirements of
this section within 90 calendar days prior to the expiration date of
the flight instructor certificate, the instructor is considered to have
completed the requirements of this section prior to the expiration
date, and the certificate will be renewed for an additional 24 calendar
months beyond the expiration date.
(d) Except as allowed by paragraph (e) of this section, the
practical test required by paragraph (a) of this section must be
conducted in an aircraft.
(e) The practical test required by paragraph (a) of this section
may be accomplished in a flight simulator or in a flight training
device if the test is accomplished pursuant to an approved course
conducted by a training center certificated under part 142 of this
chapter.
38. Part 61, appendix A is amended by revising the heading to read
as follows:
Appendix A to Part 61--Practical Test Requirements for Airplane Airline
Transport Pilot Certificates and Associated Class and Type Ratings (For
Parts 121 and 135 Use Only)
39. Part 61, appendix B, is removed.
PART 91--GENERAL OPERATING AND FLIGHT RULES
40. The authority citation for part 91 continues to read as
follows:
Authority: 49 U.S.C. 106(g), 40103, 40113, 40120, 44101, 44111,
44701, 44709, 44711, 44712, 44715, 44716, 44717, 44722, 46306,
46315, 46316, 46502, 46504, 46506-46507, 47122, 47508, 47528-47531.
41. Section 91.191 is revised to read as follows:
Sec. 91.191 Category II and Category III manual.
(a) Except as provided in paragraph (c) of this section, after
August 4, 1997, no person may operate a U.S.-registered civil aircraft
in a Category II or a Category III operation unless--
(1) There is available in the aircraft a current and approved
Category II or Category III manual, as appropriate, for that aircraft;
(2) The operation is conducted in accordance with the procedures,
instructions, and limitations in the appropriate manual; and
(3) The instruments and equipment listed in the manual that are
required for a particular Category II or Category III operation have
been inspected and maintained in accordance with the maintenance
program contained in the manual.
(b) Each operator must keep a current copy of each approved manual
at its principal base of operations and must make each manual available
for inspection upon request by the Administrator.
(c) This section does not apply to operations conducted by a holder
of a certificate issued under part 121 or part 135 of this chapter.
42. Section 91.205 is amended by revising paragraph (f) and adding
a new paragraph (g) and (h) to read as follows:
Sec. 91.205 Powered civil aircraft with standard category U.S.
airworthiness certificates: Instrument and equipment requirements.
* * * * *
(f) Category II operations. The requirements for Category II
operations are the instruments and equipment specified in--
(1) Paragraph (d) of this section; and
(2) Appendix A to this part.
(g) Category III operations. The instruments and equipment required
for Category III operations are specified in paragraph (d) of this
section.
(h) Exclusions. Paragraphs (f) and (g) of this section do not apply
to operations conducted by a holder of a certificate issued under part
121 or part 135 of this chapter.
PART 121--OPERATING REQUIREMENTS: DOMESTIC, FLAG, AND SUPPLEMENTAL
OPERATIONS
43. The authority citation for part 121 continues to read as
follows:
Authority: 49 U.S.C. 106(g), 40113, 40119, 44101, 44701-44702,
44705, 44709-44711, 44713, 44716-44717, 44722, 44901, 44903-44904,
44912, 46105.
Special Federal Aviation Regulation No. 58--Advanced Qualification
Program
43A. Section 2 of SFAR 58 is amended by revising the definition of
``training center'' to read as follows:
2. Definitions.
* * * * *
Training center means an organization certificated under part 142
of this chapter or an organization approved by the Administrator to
operate under the terms of this SFAR to provide training as described
in section 1(b) of SFAR 58.
* * * * *
43B. Section 11 of SFAR 58 is amended by adding a new paragraph (d)
to read as follows:
11. Approval of Training, Qualification, or Evaluation by a Person
Who Provides Training by Arrangement.
* * * * *
(d) Approval for the training, qualification, or evaluation by a
person who provides training by arrangement authorized by this section
expires on August 3, 1998 unless that person meets the eligibility
requirements specified under Sec. 121.402 or Sec. 135.324 of this
chapter. After August 2, 1998 approval for the training, qualification,
or evaluation, by a person who provides training by arrangement
authorized by this section, shall be granted only to persons who meet
the eligibility requirements specified under Sec. 121.402 or
Sec. 135.234 of this chapter.
* * * * *
44. Section 121.400 is amended by adding new paragraphs (c)(7) and
(c)(8).
Sec. 121.400 Applicability and terms used.
* * * * *
(7) Training center. An organization governed by the applicable
requirements of part 142 of this chapter that provides training,
testing, and checking under contract or other arrangement to
certificate holders subject to the requirements of this part.
(8) Requalification training. The training required for crewmembers
previously trained and qualified, but who have become unqualified due
to not having met within the required period the recurrent training
requirements of Sec. 121.427 or the proficiency check requirements of
Sec. 121.441.
45. Section 121.402 is added to read as follows:
Sec. 121.402 Training program: Special Rules.
(a) Other than the certificate holder, only another certificate
holder certificated under this part or a training center certificated
under part 142 of this chapter is eligible under this subpart to
provide training, testing, and checking under contract or other
arrangement to those persons subject to the requirements of this
subpart.
(b) A certificate holder may contract with, or otherwise arrange to
use the services of, a training center certificated under part 142 of
this chapter to provide training, testing, and checking required by
this part only if the training center--
[[Page 34561]]
(1) Holds applicable training specifications issued under part 142
of this chapter;
(2) Has facilities, training equipment, and courseware meeting the
applicable requirements of part 142 of this chapter;
(3) Has approved curriculums, curriculum segments, and portions of
curriculum segments applicable for use in training courses required by
this subpart; and
(4) Has sufficient instructor and check airmen qualified under the
applicable requirements of Secs. 121.411 or 121.413 to provide
training, testing, and checking to persons subject to the requirements
of this subpart.
46. Section 121.431 is amended by revising paragraph (a) to read as
follows:
Sec. 121.431 Applicability.
(a) This subpart:
(1) Prescribes crewmember qualifications for all certificate
holders except where otherwise specified. The qualification
requirements of this subpart also apply to each certificate holder that
conducts commuter operations under part 135 of this chapter with
airplanes for which two pilots are required by the aircraft type
certification rules of this chapter. The Administrator may authorize
any other certificate holder that conducts operations under part 135 of
this chapter to comply with the training and qualification requirements
of this subpart instead of subparts E, G, and H of part 135 of this
chapter, except that these certificate holders may choose to comply
with the operating experience requirements of Sec. 135.344 of this
chapter, instead of the requirements of Sec. 121.434; and
(2) Permits training center personnel authorized under part 142 of
this chapter who meet the requirements of Secs. 121.411 and 121.413 to
provide training, testing and checking under contract or other
arrangement to those persons subject to the requirements of this
subpart.
* * * * *
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
47. The authority citation for part 125 continues to read as
follows:
Authority: 49 U.S.C. 106(g), 40113, 44701-44702, 44705, 44710-
44711, 44713, 44716-44717, 44722.
48. Section 125.285 is amended by revising the introductory text of
paragraph (a) and the introductory text of paragraph (c) to read as
follows:
Sec. 125.285 Pilot qualifications: Recent experience.
(a) No certificate holder may use any person, nor may any person
serve, as a required pilot flight crewmember unless within the
preceding 90 calendar days that person has made at least three takeoffs
and landings in the type airplane in which that person is to serve. The
takeoffs and landings required by this paragraph may be performed in a
flight simulator if the flight simulator is qualified and approved by
the Administrator for such purpose. * * *
* * * * *
(c) A required pilot flight crewmember who performs the maneuvers
required by paragraph (b) of this section in a qualified and approved
flight simulator, as prescribed in paragraph (a) of this section,
must--
* * * * *
49. Section 125.296 is added to read as follows:
Sec. 125.296 Training, testing, and checking conducted by training
centers: Special rules.
A crewmember who has successfully completed training, testing, or
checking in accordance with an approved training program that meets the
requirements of this part and that is conducted in accordance with an
approved course conducted by a training center certificated under part
142 of this chapter, is considered to meet applicable requirements of
this part.
50. Section 125.297 is amended by revising the section heading and
paragraph (a) and (b) introductory text to read as follows:
Sec. 125.297 Approval of flight simulators and flight training
devices.
(a) Flight simulators and flight training devices approved by the
Administrator may be used in training, testing, and checking required
by this subpart.
(b) Each flight simulator and flight training device that is used
in training, testing, and checking required under this subpart must be
used in accordance with an approved training course conducted by a
training center certificated under part 142 of this chapter, or meet
the following requirements:
* * * * *
PART 135--OPERATING REQUIREMENTS: COMMUTER AND ON-DEMAND OPERATIONS
51. The authority citation for part 135 continues to read as
follows:
Authority: 49 U.S.C. 106(g), 40113, 44701-44702, 44705, 44709,
44711-44713, 44715-44717, 44722.
52. Section 135.291 is revised to read as follows:
Sec. 135.291 Applicability.
Except as provided in Sec. 135.3, this subpart--
(a) Prescribes the tests and checks required for pilot and flight
attendant crewmembers and for the approval of check pilots in
operations under this part; and
(b) Permits training center personnel authorized under part 142 of
this chapter who meet the requirements of Sec. 135.337 and Sec. 135.339
to provide training, testing, and checking under contract or other
arrangement to those persons subject to the requirements of this
subpart.
53. Section 135.321 is amended by revising paragraph (a) and by
adding paragraphs (b)(7) and (b)(8) to read as follows:
Sec. 135.321 Applicability and terms used.
(a) Except as provided in Sec. 135.3, this subpart prescribes the
requirements applicable to--
(1) A certificate holder under this part which contracts with, or
otherwise arranges to use the services of a training center
certificated under part 142 to perform training, testing, and checking
functions;
(2) Each certificate holder for establishing and maintaining an
approved training program for crewmembers, check airmen and
instructors, and other operations personnel employed or used by that
certificate holder; and
(3) Each certificate holder for the qualification, approval, and
use of aircraft simulators and flight training devices in the conduct
of the program.
(b) * * *
(7) Training center. An organization governed by the applicable
requirements of part 142 of this chapter that provides training,
testing, and checking under contract or other arrangement to
certificate holders subject to the requirements of this part.
(8) Requalification training. The training required for crewmembers
previously trained and qualified, but who have become unqualified due
to not having met within the required period the--
(i) Recurrent pilot testing requirements of Sec. 135.293;
[[Page 34562]]
(ii) Instrument proficiency check requirements of Sec. 135.297; or
(iii) Line checks required by Sec. 135.299.
54. Section 135.324 is added to read as follows:
Sec. 135.324 Training program: Special Rules.
(a) Other than the certificate holder, only another certificate
holder certificated under this part or a training center certificated
under part 142 of this chapter is eligible under this subpart to
provide training, testing, and checking under contract or other
arrangement to those persons subject to the requirements of this
subpart.
(b) A certificate holer may contract with, or otherwise arrange to
use the services of, a training center certificated under part 142 of
this chapter to provide training, testing, and checking required by
this part only if the training center--
(1) Holds applicable training specifications issued under part 142
of this chapter;
(2) Has facilities, training equipment, and courseware meeting the
applicable requirements of part 142 of this chapter;
(3) Has approved curriculums, curriculum segments, and portions of
curriculum segments applicable for use in training courses required by
this subpart; and
(4) Has sufficient instructor and check airmen qualified under the
applicable requirements of Secs. 135.337 or 135.339 to provide
training, testing, and checking to persons subject to the requirements
of this subpart.
PART 141--PILOT SCHOOLS
55. The authority citation for part 141 continues to read as
follows:
Authority: 49 U.S.C. 106(g), 40113, 44701-44703, 44707, 44709-
44711, 45102-45103, 45301-45302.
56. Section 141.26 is added to read as follows:
Sec. 141.26 Training agreements.
A training center certificated under part 142 of this chapter may
provide the training, testing, and checking for pilot schools
certificated under part 141 of this chapter and is considered to meet
the requirements of part 141 provided--
(a) There is a training agreement between the certificated training
center and the pilot school;
(b) The training, testing, and checking provided by the
certificated training center is approved and conducted under part 142;
(c) The pilot school certificated under part 141 obtains the
Administrator's approval for a training course outline that includes
the training, testing, and checking to be conducted under part 141 and
the training, testing, and checking to be conducted under part 142 of
this chapter; and
(d) Upon completion of the training, testing, and checking
conducted under part 142 of this chapter, a copy of each student's
training record is forwarded to the part 141 school and becomes part of
the student's permanent training record.
57. Part 142 is added to read as follows:
PART 142--TRAINING CENTERS
Subpart A--General
Sec. 142.1 Applicability.
Sec. 142.3 Definitions.
Sec. 142.5 Certificate and training specifications required.
Sec. 142.7 Duration of a certificate.
Sec. 142.9 Deviations or waivers.
Sec. 142.11 Application for issuance or amendment.
Sec. 142.13 Management and personnel requirements.
Sec. 142.15 Facilities.
Sec. 142.17 Satellite training centers.
Sec. 142.19 Foreign training centers: Special rules.
Sec. 142.21-142.25 [Reserved]
Sec. 142.27 Display of certificate.
Sec. 142.29 Inspections.
Sec. 142.31 Advertising limitations.
Sec. 142.33 Training agreements.
Subpart B--Aircrew Curriculum and Syllabus Requirements
Sec. 142.35 Applicability.
Sec. 142.37 Approval of flight aircrew training program.
Sec. 142.39 Training program curriculum requirements.
Subpart C--Personnel and Flight Training Equipment Requirements
Sec. 142.45 Applicability.
Sec. 142.47 Training center instructor eligibility requirements.
Sec. 142.49 Training center instructor and evaluator privileges and
limitations.
Sec. 142.51 [Reserved]
Sec. 142.53 Training center instructor training and testing
requirements.
Sec. 142.55 Training center evaluator requirements.
Sec. 142.57 Aircraft requirements.
Sec. 142.59 Flight simulators and flight training devices.
Subpart D--Operating Rules
Sec. 142.61 Applicability.
Sec. 142.63 Privileges.
Sec. 142.65 Limitations.
Subpart E--Recordkeeping
Sec. 142.71 Applicability.
Sec. 142.73 Recordkeeping requirements.
Subpart F--Other Approved Courses
Sec. 142.81 Conduct of other approved courses.
Authority: 49 U.S.C. 106(g), 40113, 40119, 44101, 44701-44703,
44705, 44707, 44709-44711, 45102-45103, 45301-45302.
Subpart A-- General
Sec. 142.1 Applicability.
(a) This subpart prescribes the requirements governing the
certification and operation of aviation training centers. Except as
provided in paragraph (b) of this section, this part provides an
alternative means to accomplish training required by parts 61, 63, 121,
125, 127, 135, or 137 of this chapter.
(b) Certification under this part is not required for training that
is--
(1) Approved under the provisions of parts 63, 121, 125, 127, 135,
and 137;
(2) Approved under SFAR 58, Advanced Qualification Programs, for
the authorization holder's own employees;
(3) Conducted under part 61 unless that part requires certification
under this part;
(4) Conducted by a part 121 certificate holder for another part 121
certificate holder; or
(5) Conducted by a part 135 certificate holder for another part 135
certificate holder.
(c) Except as provided in paragraph (b) of this section, after
August 3, 1998, no person may conduct training, testing, or checking in
advanced flight training devices or flight simulators without, or in
violation of, the certificate and training specifications required by
this part.
Sec. 142.3 Definitions.
As used in this part:
Advanced Flight Training Device as used in this part, means a
flight training device as defined in part 61 of this chapter that has a
cockpit that accurately replicates a specific make, model, and type
aircraft cockpit, and handling characteristics that accurately model
the aircraft handling characteristics.
Core Curriculum means a set of courses approved by the
Administrator, for use by a training center and its satellite training
centers. The core curriculum consists of training which is required for
certification. It does not include training for tasks and circumstances
unique to a particular user.
Course means--
(1) A program of instruction to obtain pilot certification,
qualification, authorization, or currency;
(2) A program of instruction to meet a specified number of
requirements of a program for pilot training, certification,
qualification, authorization, or currency; or
(3) A curriculum, or curriculum segment, as defined in SFAR 58 of
part 121 of this chapter.
[[Page 34563]]
Courseware means instructional material developed for each course
or curriculum, including lesson plans, flight event descriptions,
computer software programs, audiovisual programs, workbooks, and
handouts.
Evaluator means a person employed by a training center certificate
holder who performs tests for certification, added ratings,
authorizations, and proficiency checks that are authorized by the
certificate holder's training specification, and who is authorized by
the Administrator to administer such checks and tests.
Flight training equipment means flight simulators, as defined in
Sec. 61.1(a) of this chapter, flight training devices, as defined in
Sec. 61.1(a) of this chapter, and aircraft.
Instructor means a person employed by a training center and
designated to provide instruction in accordance with subpart C of this
part.
Line-Operational Simulation means simulation conducted using
operational-oriented flight scenarios that accurately replicate
interaction among flightcrew members and between flightcrew members and
dispatch facilities, other crewmembers, air traffic control, and ground
operations. Line operational simulation simulations are conducted for
training and evaluation purposes and include random, abnormal, and
emergency occurrences. Line operational simulation specifically
includes line-oriented flight training, special purpose operational
training, and line operational evaluation.
Specialty Curriculum means a set of courses that is designed to
satisfy a requirement of the Federal Aviation Regulations and that is
approved by the Administrator for use by a particular training center
or satellite training center. The specialty curriculum includes
training requirements unique to one or more training center clients.
Training center means an organization governed by the applicable
requirements of this part that provides training, testing, and checking
under contract or other arrangement to airmen subject to the
requirements of this chapter.
Training program consists of courses, courseware, facilities,
flight training equipment, and personnel necessary to accomplish a
specific training objective. It may include a core curriculum and a
specialty curriculum.
Training specifications means a document issued to a training
center certificate holder by the Administrator that prescribes that
center's training, checking, and testing authorizations and
limitations, and specifies training program requirements.
Sec. 142.5 Certificate and training specifications required.
(a) No person may operate a certificated training center without,
or in violation of, a training center certificate and training
specifications issued under this part.
(b) An applicant will be issued a training center certificate and
training specifications with appropriate limitations if the applicant
shows that it has adequate facilities, equipment, personnel, and
courseware required by Sec. 142.11 to conduct training approved under
Sec. 142.37.
Sec. 142.7 Duration of a certificate.
(a) Except as provided in paragraph (b) of this section, a training
center certificate issued under this part is effective until the
certificate is surrendered or until the Administrator suspends,
revokes, or terminates it.
(b) Unless sooner surrendered, suspended, or revoked, a certificate
issued under this part for a training center located outside the United
States expires at the end of the twelfth month after the month in which
it is issued or renewed.
(c) If the Administrator suspends, revokes, or terminates a
training center certificate, the holder of that certificate shall
return the certificate to the Administrator within 5 working days after
being notified that the certificate is suspended, revoked, or
terminated.
Sec. 142.9 Deviations or waivers.
(a) The Administrator may issue deviations or waivers from any of
the requirements of this part.
(b) A training center applicant requesting a deviation or waiver
under this section must provide the Administrator with information
acceptable to the Administrator that shows--
(1) Justification for the deviation or waiver; and
(2) That the deviation or waiver will not adversely affect the
quality of instruction or evaluation.
Sec. 142.11 Application for issuance or amendment.
(a) An application for a training center certificate and training
specifications shall--
(1) Be made on a form and in a manner prescribed by the
Administrator;
(2) Be filed with the FAA Flight Standards District Office that has
jurisdiction over the area in which the applicant's principal business
office is located; and
(3) Be made at least 120 calendar days before the beginning of any
proposed training or 60 calendar days before effecting an amendment to
any approved training, unless a shorter filing period is approved by
the Administrator.
(b) Each application for a training center certificate and training
specification shall provide--
(1) A statement showing that the minimum qualification requirements
for each management position are met or exceeded;
(2) A statement acknowledging that the applicant shall notify the
Administrator within 10 working days of any change made in the
assignment of persons in the required management positions;
(3) The proposed training authorizations and training
specifications requested by the applicant;
(4) The proposed evaluation authorization;
(5) A description of the flight training equipment that the
applicant proposes to use;
(6) A description of the applicant's training facilities,
equipment, qualifications of personnel to be used, and proposed
evaluation plans;
(7) A training program curriculum, including syllabi, outlines,
courseware, procedures, and documentation to support the items required
in subpart B of this part, upon request by the Administrator;
(8) A description of a recordkeeping system that will identify and
document the details of training, qualification, and certification of
students, instructors, and evaluators;
(9) A description of quality control measures proposed; and
(10) A method of demonstrating the applicant's qualification and
ability to provide training for a certificate or rating in fewer than
the minimum hours prescribed in part 61 of this chapter if the
applicant proposes to do so.
(c) The facilities and equipment described in paragraph (b)(6) of
this section shall--
(1) Be available for inspection and evaluation prior to approval;
and
(2) Be in place and operational at the location of the proposed
training center prior to issuance of a certificate under this part.
(d) An applicant who meets the requirements of this part and is
approved by the Administrator is entitled to--
(1) A training center certificate containing all business names
included on the application under which the certificate holder may
conduct operations and the address of each business office used by the
certificate holder; and
[[Page 34564]]
(2) Training specifications, issued by the Administrator to the
certificate holder, containing--
(i) The type of training authorized, including approved courses;
(ii) The category, class, and type of aircraft that may be used for
training, testing, and checking;
(iii) For each flight simulator or flight training device, the
make, model, and series of airplane or the set of airplanes being
simulated and the qualification level assigned, or the make, model, and
series of rotorcraft, or set of rotorcraft being simulated and the
qualification level assigned;
(iv) For each flight simulator and flight training device subject
to qualification evaluation by the Administrator, the identification
number assigned by the FAA;
(v) The name and address of all satellite training centers, and the
approved courses offered at each satellite training center;
(vi) Authorized deviations or waivers from this part; and
(vii) Any other items the Administrator may require or allow.
(e) The Administrator may deny, suspend, revoke, or terminate a
certificate under this part if the Administrator finds that the
applicant or the certificate holder--
(1) Held a training center certificate that was revoked, suspended,
or terminated within the previous 5 years; or
(2) Employs or proposes to employ a person who--
(i) Was previously employed in a management or supervisory position
by the holder of a training center certificate that was revoked,
suspended, or terminated within the previous 5 years;
(ii) Exercised control over any certificate holder whose
certificate has been revoked, suspended, or terminated within the last
5 years; and
(iii) Contributed materially to the revocation, suspension, or
termination of that certificate and who will be employed in a
management or supervisory position, or who will be in control of or
have a substantial ownership interest in the training center.
(3) Has provided incomplete, inaccurate, fraudulent, or false
information for a training center certificate;
(4) Has violated any provision of Sec. 142.21; or
(5) Should not be granted a certificate if the grant would not
foster aviation safety.
(f) At any time, the Administrator may amend a training center
certificate--
(1) On the Administrator's own initiative, under section 609 of the
Federal Aviation Act of 1958 (49 U.S.C. 1429), as amended, and part 13
of this chapter; or
(2) Upon timely application by the certificate holder.
(g) The certificate holder must file an application to amend a
training center certificate at least 60 calendar days prior to the
applicant's proposed effective amendment date unless a different filing
period is approved by the Administrator.
Sec. 142.13 Management and personnel requirements.
An applicant for a training center certificate must show that--
(a) For each proposed curriculum, the training center has, and
shall maintain, a sufficient number of instructors who are qualified in
accordance with subpart C of this part to perform the duties to which
they are assigned;
(b) The training center has designated, and shall maintain, a
sufficient number of approved evaluators to provide required checks and
tests to graduation candidates within 7 calendar days of training
completion for any curriculum leading to airman certificates or
ratings, or both;
(c) The training center has, and shall maintain, a sufficient
number of management personnel who are qualified and competent to
perform required duties; and
(d) A management representative, and all personnel who are
designated by the training center to conduct direct student training,
are able to understand, read, write, and fluently speak the English
language.
Sec. 142.15 Facilities.
(a) An applicant for, or holder of, a training center certificate
shall ensure that--
(1) Each room, training booth, or other space used for
instructional purposes is heated, lighted, and ventilated to conform to
local building, sanitation, and health codes; and
(2) The facilities used for instruction are not routinely subject
to significant distractions caused by flight operations and maintenance
operations at the airport.
(b) An applicant for, or holder of, a training center certificate
shall establish and maintain a principal business office that is
physically located at the address shown on its training center
certificate.
(c) The records required to be maintained by this part must be
located in facilities adequate for that purpose.
(d) An applicant for, or holder of, a training center certificate
must have available exclusively, for adequate periods of time and at a
location approved by the Administrator, adequate flight training
equipment and courseware, including at least one flight simulator or
advanced flight training device.
(e) A training center certificate may be issued to an applicant
having a business office or training center located outside the United
States.
Sec. 142.17 Satellite training centers.
(a) The holder of a training center certificate may conduct
training in accordance with an approved training program at a satellite
training center located in the United States if--
(1) The facilities, equipment, personnel, and course content of the
satellite training center meet the applicable requirements of this
part;
(2) The instructors and evaluators at the satellite training center
are under the direct supervision of management personnel of the
principal training center;
(3) The Administrator is notified in writing that a particular
satellite is to begin operations at least 60 days prior to proposed
commencement of operations at the satellite training center; and
(4) The certificate holder's training specifications reflect the
name and address of the satellite training center and the approved
courses offered at the satellite training center.
(b) The certificate holder's training specifications shall
prescribe the operations required and authorized at each satellite
training center.
Sec. 142.19 Foreign training centers: Special rules.
(a) In the discretion of the Administrator, a training center
located outside the United States may be certificated by the
Administrator pursuant to this part.
(b) A training center located outside the United States may prepare
and recommend U.S. applicants for airman certificates and may prepare
and recommend applicants for authorizations, endorsements, and added
ratings to FAA-issued certificates, and may issue such certificates,
authorizations, endorsements, and added ratings to the extent
authorized and approved by the Administrator.
(c) In addition to the authority provided under paragraph (b) of
this section, a training center located outside the United States, when
authorized by the Administrator, may provide any training, testing, or
checking that is required to satisfy a requirement of 14 CFR chapter I.
[[Page 34565]]
Sec. 142.21-142.25 [Reserved]
Sec. 142.27 Display of certificate.
(a) Each holder of a training center certificate must prominently
display that certificate in a place accessible to the public in the
principal business office of the training center.
(b) A training center certificate and training specifications must
be made available for inspection upon request by--
(1) The Administrator;
(2) An authorized representative of the National Transportation
Safety Board; or
(3) Any Federal, State, or local law enforcement agency.
Sec. 142.29 Inspections.
Each certificate holder must allow the Administrator to inspect
training center facilities, equipment, and records at any reasonable
time and in any reasonable place in order to determine compliance with
or to determine initial or continuing eligibility under 49 U.S.C.
44701, 44707, formerly the Federal Aviation Act of 1958, as amended,
and the training center's certificate and training specifications.
Sec. 142.31 Advertising limitations.
(a) A certificate holder may not conduct, and may not advertise to
conduct, any training, testing, and checking that is not approved by
the Administrator if that training is designed to satisfy any
requirement of this chapter.
(b) A certificate holder whose certificate has been surrendered,
suspended, revoked, or terminated must--
(1) Promptly remove all indications, including signs, wherever
located, that the training center was certificated by the
Administrator; and
(2) Promptly notify all advertising agents, or advertising media,
or both, employed by the certificate holder to cease all advertising
indicating that the training center is certificated by the
Administrator.
Sec. 142.33 Training agreements.
A pilot school certificated under part 141 of this chapter may
provide training, testing, and checking for a training center
certificated under this part if--
(a) There is a training, testing, and checking agreement between
the certificated training center and the pilot school;
(b) The training, testing, and checking provided by the
certificated pilot school is approved and conducted in accordance with
this part;
(c) The pilot school certificated under part 141 obtains the
Administrator's approval for a training course outline that includes
the portion of the training, testing, and checking to be conducted
under part 141; and
(d) Upon completion of training, testing, and checking conducted
under part 141, a copy of each student's training record is forwarded
to the part 142 training center and becomes part of the student's
permanent training record.
Subpart B--Aircrew Curriculum and Syllabus Requirements
Sec. 142.35 Applicability.
This subpart prescribes the curriculum and syllabus requirements
for the issuance of a training center certificate and training
specifications for training, testing, and checking conducted to meet
the requirements of part 61 of this chapter.
Sec. 142.37 Approval of flight aircrew training program.
(a) Except as provided in paragraph (b) of this section, each
applicant for, or holder of, a training center certificate must apply
to the Administrator for training program approval.
(b) A curriculum approved under SFAR 58 of part 121 of this chapter
is approved under this part without modifications.
(c) Application for training program approval shall be made in a
form and in a manner acceptable to the Administrator.
(d) Each application for training program approval must indicate--
(1) Which courses are part of the core curriculum and which courses
are part of the specialty curriculum;
(2) Which requirements of part 61 of this chapter would be
satisfied by the curriculum or curriculums; and
(3) Which requirements of part 61 of this chapter would not be
satisfied by the curriculum or curriculums.
(e) If, after a certificate holder begins operations under an
approved training program, the Administrator finds that the certificate
holder is not meeting the provisions of its approved training program,
the Administrator may require the certificate holder to make revisions
to that training program.
(f) If the Administrator requires a certificate holder to make
revisions to an approved training program and the certificate holder
does not make those required revisions, within 30 calendar days, the
Administrator may suspend, revoke, or terminate the training center
certificate under the provisions of Sec. 142.11(e).
Sec. 142.39 Training program curriculum requirements.
Each training program curriculum submitted to the Administrator for
approval must meet the applicable requirements of this part and must
contain--
(a) A syllabus for each proposed curriculum;
(b) Minimum aircraft and flight training equipment requirements for
each proposed curriculum;
(c) Minimum instructor and evaluator qualifications for each
proposed curriculum;
(d) A curriculum for initial training and continuing training of
each instructor or evaluator employed to instruct in a proposed
curriculum; and
(e) For each curriculum that provides for the issuance of a
certificate or rating in fewer than the minimum hours prescribed by
part 61 of this chapter--
(1) A means of demonstrating the ability to accomplish such
training in the reduced number of hours; and
(2) A means of tracking student performance.
Subpart C--Personnel and Flight Training Equipment Requirements
Sec. 142.45 Applicability.
This subpart prescribes the personnel and flight training equipment
requirements for a certificate holder that is training to meet the
requirements of part 61 of this chapter.
Sec. 142.47 Training center instructor eligibility requirements.
(a) A certificate holder may not employ a person as an instructor
in a flight training course that is subject to approval by the
Administrator unless that person--
(1) Is at least 18 years of age;
(2) Is able to read, write, and speak and understand in the English
language;
(3) If instructing in an aircraft in flight, is qualified in
accordance with subpart G of part 61 of this chapter;
(4) Satisfies the requirements of paragraph (c) of this section;
and
(5) Meets at least one of the following requirements--
(i) Except as allowed by paragraph (a)(5)(ii) of this section,
meets the aeronautical experience requirements of Sec. 61.129 or
Sec. 61.131 of this chapter, as applicable, excluding the required
hours of instruction in preparation for the commercial pilot practical
test;
(ii) If instructing in a flight simulator or flight training device
that represents an airplane requiring a type rating or if instructing
in a curriculum leading to the issuance of an airline transport pilot
certificate or an added rating to an
[[Page 34566]]
airline transport pilot certificate, meets the aeronautical experience
requirements of Sec. 61.155 or Sec. 61.161 of this chapter, as
applicable; or
(iii) Is employed as a flight simulator instructor or a flight
training device instructor for a training center providing instruction
and testing to meet the requirements of part 61 of this chapter on
August 1, 1996.
(b) A training center must designate each instructor in writing to
instruct in each approved course, prior to that person functioning as
an instructor in that course.
(c) Prior to initial designation, each instructor shall:
(1) Complete at least 8 hours of ground training on the following
subject matter:
(i) Instruction methods and techniques.
(ii) Training policies and procedures.
(iii) The fundamental principles of the learning process.
(iv) Instructor duties, privileges, responsibilities, and
limitations.
(v) Proper operation of simulation controls and systems.
(vi) Proper operation of environmental control and warning or
caution panels.
(vii) Limitations of simulation.
(viii) Minimum equipment requirements for each curriculum.
(ix) Revisions to the training courses.
(x) Cockpit resource management and crew coordination.
(2) Satisfactorily complete a written test--
(i) On the subjects specified in paragraph (c)(1) of this section;
and
(ii) That is accepted by the Administrator as being of equivalent
difficulty, complexity, and scope as the tests provided by the
Administrator for the flight instructor airplane and instrument flight
instructor knowledge tests.
Sec. 142.49 Training center instructor and evaluator privileges and
limitations.
(a) A certificate holder may allow an instructor to provide:
(1) Instruction for each curriculum for which that instructor is
qualified.
(2) Testing and checking for which that instructor is qualified.
(3) Instruction, testing, and checking intended to satisfy the
requirements of any part of this chapter.
(b) A training center whose instructor or evaluator is designated
in accordance with the requirements of this subpart to conduct
training, testing, or checking in qualified and approved flight
training equipment, may allow its instructor or evaluator to give
endorsements required by part 61 of this chapter if that instructor or
evaluator is authorized by the Administrator to instruct or evaluate in
a part 142 curriculum that requires such endorsements.
(c) A training center may not allow an instructor to--
(1) Excluding briefings and debriefings, conduct more than 8 hours
of instruction in any 24-consecutive-hour period;
(2) Provide flight training equipment instruction unless that
instructor meets the requirements of Sec. 142.53 (a)(1) through (a)(4),
and Sec. 142.53(b), as applicable; or
(3) Provide flight instruction in an aircraft unless that
instructor--
(i) Meets the requirements of Sec. 142.53(a)(1), (a)(2), and
(a)(5);
(ii) Is qualified and authorized in accordance with subpart G of
part 61 of this chapter;
(iii) Holds certificates and ratings specified by part 61 of this
chapter appropriate to the category, class, and type aircraft in which
instructing;
(iv) If instructing or evaluating in an aircraft in flight while
occupying a required crewmember seat, holds at least a valid second
class medical certificate; and
(v) Meets the recency of experience requirements of part 61 of this
chapter.
Sec. 142.51 [Reserved]
Sec. 142.53 Training center instructor training and testing
requirements.
(a) Except as provided in paragraph (c) of this section, prior to
designation and every 12 calendar months beginning the first day of the
month following an instructor's initial designation, a certificate
holder must ensure that each of its instructors meets the following
requirements:
(1) Each instructor must satisfactorily demonstrate to an
authorized evaluator knowledge of, and proficiency in, instructing in a
representative segment of each curriculum for which that instructor is
designated to instruct under this part.
(2) Each instructor must satisfactorily complete an approved course
of ground instruction in at least--
(i) The fundamental principles of the learning process;
(ii) Elements of effective teaching, instruction methods, and
techniques;
(iii) Instructor duties, privileges, responsibilities, and
limitations;
(iv) Training policies and procedures;
(v) Cockpit resource management and crew coordination; and
(vi) Evaluation.
(3) Each instructor who instructs in a qualified and approved
flight simulator or flight training device must satisfactorily complete
an approved course of training in the operation of the flight
simulator, and an approved course of ground instruction, applicable to
the training courses the instructor is designated to instruct.
(4) The flight simulator training course required by paragraph
(a)(3) of this section which must include--
(i) Proper operation of flight simulator and flight training device
controls and systems;
(ii) Proper operation of environmental and fault panels;
(iii) Limitations of simulation; and
(iv) Minimum equipment requirements for each curriculum.
(5) Each flight instructor who provides training in an aircraft
must satisfactorily complete an approved course of ground instruction
and flight training in an aircraft, flight simulator, or flight
training device.
(6) The approved course of ground instruction and flight training
required by paragraph (a)(5) of this section which must include
instruction in--
(i) Performance and analysis of flight training procedures and
maneuvers applicable to the training courses that the instructor is
designated to instruct;
(ii) Technical subjects covering aircraft subsystems and operating
rules applicable to the training courses that the instructor is
designated to instruct;
(iii) Emergency operations;
(iv) Emergency situations likely to develop during training; and
(v) Appropriate safety measures.
(7) Each instructor who instructs in qualified and approved flight
training equipment must pass a written test and annual proficiency
check--
(i) In the flight training equipment in which the instructor will
be instructing; and
(ii) On the subject matter and maneuvers which the instructor will
be instructing.
(b) In addition to the requirements of paragraphs (a)(1) through
(a)(7) of this section, each certificate holder must ensure that each
instructor who instructs in a flight simulator that the Administrator
has approved for all training and all testing for the airline transport
pilot certification test, aircraft type rating test, or both, has met
at least one of the following three requirements:
(1) Each instructor must have performed 2 hours in flight,
including three takeoffs and three landings as the sole manipulator of
the controls of an aircraft of the same category and class, and, if a
type rating is required, of the same type replicated by the approved
flight simulator in which that instructor is designated to instruct;
(2) Each instructor must have participated in an approved line-
[[Page 34567]]
observation program under part 121 or part 135 of this chapter, and
that--
(i) Was accomplished in the same airplane type as the airplane
represented by the flight simulator in which that instructor is
designated to instruct; and
(ii) Included line-oriented flight training of at least 1 hour of
flight during which the instructor was the sole manipulator of the
controls in a flight simulator that replicated the same type aircraft
for which that instructor is designated to instruct; or
(3) Each instructor must have participated in an approved in-flight
observation training course that--
(i) Consisted of at least 2 hours of flight time in an airplane of
the same type as the airplane replicated by the flight simulator in
which the instructor is designated to instruct; and
(ii) Included line-oriented flight training of at least 1 hour of
flight during which the instructor was the sole manipulator of the
controls in a flight simulator that replicated the same type aircraft
for which that instructor is designated to instruct.
(c) An instructor who satisfactorily completes a curriculum
required by paragraph (a) or (b) of this section in the calendar month
before or after the month in which it is due is considered to have
taken it in the month in which it was due for the purpose of computing
when the next training is due.
(d) The Administrator may give credit for the requirements of
paragraph (a) or (b) of this section to an instructor who has
satisfactorily completed an instructor training course for a part 121
or part 135 certificate holder if the Administrator finds such a course
equivalent to the requirements of paragraph (a) or (b) of this section.
Sec. 142.55 Training center evaluator requirements.
(a) Except as provided by paragraph (d) of this section, a training
center must ensure that each person authorized as an evaluator--
(1) Is approved by the Administrator;
(2) Is in compliance with Secs. 142.47, 142.49, and 142.53 and
applicable sections of part 187 of this chapter; and
(3) Prior to designation, and except as provided in paragraph (b)
of this section, every 12-calendar-month period following initial
designation, the certificate holder must ensure that the evaluator
satisfactorily completes a curriculum that includes the following:
(i) Evaluator duties, functions, and responsibilities;
(ii) Methods, procedures, and techniques for conducting required
tests and checks;
(iii) Evaluation of pilot performance; and
(iv) Management of unsatisfactory tests and subsequent corrective
action; and
(4) If evaluating in qualified and approved flight training
equipment must satisfactorily pass a written test and annual
proficiency check in a flight simulator or aircraft in which the
evaluator will be evaluating.
(b) An evaluator who satisfactorily completes a curriculum required
by paragraph (a) of this section in the calendar month before or the
calendar month after the month in which it is due is considered to have
taken it in the month is which it was due for the purpose of computing
when the next training is due.
(c) The Administrator may give credit for the requirements of
paragraph (a)(3) of this section to an evaluator who has satisfactorily
completed an evaluator training course for a part 121 or part 135
certificate holder if the Administrator finds such a course equivalent
to the requirements of paragraph (a)(3) of this section.
(d) An evaluator who is qualified under SFAR 58 shall be authorized
to conduct evaluations under the Advanced Qualification Program without
complying with the requirements of this section.
Sec. 142.57 Aircraft requirements.
(a) An applicant for, or holder of, a training center certificate
must ensure that each aircraft used for flight instruction and solo
flights meets the following requirements:
(1) Except for flight instruction and solo flights in a curriculum
for agricultural aircraft operations, external load operations, and
similar aerial work operations, the aircraft must have an FAA standard
airworthiness certificate or a foreign equivalent of an FAA standard
airworthiness certificate, acceptable to the Administrator.
(2) The aircraft must be maintained and inspected in accordance
with--
(i) The requirements of part 91, subpart E, of this chapter; and
(ii) An approved program for maintenance and inspection.
(3) The aircraft must be equipped as provided in the training
specifications for the approved course for which it is used.
(b) Except as provided in paragraph (c) of this section, an
applicant for, or holder of, a training center certificate must ensure
that each aircraft used for flight instruction is at least a two-place
aircraft with engine power controls and flight controls that are easily
reached and that operate in a conventional manner from both pilot
stations.
(c) Airplanes with controls such as nose-wheel steering, switches,
fuel selectors, and engine air flow controls that are not easily
reached and operated in a conventional manner by both pilots may be
used for flight instruction if the certificate holder determines that
the flight instruction can be conducted in a safe manner considering
the location of controls and their nonconventional operation, or both.
Sec. 142.59 Flight simulators and flight training devices.
(a) An applicant for, or holder of, a training center certificate
must show that each flight simulator and flight training device used
for training, testing, and checking (except AQP) will be or is
specifically qualified and approved by the Administrator for--
(1) Each maneuver and procedure for the make, model, and series of
aircraft, set of aircraft, or aircraft type simulated, as applicable;
and
(2) Each curriculum or training course in which the flight
simulator or flight training device is used, if that curriculum or
course is used to satisfy any requirement of 14 CFR chapter I.
(b) The approval required by paragraph (a)(2) of this section must
include--
(1) The set of aircraft, or type aircraft;
(2) If applicable, the particular variation within type, for which
the training, testing, or checking is being conducted; and
(3) The particular maneuver, procedure, or crewmember function to
be performed.
(c) Each qualified and approved flight simulator or flight training
device used by a training center must--
(1) Be maintained to ensure the reliability of the performances,
functions, and all other characteristics that were required for
qualification;
(2) Be modified to conform with any modification to the aircraft
being simulated if the modification results in changes to performance,
function, or other characteristics required for qualification;
(3) Be given a functional preflight check each day before being
used; and
(4) Have a discrepancy log in which the instructor or evaluator, at
the end of each training session, enters each discrepancy.
(d) Unless otherwise authorized by the Administrator, each
component on a qualified and approved flight simulator or flight
training device used by a training center must be operative if the
component is essential to, or involved in, the training, testing, or
checking of airmen.
[[Page 34568]]
(e) Training centers shall not be restricted to specific--
(1) Route segments during line-oriented flight training scenarios;
and
(2) Visual data bases replicating a specific customer's bases of
operation.
(f) Training centers may request evaluation, qualification, and
continuing evaluation for qualification of flight simulators and flight
training devices without--
(1) Holding an air carrier certificate; or
(2) Having a specific relationship to an air carrier certificate
holder.
Subpart D--Operating Rules
Sec. 142.61 Applicability.
This subpart prescribes the operating rules applicable to a
training center certificated under this part and operating a course or
training program curriculum approved in accordance with subpart B of
this part.
Sec. 142.63 Privileges.
A certificate holder may allow flight simulator instructors and
evaluators to meet recency of experience requirements through the use
of a qualified and approved flight simulator or qualified and approved
flight training device if that flight simulator or flight training
device is--
(a) Used in a course approved in accordance with subpart B of this
part; or
(b) Approved under the Advanced Qualification Program for meeting
recency of experience requirements.
Sec. 142.65 Limitations.
(a) A certificate holder shall--
(1) Ensure that a flight simulator or flight training device
freeze, slow motion, or repositioning feature is not used during
testing or checking; and
(2) Ensure that a repositioning feature is used during line
operational simulation for evaluation and line-oriented flight training
only to advance along a flight route to the point where the descent and
approach phase of the flight begins.
(b) When flight testing, flight checking, or line operational
simulation is being conducted, the certificate holder must ensure that
one of the following occupies each crewmember position:
(1) A crewmember qualified in the aircraft category, class, and
type, if a type rating is required, provided that no flight instructor
who is giving instruction may occupy a crewmember position.
(2) A student, provided that no student may be used in a crewmember
position with any other student not in the same specific course.
(c) The holder of a training center certificate may not recommend a
trainee for a certificate or rating, unless the trainee--
(1) Has satisfactorily completed the training specified in the
course approved under Sec. 142.37; and
(2) Has passed the final tests required by Sec. 142.37.
(d) The holder of a training center certificate may not graduate a
student from a course unless the student has satisfactorily completed
the curriculum requirements of that course.
Subpart E--Recordkeeping
Sec. 142.71 Applicability.
This subpart prescribes the training center recordkeeping
requirements for trainees enrolled in a course, and instructors and
evaluators designated to instruct a course, approved in accordance with
subpart B of this part.
Sec. 142.73 Recordkeeping requirements.
(a) A certificate holder must maintain a record for each trainee
that contains--
(1) The name of the trainee;
(2) A copy of the trainee's pilot certificate, if any, and medical
certificate;
(3) The name of the course and the make and model of flight
training equipment used;
(4) The trainee's prerequisite experience and course time
completed;
(5) The trainee's performance on each lesson and the name of the
instructor providing instruction;
(6) The date and result of each end-of-course practical test and
the name of the evaluator conducting the test; and
(7) The number of hours of additional training that was
accomplished after any unsatisfactory practical test.
(b) A certificate holder shall maintain a record for each
instructor or evaluator designated to instruct a course approved in
accordance with subpart B of this part that indicates that the
instructor or evaluator has complied with the requirements of
Secs. 142.13, 142.45, 142.47, 142.49, and 142.53, as applicable.
(c) The certificate holder shall--
(1) Maintain the records required by paragraphs (a) of this section
for at least 1 year following the completion of training, testing or
checking;
(2) Maintain the qualification records required by paragraph (b) of
this section while the instructor or evaluator is in the employ of the
certificate holder and for 1 year thereafter; and
(3) Maintain the recurrent demonstration of proficiency records
required by paragraph (b) of this section for at least 1 year.
(d) The certificate holder must provide the records required by
this section to the Administrator, upon request and at a reasonable
time, and shall keep the records required by--
(1) Paragraph (a) of this section at the training center, or
satellite training center where the training, testing, or checking, if
appropriate, occurred; and
(2) Paragraph (b) of this section at the training center or
satellite training center where the instructor or evaluator is
primarily employed.
(e) The certificate holder shall provide to a trainee, upon request
and at a reasonable time, a copy of his or her training records.
Subpart F--Other Approved Courses
Sec. 142.81 Conduct of other approved courses.
(a) An applicant for, or holder of, a training center certificate
may apply for approval to conduct a course for which a curriculum is
not prescribed by this part.
(b) The course for which application is made under paragraph (a) of
this section may be for flight crewmembers other than pilots, airmen
other than flight crewmembers, material handlers, ground servicing
personnel, and security personnel, and others approved by the
Administrator.
(c) An applicant for course approval under this subpart must comply
with the applicable requirements of subpart A through subpart F of this
part.
(d) The Administrator approves the course for which the application
is made if the training center or training center applicant shows that
the course contains a curriculum that will achieve a level of
competency equal to, or greater than, that required by the appropriate
part of this chapter.
Issued in Washington, DC, on May 23, 1996.
David R. Hinson,
Administrator.
[FR Doc. 96-16432 Filed 7-1-96; 8:45 am]
BILLING CODE 4910-13-P
Complete official Federal Register PDF
FR Doc. 96-16234 Fisheries off West Coast States and in the Western Pacific
[Federal Register Volume 61, Number 128 (Tuesday, July 2, 1996)]
[Rules and Regulations]
[Pages 34570-34611]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-16234]
[[Page 34569]]
_______________________________________________________________________
Part III
Department of Commerce
_______________________________________________________________________
National Oceanic and Atmospheric Administration
_______________________________________________________________________
15 CFR Part 902
50 CFR Part 660, et al.
Fisheries off West Coast States and in the Western Pacific; Final Rule
Federal Register / Vol. 61, No. 128 / Tuesday, July 2, 1996 / Rules
and Regulations
[[Page 34570]]
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
15 CFR Part 902
50 CFR Parts 660, 661, 663, 680, 681, 683, and 685
[Docket No. 960614176-6176-01; I.D. 050796A]
RIN 0648-AI18
Fisheries off West Coast States and in the Western Pacific
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: NMFS is consolidating six CFR parts into one new CFR part. The
new part contains regulations implementing management measures for
fisheries operating in the exclusive economic zone (EEZ) off West Coast
and Western Pacific states. The domestic fisheries for groundfish and
ocean salmon off the West Coast and for precious corals, crustaceans,
bottomfish and seamount groundfish, and Pelagics of the Western Pacific
will be managed under this new part. This final rule does not make
substantive changes to the existing regulations; rather, it reorganizes
management measures into a more logical and cohesive order, removes
duplicative and outdated provisions, and makes editorial changes for
readability, clarity, and to achieve uniformity in regulatory language.
This final rule also amends references to Paperwork Reduction Act (PRA)
information-collection requirements to reflect the consolidation. The
purpose of this final rule is to make the regulations more concise,
better organized, and thereby easier for the public to use. This action
is part of the President's Regulatory Reinvention Initiative.
EFFECTIVE DATE: These regulations are effective on July 1, 1996, with
the exception of 50 CFR 660.404 and 660.408, which will become
effective when OMB has approved collection-of-information requirements
for those sections and that approval has been published in the Federal
Register, and 50 CFR 600.53 which will become effective August 4, 1996.
FOR FURTHER INFORMATION CONTACT: Bill Robinson, NMFS, 206-526-6140; Rod
McInnis, NMFS, 310-980-4030; or Alvin Katekaru, NMFS, 808-973-2985.
SUPPLEMENTARY INFORMATION:
Background
In March 1995, President Clinton issued a directive to Federal
agencies regarding their responsibilities under his Regulatory
Reinvention Initiative. This initiative is part of the National
Performance Review and calls for comprehensive regulatory reform. The
President directed all agencies to undertake a review of all their
regulations, with an emphasis on eliminating or modifying those that
are obsolete, duplicative, or otherwise in need of reform. This final
rule is intended to carry out the President's directive with respect to
those regulations implementing the Fishery Management Plans (FMPs) for
fisheries off West Coast and Western Pacific states.
Domestic groundfish fisheries in the EEZ off the West Coast are
managed by NMFS under the Fishery Management Plan for the Washington,
Oregon, and California Groundfish Fishery (Pacific Coast Groundfish
Fishery Management Plan), which is implemented by regulations at 50 CFR
part 663. The ocean salmon fisheries are managed under the Fishery
Management Plan for Ocean Salmon Fisheries off the Coasts of
Washington, Oregon, and California, which is implemented by regulations
at 50 CFR part 661. The Western Pacific precious corals fisheries are
managed under regulations at 50 CFR part 680, which implement the
Fishery Management Plan for Precious Coral Fisheries of the Western
Pacific Region. The lobster fishery of the Northwestern Hawaiian
Islands (NWHI) is managed under the Fishery Management Plan for
Crustacean Fisheries of the Western Pacific Region, which is
implemented by regulations at 50 CFR part 681. The NWHI fisheries for
bottomfish and seamount groundfish are managed by NMFS through
regulations at 50 CFR part 683, which implement the Fishery Management
Plan for Bottomfish and Seamount Groundfish Fisheries of the Western
Pacific Region. The fisheries for Pacific pelagic species are managed
under regulations at 50 CFR part 685, which implement the Fishery
Management Plan for Pelagic Fisheries of the Western Pacific Region.
General regulations that also pertain to these fisheries appear in 50
CFR part 600. The Groundfish and Salmon FMPs were prepared by the
Pacific Fishery Management Council, and the Precious Corals,
Crustaceans, Bottomfish and Seamount Groundfish, and Pelagics FMPs were
prepared by the Western Pacific Fishery Management Council, under the
authority of the Magnuson Fishery Conservation and Management Act.
Consolidation of Regulations Related to the Domestic Fisheries
Operating in the EEZ Off West Coast and Western Pacific States Into One
CFR Part (50 CFR part 660)
Currently, regulations implementing the six FMPs described above
are contained in six separate parts of title 50 of the CFR, in addition
to general provisions for foreign fisheries contained in part 600.
NMFS, through this rulemaking, removes the six parts (50 CFR parts 661,
663, 680, 681, 683, and 685) and consolidates the regulations contained
therein into one new part (50 CFR part 660). This consolidated
regulation provides the public with a single reference source for the
Federal fisheries regulations specific to the fisheries operating in
the EEZ off the West Coast (California, Oregon, and Washington) or in
the Western Pacific (Hawaii, American Samoa, Guam, the Northern Mariana
Islands, and U.S. island possessions in the Pacific). The restructuring
of the six parts into a single part results in one set of regulations
that is more concise, clearer, and easier to use than the six separate
parts. Many provisions in part 600 also apply to the fisheries
operating in the EEZ off West Coast and Western Pacific States.
Reorganization of Management Measures Within the Consolidated
Regulations and Elimination of Obsolete or Duplicative Provisions
In new part 660, NMFS has reorganized the consolidated management
measures in a more logical and cohesive order. Because portions of the
existing regulations contain identical or nearly identical provisions,
similar measures have been combined and restructured. For example,
certain definitions, prohibitions, and requirements that were common to
the current regulations for all the fisheries, but located in different
parts, were placed in a general subpart so they would only appear once.
For provisions common to all Western Pacific fisheries, a separate
subpart is established. Paragraph headings have been added where
appropriate for ease in identifying measures, and regulatory language
has been revised to improve clarity and consistency.
As a result of the consolidation effort, NMFS also identified
duplicative and obsolete provisions and removed those measures from the
regulations. For example, obsolete provisions dealing with initial
issuance of permits under limited entry programs for Western Pacific
bottomfish, crustacean, and longline fisheries and for West Coast
[[Page 34571]]
groundfish fisheries were removed. In addition, changes to part 661
(salmon) include correcting the scientific name for steelhead (rainbow
trout) to Oncorhynchus mykiss, updating escapement goals for
consistency with revised management procedures of the Pacific Fishery
Management Council, and removing the appendix by incorporation of
relevant portions into the numbered sections and deletion of any
repetitive or unnecessary information.
Changes to part 663 (Pacific Coast groundfish) include removing the
appendix of standards and procedures and, instead, referencing
appropriate sections in the Pacific Coast Groundfish Fishery Management
Plan, removing obsolete requirements for applications for limited entry
permits, consolidating definitions in one section that previously were
scattered throughout part 663, removing those definitions and
regulations that either appear elsewhere in part 660 or are no longer
relevant after the appendix was removed, and making technical and
editorial clarifications.
A limited entry program was implemented in the Pacific Coast
groundfish fishery in 1994. The window of time for initial permit
issuance is over, so the standards and procedures for initial permit
issuance have been removed from the regulations because they are no
longer necessary. There are still some appeals from permits denials
pending before the agency and Federal courts. The regulatory provisions
that were in effect at the time of permit denial will still be used in
these proceedings, even though they are being removed from
codification. There are two extremely limited circumstances in which
fishermen may obtain new initial permits, but it is highly unlikely
that anyone will qualify for a permit under these provisions.
Therefore, the details governing these permits are removed from
codification. The standards and procedures covering issuance of these
permits, and the privileges accompanying these permits, are described
in the FMP, and the relevant sections are cited in these regulations.
The provisions governing administration and transfer of existing
permits remain in the codified regulations.
No substantive changes were made to the regulations by this
reorganization or by the removal of duplicative and obsolete
provisions.
Revisions to Paperwork Reduction Act References in 15 CFR 902.1(b)
Section 3507(c)(B)(i) of the PRA requires that agencies inventory
and display a current control number assigned by the Director, Office
of Management and Budget (OMB), for each agency information collection.
Section 902.1(b) identifies the location of NOAA regulations for which
OMB approval numbers have been issued. Because this final rule codifies
many recordkeeping and reporting requirements, 15 CFR 902.1(b) is
revised to reference correctly the new sections resulting from the
consolidation.
This rule also makes a technical correction to the regulations
establishing a longline fishing prohibited area around Guam. The final
rule technical amendment published September 13, 1994 (59 FR 46933)
contained an error, and the correct coordinates have been specified in
Sec. 660.26(d).
Under NOAA Administrative Order 205-11, 7.01, dated December 17,
1990, the Under Secretary for Oceans and Atmosphere has delegated to
the Assistant Administrator for Fisheries, NOAA, the authority to sign
material for publication in the Federal Register.
Classification
This action has been determined to be not significant for purposes
of E.O. 12866.
Because this rule makes only nonsubstantive changes to existing
regulations originally issued after prior notice and an opportunity for
public comment, the Assistant Administrator for Fisheries, NOAA, under
5 U.S.C. 533(b)(B), for good cause finds that providing such procedures
for this rulemaking is unnecessary. Because this rule is not
substantive, it is not subject to a 30-day delay in effective date
under 5 U.S.C. 553(d).
Notwithstanding any other provision of law, no person is required
to respond to nor shall a person be subject to a penalty for failure to
comply with a collection of information subject to the requirements of
the Paperwork Reduction Act unless that collection of information
displays a currently valid OMB Control Number.
OMB approval for the West Coast Salmon Fisheries PRA collection-of-
information requirements has expired. NMFS is in the process of
obtaining OMB approval for these requirements. The collection of
information requirements of 50 CFR 660.404 and 660.408 are suspended
until such time as OMB approves the collection and notification of the
approval is published in the Federal Register.
The following collection-of-information requirements have already
been approved by OMB for U.S. fishing activities:
a. Approved under 0648-0204--(1) Southwest Region Federal Fishing
Permits, estimated at 0.55 hours per permit action; (2) experimental
fishing permits, estimated at 2 hours per application (Secs. 660.13,
660.17, and 660.21(k)).
b. Approved under 0648-0214--Southwest Logbook Family of Forms: (1)
Catch-and-effort logbooks, estimated at 5 minutes per response; (2)
pre-trip notifications, estimated at 5 minutes per notice; (3) post-
landing notices, estimated at 5 minutes per response; (4) observer
placement meetings, estimated at 1 hour per response; (5) protected
species interaction reports, estimated at 3 minutes per response; (6)
pre-landing notices, estimated at 5 minutes per response; (7)
experimental fishing reports, estimated at 4 hours per report; (8)
report on gear left at sea, estimated at 5 minutes per response; (9)
sales and transshipment reports, estimated at 5 minutes per response;
(10) precious corals sales report, estimated at 15 minutes per
response; (11) pelagics transshipment logbooks, estimated at 5 minutes
per response; (12) claims for reimbursement for lost fishing time,
estimated at 4 hours per response; and (13) request for pelagics area
closure exemption, estimated at 1 hour per response (Secs. 660.14,
660.23, 660.24, 660.28, 660.43, and 660.48).
c. Approved under 0648-0203--Northwest Federal Fisheries Permits:
(1) Experimental fishing permits, estimated at 32 minutes per response;
(2) limited entry permits, estimated at 20 minutes per response; and
(3) at-sea processing permits, estimated at 20 minutes per response
(Sec. 660.333).
d. Approved under 0648-0243--Survey of intent and capacity to
harvest and process fish and shellfish, estimated at 5 minutes per
response (Sec. 660.323).
e. Approved under 0648-0271--Northwest Region Logbook Family of
Forms: (1) Weekly production report, estimated at 30 minutes per
response; (2) transfer logs, estimated at 15 minutes per response; (3)
cumulative production logs, estimated at 13-26 minutes per response,
depending on the type of fishing operation; and (4) start/stop reports,
estimated at 5 minutes per response (Sec. 660.305).
f. Approved under 0648-0305--Gear identification requirements,
estimated at 30 minutes per response (Secs. 660.24, 660.48, and
660.322).
g. Approved under 0648-0306--Vessel identification requirements,
estimated at 35 minutes per response (Secs. 660.16 and 660.305).
h. Approved under 0648-0307--Arrangements for placing and adjusting
vessel monitoring system units,
[[Page 34572]]
estimated at 1 hour per response (Sec. 660.25).
Because this rule makes only nonsubstantive changes to existing
regulations, no useful purpose would be served by providing advance
notice and opportunity for public comment. Accordingly, the Assistant
Administrator for Fisheries, NOAA, under 5 U.S.C. 553(b)(B), for good
cause finds that providing notice and opportunity for public comment is
unnecessary. Because this rule is not substantive, it is not subject to
a 30-day delay in effective date under 5 U.S.C. 553(d).
List of Subjects
15 CFR Part 902
Reporting and recordkeeping requirements.
50 CFR Part 661
Fisheries, Fishing, Indians, Reporting and recordkeeping
requirements.
50 CFR Part 663
Fisheries, Fishing, Reporting and recordkeeping requirements.
50 CFR Part 680
Fisheries, Fishing, Reporting and recordkeeping requirements.
50 CFR Part 681
Fisheries, Reporting and recordkeeping requirements.
50 CFR Part 681
Administrative practice and procedure, Fisheries, Reporting and
recordkeeping requirements.
50 CFR Part 685
American Samoa, Fisheries, Fishing, Guam, Hawaiian Natives,
Northern Mariana Islands, Reporting and recordkeeping requirements.
Dated: June 20, 1996.
Gary Matlock,
Program Management Officer, National Marine Fisheries Service.
For the reasons set out in the preamble, 15 CFR chapter IX and 50
CFR chapter VI are amended as follows:
15 CFR CHAPTER IX
PART 902--NOAA INFORMATION COLLECTION REQUIREMENTS UNDER THE
PAPERWORK REDUCTION ACT: OMB CONTROL NUMBERS
1. The authority citation for part 902 continues to read as
follows:
Authority: 44 U.S.C. 3501 et seq.
2. In Sec. 902.1, paragraph (b) the table, in the entries for 50
CFR in the left column, in numerical order, the following entries and
corresponding OMB Numbers are removed: ``680.4'', ``680.5'', ``680.6'',
``680.10'', ``681.4'', ``681.5'', ``681.6'', ``681.10'', ``681.24'',
``681.25'', ``681.30'', ``683.4'', ``683.9'', ``683.21'', ``683.25'',
``683.27'', ``683.29'', ``685.4'', ``685.9'', ``685.10'', ``685.11'',
``685.12'', ``685.13'', ``685.14'', ``685.15'', ``685.16'', and
``685.24''. The following new entries are added to the table:
Sec. 902.1 OMB control numbers assigned pursuant to the Paperwork
Reduction Act.
* * * * *
(b) * * *
------------------------------------------------------------------------
Current OMB
control
CFR part or section where the information collection number (all
requirement is located numbers
begin with
0648-)
------------------------------------------------------------------------
* * * * *
50 CFR
* * * * *
Sec. 660.13.............................................. -0204
Sec. 660.14.............................................. -0214
Sec. 660.16.............................................. -0306
Sec. 660.17.............................................. -0204
Sec. 660.21(k)........................................... -0204
Sec. 660.23.............................................. -0214
Sec. 660.24.............................................. -0305
Sec. 660.25.............................................. -0307
Sec. 660.27.............................................. -0214
Sec. 660.28.............................................. -0214
Sec. 660.43.............................................. -0214
Sec. 660.48.............................................. \1\ -0214
Sec. 660.303............................................. -0271
Sec. 660.305............................................. -0306
Sec. 660.322............................................. -0305
Sec. 660.323............................................. -0243
Sec. 660.333............................................. -0203
------------------------------------------------------------------------
\1\ And -0305.
* * * * *
50 CFR CHAPTER VI
PART 660--FISHERIES OFF WEST COAST STATES AND IN THE WESTERN
PACIFIC
3. Part 660 is added to read as follows:
PART 660--FISHERIES OFF WEST COAST AND WESTERN PACIFIC STATES
Subpart A--General
Sec.
660.1 Purpose and scope.
660.2 Relation to other laws.
660.3 Reporting and recordkeeping.
Subpart B--Western Pacific Fisheries--General
660.11 Purpose and scope.
660.12 Definitions.
660.13 Permits and fees.
660.14 Reporting and recordkeeping.
660.15 Prohibitions.
660.16 Vessel identification.
660.17 Experimental fishing.
Subpart C--Western Pacific Pelagic Fisheries
660.21 Permits.
660.22 Prohibitions.
660.23 Notifications.
660.24 Gear identification.
660.25 Vessel monitoring system.
660.26 Longline fishing prohibited area management.
660.27 Exemptions for longline fishing prohibited areas;
procedures.
660.28 Conditions for at-sea observer coverage.
660.29 Port privileges and transiting for unpermitted U.S. longline
vessels.
660.30 Prohibition of drift gillnetting.
660.31 Framework adjustments to management measures.
Subpart D--Western Pacific Crustacean Fisheries
660.41 Permits.
660.42 Prohibitions.
660.43 Notifications.
660.44 Lobster size and condition restrictions.
660.45 Closed seasons.
660.46 Closed areas.
660.47 Gear identification.
660.48 Gear restrictions.
660.49 At-sea observer coverage.
660.50 Harvest limitation program.
660.51 Monk seal protective measures.
660.52 Monk seal emergency protective measures.
660.53 Framework procedures.
660.54 Five-year review.
Subpart E--Bottomfish And Seamount Groundfish Fisheries
660.61 Permits.
660.62 Prohibitions.
660.63 Notification.
660.64 Gear restrictions.
660.65 At-sea observer coverage.
660.66 Protected species conservation.
660.67 Framework for regulatory adjustments.
660.68 Fishing moratorium on Hancock Seamount.
660.69 Management Subareas.
Subpart F--Precious Corals Fisheries
660.81 Permits.
660.82 Prohibitions.
660.83 Seasons.
660.84 Quotas.
660.85 Closures.
660.86 Size restrictions.
660.87 Area restrictions.
660.88 Gear restrictions.
Subpart G--West Coast Groundfish
660.301 Purpose and scope.
660.302 Definitions.
660.303 Reporting and recordkeeping.
660.304 Management areas.
660.305 Vessel identification.
660.306 Prohibitions.
660.321 Specifications and management measures.
660.322 Gear restrictions.
660.323 Catch restrictions.
660.324 Pacific Coast treaty Indian fisheries.
660.331 Limited entry and open access fisheries--general.
[[Page 34573]]
660.332 Allocations.
660.333 Limited entry fishery.
660.334 Limited entry permits--``A'' endorsement.
660.335 Limited entry permits--``Provisional A'' endorsement.
660.336 Limited entry permits--``B'' endorsement.
660.337 Limited entry permits--``designated species B''
endorsement.
660.338 Limited entry permits--new permits.
660.339 Limited entry permit fees.
660.340 Limited entry permit appeals.
660.341 Limited entry permit sanctions.
Subpart H--West Coast Salmon Fisheries
660.401 Purpose and scope.
660.402 Definitions.
660.403 Relation to other laws.
660.404 Recordkeeping and reporting.
660.405 Prohibitions.
660.406 Exempted fishing.
660.407 Treaty Indian fishing.
660.408 Annual actions.
660.409 Inseason actions.
660.410 Escapement goals.
660.411 Notification and publication procedures.
Tables--Part 660
Table 1 to Part 660--Quotas for Precious Corals Permit Areas
Table 2 to Part 660--Vessel Capacity Ratings for West Coast
Groundfish Limited Entry Permits
Figures--Part 660
Figure 1 to Part 660--Carapace Length of Lobsters
Figure 2 to Part 660--Length of a Longline Vessel
Figure 3 to Part 660--Dressed, Head-off Length of Salmon
Authority: 16 U.S.C. 1801 et. seq.
Subpart A--General
Sec. 660.1 Purpose and scope.
(a) The regulations in this part govern fishing for Western Pacific
and West Coast fishery management unit species by vessels of the United
States that operate or are based inside the outer boundary of the EEZ
off Western Pacific and West Coast States.
(b) General regulations governing fishing by all vessels of the
United States and by fishing vessels other than vessels of the United
States are contained in part 600 of this chapter.
Sec. 660.2 Relation to other laws.
NMFS recognizes that any state law pertaining to vessels registered
under the laws of that state while operating in the fisheries regulated
under this part, and that is consistent with this part and the FMPs
implemented by this part, shall continue in effect with respect to
fishing activities regulated under this part.
Sec. 660.3 Reporting and recordkeeping.
Except for fisheries subject to subparts D and F of this part, any
person who is required to do so by applicable state law or regulation
must make and/or file all reports of management unit species landings
containing all data and in the exact manner required by applicable
state law or regulation.
Subpart B--Western Pacific Fisheries--General
Sec. 660.11 Purpose and scope.
(a) This subpart contains regulations that are common to all
Western Pacific fisheries managed under fishery management plans
prepared by the Western Pacific Fishery Management Council under the
Magnuson Act.
(b) Regulations specific to individual fisheries are included in
subparts C, D, E, and F of this part.
Sec. 660.12 Definitions.
In addition to the definitions in the Magnuson Act and in
Sec. 600.10 of this chapter, the terms used in subparts B through F of
this part have the following meanings:
Bottomfish FMP means the Fishery Management Plan for Bottomfish and
Seamount Groundfish of the Western Pacific Region.
Bottomfish management area means the areas designated in
Sec. 660.69.
Bottomfish management unit species means the following fish:
------------------------------------------------------------------------
Common name Local name Scientific name
------------------------------------------------------------------------
Snappers:
Silver jaw jobfish.......... Lehi (H); palu- Aphareus rutilans.
gustusilvia (S).
Gray jobfish................ Uku (H); asoama Aprion virescens.
(S).
Squirrelfish snapper........ Ehu (H); palu- Etelis
malau (S). carbunculus.
Longtail snapper............ Onaga, ula'T1ula Etelis coruscans.
(H); palu-loa (S).
Blue stripe snapper......... Ta'ape (H); savane Lutjanus kasmira.
(S); funai (G).
Yellowtail snapper.......... Palu-i' lusama Pristipomoides
(S); yellowtail auricilla.
kalekale.
Pink snapper................ Opakapaka (H); Pristipomoides.
palu-'Tlena'lena
(S); gadao (G).
Yelloweye snapper........... Palusina (S); Pristipomoides
yelloweye flavipinnis.
opakapaka.
Snapper..................... Kalekale (H)...... Pristipomoides
sieboldii.
Snapper..................... Gindai (H,G); palu- Pristipomoides
sega (S). zonatus.
Jacks:
Giant trevally.............. White ulua (H); Caranx ignoblis.
tarakito (G);
sapo-anae (S).
Black jack.................. Black ulua (H); Caranx lugubris.
tarakito (G);
tafauli (S).
Thick lipped trevally....... Pig ulua (H); Pseudocaranx
butaguchi (H). dentex.
Amberjack................... Kahala (H)........ Seriola dumerili.
Groupers:
Blacktip grouper............ Fausi (S); gadau Epinephelus
(G). fasciatus.
Sea bass.................... Hapu' 1upu'u (H).. Epinephelus
quernus.
Lunartail grouper........... Papa (S).......... Variola louti.
Emperor fishes:
Ambon emperor............... Filoa-gutumumu (S) Lethrinus
amboinensis.
Redgill emperor............. Filoa-pa'lo'omumu Lethrinus
(S); mafuti (G). rubrioperculatus.
------------------------------------------------------------------------
Notes: G--Guam; H--Hawaii; S--American Samoa.
Carapace length means a measurement in a straight line from the
ridge between the two largest spines above the eyes, back to the rear
edge of the carapace of a spiny lobster (see Figure 1 of this part).
Commercial fishing, as used in subpart D of this part, means
fishing with the intent to sell all or part of the catch of lobsters.
All lobster fishing in Crustaceans Permit Area 1 is considered
commercial fishing.
Council means the Western Pacific Fishery Management Council.
Crustaceans FMP means the Fishery Management Plan for Crustacean
Fisheries of the Western Pacific Region.
[[Page 34574]]
Crustaceans management area means the combined portions of the EEZ
encompassed by Crustaceans Permit Areas 1, 2, and 3.
Crustaceans management unit species means spiny lobster (Panulirus
marginatus or Panulirus penicillatus), slipper lobster (family
Scyllaridae), and Kona crab (Ranina ranina).
Crustaceans Permit Area 1 (Permit Area 1) means the EEZ off the
Northwestern Hawaiian Islands.
Crustaceans Permit Area 2 (Permit Area 2) means the EEZ off the
main Hawaiian Islands.
Crustaceans Permit Area 3 (Permit Area 3) means the EEZ of the
Territory of Guam and the EEZ of the Territory of American Samoa.
Crustaceans receiving vessel means a vessel of the United States to
which lobster taken in Permit Area 1 are transferred from another
vessel.
Dead coral means any precious coral that contains holes from borers
or is discolored or encrusted at the time of removal from the seabed.
EFP means an experimental fishing permit.
First level buyer means:
(1) The first person who purchases, with the intention to resell,
management unit species, or portions thereof, that were harvested by a
vessel that holds a permit or is otherwise regulated under subpart D of
this part; or
(2) A person who provides recordkeeping, purchase, or sales
assistance in the first transaction involving management unit species
(such as the services provided by a wholesale auction facility).
Fish dealer means any person who:
(1) Obtains, with the intention to resell, Pacific pelagic
management unit species, or portions thereof, that were harvested or
received by a vessel that holds a permit or is otherwise regulated
under subpart E of this part; or
(2) Provides recordkeeping, purchase, or sales assistance in
obtaining or selling such management unit species (such as the services
provided by a wholesale auction facility).
Fisheries Management Division (FMD) means the Chief, Fisheries
Management Division, Southwest Regional Office, NMFS, or a designee.
See Table 1 to Sec. 600.502 for the address of the Regional Office.
Fishing gear, as used in subpart D of this part, includes:
(1) Bottom trawl, which means a trawl in which the otter boards or
the footrope of the net are in contact with the sea bed.
(2) Gillnet, (see Sec. 600.10).
(3) Hook-and-line, which means one or more hooks attached to one or
more lines.
(4) Set net, which means a stationary, buoyed, and anchored gill
net.
(5) Trawl, (see Sec. 600.10).
Fishing trip means a period of time during which fishing is
conducted, beginning when the vessel leaves port and ending when the
vessel lands fish.
Fishing year means the year beginning at 0001 local time on January
1 and ending at 2400 local time on December 31.
Harvest guideline means a specified numerical harvest objective.
Hawaii longline limited access permit means the permit required by
Sec. 660.21 to use a vessel to fish for Pacific pelagic management unit
species with longline gear in the EEZ around Hawaii or to land or
transship longline-caught Pacific pelagic management unit species
shoreward of the outer boundary of the EEZ around Hawaii.
Incidental catch or incidental species means species caught while
fishing for the primary purpose of catching a different species.
Interested parties means the State of Hawaii Department of Land and
Natural Resources, the Council, holders of permits issued under subpart
D of this part, and any person who has notified the Regional Director
of his or her interest in the procedures and decisions described in
Secs. 660.51 and 660.52, and who has specifically requested to be
considered an ``interested party.''
Land or landing means offloading fish from a fishing vessel,
arriving in port to begin offloading fish, or causing fish to be
offloaded from a fishing vessel.
Length overall (LOA) or length of a vessel, as used in
Sec. 660.21(i), means the horizontal distance, rounded to the nearest
foot (with 0.5 ft and above rounded upward), between the foremost part
of the stem and the aftermost part of the stern, excluding bowsprits,
rudders, outboard motor brackets, and similar fittings or attachments
(see Figure 2 of this part). ``Stem'' is the foremost part of the
vessel, consisting of a section of timber or fiberglass, or cast,
forged, or rolled metal, to which the sides of the vessel are united at
the fore end, with the lower end united to the keel, and with the
bowsprit, if one is present, resting on the upper end. ``Stern'' is the
aftermost part of the vessel.
Live coral means any precious coral that is free of holes from
borers, and has no discoloration or encrustation on the skeleton at the
time of removal from the seabed.
Lobster closed area means an area of the EEZ that is closed to
fishing for lobster.
Longline fishing prohibited area means the portions of the EEZ in
which longline fishing is prohibited as specified in Sec. 660.26.
Longline fishing vessel means a vessel that has longline gear on
board the vessel.
Longline gear means a type of fishing gear consisting of a main
line that exceeds 1 nm in length, is suspended horizontally in the
water column either anchored, floating, or attached to a vessel, and
from which branch or dropper lines with hooks are attached; except
that, within the protected species zone, longline gear means a type of
fishing gear consisting of a main line of any length that is suspended
horizontally in the water column either anchored, floating, or attached
to a vessel, and from which branch or dropper lines with hooks are
attached.
Longline general permit means the permit required by Sec. 660.21 to
use a vessel to fish for Pacific pelagic management unit species in the
fishery management area, excluding the EEZ around Hawaii, or to land or
transship longline-caught fish shoreward of the outer boundary of the
fishery management area, excluding the waters shoreward of the EEZ
around Hawaii.
Main Hawaiian Islands means the islands of the Hawaiian Islands
Archipelago lying to the east of 161 deg. W. long.
Non-precious coral means any species of coral other than those
listed under the definition for precious coral in this section.
Non-selective gear means any gear used for harvesting corals that
cannot discriminate or differentiate between types, size, quality, or
characteristics of living or dead corals.
Northwestern Hawaiian Islands (NWHI) means the islands of the
Hawaiian Islands Archipelago lying to the west of 161 deg. W. long.
Offloading means removing management unit species from a vessel.
Owner, as used in subparts C and D of this part, means a person who
is identified as the current owner of the vessel as described in the
Certificate of Documentation (Form CG-1270) issued by the USCG for a
documented vessel, or in a registration certificate issued by a state
or territory or the USCG for an undocumented vessel. As used in subpart
E and F of this part, owner has the meaning in Sec. 600.10 of this
chapter.
Pacific Area Office means the Pacific Area Office, Southwest
Region, NMFS, located in Honolulu, HI. The address and phone number may
be obtained from the Regional Director whose address is in Table 1 to
Sec. 600.502.
Pacific pelagic management unit species means the following fish:
[[Page 34575]]
------------------------------------------------------------------------
Common name Scientific name
------------------------------------------------------------------------
Mahimahi (dolphin fish)................... Coryphaena spp.
Marlin and spearfish...................... Makaira spp.
Tetrapturus spp.
Oceanic sharks............................ Family Alopiidae.
Family Carcharhinidae.
Family Lamnidae.
Family Sphyrnidae.
Sailfish.................................. Istiophorus platypterus.
Swordfish................................. Xiphias gladius.
Tuna and related species.................. Allothunnus spp., Auxis spp.
Euthynnus spp.,
Gymnosarda spp.
Katsuwonus spp., Scomber
spp.
Thunnus spp.
Wahoo..................................... Acanthocybium solandri.
------------------------------------------------------------------------
Pelagics FMP means the Fishery Management Plan for Pelagic Species
Fisheries of the Western Pacific Region.
Precious coral means any coral of the genus Corallium in addition
to the following species of corals:
------------------------------------------------------------------------
Common name Scientific name
------------------------------------------------------------------------
Pink coral (also known as red coral)...... Corallium secundum.
Pink coral (also known as red coral)...... Corallium regale.
Pink coral (also known as red coral)...... Corallium laauense.
Gold coral................................ Gerardia spp.
Gold coral................................ Callogorgia gilberti.
Gold coral................................ Narella spp.
Gold coral................................ Calyptrophora spp.
Bamboo coral.............................. Lepidisis olapa.
Bamboo coral.............................. Acanella spp.
Black coral............................... Antipathes dichotoma.
Black coral............................... Antipathes grandis.
Black coral............................... Antipathes ulex.
------------------------------------------------------------------------
Precious coral permit area means the area encompassing the precious
coral beds in the management area. Each bed is designated by a permit
area code and assigned to one of the following four categories:
(1) Established beds. Makapuu (Oahu), Permit Area E-B-1, includes
the area within a radius of 2.0 nm of a point at 21 deg.18.0' N. lat.,
157 deg.35.5' W. long.
(2) Conditional beds. (i) Keahole Point (Hawaii), Permit Area C-B-
1, includes the area within a radius of 0.5 nm of a point at
19 deg.46.0' N. lat., 156 deg.06.0' W. long.
(ii) Kaena Point (Oahu), Permit Area C-B-2, includes the area
within a radius of 0.5 nm of a point at 21 deg.35.4' N. lat.,
158 deg.22.9' W. long.
(iii) Brooks Bank, Permit Area C-B-3, includes the area within a
radius of 2.0 nm of a point at 24 deg.06.0' N. lat., 166 deg.48.0' W.
long.
(iv) 180 Fathom Bank, Permit Area C-B-4, N.W. of Kure Atoll,
includes the area within a radius of 2.0 nm of a point at 28 deg.50.2'
N. lat., 178 deg.53.4' W. long.
(3) Refugia. Westpac Bed, Permit Area R-1, includes the area within
a radius of 2.0 nm of a point at 28 deg.50.2' N. lat., 162 deg.35.0' W.
long.
(4) Exploratory areas. (1) Permit Area X-P-H includes all coral
beds, other than established beds, conditional beds, or refugia, in the
EEZ seaward of the State of Hawaii.
(ii) Permit Area X-P-AS includes all coral beds, other than
established beds, conditional beds, or refugia, in the EEZ seaward of
American Samoa.
(iii) Permit Area X-P-G includes all coral beds, other than
established beds, conditional beds, or refugia, in the EEZ seaward of
Guam.
(iv) Permit Area X-P-PI includes all coral beds, other than
established beds, conditional beds, or refugia, in the EEZ seaward of
the U.S. Pacific Island possessions.
Protected species means an animal protected under the MMPA, listed
under the ESA, or subject to the Migratory Bird Treaty Act, as amended.
Protected species study zones means the waters within a specified
distance, designated by the Regional Director pursuant to Sec. 660.66,
around the following islands of the NWHI and as measured from the
following coordinates: Nihoa Island 23 deg.05' N. lat., 161 deg.55' W.
long.; Necker Island 23 deg.35' N. lat., 164 deg.40' W. long.; French
Frigate Shoals 23 deg.45' N. lat., 166 deg.15' W. long.; Gardner
Pinnacles 25 deg.00' N. lat., 168 deg.00' W. long.; Maro Reef
25 deg.25' N. lat., 170 deg.35' W. long.; Laysan Island 25 deg.45' N.
lat., 171 deg.45' W. long.; Lisianski Island 26 deg.00' N. lat.,
173 deg.55' W. long.; Pearl and Hermes Reef 27 deg.50' N. lat.,
175 deg.50' W. long.; Midway Island 28 deg.14' N. lat., 177 deg.22' W.
long.; and Kure Island 28 deg.25' N. lat., 178 deg.20' W. long. The
protected species study zones encompasses waters within 50 nm of the
geographical coordinates listed above.
Protected species zone means an area, designated under Sec. 660.26,
measured from the center geographical positions of certain islands and
reefs in the NWHI, as follows: Nihoa Island 23 deg.05' N. lat.,
161 deg.55' W. long.; Necker Island 23 deg.35' N. lat., 164 deg.40' W.
long.; French Frigate Shoals 23 deg.45' N. lat., 166 deg.15' W. long;
Gardner Pinnacles 25 deg.00' N. lat., 168 deg.00' W. long.; Maro Reef
25 deg.25' N. lat., 170 deg.35' W. long.; Laysan Island 25 deg.45' N.
lat., 171 deg.45' W. long; Lisianski Island 26 deg.00' N. lat.,
173 deg.55' W. long.; Pearl and Hermes Reef 27 deg.50' N. lat.,
175 deg.50' W. long.; Midway Islands 28 deg.14' N. lat., 177 deg.22' W.
long.; and Kure Island 28 deg.25' N. lat., 178 deg.20' W. long. Where
the areas are not contiguous, parallel lines drawn tangent to and
connecting those semi-circles of the 50-nm areas that lie between Nihoa
Island and Necker Island, French Frigate Shoals and Gardner Pinnacles,
Gardner Pinnacles and Maro Reef, and Lisianski Island and Pearl and
Hermes Reef, shall delimit the remainder of the protected species zone.
Qualifying landing means a landing that meets a standard required
for permit eligibility under Sec. 660.61.
(1) Permit renewal. A qualifying landing for permit renewal under
Sec. 660.61(e) is a landing that contained 2,500 lb (1,134 kg) of
bottomfish from the NWHI or a landing of at least 2,500 lb (1,134 kg)
of fish from the NWHI, of which at least 50 percent by weight was
bottomfish.
(2) New access eligibility points. A qualifying landing for
eligibility points under Sec. 660.61(g) is any landing of bottomfish
from the NWHI, regardless of weight, if made on or before August 7,
1985; or a landing of at least 2,500 lb (1,134 kg) of bottomfish
lawfully harvested from the NWHI, or a landing of at least 2,500 lb
(1,134 kg) of fish lawfully harvested from the NWHI, of which at least
50 percent by weight was bottomfish, if made after August 7, 1985.
Receiving vessel permit means a permit required by Sec. 660.21(c)
for a receiving vessel to transship or land Pacific pelagic management
unit species taken by other vessels using longline gear.
Regional Director means the Director, Southwest Region, NMFS (see
Table 1 of Sec. 600.502 for address).
Seamount groundfish means the following species:
------------------------------------------------------------------------
Common name Scientific name
------------------------------------------------------------------------
Armorhead................................. Pentaceros richardsoni.
Alfonsin.................................. Beryx splendens.
Raftfish.................................. Hyperoglyphe japonica.
------------------------------------------------------------------------
Selective gear means any gear used for harvesting corals that can
discriminate or differentiate between type, size, quality, or
characteristics of living or dead corals.
Special Agent-In-Charge (SAC) means the Special Agent-In-Charge,
NMFS, Office of Enforcement, Southwest Region, or a designee of the
Special Agent-In-Charge.
Transship means offloading or otherwise transferring management
unit species or products thereof to a receiving vessel.
Trap means a box-like device used for catching and holding
lobsters.
[[Page 34576]]
U.S. harvested corals means coral caught, taken, or harvested by
vessels of the United States within any fishery for which a fishery
management plan has been implemented under the Magnuson Act.
Vessel monitoring system unit (VMS unit) means the hardware and
software equipment owned by NMFS, installed on vessels by NMFS, and
required by subpart C of this part to track and transmit the positions
from longline fishing vessels.
Sec. 660.13 Permits and fees.
(a) Applicability. The requirements for permits for specific
Western Pacific fisheries are set forth in subparts C through F of this
part.
(b) Validity. Each permit is valid for fishing only in the specific
fishery management areas identified on the permit.
(c) Application. (1) A Southwest Region Federal Fisheries
application form may be obtained from the Pacific Area Office to apply
for a permit to operate in any of the fisheries regulated under
subparts C, D, E, and F of this part. In no case shall the Pacific Area
Office accept an application that is not on the Southwest Region
Federal Fisheries application form. A completed application is one that
contains all the necessary information, attachments, certifications,
signatures, and fees required.
(2) A minimum of 15 days should be allowed for processing a permit
application. If an incomplete or improperly completed application is
filed, the applicant will be sent a notice of deficiency. If the
applicant fails to correct the deficiency within 30 days following the
date of notification, the application will be considered abandoned.
(d) Change in application information. A minimum of 10 days should
be given for the Pacific Area Office to record any change in
information from the permit application submitted under paragraph (c)
of this section. Failure to report such changes may result in
invalidation of the permit.
(e) Issuance. After receiving a complete application, the FMD will
issue a permit to an applicant who is eligible under Sec. 660.21,
Sec. 660.41, Sec. 660.61, or Sec. 660.81, as appropriate.
(f) Fees. (1) No fee is required for a permit issued under subparts
D, E, and F of this part.
(2) A fee is charged for each application for a Hawaii longline
limited access permit (including permit transfers and permit renewals).
The amount of the fee is calculated in accordance with the procedures
of the NOAA Finance Handbook, available from the Regional Director, 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.
Failure to pay the fee will preclude issuance of a Hawaii longline
limited access permit.
(g) Expiration. Permits issued under this subpart will remain valid
for the period specified on the permit unless transferred, revoked,
suspended, or modified under 15 CFR part 904.
(h) Replacement. Replacement permits may be issued, without charge,
to replace lost or mutilated permits. An application for a replacement
permit is not considered a new application.
(i) Transfer. An application for a permit transfer as allowed under
Sec. 660.21(h), Sec. 660.41(e), or Sec. 660.61(c) and (d) must be
submitted to the Pacific Area Office as described in paragraph (c) of
this section.
(j) Alteration. Any permit that has been altered, erased, or
mutilated is invalid.
(k) Display. Any permit issued under this subpart, or a facsimile
of the permit, must be on board the vessel at all times while the
vessel is fishing for, taking, retaining, possessing, or landing
management unit species shoreward of the outer boundary of the fishery
management area. Any permit issued under this section must be displayed
for inspection upon request of an authorized officer.
(l) Sanctions. Procedures governing sanctions and denials are found
at subpart D of 15 CFR part 904.
(m) Permit appeals. Procedures for appeals of permit and
administrative actions are specified in the relevant subparts of this
part.
Sec. 660.14 Reporting and recordkeeping.
(a) Fishing record forms. The operator of any fishing vessel
subject to the requirements of Secs. 660.21, 660.41, or 660.81 must
maintain on board the vessel an accurate and complete record of catch,
effort, and other data on report forms provided by the Regional
Director. All information specified on the forms must be recorded on
the forms within 24 hours after the completion of each fishing day. The
original logbook form for each day of the fishing trip must be
submitted to the Regional Director within 72 hours of each landing of
management unit species. Each form must be signed and dated by the
fishing vessel operator.
(b) Transshipment logbooks. Any person subject to the requirements
of Sec. 660.21(c) must maintain on board the vessel an accurate and
complete NMFS transshipment logbook containing report forms provided by
the Regional Director. All information specified on the forms must be
recorded on the forms within 24 hours of the day of transshipment. The
original logbook form for each day of transshipment activity must be
submitted to the Regional Director within 72 hours of each landing of
management unit species. Each form must be signed and dated by the
receiving vessel operator.
(c) Sales report. The operator of any fishing vessel subject to the
requirements of Sec. 660.41 must submit to the Regional Director,
within 72 hours of offloading of crustaceans management unit species,
an accurate and complete sales report on a form provided by the
Regional Director. The form must be signed and dated by the fishing
vessel operator.
(d) Packing or weigh-out slips. The operator of any fishing vessel
subject to the requirements of Sec. 660.41 must attach packing or
weighout slips provided to the operator by the first-level buyer(s),
unless the packing or weighout slips have not been provided in time by
the buyer(s).
(e) Modification of reporting and recordkeeping requirements. The
Regional Director may, after consultation with the Council, initiate
rulemaking to modify the information to be provided on the fishing
record forms, transshipment logbook, and sales report forms and
timeliness by which the information is to be provided, including the
submission of packing or weighout slips.
(f) Availability of records for inspection. (1) Pacific pelagic
management unit species. Upon request, any fish dealer must immediately
provide an authorized officer access for inspecting and copying all
records of purchases, sales, or other transactions involving Pacific
pelagic management unit species taken or handled by longline vessels
that have permits issued under this subpart or that are otherwise
subject to subpart C of this part, including, but not limited to,
information concerning:
(i) The name of the vessel involved in each transaction and the
owner or operator of the vessel.
(ii) The weight, number, and size of each species of fish involved
in each transaction.
(iii) Prices paid by the buyer and proceeds to the seller in each
transaction.
(2) Crustaceans management unit species. Upon request, any first-
level buyer must immediately allow an authorized officer and any
employee of
[[Page 34577]]
NMFS designated by the Regional Director, to access, inspect, and copy
all records described in paragraph (a) of this section relating to
crustacean management unit species taken by vessels that have permits
issued under this subpart or that are otherwise subject to subpart D of
this part.
(3) Bottomfish and seamount groundfish management unit species. Any
person who is required by state laws and regulations to maintain
records of landings and sales for vessels regulated by this subpart and
subpart E of this part must make those records immediately available
for Federal inspection and copying upon request by an authorized
officer.
(g) State reporting. Any person who has a permit under Secs. 660.21
or 660.61 and who is required by state laws and regulations to maintain
and submit records of landings and sales for vessels regulated by
subparts C and E of this part must maintain and submit those records in
the exact manner required by state laws and regulations.
Sec. 660.15 Prohibitions.
In addition to the prohibitions in Sec. 600.725 of this chapter, it
is unlawful for any person to:
(a) Engage in fishing without a valid permit or facsimile of a
valid permit on board the vessel and available for inspection by an
authorized officer, when a permit is required under Sec. 660.13 or
Sec. 660.17, unless the vessel was at sea when the permit was issued
under Sec. 660.13, in which case the permit must be on board the vessel
before its next trip.
(b) File false information on any application for a fishing permit
under Sec. 660.13 or an EFP under Sec. 660.17.
(c) Fail to file reports in the exact manner required by any state
law or regulation, as required in Sec. 660.14.
(d) Falsify or fail to make, keep, maintain, or submit any logbook
or logbook form or other record or report required under Secs. 660.14
and 660.17.
(e) Refuse to make available to an authorized officer or a designee
of the Regional Director for inspection or copying, any records that
must be made available in accordance with Sec. 660.14.
(f) Fail to affix or maintain vessel or gear markings, as required
by Secs. 660.16, 660.24, and 660.47.
(g) Violate a term or condition of an EFP issued under Sec. 660.17.
(h) Fail to report any take of or interaction with protected
species as required by Sec. 660.17(k).
(i) Fish without an observer on board the vessel after the owner or
agent of the owner has been directed by NMFS to make accommodations
available for an observer under Secs. 660.17, 660.28, 660.49, or
660.65.
(j) Refuse to make accommodations available for an observer when so
directed by the Regional Director under Sec. 660.28, Sec. 660.49, or
Sec. 660.65, or under any provision in an EFP issued under Sec. 660.17.
(k) Fail to notify officials as required in Secs. 660.23, 660.28,
660.43, and 660.63.
Sec. 660.16 Vessel identification.
(a) Each fishing vessel subject to this subpart must display its
official number on the port and starboard sides of the deckhouse or
hull, and on an appropriate weather deck, so as to be visible from
enforcement vessels and aircraft.
(b) The official number must be affixed to each vessel subject to
this subpart and subparts C, D, E, and F of this part, in block Arabic
numerals at least 18 inches (45.7 cm) in height for fishing and
receiving vessels of 65 ft (19.8 m) LOA or longer, and at least 10
inches (25.4 cm) in height for all other vessels, except vessels
subject to Subpart F and 65 ft (19.8 m) LOA or longer must be marked in
block Arabic numerals at least 14 inches (35.6 cm) in height. Marking
must be legible and of a color that contrasts with the background.
(c) The vessel operator must ensure that the official number is
clearly legible and in good repair.
(d) The vessel operator must ensure that no part of the vessel, its
rigging, or its fishing gear obstructs the view of the official number
from an enforcement vessel or aircraft.
Sec. 660.17 Experimental fishing.
(a) General. The Regional Director may authorize, for limited
purposes, the direct or incidental harvest of management unit species
that would otherwise be prohibited by this subpart and subparts C, D,
E, and F of this part. No experimental fishing may be conducted unless
authorized by an EFP issued by the Regional Director in accordance with
the criteria and procedures specified in this section. EFPs will be
issued without charge.
(b) Observers. No experimental fishing for crustacean management
unit species may be conducted unless an NMFS scientific observer is
aboard the vessel.
(c) Application. An applicant for an EFP must submit to the
Regional Director at least 60 days before the desired date of the EFP a
written application including, but not limited to, the following
information:
(1) The date of the application.
(2) The applicant's name, mailing address, and telephone number.
(3) A statement of the purposes and goals of the experiment for
which an EFP is needed, including a general description of the
arrangements for disposition of all species harvested under the EFP.
(4) A statement of whether the proposed experimental fishing has
broader significance than the applicant's individual goals.
(5) For each vessel to be covered by the EFP:
(i) Vessel name.
(ii) Name, address, and telephone number of owner and operator.
(iii) USCG documentation, state license, or registration number.
(iv) Home port.
(v) Length of vessel.
(vi) Net tonnage.
(vii) Gross tonnage.
(6) A description of the species (directed and incidental) to be
harvested under the EFP and the amount of such harvest necessary to
conduct the experiment.
(7) For each vessel covered by the EFP, the approximate times and
places fishing will take place, and the type, size, and amount of gear
to be used.
(8) The signature of the applicant.
(d) Incomplete applications. The Regional Director may request from
an applicant additional information necessary to make the
determinations required under this section. An applicant will be
notified of an incomplete application within 10 working days of receipt
of the application. An incomplete application will not be considered
until corrected in writing.
(e) Issuance. (1) If an application contains all of the required
information, NMFS will publish a notice of receipt of the application
in the Federal Register with a brief description of the proposal and
will give interested persons an opportunity to comment. The Regional
Director will also forward copies of the application to the Council,
the USCG, and the fishery management agency of the affected state,
accompanied by the following information:
(i) The current utilization of domestic annual harvesting and
processing capacity (including existing experimental harvesting, if
any) of the directed and incidental species for which an EFP is being
requested.
(ii) A citation of the regulation or regulations that, without the
EFP, would prohibit the proposed activity.
(iii) Biological information relevant to the proposal.
(2) At a Council meeting following receipt of a complete
application, the Regional Director will consult with the Council and
the Director of the affected
[[Page 34578]]
state fishery management agency concerning the permit application. The
applicant will be notified in advance of the meeting at which the
application will be considered, and invited to appear in support of the
application, if the applicant desires.
(3) Within 5 working days after the consultation in paragraph
(e)(2) of this section, or as soon as practicable thereafter, NMFS will
notify the applicant in writing of the decision to grant or deny the
EFP and, if denied, the reasons for the denial. Grounds for denial of
an EFP include, but are not limited to, the following:
(i) The applicant has failed to disclose material information
required, or has made false statements as to any material fact, in
connection with his or her application.
(ii) According to the best scientific information available, the
harvest to be conducted under the permit would detrimentally affect any
species of fish in a significant way.
(iii) Issuance of the EFP would inequitably allocate fishing
privileges among domestic fishermen or would have economic allocation
as its sole purpose.
(iv) Activities to be conducted under the EFP would be inconsistent
with the intent of this section or the management objectives of the
FMP.
(v) The applicant has failed to demonstrate a valid justification
for the permit.
(vi) The activity proposed under the EFP would create a significant
enforcement problem.
(4) The decision to grant or deny an EFP is final and unappealable.
If the permit is granted, NMFS will publish a notice in the Federal
Register describing the experimental fishing to be conducted under the
EFP. The Regional Director may attach terms and conditions to the EFP
consistent with the purpose of the experiment including, but not
limited to:
(i) The maximum amount of each species that can be harvested and
landed during the term of the EFP, including trip limits, where
appropriate.
(ii) The number, sizes, names, and identification numbers of the
vessels authorized to conduct fishing activities under the EFP.
(iii) The times and places where experimental fishing may be
conducted.
(iv) The type, size, and amount of gear which may be used by each
vessel operated under the EFP.
(v) The condition that observers be carried aboard vessels
operating under an EFP.
(vi) Data reporting requirements.
(vii) Such other conditions as may be necessary to assure
compliance with the purposes of the EFP consistent with the objectives
of the FMP.
(f) Duration. Unless otherwise specified in the EFP or a
superseding notice or regulation, an EFP is effective for no longer
than 1 year, unless revoked, suspended, or modified. EFPs may be
renewed following the application procedures in this section.
(g) Alteration. Any EFP that has been altered, erased, or mutilated
is invalid.
(h) Transfer. EFPs issued under subparts B through F of this part
are not transferable or assignable. An EFP is valid only for the
vessel(s) for which it is issued.
(i) Inspection. Any EFP issued under subparts B through F of this
part must be carried aboard the vessel(s) for which it was issued. The
EFP must be presented for inspection upon request of any authorized
officer.
(j) Sanctions. Failure of the holder of an EFP to comply with the
terms and conditions of an EFP, the provisions of subparts A through F
of this part, any other applicable provision of this part, the Magnuson
Act, or any other regulation promulgated thereunder, is grounds for
revocation, suspension, or modification of the EFP with respect to all
persons and vessels conducting activities under the EFP. Any action
taken to revoke, suspend, or modify an EFP will be governed by 15 CFR
part 904 subpart D. Other sanctions available under the statute will be
applicable.
(k) Protected species. Persons fishing under an EFP must report any
incidental take or fisheries interaction with protected species on a
form provided for that purpose. Reports must be submitted to the
Regional Director within 3 days of arriving in port.
Subpart C--Western Pacific Pelagic Fisheries
Sec. 660.21 Permits.
(a) A fishing vessel of the United States must be registered for
use under a Hawaii longline limited access permit or a longline general
permit if that vessel is used:
(1) To fish for Pacific pelagic management unit species using
longline gear in the EEZ around American Samoa, Guam, the Northern
Mariana Islands, or other U.S. island possessions in the Pacific Ocean;
or
(2) To land or transship, shoreward of the outer boundary of the
EEZ around American Samoa, Guam, the Northern Mariana Islands, or other
U.S. island possessions in the Pacific Ocean, Pacific pelagic
management unit species that were harvested with longline gear.
(b) A fishing vessel of the United States must be registered for
use under a Hawaii longline limited access permit if that vessel is
used:
(1) To fish for Pacific pelagic management unit species using
longline gear in the EEZ around Hawaii; or
(2) To land or transship, shoreward of the outer boundary of the
EEZ around Hawaii, Pacific pelagic management unit species that were
harvested with longline gear.
(c) A receiving vessel must be registered for use with a receiving
vessel permit if that vessel is used to land or transship, shoreward of
the outer boundary of the fishery management area, Pacific pelagic
management unit species that were harvested with longline gear.
(d) Any required permit must be on board the vessel and available
for inspection by an authorized agent, except that if the permit was
issued while the vessel was at sea, this requirement applies only to
any subsequent trip.
(e) A permit is valid only for the vessel for which it is
registered. A permit not registered for use with a particular vessel
may not be used.
(f) An application for a permit required under this section will be
submitted to the Pacific Area Office as described inSec. 660.13.
(g) General requirements governing application information,
issuance, fees, expiration, replacement, transfer, alteration, display,
and sanctions for permits issued under this section, as applicable, are
contained in Sec. 660.13.
(h) A limited access permit may be transferred as follows:
(1) The owner of a Hawaii longline limited access permit may apply
to transfer the permit:
(i) To a different person for registration for use with the same or
another vessel; or
(ii) For registration for use with another U.S. vessel under the
same ownership.
(2) An application for a permit transfer will be submitted to the
Pacific Area Office as described in Sec. 660.13(c).
(i) A Hawaii longline limited access permit will not be registered
for use with a vessel that has a LOA greater than 101 ft (30.8 m).
(j) Only a person eligible to own a documented vessel under the
terms of 46 U.S.C. 12102(a) may be issued or may hold (by ownership or
otherwise) a Hawaii longline limited access permit.
(k) Except as provided in subpart D of 15 CFR part 904, any
applicant for a permit or any permit owner may appeal to the Regional
Director the granting, denial, conditioning, suspension, or
[[Page 34579]]
transfer of a permit or requested permit under this section. To be
considered by the Regional Director, the appeal will be in writing,
will state the action(s) appealed, and the reasons therefor, and will
be submitted within 30 days of the action(s) by the FMD. The appellant
may request an informal hearing on the appeal.
(1) Upon receipt of an appeal authorized by this section, the
Regional Director may request additional information. Upon receipt of
sufficient information, the Regional Director will decide the appeal in
accordance with the criteria set out in this part and in the Fishery
Management Plans prepared by the Council, as appropriate, based upon
information relative to the application on file at NMFS and the Council
and any additional information available; the summary record kept of
any hearing and the hearing officer's recommended decision, if any, as
provided in paragraph (k)(3) of this section; and such other
considerations as deemed appropriate. The Regional Director will notify
the appellant of the decision and the reasons therefor, in writing,
normally within 30 days of the receipt of sufficient information,
unless additional time is needed for a hearing.
(2) If a hearing is requested, or if the Regional Director
determines that one is appropriate, the Regional Director may grant an
informal hearing before a hearing officer designated for that purpose.
Such a hearing normally shall be held no later than 30 days following
receipt of the appeal, unless the hearing officer extends the time. The
appellant and, at the discretion of the hearing officer, other
interested persons, may appear personally or be represented by counsel
at the hearing and submit information and present arguments as
determined appropriate by the hearing officer. Within 30 days of the
last day of the hearing, the hearing officer shall recommend, in
writing, a decision to the Regional Director.
(3) The Regional Director may adopt the hearing officer's
recommended decision, in whole or in part, or may reject or modify it.
In any event, the Regional Director will notify the appellant, and
interested persons, if any, of the decision, and the reason(s)
therefor, in writing, within 30 days of receipt of the hearing
officer's recommended decision. The Regional Director's action shall
constitute final Agency action for the purposes of the APA.
(4) Any time limit prescribed in this section may be extended for a
period not to exceed 30 days by the Regional Director for good cause,
either upon his/her own motion or upon written request from the
appellant stating the reason(s) therefor.
Sec. 660.22 Prohibitions.
In addition to the general prohibitions specified in Sec. 600.725
of this chapter, it is unlawful for any person to do any of the
following:
(a) Fish for Pacific pelagic management unit species using gear
prohibited under Sec. 660.30 or not permitted by an EFP issued under
Sec. 660.17.
(b) Falsify or fail to make and/or file all reports of Pacific
pelagic management unit species landings, containing all data and in
the exact manner, as required by applicable state law or regulation, as
specified in Sec. 660.3, provided that the person is required to do so
by applicable state law or regulation.
(c) Use a longline vessel without a valid longline general permit
or a Hawaii longline limited access permit registered for use with that
vessel, to fish for Pacific pelagic management unit species in the EEZ
around American Samoa, Guam, the Northern Mariana Islands, or U.S.
possessions in the Pacific Ocean area.
(d) Use a longline fishing vessel without a valid Hawaii longline
limited access permit registered for use with that vessel to fish for
Pacific pelagic management unit species in the EEZ around Hawaii.
(e) Use a receiving vessel without a valid receiving vessel permit
registered for use with that vessel to land or transship, shoreward of
the outer boundary of the fishery management area, Pacific pelagic
management unit species harvested with longline gear.
(f) Transfer a permit in violation of Sec. 660.21(h).
(g) Fish for Pacific pelagic management unit species with longline
gear within the protected species zone in the NWHI.
(h) Fail to notify the NMFS Southwest Enforcement Office of intent
to enter or depart the protected species zone, as required under
Sec. 660.23(b).
(i) Fish with longline gear within a longline fishing prohibited
area, except as allowed pursuant to an exemption issued under
Sec. 660.17 or Sec. 660.17.
(j) Fail to comply with notification requirements set forth in
Sec. 660.23 or in any EFP issued under Sec. 660.17.
(k) Fail to comply with a term or condition governing the observer
program established in Sec. 660.28.
(l) Fail to comply with other terms and conditions that the
Regional Director imposes by written notice to either the permit holder
or the designated agent of the permit holder to facilitate the details
of observer placement.
(m) Fish in the fishery after failing to comply with the
notification requirements in Sec. 660.23.
(n) Use a U.S. vessel that has longline gear on board and that does
not have a valid Hawaii longline limited access permit registered for
use with that vessel or a valid longline general permit registered for
use with that vessel to land or transship Pacific pelagic management
unit species shoreward of the outer boundary of the EEZ around American
Samoa, Guam, the Northern Mariana Islands, or U.S. possessions in the
Pacific Ocean area.
(o) Use a U.S. vessel that has longline gear on board and that does
not have a valid Hawaii longline limited access permit registered for
use with that vessel to land or transship Pacific pelagic management
unit species shoreward of the outer boundary of the EEZ around Hawaii.
(p) Enter the EEZ around Hawaii with longline gear that is not
stowed or secured in accordance with Sec. 660.29, if operating a U.S.
vessel without a valid Hawaii longline limited access permit registered
for use with that vessel.
(q) Enter the EEZ around American Samoa, Guam, the Northern Mariana
Islands, or U.S. possessions in the Pacific Ocean area wit
FR Doc. 96-16234 Fisheries off West Coast States and in the Western Pacific
h longline
gear that is not stowed or secured in accordance with Sec. 660.29, if
operating a U.S. vessel without a valid Hawaii longline limited access
permit registered for use with that vessel or a longline general permit
registered for use with that vessel.
(r) Fail to carry a VMS unit as required under Sec. 660.25.
(s) Interfere with, tamper with, alter, damage, disable, or impede
the operation of a VMS unit or to attempt any of the same; or to move
or remove a VMS unit without the prior permission of the SAC.
(t) Make a false statement, oral or written, to an authorized
officer, regarding the use, operation, or maintenance of a VMS unit.
(u) Fish for, catch, or harvest Pacific pelagic management unit
species with longline gear without a VMS unit on board the vessel after
installation of the VMS unit by NMFS.
(v) Possess on board a vessel without a VMS unit Pacific pelagic
management unit species harvested with longline gear after NMFS has
installed the VMS unit on the vessel.
(w) Interfere with, impede, delay, or prevent the installation,
maintenance, repair, inspection, or removal of a VMS unit.
[[Page 34580]]
(x) Interfere with, impede, delay, or prevent access to a VMS unit
by a NMFS observer.
(y) Connect or leave connected additional equipment to a VMS unit
without the prior approval of the SAC.
Sec. 660.23 Notifications.
(a) The permit holder for a fishing vessel subject to the
requirements of this subpart, or an agent designated by the permit
holder, shall provide a notice to the Regional Director at least 72
hours (not including weekends and Federal holidays) before the vessel
leaves port on a fishing trip, any part of which occurs in the EEZ
around Hawaii. The vessel operator will be presumed to be an agent
designated by the permit holder unless the Regional Director is
otherwise notified by the permit holder. The notice must be provided to
the office or telephone number designated by the Regional Director. The
notice must provide the official number of the vessel, the name of the
vessel, the intended departure date, time, and location, the name of
the operator of the vessel, and the name and telephone number of the
agent designated by the permit holder to be available between 8:00 a.m.
to 5 p.m. (Hawaii time) on weekdays for NMFS to contact to arrange
observer placement.
(b) The operator of any vessel subject to the requirements of this
subpart who does not have on board a VMS unit while transiting the
protected species zone as defined in Sec. 660.12, must notify the NMFS
Southwest Enforcement Office (see part 600 for address of Regional
Director) immediately upon entering and immediately upon departing the
protected species zone. The notification must include the name of the
vessel, name of the operator, date and time (GMT) of access or exit
from the protected species zone, and location by latitude and longitude
to the nearest minute.
Sec. 660.24 Gear identification.
(a) Identification. The operator of each permitted vessel in the
fishery management area must ensure that the official number of the
vessel be affixed to every longline buoy and float, including each buoy
and float that is attached to a radar reflector, radio antenna, or flag
marker, whether attached to a deployed longline or possessed on board
the vessel. Markings must be legible and permanent, and must be of a
color that contrasts with the background material.
(b) Enforcement action. Longline gear not marked in compliance with
paragraph (a) of this section and found deployed in the EEZ will be
considered unclaimed or abandoned property, and may be disposed of in
any manner considered appropriate by NMFS or an authorized officer.
Sec. 660.25 Vessel monitoring system.
(a) VMS unit. Only a VMS unit owned by NMFS and installed by NMFS
complies with the requirement of this subpart.
(b) Notification. After a Hawaii longline limited access permit
holder has been notified by the SAC of a specific date for installation
of a VMS unit in the permit holder's vessel, the vessel must carry the
VMS unit after the date scheduled for installation.
(c) Fees and charges. During the experimental VMS program, a Hawaii
longline limited access permit holder shall not be assessed any fee or
other charges to obtain and use a VMS unit, including the communication
charges related directly to requirements under this section.
Communication charges related to any additional equipment attached to
the VMS unit by the owner or operator shall be the responsibility of
the owner or operator and not NMFS.
(d) Permit holder duties. The holder of a Hawaii longline limited
access permit and the master of the vessel operating under the permit
must:
(1) Provide opportunity for the SAC to install and make operational
a VMS unit after notification.
(2) Carry the VMS unit on board whenever the vessel is at sea.
(3) Not remove or relocate the VMS unit without prior approval from
the SAC.
(e) Authorization by the SAC. The SAC has authority over the
installation and operation of the VMS unit. The SAC may authorize the
connection or order the disconnection of additional equipment,
including a computer, to any VMS unit when deemed appropriate by the
SAC.
Sec. 660.26 Longline fishing prohibited area management.
(a) Prohibited areas. Longline fishing shall be prohibited in the
longline fishing prohibited areas as defined in paragraphs (b), (c),
and (d) of this section.
(b) Longline protected species zone. The protected species zone is
50 nm from the center geographical positions of Nihoa Island, Necker
Island, French Frigate Shoals, Gardner Pinnacles, Maro Reef, Laysan
Island, Lisianski Island, Pearl and Hermes Reef, Midway Islands, and
Kure Island, as defined in Sec. 660.12.
(c) Main Hawaiian Islands. (1) From February 1 through September 30
each year, the longline fishing prohibited area around the main
Hawaiian Islands is the portion of the EEZ seaward of Hawaii bounded by
straight lines connecting the following coordinates in the order
listed:
------------------------------------------------------------------------
Point N. lat. DW. long.
------------------------------------------------------------------------
A................................... 18 deg.05' 155 deg.40'
B................................... 18 deg.20' 156 deg.25'
C................................... 20 deg.00' 157 deg.30'
D................................... 20 deg.40' 161 deg.40'
E................................... 21 deg.40' 161 deg.55'
F................................... 23 deg.00' 161 deg.30'
G................................... 23 deg.05' 159 deg.30'
H................................... 22 deg.55' 157 deg.30'
I................................... 21 deg.30' 155 deg.30'
J................................... 19 deg.50' 153 deg.50'
K................................... 19 deg.00' 154 deg.05'
A................................... 18 deg.05' 155 deg.40'
------------------------------------------------------------------------
(2) From October 1 through the following January 31 each year, the
longline fishing prohibited area around the main Hawaiian Islands is
the portion of the EEZ seaward of Hawaii bounded by straight lines
connecting the following coordinates in the order listed:
------------------------------------------------------------------------
Point N. lat. W. long.
------------------------------------------------------------------------
A................................... 18 deg.05' 155 deg.40'
L................................... 18 deg.25' 155 deg.40'
M................................... 19 deg.00' 154 deg.45'
N................................... 19 deg.15' 154 deg.25'
O................................... 19 deg.40' 154 deg.20'
P................................... 20 deg.20' 154 deg.55'
Q................................... 20 deg.35' 155 deg.30'
R................................... 21 deg.00' 155 deg.35'
S................................... 22 deg.30' 157 deg.35'
T................................... 22 deg.40' 159 deg.35'
U................................... 22 deg.25' 160 deg.20'
V................................... 21 deg.55' 160 deg.55'
W................................... 21 deg.40' 161 deg.00'
E................................... 21 deg.40' 161 deg.55'
D................................... 20 deg.40' 161 deg.40'
C................................... 20 deg.00' 157 deg.30'
B................................... 18 deg.20' 156 deg.25'
A................................... 18 deg.05' 155 deg.40'
------------------------------------------------------------------------
(d) Guam. The longline fishing prohibited area around Guam is the
waters seaward of Guam bounded by straight lines connecting the
following coordinates in the order listed:
------------------------------------------------------------------------
Point N. lat. E. long.
------------------------------------------------------------------------
A................................... 14 deg.25' 144 deg.00'
B................................... 14 deg.00' 143 deg.38'
C................................... 13 deg.41' 144 deg.33'30''
D................................... 13 deg.00' 143 deg.25'30''
E................................... 12 deg.20' 143 deg.37'
F................................... 11 deg.40' 144 deg.09'
G................................... 12 deg.00' 145 deg.00'
H................................... 13 deg.00' 145 deg.42'
I................................... 13 deg.27' 145 deg.51'
------------------------------------------------------------------------
Sec. 660.27 Exemptions for longline fishing prohibited areas;
procedures.
(a) An exemption permitting a person to use longline gear to fish
in a portion(s) of the Hawaii longline fishing
[[Page 34581]]
prohibited area will be issued to a person who can document that he or
she:
(1) Currently owns a Hawaii longline limited access permit issued
under this part and registered for use with his or her vessel.
(2) Before 1970, was the owner or operator of a vessel when that
vessel landed Pacific pelagic management unit species taken on longline
gear in an area that is now within the Hawaii longline fishing
prohibited area.
(3) Was the owner or operator of a vessel that landed Pacific
pelagic management unit species taken on longline gear in an area that
is now within the Hawaii longline fishing prohibited area, in at least
5 calendar years after 1969, which need not be consecutive.
(4) In any one of the 5 calendar years, was the owner or operator
of a vessel that harvested at least 80 percent of its total landings,
by weight, of longline-caught Pacific pelagic management unit species
in an area that is now in the Hawaii longline fishing prohibited area.
(b) Each exemption shall specify the portion(s) of the Hawaii
longline fishing prohibited area, bounded by longitudinal and
latitudinal lines drawn to include each statistical area, as appearing
on Hawaii State Commercial Fisheries Charts, in which the exemption
holder made the harvest documented for the exemption application under
paragraph (a)(4) of this section.
(c) Each exemption is valid only within the portion(s) of the
Hawaii longline fishing prohibited area specified on the exemption.
(d) A person seeking an exemption under this section must submit an
application and supporting documentation to the Pacific Area Office at
least 15 days before the desired effective date of the exemption.
(e) If the Regional Director determines that a gear conflict has
occurred and is likely to occur again in the Hawaii longline fishing
prohibited area between a vessel used by a person holding an exemption
under this section and a non-longline vessel, the Regional Director may
prohibit all longline fishing in the Hawaii longline fishing prohibited
area around the island where the conflict occurred, or in portions
thereof, upon notice to each holder of an exemption who would be
affected by such a prohibition.
(f) The Council will consider information provided by persons with
Hawaii longline limited access permits issued under this part who
believe they have experienced extreme financial hardship resulting from
the Hawaii longline area closure, and will consider recommendations of
the Pelagic Advisory Review Board to assess whether exemptions under
this section should continue to be allowed, and, if appropriate, revise
the qualifying criteria in paragraph (a) of this section to permit
additional exemptions.
(1) If additional exemptions are needed, the Council will advise
the Regional Director in writing of its recommendation, including
criteria by which financial hardships will be mitigated, while
retaining the effectiveness of the longline fishing prohibited area.
(2) Following a review of the Council's recommendation and
supporting rationale, the Regional Director may:
(i) Reject the Council's recommendation, in which case written
reasons will be provided by the Regional Director to the Council for
the rejection; or
(ii) Concur with the Council's recommendation and, after finding
that it is consistent with the goals and objectives of the Pelagics
FMP, the national standards, and other applicable law, initiate
rulemaking to implement the Council's recommendations.
Sec. 660.28 Conditions for at-sea observer coverage.
(a) NMFS shall advise the permit holder or the designated agent of
any observer requirement at least 24 hours (not including weekends and
Federal holidays) before any trip for which NMFS received timely notice
in compliance with these regulations.
(b) The ``Notice Prior to Fishing Trip'' requirements in this
subpart commit the permit holder to the representations in the notice.
The notice can be modified by the permit holder or designated agent
because of changed circumstance, if the Regional Director is promptly
provided a modification to the notice that complies with the notice
requirements. The notice will also be considered modified if the
Regional Director and the permit holder or designated agent agree to
placement changes.
(c) When NMFS notifies the permit holder or designated agent of the
obligation to carry an observer in response to a notification under
this subpart, or as a condition of an EFP issued under Sec. 660.17, the
vessel may not engage in the fishery without taking the observer.
(d) A NMFS observer shall arrive at the observer's assigned vessel
30 minutes before the time designated for departure in the notice or
the notice as modified, and will wait 1 hour for departure.
(e) A permit holder must accommodate a NMFS observer assigned under
these regulations. The Regional Director's office, and not the
observer, will address any concerns raised over accommodations.
(f) The permit holder, vessel operator, and crew must cooperate
with the observer in the performance of the observer's duties,
including:
(1) Allowing for the embarking and debarking of the observer.
(2) Allowing the observer access to all areas of the vessel
necessary to conduct observer duties.
(3) Allowing the observer access to communications equipment and
navigation equipment as necessary to perform observer duties.
(4) Allowing the observer access to VMS units to verify operation,
obtain data, and use the communication capabilities of the units for
official purposes.
(5) Providing accurate vessel locations by latitude and longitude
or loran coordinates, upon request by the observer.
(6) Providing sea turtle, marine mammal, or sea bird specimens as
requested.
(7) Notifying the observer in a timely fashion when commercial
fishing operations are to begin and end.
(g) The permit holder, operator, and crew must comply with other
terms and conditions to ensure the effective deployment and use of
observers that the Regional Director imposes by written notice.
(h) The permit holder must ensure that assigned observers are
provided living quarters comparable to crew members and are provided
the same meals, snacks, and amenities as are normally provided to other
vessel personnel. A mattress or futon on the floor or a cot is not
acceptable if a regular bunk is provided to any crew member, unless
other arrangements are approved in advance by the Regional Director.
(i) Reimbursement requirements are as follows:
(1) Upon observer verification of vessel accommodations and the
number of assigned days on board, NMFS will reimburse vessel owners a
reasonable amount for observer subsistence as determined by the
Regional Director.
(2) If requested and properly documented, NMFS will reimburse the
vessel owner for the following:
(i) Communications charges incurred by the observer.
(ii) Lost fishing time arising from a seriously injured or
seriously ill observer, provided that notification of the nature of the
emergency is
[[Page 34582]]
transmitted to the Fisheries Observer Branch, Southwest Region, NMFS
(see address for Southwest Regional Director) at the earliest practical
time. NMFS will reimburse the owner only for those days during which
the vessel is unable to fish as a direct result of helping the NMFS
employee who is seriously injured or seriously ill. Lost fishing time
is based on time travelling to and from the fishing grounds and any
documented out-of-pocket expenses for medical services. Payment will be
based on the current target fish market prices and that vessel's
average target fish catch retained per day at sea for the previous 2
years, but shall not exceed $5,000 per day or $20,000 per claim.
Detailed billing with receipts and supporting records are required for
allowable communication and lost fishing time claims. The claim must be
completed in ink, showing the claimant's printed name, address, vessel
name, observer name, trip dates, days observer on board, an explanation
of the charges, and claimant's dated signature with a statement
verifying the claim to be true and correct. Requested reimbursement
claims must be submitted to the Fisheries Observer Branch, Southwest
Region, NMFS. NMFS will not process reimbursement invoices and
documentation submitted more than 120 days after the occurrence.
(j) If a vessel normally has cabins for crew members, female
observers on a vessel with an all-male crew must be accommodated either
in a single person cabin or, if NMFS concludes that adequate privacy
can be ensured by installing a curtain or other temporary divider, in a
two-person shared cabin. If the vessel normally does not have cabins
for crew members, alternative accommodations must be approved by NMFS.
If a cabin assigned to a female observer does not have its own toilet
and shower facilities that can be provided for the exclusive use of the
observer, or if no cabin is assigned, then arrangements for sharing
common facilities must be established and approved in advance by NMFS.
Sec. 660.29 Port privileges and transiting for unpermitted U.S.
longline vessels.
A U.S. longline fishing vessel that does not have a permit under
subpart B of this part may enter waters of the fishery management area
with Pacific pelagic management unit species on board, but may not land
or transship any management unit species on board the vessel. The
vessel's longline gear must be stowed or secured so it is rendered
unusable during the time the vessel is in those waters.
Sec. 660.30 Prohibition of drift gillnetting.
Fishing with drift gillnets in the fishery management area is
prohibited, except where authorized by an EFP issued under Sec. 660.17.
Sec. 660.31 Framework adjustments to management measures.
(a) Introduction. Adjustments in management measures may be made
through rulemaking if new information demonstrates that there are
biological, social, or economic concerns in the fishery. The following
framework process authorizes the implementation of measures that may
affect the operation of the fisheries, gear, harvest guidelines, or
changes in catch and/or effort.
(b) Annual report. By June 30 of each year, the Council-appointed
Pelagics Plan Team will prepare an annual report on the fisheries in
the management area. The report shall contain, among other things,
recommendations for Council action and an assessment of the urgency and
effects of such action(s).
(c) Procedure for established measures. (1) Established measures
are management measures that, at some time, have been included in
regulations implementing the FMP, and for which the impacts have been
evaluated in Council/NMFS documents in the context of current
conditions.
(2) Following the framework procedures of Amendment 7 to the
Pelagics FMP, the Council may recommend to the Regional Director that
established measures be modified, removed, or re-instituted. Such
recommendation shall include supporting rationale and analysis, and
shall be made after advance public notice, public discussion, and
consideration of public comment. NMFS may implement the Council's
recommendation by rulemaking if approved by the Regional Director.
(d) Procedure for new measures. (1) New measures are management
measures that have not been included in regulations implementing the
FMP, or for which the impacts have not been evaluated in Council/NMFS
documents in the context of current conditions.
(2) Following the framework procedures of Amendment 7 to the
Pelagics FMP, the Council will publicize, including by Federal Register
notice, and solicit public comment on, any proposed new management
measure. After a Council meeting at which the measure is discussed, the
Council will consider recommendations and prepare a Federal Register
notice summarizing the Council's deliberations, rationale, and analysis
for the preferred action, and the time and place for any subsequent
Council meeting(s) to consider the new measure. At subsequent public
meeting(s), the Council will consider public comments and other
information received to make a recommendation to the Regional Director
about any new measure. NMFS may implement the Council's recommendation
by rulemaking if approved by the Regional Director.
Subpart D--Western Pacific Crustacean Fisheries
Sec. 660.41 Permits.
(a) Applicability. (1) The owner of any vessel used to fish for
lobster in Permit Area 1 must have a limited access permit issued for
such vessel. Only one permit will be assigned to any vessel.
(2) The owner of any vessel used to fish for lobster in Permit Area
2 or Permit Area 3, must have a permit issued for such a vessel.
(3) No vessel owner will have permits for a single vessel to
harvest lobsters in Permit Areas 1 and 2 at the same time.
(4) A limited access permit is valid for fishing only in Permit
Area 1.
(b) General requirements. General requirements governing
application information, issuance, fees, expiration, replacement,
transfer, alteration, display, sanctions, and appeals for permits
issued under this section, as applicable, are contained in Sec. 660.13.
(c) Application. An application for a permit required under this
section will be submitted to the Pacific Area Office as described in
Sec. 660.13. If the application for a limited access permit is
submitted on behalf of a partnership or corporation, the application
must be accompanied by a supplementary information sheet obtained from
the Pacific Area Office and contain the names and mailing addresses of
all partners or shareholders and their respective percentage of
ownership in the partnership or corporation.
(d) Number of permits. A maximum of 15 limited access permits can
be valid at any time.
(e) Transfer or sale of limited access permits. (1) Permits may be
transferred or sold, but no one individual, partnership, or corporation
will be allowed to hold a whole or partial interest in more than one
permit, except that an owner who qualifies initially for more than one
permit may maintain those permits, but may not obtain additional
permits. Layering of partnerships or corporations shall not insulate a
permit holder from this requirement.
(2) If 50 percent or more of the ownership of a limited access
permit is passed to persons other than those listed
[[Page 34583]]
on the permit application, the Pacific Area Office must be notified of
the change in writing and provided copies of the appropriate documents
confirming the changes within 30 days.
(3) Upon the transfer or sale of a limited access permit, a new
application must be submitted by the new permit owner according to the
requirements of Sec. 660.13. The transferred permit is not valid until
this process is completed.
(f) Replacement of a vessel covered by a limited access permit. A
limited access permit issued under this section may, without limitation
as to frequency, be transferred by the permit holder to a replacement
vessel owned by that person.
(g) Issuance of limited access permits to future applicants.
(1) The Regional Director may issue limited access permits under
this section when fewer than 15 vessel owners hold active permits.
(2) When the Regional Director has determined that limited access
permits may be issued to new persons, a notice shall be placed in the
Federal Register, and other means will be used to notify prospective
applicants of the opportunity to obtain permits under the limited
access management program.
(3) A period of 90 days will be provided after publication of the
Federal Register notice for submission of new applications for a
limited access permit.
(4) Limited access permits issued under this paragraph (g) will be
issued first to applicants qualifying under paragraph (g)(4)(i) of this
section. If the number of limited access permits available is greater
than the number of applicants that qualify under paragraph (g)(4)(i) of
this section, then limited access permits will be issued to applicants
under paragraph (g)(4)(ii) of this section.
(i) First priority to receive limited access permits under this
paragraph (g) goes to owners of vessels that were used to land lobster
from Permit Area 1 during the period 1983 through 1990, and who were
excluded from the fishery by implementation of the limited access
system. If there are insufficient permits for all such applicants, the
new permits shall be issued by the Regional Director through a lottery.
(ii) Second priority to receive limited access permits under
paragraph (g) goes to owners with the most points, based upon a point
system. If two or more owners have the same number of points and there
are insufficient permits for all such owners, the Regional Director
shall issue the permits through a lottery. Under the point system,
limited access permits will be issued, in descending order, beginning
with owners who have the most points and proceeding to owners who have
the least points, based on the following:
(A) Three points shall be assigned for each calendar year after
August 8, 1985, that the applicant was the operator of a vessel that
was used to land lobster from Permit Area 1.
(B) Two points shall be assigned for each calendar year or partial
year after August 8, 1985, that the applicant was the owner, operator,
or crew member of a vessel engaged in either commercial fishing in
Permit Area 2 for lobster, or fishing in Permit Area 1 for fish other
than lobster with an intention to sell all or part of the catch.
(C) One point shall be assigned for each calendar year or partial
year after August 8, 1985, that the applicant was the owner, operator,
or crew member of a vessel engaged in any other commercial fishing in
the EEZ surrounding Hawaii.
(5) A holder of a new limited access permit must own at least a 50-
percent share in the vessel that the permit would cover.
Sec. 660.42 Prohibitions.
In addition to the general prohibitions specified in Sec. 600.725
of this chapter and Sec. 660.16, it is unlawful for any person to do
any of the following:
(a) In Permit Area 1, it is unlawful for any person to--
(1) Fish for, take, or retain lobsters--
(i) Without a limited access permit issued under Sec. 660.41;
(ii) By methods other than lobster traps or by hand for lobsters,
as specified in Sec. 660.48;
(iii) From closed areas for lobsters, as specified in Sec. 660.46;
(iv) During a closed season, as specified in Sec. 660.45; or
(v) After the closure date, as specified in Sec. 660.50, and until
the fishery opens again in the following calendar year.
(2) Fail to report before landing or offloading as specified in
Sec. 660.43.
(3) Fail to comply with any protective measures implemented under
Sec. 660.51 or Sec. 660.52.
(4) Possess on a fishing vessel in the crustaceans fishery
management area any lobster trap when fishing for lobster is prohibited
as specified in Secs. 660.45, 660.50, 660.51, or 660.52.
(5) Leave a trap unattended in the Management Area except as
provided in Sec. 660.48.
(6) Maintain on board the vessel or in the water more than 1,200
traps per fishing vessel, of which no more than 1,100 can be assembled
traps, as specified in Sec. 660.48.
(7) Land lobsters taken in Permit Area 1 after the closure date, as
specified in Sec. 660.50, until the fishery opens again the following
year.
(8) Refuse to make available to an authorized officer and employee
of NMFS designated by the Regional Director for inspection and copying
any records that must be made available in accordance with
Sec. 660.14(f)(2).
(b) In Permit Area 2, it is unlawful for any person to--
(1) Fish for, take, or retain lobsters--
(i) By methods other than lobster traps or by hand, as specified in
Sec. 660.48; or
(ii) During a closed season, as specified in Sec. 660.45(b).
(2) Retain or possess on a fishing vessel any lobster taken in
Permit Area 2 that is less than the minimum size specified in
Sec. 660.44.
(3) Possess on a fishing vessel any lobster or lobster part taken
in Permit Area 2 in a condition where the lobster is not whole and
undamaged as specified in Sec. 660.44.
(4) Retain or possess on a fishing vessel, or remove the eggs from,
any egg-bearing lobster, as specified in Sec. 660.44.
Sec. 660.43 Notifications.
(a) The operator of any vessel subject to the requirements of this
subpart must:
(1) Report, not less than 24 hours, but not more than 36 hours,
before landing, the port, the approximate date and the approximate time
at which spiny and slipper lobsters will be landed.
(2) Report, not less than 6 hours and not more than 12 hours before
offloading, the location and time that offloading of spiny and slipper
lobsters will begin.
(b) The Regional Director will notify permit holders of any change
in the reporting method and schedule required in paragraphs (a)(1) and
(2) of this section at least 30 days prior to the opening of the
fishing season.
Sec. 660.44 Lobster size and condition restrictions--Permit Area 2.
(a) Only spiny lobsters with a carapace length of 8.26 cm or
greater may be retained (see Figure 3 of this subpart).
(b) Any lobster with a punctured or mutilated body, or a separated
carapace and tail, may not be retained.
(c) A female lobster of any size may not be retained if it is
carrying eggs externally. Eggs may not be removed from female lobsters.
Sec. 660.45 Closed seasons.
(a) Lobster fishing is prohibited in Permit Area 1 during the
months of January through June, inclusive.
(b) Lobster fishing is prohibited in Permit Area 2 during the
months of June, July, and August.
[[Page 34584]]
Sec. 660.46 Closed areas.
All lobster fishing is prohibited:
(a) Within 20 nm of Laysan Island.
(b) Within the EEZ landward of the 10-fathom curve as depicted on
National Ocean Survey Charts, Numbers 19022, 19019, and 19016.
Sec. 660.47 Gear identification.
In Permit Area 1, the vessel's official number must be marked
legibly on all traps and floats maintained on board the vessel or in
the water by that vessel.
Sec. 660.48 Gear restrictions.
(a) Permit Area 1. (1) Lobsters may be taken only with lobster
traps or by hand. Lobsters may not be taken by means of poisons, drugs,
other chemicals, spears, nets, hook, or explosives.
(2) The smallest opening of an entry way of any lobster trap may
not allow any sphere or cylinder greater than 6.5 inches (16.5 cm) in
diameter to pass from outside the trap to inside the trap.
(3) Each lobster trap must have a minimum of two escape vent panels
that meet the following requirements:
(i) Panels must have at least four unobstructed circular holes no
smaller than 67 mm in diameter, with centers at least 82 mm apart.
(ii) The lowest part of any opening in an escape vent panel must
not be more than 85 mm above the floor of the trap.
(iii) Panels must be placed opposite one another in each trap.
(4) A vessel fishing for or in possession of lobster in any permit
area may not have on board the vessel any trap that does not meet the
requirements of paragraphs (a)(1), (2), and (3) of this section.
(5) A maximum of 1,200 traps per vessel may be maintained on board
or in the water, provided that no more than 1,100 assembled traps are
maintained on board or in the water. If more than 1,100 traps are
maintained, the unassembled traps may be carried as spares only, in
order to replace assembled traps that may be lost or become unusable.
(6) Traps shall not be left unattended in any permit area, except
in the event of an emergency, in which case the vessel operator must
notify the NMFS Law Enforcement Office of the emergency that
necessitated leaving the traps on the grounds, and the location and
number of the traps, within 24 hours after the vessel reaches port.
(b) Permit Area 2. Lobsters may be taken only with lobster traps or
by hand. Lobsters may not be taken by means of poisons, drugs, other
chemicals, spears, nets, hooks, or explosives.
Sec. 660.49 At-sea observer coverage.
All fishing vessels subject to this subpart and subpart B of this
part must carry an observer when requested to do so by the Regional
Director.
Sec. 660.50 Harvest limitation program.
(a) General. A harvest guideline for Permit Area 1 will be set
annually for the calendar year and shall:
(1) Apply to the total catch of spiny and slipper lobsters.
(2) Be expressed in terms of numbers of lobsters.
(b) Harvest guideline. (1) The Regional Director shall use
information from daily lobster catch reports and lobster sales reports
from previous years, and may use information from research sampling and
other sources, to establish the annual harvest guideline in accordance
with the FMP.
(2) NMFS shall publish a document indicating the annual harvest
guideline in the Federal Register by March 31 each year, and shall use
other means to notify permit holders of the harvest guideline for the
year.
(3) The Regional Director shall determine, on the basis of the
information reported to NMFS during the open season by the operator of
each vessel fishing, when the harvest guideline will be reached. Notice
of this determination, with a specification of the closure date after
which fishing for lobster or further landings of lobster taken in
Permit Area 1 will be prohibited, will be provided to each permit
holder and operator of each permitted vessel or announced in the
Federal Register. At least 5 days advance notice of the effective date
of the prohibition on landings will be given.
(c) Monitoring and adjustment. The operator of each vessel fishing
during the open season shall report lobster catch (by species) and
effort (number of trap hauls) data while at sea to NMFS in Honolulu.
The Regional Director shall notify permit holders of the reporting
method, schedule, and logistics at least 30 days prior to the opening
of the fishing season.
Sec. 660.51 Monk seal protective measures.
(a) General. This section establishes a procedure that will be
followed if the Regional Director receives a report of a monk seal
death that appears to be related to the lobster fishery in Permit Area
1.
(b) Notification. Upon receipt of a report of a monk seal death
that appears to be related to the lobster fishery, the Regional
Director will notify all interested parties of the facts known about
the incident. The Regional Director will also notify them that an
investigation is in progress, and that, if the investigation reveals a
threat of harm to the monk seal population, protective measures may be
implemented.
(c) Investigation. (1) The Regional Director will investigate the
incident reported and will attempt to:
(i) Verify that the incident occurred.
(ii) Determine the extent of the harm to the monk seal population.
(iii) Determine the probability of a similar incident recurring.
(iv) Determine details of the incident such as:
(A) The number of animals involved.
(B) The cause of the mortality.
(C) The age and sex of the dead animal(s).
(D) The relationship of the incident to the reproductive cycle, for
example, breeding season (March-September), non-breeding season
(October- February).
(E) The population estimates or counts of animals at the island
where the incident occurred.
(F) Any other relevant information.
(v) Discover and evaluate any extenuating circumstances.
(vi) Evaluate any other relevant factors.
(2) The Regional Director will make the results of the
investigation available to the interested parties and request their
advice and comments.
(d) Determination of relationship. The Regional Director will
review and evaluate the results of the investigation and any comments
received from interested parties. If there is substantial evidence that
the death of the monk seal was related to the lobster fishery, the
Regional Director will:
(1) Advise the interested parties of his or her conclusion and the
facts upon which it is based.
(2) Request from the interested parties their advice on the
necessity of protective measures and suggestions for appropriate
protective measures.
(e) Determination of response. The Regional Director will consider
all relevant information discovered during the investigation or
submitted by interested parties in deciding on the appropriate
response. Protective measures may include, but are not limited to,
changes in trap design, changes in gear, closures of specific areas, or
closures for specific periods of time.
(f) Action by the Regional Director. If the Regional Director
decides that protective measures are necessary and appropriate, the
Regional Director will prepare a document that describes the incident,
the protective measures
[[Page 34585]]
proposed, and the reasons for the protective measures; provide it to
the interested parties; and request their comments.
(g) Implementation of protective measures. (1) If, after completing
the steps described in paragraph (f) of this section, the Regional
Director concludes that protective measures are necessary and
appropriate, the Regional Director will recommend the protective
measures to the Assistant Administrator and provide notice of this
recommendation to the Chairman of the Council and the Director of the
Division of Aquatic Resources, Department of Land and Natural
Resources, State of Hawaii.
(2) If the Assistant Administrator concurs with the Regional
Director's recommendation, NMFS will publish an action in the Federal
Register that includes a description of the incident that triggered the
procedure described in this section, the protective measures, and the
reasons for the protective measures.
(h) Notification of ``no action.'' If, at any point in the process
described in this section, the Regional Director or Assistant
Administrator decides that no further action is required, the
interested parties will be notified of this decision.
(i) Effective dates. (1) The protective measures will take effect
10 days after the date of publication in the Federal Register.
(2) The protective measures will remain in effect for the shortest
of the following time periods:
(i) Until the Crustaceans FMP and this section are amended to
respond to the problem;
(ii) Until other action that will respond to the problem is taken
under the ESA;
(iii) Until the Assistant Administrator, following the procedures
set forth in paragraph (j) of this section, decides that the protective
measures are no longer required and repeals the measures; or
(iv) For the period of time set forth in the Federal Register
notification, not to exceed 3 months. The measures may be renewed for 3
months after again following procedures in paragraphs (b) through (g)
of this section.
(j) Repeal. (1) If the Assistant Administrator decides that
protective measures may no longer be necessary for the protection of
monk seals, the interested parties will be notified of this preliminary
decision and the facts upon which it is based. The Assistant
Administrator will request advice on the proposed repeal of the
protective measures.
(2) The Assistant Administrator will consider all relevant
information obtained by the Regional Director or submitted by
interested parties in deciding whether to repeal the protective
measures.
(3) If the Assistant Administrator decides to repeal the protective
measures--
(i) Interested parties will be notified of the decision; and
(ii) Notification of repeal and the reasons for the repeal will be
published in the Federal Register.
Sec. 660.52 Monk seal emergency protective measures.
(a) Determination of emergency. If, at any time during the process
described in Sec. 660.51, the Regional Director determines that an
emergency exists involving monk seal mortality related to the lobster
fishery and that measures are needed immediately to protect the monk
seal population, the Regional Director will--
(1) Notify the interested parties of this determination and request
their immediate advice and comments.
(2) Forward a recommendation for emergency action and any advice
and comments received from interested parties to the Assistant
Administrator.
(b) Implementation of emergency measures. If the Assistant
Administrator agrees with the recommendation for emergency action--
(1) The Regional Director will determine the appropriate emergency
protective measures.
(2) NMFS will publish the emergency protective measures in the
Federal Register.
(3) The Regional Director will notify the interested parties of the
emergency protective measures. Holders of permits to fish in Permit
Area I will be notified by certified mail. Permit holders that the
Regional Director knows are on the fishing grounds also will be
notified by radio.
(c) Effective dates. (1) Emergency protective measures are
effective against a permit holder at 12:01 a.m., local time, of the day
following the day the permit holder receives actual notice of the
measures.
(2) Emergency protective measures are effective for 10 days from
the day following the day the first permit holder is notified of the
protective measures.
(3) Emergency protective measures may be extended for an additional
10 days, if necessary, to allow the completion of the procedures set
out in Sec. 660.51.
Sec. 660.53 Framework procedures.
(a) Introduction. New management measures may be added through
rulemaking if new information demonstrates that there are biological,
social, or economic concerns in Permit Areas 1, 2, or 3. The following
framework process authorizes the implementation of measures that may
affect the operation of the fisheries, gear, harvest guidelines, or
changes in catch and/or effort.
(b) Annual report. By June 30 of each year, the Council-appointed
Crustaceans Plan Team will prepare an annual report on the fisheries in
the management area. The report shall contain, among other things,
recommendations for Council action and an assessment of the urgency and
effects of such action(s).
(c) Procedure for established measures. (1) Established measures
are management measures that, at some time, have been included in
regulations implementing the FMP, and for which the impacts have been
evaluated in Council/NMFS documents in the context of current
conditions.
(2) Following the framework procedures of Amendment 9 to the FMP,
the Council may recommend to the Regional Director that established
measures be modified, removed, or re-instituted. Such recommendation
shall include supporting rationale and analysis, and shall be made
after advance public notice, public discussion, and consideration of
public comment. NMFS may implement the Council's recommendation by
rulemaking if approved by the Regional Director.
(d) Procedure for New Measures. (1) New measures are management
measures that have not been included in regulations implementing the
FMP, or for which the impacts have not been evaluated in Council/NMFS
documents in the context of current conditions.
(2) Following the framework procedures of Amendment 9 to the FMP,
the Council will publicize, including by a Federal Register document,
and solicit public comment on, any proposed new management measure.
After a Council meeting at which the measure is discussed, the Council
will consider recommendations and prepare a Federal Register document
summarizing the Council's deliberations, rationale, and analysis for
the preferred action, and the time and place for any subsequent Council
meeting(s) to consider the new measure. At subsequent public
meeting(s), the Council will consider public comments and other
information received to make a recommendation to the Regional Director
about any new measure. NMFS may implement the Council's recommendation
by rulemaking if approved by the Regional Director.
[[Page 34586]]
Sec. 660.54 Five-year review.
The Council, in cooperation with NMFS, will conduct a review of the
effectiveness and impacts of the NWHI management program, including
biological, economic, and social aspects of the fishery, by July 1,
2001.
Subpart E--Bottomfish and Seamount Groundfish Fisheries
Sec. 660.61 Permits.
(a) Applicability. (1) The owner of any vessel being used to fish
for bottomfish or seamount groundfish species in the management area
must have a permit issued under this section for that vessel.
(2) No vessel owner may have permits for a single vessel to harvest
bottomfish in the Ho'omalu Zone and the Mau Zone at the same time.
(b) Application. (1) An application for a permit required under
this section will be submitted to the Pacific Area Office as described
in Sec. 660.13.
(2) Before the Regional Director issues a Mau Zone or Ho'omalu zone
permit to fish for bottomfish under this section, the primary operator
and relief operator named on the application form must have completed a
protected species workshop conducted by NMFS.
(3) Each applicant for a Ho'omalu zone permit will submit a
supplementary information sheet to be provided by the Pacific Area
Office. Each application for a Ho'omalu zone permit will be signed by
the vessel owner or a designee and include the following information:
(i) The qualification criterion that the applicant believes he or
she meets for issuance of a limited access permit; and
(ii) Copies of landings receipts or other documentation, with a
certification from a state or Federal agency that this information is
accurate, to demonstrate participation in the NWHI bottomfish fishery;
or
(iii) If the application is filed by a partnership or corporation,
the application must identify the names of the owners and their
respective percentage of ownership of the partnership or corporation.
(c) Sale or transfer of Ho'omalu Zone permits to new vessel owners.
(1) A Ho'omalu zone permit shall not be sold or otherwise transferred
to a new owner.
(2) A Ho'omalu zone permit or permits may be held by a partnership
or corporation. If 50 percent or more of the ownership of the vessel
passes to persons other than those listed in the original application,
the permit will lapse and must be surrendered to the Regional Director.
(d) Transfer of permits to replacement vessels. (1) An owner of a
permitted vessel may, without limitation, transfer his or her permit to
another vessel owned by him or her, provided that the replacement
vessel does not exceed 60 ft (18.3 m) in length and that the
replacement vessel is put into service within 12 months after the owner
declares to the Regional Director the intent to make the transfer of
the permit.
(2) An owner of a permitted vessel may apply to the Regional
Director for approval to use the permit for a replacement vessel
greater than 60 ft (18.3 m) in length. The Regional Director may allow
this change upon determining, after consultation with the Council and
considering the objectives of the limited access program, that the
replacement vessel has equal catching power as the original vessel, or
that the replacement vessel has catching power that is comparable to
the rest of the vessels holding permits for the fishery, and that the
change is not inconsistent with the objectives of the program.
(3) The Regional Director shall consider vessel length, range, hold
capacity, gear limitations, and other appropriate factors in making
determinations of catching power equivalency and comparability of the
catching power of vessels in the fishery.
(e) Supplementary requirements for permit renewal. (1) A permit
will be eligible for renewal if the vessel covered by the permit makes
three or more qualifying landings as defined in Sec. 660.12 during the
permit year.
(2) The owner of a permitted vessel that did not make three or more
qualifying landings of bottomfish in a year may apply to the Regional
Director for waiver of the landing requirement. If the Regional
Director finds that failure to make three landings was due to
circumstances beyond the owner's control, the Regional Director may
renew the permit. A waiver may not be granted if the failure to make
three landings was due to general economic conditions or market
conditions, such that the vessel operations would not be profitable.
(f) Supplementary requirements for new limited access permits. The
Regional Director may issue new vessel permits under this part when the
Regional Director has determined, in consultation with the Council,
that bottomfish stocks in the Ho'omalu Zone are able to support
additional fishing effort. This shall be established by determining
that the total estimated annual revenue to the fleet exceeds the total
estimated annual fixed and variable costs to the fleet in the Ho'omalu
Zone by an amount at least equal to the average cost of a vessel year.
This determination shall be made and published annually in association
with the annual report required under Sec. 660.67.
(g) Eligibility for new limited access permits. When the Regional
Director has determined that new permits may be issued, they shall be
issued to applicants based upon eligibility, determined as follows:
(1) Point system. (i) Two points shall be assigned for each year in
which the applicant was owner or captain of a vessel that made three or
more qualifying landings of bottomfish from the NWHI.
(ii) One point shall be assigned for each year in which the
applicant was owner or captain of a vessel that landed at least 6,000
lb (2,722 kg) of bottomfish from the main Hawaiian Islands.
(iii) Points will be assigned only under paragraph (g)(1)(i) or
(ii) of this section for any 1 year.
(iv) Points will be assigned for every year for which the requisite
landings can be documented.
(2) Restrictions. An applicant must own at least a 25-percent share
in the vessel that the permit would cover, and only one permit will be
assigned to any vessel.
(3) Order of issuance. New permits shall be awarded to applicants
in descending order, starting with the applicant with the largest
number of points. If two or more persons have an equal number of
points, and there are insufficient new permits for all such applicants,
the new permits shall be awarded by the Regional Director through a
lottery.
(4) Notification. The Regional Director shall place a notice in the
Federal Register and shall use other means to notify prospective
applicants of the opportunity to file applications for new permits
under this program.
(h) Appeals of permit actions. (1) Except as provided in subpart D
of 15 CFR part 904, any applicant for a permit or a permit holder may
appeal the granting, denial, conditioning, or suspension of their
permit or a permit affecting their interests to the Assistant
Administrator. In order to be considered by the Assistant
Administrator, such appeal must be in writing, must state the action(s)
appealed, and the reasons therefor, and must be submitted within 30
days of the action(s) by the Regional Director. The appellant may
request an informal hearing on the appeal.
(2) Upon receipt of an appeal authorized by this section, the
Assistant Administrator will notify the permit applicant, or permit
holder as appropriate, and will request such additional information and
in such form as will allow action upon the appeal.
[[Page 34587]]
Upon receipt of sufficient information, the Assistant Administrator
will decide the appeal in accordance with the permit eligibility
criteria set forth in this section and the amendment to the FMP, as
appropriate, based upon information relative to the application on file
at NMFS and the Council and any additional information, the summary
record kept of any hearing and the hearing officer's recommended
decision, if any, and such other considerations as deemed appropriate.
The Assistant Administrator will notify all interested persons of the
decision, and the reasons therefor, in writing, normally within 30 days
of the receipt of sufficient information, unless additional time is
needed for a hearing.
(3) If a hearing is requested, or if the Assistant Administrator
determines that one is appropriate, the Assistant Administrator may
grant an informal hearing before a hearing officer designated for that
purpose after first giving notice of the time, place, and subject
matter of the hearing in the Federal Register. Such a hearing shall
normally be held no later than 30 days following publication of the
notice in the Federal Register, unless the hearing officer extends the
time for reasons deemed equitable. The appellant, the applicant (if
different), and, at the discretion of the hearing officer, other
interested persons, may appear personally or be represented by counsel
at the hearing and submit information and present arguments as
determined appropriate by the hearing officer. Within 30 days of the
last day of the hearing, the hearing officer shall recommend in writing
a decision to the Assistant Administrator.
(4) The Assistant Administrator may adopt the hearing officer's
recommended decision, in whole or in part, or may reject or modify it.
In any event, the Assistant Administrator will notify interested
persons of the decision, and the reason(s) therefore, in writing,
within 30 days of receipt of the hearing officer's recommended
decision. The Assistant Administrator's action shall constitute final
action for the agency for the purposes of the APA.
(5) Any time limit prescribed in this section may be extended for a
period not to exceed 30 days by the Assistant Administrator for good
cause, either upon his or her own motion or upon written request from
the appellant or applicant stating the reason(s) therefore.
Sec. 660.62 Prohibitions.
In addition to the general prohibitions specified in Sec. 600.725
of this chapter and Sec. 660.15, it is unlawful for any person to do
any of the following:
(a) Fish for bottomfish or seamount groundfish using gear
prohibited under Sec. 660.64.
(b) Fish for bottomfish in the Ho'omalu Zone without a limited
access permit issued under Secs. 660.13 and 660.61.
(c) Fish for bottomfish in the Mau Zone without a permit issued
under Secs. 660.13 and 660.61.
(d) Serve as primary operator or relief operator on a vessel with a
Mau or Ho'omalu Zone permit without completing a protected species
workshop conducted by NMFS, as required by Sec. 660.61.
(e) Fail to notify the USCG at least 24 hours prior to making any
landing of bottomfish taken in the Ho'omalu Zone, as required by
Sec. 660.63.
(f) Fish within any protected species study zone in the NWHI
without notifying the Regional Director of the intent to fish in these
zones, as required under Sec. 660.63.
Sec. 660.63 Notification.
(a) The owner or operator of a fishing vessel subject to this
subpart must inform the Pacific Area Office at least 72 hours (not
including weekends and holidays) before leaving port, of his or her
intent to fish within the protected species study zones defined in
Sec. 660.12. The notice must include the name of the vessel, name of
the operator, intended departure and return date, and a telephone
number at which the owner or operator may be contacted during the
business day (8 a.m. to 5 p.m.) to indicate whether an observer will be
required on the subject fishing trip.
(b) The operator of a fishing vessel that has taken bottomfish in
the Ho'omalu Zone must contact the USCG, by radio or otherwise, at the
14th District, Honolulu, HI; Pacific Area, San Francisco, CA; or 17th
District, Juneau, AK, at least 24 hours before landing, and report the
port and the approximate date and time at which the bottomfish will be
landed.
Sec. 660.64 Gear restrictions.
(a) Bottom trawls and bottom set gillnets. Fishing for bottomfish
and seamount groundfish with bottom trawls and bottom set gillnets is
prohibited.
(b) Possession of gear. Possession of a bottom trawl and bottom set
gillnet by any vessel having a permit under Sec. 660.61 or otherwise
established to be fishing for bottomfish or seamount groundfish in the
management subareas is prohibited.
(c) Poisons and explosives. The possession or use of any poisons,
explosives, or intoxicating substances for the purpose of harvesting
bottomfish and seamount groundfish is prohibited.
Sec. 660.65 At-sea observer coverage.
(a) All fishing vessels subject to this subpart must carry an
observer when directed to do so by the Regional Director.
(b) The Pacific Area Office will advise the vessel owner or
operator of any observer requirement within 72 hours (not including
weekends or holidays) of receipt of the notice. If an observer is
required, the owner or operator will be informed of the terms and
conditions of observer coverage, and the time and place of embarkation
of the observer.
(c) All observers must be provided with sleeping, toilet, and
eating accommodations at least equal to that provided to a full crew
member. A mattress of futon on the floor or a cot is not acceptable in
place of a regular bunk. Meal and other gallery privileges must be the
same for the observer as for other crew members.
(d) Female observers on a vessel with an all-male crew must be
accommodated either in a single-person cabin or, if reasonable privacy
can be ensured by installing a curtain or other temporary divider, in a
two-person cabin shared with a licensed officer of the vessel. If the
cabin assigned to a female observer does not have its own toilet and
shower facilities that can be provided for the exclusive use of the
observer, then a schedule for time-sharing of common facilities must be
established and approved by the Regional Director prior to the vessel's
departure from port.
Sec. 660.66 Protected species conservation.
The Regional Director may change the size of the protected species
study zones defined in Sec. 660.12 of this subpart:
(a) If the Regional Director determines that a change in the size
of the study zones would not result in fishing for bottomfish in the
NWHI that would adversely affect any species listed as threatened or
endangered under the ESA.
(b) After consulting with the Council.
(c) Through notification in the Federal Register published at least
30 days prior to the effective date or through actual notice to the
permit holders.
Sec. 660.67 Framework for regulatory adjustments.
(a) Annual reports. By June 30 of each year, a Council-appointed
bottomfish monitoring team will prepare an annual report on the fishery
by area covering the following topics:
(1) Fishery performance data.
[[Page 34588]]
(2) Summary of recent research and survey results.
(3) Habitat conditions and recent alterations.
(4) Enforcement activities and problems.
(5) Administrative actions (e.g., data collection and reporting,
permits).
(6) State and territorial management actions.
(7) Assessment of need for Council action (including biological,
economic, social, enforcement, administrative, and state/Federal needs,
problems, and trends). Indications of potential problems warranting
further investigation may be signaled by the following indicator
criteria:
(i) Mean size of the catch of any species in any area is a pre-
reproductive size.
(ii) Ratio of fishing mortality to natural mortality for any
species.
(iii) Harvest capacity of the existing fleet and/or annual landings
exceed best estimate of MSY in any area.
(iv) Significant decline (50 percent or more) in bottomfish catch
per unit of effort from baseline levels.
(v) Substantial decline in ex-vessel revenue relative to baseline
levels.
(vi) Significant shift in the relative proportions of gear in any
one area.
(vii) Significant change in the frozen/fresh components of the
bottomfish catch.
(viii) Entry/exit of fishermen in any area.
(ix) Per-trip costs for bottomfishing exceed per-trip revenues for
a significant percentage of trips.
(x) Significant decline or increase in total bottomfish landings in
any area.
(xi) Change in species composition of the bottomfish catch in any
area.
(xii) Research results.
(xiii) Habitat degradation or environmental problems.
(xiv) Reported interactions between bottomfishing operations and
protected species in the NWHI.
(8) Recommendations for Council action.
(9) Estimated impacts of recommended action.
(b) Recommendation of management action. (1) The team may present
management recommendations to the Council at any time. Recommendations
may cover actions suggested for Federal regulations, state/territorial
action, enforcement or administrative elements, and research and data
collection. Recommendations will include an assessment of urgency and
the effects of not taking action.
(2) The Council will evaluate the team's reports and
recommendations, and the indicators of concern. The Council will assess
the need for one or more of the following types of management action:
Catch limits, size limits, closures, effort limitations, access
limitations, or other measures.
(3) The Council may recommend management action by either the
state/territorial governments or by Federal regulation.
(c) Federal management action. (1) If the Council believes that
management action should be considered, it will make specific
recommendations to the Regional Director after requesting and
considering the views of its Scientific and Statistical Committee and
Bottomfish Advisory Panel and obtaining public comments at a public
hearing.
(2) The Regional Director will consider the Council's
recommendation and accompanying data, and, if he or she concurs with
the Council's recommendation, will propose regulations to carry out the
action. If the Regional Director rejects the Council's proposed action,
a written explanation for the denial will be provided to the Council
within 2 weeks of the decision.
(3) The Council may appeal denial by writing to the Assistant
Administrator, who must respond in writing within 30 days.
(4) The Regional Director and the Assistant Administrator will make
their decisions in accord with the Magnuson Act, other applicable law,
and the Bottomfish FMP.
(5) To minimize conflicts between the Federal and state management
systems, the Council will use the procedures in paragraph (b) of this
section to respond to state/territorial management actions. Council
consideration of action would normally begin with a representative of
the state or territorial government bringing a potential or actual
management conflict or need to the Council's attention.
(d) Access limitation procedures. (1) Access limitation may be
adopted under this paragraph (d) only for the NWHI, American Samoa, and
Guam.
(2) If access limitation is proposed for adoption or subsequent
modification through the process described in this paragraph (d), the
following requirements must be met:
(i) The Bottomfish Monitoring Team must consider and report to the
Council on present participation in the fishery; historical fishing
practices in, and dependence on, the fishery; economics of the fishery;
capability of fishing vessels used in the fishery to engage in other
fisheries; cultural and social framework relevant to the fishery; and
any other relevant considerations.
(ii) Public hearings must be held specifically addressing the
limited access proposals.
(iii) A specific advisory subpanel of persons experienced in the
fishing industry will be created to advise the Council and the Regional
Director on administrative decisions.
(iv) The Council's recommendation to the Regional Director must be
approved by a two-thirds majority of the voting members.
(3) If prior participation in the fishery is used as a factor in
any access limitation system recommended by the Council, August 7,
1985, is the date selected by the Council as the date to be used for
the NWHI and May 30, 1986, for American Samoa and Guam.
Sec. 660.68 Fishing moratorium on Hancock Seamount.
Fishing for bottomfish and seamount groundfish on the Hancock
Seamount is prohibited through August 31, 1998.
Sec. 660.69 Management subareas.
(a) The bottomfish fishery management area is divided into five
subareas for the regulation of bottomfish and seamount groundfish
fishing with the following designations and boundaries:
(1) Main Hawaiian Islands means the EEZ of the Hawaiian Islands
Archipelago lying to the east of 161 deg.20' W. long.
(2) Northwestern Hawaiian Islands (NWHI) means the EEZ of the
Hawaiian Islands Archipelago lying to the west of 161 deg.20' W. long.
However, for the purposes of regulations issued under this subpart,
Midway Island is treated as part of the Northwestern Hawaiian Islands
Subarea.
(i) Ho'omalu Zone means that portion of the EEZ around the NWHI
west of 165 deg. W. long.
(ii) Mau Zone means that portion of the EEZ around the NWHI between
161 deg.20' W. long. and 165 deg. W. long.
(3) Hancock Seamount means that portion of the EEZ in the
Northwestern Hawaiian Islands west of 180 deg.00' W. long. and north of
28 deg.00' N. lat.
(4) Guam means the EEZ seaward of the Territory of Guam.
(5) American Samoa means the EEZ seaward of the Territory of
American Samoa.
(b) The inner boundary of the fishery management area is a line
coterminous with the seaward boundaries of the State of Hawaii, the
Territory of American Samoa, and the Territory of Guam (the ``3 mile-
limit'').
(c) The outer boundary of the fishery management area is a line
drawn in such a manner that each point on it is
[[Page 34589]]
200 nautical miles from the baseline from which the territorial sea is
measured, or is coterminous with adjacent international maritime
boundaries. The outer boundary of the fishery management area north of
Guam will extend to those points which are equidistant between Guam and
the island of Rota in the Commonwealth of the Northern Mariana Islands.
Subpart F--Precious Corals Fisheries
Sec. 660.81 Permits.
(a) Any vessel of the United States fishing for, taking, or
retaining precious coral in any precious coral permit area must have a
permit issued under Sec. 660.13.
(b) Each permit will be valid for fishing only in the permit area
specified on the permit. Precious Coral Permit Areas are defined in
Sec. 660.12.
(c) No more than one permit will be valid for any one vessel at any
one time.
(d) No more than one permit will be valid for any one person at any
one time.
(e) The holder of a valid permit to fish one permit area may obtain
a permit to fish another permit area only upon surrendering to the
Regional Director any current permit for the precious corals fishery
issued under Sec. 660.13.
(f) General requirements governing application information,
issuance, fees, expiration, replacement, transfer, alteration, display,
sanctions, and appeals for permits for the precious corals fishery are
contained in Sec. 660.13.
Sec. 660.82 Prohibitions.
In addition to the general prohibitions specified in Sec. 600.725
of this chapter and in Sec. 660.15, it is unlawful for any person to:
(a) Use any vessel to fish for, take, retain, possess or land
precious coral in any precious coral permit area, unless a permit has
been issued for that vessel and area as specified in Sec. 660.13 and
that permit is on board the vessel.
(b) Fish for, take, or retain any species of precious coral in any
precious coral permit area:
(1) By means of gear or methods prohibited by Sec. 660.88.
(2) In refugia specified in Sec. 660.12.
(3) In a bed for which the quota specified in Sec. 660.84 has been
attained.
(4) In violation of any permit issued under Sec. 660.13 or
Sec. 660.17.
(c) Take and retain, possess, or land any pink coral from the
Makapuu Bed (Permit Area E-B-1), Keahole Point Bed (Permit Area C-B-1),
or Kaena Point Bed (Permit Area C-B-2) that is less than the minimum
height specified in Sec. 660.86, unless:
(1) A valid EFP was issued under Sec. 660.17 for the vessel and the
vessel was operating under the terms of the permit; or
(2) The coral originated outside coral beds listed in this
paragraph, and this can be demonstrated through receipts of purchase,
invoices, or other documentation.
Sec. 660.83 Seasons.
The fishing year for precious coral begins on July 1 and ends on
June 30 the following year, except at the Makapuu Bed, which has a 2-
year fishing period that begins July 1 and ends June 30, 2 years later.
Sec. 660.84 Quotas.
(a) General. The quotas limiting the amount of precious coral that
may be taken in any precious coral permit area during the fishing year
are listed in Table 1 of this part. Only live coral is counted toward
the quota. The accounting period for all quotas begins July 1, 1983.
(b) Conditional bed closure. A conditional bed will be closed to
all nonselective coral harvesting after the quota for one species of
coral has been taken.
(c) Reserves and reserve release. The quotas for exploratory areas
will be held in reserve for harvest by vessels of the United States in
the following manner:
(1) At the start of the fishing year, the reserve for each of the
three exploratory areas will equal the quota minus the estimated
domestic annual harvest for that year.
(2) As soon as practicable after December 31 each year, the
Regional Director will determine the amount harvested by vessels of the
United States between July 1 and December 31 of that year.
(3) NMFS will release to TALFF an amount of precious coral for each
exploratory area equal to the quota minus two times the amount
harvested by vessels of the United States in that July 1 through
December 31 period.
(4) NMFS will publish in the Federal Register a notification of the
Regional Director's determination and a summary of the information on
which it is based as soon as practicable after the determination is
made.
Sec. 660.85 Closures.
(a) If the Regional Director determines that the harvest quota for
any coral bed will be reached prior to the end of the fishing year, or
the end of the 2-year fishing period at Makapuu Bed, NMFS will issue a
field order closing the bed involved by publication of an action in the
Federal Register, and through appropriate news media. Any such field
order must indicate the reason for the closure, the bed being closed,
and the effective date of the closure.
(b) A closure is also effective for a permit holder upon the permit
holder's actual harvest of the applicable quota.
Sec. 660.86 Size restrictions.
Pink coral harvested from the Makapuu bed (E-B-1), the Keahole
Point Bed (C-B-1), and the Kaena Point Bed (C-B-2), must have attained
a minimum height of 10 inches (25.4 cm). There are no size limits for
precious coral from other beds or other species.
Sec. 660.87 Area restrictions.
Fishing for coral on the WestPac Bed is not allowed. The specific
area closed to fishing is all waters within a 2-nm radius of the
midpoint of 23 deg.18.0' N. lat., 162 deg.35.0' W. long.
Sec. 660.88 Gear restrictions.
(a) Selective gear. Only selective gear may be used to harvest
coral from the EEZ of the main Hawaiian Islands.
(b) Selective or non-selective gear. Either selective or non-
selective gear may be used to harvest coral from Brooks Bank, 180
Fathom Bank, and exploratory areas other than the EEZ off the main
Hawaiian Islands.
Sub
FR Doc. 96-16234 Fisheries off West Coast States and in the Western Pacific
part G--West Coast Groundfish Fisheries
660.301 Purpose and scope.
This subpart implements the Pacific Coast Groundfish Fishery
Management Plan (PCGFMP) developed by the Pacific Fishery Management
Council. These regulations govern groundfish fishing vessels of the
United States in the EEZ off the coasts of Washington, Oregon, and
California. All weights are in round weight or round-weight
equivalents, unless specified otherwise.
Sec. 660.302 Definitions.
At-sea processing means processing that takes place on a vessel or
other platform that floats and is capable of being moved from one
location to another, whether shoreside or on the water.
Closure, when referring to closure of a fishery, means that taking
and retaining, possessing, or landing the particular species or species
group is prohibited.
Commercial fishing means:
(1) Fishing by a person who possesses a commercial fishing license
or is required by law to possess such license issued by one of the
states or the Federal Government as a prerequisite to taking, landing
and/or sale; or
[[Page 34590]]
(2) Fishing that results in or can be reasonably expected to result
in sale, barter, trade or other disposition of fish for other than
personal consumption.
Commercial harvest guideline or commercial quota means the harvest
guideline or quota after subtracting any allocation for the Pacific
Coast treaty Indian tribes or for recreational fisheries. Limited entry
and open access allocations are based on the commercial harvest
guideline or quota.
Council means the Pacific Fishery Management Council, including its
Groundfish Management Team, Scientific and Statistical Committee (SSC),
Groundfish Advisory Subpanel (GAP), and any other committee established
by the Council.
Exempted gear means all types of fishing gear except longline, trap
(or pot), and groundfish trawl gear. Exempted gear includes trawl gear
used to take pink shrimp, spot and ridgeback prawns, California halibut
south of Pt. Arena, CA, and sea cucumber south of Pt. Arena, under the
authority of a State of California limited entry permit for the sea
cucumber fishery.
Fishery management area means the EEZ off the coasts of Washington,
Oregon, and California between 3 and 200 nm offshore, and bounded on
the north by the Provisional International Boundary between the United
States and Canada, and bounded on the south by the International
Boundary between the United States and Mexico.
Fisheries Management Division (FMD) means the Chief, Fisheries
Management Division, Northwest Regional Office, NMFS, or a designee.
Fishing gear includes the following types of gear and equipment
used in the groundfish fishery:
(1) Bobbin trawl. The same as a roller trawl, a type of bottom
trawl.
(2) Bottom trawl. A trawl in which the otter boards or the footrope
of the net are in contact with the seabed. It includes roller (or
bobbin) trawls, Danish and Scottish seine gear, and pair trawls fished
on the bottom. Any trawl not meeting the requirements for a pelagic
trawl in Sec. 660.322 is a bottom trawl.
(3) Chafing gear. Webbing or other material attached to the codend
of a trawl net to protect the codend from wear.
(4) Codend. (See Sec. 600.10).
(5) Commercial vertical hook-and-line. Commercial fishing with
hook-and-line gear that involves a single line anchored at the bottom
and buoyed at the surface so as to fish vertically.
(6) Double-bar mesh. Two lengths of twine tied into a single knot.
(7) Double-walled codend. A codend constructed of two walls of
webbing.
(8) Fixed gear (anchored nontrawl gear). Longline, trap or pot, set
net, and stationary hook-and-line (including commercial vertical hook-
and-line) gears.
(9) Gillnet. (See Sec. 600.10).
(10) Hook-and-line. One or more hooks attached to one or more
lines. It may be stationary (commercial vertical hook-and-line) or
mobile (troll).
(11) Longline. A stationary, buoyed, and anchored groundline with
hooks attached, so as to fish along the seabed. It does not include
commercial vertical hook-and-line or troll gear.
(12) Mesh size. The opening between opposing knots. Minimum mesh
size means the smallest distance allowed between the inside of one knot
to the inside of the opposing knot, regardless of twine size.
(13) Nontrawl gear. All legal commercial groundfish gear other than
trawl gear.
(14) Pelagic (midwater or off-bottom) trawl. A trawl in which the
otter boards may be in contact with the seabed but the footrope of the
net remains above the seabed. It includes pair trawls if fished in
midwater. A pelagic trawl has no rollers or bobbins on the net.
(15) Pot. A trap.
(16) Roller trawl (bobbin trawl). A trawl with footropes equipped
with rollers or bobbins made of wood, steel, rubber, plastic, or other
hard material that keep the footrope above the seabed, thereby
protecting the net. A roller trawl is a type of bottom trawl.
(17) Set net. A stationary, buoyed, and anchored gillnet or trammel
net.
(18) Single-walled codend. A codend constructed of a single wall of
webbing knitted with single or double-bar mesh.
(19) Spear. A sharp, pointed, or barbed instrument on a shaft.
(20) Trammel net. A gillnet made with two or more walls joined to a
common float line.
(21) Trap (or pot). A portable, enclosed device with one or more
gates or entrances and one or more lines attached to surface floats.
(22) Trawl riblines. Heavy rope or line that runs down the sides,
top, or underside of a trawl net from the mouth of the net to the
terminal end of the codend to strengthen the net during fishing.
Fishing trip is a period of time between landings when fishing is
conducted.
Fishing year is the year beginning at 0801 GMT (0001 local time) on
January 1 and ending at 0800 GMT on January 1 (2400 local time on
December 31).
Groundfish means species managed by the PCGFMP, specifically:
Sharks:
leopard shark, Triakis semifasciata
soupfin shark, Galeorhinus zyopterus
spiny dogfish, Squalus acanthias
Skates:
big skate, Raja binoculata
California skate, R. inornata
longnose skate, R. rhina
Ratfish:
ratfish, Hydrolagus colliei
Morids:
finescale codling, Antimora microlepis
Grenadiers:
Pacific rattail, Coryphaenoides acrolepis
Roundfish:
cabezon, Scorpaenichthys marmoratus
jack mackerel (north of 39 deg. N. lat.), Trachurus symmetricus
kelp greenling, Hexagrammos decagrammus
lingcod, Ophiodon elongatus
Pacific cod, Gadus macrocephalus
Pacific whiting, Merluccius productus
sablefish, Anoplopoma fimbria
Rockfish:
aurora rockfish, Sebastes aurora
bank rockfish, S. rufus
black rockfish, S. melanops
black and yellow rockfish, S. chrysomelas
blackgill rockfish, S. melanostomus
blue rockfish, S. mystinus
bocaccio, S. paucispinis
bronzespotted rockfish, S. gilli
brown rockfish, S. auriculatus
calico rockfish, S. dalli
California scorpionfish, Scorpaena guttata
canary rockfish, Sebastes pinniger
chilipepper, S. goodei
China rockfish, S. nebulosus
copper rockfish, S. caurinus
cowcod, S. levis
darkblotched rockfish, S. crameri
dusty rockfish, S. ciliatus
flag rockfish, S. rubrivinctus
gopher rockfish, S. carnatus
grass rockfish, S. rastrelliger
greenblotched rockfish, S. rosenblatti
greenspotted rockfish, S. chlorostictus
greenstriped rockfish, S. elongatus
harlequin rockfish, S. variegatus
honeycomb rockfish, S. umbrosus
kelp rockfish, S. atrovirens
longspine thornyhead, Sebastolobus altivelis
Mexican rockfish, Sebastes macdonaldi
olive rockfish, S. serranoides
Pacific ocean perch, S. alutus
pink rockfish, S. eos
quillback rockfish, S. maliger
redbanded rockfish, S. babcocki
redstripe rockfish, S. proriger
rosethorn rockfish, S. helvomaculatus
rosy rockfish, S. rosaceus
rougheye rockfish, S. aleutianus
sharpchin rockfish, S. zacentrus
shortbelly rockfish, S. jordani
shortraker rockfish, S. borealis
shortspine thornyhead, Sebastolobus alascanus
silvergray rockfish, Sebastes brevispinis
speckled rockfish, S. ovalis
splitnose rockfish, S. diploproa
squarespot rockfish, S. hopkinsi
starry rockfish, S. constellatus
[[Page 34591]]
stripetail rockfish, S. saxicola
tiger rockfish, S. nigrocinctus
treefish, S. serriceps
vermilion rockfish, S. miniatus
widow rockfish, S. entomelas
yelloweye rockfish, S. ruberrimus
yellowmouth rockfish, S. reedi
yellowtail rockfish, S. flavidus
All genera and species of the family Scorpaenidae that occur off
Washington, Oregon, and California are included, even if not listed
above. The Scorpaenidae genera are Sebastes, Scorpaena,
Scorpaenodes, and Sebastolobus.
Flatfish:
arrowtooth flounder (arrowtooth turbot), Atheresthes stomias
butter sole, Isopsetta isolepis
curlfin sole, Pleuronichthys decurrens
Dover sole, Microstomus pacificus
English sole, Parophrys vetulus
flathead sole, Hippoglossoides elassodon
Pacific sanddab, Citharichthys sordidus
petrale sole, Eopsetta jordani
rex sole, Glyptocephalus zachirus
rock sole, Lepidopsetta bilineata
sand sole, Psettichthys melanostictus
starry flounder, Platichthys stellatus
Groundfish trawl means trawl gear that is used under the authority
of a valid limited entry permit issued under this subpart endorsed for
trawl gear. It does not include any type of trawl gear listed as
``exempted gear.''
Harvest guideline means a specified numerical harvest objective
that is not a quota. Attainment of a harvest guideline does not require
closure of a fishery.
Incidental catch or incidental species means groundfish species
caught while fishing for the primary purpose of catching a different
species.
Land or landing means to begin transfer of fish from a fishing
vessel. Once transfer begins, all fish aboard the vessel are counted as
part of the landing.
Length overall (LOA) (with respect to a vessel) means the length
overall set forth in the Certificate of Documentation (CG-1270) issued
by the USCG for a documented vessel, or in a registration certificate
issued by a state or the USCG for an undocumented vessel; for vessels
that do not have the LOA stated in an official document, the LOA is the
LOA as determined by the USCG or by a marine surveyor in accordance
with the USCG method for measuring LOA.
Limited entry fishery means the fishery composed of vessels using
trawl gear, longline, and trap (or pot) gear fished pursuant to the
harvest guidelines, quotas, and other management measures governing the
limited entry fishery.
Limited entry gear means longline, trap (or pot), or groundfish
trawl gear used under the authority of a valid limited entry permit
affixed with an endorsement for that gear.
Limited entry permit means the permit required to participate in
the limited entry fishery, and includes the gear endorsements affixed
to the permit unless specified otherwise.
Open access fishery means the fishery composed of vessels using
exempted gear, and longline and trap (or pot) gear fished pursuant to
the harvest guidelines, quotas, and other management measures governing
the open access fishery.
Open access gear means all types of fishing gear except:
(1) Longline or trap (or pot) gear fished by a vessel that has a
limited entry permit affixed with a gear endorsement for that gear.
(2) Trawl gear.
Owner of a vessel or vessel owner, as used in this subpart, means a
person identified as the current owner in the Certificate of
Documentation (CG-1270) issued by the USCG for a documented vessel, or
in a registration certificate issued by a state or the USCG for an
undocumented vessel.
Pacific Coast Groundfish Fishery Management Plan (PCGFMP) means the
Fishery Management Plan for the Washington, Oregon, and California
Groundfish Fishery developed by the Pacific Fishery Management Council
and approved by the Secretary on January 4, 1982, and as it may be
subsequently amended.
Permit holder means a permit owner or a permit lessee.
Permit lessee means a person who has the right to possess and use a
limited entry permit for a designated period of time, with reversion to
the permit owner.
Permit owner means a person who owns a limited entry permit.
Person, as it applies to limited entry and open access fisheries
conducted under this subpart, means any individual, corporation,
partnership, association or other entity (whether or not organized or
existing under the laws of any state), and any Federal, state, or local
government, or any entity of any such government that is eligible to
own a documented vessel under the terms of 46 U.S.C. 12102(a).
Processing or to process means the preparation or packaging of
groundfish to render it suitable for human consumption, industrial uses
or long-term storage, including, but not limited to, cooking, canning,
smoking, salting, drying, filleting, freezing, or rendering into meal
or oil, but does not mean heading and gutting unless additional
preparation is done.
Prohibited species means those species and species groups whose
retention is prohibited unless authorized by other applicable law (for
example, to allow for examination by an authorized observer or to
return tagged fish as specified by the tagging agency).
Quota means a specified numerical harvest objective, the attainment
(or expected attainment) of which causes closure of the fishery for
that species or species group.
Recreational fishing means fishing with authorized recreational
fishing gear for personal use only, and not for sale or barter.
Regional Director means the Director, Northwest Region, NMFS. For
fisheries occurring primarily or exclusively in the fishery management
area seaward of California, ``Regional Director'' means the Director,
Northwest Region, NMFS, acting upon the recommendation of the Director,
Southwest Region, NMFS.
Reserve means a portion of the harvest guideline or quota set aside
at the beginning of the year to allow for uncertainties in preseason
estimates of DAP and JVP.
Round weight (See Sec. 600.10).
Shoreside processing means processing that takes place in a
facility that is fixed permanently to land.
Specification is a numerical or descriptive designation of a
management objective, including but not limited to: ABC; harvest
guideline; quota; limited entry or open access allocation; a set aside
or allocation for a recreational or treaty Indian fishery; an
apportionment of the above to an area, gear, season, fishery, or other
subdivision; DAP, DAH, JVP, TALFF, or incidental bycatch allowances in
foreign or joint venture fisheries.
Target fishing means fishing for the primary purpose of catching a
particular species or species group (the target species).
Totally lost means the vessel being replaced no longer exists in
specie, or is absolutely and irretrievably sunk or otherwise beyond the
possible control of the owner, or the costs of repair (including
recovery) would exceed the repaired value of the vessel.
Trip limit means the total allowable amount of a groundfish species
or species complex by weight, or by percentage of weight of fish on
board the vessel, that may be taken and retained, possessed, or landed
from a single fishing trip.
Sec. 660.303 Reporting and recordkeeping.
(a) This subpart recognizes that catch and effort data necessary
for implementing the PCGFMP are collected by the States of Washington,
Oregon, and California under existing state data collection
requirements. Telephone surveys of the domestic
[[Page 34592]]
industry will be conducted biannually by NMFS to determine amounts of
fish that will be made available to foreign fishing and JVP. No
additional Federal reports are required of fishers or processors, so
long as the data collection and reporting systems operated by state
agencies continue to provide NMFS with statistical information adequate
for management.
(b) Any person who is required to do so by the applicable state law
must make and/or file, retain, or make available any and all reports of
groundfish landings containing all data, and in the exact manner,
required by the applicable state law.
Sec. 660.304 Management areas.
(a) Vancouver. (1) The northeastern boundary is that part of a line
connecting the light on Tatoosh Island, WA, with the light on Bonilla
Point on Vancouver Island, British Columbia (at 48 deg.35'75'' N. lat.,
124 deg.43#00## W. long.) south of the International Boundary between
the U.S. and Canada (at 48 deg.29#37.19## N. lat., 124 deg.43#33.19##
W. long.), and north of the point where that line intersects with the
boundary of the U.S. territorial sea.
(2) The northern and northwestern boundary is a line connecting the
following coordinates in the order listed, which is the provisional
international boundary of the EEZ as shown on NOAA/NOS Charts #18480
and #18007:
------------------------------------------------------------------------
Point N. lat. W. long.
------------------------------------------------------------------------
1................................... 48 deg.29'37.19 124 deg.43'33.19'
'' '
2................................... 48 deg.30'11'' 124 deg.47'13''
3................................... 48 deg.30'22'' 124 deg.50'21''
4................................... 48 deg.30'14'' 124 deg.54'52''
5................................... 48 deg.29'57'' 124 deg.59'14''
6................................... 48 deg.29'44'' 125 deg.00'06''
7................................... 48 deg.28'09'' 125 deg.05'47''
8................................... 48 deg.27'10'' 125 deg.08'25''
9................................... 48 deg.26'47'' 125 deg.09'12''
10.................................. 48 deg.20'16'' 125 deg.22'48''
11.................................. 48 deg.18'22'' 125 deg.29'58''
12.................................. 48 deg.11'05'' 125 deg.53'48''
13.................................. 47 deg.49'15'' 126 deg.40'57''
14.................................. 47 deg.36'47'' 127 deg.11'58''
15.................................. 47 deg.22'00'' 127 deg.41'23''
16.................................. 46 deg.42'05'' 128 deg.51'56''
17.................................. 46 deg.31'47'' 129 deg.07'39''
------------------------------------------------------------------------
(3) The southern limit is 47 deg.30' N. lat.
(b) Columbia. (1) The northern limit is 47 deg.30' N. lat.
(2) The southern limit is 43 deg.00' N. lat.
(c) Eureka. (1) The northern limit is 43 deg.00' N. lat.
(2) The southern limit is 40 deg.30' N. lat.
(d) Monterey. (1) The northern limit is 40 deg.30' N. lat.
(2) The southern limit is 36 deg.00' N. lat.
(e) Conception. (1) The northern limit is 36 deg.00' N. lat.
(2) The southern limit is the U.S.-Mexico International Boundary,
which is a line connecting the following coordinates in the order
listed:
------------------------------------------------------------------------
Point N. lat. W. long.
------------------------------------------------------------------------
1................................... 32 deg.35'22'' 117 deg.27'49''
2................................... 32 deg.37'37'' 117 deg.49'31''
3................................... 31 deg.07'58'' 118 deg.36'18''
4................................... 30 deg.32'31'' 121 deg.51'58''
------------------------------------------------------------------------
(f) International boundaries. (1) Any person fishing subject to
this subpart is bound by the international boundaries described in this
section, notwithstanding any dispute or negotiation between the United
States and any neighboring country regarding their respective
jurisdictions, until such time as new boundaries are established or
recognized by the United States.
(2) The inner boundary of the fishery management area is a line
coterminous with the seaward boundaries of the States of Washington,
Oregon, and California (the ``3-mile limit'').
(3) The outer boundary of the fishery management area is a line
drawn in such a manner that each point on it is 200 nm from the
baseline from which the territorial sea is measured, or is a
provisional or permanent international boundary between the United
States and Canada or Mexico.
Sec. 660.305 Vessel identification.
(a) Display. The operator of a vessel that is over 25 ft (7.6 m) in
length and is engaged in commercial fishing for groundfish must display
the vessel's official number on the port and starboard sides of the
deckhouse or hull, and on a weather deck so as to be visible from
above. The number must contrast with the background and be in block
Arabic numerals at least 18 inches (45.7 cm) high for vessels over 65
ft (19.8 m) long and at least 10 inches (25.4 cm) high for vessels
between 25 and 65 ft (7.6 and 19.8 m) in length. The length of a vessel
for purposes of this section is the length set forth in USCG records or
in state records, if no USCG record exists.
(b) Maintenance of numbers. The operator of a vessel engaged in
commercial fishing for groundfish must keep the identifying markings
required by paragraph (a) of this section clearly legible and in good
repair, and must ensure that no part of the vessel, its rigging, or its
fishing gear obstructs the view of the official number from an
enforcement vessel or aircraft.
(c) Commercial passenger vessels. This section does not apply to
vessels carrying fishing parties on a per-capita basis or by charter.
Sec. 660.306 Prohibitions.
In addition to the general prohibitions specified in Sec. 600.725
of this chapter, it is unlawful for any person to:
(a) Sell, offer to sell, or purchase any groundfish taken in the
course of recreational groundfish fishing.
(b) Retain any prohibited species (defined in Sec. 660.302) caught
by means of fishing gear authorized under this subpart or unless
authorized by part 600 of this chapter. Prohibited species must be
returned to the sea as soon as practicable with a minimum of injury
when caught and brought on board.
(c) Falsify or fail to affix and maintain vessel and gear markings
as required by Sec. 660.305 or Sec. 660.322(c).
(d) Fish for groundfish in violation of any terms or conditions
attached to an EFP under part 600.745.
(e) Fish for groundfish using gear not authorized under
Sec. 660.322 or in violation of any terms or conditions attached to an
EFP under part 600.745.
(f) Take and retain, possess, or land more groundfish than
specified under Sec. 660.321, Sec. 660.323, or under an EFP issued
under part 600 of this chapter.
(g) Falsify or fail to make and/or file, retain or make available
any and all reports of groundfish landings, containing all data, and in
the exact manner, required by the applicable State law, as specified in
Sec. 660.303, provided that person is required to do so by the
applicable state law.
(h) Fail to sort, prior to the first weighing after offloading,
those groundfish species or species groups for which there is a trip
limit, if the weight of the total delivery exceeds 3,000 lb (1,361 kg)
(round weight or round-weight equivalent).
(i) Possess, deploy, haul, or carry onboard a fishing vessel
subject to these regulations a set net, trap or pot, longline, or
commercial vertical hook-and-line that is not in compliance with the
gear restrictions in Sec. 660.322, unless such gear is the gear of
another vessel that has been retrieved at sea and made inoperable or
stowed in a manner not capable of being fished. The disposal at sea of
such gear is prohibited by Annex V of the International Convention for
the Prevention of Pollution From Ships, 1973 (Annex V of MARPOL 73/78).
(j) Process Pacific whiting in the fishery management area during
times or in areas where at-sea processing is prohibited, unless the
fish were received from a member of a Pacific Coast treaty Indian tribe
fishing under Sec. 663.324.
(k) Take and retain or receive, except as cargo, Pacific whiting on
a vessel in the fishery management area that already possesses
processed Pacific
[[Page 34593]]
whiting on board, during times or in areas where at-sea processing is
prohibited, unless the fish were received from a member of a Pacific
Coast treaty Indian tribe fishing under Sec. 663.324; when taking and
retention is prohibited under Sec. 663.323(a)(4)(iv), fail to keep the
trawl doors on board the vessel and attached to the trawls on a vessel
used to fish for whiting.
(l) Have onboard a commercial hook-and-line fishing vessel (other
than a vessel operated by persons under Sec. 660.323(b)(1)(ii)), more
than the amount of the trip limit set for black rockfish by
Sec. 660.323 while that vessel is fishing between the U.S.-Canada
border and Cape Alava (48 deg.09'30'' N. lat.), or between Destruction
Island (47 deg.40'00'' N. lat.) and Leadbetter Point (46 deg.38'10'' N.
lat.).
(m) Fish with groundfish trawl gear, or carry groundfish trawl gear
on board a vessel that also has groundfish on board (unless the vessel
is in continuous transit from outside the fishery management area to a
port in Washington, Oregon, or California), without having a limited
entry permit valid for that vessel affixed with a gear endorsement for
trawl gear.
(n) Fail to carry onboard a vessel that vessel's limited entry
permit if required.
(o) Make a false statement on an application for issuance, renewal,
transfer, vessel registration, or replacement of a limited entry
permit.
(p) Take and retain, possess, or land groundfish in excess of the
landing limit for the open access fishery without having a valid
limited entry permit for the vessel affixed with a gear endorsement for
the gear used to catch the fish.
(q) Carry on board a vessel, or deploy, limited entry gear when the
limited entry fishery for that gear is closed.
(r) Refuse to submit fishing gear of fish subject to such person's
control to inspection by an authorized officer, or to interfere with or
prevent, by any means, such an inspection.
Sec. 660.321 Specifications and management measures.
(a) General. NMFS will establish and adjust specifications and
management measures annually and during the fishing year. Management of
the Pacific Coast groundfish fishery will be conducted consistent with
the standards and procedures in the PCGFMP and other applicable law.
The PCGFMP is available from the Regional Director or the Council.
(b) Annual actions. The Pacific Coast groundfish fishery is managed
on a calendar year basis. Even though specifications and management
measures are announced annually, they may apply for more than 1 year.
In general, management measures are designed to achieve, but not
exceed, the specifications, particularly harvest guidelines, limited
entry and open access allocations, or other approved fishery
allocations. Annual specifications and management measures are
developed at two Council meetings and published in the Federal Register
at the beginning of the year, according to the standards and procedures
in the PCGFMP and other applicable law.
(c) Routine management measures. Management measures designated
``routine'' at Sec. 660.323(b) may be adjusted during the year after
recommendation from the Council, approval by NMFS, and publication in
the Federal Register.
(d) Changes to the regulations. Regulations under this subpart may
be promulgated, removed, or revised. Any such action will be made
according to the framework standards and procedures in the PCGFMP and
other applicable law, and will be published in the Federal Register.
Sec. 660.322 Gear restrictions.
(a) General. The following types of fishing gear are authorized,
with the restrictions set forth in this section: Trawl (bottom and
pelagic), hook-and-line, longline, pot or trap, set net (anchored
gillnet or trammel net), and spear.
(b) Trawl gear--(1) Use. Trawl nets may be used on and off the
seabed. Trawl nets may be fished with or without otter boards, and may
use warps or cables to herd fish.
(2) Mesh size. Trawl nets may be used if they meet the minimum mesh
sizes set forth in this paragraph (b)(2). The minimum sizes apply
throughout the net. Minimum trawl mesh size requirements are met if a
20-gauge stainless steel wedge, 3.0 or 4.5 inches (7.6 or 11.4 cm)
(depending on the gear being measured), less one thickness of the metal
wedge, can be passed with only thumb pressure through at least 16 of 20
sets of two meshes each of wet mesh.
Minimum Trawl-Mesh Size In Inches \1\
----------------------------------------------------------------------------------------------------------------
Subarea
Trawl conception type ----------------------------------------------------
Vancouver Columbia Eureka Monterey
----------------------------------------------------------------------------------------------------------------
Bottom......................................... 4.5 4.5 4.5 4.5 4.5
Pelagic........................................ 3.0 3.0 3.0 3.0 3.0
----------------------------------------------------------------------------------------------------------------
\1\ Metric conversion: 3.0 inches = 7.6 cm; 4.5 inches = 11.4 cm.
(3) Chafing gear. Chafing gear may encircle no more than 50 percent
of the net's circumference, except as provided in paragraph (b)(5) of
this section. No section of chafing gear may be longer than 50 meshes
of the net to which it is attached. Except at the corners, the terminal
end of each section of chafing gear must not be connected to the net.
(The terminal end is the end farthest from the mouth of the net.)
Chafing gear must be attached outside any riblines and restraining
straps. There is no limit on the number of sections of chafing gear on
a net.
(4) Codends. Only single-walled codends may be used in any trawl.
Double-walled codends are prohibited.
(5) Pelagic trawls. Pelagic trawl nets must have unprotected
footropes at the trawl mouth, and must not have rollers, bobbins,
tires, wheels, rubber discs, or any similar device anywhere in the net.
Sweeplines, including the bottom leg of the bridle, must be bare. For
at least 20 ft (6.15 m) immediately behind the footrope or headrope,
bare ropes or mesh of 16-inch (40.6-cm) minimum mesh size must
completely encircle the net. A band of mesh (a ``skirt'') may encircle
the net under transfer cables, lifting or splitting straps (chokers),
but must be: Over riblines and restraining straps; the same mesh size
and coincide knot-to-knot with the net to which it is attached; and no
wider than 16 meshes.
(c) Fixed gear. (1) Fixed gear (longline, trap or pot, set net and
stationary hook-and-line gear, including commercial vertical hook-and-
line gear) must be:
(i) Marked at the surface, at each terminal end, with a pole, flag,
light, radar reflector, and a buoy, except as
[[Page 34594]]
provided in paragraph (c)(2) of this section.
(ii) Attended at least once every 7 days.
(2) Commercial vertical hook-and-line gear that is closely tended
may be marked only with a single buoy of sufficient size to float the
gear. ``Closely tended'' means that a vessel is within visual sighting
distance or within 0.25 nm (463 m) as determined by electronic
navigational equipment, of its commercial vertical hook-and-line gear.
(3) A buoy used to mark fixed gear under paragraph (c)(1)(i) or
(c)(2) of this section must be marked with a number clearly identifying
the owner or operator of the vessel. The number may be either:
(i) If required by applicable state law, the vessel's number, the
commercial fishing license number, or buoy brand number; or
(ii) The vessel documentation number issued by the USCG, or, for an
undocumented vessel, the vessel registration number issued by the
state.
(d) Set nets. Fishing for groundfish with set nets is prohibited in
the fishery management area north of 38 deg.00' N. lat.
(e) Traps or pots. Traps must have biodegradable escape panels
constructed with # 21 or smaller untreated cotton twine in such a
manner that an opening at least 8 inches (20.3 cm) in diameter results
when the twine deteriorates.
(f) Recreational fishing. The only types of fishing gear authorized
for recreational fishing are hook-and-line and spear.
(g) Spears. Spears may be propelled by hand or by mechanical means.
Sec. 660.323 Catch restrictions.
(a) Groundfish species harvested in the territorial sea (0-3 nm)
will be counted toward the catch limitations in this section.
(1) Black rockfish. The trip limit for black rockfish (Sebastes
melanops) for commercial fishing vessels using hook-and-line gear
between the U.S.-Canada border and Cape Alava (48 deg.09'30'' N. lat.),
and between Destruction Island (47 deg.40' N. lat.) and Leadbetter
Point (46 deg.38'10'' N. lat.), is 100 lbs (45 kg) or 30 percent, by
weight of all fish on board, whichever is greater, per vessel per
fishing trip.
(2) Nontrawl sablefish. This paragraph (a)(2) applies to the
limited entry fishery, except for paragraphs (a)(2)(i) and (v), which
also apply to the open-access fishery.
(i) Pre-season closure--open-access and limited entry fisheries.
(A) Sablefish taken with fixed gear in the limited entry or open
access fishery in the EEZ may not be retained or landed from 12 noon
August 29 through 12 noon September 1.
(B) All fixed gear used to take and retain groundfish must be out
of EEZ waters from 12 noon August 29 through 12 noon September 1,
except that pot gear used to take and retain groundfish may be deployed
and baited in the EEZ after 12 noon on August 31.
(ii) Regular season--limited entry fishery. The regular season for
the limited entry nontrawl sablefish fishery begins at 1201 hours on
August 6. During the regular season, the limited entry nontrawl
sablefish fishery may be subject to trip limits to protect juvenile
sablefish. The regular season will end when 70 percent of the limited
entry nontrawl allocation has been or is projected to be taken. The end
of the regular season may be announced in the Federal Register either
before or during the regular season.
(iii) Mop-up season--limited entry fishery. A mop-up season to take
the remainder of the limited entry nontrawl allocation will begin about
3 weeks after the end of the regular season, or as soon as practicable
thereafter. During the mop-up fishery, a cumulative trip limit will be
imposed. The length of the mop-up season and amount of the cumulative
trip limit, including the time period to which it applies, will be
determined by the Regional Director in consultation with the Council or
its designees, and will be based primarily on the amount of fish
remaining in the allocation and the number of participants anticipated.
The Regional Director may determine that too little of the nontrawl
allocation remains to conduct an orderly or manageable fishery, in
which case there will not be a mop-up season.
(iv) Other announcements. The dates and times that the regular
season ends (and trip limits on sablefish of all sizes are resumed) and
the mop-up season begins and ends, and the size of the trip limit for
the mop-up fishery, will be announced in the Federal Register, and may
be modified. Unless otherwise announced, these seasons will begin and
end at 12 noon on the specified date. A vessel landing sablefish in
Puget Sound that was taken under a limited entry permit with nontrawl
gear during a regular season is not subject to trip limits on that trip
(except the regular season trip limits to protect juvenile sablefish),
provided the landing complies with Washington State regulations
governing sablefish landings in Puget Sound after the regular season.
(v) Trip limits. Trip and/or frequency limits may be imposed in the
limited entry fishery before and after the regular season, and after
the mop-up season, under paragraph (b) of this section. Trip and/or
size limits to protect juvenile sablefish in the limited entry or open-
access fisheries also may be imposed at any time under paragraph (b) of
this section. Trip limits may be imposed in the open-access fishery at
any time under paragraph (b) of this section.
(3) Pacific whiting--(i) Season. The regular season for Pacific
whiting begins on May 15 north of 42 deg.00' N. lat., on March 1
between 42 deg.00' N. lat. and 40 deg.30' N. lat., and on April 15
south of 40 deg.30' N. lat. Before and after the regular season, trip
landing or frequency limits may be imposed under paragraph (b) of this
section.
(ii) Closed areas. Pacific whiting may not be taken and retained in
the following portions of the fishery management area:
(A) Klamath River Salmon Conservation Zone. The ocean area
surrounding the Klamath River mouth bounded on the north by
41 deg.38'48'' N. lat. (approximately 6 nm north of the Klamath River
mouth), on the west by 124 deg.23' W. long. (approximately 12 nm from
shore), and on the south by 41 deg.26'48'' N. lat. (approximately 6 nm
south of the Klamath River mouth).
(B) Columbia River Salmon Conservation Zone. The ocean area
surrounding the Columbia River mouth bounded by a line extending for 6
nm due west from North Head along 46 deg.18' N. lat. to 124 deg.13'18''
W. long., then southerly along a line of 167 True to 46 deg.11'06'' N.
lat. and 124 deg.11' W. long. (Columbia River Buoy), then northeast
along Red Buoy Line to the tip of the south jetty.
(iii) Eureka area trip limits. Trip landing or frequency limits may
be established, modified, or removed under Sec. 660.321 or
Sec. 660.323, specifying the amount of Pacific whiting that may be
taken and retained, possessed, or landed by a vessel that, at any time
during a fishing trip, fished in the fishery management area shoreward
of the 100-fathom (183-m) contour (as shown on NOAA Charts 18580,
18600, and 18620) in the Eureka area (from 43 deg.00' to 40 deg.30' N.
lat.).
(iv) At-sea processing. Pacific whiting may not be processed at sea
south of 42 deg.00' N. lat. (Oregon-California border).
(v) Time of day. Pacific whiting may not be taken and retained by
any vessel in the fishery management area south of 42 deg.00' N. lat.
between 0001 hours to one-half hour after official sunrise (local
time). During this time south of 42 deg.00' N. lat., trawl doors must
be on board any vessel used to fish for whiting and the trawl must be
attached to the trawl doors. Official sunrise is determined, to the
nearest 5 deg. lat., in The Nautical Almanac issued annually by the
[[Page 34595]]
Nautical Almanac Office, U.S. Naval Observatory, and available from the
U.S. Government Printing Office.
(4) Pacific whiting--allocation. The following provisions apply
from 1994 through 1996--
(i) Shoreside reserve. When 60 percent of the commercial harvest
guideline for Pacific whiting has been or is projected to be taken,
further at-sea processing of Pacific whiting will be prohibited
pursuant to paragraph (a)(4)(iv) of this section. The remaining 40
percent of the harvest guideline is reserved for harvest by vessels
delivering to shoreside processors.
(ii) Release of reserve. That portion of the commercial harvest
guideline that the Regional Director determines will not be used by
shoreside processors by the end of that fishing year shall be made
available for harvest by all fishing vessels, regardless of where they
deliver, on August 15 or as soon as practicable thereafter. NMFS may
again release whiting at a later date if it becomes obvious, after
August 15, that shore-based needs have been substantially over-
estimated, but only after consultation with the Council and only to
insure full utilization of the resource.
(iii) Estimates. Estimates of the amount of Pacific whiting
harvested will be based on actual amounts harvested, projections of
amounts that will be harvested, or a combination of the two. Estimates
of the amount of Pacific whiting that will be used by shoreside
processors by the end of the fishing year will be based on the best
information available to the Regional Director from state catch and
landings data, the survey of domestic processing capacity and intent,
testimony received at Council meetings, and/or other relevant
information.
(iv) Announcements. The Assistant Administrator will announce in
the Federal Register when 60 percent of the commercial harvest
guideline for whiting has been, or is about to be, harvested,
specifying a time after which further at-sea processing of Pacific
whiting in the fishery management area is prohibited. The Assistant
Administrator will publish a document in the Federal Register to
announce any release of the reserve on August 15, or as soon as
practicable thereafter. In order to prevent exceeding the limits or
underutilizing the resource, adjustments may be made effective
immediately by actual notice to fishermen and processors, by phone,
fax, Northwest Region computerized bulletin board (contact 206-526-
6128), letter, press release, and/or U.S. Coast Guard Notice to
Mariners (monitor channel 16 VHF), followed by publication in the
Federal Register, in which instance public comment will be sought for a
reasonable period of time thereafter. If insufficient time exists to
consult with the Council, the Regional Director will inform the Council
in writing of actions taken.
(b) Routine management measures. In addition to the catch
restrictions in this section, other catch restrictions that are likely
to be adjusted on an annual or more frequent basis may be imposed and
announced by a single notification in the Federal Register if they
first have been designated as ``routine'' according to the applicable
procedures in the PCGFMP. The following catch restrictions are
designated as routine for the reasons given in paragraph (b)(1)(ii) of
this section:
(1) Commercial-limited entry and open access fisheries--
(i) Species and gear. (A) Widow rockfish--all gear--trip landing
and frequency limits.
(B) Sebastes complex--all gear--trip landing and frequency limits.
(C) Yellowtail rockfish--all gear--trip landing and frequency
limits.
(D) Pacific ocean perch--all gear--trip landing and frequency
limits.
(E) Sablefish--all gear--trip landing, frequency, and size limits.
(F) Dover sole--all gear--trip landing and frequency limits.
(G) Thornyheads (shortspine thornyheads or longspine thornyheads,
separately or combined)--all gear--trip landing and frequency limits.
(H) Bocaccio--all gear--trip landing and frequency limits.
(I) Pacific whiting--all gear--trip landing and frequency limits.
(J) Lingcod--all gear--trip landing and frequency limits; size
limits.
(K) Canary rockfish--all gear--trip landing and frequency limits.
(L) All groundfish, separately or in any combination--any legal
open access gear (including non-groundfish trawl gear used to harvest
pink shrimp, spot or ridgeback prawns, California halibut or sea
cucumbers in accordance with the regulations in this subpart)--trip
landing and frequency limits. (Size limits designated routine in this
section continue to apply.)
(ii) Reasons for ``routine'' management measures. All routine
management measures on commercial fisheries are intended to keep
landings within the harvest levels announced by NMFS. In addition, the
following reasons apply:
(A) Trip landing and frequency limits--to extend the fishing
season; to minimize disruption of traditional fishing and marketing
patterns; to reduce discards; to discourage target fishing while
allowing small incidental catches to be landed; to allow small
fisheries to operate outside the normal season; and, for the open
access fishery only, to maintain landings at the historical proportions
during the 1984-88 window period.
(B) Size limits--to protect juvenile fish; to extend the fishing
season.
(2) Recreational--(i) Species and gear. (A) Lingcod--all gear--bag
and size limits.
(B) Rockfish--all gear--bag limits.
(ii) Reasons for ``routine'' management measures. All routine
management measures on recreational fisheries are intended to keep
landings within the harvest levels announced by NMFS. In addition, the
following reasons apply:
(A) Bag limits--to spread the available catch over a large number
of anglers; to avoid waste; for consistency with state regulations.
(B) Size limits--to protect juvenile fish; to enhance the quality
of the recreational fishing experience; for consistency with state
regulations.
(c) Prohibited species. Groundfish species or species groups under
the PCGFMP for which quotas have been achieved and the fishery closed
are prohibited species. In addition, the following are prohibited
species:
(1) Any species of salmonid.
(2) Pacific halibut.
(3) Dungeness crab caught seaward of Washington or Oregon.
Sec. 663.324 Pacific Coast treaty Indian fisheries.
(a) Pacific Coast treaty Indian tribes have treaty rights to
harvest groundfish in their usual and accustomed fishing areas in U.S.
waters.
(b) For the purposes of this part, Pacific Coast treaty Indian
tribes means the Hoh, Makah, and Quileute Indian Tribes and the
Quinault Indian Nation.
(c) The Pacific Coast treaty Indian tribes' usual and accustomed
fishing areas within the fishery management area (FMA) are set out
below in paragraphs (c)(1) through (c)(4) of this section. Boundaries
of a tribe's fishing area may be revised as ordered by a Federal court.
(1) Makah--That portion of the FMA north of 48 deg.02'15'' N. lat.
(Norwegian Memorial) and east of 125 deg.44'00'' W. long.
(2) Quileute--That portion of the FMA between 48 deg.07'36'' N.
lat. (Sand Point) and 47 deg.31'42'' N. lat. (Queets River) and east of
125 deg.44'00'' W. long.
(3) Hoh--That portion of the FMA between 47 deg.54'18'' N. lat.
(Quillayute River) and 47 deg.21'00'' N. lat. (Quinault River) and east
of 125 deg.44'00'' W. long.
[[Page 34596]]
(4) Quinault--That portion of the FMA between 47 deg.40'06'' N.
lat. (Destruction Island) and 46 deg.53'18'' N. lat. (Point Chehalis)
and east of 125 deg.44'00'' W. long.
(d) Procedures. The rights referred to in paragraph (a) of this
section will be implemented by the Secretary, after consideration of
the tribal request, the recommendation of the Council, and the comments
of the public. The rights will be implemented either through an
allocation of fish that will be managed by the tribes, or through
regulations in this section that will apply specifically to the tribal
fisheries. An allocation or a regulation specific to the tribes shall
be initiated by a written request from a Pacific Coast treaty Indian
tribe to the Regional Director, prior to the first of the Council's two
annual groundfish meetings. The Secretary generally will announce the
annual tribal allocation at the same time as the annual specifications.
The Secretary recognizes the sovereign status and co-manager role of
Indian tribes over shared Federal and tribal fishery resources.
Accordingly, the Secretary will develop tribal allocations and
regulations under this paragraph in consultation with the affected
tribe(s) and, insofar as possible, with tribal consensus.
(e) Identification. A valid treaty Indian identification card
issued pursuant to 25 CFR part 249, subpart A, is prima facie evidence
that the holder is a member of the Pacific Coast treaty Indian tribe
named on the card.
(f) A limited entry permit under subpart C is not required for
participation in a tribal fishery described in paragraph (d) of this
section.
(g) Fishing under this section by a member of a Pacific Coast
treaty Indian tribe within their usual and accustomed fishing area is
not subject to the provisions of other sections of this part.
(h) Any member of a Pacific Coast treaty Indian tribe must comply
with this section, and with any applicable tribal law and regulation,
when participating in a tribal groundfish fishery described in
paragraph (d) of this section.
(i) Fishing by a member of a Pacific Coast treaty Indian tribe
outside the applicable Indian tribe's usual and accustomed fishing
area, or for a species of groundfish not covered by an allocation or
regulation under this section, is subject to the regulations in the
other sections of this part.
(j) Black rockfish. Harvest guidelines for commercial harvests of
black rockfish by members of the Pacific Coast Indian tribes using hook
and line gear will be established annually for the areas between the
U.S.-Canadian border and Cape Alava (48 deg.09'30'' N. lat.) and
between Destruction Island (47 deg.40'00'' N. lat.) and Leadbetter
Point (46 deg.38'10'' N. lat.), in accordance with the procedures for
implementing annual specifications. Pacific Coast treaty Indians
fishing for black rockfish in these areas under these harvest
guidelines are subject to the provisions in this section, and not to
the restrictions in other sections of this part.
(k) Groundfish without a tribal allocation. Makah tribal members
may use midwater trawl gear to take and retain groundfish for which
there is no tribal allocation and will be subject to the trip landing
and frequency and size limits applicable to the limited entry fishery.
Sec. 660.331 Limited entry and open access fisheries--general.
All commercial fishing for groundfish must be conducted in
accordance with the regulations governing limited entry and open access
fisheries, except such fishing by treaty Indian tribes as may be
separately provided for.
Sec. 660.332 Allocations.
(a) General. The commercial portion of the Pacific Coast groundfish
fishery, excluding the treaty Indian fishery, is divided into limited
entry and open access fisheries. Separate allocations for the limited
entry and open access fisheries will be established annually for
certain species and/or areas using the procedures described in this
subpart or the PCGFMP.
(1) Limited entry allocation. The allocation for the limited entry
fishery is the allowable catch (harvest guideline or quota excluding
set asides for recreational or tribal Indian fisheries) minus the
allocation to the open access fishery.
(2) Open access allocation. The allocation for the open access
fishery is derived by applying the open access allocation percentage to
the annual harvest guideline or quota after subtracting any set asides
for recreational or tribal Indian fisheries. For management areas where
quotas or harvest guidelines for a stock are not fully utilized, no
separate allocation will be established for the open access fishery
until it is projected that the allowable catch for a species will be
reached.
(b) Open access allocation percentage. For each species with a
harvest guideline or quota, the initial open access allocation
percentage is calculated by:
(1) Computing the total catch for that species during the window
period by any vessel that does not initially receive a limited entry
permit.
(2) Dividing that amount by the total catch during the window
period by all gear.
(3) The guidelines in this paragraph (b)(3) apply to recalculation
of the open access allocation percentage. Any recalculated allocation
percentage will be used in calculating the following year's open access
allocation. If a gear type is prohibited by a state or the Secretary
and a vessel thereby qualifies for a limited entry permit under this
subpart, or if a small limited entry fleet is incorporated into the
limited entry fishery under Sec. 660.338, the window-period catch of
these vessels will be deducted from the open access fishery's
historical catch levels and the open access allocation percentage
recalculated accordingly.
(c) Catch accounting between the limited entry and open access
fisheries. Any groundfish caught by a vessel with a limited entry
permit will be counted against the limited entry allocation while the
limited entry fishery for that vessel's limited entry gear is open.
When the fishery for a vessel's limited entry gear has closed,
groundfish caught by that vessel with open access gear will be counted
against the open access allocation. All groundfish caught by vessels
without limited entry permits will be counted against the open access
allocation.
(d) Additional guidelines. Additional guidelines governing
determination of the limited entry and open access allocations are in
the PCGFMP.
(e) Treaty Indian fisheries. Certain amounts of groundfish may be
set aside annually for tribal fisheries prior to dividing the balance
of the allowable catch between the limited entry and open access
fisheries. Tribal fisheries conducted under a set-aside are not subject
to the regulations governing limited entry and open access fisheries.
(f) Recreational fisheries. Recreational fishing for groundfish is
outside the scope of, and not affected by, the regulations governing
limited entry and open access fisheries. Certain amounts of groundfish
may be specifically allocated to the recreational fishery, and will be
set aside prior to dividing the commercial allocation between the
commercial limited entry and open access fisheries.
Sec. 660.333 Limited entry fishery-general.
(a) General. Participation in the limited entry fishery requires
that the owner of a vessel have a limited entry permit affixed with a
gear endorsement registered for use with that vessel for the gear being
fished. There are four types
[[Page 34597]]
of gear endorsements: ``A,'' ``Provisional A,'' ``B,'' and ``Designated
species B.'' More than one type of gear endorsement may be affixed to a
limited entry permit. While the limited entry fishery is open, vessels
fishing under limited entry permits may also fish with open access
gear. All fishing with open access gear is subject to regulations
applicable to the open access fishery. Vessels with limited entry
permits may also participate in the open access fishery when the
limited entry fishery is closed, but only with open access gear.
(b) Renewal of limited entry permits and gear endorsements.
(1) Limited entry permits expire at the end of each calendar year,
and must be renewed between October 1 and November 30 of each year in
order to remain in force the following year.
(2) Notification to renew limited entry permits will be issued by
FMD prior to September 1 each year to the most recent address of the
permit owner. The permit owner shall provide FMD with notice of any
address change within 15 days of the change.
(3) A limited entry permit that is allowed to expire will not be
renewed unless the FMD determines that failure to renew was proximately
caused by the illness, injury, or death of the permit owner.
(c) Transfer and registration of limited entry permits and gear
endorsements. (1) Upon transfer of a limited entry permit, the FMD will
reissue the permit in the name of the new permit holder with such gear
endorsements as are eligible for transfer with the permit. No transfer
is effective until the limited entry permit has been reissued and is in
the possession of the new permit holder.
(2) A limited entry permit may not be used with a vessel unless it
is registered for use with that vessel. Limited entry permits will
normally be registered for use with a particular vessel at the time the
permit is issued, renewed, transferred, or replaced. A permit not
registered for use with a particular vessel may not be used. If the
permit will be used with a vessel other than the one registered on the
permit, a registration for use with the new vessel must be obtained
from the FMD and placed aboard the vessel before it is used under the
permit.
(3) Application forms for the transfer and registration of limited
entry permits are available from the FMD (see part 600 for address of
the Regional Director). Contents of the application, and required
supporting documentation, are specified in the application form.
(4) The FMD will maintain records of all limited entry permits that
have been issued, renewed, transferred, registered, or replaced.
(d) Evidence and burden of proof. A vessel owner (or person holding
limited entry rights under the express terms of a written contract)
applying for issuance, renewal, transfer, or registration of a limited
entry permit has the burden to submit evidence to prove that
qualification requirements are met. The following evidentiary standards
apply:
(1) A certified copy of the current vessel document (USCG or state)
is the best evidence of vessel ownership and LOA.
(2) A certified copy of a state fish receiving ticket is the best
evidence of a landing, and of the type of gear used.
(3) A copy of a written contract reserving or conveying limited
entry rights is the best evidence of reserved or acquired rights.
(4) Such other relevant, credible evidence as the applicant may
submit, or the FMD or the Regional Director request or acquire, may
also be considered.
(e) Initial decisions. Initial decisions regarding issuance,
renewal, transfer, and registration of limited entry permits, and
endorsement upgrade, will be made by the FMD.
Adverse decisions shall be in writing and shall state the reasons
therefor. The FMD may decline to act on an application for issuance,
renewal, transfer, or registration of a limited entry permit if the
permit sanction provisions of the Magnuson Act at 16 U.S.C. 1858(a) and
implementing regulations at 15 CFR part 904, subpart D, apply.
(f) Transfers. Limited entry permits are transferable as follows:
(1) The permit owner may transfer (by sale, assignment, lease,
bequest, intestate succession, barter, trade, gift, or other form of
conveyance) the limited entry permit to a different person. The permit
holder may register the permit for use with a different vessel under
the same ownership, subject to the conditions set forth in this
subpart.
(2) Gear endorsements may not be transferred separately from the
limited entry permit.
(3) Except as provided in Secs. 660.335(b), 660.336(b), and
660.337(b)(2), only ``A'' gear endorsements remain valid with the
transfer of a limited entry permit.
(g) Eligibility. Only a person eligible to own a documented vessel
under the terms of 46 U.S.C. 12102(a) may be issued or may hold (by
ownership or otherwise) a limited entry permit.
(h) Vessel size endorsements--(1) General. The limited entry permit
will be endorsed with the LOA for the size of the vessel that initially
qualified for the permit, except:
(i) If the permit was initially issued under section 14.3.2.3.8 of
the FMP [re pre-1991 replacement vessels qualifying for ``provisional
A'' permits] for a replacement vessel that was more than 5 ft (1.52 m)
longer than the replaced vessel, the permit will be endorsed for the
size of the replacement vessel.
(ii) If the permit was initially issued to a replacement trawl
vessel that was more than 5 ft (1.52 m) shorter than the replaced
vessel, it will be endorsed for the size of the smaller replacement
vessel.
(iii) If the permit is registered for use with a trawl vessel that
is more than 5 ft (1.52 m) shorter than the size for which the permit
is endorsed, it will be endorsed for the size of the smaller vessel.
(iv) When permits are combined into one permit to be registered for
use with a vessel requiring a larger size endorsement, the new permit
will be endorsed for the size of the larger vessel.
(2) Limitations of size endorsements--(i) A limited entry permit
endorsed only for gear other than trawl gear may be registered for use
with a vessel up to 5 ft (1.52 m) longer than, the same length as, or
any length shorter than, the size endorsed on the existing permit
without requiring a combination of permits under paragraph (i) of this
section or a change in the size endorsement.
(ii) A limited entry permit endorsed for trawl gear may be
registered for use with a vessel between 5 ft (1.52 m) shorter and 5 ft
(1.52 m) longer than the size endorsed on the existing permit without
requiring a combination of permits under paragraph (i) of this section
or a change in the size endorsement under paragraph (h)(1)(iii) of this
section.
(iii) Combining limited entry permits. Two or more limited entry
permits with ``A'' gear endorsements for the same type of limited entry
gear may be combined and reissued as a single permit with a larger size
endorsement. The vessel harvest capacity rating for each of the permits
being combined is that indicated in Table 2 of this part for the LOA
(in feet) endorsed on the respective limited entry permit. Harvest
capacity ratings for fractions of a foot in vessel length will be
determined by multiplying the fraction of a foot in vessel length by
the difference in the two ratings assigned to the nearest integers of
vessel length. The length rating for the combined permit is that
indicated for the sum of the vessel harvest capacity ratings for each
permit being combined. If that sum falls
[[Page 34598]]
between the sums for two adjacent lengths on Table 2 of this part, the
length rating shall be the higher length.
(i) Limited entry permits indivisible. Limited entry permits may
not be divided for use by more than one vessel.
Sec. 660.334 Limited entry permits--''A'' endorsement.
(a) A limited entry permit with an ``A'' endorsement entitles the
holder to participate in the limited entry fishery for all groundfish
species with the type(s) of limited entry gear specified in the
endorsement.
(b) An ``A'' endorsement is transferable with the limited entry
permit to another person, or a different vessel under the same
ownership under Sec. 660.333.
(c) An ``A'' endorsement expires on failure to renew the limited
entry permit to which it is affixed (see Sec. 660.333).
Sec. 660.335 Limited entry permits--''Provisional A'' endorsement.
(a) A ``provisional A'' endorsement entitles the permit owner to
fish for all groundfish species with the types of limited entry gear
specified in the endorsement.
(b) A ``provisional A'' endorsement is not transferrable except as
specified in the PCGFMP.
(c) The holder of a ``provisional A'' endorsement must comply with
the requirements set out in the PCGFMP at 14.3.2.4 in order for the
permit to be upgraded to an ``A'' permit.
(d) A ``provisional A'' endorsement expires at the end of any of
the three consecutive 365-day periods (during the 3-year qualifying
period) in which a vessel's landings do not meet the applicable landing
requirement or upon failure to renew the limited entry permit. A
``provisional A'' endorsement that expires will not be reissued.
Sec. 660.336 Limited entry permits--''B'' endorsement.
(a) A limited entry permit with a ``B'' endorsement entitles the
permit owner to fish for all groundfish species with the type(s) of
limited entry gear specified in the endorsement.
(b) A ``B'' endorsement is not transferable to another person, and
may not be used with another vessel under the same ownership, unless
the vessel for which the endorsement was issued is totally lost, and
the permit is transferred to a replacement vessel owned by the same
owner.
(c) All ``B'' endorsements expire on December 31, 1996.
(d) A ``B'' endorsement expires on failure to renew the limited
entry permit.
Sec. 660.337 Limited entry permits--``designated species B''
endorsement.
(a) Issuance criteria--(1) General. Designated species means
Pacific whiting, jack mackerel north of 39 deg. N. lat., and shortbelly
rockfish. Bycatch allowances in fisheries for these species will be
established using the procedures specified for incidental allowances in
joint venture and foreign fisheries in the PCGFMP.
(2) Catch limit. On or about October 1 of each year, the FMD will
determine the commitment of persons with limited entry permits with
``A'' gear endorsements (the ``limited entry fleet'') to harvest each
designated species for delivery to domestic processors during the
coming year. ``Commitment'' means a permit holder's contract or
agreement with a specific domestic processor to deliver an estimated
amount of the designated species. The ``designated species B''
endorsement catch limit is the harvest guideline or quota for the
designated species minus the commitment of the limited entry fleet. If
the commitment is less than DAP and the harvest guideline or quota for
the species, ``designated species B'' endorsements valid for delivery
to domestic processors will be issued in numbers necessary to reach but
not exceed the harvest guideline or quota. ``Designated species B''
endorsements also may be issued for delivery to foreign processors of
designated species for which a JVP is established. If, at any time
during the fishing year, the FMD determines that any part of the
limited entry fleet commitment will not be taken, the Regional Director
will make a reapportionment to the ``designated species B'' endorsement
catch limit. The amount of the annual limited entry fleet commitment,
``designated species B'' endorsement catch limit, and the amounts and
timing of any reapportionments to the ``designated species B''
endorsement catch limit will be announced in the Federal Register.
(3) Procedure for issuance. Owners of vessels applying for
``designated species B'' endorsements must apply on or before November
1 of each year for a ``designated species B'' endorsement for the
following year. Applications are available from the FMD. Applicants are
required to specify their commitments for delivery of the designated
species for the coming year. On or about November 1 of each year, the
FMD will establish a prioritized list of applicants based on seniority
(number of years the vessel has fished for the designated species). A
vessel which replaces a lost vessel, consistent with the standards in
the PCGFMP, has the same seniority status as the replaced vessel.
Vessels with equal seniority will be ranked equally. ``Designated
species B'' endorsements will be issued first to all vessels with the
highest seniority, then to those with the next highest seniority, and
so on down the list. No further endorsements will be issued when it is
estimated that the commitments of applicants receiving endorsements is
sufficient to take the ``designated species B'' catch limit. If there
are insufficient commitments by senior applicants to take the
``designated species B'' catch limit, additional applications will be
ranked by lottery and a number of endorsements sufficient to take the
catch limit will be issued.
(b) Attributes. (1) A limited entry permit with a ``designated
species B'' endorsement entitles the permit recipient to fish only for
the species, and only with the gear, specified in the endorsement.
(2) A ``designated species B'' endorsement is not transferable to
another person, and may not be used with a different vessel under the
same ownership, unless the vessel has been totally lost and replaced
consistent with the provisions of the PCGFMP, in which case the
replacement vessel has the same seniority as the lost vessel for
purposes of a ``designated species B'' endorsement.
(3) A ``designated species B'' endorsement is valid only for the
fishing year for which it is issued.
Sec. 660.338 Limited entry permits--new permits.
(a) Small limited entry fisheries that are controlled by a local
government, are in existence as of July 11, 1991, and have negligible
impacts on the groundfish resource, may be certified as consistent with
the goals and objectives of the limited entry program and incorporated
into the limited entry fishery. Permits issued under this subsection
will be issued according to the standards and procedures set out in the
PCGFMP and will carry the rights explained therein. Window period is
that period from July 11, 1984, through August 1, 1988.
(b) If, after the window period, an exempt gear is prohibited by
Washington, Oregon, or California or NMFS, the owners of vessels using
such gear, who would not otherwise qualify for an ``A'' or
``provisional A'' endorsement, may qualify for a ``provisional A''
endorsement for only one of the three limited entry gears, if the
vessel used the prohibited gear to make sufficient landings of
groundfish during the window period to meet the MLR for the limited
entry gear. If a vessel would qualify for an endorsement
[[Page 34599]]
for more than one limited entry gear, the owner must choose the type of
gear for which the endorsement will be issued. If an ``A'' or
``provisional A'' endorsement was previously issued for the vessel, and
the endorsement was subsequently transferred or expired, no
``provisional A'' endorsement will be issued. Permits issued under this
section will be issued according to the procedures and standards set
out in the PCGFMP and will carry the rights explained therein.
(c) An owner of a vessel that qualifies under this section must
apply to the FMD for a permit within 180 days of incorporation of the
limited entry fleet of which the vessel is a part or within 180 days of
the effective date of the prohibition of that vessel's gear. Untimely
applications will be rejected unless the applicant demonstrates that
circumstances beyond the applicant's control prevented submission of
the application during the specified period. Illness, injury, or death
of the potential applicant are the primary grounds on which untimely
applications may be accepted.
Sec. 660.339 Limited entry permit fees.
The Regional Director will charge fees to cover administrative
expenses related to issuance of limited entry permits, including
initial issuance, renewal, transfer, vessel registration, replacement,
and appeals. The appropriate fee must accompany each application.
Sec. 660.340 Limited entry permit appeals.
(a) Decisions on appeals of initial decisions regarding issuance,
renewal, transfer, and registration of limited entry permits, and
endorsement upgrade, will be made by the Regional Director.
(b) Appeals decisions shall be in writing and shall state the
reasons therefor.
(c) Within 30 days of an initial decision by the FMD denying
issuance, renewal, transfer, or registration of a limited entry permit,
or endorsement upgrade, on the terms requested by the applicant, an
appeal may be filed with the Regional Director.
(d) The appeal must be in writing, and must allege facts or
circumstances to show why the criteria in this subpart have been met,
or why an exception should be granted.
(e) At the appellant's discretion, the appeal may be accompanied by
a request that the Regional Director seek a recommendation from the
Council as to whether the appeal should be granted. Such a request must
contain the appellant's acknowledgement that the confidentiality
provisions of the Magnuson Act at 16 U.S.C. 1853(d) and part 600 of
this chapter are waived with respect to any information supplied by the
Regional Director to the Council and its advisory bodies for purposes
of receiving the Council's recommendation on the appeal. In responding
to a request for a recommendation on appeal, the Council will apply the
provisions of the PCGFMP in making its recommendation as to whether the
appeal should be granted.
(f) Absent good cause for further delay, the Regional Director will
issue a written decision on the appeal within 45 days of receipt of the
appeal, or, if a recommendation from the Council is requested, within
45 days of receiving the Council's recommendation. The Regional
Director's decision is the final administrative decision of the
Department as of the date of the decision.
Sec. 660.341 Limited entry permit sanctions.
Limited entry permits issued or applied for under this subpart are
subject to sanctions pursuant to the Magnuson Act at 16 U.S.C. 1858(g)
and 15 CFR part 904, subpart D.
Subpart H--West Coast Salmon Fisheries
Sec. 660.401 Purpose and scope.
This subpart implements the Fishery Management Plan for Commercial
and Recreational Salmon Fisheries Off the Coasts of Washington, Oregon,
and California developed by the Pacific Fishery Management Council.
These regulations govern the management of West Coast salmon fisheries
in the EEZ.
Sec. 660.402 Definitions.
In addition to the definitions in the Magnuson Act and in Sec.
600.10 of this chapter, the terms used in this subpart have the
following meanings:
Barbless hook means a hook with a single shank and point, with no
secondary point or barb curving or projecting in any other direction.
Where barbless hooks are specified, hooks manufactured with barbs can
be made barbless by forcing the point of the barb flat against the main
part of the point.
Commercial fishing means fishing with troll fishing gear as defined
annually under Sec. 660.408, or fishing for the purpose of sale or
barter of the catch.
Council means the Pacific Fishery Management Council.
Dressed, head-off length of salmon means the shortest distance
between the midpoint of the clavicle arch (see Figure 3 of this
subpart) and the fork of the tail, measured along the lateral line
wh
FR Doc. 96-16234 Fisheries off West Coast States and in the Western Pacific
ile the fish is lying on its side, without resort to any force or
mutilation of the fish other than removal of the head, gills, and
entrails (see Figure 3 of this subpart).
Dressed, head-off salmon means salmon that have been beheaded,
gilled, and gutted without further separation of vertebrae, and are
either being prepared for on-board freezing, or are frozen and will
remain frozen until landed.
Fishery management area means the EEZ off the coasts of Washington,
Oregon, and California, bounded on the north by the Provisional
International Boundary between the United States and Canada, and
bounded on the south by the International Boundary between the United
States and Mexico. The northeastern, northern, and northwestern
boundaries of the fishery management area are as follows:
(1) Northeastern boundary--that part of a line connecting the light
on Tatoosh Island, WA, with the light on Bonilla Point on Vancouver
Island, British Columbia, southerly of the International Boundary
between the United States and Canada (at 48 deg.29'37'' N. lat.,
124 deg.43'33'' W. long.), and northerly of the point where that line
intersects with the boundary of the U.S. territorial sea.
(2) Northern and northwestern boundary is a line 1 connecting
the following coordinates:
---------------------------------------------------------------------------
\1\ The line joining these coordinates is the provisional
international boundary of the U.S. EEZ as shown on NOAA/NOS Charts
#18480 and #18002.
N. lat. W. long.
48 deg.29'37.19'' 124 deg.43'33.19''
48 deg.30'11'' 124 deg.47'13''
48 deg.30'22'' 124 deg.50'21''
48 deg.30'14'' 124 deg.52'52''
48 deg.29'57'' 124 deg.59'14''
48 deg.29'44'' 125 deg.00'06''
48 deg.28'09'' 125 deg.05'47''
48 deg.27'10'' 125 deg.08'25''
48 deg.26'47'' 125 deg.09'12''
48 deg.20'16'' 125 deg.22'48''
48 deg.18'22'' 125 deg.29'58''
48 deg.11'05'' 125 deg.53'48''
47 deg.49'15'' 126 deg.40'57''
47 deg.36'47'' 127 deg.11'58''
47 deg.22'00'' 127 deg.41'23''
46 deg.42'05'' 128 deg.51'56''
46 deg.31'47'' 129 deg.07'39''
(3) The southern boundary of the fishery management area is the
U.S.-Mexico International Boundary, which is a line connecting the
following coordinates:
N. lat. W. long.
32 deg.35'22'' 117 deg.27'49''
32 deg.37'37'' 117 deg.49'31''
31 deg.07'58'' 118 deg.36'18''
30 deg.32'31'' 121 deg.51'58''
(4) The inner boundaries of the fishery management area are subject
to
[[Page 34600]]
change if the Secretary assumes responsibility for the regulation of
the salmon fishery within state waters under section 306(b) of the
Magnuson Act.
Freezer trolling vessel means a fishing vessel, equipped with troll
fishing gear, that has a present capability for:
(1) On board freezing of the catch.
(2) Storage of the fish in a frozen condition until they are
landed.
Land or landing means to begin transfer of fish from a fishing
vessel. Once transfer begins, all fish onboard the vessel are counted
as part of the landing.
Plugs means artificial fishing lures made of wood or hard plastic
with one or more hooks attached. Lures commonly known as ``spoons,''
``wobblers,'' ``dodgers,'' and flexible plastic lures are not
considered plugs, and may not be used where ``plugs only'' are
specified.
Recreational fishing means fishing with recreational fishing gear
as defined annually under Sec. 660.408 and not for the purpose of sale
or barter.
Recreational fishing gear will be defined annually under
Sec. 660.408.
Regional Director means the Director, Northwest Region, NMFS, or a
designee. For fisheries occurring primarily or exclusively in the
fishery management area seaward of California, Regional Director means
the Director, Northwest Region, NMFS, acting in consultation with the
Director, Southwest Region, NMFS.
Salmon means any anadromous species of the family Salmonidae and
genus Oncorhynchus, commonly known as Pacific salmon, including, but
not limited to:
Chinook (king) salmon, Oncorhynchus tshawytscha
Coho (silver) salmon, Oncorhynchus kisutch
Pink (humpback) salmon, Oncorhynchus gorbuscha
Chum (dog) salmon, Oncorhynchus keta
Sockeye (red) salmon, Oncorhynchus nerka
Steelhead (rainbow trout), Oncorhynchus mykiss
Total length of salmon means the shortest distance between the tip
of the snout or jaw (whichever extends furthest while the mouth is
closed) and the tip of the longest lobe of the tail, without resort to
any force or mutilation of the salmon other than fanning or swinging
the tail.
Treaty Indian fishing means fishing for salmon and steelhead in the
fishery management area by a person authorized by the Makah Tribe to
exercise fishing rights under the Treaty with the Makah, or by the
Quileute, Hoh, or Quinault Tribes to exercise fishing rights under the
Treaty of Olympia.
Troll fishing gear will be defined annually under Sec. 660.408.
Whole bait means a hook or hooks baited with whole natural bait
with no device to attract fish other than a flasher.
Sec. 660.403 Relation to other laws.
(a) The relation of this part to other laws is set forth in
Sec. 600.705 of this chapter, Sec. 660.2, and paragraphs (b) and (c) of
this section.
(b) Any person fishing subject to this subpart who also engages in
fishing for groundfish should consult Federal regulations in subpart G
for applicable requirements of that subpart, including the requirement
that vessels engaged in commercial fishing for groundfish (except
commercial passenger vessels) have vessel identification in accordance
with Sec. 660.305.
(c) Any person fishing subject to this subpart is bound by the
international boundaries of the fishery management area described in
Sec. 660.402, notwithstanding any dispute or negotiation between the
United States and any neighboring country regarding their respective
jurisdictions, until such time as new boundaries are published by the
United States.
Sec. 660.404 Recordkeeping and reporting.
(a) This subpart recognizes that catch and effort data necessary
for implementation of any applicable fishery management plan are
collected by the States and Indian tribes of Washington, Oregon,
California, and Idaho under existing data collection requirements.
Except as provided in paragraph (b) of this section, no additional
catch reports will be required of fishermen or processors so long as
the data collection and reporting systems operated by State agencies
and Indian tribes continue to provide NMFS with statistical information
adequate for management.
(b) Persons engaged in commercial fishing may be required to submit
catch reports that are specified annually under Sec. 660.408.
Sec. 660.405 Prohibitions.
(a) In addition to the general prohibitions specified in
Sec. 600.725 of this chapter, it is unlawful for any person to do any
of the following:
(1) Take and retain or land salmon caught with a net in the fishery
management area, except that a hand-held net may be used to bring
hooked salmon on board a vessel.
(2) Fish for, or take and retain, any species of salmon:
(i) During closed seasons or in closed areas;
(ii) While possessing on board any species not allowed to be taken
in the area at the time;
(iii) Once any catch limit is attained;
(iv) By means of gear or methods other than recreational fishing
gear or troll fishing gear, or gear authorized under Sec. 660.408(k)
for treaty Indian fishing;
(v) In violation of any action issued under this subpart; or
(vi) In violation of any applicable area, season, species, zone,
gear, daily bag limit, or length restriction.
(3) Fish for salmon in an area when salmon of less than the legal
minimum length for that area are on board the fishing vessel, except
that this provision does not prohibit transit of an area when salmon of
less than the legal minimum length for that area are on board, so long
as no fishing is being conducted.
(4) Remove the head of any salmon caught in the fishery management
area, or possess a salmon with the head removed, if that salmon has
been marked by removal of the adipose fin to indicate that a coded wire
tag has been implanted in the head of the fish.
(5) Take and retain or possess on board a fishing vessel any
species of salmon that is less than the applicable minimum total
length, including the applicable minimum length for dressed, head-off
salmon.
(6) Possess on board a fishing vessel a salmon, for which a minimum
total length is extended or cannot be determined, except that dressed,
head-off salmon may be possessed on board a freezer trolling vessel,
unless the adipose fin of such salmon has been removed.
(7) Fail to return to the water immediately and with the least
possible injury any salmon the retention of which is prohibited by this
subpart.
(8) Engage in recreational fishing while aboard a vessel engaged in
commercial fishing. This restriction is not intended to prohibit the
use of fishing gear otherwise permitted under the definitions of troll
and recreational fishing gear, so long as that gear is legal in the
fishery for which it is being used.
(9) Take and retain, possess, or land any steelhead taken in the
course of commercial fishing in the fishery management area, unless
such take and retention qualifies as treaty Indian fishing.
(10) Sell, barter, offer to sell, offer to barter, or purchase any
salmon taken in the course of recreational salmon fishing.
(11) Refuse to submit fishing gear or catch subject to such
person's control to
[[Page 34601]]
inspection by an authorized officer, or to interfere with or prevent,
by any means, such an inspection.
(12) Take and retain Pacific halibut (Hippoglossus stenolepis)
except in accordance with regulations of the International Pacific
Halibut Commission at part 300 of this title. Pacific halibut that
cannot be retained lawfully must be returned to the water immediately
and with the least possible injury.
(13) Violate any other provision of this subpart.
(b) The fishery management area is closed to salmon fishing except
as opened by this subpart or superseding regulations or notices. All
open fishing periods begin at 0001 hours and end at 2400 hours local
time on the dates specified.
Sec. 660.406 Exempted fishing.
(a) NMFS may allow such exempted fishing in the fishery management
area as may be recommended by the Council, the Federal Government,
state government, or treaty Indian tribes having usual and accustomed
fishing grounds in the fishery management area.
(b) NMFS will not allow any exempted fishery recommended by the
Council unless NMFS determines that the purpose, design, and
administration of the exempted fishery are consistent with the goals
and objectives of the Council's fishery management plan, the national
standards (section 301(a) of the Magnuson Act), and other applicable
law.
(c) Each vessel participating in any exempted fishery recommended
by the Council and allowed by NMFS is subject to all provisions of this
subpart, except those portions which relate to the purpose and nature
of the exempted fishery. These exceptions will be specified in a permit
issued by the Regional Director to each vessel participating in the
exempted fishery and that permit must be carried aboard each
participating vessel.
Sec. 660.407 Treaty Indian fishing.
Except as otherwise provided in this subpart, treaty Indian fishing
in any part of the fishery management area is subject to the provisions
of this subpart, the Magnuson Act, and any other regulations issued
under the Magnuson Act.
Sec. 660.408 Annual actions.
(a) General. NMFS will annually establish or, as necessary, adjust
management specifications for the commercial, recreational, and treaty
Indian fisheries by publishing the action in the Federal Register under
Sec. 660.411. Management specifications are set forth in paragraphs (b)
through (n) of this section.
(b) Allowable ocean harvest levels. The allowable ocean harvest for
commercial, recreational, and treaty Indian fishing may be expressed in
terms of season regulations expected to achieve a certain optimum
harvest level or in terms of a particular number of fish. Procedures
for determining allowable ocean harvest vary by species and fishery
complexity, and are documented in the fishery management plan and
Council documents.
(c) Allocation of ocean harvest levels--(1) Coho and chinook from
the U.S.-Canada border to Cape Falcon--(i) Overall allocation schedule.
Initial allocation of coho and chinook salmon north of Cape Falcon, OR,
will be based on the following schedule:
------------------------------------------------------------------------
Percentage 1
Allowable non-treaty ocean harvest (thousands -------------------------
of fish) Commercial Recreational
------------------------------------------------------------------------
Coho:
0-300....................................... 25 75
>300........................................ 60 40
Chinook:
0-100....................................... 50 50
>100-150.................................... 60 40
>150........................................ 70 30
------------------------------------------------------------------------
1 The percentage allocation is tiered and must be calculated in additive
steps when the harvest level exceeds the initial tier. For example,
for a total allowable ocean harvest of 150,000 chinook, the
recreational allocation would be equal to 50 percent of 100,000
chinook plus 40 percent of 50,000 chinook or 50,000 + 20,000 = 70,000
chinook.
(ii) Deviations from allocation schedule. The initial allocation
may be modified annually in accordance with paragraphs (c)(1)(iii)
through (vii) of this section. These deviations from the allocation
schedule provide flexibility to account for the dynamic nature of the
fisheries and better achieve the allocation objectives and fishery
allocation priorities in paragraphs (c)(1)(viii) and (ix) of this
section. Total allowable ocean harvest will be maximized to the extent
possible consistent with treaty obligations, state fishery needs, and
spawning requirements. Every effort will be made to establish seasons
and gear requirements that provide troll and recreational fleets a
reasonable opportunity to catch the available harvest. These may
include single-species directed fisheries with landing restrictions for
other species.
(iii) Preseason trades. Preseason species trades (chinook and coho)
may be made if they are based upon the recommendation of the commercial
and recreational Salmon Advisory Subpanel representatives for the area
north of Cape Falcon; simultaneously benefit both the commercial and
recreational fisheries or benefit one fishery without harming the
other; and are supported by a socio-economic analysis that compares the
impacts of the recommendation to those of the standard allocation
schedule to determine the allocation that best meets the allocation
objectives. This analysis will be made available to the public during
the preseason process for establishing annual management measures.
Preseason trades will use an exchange ratio of four coho to one chinook
as a desirable guideline.
(iv) Commercial allocation. The commercial allowable ocean harvest
of chinook and coho derived during the preseason allocation process may
be varied by major subareas (i.e., north of Leadbetter Point and south
of Leadbetter Point) if there is need to do so to decrease impacts on
weak stocks. Deviations in each major subarea will generally not exceed
50 percent of the allowable ocean harvest of each species that would
have been established without a geographic deviation in the
distribution of the allowable ocean harvest. Deviation of more than 50
percent will be based on a conservation need to protect the weak stocks
and will provide larger overall harvest for the entire fishery north of
Cape Falcon than would have been possible without the deviation.
(v) Recreational allocation. The recreational allowable ocean
harvest of chinook and coho derived during the preseason allocation
process will be distributed among the three major recreational subareas
as described in the coho and chinook distribution sections below.
Additionally, based upon the recommendation of the recreational Salmon
Advisory Subpanel representatives for the area north of Cape Falcon,
the Council will include criteria in its preseason salmon management
recommendations to guide any inseason transfer of coho among the
recreational subareas to meet recreational season duration objectives.
The Council may also establish additional subarea quotas with a major
subarea to meet recreational season objectives based on agreement of
representatives of the affected ports.
(A) Coho distribution. The preseason recreational allowable ocean
harvest of coho north of Cape Falcon will be distributed to provide 50
percent to the area north of Leadbetter Point and 50 percent to the
area south of Leadbetter Point. In years with no fishery in Washington
State management area 4B, the distribution of coho north of Leadbetter
Point will be divided to
[[Page 34602]]
provide 74 percent to the subarea between Leadbetter Point and the
Queets River (Westport) and 26 percent to the subarea north of the
Queets River (Neah Bay/La Push). In years when there is an area 4B
fishery under state management, 25 percent of the numerical value of
that fishery shall be added to the recreational allowable ocean harvest
north of Leadbetter Point prior to applying the sharing percentages.
That same value would then be subtracted from the Neah Bay/La Push
share in order to maintain the same total distribution north of
Leadbetter Point.
(B) Chinook distribution. Subarea distributions of chinook will be
managed as guidelines based on calculations of the Salmon Technical
Team with the primary objective of achieving all-species fisheries
without imposing chinook restrictions (i.e., area closures or bag limit
reductions). Chinook in excess of all-species fisheries needs may be
utilized by directed chinook fisheries north of Cape Falcon or by
negotiating a preseason species trade of chinook and coho between
commercial and recreational allocations in accordance with paragraph
(c)(1)(iii) of this section.
(vi) Inseason trades and transfers. Inseason transfers, including
species trades of chinook and coho, may be permitted in either
direction between commercial and recreational fishery quotas to allow
for uncatchable fish in one fishery to be reallocated to the other.
Fish will be deemed uncatchable by a respective commercial or
recreational fishery only after considering all possible annual
management actions to allow for their harvest that are consistent with
the harvest management objectives specific in the fishery management
plan including consideration of single species fisheries.
Implementation of inseason transfers will require consultation with the
pertinent commercial and recreational Salmon Advisory Subpanel
representatives from the area involved and the Salmon Technical Team,
and a clear establishment of available fish and impacts from the
transfer. Inseason trades or transfers may vary from the guideline
ratio of four coho to one chinook to meet the allocation objectives in
paragraph (c)(1)(viii) of this section.
(vii) Other inseason provisions. Any increase or decrease in the
recreational or commercial allowable ocean harvest resulting from an
inseason restructuring of a fishery or other inseason management action
does not require reallocation of the overall non-treaty allowable ocean
harvest north of Cape Falcon between the recreational and commercial
fisheries. Inseason redistribution of subarea quotas within the
recreational fishery or the distribution of allowable coho catch
transfers from the commercial fishery among subareas may deviate from
the preseason distribution. Inseason management actions may be taken by
the Regional Director to assure meeting the primary objective of
achieving all-species fisheries without imposing chinook restrictions
in each of the recreational subareas north of Cape Falcon. Such actions
might include, but are not limited to: Closure from 0 to 3, 0 to 6, 3
to 200, or 5 to 200 nm from shore; closure from a point extending due
west from Tatoosh Island for 5 nm, then south to a point due west of
Umatilla Reef Buoy, then due east to shore; closure from North Head at
the Columbia River mouth north to Leadbetter Point; change in species
that may be landed; or other actions as prescribed in the annual
management measures.
(viii) Allocation objectives. The goal of allocating ocean harvest
north of Cape Falcon is to achieve, to the greatest degree possible,
the following objectives for the commercial and recreational fisheries.
When deviation from the allocation schedule is being considered, these
objectives will serve as criteria to help determine whether a user
group will benefit from the deviation.
(A) Provide recreational opportunity by maximizing the duration of
the fishing season while minimizing daily and area closures and
restrictions on gear and daily limits.
(B) Maximize the value of the commercial harvest while providing
fisheries of reasonable duration.
(ix) Fishery allocation priorities. The following fishery
allocation priorities will provide guidance in the preseason process of
establishing final harvest allocations and structuring seasons that
best achieve the allocation objectives. To the extent fish are provided
to each fishery by the allocation schedule, these priorities do not
favor one user group over the other and should be met simultaneously
for each fishery. Seasons may be structured that deviate from these
priorities consistent with the allocation objectives.
(A) At total allowable harvest levels up to 300,000 coho and
100,000 chinook: For the recreational fishery, provide coho for a late
June through early September all-species season; provide chinook to
allow access to coho and, if possible, a minimal chinook-only fishery
prior to the all-species season; and adjust days per week and/or
institute area restrictions to stabilize season duration. For the
commercial fishery, provide chinook for a May and early June chinook
season and provide coho for hooking mortality and/or access to a pink
fishery, and ensure that part of the chinook season will occur after
June 1.
(B) At total allowable harvest levels above 300,000 coho and above
100,000 chinook: For the recreational fishery, relax any restrictions
in the all-species fishery and/or extend the all-species season beyond
Labor Day as coho quota allows; provide chinook for a Memorial Day
through late June chinook-only fishery; and adjust days per week to
ensure continuity with the all-species season. For the commercial
fishery, provide coho for an all-species season in late summer and/or
access to a pink fishery; and leave adequate chinook from the May
through June season to allow access to coho.
(2) Coho south of Cape Falcon--(i) Allocation schedule. Preseason
allocation shares of coho salmon south of Cape Falcon, OR, will be
determined by an allocation schedule, which is based on the following
formula. The formula will be used to interpolate between allowable
harvest levels as shown in the table below.
(A) Up to 350,000 allowable ocean harvest: The first 150,000 fish
will be allocated to the recreational fishery. Additional fish will be
allocated 66.7 percent to troll and 33.3 percent to recreational. The
incidental coho mortality for a commercial all-salmon-except-coho
fishery will be deducted from the troll allocation. If the troll
allocation is insufficient for this purpose, the remaining number of
coho needed for this estimated incidental coho mortality will be
deducted from the recreational share.
(B) From 350,000 to 800,000 allowable ocean harvest: The
recreational allocation is equal to 14 percent of the allowable harvest
above 350,000 fish, plus 217,000 fish. The remainder of the allowable
ocean harvest will be allocated to the troll fishery.
(C) Above 800,000 allowable ocean harvest: The recreational
allocation is equal to 10 percent of the allowable harvest above
800,000 fish, plus 280,000 fish. The remainder of the allowable ocean
harvest will be allocated to the troll fishery.
[[Page 34603]]
------------------------------------------------------------------------
Allowable Commercial Recreational
ocean harvest ----------------------------------------------------------
(thousands of Number Number
fish) (thousands) Percentage (thousands) Percentage
------------------------------------------------------------------------
2,700........ 2,230 82.6 470 17.4
2,600........ 2,140 82.3 460 17.7
2,500........ 2,050 82.0 450 18.0
2,400........ 1,960 81.7 440 18.3
2,300........ 1,870 81.3 430 18.7
2,200........ 1,780 80.9 420 19.1
2,100........ 1,690 80.5 410 19.5
2,000........ 1,600 80.0 400 20.0
1,900........ 1,510 79.5 390 20.5
1,800........ 1,420 78.9 380 21.1
1,700........ 1,330 78.2 370 21.8
1,600........ 1,240 77.5 360 22.5
1,500........ 1,150 76.7 350 23.3
1,400........ 1,060 75.7 340 24.3
1,300........ 970 74.6 330 25.4
1,200........ 880 73.3 320 26.7
1,100........ 790 71.8 310 28.2
1,000........ 700 70.0 300 30.0
900.......... 610 67.8 290 32.2
800.......... 520 65.0 280 35.0
700.......... 434 62.0 266 38.0
600.......... 348 58.0 252 42.0
500.......... 262 52.4 238 47.6
400.......... 176 44.0 224 56.0
350.......... 133 38.0 217 62.0
300.......... 100 33.3 200 66.7
200.......... \1\ 33 \1\ 16.5 \1\ 167 \1\ 83.5
100.......... (\1\) (\1\) (\1\) (\1\)
------------------------------------------------------------------------
\1\ An incidental coho allowance associated with any commercial all-
salmon-except-coho fishery will be deducted from the recreational
share of coho during periods of low coho abundance when the commercial
allocation of coho under the schedule would be insufficient to allow
for incidental hooking mortality of coho in the commercial all-salmon-
except-coho fishery.
(ii) Geographic distribution. Allowable harvest south of Cape
Falcon may be divided and portions assigned to subareas based on
considerations including, but not limited to, controlling ocean harvest
impacts on depressed, viable natural stocks within acceptable maximum
allowable levels; stock abundance; allocation considerations; stock
specific impacts; relative abundance of the salmon species in the
fishery; escapement goals; and maximizing harvest potential.
(iii) Recreational allocation at 167,000 fish or less. When the
recreational allocation is at 167,000 fish or less, the total
recreational allowable ocean harvest of coho will be divided between
two major subareas with independent impact quotas. The initial
allocation will be 70 percent from Cape Falcon to Humbug Mountain and
30 percent south of Humbug Mountain. Coho transfers between the two
impact quotas may be permitted on a one-for-one basis, if chinook
constraints preclude access to coho. Horse Mountain to Point Arena will
be managed for an impact guideline of 3 percent of the south of Cape
Falcon recreational allocation. The recreational coho fishery between
Humbug Mountain and Point Arena may be closed when it is projected that
the harvest impact between Humbug Mountain and Point Arena, combined
with the projected harvest impact that will be taken south of Point
Arena to the end of the season, equals the impact quota for south of
Humbug Mountain. The recreational fishery for coho salmon south of
Point Arena will not close upon attainment of the south of Humbug
Mountain impact quota.
(iv) Oregon coastal natural coho. At Oregon coastal natural coho
spawning escapements of 28 or fewer adults per mile, the allocation
provisions of paragraph (c)(2)(i) of this section do not apply.
Fisheries will be established that will provide only the minimum
incidental harvest of Oregon coastal natural coho necessary to
prosecute other fisheries, and that under no circumstances will cause
irreparable harm to the Oregon coastal natural coho stock.
(v) Inseason reallocation. No later than August 15 each year, the
Salmon Technical Team will estimate the number of coho salmon needed to
complete the recreational seasons. Any coho salmon allocated to the
recreational fishery that are not needed to complete the recreational
seasons will be reallocated to the commercial fishery. Once
reallocation has taken place, the remaining recreational quota will
change to a harvest guideline. If the harvest guideline for the
recreational fishery is projected to be reached on or before Labor Day,
the Regional Director may allow the recreational fishery to continue
through the Labor Day weekend only if there is no significant danger of
impacting the allocation of another fishery or of failing to meet an
escapement goal.
(d) Management boundaries and zones. Management boundaries and
zones will be established or adjusted to achieve a conservation
purpose. A conservation purpose protects a fish stock, simplifies
management of a fishery, or promotes wise use of fishery resources by,
for example, separating fish stocks, facilitating enforcement,
separating conflicting fishing activities, or facilitating harvest
opportunities. Management boundaries and zones will be described by
geographical references, coordinates (latitude and longitude), LORAN
readings, depth contours, distance from shore, or similar criteria.
(e) Minimum harvest lengths. The minimum harvest lengths for
commercial, recreational, and treaty Indian fishing may be changed upon
demonstration that a useful purpose will be served. For example, an
increase in minimum size for commercially caught salmon may be
necessary for
[[Page 34604]]
conservation or may provide a greater poundage and monetary yield from
the fishery while not substantially increasing hooking mortality. The
removal of a minimum size for the recreational fishery may prevent
wastage of fish and outweigh the detrimental impacts of harvesting
immature fish.
(f) Recreational daily bag limits. Recreational daily bag limits
for each fishing area will be set equal to one, two, or three salmon of
some combination of species. The recreational daily bag limits for each
fishing area will be set to maximize the length of the fishing season
consistent with the allowable level of harvest in the area.
(g) Fishing gear restrictions. Gear restrictions for commercial,
recreational, and treaty Indian fishing may be established or modified
upon demonstration that a useful purpose will be served. For example,
gear restrictions may be imposed or modified to facilitate enforcement,
reduce hooking mortality, or reduce gear expenses for fishermen.
(h) Seasons--(1) In general. Seasons for commercial and
recreational fishing will be established or modified taking into
account allowable ocean harvest levels and quotas, allocations between
the commercial and recreational fisheries, and the estimated amount of
effort required to catch the available fish based on past seasons.
(2) Commercial seasons. Commercial seasons will be established or
modified taking into account wastage of fish that cannot legally be
retained, size and poundage of fish caught, effort shifts between
fishing areas, and protection of depressed stocks present in the
fishing areas. All-species seasons will be established to allow the
maximum allowable harvest of pink and sockeye salmon without exceeding
allowable chinook or coho harvest levels and within conservation and
allocation constraints of the pink and sockeye stocks.
(3) Recreational seasons. If feasible, recreational seasons will be
established or modified to encompass Memorial Day and Labor Day
weekends, and to avoid the need for inseason closures.
(i) Quotas (by species, including fish caught 0-3 nm seaward of
Washington, Oregon, and California). Quotas for commercial,
recreational, and treaty Indian fishing may be established or modified
to ensure that allowable ocean harvests are not exceeded. Quotas may be
fixed or adjustable and used in conjunction with seasons. Any quota
established does not represent a guaranteed ocean harvest, but a
maximum ceiling on catch.
(j) Selective fisheries. In addition to the all-species seasons and
the all-species-except-coho seasons established for the commercial and
recreational fisheries, selective coho-only, chinook-only, or pink-only
fisheries may be established if harvestable fish of the target species
are available; harvest of incidental species will not exceed allowable
levels; proven, documented selective gear exists; significant wastage
of incidental species will not occur; and the selective fishery will
occur in an acceptable time and area where wastage can be minimized and
target stocks are primarily available.
(k) Treaty Indian fishing. (1) NMFS will establish or modify treaty
Indian fishing seasons and/or fixed or adjustable quotas, size limits,
gear restrictions, and/or area restrictions taking into account
recommendations of the Council, proposals from affected tribes, and
relevant Federal court proceedings.
(2) The combined treaty Indian fishing seasons will not be longer
than necessary to harvest the allowable treaty Indian catch, which is
the total treaty harvest that would occur if the tribes chose to take
their total entitlement of the weakest stock in the fishery management
area, assuming this level of harvest did not create conservation or
allocation problems on other stocks.
(3) Any fixed or adjustable quotas established will be consistent
with established treaty rights and will not exceed the harvest that
would occur if the entire treaty entitlement to the weakest run were
taken by treaty Indian fisheries in the fishery management area.
(4) If adjustable quotas are established for treaty Indian fishing,
they may be subject to inseason adjustment because of unanticipated
coho hooking mortality occurring during the season, catches in treaty
Indian fisheries inconsistent with those unanticipated under Federal
regulations, or a need to redistribute quotas to ensure attainment of
an overall quota.
(l) Yurok and Hoopa Valley tribal fishing rights. For purposes of
section 303 of the Magnuson Act, the federally reserved fishing rights
of the Yurok and Hoopa Valley Indian Tribes as set out in a legal
opinion 2 dated October 4, 1993, by the Office of the Solicitor,
Department of the Interior, are applicable law. Under section 303 of
the Magnuson Act, allowable ocean harvest must be consistent with all
applicable laws.
---------------------------------------------------------------------------
\2\ Copies of the Solicitor's Opinion are available from the
Director, Southwest Region, NMFS.
---------------------------------------------------------------------------
(m) Inseason notice procedures. Telephone hotlines and USCG
broadcasts will provide actual notice of inseason actions for
commercial, recreational, and treaty Indian fishing.
(n) Reporting requirements. Reporting requirements for commercial
fishing may be imposed to ensure timely and accurate assessment of
catches in regulatory areas subject to quota management. Such reports
are subject to the limitations described herein. Persons engaged in
commercial fishing in a regulatory area subject to quota management and
landing their catch in another regulatory area open to fishing may be
required to transmit a brief radio report prior to leaving the first
regulatory area. The regulatory areas subject to these reporting
requirements, the contents of the radio reports, and the entities
receiving the reports will be specified annually.
Sec. 660.409 Inseason actions.
(a) Fixed inseason management provisions. NMFS is authorized to
take the following inseason management actions annually, as
appropriate.
(1) Automatic season closures based on quotas. When a quota for the
commercial or the recreational fishery, or both, for any salmon species
in any portion of the fishery management area is projected by the
Regional Director to be reached on or by a certain date, NMFS will, by
an inseason action issued under Sec. 660.411, close the commercial or
recreational fishery, or both, for all salmon species in the portion of
the fishery management area to which the quota applies as of the date
the quota is projected to be reached.
(2) Rescission of automatic closure. If a fishery is closed under a
quota before the end of a scheduled season based on overestimate of
actual catch, NMFS will reopen that fishery in as timely a manner as
possible for all or part of the remaining original season provided NMFS
finds that a reopening of the fishery is consistent with the management
objectives for the affected species and the additional open period is
no less than 24 hours. The season will be reopened by an inseason
action issued under Sec. 660.411.
(3) Adjustment for error in preseason estimates. NMFS may, by an
inseason action issued under Sec. 660.411, make appropriate changes in
relevant seasons or quotas if a significant computational error or
errors made in calculating preseason estimates of salmon abundance are
identified, provided that such correction can be made in a timely
manner to affect the involved fishery without disrupting the capacity
to meet
[[Page 34605]]
the objectives of the fishery management plan.
(b) Flexible inseason management provisions. (1) The Regional
Director will consult with the Chairman of the Council and the
appropriate State Directors prior to taking any of the following
flexible inseason management provisions, which include, but are not
limited to, the following:
(i) Modification of quotas and/or fishing seasons.
(ii) Modification of the species that may be caught and landed
during specific seasons and the establishment or modification of
limited retention regulations.
(iii) Modification of recreational bag limits and recreational
fishing days per calendar week.
(iv) Establishment or modification of gear restrictions.
(v) Modification of boundaries, including landing boundaries, and
establishment of closed areas.
(2) Fishery managers must determine that any inseason adjustment in
management measures is consistent with fishery regimes established by
the U.S.-Canada Pacific Salmon Commission, ocean escapement goals,
conservation of the salmon resource, any adjudicated Indian fishing
rights, and the ocean allocation scheme in the fishery management plan.
All inseason adjustments will be based on consideration of the
following factors:
(i) Predicted sizes of salmon runs.
(ii) Harvest quotas and hooking mortality limits for the area and
total allowable impact limitations, if applicable.
(iii) Amount of commercial, recreational, and treaty Indian catch
for each species in the area to date.
(iv) Amount of commercial, recreational, and treaty Indian fishing
effort in the area to date.
(v) Estimated average daily catch per fisherman.
(vi) Predicted fishing effort for the area to the end of the
scheduled season.
(vii) Other factors, as appropriate.
Sec. 660.410 Escapement goals.
(a) Current escapement goals. The following specific escapement
goals are in effect. Annual management objectives for Washington
coastal fall, spring, and summer chinook; Puget Sound chinook;
Washington coastal coho; and Puget Sound coho are developed through
fixed procedures established in the U.S. District Court.
Summary of Specific Management Goals for Stocks in the Salmon Management
Unit
------------------------------------------------------------------------
System Spawning 1 escapement goal
------------------------------------------------------------------------
Sacramento River Fall Chinook 2........ 122,000 to 180,000 for natural
and hatchery
Klamath River Fall Chinook............. Between 33 and 34 percent of
the potential adult natural
spawners, but no fewer than
35,000 naturally spawning
adults in any one year.3 The
brood escapement rate will
average 33 to 34 percent over
the long term. The escapement
rate for each brood may vary
from the 33 to 34 percent in
order to achieve the required
tribal/non-tribal annual
allocation.
Oregon Coastal Chinook................. 150,000 to 200,000 natural
Columbia River Chinook:
Upper River Fall................... 40,000 bright adults above
McNary Dam.
Upper River Summer................. 80,000 to 90,000 adults above
Bonneville Dam.
Upper River Spring..................... 100,000 to 200,000 adults above
Bonneville Dam.
Lower River Spring (Willamette River).. 30,000 to 45,000 based on run
size
Oregon Coastal Coho.................... Oregon coastal natural (OCN)
coho spawning escapement is
based on an aggregate density
of 42 naturally spawning
adults per mile in standard
index survey areas 4
Puget Sound Pink....................... 900,000 natural.
Lake Washington Sockeye 5.............. 300,000 to Lake Washington.
Columbia River Sockeye 5............... 65,000 over Priest Rapids.
------------------------------------------------------------------------
\1\ Represents adult natural spawning escapement goal for viable natural
stocks or adult hatchery return goal for stocks managed for artificial
production.
\2\ Includes upper and lower river components.
\3\ The minimum escapement floor of 35,000 naturally spawning adults may
be modified only by amendment to the FMP.
\4\ At OCN stock sizes below 125 percent of the annual numerical
escapement goal, an exploitation rate of up to 20 percent will be
allowed for incidental impacts of the combined ocean troll, sport, and
freshwater fisheries. At OCN spawning escapements of 28 or fewer
adults per mile, an exploitation rate of up to 20 percent may be
allowed to provide only minimum incidental harvest to prosecute other
fisheries, provided the rate chosen will cause no irreparable harm to
the OCN stock.
\5\ These stocks represent a negligible component of the Washington
ocean harvest.
(b) Modification of escapement goals. NMFS is authorized, through
an action issued under Sec. 660.411, to modify an escapement goal if--
(1) A comprehensive technical review of the best scientific
information available provides conclusive evidence that, in the view of
the Council and the Salmon Technical Team, justifies modification of an
escapement goal;
(2) For Oregon coastal chinook, specific goals are developed within
the overall goal for north coast and south coast stocks; or
(3) Action by a Federal court indicates that modification of an
escapement goal is appropriate.
Sec. 660.411 Notification and publication procedures.
(a) Notification and effective dates. (1) Annual and certain other
actions taken under Secs. 660.408 and 660.410 will be implemented by an
action published in the Federal Register, and will be effective upon
filing, unless a later time is specified in the action.
(2) Inseason actions taken under Sec. 660.409 will be by actual
notice available from telephone hotlines and USCG broadcasts, as
specified annually. Inseason actions will also be published in the
Federal Register as soon as practicable. Inseason actions will be
effective from the time specified in the actual notice of the action
(telephone hotlines and USCG broadcasts), or at the time the inseason
action published in the Federal Register is effective, whichever comes
first.
(3) Any action issued under this section will remain in effect
until the expiration date stated in the action or until rescinded,
modified, or
[[Page 34606]]
superseded. However, no inseason action has any effect beyond the end
of the calendar year in which it is issued.
(b) Public comment. If time allows, NMFS will invite public comment
prior to the effective date of any action published in the Federal
Register. If NMFS determines, for good cause, that an action must be
filed without affording a prior opportunity for public comment, public
comments on the action will be received by NMFS for a period of 15 days
after filing of the action with the Office of the Federal Register.
(c) Availability of data. The Regional Director will compile in
aggregate form all data and other information relevant to the action
being taken and will make them available for public review during
normal office hours at the Northwest Region, NMFS. For actions
affecting fisheries occurring primarily or exclusively in the fishery
management area seaward of California, information relevant to the
action also will be made available for public review during normal
office hours at the Southwest Region, NMFS.
Table 1 to Part 660.--Quotas for Precious Corals Permit Areas
----------------------------------------------------------------------------------------------------------------
Number of Gear
Name of coral bed Type of bed Harvest quota years restriction
----------------------------------------------------------------------------------------------------------------
Makapuu.............................. E P--2,000 kg............ 2 S
...................... G--600 kg.............. 2 S
...................... B--600 kg.............. 2 S
Ke-ahole Point....................... C P--67 kg............... 1 ...........
...................... G--20 kg............... 1 S
...................... B--17 kg............... 1 S
Kaena Point.......................... C P--67 kg............... 1 S
...................... G--20 kg............... 1 S
...................... B--17 kg............... 1 S
Brooks Bank.......................... C P--17 kg............... 1 N
...................... G--133 kg.............. 1 N
...................... B--111 kg.............. 1 N
180 Fathom Bank...................... C P--222 kg.............. 1 N
...................... G--67 kg............... 1 N
...................... B--56 kg............... 1 N
Westpac Bed.......................... R Zero (0 kg)............ ........... ...........
Hawaii, American Samoa, Guam, U.S. X--1,000 kg (all 1 N
Pacific Island possessions. species combined
except black corals)
per area.
----------------------------------------------------------------------------------------------------------------
Notes:
1. Types of corals: P=Pink G=Gold B=Bamboo.
2. There are no restrictions under this part on the harvest of black corals, except the data submission
requirements (Sec. 660.3). State regulations on black coral harvesting are not superseded by this part.
3. Only \1/5\ of the indicated amount is allowed if nonselective gear is used; that is, the nonselective harvest
will be multiplied by 5 and counted against the quota. If both selective and nonselective methods are used,
the bed will be closed when S+5N=Q, where S=selective harvest amount, N=nonselective harvest amount and
Q=total harvest quota, for any single species on that bed.
4. Only selective gear may be used in the EEZ seaward of the main Hawaiian Islands; i.e., south and east of a
line midway between Nihoa and Niihau Islands. Nonselective gear or selective gear may be used in all other
portions of exploratory areas.
5. S=Selective gear only; N=Nonselective or selective gear.
6. No authorized fishing for coral in refugia.
Table 2 to Part 600.--Vessel Capacity Ratings for West Coast Groundfish
Limited Entry Permits
------------------------------------------------------------------------
Capacity
Vessel length rating
------------------------------------------------------------------------
<20.......................................................... 1.00
21.......................................................... 1.13
22.......................................................... 1.27
23.......................................................... 1.42
24.......................................................... 1.58
25.......................................................... 1.75
26.......................................................... 1.93
27.......................................................... 2.12
28.......................................................... 2.32
29.......................................................... 2.53
30.......................................................... 2.76
31.......................................................... 2.99
32.......................................................... 3.24
33.......................................................... 3.50
34.......................................................... 3.77
35.......................................................... 4.05
36.......................................................... 4.35
37.......................................................... 4.66
38.......................................................... 4.98
39.......................................................... 5.31
40.......................................................... 5.66
41.......................................................... 6.02
42.......................................................... 6.39
43.......................................................... 6.78
44.......................................................... 7.18
45.......................................................... 7.59
46.......................................................... 8.02
47.......................................................... 8.47
48.......................................................... 8.92
49.......................................................... 9.40
50.......................................................... 9.88
51.......................................................... 10.38
52.......................................................... 10.90
53.......................................................... 11.43
54.......................................................... 11.98
55.......................................................... 12.54
56.......................................................... 13.12
57.......................................................... 13.71
58.......................................................... 14.32
59.......................................................... 14.95
60.......................................................... 15.59
61.......................................................... 16.25
62.......................................................... 16.92
63.......................................................... 17.61
64.......................................................... 18.32
65.......................................................... 19.04
66.......................................................... 19.78
67.......................................................... 20.54
68.......................................................... 21.32
69.......................................................... 22.11
70.......................................................... 22.92
71.......................................................... 23.74
72.......................................................... 24.59
73.......................................................... 25.45
74.......................................................... 26.33
75.......................................................... 27.23
76.......................................................... 28.15
77.......................................................... 29.08
78.......................................................... 30.04
79.......................................................... 31.01
80.......................................................... 32.00
81.......................................................... 33.01
82.......................................................... 34.04
[[Page 34607]]
83.......................................................... 35.08
84.......................................................... 36.15
85.......................................................... 37.24
86.......................................................... 38.34
87.......................................................... 39.47
88.......................................................... 40.61
89.......................................................... 41.77
90.......................................................... 42.96
91.......................................................... 44.16
92.......................................................... 45.38
93.......................................................... 46.63
94.......................................................... 47.89
95.......................................................... 49.17
96.......................................................... 50.48
97.......................................................... 51.80
98.......................................................... 53.15
99.......................................................... 54.51
100.......................................................... 55.90
101.......................................................... 57.31
102.......................................................... 58.74
103.......................................................... 60.19
104.......................................................... 61.66
105.......................................................... 63.15
106.......................................................... 64.67
107.......................................................... 66.20
108.......................................................... 67.76
109.......................................................... 69.34
110.......................................................... 70.94
111.......................................................... 72.57
112.......................................................... 74.21
113.......................................................... 75.88
114.......................................................... 77.57
115.......................................................... 79.28
116.......................................................... 81.02
117.......................................................... 82.77
118.......................................................... 84.55
119.......................................................... 86.36
120.......................................................... 88.18
121.......................................................... 90.03
122.......................................................... 91.90
123.......................................................... 93.80
124.......................................................... 95.72
125.......................................................... 97.66
126.......................................................... 99.62
127.......................................................... 101.61
128.......................................................... 103.62
129.......................................................... 105.66
130.......................................................... 107.72
131.......................................................... 109.80
132.......................................................... 111.91
133.......................................................... 114.04
134.......................................................... 116.20
135.......................................................... 118.38
136.......................................................... 120.58
137.......................................................... 122.81
138.......................................................... 125.06
139.......................................................... 127.34
140.......................................................... 129.64
141.......................................................... 131.97
142.......................................................... 134.32
143.......................................................... 136.70
144.......................................................... 139.10
145.......................................................... 141.53
146.......................................................... 143.98
147.......................................................... 146.46
148.......................................................... 148.96
149.......................................................... 151.49
150.......................................................... 154.05
151.......................................................... 154.68
152.......................................................... 155.31
153.......................................................... 155.94
154.......................................................... 156.57
155.......................................................... 157.20
156.......................................................... 157.83
157.......................................................... 158.46
158.......................................................... 159.10
159.......................................................... 159.73
160.......................................................... 160.36
161.......................................................... 160.99
162.......................................................... 161.62
163.......................................................... 162.25
164.......................................................... 162.88
165.......................................................... 163.51
166.......................................................... 164.14
167.......................................................... 164.77
168.......................................................... 165.41
169.......................................................... 166.04
170.......................................................... 166.67
171.......................................................... 167.30
172.......................................................... 167.93
173.......................................................... 168.56
174.......................................................... 169.19
175.......................................................... 169.82
176.......................................................... 170.45
177.......................................................... 171.08
178.......................................................... 171.72
179.......................................................... 172.35
180.......................................................... 172.98
181.......................................................... 173.61
182.......................................................... 174.24
183.......................................................... 174.87
184.......................................................... 175.50
185.......................................................... 176.13
186.......................................................... 176.76
187.......................................................... 177.40
188.......................................................... 178.03
189.......................................................... 178.66
190.......................................................... 179.29
191.......................................................... 179.92
192.......................................................... 180.55
193.......................................................... 181.18
194.......................................................... 181.81
195.......................................................... 182.44
196.......................................................... 183.07
197.......................................................... 183.71
198.......................................................... 184.34
199.......................................................... 184.97
200.......................................................... 185.60
201.......................................................... 186.23
202.......................................................... 186.86
203.......................................................... 187.49
204.......................................................... 188.12
205.......................................................... 188.75
206.......................................................... 189.38
207.......................................................... 190.02
208.......................................................... 190.65
209.......................................................... 191.28
210.......................................................... 191.91
211.......................................................... 192.54
212.......................................................... 193.17
213.......................................................... 193.80
214.......................................................... 194.43
215.......................................................... 195.06
216.......................................................... 195.69
217.......................................................... 196.33
218.......................................................... 196.96
219.......................................................... 197.59
220.......................................................... 198.22
221.......................................................... 198.85
222.......................................................... 199.48
223.......................................................... 200.11
224.......................................................... 200.74
225.......................................................... 201.37
226.......................................................... 202.01
227.......................................................... 202.64
228.......................................................... 203.27
229.......................................................... 203.90
230.......................................................... 204.53
231.......................................................... 205.16
232.......................................................... 205.79
233.......................................................... 206.42
234.......................................................... 207.05
235.......................................................... 207.68
236.......................................................... 208.32
237.......................................................... 208.95
238.......................................................... 209.58
239.......................................................... 210.21
240.......................................................... 210.84
241.......................................................... 211.47
242.......................................................... 212.10
243.......................................................... 212.73
244.......................................................... 213.36
245.......................................................... 213.99
246.......................................................... 214.63
247.......................................................... 215.26
248.......................................................... 215.89
249.......................................................... 216.52
250.......................................................... 217.15
251.......................................................... 217.78
252.......................................................... 218.41
253.......................................................... 219.04
254.......................................................... 219.67
255.......................................................... 220.30
256.......................................................... 220.94
257.......................................................... 221.57
258.......................................................... 222.20
259.......................................................... 222.83
260.......................................................... 223.46
261.......................................................... 224.09
262.......................................................... 224.72
263.......................................................... 225.35
264.......................................................... 225.98
265.......................................................... 226.61
266.......................................................... 227.25
267.......................................................... 227.88
268.......................................................... 228.51
269.......................................................... 229.14
270.......................................................... 229.77
271.......................................................... 230.40
272.......................................................... 231.03
273.......................................................... 231.66
274.......................................................... 232.29
275.......................................................... 232.93
276.......................................................... 233.56
277.......................................................... 234.19
278.......................................................... 234.82
279.......................................................... 235.45
280.......................................................... 236.08
281.......................................................... 236.71
282.......................................................... 237.34
283.......................................................... 237.97
[[Page 34608]]
284.......................................................... 238.60
285.......................................................... 239.24
286.......................................................... 239.87
287.......................................................... 240.50
288.......................................................... 241.13
289.......................................................... 241.76
290.......................................................... 242.39
291.......................................................... 243.02
292.......................................................... 243.65
293.......................................................... 244.28
294.......................................................... 244.91
295.......................................................... 245.55
296.......................................................... 246.18
297.......................................................... 246.81
298.......................................................... 247.44
299.......................................................... 248.07
300.......................................................... 248.70
301.......................................................... 249.33
302.......................................................... 249.96
303.......................................................... 250.59
304.......................................................... 251.22
305.......................................................... 251.86
306.......................................................... 252.49
307.......................................................... 253.12
308.......................................................... 253.75
309.......................................................... 254.38
310.......................................................... 255.01
311.......................................................... 255.64
312.......................................................... 256.27
313.......................................................... 256.90
314.......................................................... 257.54
315.......................................................... 258.17
316.......................................................... 258.80
317.......................................................... 259.43
318.......................................................... 260.06
319.......................................................... 260.69
320.......................................................... 261.32
321.......................................................... 261.95
322.......................................................... 262.58
323.......................................................... 263.21
324.......................................................... 263.85
325.......................................................... 264.48
326.......................................................... 265.11
327.......................................................... 265.74
328.......................................................... 266.37
329.......................................................... 267.00
330.......................................................... 267.63
331.......................................................... 268.26
332.......................................................... 268.89
333.......................................................... 269.52
334.......................................................... 270.16
335.......................................................... 270.79
336.......................................................... 271.42
337.......................................................... 272.05
338.......................................................... 272.68
339.......................................................... 273.31
340.......................................................... 273.94
341.......................................................... 274.57
342.......................................................... 275.20
343.......................................................... 275.83
344.......................................................... 276.47
345.......................................................... 277.10
346.......................................................... 277.73
347.......................................................... 278.36
348.......................................................... 278.99
349.......................................................... 279.62
350.......................................................... 280.25
351.......................................................... 280.88
352.......................................................... 281.51
353.......................................................... 282.14
354.......................................................... 282.78
355.......................................................... 283.41
356.......................................................... 284.04
357.......................................................... 284.67
358.......................................................... 285.30
359.......................................................... 285.93
360.......................................................... 286.56
361.......................................................... 287.19
362.......................................................... 287.82
363.......................................................... 288.46
364.......................................................... 289.09
365.......................................................... 289.72
366.......................................................... 290.35
367.......................................................... 290.98
368.......................................................... 291.61
369.......................................................... 292.24
370.......................................................... 292.87
371.......................................................... 293.50
372.......................................................... 294.13
373.......................................................... 294.77
374.......................................................... 295.40
375.......................................................... 296.03
376.......................................................... 296.66
377.......................................................... 297.29
378.......................................................... 297.92
379.......................................................... 298.55
380.......................................................... 299.18
381.......................................................... 299.81
382.......................................................... 300.44
383.......................................................... 301.08
384.......................................................... 301.71
385.......................................................... 302.34
386.......................................................... 302.97
387.......................................................... 303.60
388.......................................................... 304.23
389.......................................................... 304.86
390.......................................................... 305.49
391.......................................................... 306.12
392.......................................................... 306.75
393.......................................................... 307.39
394.......................................................... 308.02
395.......................................................... 308.65
396.......................................................... 309.28
397.......................................................... 309.91
398.......................................................... 310.54
399.......................................................... 311.17
>400......................................................... 311.80
------------------------------------------------------------------------
BILLING CODE 3510-22-P
[[Page 34609]]
Figure 1 to Part 660--Carapace Length of Lobsters
[GRAPHIC] [TIFF OMITTED] TR02JY96.035
[[Page 34610]]
Figure 2 to Part 660--Length of Longline Vessel
[GRAPHIC] [TIFF OMITTED] TR02JY96.036
[[Page 34611]]
Figure 3 to Part 660--Dressed, Head-off Length of Salmon
[GRAPHIC] [TIFF OMITTED] TR02JY96.037
PARTS 661, 663, 680, 681, 683, and 685--[REMOVED]
4. Under the authority of 16 U.S.C. 1801 et seq., parts 661, 663,
680, 681, 683, and 685 are removed.
[FR Doc. 96-16234 Filed 7-1-96; 8:45 am]
BILLING CODE 3510-22-C
Complete official Federal Register PDF
FR Doc. 96-16042 Indian Country Detention Facilities and Programs
[Federal Register Volume 61, Number 128 (Tuesday, July 2, 1996)]
[Rules and Regulations]
[Pages 34371-34375]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-16042]
=======================================================================
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DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
25 CFR Part 10
RIN 1076-AD77
Indian Country Detention Facilities and Programs
AGENCY: Bureau of Indian Affairs, Interior.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Bureau of Indian Affairs (Bureau) is establishing
regulations to ensure that all Bureau and tribal entities that receive
Federal funding for the operation, maintenance, design and
construction, or renovation of detention facilities are operated and
maintained in a constitutionally sound manner and comply with the
Indian Law Enforcement Reform Act of 1990, Public Law 101-379 (25
U.S.C. 2801 et seq.). These regulations define the policies, standards
and guidelines for detention and rehabilitation programs within Indian
country.
EFFECTIVE DATE: These regulations take effect on August 1, 1996.
FOR FURTHER INFORMATION CONTACT: Theodore R. Quasula, 202-208-5786.
SUPPLEMENTARY INFORMATION:
Background
The authority to issue rules and regulations is vested in the
Secretary of the Interior by 5 U.S.C. 301 and sections 463 and 465 of
the Revised Statutes, 25 U.S.C. 2 and 9. The proposed rule was
published August 5, 1994, (59 FR 40086). Comments received during the
comment period ending November 3, 1994, were considered in the drafting
this final rule.
What is the purpose of this rule? The purpose of this rule is to
provide standards and procedures for the operation of detention
facilities funded under the Indian Alcohol and Substance Abuse
Prevention and Treatment Act, Pub. L. 99-570, (25 U.S.C. Sec. 2453).
Who must follow these regulations? Every BIA and tribal law
enforcement program receiving Federal funding or performing duties
during the operation of detention or rehabilitation facilities or
functions must follow these minimum standards. These programs and
functions are high risk activities that subject the Federal Government
to the risk of liability for tort claims. Self-governance tribes and
tribes with limited jurisdiction are encouraged to use this rule,
Chapter 69 Bureau of Indian Affairs Manual (BIAM), and handbooks for
detention and rehabilitation programs under their administration.
How will these regulations be enforced? All programs will be
subject to periodic inspections or evaluations during which the BIA
will provide technical assistance, will ensure compliance with the
standards and procedures contained in this rule, and will identify
necessary corrective actions or improvements to policies and
procedures. The Bureau adopted a voluntary accreditation process with
an audit and evaluation system.
Why were regulations rewritten and moved? Detention standards were
published in 25 CFR Sec. 11.305 and later moved to Section 12.104. The
regulations had not been modified for sixteen years. They did not
address current detention problems and were inconsistent with current
acceptable detention practices and procedures. The regulations also
failed to address code compliance and related physical plant issues,
and lacked options to allow for alternative types of detention
programs. The need for more detailed and contemporary standards was
intensified by the provision of funding for detention programs under
Indian Alcohol and Substance Abuse Prevention and Treatment Act.
Are all the standards and procedures applicable to adult and
juvenile detention facilities, Inmate Handbook
[[Page 34372]]
facilities, and holding facilities and programs published in this rule?
No. Although Part 10 is reserved entirely for Indian country detention
and rehabilitation programs, Chapter 69 BIAM, and handbooks for
detention and rehabilitation programs detail the standards and
procedures.
How were the rules or regulations revised and updated? A multi-
agency task force was assembled to develop the first draft of these
standards. The task force included representatives from the Office of
Law Enforcement Services, Area Office Supervisory Criminal
Investigators, Agency Criminal Investigators, detention staff, and
Indian Health Service program specialists. The task force also included
individuals with experience working in tribal detention programs.
Additional internal reviews were conducted at the Bureau area and
agency level. Interested parties and professionals submitted written
comments, suggestions or objections to the proposed rules.
Review of Public Comments
Building and Safety Code Compliance.
The Bureau of Indian Affairs, Facilities Management & Construction
Center recommended the standards relating to building and safety code
compliance be revised to reflect current requirements. If the facility
is owned by the BIA, it must comply with the codes and standards
adopted by the BIA in the Chapter 25 Bureau of Indian Affairs Manual
(BIAM) Supplements 18 and 19. If the facility is owned by a tribe, it
must comply with either tribally adopted building codes, tribally
adopted state or municipal building codes, or the Chapter 25 BIAM
Supplements 18 and 19. This change has been incorporated into each
applicable standard.
Mississippi Band of Choctaw Indians
The Mississippi Band of Choctaw Indians expressed numerous concerns
and recommendations. Each of the Tribe's concerns has been addressed:
(1) Development of requirements that are applicable to all facility
types. As directed of the Department of the Interior, Office of
Regulatory Affairs, the format for the rule must be general in nature.
Specific requirements are published in the policy and standards
manuals, rather than as rules. The recommendation will not be
incorporated in this rule.
(2) Publication of an accreditation process prior to the approval
of the final rule. An accreditation process has been drafted. A
standards compliance information packet, corrective action plan
workbook, self-audit workbook, and standard accreditation workbook have
been developed. This process will be field tested and adopted by the
BIA.
(3) Reduction of the levels of Bureau approval required for
standard compliance--operational descriptions. Standards have been
developed for Bureau operated detention/correctional facilities and
programs. Through the contracting programs of the Indian Self-
Determination and Education Assistance Act, The tribe can develop a
facility specific line of authority and approval process of their own
when contracting detention/correction programs under the Indian Self-
Determination and Education Assistance Act.
(4) Involvement of the Indian Health Service and tribes in the
drafting of these standards. The Bureau established a task force to
draft these standards. The task force was comprised of representatives
from the Office of Law Enforcement Services, Area Office Supervisory
Criminal Investigators, Agency Criminal Investigators, detention staff,
and Indian Health Service program specialists and tribes. They provided
Indian Health Services and the tribes many opportunities to review the
standards, including the publication of the proposed rule in the
Federal Register on August 5, 1994.
(5) Incorporation of the numbering changes for various tables and
charts for Mandatory Standards, Separation of Adults and Juveniles, and
Suicide Screening. This has been done.
(6) Modification of accreditation requirements and the minimum
qualifications for new recruits. The minimum standards are critical to
a quantified accreditation process in order to evaluate compliance and
performance. The recommendation will not be incorporated in this rule.
(7) Addition of Detention Officer to the definitions section. The
definition section for this rule and the definition has been added.
(8) Provision of funds to train detention staff in the operation of
new generation jails. The BIA Indian Police Academy offers detention
officer training and is revamping its detention officers' curriculum to
incorporate direct supervision methodologies and philosophies.
(9) Incorporation of the rate of facility capacity as a mandatory
standard. During drafting of the rule, BIA agreed that mandatory
standards would be limited to those areas that create a potential
danger to the life, health, and safety of inmates, staff, and/or the
community, and those areas in which there are other statutes,
regulations, or directives that mandate compliance. The recommendation
will not be incorporated in this rule.
(10) Inclusion and/or clarification of the following definitions:
(a) Protective Holding Cell--a specialized cell or room that is
utilized to detain or isolate an incapacitated or combative
individual(s) for a short period of time, in the standards. The
protective holding cell may be equipped with specialized security and/
or medical equipment to control and manage individuals detained in
these areas in a safe, secure, and humane environment. (b) Special
Management--confinement of a detainee in an individual cell that is
separated from the remainder of the population for the purpose of
disciplinary, administrative segregation, protective custody, or
medical segregation, in standards. The exceptions to house an inmate in
special management must coincide with this criteria. (c) Multiple
Occupancy Cells or Rooms--an area, room or cell housing more than two
and less than fifty persons. These recommendations were incorporated in
the standards or rule.
(11) Addition of Designated Security Post to clarify staffing
requirements.
(12) Addition of Adult Holding Facility and Mass Arrest to the
definitions for this rule. The Department of the Interior, Office of
Regulatory Affairs established the definitions section for this rule.
The recommendation will not be incorporated in this rule.
(13) Inclusion of square footage requirements as a mandatory
standard. During drafting of the rule, BIA agreed that mandatory
standards would be limited to those areas that create a potential
danger to the life, health, and safety of inmates, staff, and/or the
community, and those areas in which there are other statutes,
regulations, or directives that mandate compliance. The recommendation
will not be incorporated in this rule.
(14) Addition of a transition program for accepting, moving into,
and operating a new facility beginning one year prior to the completion
of a facility. The Planning of New Institutions (PONI) is the Bureau's
process for constructing and operating new facilities in Indian
country. The Bureau has determined that this transition must begin when
the construction phase starts. The recommendation will not be
incorporated in this rule.
(15) Consolidation of limitations on inmate correspondence and
inspection of letters and packages. Upon review, it was decided that no
change would be made. The limitations on inmate correspondence
addresses the volume of lawful correspondence an inmate may
[[Page 34373]]
send or receive. The standard dealing with the inspection of letters
and packages addresses the search of inmate mail for contraband. The
recommendation will not be incorporated in this rule.
(16) Removal of the requirement that a governing board or advisory
committee oversee the operation of a residential facility. The
structure of these programs will be the responsibility of the tribe.
Oversight of these facilities should include representation from the
community and the overall Tribal government. The recommendation will
not be incorporated in this rule.
(17) Removal of the designated staff position for recreational and
leisure activities, would not be realistic due to the limited staff
resources. A position must be specified for accountability purposes,
however, the administrator will have the latitude to designate
collateral duties where staff is limited. The recommendation will not
be incorporated in this rule.
(18) Amendment of Staffing Requirements to Administrative Review of
Staff Requirement to include institutional operations dealing with
staff requirements. The staffing requirement in the Administration and
Management section is an institutional requirement that staff be on
board at all times to operate the facility, rather than the
administrative process to review staffing patterns within the
institution. The recommendation will not be incorporated in this rule.
(19) Inclusion of comparable tribal regulations in the standards.
The standards indicate that non-regulatory documents will not be
incorporated into the rule. The standards were developed for BIA
operated detention/correctional facilities and programs, but permit
tribes to operate under comparable tribal regulations when the program
is contracted under the Indian Self-Determination and Education
Assistance Act. The recommendation will not be incorporated in this
rule.
National Commission on Correctional Health Care and the American
Psychiatric Association
The recommendation by the National Commission on Correctional
Health Care (NCOCHC) and American Psychiatric Association suggested
replacing the drafted health care standards developed in association
with the Indian Health Service with the NCOCHC's standards for health
services in jails. Indian country detention and holding facilities, in
general, are smaller than the facilities referenced in NCOCHC
standards. The NCOCHC standards are unrealistic for reservation
facilities. The Indian Health Service has a legal obligation to provide
health services to Indian people and to mandate NCOCHC's standards is
duplicative. The Bureau standards are equal to or exceed the American
Correctional Association standards. These standards are consistent with
national professional standards. The recommendation will not be
incorporated in this rule.
Changes Reflecting Department of the Interior Policy
The Office of Regulatory Affairs and the Office of the Solicitor,
Department of the Interior, indicated that the proposed rule was
predominately standards and procedures for the operation of detention
or holding facilities in Indian country; as such they should not be
published in the Code of Federal Regulations. This is consistent with
Executive Order 12866 that mandates that agencies streamline the
regulatory process and enhance the planning and coordination of new and
existing regulations.
The Bureau has separated the operational standards and day-to-day
guidance from the rulemaking process. The operational standards are now
included in easy-to-read reference handbooks and guides. These
handbooks and guides are specific to Indian country detention and
holding facilities. They are now part of the Bureau's operations
management handbook and are available to the public, tribal programs,
and BIA employees upon request. Inmates will receive written guidelines
at the time of booking into a facility detailing what behavior will be
expected of them, their rights and privileges, and the nutritional/
medical/emergency treatment to be provided.
Public comments have been incorporated in the ``Indian Country
Detention Facilities and Programs 69'' (Chapter 69 Bureau of Indian
Affairs Manual) and accompanying handbooks. The Inmate Handbook ensures
that all persons incarcerated in Indian country detention or holding
facilities understand their rights, privileges, safety procedures,
detainee treatment during incarceration, and the behavior expected of
detainees.
Evaluation and Certification
Executive Order 12988
The Department has determined that these regulations meet the
applicable standards provided in sections 3(a) and 3(b)(2) of Executive
Order 12988.
Executive Order 12866
This rule is not a significant regulatory action under Executive
Order 12866.
Regulatory Flexibility Act
This rule will not have a significant economic impact on a
substantial number of small entities under the Regulatory Flexibility
Act (5 U.S.C. Sec. 601 et seq.)
Executive Order 12630
The Department has determined that this rule does not have
``significant'' takings implications. The rule does not pertain to
``taking'' of private property interests, nor does it impact private
property.
Executive Order 12612
The Department has determined that this rule does not have
significant federalism effects because it pertains solely to Federal-
tribal relations and will not interfere with the roles, rights and
responsibilities of states.
NEPA Statement
The Department has determined that this rule does not constitute a
major Federal action significantly affecting the quality of the human
environment and that no detailed statement is required pursuant to the
National Environmental Policy Act of 1969.
Unfunded Mandates Act of 1995
This proposed rule imposes no unfunded mandates on any governmental
or private entity and is in compliance with the provisions of the
Unfunded Mandates Act of 1995.
Paperwork Reduction Act of 1995
This rule has been examined under the Paperwork Reduction Act of
1995 and has been found to contain no information collection
requirements.
Drafting Information
The primary author of this document is Warren LeBeau, Detention
Specialist, Bureau of Indian Affairs, Office of Law Enforcement
Services.
List of Subjects in 25 CFR Part 10
Buildings, Indians, Law enforcement, Prisoners, Youth.
For the reasons given in the preamble, a new part 10 is added to
Chapter I of title 25 of the Code of Federal Regulations as set forth
below.
[[Page 34374]]
PART 10--INDIAN COUNTRY DETENTION FACILITIES AND PROGRAMS
Sec.
10.1 Why are policies and standards needed for Indian country
detention programs?
10.2 Who is responsible for developing and maintaining the policies
and standards for detention and holding facilities in Indian
country?
10.3 Who must follow these policies and standards?
10.4 What happens if the policies and standards are not followed?
10.5 Where can I find the policies and standards for the
administration, operation, services, and physical plant/construction
of Indian country detention, Inmate Handbook, and holding
facilities?
10.6 How is the BIA assured that the policies and standards are
being applied uniformly and facilities are properly accredited?
10.7 Where do I find help or receive technical assistance in
complying with the policies and standards?
10.8 What minimum records must be kept and reports made at each
detention, Inmate Handbook, or holding facility in Indian country?
10.9 If a person is detained or incarcerated in an Indian country
detention, Inmate Handbook, or holding facility, how would they know
what their rights, privileges, safety, protection and expected
behavior would be?
10.10 What happens if I believe my civil rights have been violated
while incarcerated in an Indian country detention or holding
facility?
10.11 How would someone detained or incarcerated, or their
representative, get the BIA policies and standards?
Authority: 5 U.S.C. 301; 25 U.S.C. 2, 9, 13, 2417, 2453, and
2802.
Sec. 10.1 Why are policies and standards needed for Indian country
detention programs?
Policies and standards are required to ensure that all Bureau of
Indian Affairs (BIA) and tribal entities that receive Federal funding
for the operation, maintenance, design and construction or renovation
of detention facilities, Inmate Handbook, or holding facilities are
supporting constitutional rights and are complying with the Indian Law
Enforcement Reform Act of 1990. Self-governance tribes and tribes with
limited jurisdiction are encouraged to follow the regulations in this
part, and other BIA manuals and handbooks. The provision for funding
tribes for detention programs under the Indian Alcohol and Substance
Abuse Prevention and Treatment Act, Public Law 99-570, (25 U.S.C. 2453)
requires standards and procedures for such facilities.
Sec. 10.2 Who is responsible for developing and maintaining the
policies and standards for detention and holding facilities in Indian
country?
The Director, Office of Law Enforcement Services who reports to the
Deputy Commissioner of Indian Affairs, BIA, establishes policies,
procedures, and standards for the operations, design, planning,
maintenance, renovation, and construction of detention programs in the
BIA and by tribal contract under Indian Self-Determination and
Education Assistance Act, Public Law 93-638, as amended, 25 U.S.C. 450.
Sec. 10.3 Who must follow these policies and standards?
You must follow these minimum policies, standards, and guides if
you are part of the BIA or tribal detention or rehabilitation program
receiving Federal funding. Self-governance tribes and tribes with
limited jurisdiction are encouraged to follow the regulations in this
part, and other BIA manuals and handbooks. Detention officers, guards,
cooks and other staff conducting business in the facilities must meet
minimum standards of law enforcement personnel as prescribed in 25 CFR
part 12, subpart D, ``Qualifications and Training Requirements.'' Those
tribal programs not receiving Federal funding under the Indian Self-
Determination and Education Assistance Act (Public Law 93-638, as
amended) who wish to be accredited are encouraged to use the policies
and standards in that part since they have been modified and approved
for Indian country.
Sec. 10.4 What happens if the policies and standards are not
followed?
The risk for human and civil rights violations due to lack of
common standards will subject the operation and/or facility to
unnecessary exposure to liability. Lack of employee standards,
particularly for training and background checks, will increase the risk
of misconduct and vicarious liability of the tribes and the Federal
government through tort claims. Funding sources for detention programs
may become scarce to nonexistent because of contract noncompliance. The
tribes' opportunity to receive funding from potential resource sharing
agreements with other law enforcement agencies may be damaged because
the facility may have to be closed for cause due to violation of the
life safety codes.
Sec. 10.5 Where can I find the policies and standards for the
administration, operation, services, and physical plant/construction of
Indian country detention, Inmate Handbook, and holding facilities?
The Bureau of Indian Affairs, Department of the Interior, maintains
a manual of policies and procedures called the Bureau of Indian Affairs
Manual (BIAM). The Chapter 69 BIAM titled ``Indian Country Detention
Facilities and Programs,'' contains the BIA's policies, procedures, and
standards for detention and holding programs in Indian country. The
standards for the programs within the BIAM are in handbook format for
easy field reference and use. Copies of the Chapter 69 BIAM and
handbooks may be obtained from the Director, Office of Law Enforcement
Services.
Sec. 10.6 How is the BIA assured that the policies and standards are
being applied uniformly and facilities are properly accredited?
The tribes and BIA programs will use a phased approach to meeting
all non-mandatory detention standards and will document progress on
uniform reporting. The BIA Office of Law Enforcement Services will
conduct periodic operational evaluations for oversight.
Sec. 10.7 Where do I find help or receive technical assistance in
complying with the policies and standards?
The BIA has a trained Detention Specialist on the staff of the
Office of Law Enforcement Services, Albuquerque, New Mexico, who is
available to conduct evaluations and provide technical assistance or
guidance in all facets of Indian country detention programs.
Sec. 10.8 What minimum records must be kept and reports made at each
detention, Inmate Handbook, or holding facility in Indian country?
The Director, Office of Law Enforcement Services, BIA, will develop
all necessary requirements for maintaining records, reporting data, and
archiving information. These requirements will be published in 69 BIAM,
``Indian Country Detention Facilities and Programs.''
Sec. 10.9 If a person is detained or incarcerated in an Indian country
detention, Inmate Handbook, or holding facility, how would they know
what their rights, privileges, safety, protection and expected behavior
would be?
When an individual is incarcerated in an Indian country detention,
Inmate Handbook, or holding facility, he/she will be given, or in some
cases notified of the availability of, an Inmate
[[Page 34375]]
Handbook. This book of guidelines describes in detail the inmate's
rights, privileges, protection and safety, cleanliness and sanitation,
and general health and nutritional standards. The Inmate Handbook
describes the emergency evacuation procedures, medical, counseling,
rehabilitation services, visitation procedures, and other appropriate
information. The Inmate Handbook is published by the Director, Office
of Law Enforcement Services and maintained by the detention facility
administrator at each facility location.
Sec. 10.10 What happens if I believe my civil rights have been
violated while incarcerated in an Indian country detention or holding
facility?
All allegations of civil rights violations must be reported
immediately to the Internal Affairs Branch of the Office of Law
Enforcement Services. This office will ensure that such allegations are
immediately reported to the Civil Rights Division of the U.S.
Department of Justice through established procedures. The BIA Internal
Affairs Branch may also investigate alleged violations and make
recommendations for additional action as necessary. Detailed
instructions on the procedure to report violations can be found in the
Inmate Handbook.
Sec. 10.11 How would someone detained or incarcerated, or their
representative, get the BIA policies and standards?
At each detention, Inmate Handbook, or holding facility located in
a tribal jurisdiction where federal funds are used for operations or
maintenance programs, the BIA's policies, standards, and procedures
will be made available upon request. The Inmate Handbook will be made
available to all persons at the time they are incarcerated or detained
in a facility. There may be times when this may be delayed due to the
physical or mental condition of the person at time of incarceration. In
these cases, the Inmate Handbook will be made available when the person
is deemed receptive and cognizant by the detention officer in charge.
All policies, standards, procedures, and guidelines are available at
each facility to the public or by writing to the Director, Office of
Law Enforcement Services.
Dated: May 28, 1996.
Ada E. Deer,
Assistant Secretary--Indian Affairs.
[FR Doc. 96-16042 Filed 7-1-96; 8:45 am]
BILLING CODE 4310-02-P
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