3102 Federal Register / Vol. 60, No. 9 / Friday, January 13, 1995 / Rules and Regulations

16First R&O, 8 FCC Rcd at 3369 (citing 1992

Cable Act section (2)(b)(2)).

17 Id. at 3374.

18 47 U.S.C. 548(b); 47 CFR 76.1001.

19First R&O, 8 FCC Rcd at 3377.

20 Id. at 3373.

pleadings submitted in this proceeding

that non-cable exclusive contracts of the

type involved here are either harmful to

the development of competition,

‘‘unfair’’ or ‘‘deceptive,’’ or have

negative effects on consumers. The

record does not demonstrate that such

contracts will hinder the development

of DBS as an effective competitor to

cable; that USSB’s contracts with

Viacom and Time Warner have impeded

the entry either of DirecTV or NRTC

into the DBS marketplace; or that the

contracts generally have harmed the

entry of DBS service into the

multichannel video programming

marketplace. Indeed, the evidence

presented suggests that a DBS

distributor’s exclusive contract for

programming covering one orbital

location may foster DBS as a significant

competitor to cable. Such contracts may

allow a distributor to distinguish its

service from that of another, avoid

duplication of programming, and

eventually lead to more diversity in

programming for the consumer. To the

extent such contracts allow a greater

number of DBS distributors to establish

distinctive competing services, we

believe they further congressional

policy to ‘‘rely on the marketplace, to

the maximum extent feasible, to achieve

greater availability of the relevant

programming.’’ 16 In contrast to cable

exclusivity in areas unserved by cable,

which would foreclose services from

non-cable multichannel video

programming distributors, consumers

will be able to receive all DBS

programming from one DBS provider or

another by being able to select specific

programming services without having to

purchase entire programming packages.

We agree with Opponents that

prohibiting a DBS distributor’s

exclusive contract for programming

covering one orbital location may in fact

create unnecessary inefficiencies

because the same programming could

then occupy multiple transponders on

the same satellite and decrease the

diverse mix of programming available.

Without prejudging any future

complaints, we currently believe that

the record before us provides no basis

to conclude that the market power

abuses, about which Congress was

concerned, are present in the exclusive

contracts at issue here.

14. Our reaffirmation of our

interpretation of section 628(c)(2)(C)

does not foreclose all remedies to an

MVPD who claims to be aggrieved by an

exclusive contract between a non-cable

MVPD and a vertically integrated

satellite cable programming vendor. In

the First R&O, we previously

determined that while section 628(b)

does not specify types of ‘‘unfair’’

practices that are prohibited, it ‘‘is a

clear repository of Commission

jurisdiction to adopt additional rules or

to take additional action to accomplish

statutory objectives should additional

types of conduct emerge as barriers to

competition and obstacles to the broader

distribution of satellite cable and

broadcast programming.’’ 17 The

Commission did not sanction exclusive

contracts between non-cable MVPDs

and vertically integrated cable

programming vendors, thus leaving

open the possibility that such contracts

could be challenged on the basis that

they involve non-price discrimination

or ‘‘unfair practices.’’ Section 628(b) of

the 1992 Cable Act and the

Commission’s implementing rule,

§ 76.1001, provide a broad prohibition

against ‘‘unfair methods of competition

or unfair or deceptive acts or practices,

the purpose or effect of which is to

hinder significantly or to prevent any

multichannel video programming

distributor from providing satellite cable

programming or satellite broadcast

programming to subscribers or

consumers.’’ 18 Also in the First R&O,

the Commission stated that section

628(b) does not prescribe specific

practices (in contract to section 628(c)),

but does require a showing of anticompetitive harm, i.e., that the purpose

or effect of the complained of conduct

is to ‘‘hinder significantly or to prevent

an MVPD from providing programming

to subscribers or customers.’’ 19 The

Commission has stated that the

objectives of the ‘‘unfair practices’’

provision are to provide a mechanism

for addressing conduct, primarily

associated with horizontal and vertical

concentration within the cable and

satellite cable programming fields, that

inhibits the development of

multichannel video programming

distribution competition.20 Therefore,

where future contracts cause a

restriction in the availability of

programming to alternative distributors

and their subscribers, an aggrieved

MVPD could seek redress by filing an

‘‘unfair practices’’ complaint under

§ 76.1001 of the Commission’s rules.

15. Finally, we believe that using

§ 76.1001 as an avenue to address noncable exclusive contracts, such as those

at issue here, will afford the

Commission the opportunity to consider

all the ramifications of such contracts,

including the effect on competition,

based upon the particular facts of each

case. This case-by-case review will

avoid amending a Commission rule to

create an overly broad per se prohibition

appears to be contrary to Congress’

intent.

16. For the reasons discussed above,

we reaffirm our interpretation of section

628(c)(2)(C) as reflected in our

implementing rule. We believe that this

is the most reasonable interpretation

based on the fact that Congress

specifically directed the Commission to

prohibit exclusive contracts between

cable operators and vertically integrated

programming vendors in unserved

areas, but did not specifically address

the inclusion of exclusive contracts

between non-cable MVPDs and

vertically integrated programming

vendors within section 628(c)(2)(C)’s

prohibition. We believe that any

complaints regarding exclusive

agreements are more appropriately

addressed through other provisions of

the statute. Thus, the Commission

denies NRTC’s request.

IV. Ordering Clause

17. Accordingly, it is ordered, that the

Petition for Reconsideration of the

National Rural Telecommunications

Cooperative is denied.

List of Subjects in 47 CFR Part 76

Cable television.

Federal Communications Commission.

William F. Caton,

Acting Secretary.

[FR Doc. 95–894 Filed 1–12–95; 8:45 am]

BILLING CODE 6712–01–M

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Part 651

[Docket No. 950109008–5008–01; I.D.

122894A]

Northeast Multispecies Fishery;

Amendment to an Emergency Interim

Rule

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Emergency interim rule;

amendment.

SUMMARY: NMFS issues this emergency

interim rule to amend an existing

emergency interim rule concerning the

Northeast Multispecies Fishery. This
Federal Register / Vol. 60, No. 9 / Friday, January 13, 1995 / Rules and Regulations 3103

rule specifies among other things, that

allowable bycatch species have been

added to the exempted fisheries as

defined in the existing emergency

interim rule, that a bycatch fishery for

longhorn sculpin will be allowed in the

Northern Shrimp Exemption Area, and

that transitting through closed areas

established by the existing emergency

interim rule will be allowed for vessels

seeking safe haven.

EFFECTIVE DATE: January 10, 1995,

through March 12, 1995.

FOR FURTHER INFORMATION CONTACT:

Susan A. Murphy, NMFS, Fishery

Policy Analyst, 508–281–9252 or

Bridgette S. Davidson, NMFS, Fishery

Management Specialist, 508–281–9347.

SUPPLEMENTARY INFORMATION: The New

England Fishery Management Council

(Council) submitted Amendment 5 to

the Northeast Multispecies Fishery

Management Plan on

September 27, 1993. Amendment 5,

with some exceptions, was approved on

January 3, 1994. The final rule for

Amendment 5 was published, and

effective for the most part, on March 1,

1994 (59 FR 9872). On December 12,

1994, an emergency interim rule was

published (59 FR 63926), and became

effective. This action makes several

modifications or clarifications to the

December 12 emergency interim rule.

Section 651.20(a)(8) and (9) are

revised to clarify that transit is allowed

through the Stellwagen Bank/Jeffreys

Ledge (SB/JL) juvenile protection area, if

nets that are not of proper configuration

for trawling in this area are properly

stowed. Net stowage requirements at

§ 651.20(c)(7) are revised to incorporate

the SB/JL juvenile protection area

transit provision.

Provisions at § 651.21(d)(1)(ii) and

(d)(3)(ii) are modified to include, in

Closed Area I and the Nantucket

Lightship Closed Area, entry of vessels

seeking safe haven from storm

conditions. These sections are modified

due to safety concerns.

Section 651.21(d)(2)(ii) is revised to

include a reference to § 651.21(d)(1)(iii),

which will define the stowage provision

for scallop dredge gear. This definition

of a stowed scallop dredge is added due

to the inability of scallop dredge gear to

be stowed in compliance with the net

stowage requirements specified under

§ 651.21(c)(7).

Sections 651.20(a)(7)(i) and (iii) are

revised to clarify that in the Northern

Shrimp Exemption Area, a vessel

fishing for northern shrimp may direct

its fishing effort on northern shrimp

only and may not possess or retain any

other species with the exception of an

allowable bycatch of longhorn sculpin.

Sections 651.20(c)(6)(ii) and (d)(5)(ii)

are revised to specify additional bycatch

species allowed to be retained in the

exempted fisheries as defined by the

December 12 emergency interim rule.

The bycatch species allowed under this

amendment meet the same criteria as

those bycatch species allowed under the

December 12 emergency interim rule.

These species were not raised as

potential bycatch species in time to be

considered for the December 12

emergency interim rule. Specifically,

these species are caught incidentally to

the exempted fisheries as defined by the

December 12 emergency interim rule. It

is unlikely that there would be an

incentive to direct on these bycatch

species, or if a vessel did direct on

them, it is unlikely that they would

catch regulated multispecies. This

addition preserves the original intent of

the requirement without overly

burdening the industry or creating

unnecessary discards.

This action also adds scientific names

for the other allowable bycatch to help

in species identification.

All exempted small-mesh fisheries

and species which are caught

incidentally to them, are subject to any

applicable fishery management plans

and their implementing regulations

contained within Title 50, CFR.

Classification

This emergency interim rule amends

an existing emergency interim rule, for

the remainder of its short duration, for

safety considerations and to clarify an

exemption to the existing emergency

interim rule. Given the limited time of

these rules’ applicability and that these

modifications serve to refine and

broaden an existing exemption, prior

notice and opportunity for public

comment would be impracticable and

unnecessary. As such, good cause exists

to waive these requirements pursuant to

authority at 5 U.S.C. section 553(b)(B).

Further, because this emergency interim

rule relieves a regulatory restriction and

amends an existing rule for safety

concerns there is good cause under 5

U.S.C. sections 553(d)(1) and (3) to

waive the 30-day delay in effective date.

This action has been determined to be

‘‘not significant’’ for the purposes of

E.O. 12866.

List of Subjects in 50 CFR Part 651

Fisheries, Fishing, Reporting and

recordkeeping requirements.

Dated: January 10, 1995.

Charles Karnella,

Program Management Officer, National

Marine Fisheries Service.

For the reasons set out in the

preamble, 50 CFR part 651 is amended

as follows:

PART 651—NORTHEAST

MULTISPECIES FISHERY

1. The authority citation for part 651

continues to read as follows:

Authority: 16 U.S.C. 1801 et seq.

2. In § 651.9, paragraph (e)(36), which

was temporarily added at 59 FR 63929,

December 12, 1994, effective December

12, 1994, through March 12, 1995, is

temporarily revised, effective January

10, 1995, through March 12, 1995, to

read as follows. On March 12, 1995,

§ 651.9(e)(36) will expire.

§ 651.9 Prohibitions.

* * * * *

(e) * * *

(36) Fish with or possess within the

areas described in

§ 651.20(a)(1) nets of mesh smaller

than the minimum size specified in

§ 651.20(a)(6), unless the vessel is

exempted under § 651.20(a)(7), (a)(9), (e)

or (f), or unless the vessel qualifies for

the exception specified in paragraph

(e)(1)(ii) of this section.

* * * * *

3. In § 651.20, paragraphs (a)(7)(i),

(a)(7)(iii), (a)(8) introductory text, (a)(9),

(c)(6)(ii), (c)(7) introductory text, and

(d)(5)(ii), which were temporarily added

at 59 FR 63929, December 12, 1994,

effective December 12, 1994, through

March 12, 1995, are temporarily revised,

effective January 10, 1995, through

March 12, 1995, to read as follows. On

March 12, 1995, § 651.20(a)(7)(i),

(a)(7)(iii), (a)(8) introductory text, (a)(9),

(c)(6)(ii), (c)(7) introductory text and

(d)(5) will expire.

§ 651.20 Regulated mesh areas and

restrictions on gear and methods of fishing.

* * * * *

(a) * * *

(7) * * *

(i) Possession limit. A vessel fishing

under this exemption may not fish for,

possess on board or land any species of

fish other than shrimp. However,

vessels may retain longhorn sculpin

(Myoxocephalus octodecimspinosus) as

an allowable bycatch species in the

Northern Shrimp Exemption Area as

described in this section.

* * * * *

(iii) A vessel may only fish for or

harvest northern shrimp, with the

exception that a vessel may retain

longhorn sculpin as an allowable

bycatch species, during the northern
3104 Federal Register / Vol. 60, No. 9 / Friday, January 13, 1995 / Rules and Regulations

shrimp season, as established by the

Atlantic States Marine Fisheries

Commission (ASMFC). The northern

shrimp season is December 1 through

May 30, or as modified by the ASMFC.

(8) Stellwagen Bank/Jeffreys Ledge

(SB/JL) juvenile protection area. Except

as provided in paragraphs (a)(7), (a)(9),

(e) and (f) of this section, the minimum

mesh size for any trawl net or Scottish

seine in use, or available for use as

described under paragraph (c)(7) of this

section, by a vessel fishing in the

following area shall be 6 inches (15.24

cm) square mesh in the last 50 bars of

the codend and extension piece for

vessels 45 ft (13.7 m) and less, and in

the last 100 bars of the codend and

extension piece for vessels greater than

45 ft (13.7 m).

* * * * *

(9) Transitting. (i) Vessels subject to

the mesh requirements specified in

paragraph (a)(6) of this section may

transit through the Northern Shrimp

Exemption Area defined in paragraph

(a)(7) of this section with nets on board

with mesh smaller than the minimum

size specified in paragraph (a)(6) of this

section, provided that the nets are

stowed in accordance with the

provisions of paragraph (c)(7) of this

section, and provided the vessel has no

fish on board; and

(ii) Vessels subject to the mesh

requirements specified in paragraph

(a)(6) of this section may transit through

the SB/JL juvenile protection area

defined in paragraph (a)(8) of this

section with nets on board that do not

conform to the requirements specified

in paragraphs (a)(6) or (a)(8) of this

section, provided that the nets are

stowed in accordance with the

provisions of paragraph (c)(7) of this

section.

* * * * *

(c) * * *

(6) * * *

(ii) Possession and net stowage

requirements. Vessels may possess

regulated species while in possession of

nets with mesh less than the minimum

size specified in paragraph (c)(5) of this

section, provided that the nets are

stowed and are not available for

immediate use in accordance with

paragraph (c)(7) of this section, and

provided that regulated species were not

harvested by nets of mesh size smaller

than the minimum mesh size specified

in paragraph (c)(5) of this section.

Vessels may only fish for, or retain,

butterfish, dogfish, herring, mackerel,

ocean pout, scup, shrimp, Loligo squid,

Illex squid, summer flounder, whiting

and/or weakfish, while fishing with nets

of mesh smaller than the minimum size

specified in paragraph (c)(5) of this

section. Vessels fishing for these species

under the exemption provided herein

may also possess and retain the

following species as incidental take to

these exempted fisheries: Conger eels

(Conger oceanicus); searobins (species

in the family Triglidae); black sea bass

(Centropristis striata); red hake; tautog

(blackfish)(Tautoga onitis); blowfish

(puffer)(species in the family

Tetraodontidae); cunner (Tautogolabrus

adspersus); John Dory (Zenopsis

conchifera); mullet (species in the

family Mugilidae); bluefish (Pomatomus

saltatrix); tilefish (Lopholatilus

chamaeleonticeps); longhorn sculpin

(Myoxocephalus octodecimspinosus);

fourspot flounder (Paralichthys

oblongus); alewife (Alosa

pseudoharengus); hickory shad (Alosa

mediocris); American shad (Alosa

sapidissima); blueback herring (Alosa

aestivalis); sea ravens (Hemitripterus

americanus); Atlantic croaker

(Micropogonias undulatus); spot

(Leiostomus xanthurus); and swordfish

(Xiphias gladius).

(7) Net stowage requirements. Any

person on a fishing vessel or any fishing

vessel subject to the net stowage or

transitting requirements of this section

may not have available for immediate

use any net not meeting the regulated

mesh requirements as specified in

paragraphs (a)(7), (a)(8), (c)(5), and (d)(4)

of this section and, as applicable, in the

areas and for the times specified in

§ 651.32(c). A net that conforms to one

of the following specifications and that

can be shown not to have been in recent

use is considered to be not ‘‘available

for immediate use:’’

* * * * *

(d) * * *

(5) * * *

(ii) Possession and net stowage

requirements. Vessels may possess

regulated species while in possession of

nets with mesh less than the minimum

size specified in paragraph (d)(4) of this

section, provided that the nets are

stowed and are not available for

immediate use in accordance with

paragraph (c)(7) of this section, and

provided that regulated species were not

harvested by nets of mesh size smaller

than the minimum mesh size specified

in paragraph (d)(4) of this section.

Vessels may only fish for, or retain,

butterfish, dogfish, herring, mackerel,

ocean pout, scup, shrimp, Loligo squid,

Illex squid, summer flounder, whiting

weakfish, and/or scallops while fishing

with nets of mesh smaller than the

minimum size specified in paragraph

(d)(4) of this section. Vessels fishing for

these species under the exemption

provided herein may also possess and

retain the following species as

incidental take to these exempted

fisheries: Conger eels (Conger

oceanicus); searobins (species in the

family Triglidae); black sea bass

(Centropristis striata); red hake; tautog

(blackfish)(Tautoga onitis); blowfish

(puffer)(species in the family

Tetraodontidae); cunner (Tautogolabrus

adspersus); John Dory (Zenopsis

conchifera); mullet (species in the

family Mugilidae); bluefish (Pomatomus

saltatrix); tilefish (Lopholatilus

chamaeleonticeps); longhorn sculpin

(Myoxocephalus octodecimspinosus);

fourspot flounder (Paralichthys

oblongus); alewife (Alosa

pseudoharengus); hickory shad (Alosa

mediocris); American shad (Alosa

sapidissima); blueback herring (Alosa

aestivalis); sea ravens (Hemitripterus

americanus); Atlantic croaker

(Micropogonias undulatus); spot

(Leiostomus xanthurus); swordfish

(Xiphias gladius); and skate (species in

the family Rajidae).

* * * * *

4. In § 651.21, paragraphs (d)(1)(ii)

and (d)(2)(ii)(B), which were

temporarily added at 59 FR 63932,

December 12, 1994, effective December

12, 1994, through March 12, 1995, are

temporarily revised, and paragraphs

(d)(1)(iii) and (d)(3)(ii)(C) are

temporarily added, effective January 10,

1995, through March 12, 1995, to read

as follows. On March 12, 1995,

§ 651.21(d)(1)(ii), (d)(1)(iii), (d)(2)(ii)(B)

and (d)(3)(ii)(C) will expire.

§ 651.21 Closed areas.

* * * * *

(d) * * *

(1) * * *

(ii) Paragraph (d)(1)(i) of this section

does not apply to persons on fishing

vessels or fishing vessels:

(A) Fishing with or using pot gear

designed and used to take lobsters, and

which have no other gear on board

capable of catching multispecies finfish;

(B) Seeking safe haven from storm

conditions. Such fishing vessels may

transit through the closed area

providing that:

(1) Gale, storm, or hurricane

conditions are posted for the area by the

National Weather Service;

(2) Such vessels do not fish in the

area;

(3) Fishing net gear is stowed in

accordance with

§ 651.20(c)(7) and scallop dredge gear

is stowed in accordance with paragraph

(d)(1)(iii) of this section; and

(4) The vessel provides notice to a

patrolling U.S. Coast Guard aircraft or
Federal Register / Vol. 60, No. 9 / Friday, January 13, 1995 / Rules and Regulations 3105

vessel in the vicinity of Georges Bank by

high frequency radio (2.182 kHz) of its

intention of transitting the closed area,

the time and position when the vessel

enters the area and the time and

position when the vessel exits the

closed area.

(iii) Scallop dredge vessels transitting

the closed areas as specified under

paragraphs (d)(1), (2), and (3) of this

section may not have fishing gear

available for immediate use and must

detach the towing wire from the scallop

dredge, reel the wire up onto the winch,

and secure and cover the dredge so that

it is rendered unusable for fishing.

(2) * * *

(ii) * * *

(B) Seeking safe haven from storm

conditions in waters adjacent to the

western edge of the closed area. Such

fishing vessels may transit through the

closed area in accordance with

paragraph (d)(1)(ii)(B) of this section.

(3) * * *

(ii) * * *

(C) Seeking safe haven from storm

conditions. Such fishing vessels may

transit through the closed area in

accordance with paragraph (d)(1)(ii)(B)

of this section.

[FR Doc. 95–927 Filed 1–10–95; 3:13 pm]

BILLING CODE 3510–22–F