        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 660
        [Docket No. 181218999-9208-01]
        RIN 0648-BI67
        Magnuson-Stevens Act Provisions; Fisheries Off West Coast States; Pacific Coast Groundfish Fishery; 2019 Tribal Fishery for Pacific Whiting

          AGENCY:
          National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

          ACTION:
          Proposed rule; request for comments.

          SUMMARY:

          NMFS issues this proposed rule for the 2019 Pacific whiting fishery under the authority of the Pacific Coast Groundfish Fishery Management Plan, the Magnuson-Stevens Fishery Conservation and Management Act, and the Pacific Whiting Act of 2006. This proposed rule would allocate 17.5 percent of the U.S. Total Allowable Catch of Pacific whiting for 2019 to Pacific Coast Indian tribes that have a treaty right to harvest groundfish. It would also amend the provisions regarding reapportionment of the treaty tribes' whiting allocation to the non-treaty sectors to require that NMFS consider the level of Chinook salmon bycatch when determining whether to reapportion whiting. This rule is necessary to manage the Pacific whiting stock to Optimal Yield, ensure that the Pacific Coast Groundfish Fishery Management Plan (FMP) is implemented in a manner consistent with treaty rights of four treaty tribes to fish for Pacific whiting in their “usual and accustomed grounds and stations” in common with non-tribal citizens, and to protect salmon stocks listed under the Endangered Species Act.

          DATES:
          Comments on this proposed rule must be received no later than April 1, 2019.

          ADDRESSES:
          You may submit comments on this document, identified by NOAA-NMFS-2019-0001 by any of the following methods:
          • Electronic Submission: Submit all electronic public comments via the Federal eRulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2019-0001 click the “Comment Now!” icon, complete the required fields, and enter or attach your comments.
          • Mail: Aja Szumylo, Sustainable Fisheries Division, West Coast Region, NMFS, 7600 Sand Point Way NE, Seattle, WA 98115-0070.

            Instructions: Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered by NMFS. All comments received are part of the public record and will generally be posted for public viewing on www.regulations.gov without change. All personal identifying information (e.g., name, address, etc.), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. NMFS will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous).

          FOR FURTHER INFORMATION CONTACT:
          Miako Ushio, phone: 206-526-4644, and email: Miako.Ushio@noaa.gov.

        SUPPLEMENTARY INFORMATION:
        Electronic Access

        This proposed rule is accessible via the internet at the Office of the Federal Register website at https://www.federalregister.gov. Background information and documents are available at the NMFS West Coast Region website at http://www.westcoast.fisheries.noaa.gov/fisheries/management/whiting/pacific_whiting.html and at the Pacific Fishery Management Council's website at http://www.pcouncil.org/.
        Background: Tribal Allocations
        The regulations at 50 CFR 660.50(d) outline the procedures for implementing the treaty rights that Pacific Coast treaty Indian tribes have to harvest groundfish in their usual and accustomed fishing areas in U.S. waters. Tribes with treaty fishing rights in the area covered by the Pacific Coast Groundfish FMP request allocations, set-asides, or regulations specific to the tribes during the Pacific Fishery Management Council's (Council) biennial harvest specifications and management measures process. The regulations state that the Secretary will develop tribal allocations and regulations in consultation with the affected tribe(s) and, insofar as possible, with tribal consensus.
        Since the FMP has been in place, NMFS has allocated a portion of the U.S. Total Allowable Catch (TAC)of Pacific whiting to the tribal fishery, following the process established in 50 CFR 660.50(d). The tribal allocation is subtracted from the U.S. Pacific whiting TAC before allocation to the non-tribal sectors.
        There are four tribes that can participate in the tribal Pacific whiting fishery: The Hoh Tribe, the Makah Tribe, the Quileute Tribe, and the Quinault Indian Nation (collectively, the “Treaty Tribes”). Tribal allocations have been based on discussions with the Tribes regarding their intent for those fishing years. The Hoh Tribe has not expressed an interest in participating to date. The Quileute Tribe and Quinault Indian Nation have expressed interest in beginning to participate in the Pacific whiting fishery at a future date. To date, only the Makah Tribe has prosecuted a tribal fishery for Pacific whiting, and has harvested Pacific whiting since 1996 using midwater trawl gear. Table 1 below provides a history of U.S. TACs and annual tribal allocation in metric tons (mt).

          Table 1—U.S. Total Allowable Catch and Annual Tribal Allocation in Metric Tons (mt)

            Year
            U.S. TAC 1
              (mt)

            Tribal allocation
              (mt)

            2007
            242,591
            35,000

            2008
            269,545
            35,000

            2009
            135,939
            50,000

            2010
            193,935
            49,939

            2011
            290,903
            66,908

            2012
            186,037
            48,556

            2013
            269,745
            63,205

            2014
            316,206
            55,336

            2015
            325,072
            56,888

            2016
            367,553
            64,322

            2017
            441,433
            77,251

            2018
            441,433
            77,251

            1 Beginning in 2012, the United States started using the term Total Allowable Catch, or TAC, based on the Agreement between the Government of the United States of America and the Government of Canada on Pacific Hake/Whiting. Prior to 2012, the terms Optimal Yield (OY) and Annual Catch Limit (ACL) were used.

        In 2009, NMFS, the states of Washington and Oregon, and the Treaty Tribes started a process to determine the long-term tribal allocation for Pacific whiting. However, these groups have not yet determined a long-term allocation. In order to ensure Treaty Tribes continue to receive allocations, this rule proposes the 2019 tribal allocation of Pacific whiting. This is an interim allocation not intended to set precedent for future allocations.
        Tribal Allocation for 2019
        In exchanges between NMFS and the Treaty Tribes during September 2018, the Makah Tribe indicated their intent to participate in the tribal Pacific whiting fishery in 2019 and requested 17.5 percent of the U.S. TAC. The Quinault Indian Nation and Quileute Indian Tribe both informed NMFS in December 2018 that they will not participate in the 2019 fishery. The Hoh Indian Tribe has in previous years indicated in conversations with NMFS that they have no plans to fish for whiting in the foreseeable future and will contact NMFS if that changes. NMFS will contact the Tribes during the proposed rule comment period to refine the 2019 allocation before allocating the final U.S. TAC between the tribal and non-tribal whiting fisheries. NMFS proposes a tribal allocation that accommodates the Makah Tribe's request, specifically 17.5 percent of the U.S. TAC. NMFS has determined that the current scientific information regarding the distribution and abundance of the coastal Pacific whiting stock indicates the 17.5 percent is within the range of the tribal treaty right to Pacific whiting.

        The Joint Management Committee, which was established pursuant to the Agreement between the United States and Canada on Pacific Hake/Whiting (the Agreement), is anticipated to recommend the coastwide and corresponding U.S./Canada TACs no later than March 25, 2019. The U.S. TAC is 73.88 percent of the coastwide TAC. Until this TAC is set, NMFS cannot propose a specific amount for the tribal allocation. The Pacific whiting fishery typically begins on May 15, and we expect to publish the final rule to set Pacific whiting specifications for 2019 by early May. Therefore, to allow for public input on the tribal allocation, NMFS is issuing this proposed rule without the final 2019 TAC.
        To provide a basis for public input, NMFS is describing a range of potential tribal allocations in this proposed rule. We applied the proposed tribal allocation of 17.5 percent to the range of U.S. TACs over the last 10 years, 2009 through 2018 (plus or minus 25 percent to capture variability in stock abundance). The range of U.S. TACs in that time period was 135,939 mt (2009) to 441,433 mt (2017 and 2018). Applying the 25 percent variability results in a range of potential TACs of 101,954 mt to 551,791 mt for 2019. Using the proposed tribal allocation of 17.5 percent, the potential range of the tribal allocations for 2019 would between 17,842 mt and 96,563 mt.
        Consideration of Chinook Salmon Bycatch Before Reapportioning Tribal Whiting

        Chinook salmon, including some listed as threatened under the Endangered Species Act (ESA), are caught as bycatch in the Pacific whiting fishery. The potential effects of this has been considered numerous times in NMFS' ESA section 7(a)(2) biological opinions. Most recently, on December 11, 2017, NMFS completed an ESA section 7(a)(2) biological opinion on the effects of the Pacific Coast Groundfish FMP (which manages 90+ species, including Pacific whiting) on salmonids. Term and Condition 2c of the biological opinion states: No later than May 15th, 2019, NMFS will amend the provisions regarding reapportionment of the treaty tribes' whiting allocation to the non-treaty sectors to require that NMFS consider the level of Chinook bycatch when determining whether to reapportion whiting. This proposed rule would amend the Pacific Coast Groundfish fishery regulations to require this consideration. The purpose of this action is twofold. First, the regulatory changes would minimize impacts to Chinook salmon from the whiting fishery. Reapportioning whiting that would not otherwise be used allows the non-tribal whiting fishery to continue fishing, thereby potentially impacting Chinook salmon, which occurs as bycatch in that fishery. The second purpose is to protect the treaty rights of the tribes, by preventing a reapportionment of Pacific whiting that could cause the entire whiting fishery to close via automatic action measures outlined at § 660.60(d)(v), thereby limiting the tribal whiting fishery's opportunity to harvest their allocation.
        Many factors could potentially be considered when determining a reapportionment's effect on listed Chinook salmon, including the status of Chinook salmon stocks caught in the whiting fishery, and location of the bycatch. However, the inseason data available about these factors is limited. In this action, NMFS proposes to require consideration of Chinook salmon bycatch rates and numbers prior to reapportioning tribal whiting. This consideration is required by NMFS' ESA and tribal obligations. NMFS requests comments on this approach.

        This proposed rule would be implemented under authority of section 305(d) of the Magnuson-Stevens Act. With this proposed rule, NMFS, acting on behalf of the Secretary, would ensure that the FMP is implemented in a manner consistent with treaty rights of four Treaty Tribes to fish in their “usual and accustomed grounds and stations” in common with non-tribal citizens. United States v. Washington, 384 F. Supp. 313 (W.D. 1974).
        NMFS notes that the public comment period for this proposed rule is 15 days. As a result of delays in this rulemaking related to the recent lapse in appropriations and the requirements to amend reallocation provisions and announce Pacific whiting harvest guidelines by the Pacific whiting season start date, May 15th, NMFS has determined that a 15-day comment period best balances the interest in allowing the public adequate time to comment on the proposed measures while implementing the management measures and announcing the Pacific whiting allocations by May 15th.
        Classification
        NMFS has preliminarily determined that the management measures for the 2019 Pacific whiting tribal fishery are consistent with the national standards of the Magnuson-Stevens Act and other applicable laws. In making the final determination, NMFS will take into account the data, views, and comments received during the comment period.
        The Office of Management and Budget has determined that this proposed rule is not significant for purposes of Executive Order 12866.
        As required by section 603 of the Regulatory Flexibility Act (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was prepared. The IRFA describes the economic impact this proposed rule, if adopted, would have on small entities. A summary of the analysis follows. A copy of this analysis is available from NMFS.
        Under the RFA, the term “small entities” includes small businesses, small organizations, and small governmental jurisdictions. The Small Business Administration has established size criteria for entities involved in the fishing industry that qualify as small businesses. A business involved in fish harvesting is a small business if it is independently owned and operated and not dominant in its field of operation (including its affiliates) and if it has combined annual receipts, not in excess of $11 million for all its affiliated operations worldwide (see 80 FR 81194, December 29, 2015). A wholesale business servicing the fishing industry is a small business if it employs 100 or fewer persons on a full time, part time, temporary, or other basis, at all its affiliated operations worldwide. A seafood processor is a small business if it is independently owned and operated, not dominant in its field of operation, and employs 750 or fewer persons on a full time, part time, temporary, or other basis, at all its affiliated operations worldwide. For purposes of rulemaking, NMFS is also applying the seafood processor standard to catcher processors because Pacific whiting Catcher-Processors (C/Ps) earn the majority of the revenue from processed seafood product.
        This proposed rule would affect how Pacific whiting is allocated to the following sectors/programs: Tribal, Shorebased Individual Fishing Quota (IFQ) Program Trawl Fishery, Mothership (MS) Coop Program—Whiting At-sea Trawl Fishery, and C/P Coop Program—Whiting At-sea Trawl Fishery. The amount of Pacific whiting allocated to these sectors is based on the U.S. TAC.

        We expect one tribal entity to fish in 2019. Tribes are not considered small entities for the purposes of RFA. Impacts to tribes are nevertheless considered in this analysis. As of January 2019, the Shorebased IFQ Program is composed of 174 Quota Share permits/accounts (136 of which were allocated whiting quota pounds), 128 vessel accounts (57 of which have received an initial transfer of whiting quota pounds) and 42 first receivers, three of which are designated as whiting-only receivers and 11 that may receive both whiting and non-whiting. These regulations also directly affect participants in the MS Coop Program, a general term to describe the limited access program that applies to eligible harvesters and processors in the MS sector of the Pacific whiting at-sea trawl fishery. This program currently consists of six MS processor permits, and a catcher vessel fleet currently composed of a single coop, with 34 Mothership/Catcher Vessel (MS/CV) endorsed permits (with three permits each having two catch history assignments). These regulations also directly affect the C/P Coop Program, composed of 10 C/P endorsed permits owned by three companies that have formed a single coop. These co-ops are considered large entities from several perspectives; they have participants that are large entities, and have in total more than 750 employees worldwide including affiliates. Although there are three non-tribal sectors, many companies participate in two sectors and some participate in all three sectors. As part of the permit application processes for the non-tribal fisheries, based on a review of the Small Business Administration size criteria, permit applicants are asked if they considered themselves a “small” business, and they are asked to provide detailed ownership information. Data on employment worldwide, including affiliates, are not available for these companies, which generally operate in Alaska as well as the West Coast and may have operations in other countries as well. NMFS has limited entry permit holders self-report size status. For 2019, all ten CP permits reported they are not small businesses, as did nine mothership catcher vessels and one shorebased catcher vessel. After accounting for cross participation, multiple QS account holders, and affiliation through ownership, NMFS estimates that there are 103 non-tribal entities directly affected by these proposed regulations, 89 of which are considered “small” businesses.
        This rule will allocate fish between tribal and non-tribal harvesters (a mixture of small and large businesses). Tribal fisheries consist of a mixture of fishing activities that are similar to the activities that non-tribal fisheries undertake. Tribal harvests may be delivered to both shoreside plants and motherships for processing. These processing facilities also process fish harvested by non-tribal fisheries. The effect of the tribal allocation on non-tribal fisheries will depend on the level of tribal harvests relative to their allocation and the reapportionment process. If the tribes do not harvest their entire allocation, there are opportunities during the year to reapportion unharvested tribal amounts to the non-tribal fleets. For example, in 2018 NMFS reapportioned 40,000 mt of the original 77,251 mt tribal allocation. This reapportionment was based on conversations with the tribes and the best information available at the time, which indicated that this amount would not limit tribal harvest opportunities for the remainder of the year. The reapportioning process allows unharvested tribal allocations of Pacific whiting to be fished by the non-tribal fleets, benefitting both large and small entities. The revised Pacific whiting allocations for 2018 following the reapportionment were: Tribal 37,251 mt, C/P Coop 136,912 mt; MS Coop 96,644 mt; and Shorebased IFQ Program 169,127 mt.
        The prices for Pacific whiting are largely determined by the world market because most of the Pacific whiting harvested in the U.S. is exported. The U.S. Pacific whiting TAC is highly variable, as have subsequent harvests and ex-vessel revenues. For the years 2014 to 2018, the total Pacific whiting fishery (tribal and non-tribal) averaged harvests of approximately 267,400 mt annually. The 2018 U.S. non-tribal fishery had a catch of almost 318,000 mt, and the tribal fishery landed approximately 6,000 mt.
        Impacts to Makah catcher vessels who elect to participate in the tribal fishery are measured with an estimate of ex-vessel revenue. In lieu of more complete information on tribal deliveries, total ex-vessel revenue is estimated with the 2018 average shoreside ex-vessel price of Pacific whiting, which was $165 per mt. At that price, the proposed 2019 tribal allocation (potentially 17,842-96,563 mt) would have an ex-vessel value between $2.9 million and $15.9 million.
        NMFS considered two alternatives for this action: The “No-Action” and the “Proposed Action.” NMFS did not consider a broader range of alternatives to the proposed allocation. The tribal allocation is based primarily on the requests of the tribes. These requests reflect the level of participation in the fishery that will allow them to exercise their treaty right to fish for Pacific whiting. Under the Proposed Action alternative, NMFS proposes to set the tribal allocation percentage at 17.5 percent, as requested by the Tribes. This would yield a tribal allocation of between 17,842 and 96,563 mt for 2019. Consideration of a percentage lower than the tribal request of 17.5 percent is not appropriate in this instance. As a matter of policy, NMFS has historically supported the harvest levels requested by the Tribes. Based on the information available to NMFS, the tribal request is within their tribal treaty rights. A higher percentage would arguably also be within the scope of the treaty right. However, a higher percentage would unnecessarily limit the non-tribal fishery.
        Under the no-action alternative, NMFS would not make an allocation to the tribal sector. This alternative was considered, but the regulatory framework provides for a tribal allocation on an annual basis only. Therefore, the no-action alternative would result in no allocation of Pacific whiting to the tribal sector in 2019, which would be inconsistent with NMFS' responsibility to manage the fishery consistent with the tribes' treaty rights. Given that there is a tribal request for allocation in 2019, this alternative received no further consideration.
        While the reapportionment consideration of Chinook bycatch may negatively impact both large and small entities in the event of a high bycatch year, there are no alternatives identified that would be consistent with the applicable ESA statute that would also minimize any significant economic impact of the proposed rule on small entities.

        NMFS believes this proposed rule would not adversely affect small entities. The reapportioning process allows unharvested tribal allocations of Pacific whiting, fished by small entities, to be fished by the non-tribal fleets, benefitting both large and small entities. NMFS has prepared an IRFA and is requesting comments on this conclusion. See ADDRESSES.
        There are no reporting, recordkeeping or other compliance requirements in the proposed rule.
        No Federal rules have been identified that duplicate, overlap, or conflict with this action.
        Pursuant to Executive Order 13175, this proposed rule was developed after meaningful consultation and collaboration with tribal officials from the area covered by the FMP. Consistent with the Magnuson-Stevens Act at 16 U.S.C. 1852(b)(5), one of the voting members of the Pacific Fishery Management Council is a representative of an Indian tribe with federally recognized fishing rights from the area of the Council's jurisdiction. In addition, NMFS has coordinated specifically with the tribes interested in the Pacific whiting fishery regarding the issues addressed by this rule.

          List of Subjects in 50 CFR Part 660
          Fisheries, Fishing, Indian Fisheries.

          Dated: March 11, 2019.
          Chris Oliver,
          Assistant Administrator for Fisheries, National Marine Fisheries Service.

        For the reasons set out in the preamble, 50 CFR part 660 is proposed to be amended as follows:

          PART 660—FISHERIES OFF WEST COAST STATES

        1. The authority citation for part 660 continues to read as follows:

          Authority:
           16 U.S.C. 1801 et seq. and 16 U.S.C. 773 et seq., and 16 U.S.C. 7001 et seq.

        2. In § 660.50, revise paragraph (f)(4) to read as follows:

          § 660.50
          Pacific Coast treaty Indian fisheries.

          (f) * * *
          (4) Pacific whiting. The tribal allocation for 2019 will be 17.5 percent of the U.S. TAC.

        3. Amend § 660.131 by revising paragraph (h)(4) and adding (h)(5) to read as follows:

          § 660.131
          Pacific whiting fishery management measures.

          (h) * * *
          (4) Estimates of the portion of the tribal allocation that will not be used by the end of the fishing year will be based on the best information available to the Regional Administrator.
          (i) Salmon bycatch. This fishery may be closed through automatic action at § 660.60(d)(1)(v) and (vi).
          (ii) [Reserved]
          (5) Prior to reapportionment, NMFS will consider Chinook salmon take numbers and bycatch rates in each sector of the Pacific whiting fishery, in order to prevent a reapportionment that would limit Pacific Coast treaty Indian Tribes' access to the tribal allocation by triggering inseason closure of the Pacific whiting fishery as described at § 660.60(d)(1)(v).

      [FR Doc. 2019-04785 Filed 3-14-19; 8:45 am]
      BILLING CODE 3510-22-P


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 660
        [I.D. 101003B]
        Pelagic Fisheries Managed Under the Fishery Management Plan, Pelagic Fisheries of the Western Pacific Region

          AGENCY:
          National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

          ACTION:
          Notice of Intent to prepare a Supplemental Environmental Impact Statement (SEIS); notice of scoping meetings; request for written comments.

          SUMMARY:
          The NMFS and the Western Pacific Fishery Management Council, (Council), announce their intent to prepare an SEIS in accordance with the National Environmental Policy Act of 1969 (NEPA) on the Federal management of pelagic fishery resources in the waters of the United States exclusive economic zone, (EEZ), around the State of Hawaii, the territories of American Samoa and Guam, the Commonwealth of the Northern Mariana Islands (CNMI) and several western Pacific remote islands and atolls under direct Federal jurisdiction.
          The NMFS will convene public scoping meetings to solicit comments on pelagic fishery issues and potential management options related to those issues.  The scope of the EIS analysis will include, among other things, interactions of fisheries managed under the Fishery Management Plan for Pelagic Fisheries of the Western Pacific Region (Pelagics FMP).
          The scoping meetings will provide for public input on the issues, range of alternatives, and impacts the SEIS should consider.  Written comments will also be accepted concerning the various management options the SEIS should consider.

          DATES:
          See SUPPLEMENTARY INFORMATION for specific dates, times, and locations of the meetings.

          ADDRESSES:
          Written comments on the issues, priorities, range of alternatives, and impacts that should be discussed in the SEIS may be sent to Sam Pooley, Acting Regional Administrator, NMFS, Pacific Islands Regional Office, 1601 Kapiolani Blvd., Suite 1110, Honolulu, HI 96814.  Comments may be sent via facsimile (fax) at 808-973-2941 and must be received by December 15, 2003.

          FOR FURTHER INFORMATION CONTACT:
          Alvin Katekaru, NMFS, 808-973-2937.

        SUPPLEMENTARY INFORMATION:

        Under the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1801 et seq.), the United States has exclusive management authority over all living marine resources found within the EEZ.  The management of these marine resources with the exception of sea birds and some marine mammals, is vested in the Secretary of Commerce (Secretary).  Eight Regional Fishery Management Councils prepare fishery management plans for approval and implementation by the Secretary.  The Council has the responsibility to prepare fishery management plans for fishery resources in the EEZ of the Western Pacific Region.  NEPA requires preparation of an EIS for major Federal actions significantly impacting the quality of the human environment.
        The pelagics fishery resources that occur in the EEZ waters of the Western Pacific Region, have been managed under the Pelagics FMP and its amendments since 1986.  Managed resources include both marketable, (primarily billfish and tunas), and non-marketable, (primarily sharks), species.  Fisheries managed include pelagic longline, troll, handline, pole-and-line (bait boat), and charter boat fisheries. Management measures employed include gear restrictions, vessel size limitations, time and area closures, access limitations and other measures.

        The largest fishery managed under this plan is the Hawaii-based, limited-access pelagic longline fishery.  Emergency regulations imposed on this fishery in 2001, and subsequent final regulations promulgated in 2002 eliminated the “shallow set” component of this fishery that targeted swordfish.  The remaining component of this fishery is a “deep set” tuna-targeting fishery.  On August 31, 2003, a Memorandum Opinion issued in Hawaii Longline Assoc. v. NMFS, (D. D.C., Civ No. 01-765), invalidated the June 12, 2002 (67 FR 40232), final regulations as well as the November 15, 2002, Biological Opinion for Pelagic Fisheries of the Western Pacific and the associated incidental take statement.  This had the immediate effect of leaving the Pelagics FMP in place without restrictions that NMFS had concluded in March 2001 were necessary to eliminate the likelihood that fishing pursuant to the Pelagics FMP would jeopardize the continued existence of species listed under the Endangered Species Act (ESA).  To avoid this disruption, on October 6, 2003, the Court postponed the effectiveness of its action until April 1, 2004, to allow the agency to take appropriate action.  Consequently, NMFS and the Council are considering fishery management measures to comply with ESA requirements for sea turtle protection.  During the week of October 20, 2003, the Council is expected to consider longer-term proposals for the fishery.
        The regulatory situation is thus subject to change.  Additionally, recent research has identified practical measures (e.g., bait-setting chute; side-setting operations) that have significant potential for reducing interactions of the longline fleet with seabirds.  As a consequence, it is now appropriate to re-examine in an SEIS the management measures imposed to minimize interactions between the Hawaii-based longline fishery and protected species.  Also, since publication of the EIS for the Pelagics FMP, issues associated with marlins (billfish) and fish aggregating devices have surfaced, and a new industrial-scale squid fishery has emerged in Hawaii.  The environmental impacts and need for management to address these matters are currently unknown.  These issues will also be examined in the SEIS.
        Comments and public input on any and all aspects of Pelagics FMP management are solicited and will be accepted during scoping.  Input is especially sought on priorities to apply in addressing management issues and initiatives.  The agency anticipates that certain measures will require expedited treatment.  Others may be addressed on a longer timetable.
        Public Involvement
        Public scoping is an early and open process for determining the scope of issues to be addressed.  A principle objective of the scoping and public involvement process is to identify a reasonable range of management alternatives that, with adequate analysis, will delineate critical issues and provide a clear basis for distinguishing between those alternatives and selecting a preferred alternative.
        Alternatives

        Scoping is being conducted to establish a reasonable range of alternatives, which may include modification of the current management regimes for the Hawaii-based longline fishery including, but not limited to, gear restrictions and requirements, time and area closures, limited access permits and reporting requirements, and catch limits; inclusion of certain squid species as Management Unit Species under the Pelagics FMP; and imposition on the squid fishery of management measures including, but not limited to, observer coverage and reporting requirements.  In addition to developing possible alternatives, the scoping meetings will serve to identify and eliminate the issues which are not significant or which have been covered by prior environmental review.
        Dates, Times, and Locations for Public Scoping Meetings
        1. Tuesday, October 21, 2003, at 6 p.m. at  Fisherman's Wharf Restaurant, 1009 Ala Moana Blvd. Honolulu, HI;
        2. Monday, October 27, 2003, at 7 p.m. at the Chiefess Kamakahelei Middle School, 4431 Nuhou St., Lihue, Kauai, HI;
        3. Tuesday, October 28, 2003, at 7 p.m. at the Maui Beach Hotel, 170 Kaahumanu Ave., Kahului, Maui, HI;
        4. Thursday, October 30, 2003, at 7 p.m. at the King Kamehameha Hotel, 75-5660 Palani Rd., Kailua-Kona, HI;
        5. Thursday, November 6, 2003, at 7 p.m. at the Department of Marine Resources and Wildlife Conference Room, Dockside, Pago Pago Harbor, American Samoa;
        6. Wednesday, December 3, 2003, 7 p.m. at the Pedro P. Tenorio Multipurpose Bldg., Susupe, Saipan, CNMI;
        7. December 4, 2003, 7 p.m. at the Guam Fisherman's Cooperative, Lot 12 section 4, Greg D. Perez Marina, Hagatna, Guam.
        Special Accommodations
        These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Alvin Katekaru, 808-973-2937 (voice) or 808-973-2941(fax), at least five days prior to the meeting date.

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

          Dated:  October 10, 2003.
          Bruce C. Morehead,
          Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.

      [FR Doc. 03-26295 Filed 10-14-03; 2:35 pm]
      BILLING CODE 3510-22-S


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Parts 622 and 640
        [I.D. 020801A]
        RIN 0648-AN83
        Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Amendment to the Fishery Management Plans of the Gulf of Mexico

          AGENCY:
          National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

          ACTION:
          Notice of availability; request for comments.

          SUMMARY:
          NMFS announces that the Gulf of Mexico Fishery Management Council (Gulf Council) has submitted for review, approval, and implementation under the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) those measures of its Generic Amendment Addressing the Establishment of the Tortugas Marine Reserves in the Fishery Management Plans of the Gulf of Mexico (Generic Tortugas Amendment) that would amend the Fishery Management Plan for Coastal Migratory Pelagic Resources of the Gulf of Mexico and South Atlantic and the Fishery Management Plan for the Spiny Lobster Fishery of the Gulf of Mexico and South Atlantic.  The Generic Tortugas Amendment would establish two marine reserves in the exclusive economic zone in the vicinity of the Dry Tortugas, FL.  Within the marine reserves, fishing for any species and anchoring by fishing vessels would be prohibited.  The intended effect is to protect and conserve important marine resources.  NMFS previously approved those measures of the Generic Tortugas Amendment that amend the Gulf Council’s other fishery management plans (FMPs).

          DATES:
          Written comments must be received on or before September 17, 2001.

          ADDRESSES:
          Written comments on the subject measures of the Generic Tortugas Amendment must be sent to Michael Barnette, Southeast Regional Office, NMFS, 9721 Executive Center Drive N., St. Petersburg, FL  33702.  Comments may also be sent via fax to 727-570-5583.  Comments will not be accepted if submitted via e-mail or the Internet.

          Requests for copies of the Generic Tortugas Amendment, which includes a regulatory impact review and a final supplemental environmental impact statement, should be sent to the Gulf of Mexico Fishery Management Council, 3018 U.S. Highway 301 North, Suite 1000, Tampa, FL  33619-2266; phone: 813-228-2815; fax: 813-225-7015; e-mail: gulf.council&noaa.gov.

          FOR FURTHER INFORMATION CONTACT:
          Michael Barnette, NMFS; phone: 727-570-5305; fax: 727-570-5583; e-mail: Michael.Barnette&noaa.gov.

        SUPPLEMENTARY INFORMATION:

        The Gulf Council previously submitted its Generic Tortugas Amendment to NMFS for Secretarial review, approval, and implementation.  A notice of its availability for  public comment was published in the Federal Register on March 7, 2001 (66 FR 13692).  On June 6, 2001, NMFS approved those management measures in the Generic Tortugas Amendment that amend the following FMPs:  Fishery Management Plan for Coral and Coral Reefs of the Gulf of Mexico; Fishery Management Plan for the Red Drum Fishery of the Gulf of Mexico; Fishery Management Plan for the Stone Crab Fishery of the Gulf of Mexico; Fishery Management Plan for the Shrimp Fishery of the Gulf of Mexico; and Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico.
        The amendment’s proposed management measures that would amend the two FMPs prepared jointly (joint FMPs) by the Gulf Council and the South Atlantic Fishery Management Council (South Atlantic Council), namely the Fishery Management Plan for Coastal Migratory Pelagic Resources of the Gulf of Mexico and South Atlantic and the Fishery Management Plan for the Spiny Lobster Fishery of the Gulf of Mexico and South Atlantic, had yet to be adopted by the South Atlantic Council.  Therefore, those amendment measures proposed for amending the two joint FMPs were not eligible for Secretarial review and approval under the Magnuson-Stevens Act at the time the Gulf Council first submitted the amendment to NMFS for Secretarial review.
        At its meeting of June 18-23, 2001, the South Atlantic Council adopted the amendment’s proposed management measures that would amend the two joint FMPs.  Based on this action by the South Atlantic Council, NMFS has determined that the amendment’s measures that would amend the two joint FMPs have been properly submitted for Secretarial review by the Gulf Council and can now be reviewed and, if approved, implemented.  Accordingly, NMFS is publishing this notice of availability of these amendment measures for public comment.

        To date, NMFS has not published a proposed rule for the Generic Tortugas Amendment.  In accordance with the Magnuson-Stevens Act, NMFS is evaluating the proposed rule to determine whether it is consistent with the Generic Tortugas Amendment, the Magnuson-Stevens Act, and other applicable law.  If that determination is affirmative, NMFS will publish the proposed rule in the Federal Register for public review and comment.  The proposed rule will include amendment measures approved by NMFS on June 6, 2001, for the following FMPs:  Fishery Management Plan for Coral and Coral Reefs of the Gulf of Mexico; Fishery Management Plan for the Red Drum Fishery of the Gulf of Mexico; Fishery Management Plan for the Stone Crab Fishery of the Gulf of Mexico; Fishery Management Plan for the Shrimp Fishery of the Gulf of Mexico; and Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico.  The proposed rule will also include those proposed management measures for amending the two joint FMPs that are the subject of this notice.  These latter measures would amend the Fishery Management Plan for Coastal Migratory Pelagic Resources of the Gulf of Mexico and South Atlantic and the Fishery Management Plan for the Spiny Lobster Fishery of the Gulf of Mexico and South Atlantic.
        Considerable background information on the Generic Tortugas Amendment is contained in the original notice of availability published March 7, 2001 (66 FR 13692) and is not repeated here.  Under the Generic Tortugas Amendment, the Gulf Council proposes that the marine reserves be established for a period of at least 10 years, during which the ecological benefits of the reserves will be evaluated.  The prohibition on fishing and anchoring of fishing vessels should minimize human disturbances in the Tortugas reserves and help to restore and maintain their ecological integrity, including a full assemblage of fish, coral, and other benthic invertebrates.  The reserves will also create a reference or baseline area for studying human impacts on coral reef ecosystems.
        Comments received by September 17, 2001, whether specifically directed to those management measures in the Generic Tortugas Amendment that would amend the joint FMPs or to the proposed rule, will be considered by NMFS in its decision to approve, disapprove, or partially approve those measures amending the joint FMPs.  Comments received after that date will not be considered by NMFS in this decision.  All comments received by NMFS on the Generic Tortugas Amendment (under both the current and previous Secretarial review periods) or the proposed rule during their respective comment periods will be addressed in the preamble of the final rule.

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

          Dated: July 12, 2001.
          Bruce C. Morehead,
          Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.

      [FR Doc. 01-17937 Filed 7-18-01; 8:45 am]
      BILLING CODE  3510-22-S


        FEDERAL COMMUNICATIONS COMMISSION
        47 CFR Part 76
        [CS Docket No. 02-52; FCC 02-77]
        Appropriate Regulatory Treatment for Broadband Access to the Internet Over Cable Facilities

          AGENCY:
          Federal Communications Commission.

          ACTION:
          Notice of proposed rulemaking.

          SUMMARY:
          This document addresses the consequences of the Commission's classification of cable modem service as an information service as defined in section 3(20) of the Communications Act, 47 U.S.C. 153(20). Cable modem service is a service that uses cable system facilities to provide residential subscribers with high-speed Internet access, as well as many applications or functions that can be used with high-speed Internet access.
          The Notice of Proposed Rulemaking asks questions about whether, and if so, how, cable modem service should be regulated by the Commission. This document also seeks comment on how the classification decision may affect State and local regulation of cable modem service. This document provides persons with the opportunity to submit comments and information with which the Commission can address these issues.

          DATES:
          Comments are due on or before June 17, 2002 and reply comments are due on or before July 16, 2002.

          ADDRESSES:
          Federal Communications Commission, 445 12th Street, SW., Washington, DC 20554.

          FOR FURTHER INFORMATION, CONTACT:

          Steve Garner, Media Bureau at (202) 418-1063 or via Internet at sgarner@fcc.gov.

        SUPPLEMENTARY INFORMATION:

        This is a synopsis of the Commission's Notice of Proposed Rulemaking, CS Docket No. 02-52, adopted March 14, 2002, and released March 15, 2002. The full text of this decision is available for inspection and copying during normal business hours in the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554, and may be purchased from the Commission's copy contractor, Qualex International, Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone (202) 863-2893, facsimile (202) 863-2898, or via e-mail qualexint@aol.com or may be viewed via Internet at http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-02-77A1.pdf.

        Synopsis of the Notice of Proposed Rulemaking
        1. This Notice of Proposed Rulemaking (“NPRM”) was initiated based on the record developed in the Notice of Inquiry (“NOI”) proceeding initiated in GN Docket No. 00-185 in September 2000. The NOI pleading cycle, in which interested parties (“commenters”) could file pleadings, ended in January 2001.

        2. This NPRM concerns cable modem service, which is a high-speed (or “broadband”) Internet access service provided to residential subscribers over cable system facilities. The Commission found in a Declaratory Ruling accompanying the NPRM that cable modem service is an information service as that terms is defined in Section 3(20) of the Communications Act of 1934, as amended (“the 1934 Act”), 47 U.S.C. 153(20). The NPRM addresses a number of possible consequences of the Commission's classification of cable modem service as an information service. The following paragraphs describe the issues on which the Commission asks for comment in the NPRM.
        Background
        3. The NPRM first seeks comment on the Commission's jurisdiction and authority to regulate cable modem service. The NRPM also seeks comment on whether the Commission may, and, if so, should, impose any form of so-called “multiple ISP (Internet Service Provider) access” requirements on operators of cable systems (“cable operators”). The NPRM describes multiple ISP access as a requirement that cable operators provide unaffiliated ISPs with the right access to cable modem service customers directly. Previously, the NOI sought comment on a variety of models by which a cable operator could be required to provide multiple ISP access. The NPRM requests commenters to specify, in asking the questions summarized below, whether commenters are addressing any form of multiple ISP access in particular, on all forms described in the Notice of Inquiry, and whether any access requirement should specifically limit ISP access to uses related to the offering of cable modem service, or should explicitly permit other uses by ISPs.
        Commission Authority

        4. Given its classification of cable modem service as an interstate information service, the Commission asks for comment on whether the Commission should exercise its ancillary authority under Title I of the 1934 Act with regard to the provision of cable modem service. In another recent NPRM, concerning broadband Internet access service provided by traditional wireline telecommunications common carriers (the “Wireline Broadband NPRM”), the Commission tentatively concluded that wireline broadband Internet access service is an interstate information service. In the present NPRM, the Commission asks how its findings and decisions in one proceeding should impact the other. It also requests comment on whether there are legal or policy reasons why it should reach different conclusions with respect to wireline broadband Internet access service and cable modem service. Should any decision to exercise Title I jurisdiction over either service be influenced by the cable operators' current status as the leading providers of residential broadband services?

        5. The NPRM seeks comment on any explicit statutory provisions, including expressions of congressional goals, which would be furthered by the Commission's exercise of ancillary jurisdiction over cable modem service. The Commission mentions as possibilities sections 1, 230(b), and 601(4) of the 1934 Act and section 706 of the 1996 Telecommunications Act. The NPRM requests comment on the use of these or other statutory provisions as the basis for the Commission's exercise of Title I jurisdiction. It also requests comment on whether reliance on ancillary jurisdiction in support of these or other provisions would be analogous to the Commission's reliance on ancillary jurisdiction in adoption of its Computer Inquiry rules. In addition, given the relationship of cable modem service (including the underlying transmission component) to services provided by wireline common carriers, the NPRM seeks comment on whether there are any additional bases for asserting ancillary jurisdiction.
        6. The NPRM seeks comment on whether a federally mandated system of multiple ISP access would violate the First Amendment rights of cable operators. The NPRM seeks comment in particular on the level of First Amendment scrutiny that would apply to a federal multiple ISP access requirement, especially in light of recent case law or Commission precedent concerning the First Amendment. Have marketplace conditions in the residential high-speed Internet access business changed since the close of the pleading cycle in this proceeding in ways that alter the First Amendment analysis? Have trials and limited commercial offerings of different kinds of multiple ISP access shown that certain types of access place a minimal burden on the cable operators while achieving the maximum choice for subscribers?

        7. The NPRM also seeks comment whether multiple ISP access would constitute a “per se” or “regulatory” taking of the cable operator's property without just compensation under the Takings Clause of the Fifth Amendment to the U.S. Constitution. It seeks comment on what, if a form of multiple ISP access did entail a taking, would be “just compensation” for it. Would ensuring just compensation necessarily involve regulators in setting the price that a cable operator charges unaffiliated ISPs (or vice versa)? Or could just compensation be ensured by some market-based process of negotiations? Do recent technological developments, technical trials, and limited commercial offerings of multiple ISP access indicate that some forms of multiple ISP access minimize occupation of the cable operator's property and economic harm to it? The NPRM requests comment on these issues. The NPRM also seeks comment on whether there are additional Constitutional concerns related to multiple ISP access requirements.
        Marketplace Developments
        8. The NPRM asks that commenters update the record on what has changed in the cable modem service marketplace since the pleading cycle on the Notice of Inquiry closed, particularly with respect to evolving business relationships among cable operators and their service offerings. Do recent events demonstrate that the market will provide consumers a choice of ISPs without government intervention, or that the absence of widespread business arrangements raises a level of concern sufficient to warrant Commission action? The NPRM asks that commenters who believe that Commission intervention is necessary describe in detail what sort of regulations the Commission should impose. It also asks for comment regarding whether any decision the Commission makes about multiple access requirements for cable systems in this proceeding should apply to Open Video Systems.
        9. The NPRM asks whether, in current and likely future market conditions, any form of multiple ISP access is needed to promote the Commission's goals of, for example, promoting the deployment of advanced telecommunications capability; spurring investment in facilities to provide high-speed Internet access service and innovation among service providers, ISPs, and creators of content; and/or facilitating intramodal or intermodal competition. Or would multiple ISP access, if mandated by regulation, have the opposite effects? The NPRM seeks comment on whether the Commission's decision-making should be guided by principles that embrace intramodal competition. If so, the NPRM seeks comment on whether the market can or will satisfy these principles or whether some form of multiple ISP access regime for cable systems is needed to do so. To what extent should any decision regarding multiple ISP access requirements be influenced by the desirability of ‘regulatory parity,’ namely the presence or absence of multiple ISP access regimes for other technologies (such as wireline, terrestrial wireless, and satellite) that offer residential high-speed Internet access service? To what extent should that decision be impacted by cable operators' current status as the leading providers of residential broadband services?
        10. Consumer Demand. The NPRM asks whether there is a demand for access to several ISPs and, if there is, whether that demand is being met today. Specifically, does “click through” access to any ISP and content on the World Wide Web produce the same, or almost the same, value that a regulatory system of multiple ISP access would produce? Is any cable operator or ISP denying, or likely to deny, click through access? Is the threat that subscriber access to Internet content or services could be blocked or impaired, as compared to content or services provided by the cable operator or its affiliated ISP, sufficient to justify regulatory intervention at this time?
        11. Cost/Benefit Analysis. The NPRM requests comment on the costs that a multiple ISP access mandate would impose on cable operators and on the benefits that a mandate would bring to consumers. Would some forms of multiple ISP access be less costly to cable operators and more beneficial to consumers than others? Is the cost/benefit calculation for multiple ISP access different for small cable operators than it is for others? Would the requirements imposed on telecommunications carriers by the Commission's Second Computer Inquiry or Third Computer Inquiry provide a useful model for a multiple ISP access regime? Would the new forms of multiple ISP access that are being deployed or are under consideration by cable operators, such as the model being implemented by AOL Time Warner pursuant to the Federal Trade Commission's AOL Time Warner Merger Order, provide useful models? Other possible means of effecting a multiple ISP access regime include adopting a general rule of reasonableness for cable operators in their dealings with ISPs seeking access to their cable systems and/or requiring cable operators to make high-speed transmission available to other ISPs at “market-based prices.” The Commission could then rely on its complaint processes to resolve individual disputes about these standards. The NPRM asks whether such a system of general principles and case-by-case adjudication would achieve the Commission's goals in a timely and cost-effective manner.
        12. The NPRM asks what lessons, if any, trials and current commercial offerings of multiple ISP access reveal about the costs and benefits of multiple ISP access and how such costs and benefits can be balanced. Has recent experience with the addition of source-based routers showed that technology to be an efficient form of multiple ISP access?
        13. The NPRM asks for comment on be the costs of regulatory enforcement of a multiple ISP access mandate. Would a multiple ISP access mandate lead to significant opportunities for regulatory arbitrage—businesses making decisions based on regulatory classifications rather than on customers' preferences and innovative and sustainable business plans? Would a multiple ISP access mandate impose long-term costs on the market? In light of the new and fast-changing nature of the residential high-speed Internet access business, would a multiple ISP access requirement, imposed at this time, hinder the development of a market that is still evolving? In particular, might a requirement preclude the discovery of network design, content, applications, and business models that would otherwise enjoy widespread adoption and enhance long-term consumer welfare? Is there a way to implement multiple ISP access now that would avoid any such harmful interference in the future and that would achieve the Commission's goals? If the Commission adopts a multiple ISP access mandate for cable systems generally, should it exempt small cable systems from such a mandate because of the particular conditions that they face?
        14. The NPRM notes that the Commission is particularly interested in comments that provide updated information and discuss relevant regulatory and judicial decisions issued since the comment period closed for the Notice of Inquiry in GN Docket 00-185. The Commission is likely to find particularly relevant and persuasive empirically supported studies that use well-established methods for quantifying benefits and harms, as well as comments based on well-established economic theory.
        15. Changing Market Conditions. Assuming that the Commission ultimately concludes not to impose multiple ISP access at this time, the NPRM asks what, if any, future events should lead it to do so. Are there market conditions that are not currently pervasive but, should they become pervasive, would suggest the need for a multiple ISP access mandate in the future? Would these conditions include the acquisition of market power by cable operators in providing residential high-speed Internet access, cable operators' refusals to satisfy subscriber demand for multiple ISP access, or the evolution of a mature market for residential high-speed Internet access? Would a finding that subscriber access to Internet content or services may be blocked or impaired, as compared to other content or services, particularly that provided by the cable operator or its affiliate, support regulatory intervention? The NPRM seeks comment on other conditions that would suggest regulation is needed and on objective, readily measurable criteria by which the Commission could detect the occurrence of such conditions. It asks whether ongoing monitoring is appropriate to ensure that any relevant conditions are detected accurately and in a timely manner and, if so, what that monitoring would consist of.

        16. The NPRM also seeks comment on indicia that a cable operator is offering a common carrier telecommunications service (other than local telephone service) or a private carrier service, on a stand-alone basis, to ISPs or subscribers. The NPRM asks how the Commission might detect that a cable operator is, in fact, making such an offering. If and when a cable operator makes such an offering, what, if any, access requirements should the Commission impose on it? For example, if the Commission found that a cable operator were making such an offering, would that trigger the requirements of the Second Computer Inquiry and Third Computer Inquiry with respect to the retail offering of cable modem service to subscribers, or make their application in the public interest? To what extent should these decisions impact, or be impacted by, the conclusions made in the Wireline Broadband NPRM proceeding? The NPRM asks for comment on the appropriate scope of regulation of any such offerings of telecommunications service.
        17. Forbearance from Telecommunications Service Obligations. The U.S. District Court for the Southern District of California has expressed the view that it is bound by the Ninth Circuit's decision in AT&T v. City of Portland that cable modem service is a telecommunications service. The Ninth Circuit had left open the question as to whether the Commission could forbear from particular Title II obligations under Section 10 of the Communications Act. To the extent that cable modem service may be subject to telecommunications service classification, the NPRM seeks comment on whether the Commission should forbear from applying each provision of Title II or common carrier regulation. The NPRM invites comment on whether enforcement of such provisions is not necessary to ensure that the charges, practices, classification or regulations in connection with cable modem service are just and reasonable and not unjustly or unreasonably discriminatory. Is enforcement not necessary for the protection of consumers? Would forbearance be consistent with the public interest? The NPRM tentatively concludes that such forbearance would be justified. Given that cable modem service will be treated as an information service in most of the country, the Commission tentatively concludes that the public interest would be served by the uniform national policy that would result from the exercise of forbearance to the extent that cable modem service is classified as a telecommunications service. The Commission states its belief that forbearance would be in the public interest because cable modem service is still in its early stage; supply and demand are still evolving; and several rival networks providing residential high-speed Internet access are still evolving. Thus, the Commission tentatively concludes that enforcement of Title II provisions and common carrier regulation is not necessary for the protection of consumers or to ensure that rates are just and reasonable and not unjustly discriminatory. The Commission states its belief that forbearance from Title II and common carrier regulation is appropriate under the circumstances. The NPRM requests comment on this conclusion and the underlying analysis, and asks that commenters focus on how such forbearance and/or regulation would further the Commission's goals.
        Consequences of Legal Classification as Information Service
        18. State and Local Regulation of Cable Modem Service and Rights-of-Way. The NPRM seeks comment whether the Commission should interpret its assertion of jurisdiction over cable modem service under the Communications Act to preclude State and local authorities from regulating cable modem service and facilities in particular ways. The NPRM notes that the courts have recognized the Commission's authority under Title I to preempt non-Federal regulations that negate the Commission's goals, including regulations affecting enhanced services. The NPRM seeks comment as to any additional basis for preempting such regulations, including, for example, section 624(b) of the Communications Act.
        19. In addition to the access requirements, franchise requirements, and franchise fees discussed below, the NPRM seeks comment on any other forms of State and local regulation that would limit the Commission's ability to achieve its national broadband policy, discourage investment in advanced communications facilities, or create an unpredictable regulatory environment. Specifically, the NPRM seeks comment as to whether the Commission should use its preemption authority to preempt specific State laws or local regulations. It asks commenters to specify what preemption authority the Commission would rely on in each case.
        20. Access Requirements. The NPRM seeks comment on any regulatory authority that State and local governments may have with respect to cable modem service as an information service, including any authority to impose multiple ISP access requirements or to prohibit, limit, restrict, or condition the provision of cable modem service. Is such regulation consistent with any exercise of the Commission's jurisdiction over cable modem service under Title I, including any affirmative decision the Commission might make to refrain from imposing specific regulatory requirements?
        21. Rights-of-Way and Franchising Issues. The NPRM asks for comment on how the classification of cable modem service as an interstate information service impacts State and local regulation of rights-of-way and franchising. The NPRM tentatively concludes that once a cable operator has obtained a franchise for a cable system, the Commission's information service classification should not affect the right of cable operators to access rights-of-way as necessary to provide cable modem service or to use their previously franchised systems to provide cable modem service. The NPRM seeks comment on this tentative conclusion. It also seeks comment on whether providing additional services over upgraded cable facilities imposes additional burdens on the public rights-of-way such that the existing franchise process is inadequate. If so, the NPRM asks whether Title VI nevertheless precludes local franchising authorities from imposing additional requirements on cable modem service. The NPRM tentatively concludes that Title VI does not provide a basis for a local franchising authority to impose an additional franchise on a cable operator that provides cable modem service.
        22. The NPRM also seeks comment generally on the scope of local franchising authority over facilities-based providers of information services. Do State statutes and Constitutional provisions authorizing local franchising in terms of utility services generally, or cable and telecommunications networks and services specifically, authorize localities to franchise providers of information service under existing law? If so, is there any basis for treating facilities-based providers of information services differently based on the facilities used? The NPRM expresses concern that State or local regulation beyond that necessary to manage rights-of-way could impede competition and impose unnecessary delays and costs on the development of new broadband services. It notes questions about potential State and local actions that could restrict entry, impose access or other requirements on cable modem service, or assess fees or taxes on cable Internet service. It seeks comment on these issues.
        23. In the NPRM, the Commission tentatively concludes that Title VI of the 1934 Act does not provide an independent basis of authority for assessing franchise fees on cable modem service. The NPRM seeks comment on this issue.
        24. Franchise Fees Previously Paid Pursuant to Section 622. The NPRM also notes that some cable operators, believing they were legitimately carrying out their obligations and rights under Title VI of the 1934 Act and local franchise agreements, collected franchise fees based on cable modem service revenues, identified these fees on subscriber bills, and remitted these franchise fees to local franchising authorities pursuant to the terms of their franchising agreements. After the Ninth Circuit's decision in AT&T v. Portland, some cable operators suspended collecting and remitting franchise fees for revenues from cable modem service in Ninth Circuit States out of concern about their exposure to significant litigation risk if they were to continue collecting a franchise fee on cable modem service. Subscribers in other states are understood to have raised the issue of whether franchise fees were lawfully collected from them and whether the fees collected should be refunded. The NPRM seeks comment on whether disputes regarding franchise fees based on cable modem service implicate a national policy concerning communications that calls upon Commission expertise, given that the fees in question were collected pursuant to the Communications Act and that the Commission's classification decision will alter, on a national scale, the regulatory treatment of cable modem service. The NPRM seeks comment on whether it is appropriate for the Commission to exercise its jurisdiction under section 622 of the Communications Act to resolve the issue of previously collected franchise fees based on cable modem service revenues or whether these issues are more appropriately resolved by the courts.
        25. Consumer Protection and Customer Service. The NPRM also seeks comment on how the Commission's information service classification may affect other aspects of State or local regulation, such as consumer protection and customer service standards regarding cable modem service. The NPRM asks whether the authority conferred on franchising authorities by section 632(a) of the Communications Act to establish and enforce customer service requirements applies to cable modem service provided by a cable operator. Do the provisions in section 632(d), stating that nothing in Title VI “shall be construed to prohibit any State or any franchising authority from enacting or enforcing any consumer protection law, to the extent not specifically preempted by [Title VI],” or “to prevent the establishment or enforcement” of customer service laws or regulations that exceed Commission standards or address matters not addressed by Commission standards under section 632, apply to cable modem service?
        26. Protection of Subscriber Privacy. Section 631 of the Communications Act addresses privacy for subscribers to “any cable service or other service” provided by a cable operator. The NPRM states that the Commission interprets cable modem service to be an “other service.” The NPRM seeks comment on this interpretation. And, although section 631's terms are enforced by the courts, and not by the Commission, the NPRM seeks comment as to how the privacy requirements of section 631 affect providers of cable modem service.
        Initial Regulatory Flexibility Analysis

        27. As required by the Regulatory Flexibility Act of 1980, 5 U.S.C. 601 et seq. as amended (“RFA”), the Commission has prepared an Initial Regulatory Flexibility Analysis (“IRFA”) of the possible significant economic impact on a substantial number of small entities by the policies and rules considered in the NPRM. Written public comments are requested on this IRFA. Comments must be identified as responses to this IRFA and must be filed by the deadlines for comments on the NPRM provided in paragraph 41 of this NPRM. The Commission will send a copy of the NPRM, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (“SBA”).
        28. Need for, and Objectives of, the Proposed Rules. With our declaratory ruling herein, we have sought to provide regulatory certainty for the emerging cable modem service industry by resolving a nationwide controversy concerning the proper regulatory classification of cable modem service under federal law. In doing so, we recognize that there are a number of related issues that may need resolution in the form of federal rules. By this Notice of Proposed Rulemaking, we seek comment on certain issues related to the practical implementation of our classification of cable modem service as an information service.
        29. Legal Basis. The authority for the action proposed in this rulemaking is contained in sections 1, 2(a), 3, 4(i), 4(j), 303, and 601 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152(a), 153, 154(i), 154(j), 303, and 521, and Section 706 of the Telecommunications Act of 1996, 47 U.S.C. 157 nt.
        30. Description and Estimate of the Number of Small Entities to Which the Proposed Rules Will Apply. The RFA, 5 U.S.C. 603(b)(3), directs agencies to provide a description of, and where feasible, an estimate of the number of small entities that may be affected by the proposed rules, if adopted. The RFA, 5 U.S.C. 601(6), generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act, 5 U.S.C. 601(3) (incorporating by reference the definition of “small business concern” in the Small Business Act, 15 U.S.C. 632). Under 15 U.S.C. 632, a “small business concern” is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA.
        31. The SBA has developed a small business size standard, 13 CFR 121.201, North American Industry Classification System (“NAICS”) code 513220, for cable and other program distribution,” which includes all such companies generating $11 million or less in revenue annually. This category includes, among others, cable operators, closed circuit television services, direct broadcast satellite services, multipoint distribution services, open video systems (“OVS”), satellite master antenna television (“SMATV”) systems, and subscription television services. According to the Census Bureau data from 1992, there were 1,788 total cable and other pay television services and 1,423 had less than $11 million in revenue. The Commission addresses cable operators and OVS operators below to provide a more precise estimate of the affected small entities. The Commission does not believe that the other pay television services would be affected by the proposals in the NPRM.
        32. Cable Systems. The Commission has developed its own small business size standard for a small cable operator for the purposes of rate regulation. Under the Commission's rules, 47 CFR 76.901(e), a “small cable company” is one serving fewer than 400,000 subscribers nationwide. Based on Commission's most recent information, it estimates that there were 1,439 cable operators that qualified as small cable companies at the end of 1995. Since then, some of those companies may have grown to serve over 400,000 subscribers, and others may have been involved in transactions that caused them to be combined with other cable operators. Consequently, the Commission estimates that there are fewer than 1,439 small cable companies that may be affected by the NPRM.
        33. The Communications Act of 1934, 47 U.S.C. 543(m)(2) as amended, also contains a size standard for a “small cable operator,” which is “a cable operator that, directly or through an affiliate, serves in the aggregate fewer than one percent of all subscribers in the United States and is not affiliated with any entity or entities whose gross annual revenues in the aggregate exceed $250,000,000.” The Commission has determined that there are 67,700,000 subscribers in the United States. Therefore, an operator serving fewer than 677,000 subscribers shall be deemed a small operator, if its annual revenues, when combined with the total annual revenues of all of its affiliates, do not exceed $250 million in the aggregate. See 47 CFR 76.1403(b). Based on available data, the Commission estimates that the number of cable operators serving 677,000 subscribers or less totals approximately 1,450. The Commission does not request or collect information on whether cable operators are affiliated with entities whose gross annual revenues exceed $250,000,000, and therefore is unable to estimate accurately the number of cable system operators that would qualify as small cable operators under the definition in the Communications Act.
        34. Open Video Systems (“OVS”). Because OVS operators provide subscription services, as specified in 47 U.S.C. 573, OVS falls within the SBA-recognized definition of “Cable and Other Program Distribution,” 13 CFR 121.201, NAICS Codes 51321 and 51322. This standard provides that a small entity is one with $11 million or less in annual receipts. The Commission has certified approximately 25 OVS operators to serve 75 areas, and some of those are currently providing service. Affiliates of Residential Communications Network, Inc. (“RCN”) received approval to operate OVS systems in New York City, Boston, Washington, D.C. and other areas. RCN has sufficient revenues to assure the Commission that they do not qualify as small business entities. Little financial information is available for the other entities authorized to provide OVS that are not yet operational. Given that other entities have been authorized to provide OVS service but have not yet begun to generate revenues, the Commission concludes that at least some of the OVS operators qualify as small entities.
        35. Description of Projected Reporting, Recordkeeping and Other Compliance Requirements. The NPRM seeks comment on the regulatory implications of the Commission's finding that cable modem service is an information service under the Communications Act, 47 U.S.C. 153(20) as amended. Specifically, the NPRM seeks comment on whether the Commission should require cable operators that provide cable modem service to allow unaffiliated ISPs to have direct access to the cable operator's subscribers via the cable system facilities.
        36. The NPRM also seeks comment on the scope of state and local government authority over cable modem service in light of the Commission's finding that it is an information service. This determination may not have a direct effect on small entities, but indirectly it may impact small entities, such as small cable operators, if local governments are permitted to require cable operators to grant unaffiliated ISPs access to the cable system or if local governments are permitted to enforce other regulations that affect a cable operator's provision of cable modem service.
        37. Steps Taken to Minimize Significant Impact on Small Entities and Significant Alternatives Considered. The IRFA requires an agency to describe any significant alternatives that it has considered in proposing regulatory approaches, which may include, among others, the following four alternatives: (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities.
        38. The NPRM seeks comment on several regulatory alternatives to implement the Commission's classification of cable modem service as an information service under the Communications Act. For example, alternatives considered in the NPRM include whether unaffiliated ISPs should be provided with access to cable systems and, if so, which of the various access models should be adopted. In addition, the Commission will also consider whether any access requirements ultimately adopted should be different for large cable operators from those imposed on small cable operators. Finally, the NPRM considers whether the Commission should refrain entirely from imposing any ISP access requirements on cable operators. The Commission expects that whichever alternatives are chosen the Commission will seek to minimize any adverse effects on small entities.
        39. Federal Rules Which Duplicate, Overlap, or Conflict with the Commission's Proposals. None.
        Procedural Matters
        Ex Parte

        40. This proceeding will be treated as a “permit-but-disclose” proceeding subject to the “permit-but-disclose” requirements under § 1.1206(b) of the Commission's rules, 47 CFR 1.1206(b), as revised. Ex parte presentations are permissible if disclosed in accordance with Commission rules, except during the Sunshine Agenda period when presentations, ex parte or otherwise, are generally prohibited. Persons making oral ex parte presentations are reminded that a memorandum summarizing a presentation must contain a summary of the substance of the presentation and not merely a listing of the subjects discussed. More than a one or two sentence description of the views and arguments presented is generally required. See 47 CFR 1.1206(b)(2), as revised. Additional rules pertaining to oral and written presentations are set forth in § 1.1206(b) of the Commission's rules, 47 CFR 1.1206(b), as revised. Parties submitting written ex parte presentations or summaries of oral ex parte presentations are urged to use the Electronic Comment Filing System (“ECFS”) in accordance with the Commission rules discussed below. Parties filing paper ex parte submissions must file an original and one copy of each submission with the Commission's Acting Secretary, William F. Caton, at the appropriate address below (see Filing of Comments and Reply Comments) for filings sent by either U.S. mail, overnight delivery, or hand or messenger delivery. Parties must also serve the following with either one copy of each ex parte filing via e-mail or two paper copies: (1) Qualex International, Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC, 20554, telephone (202) 863-2893, facsimile (202) 863-2898, or e-mail at qualexint@aol.com; and (2) Sarah Whitesell, Media Bureau, 445 12th Street, SW., 3-C488, Washington, DC, 20554, swhitese@fcc.gov; and (3) Steve Garner, Media Bureau, 445 12th Street, SW., 4-C468, Washington, DC 20554, sgarner@fcc.gov.

        Filing of Comments and Reply Comments

        41. Pursuant to applicable procedures set forth in §§ 1.415 and 1.419 of the Commission's rules, interested parties may file comments on or before June 17, 2002, and reply comments on or before July 15, 2002. Comments may be filed using the Commission's Electronic Comment Filing System (“ECFS”) or by filing paper copies. See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998). Given recent changes in the Commission's mail delivery system, parties are strongly urged to use the ECFS to file their pleadings. Comments filed through the ECFS can be sent as an electronic file via the Internet to <http://www.fcc.gov/e-file/ecfs.html>. Generally, only one copy of an electronic submission must be filed. In completing the transmittal screen, electronic filers should include their full name, Postal Service mailing address, and the applicable docket or rulemaking number. Parties may also submit an electronic comment by Internet e-mail. To get filing instructions for e-mail comments, commenters should send an e-mail to ecfs@fcc.gov, and should include the following words in the body of the message, “get form <your e-mail address>.” A sample form and directions will be sent in reply.

        42. Parties who choose to file by paper must file an original and four copies of each filing in CS Docket No. 02-52. If parties want each Commissioner to receive a personal copy of their comments, an original plus nine copies must be filed. Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail (although we continue to experience delays in receiving U.S. Postal Service mail). The Commission's contractor, Vistronix, Inc., will receive hand-delivered or messenger-delivered paper filings for the Commission's Secretary at 236 Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. The filing hours at this location are 8 a.m. to 7 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of before entering the building. Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743. U.S. Postal Service first-class mail, Express Mail, and Priority Mail should be addressed to 445 12th Street, SW., Washington, DC 20554. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission. Parties must also serve the following with either one copy of each filing via e-mail or two paper copies: (1) Qualex International, Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone (202) 863-2893, facsimile (202) 863-2898, or e-mail at qualexint@aol.com; and (2) Sarah Whitesell, Media Bureau, 445 12th Street, SW., 3-C488, Washington, DC 20554, swhitese@fcc.gov. In addition, five copies of each filing must be filed with Steve Garner, Media Bureau, 445 12th Street, SW., 4-C468, Washington, DC 20554, sgarner@fcc.gov.

        Availability of Documents
        43. Comments, reply comments, and ex parte submissions will be available for public inspection during regular business hours in the FCC Reference Center, Federal Communications Commission, 445 12th Street, SW., CY-A257, Washington, DC 20554. Persons with disabilities who need assistance in the FCC Reference Center may contact Bill Cline at (202) 418-0267, (202) 418-7365 TTY, or bcline@fcc.gov. These documents also will be available electronically at the Commission's Disabilities Issues Task Force Web site: www.fcc.gov/dtf, and from the Commission's Electronic Comment Filing System. Documents are available electronically in ASCII text, Word 97, and Adobe Acrobat. Copies of filings in this proceeding may be obtained from Qualex International, Portals II, 445 12th Street, SW., Room, CY-B402, Washington, DC 20554, telephone (202) 863-2893, facsimile (202) 863-2898, or via e-mail at qualexint@aol.com.

        44. This document is available in alternative formats (computer diskette, large print, audio cassette, and Braille). Persons who need documents in such formats may contact Brian Millin at (202) 418-7426, TTY (202) 418-7365, or send an e-mail to access@fcc.gov.

        Contact Information

        45. The Media Bureau contact for this proceeding is Steve Garner at (202) 418-1063, sgarner@fcc.gov.

        Ordering Clause
        46. This Notice of Proposed Rulemaking is issued pursuant to authority contained in sections 1, 2, 3, 4, 303, 403, and 601 of the Communications Act of 1934, as amended, and section 706 of the Telecommunications Act of 1996.

          Federal Communications Commission.
          William F. Caton,
          Acting Secretary.

      [FR Doc. 02-9102 Filed 4-16-02; 8:45 am]
      BILLING CODE 6712-01-P


        DEPARTMENT OF THE TREASURY
        Internal Revenue Service
        26 CFR Part 31
        [REG-111583-07]
        RIN 1545-BG50
        Employment Tax Adjustments; Correction

          AGENCY:
          Internal Revenue Service (IRS), Treasury.

          ACTION:
          Correction to notice of proposed rulemaking.

          SUMMARY:

          This document contains corrections to a notice of proposed rulemaking (REG-111583-07) that was published in the Federal Register on Monday, December 31, 2007 (72 FR 74233) relating to employment tax adjustments and employment tax refund claims.

          FOR FURTHER INFORMATION CONTACT:
          Ligeia M. Donis, (202) 622-0047 (not a toll-free number).

        SUPPLEMENTARY INFORMATION:
        Background

        The correction notice that is the subject of this document is under sections 6011, 6205, 6302, 6402, 6413, and 6414 of the Internal Revenue Code.
        Need for Correction
        As published, the notice of proposed rulemaking (REG-111583-07) contains errors that may prove to be misleading and are in need of clarification.
        Correction of Publication
        Accordingly, the publication of the notice of proposed rulemaking (REG-111583-07), which was the subject of FR Doc. E7-25134, is corrected as follows:

        1. On page 74235, column 2, in the preamble, under the paragraph heading “Interest-Free Adjustments”, lines three and four from the bottom of third paragraph of the column, the language “under section 6511(b)(2) as described above. An interest-free adjustment for” is corrected to read “under section 6511(b)(2). An interest-free adjustment for”.

        2. On page 74236, column 1, in the preamble, under the paragraph heading “Claims for Refund”, seventh line of the first paragraph of the column, the language “amount pursuant to section 6513(c)(2).” is corrected to read “amount pursuant to section 6511(b)(2).”.

          LaNita Van Dyke,
          Chief, Publications and Regulations Branch, Legal Processing Division, Associate Chief Counsel, (Procedure and Administration).

      [FR Doc. E8-1366 Filed 1-25-08; 8:45 am]
      BILLING CODE 4830-01-P


        DEPARTMENT OF HOMELAND SECURITY
        Federal Emergency Management Agency
        44 CFR Part 67
        [Docket ID FEMA-2014-0002; Internal Agency Docket No. FEMA-B-1323]
        Proposed Flood Hazard Determinations for Prince George's County, Maryland, and Incorporated Areas

          AGENCY:
          Federal Emergency Management Agency, DHS.

          ACTION:
          Proposed Notice; withdrawal.

          SUMMARY:
          The Federal Emergency Management Agency (FEMA) is withdrawing its proposed notice concerning proposed flood hazard determinations, which may include the addition or modification of any Base Flood Elevation, base flood depth, Special Flood Hazard Area boundary or zone designation, or regulatory floodway on the Flood Insurance Rate Maps, and where applicable, in the supporting Flood Insurance Study reports for Prince George's County, Maryland, and Incorporated Areas.

          DATES:
          This withdrawal is effective April 29, 2014.

          ADDRESSES:

          You may submit comments, identified by Docket No. FEMA-B-1323, to Luis Rodriguez, Chief, Engineering Management Branch, Federal Insurance and Mitigation Administration, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, (202) 646-4064, or (email) Luis.Rodriguez3@fema.dhs.gov.

          FOR FURTHER INFORMATION CONTACT:

          Luis Rodriguez, Chief, Engineering Management Branch, Federal Insurance and Mitigation Administration, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, (202) 646-4064, or (email) Luis.Rodriguez3@fema.dhs.gov.

        SUPPLEMENTARY INFORMATION:
        On June 17, 2013, FEMA published a proposed notice at 78 FR 36213, proposing flood hazard determinations in Prince George's County, Maryland. FEMA is withdrawing the proposed notice.

          Authority:
          42 U.S.C. 4104; 44 CFR 67.4.

          Dated: April 14, 2014.
          Roy E. Wright,
          Deputy Associate Administrator for Mitigation, Department of Homeland Security, Federal Emergency Management Agency.

      [FR Doc. 2014-09743 Filed 4-28-14; 8:45 am]
      BILLING CODE 9110-12-P