        FEDERAL COMMUNICATIONS COMMISSION
        47 CFR Part 73
        [MM Docket No. 00-39; FCC 01-24]
        Broadcast Services; Radio Stations, Television Stations

          AGENCY:
          Federal Communications Commission.

          ACTION:
          Proposed rule.

          SUMMARY:
          In this document, the Commission explores the issues and concerns raised by parties regarding DTV reception capability, and we propose to require that certain types of new television sets have the capability to demodulate and decode over-the-air DTV signals by a date certain. We also seek comment on how best to implement such a requirement, including alternatives for phasing-in DTV reception capability in a manner that would minimize costs for both manufacturers and consumers. Finally, we propose to adopt labeling requirements with respect to television receivers that are not capable of receiving over-the-air broadcast television signals but, instead, are intended for use only with cable television reception.

          DATES:
          Comments are due by April 6, 2001; reply comments are due by May 7, 2001.

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

          FOR FURTHER INFORMATION CONTACT:
          Roger Holberg, or Mania Baghdadi, Mass Media Bureau, Policy and Rules Division, (202) 418-2120 or Alan Stillwell or Bruce Franca, Office of Engineering and Technology, (202) 418-2470.

        SUPPLEMENTARY INFORMATION:
        This is a synopsis of the Further Notice of Proposed Rule Making (“FNPRM”) in MM Docket No. 00-39, FCC 01-24, adopted January 18, 2001, and released January 19, 2001. The complete text of this document is available for inspection and copying during normal business hours in the FCC Reference Center, Room CY-A257, 445 12th Street, SW., Washington, DC. and may also be purchased from the Commission's copy contractor, International Transcription Service (202) 857-3800, 445 12th Street, SW., Room CY-B402, Washington, DC. The FNPRM is also available on the Internet at the Commission's website: http://www.fcc.gov.
        Synopsis of Further Notice of Proposed Rule Making
        I. Background

        1. In the Commission's digital television proceeding (MM Docket No. 87-268) we repeatedly indicated our intent to hold periodic reviews of the progress of the conversion to digital television and to make such mid-course corrections as were necessary to ensure the success of that conversion. In the Fifth Report and Order, 62 FR 26966, May 16, 1997 (“5R&O”), we stated that we would conduct such a review every two years. We commenced this, the first, periodic review, with a Notice of Proposed Rule Making (“NPRM”), adopted March 6, 2000 (65 FR 15600, March 23, 2000). In that NPRM we stated that the conversion is progressing and that television stations are working hard to convert to digital television. We invited comment on several issues that we considered essential to be resolved in order to ensure that progress continued and that potential sources of delay were eliminated. In a Report and Order (“R&O”), also adopted January 18, 2001, in this proceeding we resolved a number of issues raised in the initial NPRM. We also adopted this FNPRM in order to solicit comment on the issues of whether and, if so, how to implement a DTV receiver requirement, whether to require labels on all DTV receivers designed for use only with a signal source other than broadcast (e.g., cable, DBS, etc.), and whether to update our current DTV standard to reflect amendments to the ATSC DTV Standard that have been made since we substantially incorporated that standard into our rules.
        II. Discussion
        2. In response to the NPRM in this proceeding, a number of parties have argued that the Commission should require digital reception capability in all receivers, aside from particular performance thresholds. Their comments also implicated the accurate identification and marketing of receivers with various capabilities. In addition, consumer advocates have complained that any requirement that all receivers contain digital reception capability places an undue burden on consumers, and particularly low-income consumers. These comments have raised pertinent questions on which we will seek further information and comment to develop a full record on the current pertinence of such recommendations.
        3. DTV Receiver Standards—DTV Demodulation Requirement. The NAB and the NABA submit that the Commission should adopt rules requiring every new television receiver sold to include the capability to receive DTV signals. The NAB states that this requirement is needed because market forces are not working to effect DTV receiver penetration except at an extremely slow pace. It observes that current DTV receivers are not in the marketplace in great numbers and existing sales volume of DTV receivers will not support the timely conversion and recovery of spectrum envisioned by the Commission and Congress. The NAB and the NABA argue a requirement that new TV receivers be capable of tuning DTV channels is therefore needed to push the transition along quickly. They specifically propose that the Commission require all new television receivers thirteen inches and greater in diagonal screen size to be capable of receiving all frequencies allocated by the Commission to television broadcasting, including all NTSC and all DTV channels. Although the NAB and NABA conclude the increased burden on consumers is temporary and thus acceptable, other commenters have concluded otherwise. The Consumer Federation of America (CFA) argued that a tuner requirement would place a burden on consumers, especially low-income consumers who “may potentially be priced out of the market. * * *” CFA also stated that “[w]ithout more programming it is clear that there will not be a timely and complete transition to digital television. * * *”

        4. The NAB argues that the Commission has authority for such action under the All Channel Receiver Act (ACRA), and that there is precedent in the all channel television receiver rules. It observes that the Senate Report accompanying that legislation noted three points in favor of promoting UHF receivers that are equally applicable to DTV: (1) That this is a unique situation; (2) while there will be an increased cost, it is expected that this will be substantially reduced once the benefits of mass production are fully realized; and (3) in any event, the relatively slight increase in cost will be a small price to pay for the unlocking of the * * * valuable UHF channels. The NAB submits that there are obvious parallels to DTV. It states that the DTV process is a unique transition of the entire television system to digital technology. The NAB and NABA state that while the price the public will pay to purchase an all channel receiver will initially be higher, the costs of such receivers will fall substantially as production increases. And finally, they state that the higher costs will be a small price to pay for “unlocking” the valuable DTV channels and, in addition, unlocking the valuable NTSC channels to be returned for public benefit and use.

        5. In addition, in their reply comments CEA and Thomson argue that the ACRA does not provide the Commission authority to require DTV tuners in every set. They argue that in passing the ACRA, Congress only intended to ensure the viability of UHF broadcasting and that it did not foresee or intend to accommodate new modes of broadcasting, particularly digital broadcasting. CEA further argues that Congress explicitly considered but rejected empowering the Commission generally to set receiver standards. Thomson argues that in the DTV proceeding, the Commission itself acknowledged the ACRA's narrow scope in this area when it found that the Act does not mandate the manufacture of so-called dual-mode receivers, i.e., receivers capable of receiving both analog and DTV signals.
        6. As NAB, NABA and other commenters observe, DTV receivers are not yet available in the market in large quantities, and certainly not in sufficient volume to support a rapid transition to an all-digital broadcast television service. We request comment on whether a requirement to include DTV reception capability in certain new television sets could help to develop the production volumes needed to bring DTV prices down to where they are more attractive to consumers and thereby promote the more rapid development of high DTV set penetration. In particular, we seek comment on whether we should require that certain types of TV sets have the capability to demodulate and decode over-the-air DTV signals. Under such a requirement, TV sets would have to provide useable picture and sound commensurate with their video display and audio capabilities when receiving any of the recognized ATSC video formats. Such a requirement would not necessitate full HDTV capability in TV sets. For example, a TV set that had only NTSC level display capabilities would only have to be able to demodulate and decode DTV signals and present them at a standard definition display level equivalent to its NTSC capabilities. This capability would reduce reliance on analog television transmissions. We are, however, concerned about the potential impact of such a requirement on consumers, especially low-income consumers. We therefore seek comment on the initial projected costs of such a requirement as well as realistic estimates of those costs over time. We also seek comment on consumer television receiver purchasing patterns, especially those of low-income consumers.

        7. We request comment on how best to implement DTV reception capability requirements, if we were to adopt them. We recognize that consumer electronics manufacturers would need time to implement such a requirement. The cost of DTV receiver components is still relatively high and it would not be economically feasible at this point to include DTV capability in smaller screen receivers, i.e., 20 inches or less. In this regard, we understand the cost considerations associated with including DTV reception capability in TV sets now, and do not wish to impose undue costs on consumers or disrupt TV set pricing structure or the availability of TV receivers to consumers. One approach to minimize the impact of such a requirement would be to phase it in over time to take advantage of declining costs associated with electronics manufacturing volumes and apply the requirement initially only to receivers with large screen sizes, e.g., 32 inches and above. Such receivers are typically higher priced units where the cost of DTV components would be a smaller percentage of the cost of a receiver. Each manufacturer would be required to include DTV capability in an increasing percentage of the large screen units it markets each year. For example, in the first year of the requirements, 20 percent or some other percentage of each manufacturer's large screen models would be required to have DTV receive capability and this percentage would increase on some schedule in subsequent years. Separate set-top DTV receiver could be included in meeting the reception capability requirements. As the costs of components decrease, the requirement for DTV reception capability could be applied to more units each year by reducing the threshold screen size and by increasing the portion of units that would have to comply. We seek comment on what would be an appropriate minimum screen size for an initial requirement and the schedule for extending such requirements to other receivers. We also request comment on the cost implications of DTV reception capability requirements for both consumers and manufacturers.
        8. We further request comment on whether any DTV reception capability requirements we might adopt should be based on percentages of the models marketed by each manufacturer, rather than units of production. In addition, we invite interested parties to submit other plans that would result in new TV receivers being equipped with DTV capability that would result in widespread penetration of TV receivers in households to enable the transition from analog to digital TV service consistent with the intent of Congress in 47 U.S.C. 309(j)(14), and a discussion of the likely effectiveness of such alternative plans.
        9. With regard to our authority to establish requirements for DTV receiver capabilities, we observe that 47 U.S.C. 303(s), as noted above, provides the Commission with authority to require that television receivers be capable of adequately receiving all frequencies allocated by the Commission to television broadcasting. While Congress in 1962 did not anticipate the advent of digital television service, a plain language reading of this section does not limit our authority to analog television receivers, nor does it limit our authority to channels in the UHF band. Inasmuch as the frequencies allocated to television broadcasting now include those channels allotted for DTV service, 47 U.S.C. 303(s) provides the Commission with authority to require that television receivers be capable of adequately receiving those channels. Moreover, the ACRA's legislative history suggests that Congress' reasoning in enacting the statute supports such a conclusion. We seek comment on how to construct any DTV tuner requirement consistent with any relevant statutory authority, including 47 U.S.C. 303(s) and any other relevant sections of the Communications Act.
        10. Receiver Labeling. Turning to another issue concerning digital television receivers, we observe that television receivers could be marketed that do not have the capability to receive over-the-air broadcast signals. For example, receivers intended only for use in receiving cable or direct broadcast satellite service might not include the capability to tune over-the-air broadcast television signals. While we are not aware of any such receivers that are being marketed at this time, such devices would be permissible under our rules. In this regard, the all-channel reception provisions of 47 CFR 15.117(b) would not apply to receivers that did not have any capability for receiving broadcast signals. We expect that consumers will continue to expect that all digital television receivers will be able to receive over-the-air digital broadcast signals and that manufacturers therefore will continue to equip all television receivers with this capability. If, however, manufacturers do at some point chose to produce receivers that can be used with digital cable systems but cannot receive digital broadcast signals, we believe that consumers should be so notified prior to purchase. We therefore intend to explore this question and possible Commission responses. We seek comment on whether any manufacturers are producing or plan to produce digital television receivers that can receive digital cable transmissions but are incapable of receiving digital broadcast signals off-the-air. We also seek comment on whether the Commission should require any digital television receivers that cannot receive off-the-air digital broadcast signals to carry a label informing consumers of this limitation on the receivers' functionality. Parties supporting such a labeling requirement may wish to propose labels keeping in mind our goals of ease of understanding for consumers and low cost and ease of compliance for manufacturers.
        11. Update of the DTV Standard. As indicated above, there has been an update to the ATSC DTV Standard since 1996, when we adopted it. When we incorporated most of the ATSC DTV Standard into our rules by reference, we made reference to the version of that Standard which was the most recent iteration of the Standard at that time. Specifically, we incorporated by reference “ATSC Digital Television Standard, 16 Sep 95.” However, as commenters noted, this standard has been updated since we incorporated it into our rules. Accordingly, we seek comment on whether we should revise our rules to include reference the March 16, 2000, amendment to the standard. Commenters favoring revision should specify whether we should refrain from incorporating any parts of this update, as we did with regard to the eighteen video format constraints in the original ATSC DTV Standard. Additionally, we specifically do not plan on considering in regard to updating the standard comments urging us to amend the standard with regard to its 8 VSB modulation component, or to fundamentally change the standard in any other way such as, for example, by prohibiting its use of interlaced scanning, changing the audio component of the standard, or altering its frame aspect ratios.
        III. Conclusion

        12. At the outset of this proceeding we stated that the conversion to digital is progressing and television stations are working hard to convert to DTV. The comments we received in response to the NPRM have mostly further confirmed our initial impressions. We believe that the conversion is, indeed, making progress and that the actions we are taking, and proposing, herein will hasten this transition. Particularly, our choice of an early channel election for commercial licensees and our decision not to require replication of NTSC service should well conduce to allowing stations to make plans and purchase equipment at the earliest practicable times. We believe that specific receiver performance standards are neither necessary nor useful at this time but we are inclined that a mandatory phase-in of a DTV reception capability in receivers will best ensure the rapid progress of the transition at a reasonable cost to consumers. We will continue to monitor the progress toward the DTV conversion and will in future reviews take those actions needed to accomplish a smooth transition by December 31, 2006.
        IV. Administrative Matters
        13. Comments and Reply Comments. Pursuant to 47 CFR 1.415, 1.419, interested parties may file comments on or before April 6, 2001, and reply comments on or before May 7, 2001. 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 24,121 (1998).

        14. Comments filed through 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, commenters should include their full name, Postal Service mailing address, and the applicable docket or rulemaking number. Parties may also submit an electronic comment via 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.
        15. Parties who choose to file by paper must file an original and four copies of each filing. All filings must be sent to the Commission's Secretary, Magalie Roman Salas, Office of the Secretary, Federal Communications Commission, 445 Twelfth Street, SW., TW-A325, Washington, DC 20554.
        16. Parties who choose to file paper should also submit their comments on diskette. These diskettes should be addressed to: Wanda Hardy, Paralegal Specialist, Mass Media Bureau, Policy and Rules Division, Federal Communications Commission, 445 Twelfth Street, SW., 2-C221, Washington, DC 20554. Such a submission should be on a 3.5 inch diskette formatted in an IBM compatible format using Word 97 or compatible software. The diskette should be accompanied by a cover letter and should be submitted in “read only” mode. The diskette should be clearly labeled with the commenter's name, proceeding (including the lead docket number in this case (MM Docket No. 00-39), type of pleading (comment or reply comment), date of submission, and the name of the electronic file on the diskette. The label should also include the following phrase “Disk Copy—Not an Original.” Each diskette should contain only one party's pleadings, preferably in a single electronic file. In addition, commenters must sent diskette copies to the Commission's copy contractor, International Transcription Service, Inc., 445 Twelfth Street, SW., CY-B402, Washington, DC 20554.

        17. Comments and reply comments will be available for public inspection during regular business hours in the FCC Reference Center, Federal Communications Commission, 445 Twelfth Street, SW., CY-A257, Washington, DC 20554. Persons with disabilities who need assistance in the FCC Reference Center may contact Bill Cline at (202) 418-0270, (202) 418-2555 TTY, or bcline@fcc.gov. Comments and reply comments also will be available electronically at the Commission's Disabilities Issues Task Force web site: www.fcc.gov/dtf. Comments and reply comments are available electronically in ASCII text, Word 97, and Adobe Acrobat.

        18. This document is available in alternative formats (computer diskette, large print, audio cassette, and Braille). Persons who need documents in such formats may contact Martha Contee at (202) 4810-0260, TTY (202) 418-2555, or mcontee@fcc.gov.
        19. Ex Parte Rules. This proceeding will be treated as a “permit-but-disclose” proceeding, subject to the “permit-but-disclose” requirements under 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 or 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 section 47 CFR 1.1206(b).
        20. Initial Regulatory Flexibility Analysis. With respect to this FNPRM, an Initial Regulatory Flexibility Analysis (IRFA) is contained. As required by the Regulatory Flexibility Act, see 5 U.S.C. 603, the Commission has prepared an IRFA of the possible economic impact on small entities of the proposals contained in this FNPRM. Written public comments are requested on the IRFA. Comments on the IRFA must be filed in accordance with the same filing deadlines as comments on the FNPRM, and must have a distinct heading designating them as a response to the IRFA.

        21. As required by the Regulatory Flexibility Act (RFA), the Commission has prepared this present Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on small entities by the policies and rules proposed in this FNPRM. Written public comments are requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments on the FNPRM provided above. The Commission will send a copy of the FNPRM, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (SBA). See 5 U.S.C. 603(a). In addition, the FNPRM and the IRFA (or summaries thereof) will be published in the Federal Register.
        22. Need for, and Objectives of, the Proposed Rules. Beginning in 1987, the Commission undertook to bring the most up-to-date technology to broadcast television. That resulted in several Commission decisions including those adopting a digital television (DTV) standard, DTV service rules, and a Table of DTV Allotments. The Table of DTV Allotments provides each existing television broadcaster with a second channel on which to operate a DTV station for the transition period after which one of its channels will revert to the government for use in other services. The transition deadline established by Congress is December 31, 2006. The Commission is permitted to extend that deadline on a market-by-market basis if more than 15 percent of viewers will be left without service from (1) a digital television receiver; (2) an analog television receiver equipped with a digital/analog converter; or (3) a multi-channel video provider that carries local broadcast stations. The Commission is issuing this FNPRM to explore whether a requirement to include DTV reception capability in new television sets would help develop the production volumes needed to bring DTV receiver prices down quickly to where they are more attractive to consumers and thereby promote the more rapid development of high DTV set penetration, enabling compliance with the statutory transition deadline.
        23. Legal Basis. This FNPRM is adopted pursuant to sections 1, 2(a), 4(i), 7, and 303 of the Communications Act, 47 U.S.C. 151, 152(a), 154(i), 157, and 303.
        24. Description and Estimate of the Number of Small Entities To Which the Proposed Rules Will Apply. The RFA 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 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 section 3 of the Small Business Act. 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.

        25. Pursuant to 5 U.S.C. 601(3), the statutory definition of a small business applies “unless an agency, after consultation with the Office of Advocacy of the [SBA] and after opportunity for public comment, establishes one or more definitions of such term which are appropriate to the activities of the agency and publishes such definition(s) in the Federal Register.” A “small organization” is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.” Nationwide, as of 1992, there were approximately 275,801 small organizations. “Small governmental jurisdiction” generally means “governments of cities, counties, towns, townships, villages, school districts, or special districts with a population of less than 50,000.” As of 1992, there were approximately 85,006 local governments in the United States. This number includes 38,978 counties, cities, and towns; of these, 37,566, or 96 percent, have populations of fewer than 50,000. The Census Bureau estimates that this ratio is approximately accurate for all governmental entities. Thus, of the 85,006 governmental entities, we estimate that 81,600 (91 percent) are small entities.
        26. Rules adopted in this proceeding could apply to manufacturers of DTV receiving equipment and, particularly, television receivers. The SBA has developed a definition of small entity for manufacturers of household audio and video equipment (SIC 3651). This includes all such companies employing 750 or fewer employees. The Commission has not developed a definition of small entities applicable to manufacturers of electronic equipment used by consumers, as compared to industrial use by television licensees and related businesses. Therefore, we will utilize the SBA definition applicable to manufacturers of Household Audio and Visual Equipment. According to the SBA's regulations, a household audio and visual equipment manufacturer must have 750 or fewer employees in order to qualify as a small business concern. Census Bureau data indicate that there are 410 U.S. firms that manufacture radio and television broadcasting and communications equipment, and that 386 of these firms have fewer than 500 employees and would be classified as small entities. The remaining 24 firms have 500 or more employees; however, we are unable to determine how many of those have fewer than 750 employees and therefore, also qualify as small entities under the SBA definition. Furthermore, the Census Bureau category is very broad and specific figures are not available as to how many of these firms are exclusive manufacturers of television equipment, and particularly television receivers, for consumers or how many are independently owned and operated. We conclude that there are approximately 386 small manufacturers of television equipment for consumer/household use but, in any even, no more than 410 are small entities.
        27. Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements. At this time, we do not expect that the proposed rules would impose any additional recordkeeping or recordkeeping requirements. However, compliance may require the manufacture of some types of DTV capable receivers. While this would have an impact on manufacturers of television receivers, it will be similarly costly for both large and small manufacturers and, in any event, the cost will ultimately be borne by the consumer. We seek comment on whether others perceive a need for extensive recordkeeping.
        28. Steps Taken to Minimize Significant Impact on Small Entities, and Significant Alternatives Considered. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): (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.
        29. The FNPRM recognizes that if the Commission were to require DTV reception capability in new television receivers that action would pose new burdens on consumer electronics manufacturers, especially in the initial period when production volumes are relatively low. The FNPRM further observes that the cost considerations associated with DTV reception capability are such that it could not be economically feasible at this point in time to include DTV capability in smaller screen receivers, i.e., 20 inches or less. We believe that as production increases, the price and size of the components needed for DTV reception will decline substantially, so that the incremental cost of including that capability in TV receivers will eventually become low. In addition, as the goal of this effort is to convert broadcast television service to digital operation, all television receivers will have to be able to receive DTV service at the end of the transition.

        30. In order to minimize the impact of a DTV reception capability requirement on manufacturers, if the Commission were to conclude that one were needed, the FNPRM suggests a plan by which the requirement would first apply to receivers with large screen sizes, i.e., 32 inches or larger. Larger screen receivers generally are more expensive units, so that the additional cost of manufacturing them with DTV capability would be a much lower percentage of the total cost than it would for smaller screen units. As discussed, the requirement would apply to only a small portion of larger screen receivers at first; over time the percentage of units that would have to have DTV reception capability would increase and the requirement would also be extended to smaller screen units in the same incremental manner. To minimize the impact on manufacturers, receivers would only be required to have the capability to receive and decode over-the-air DTV signals. Thus, TV sets subject to the requirement would only have to provide useable picture and sound commensurate with their video and sound capabilities when receiving any of the recognized ATSC video formats. The requirement as proposed would not mandate full HDTV capability in TV sets. We also requested comment on whether we should base a requirement on percentages of the models marketed by each manufacturer, rather than units of production. This should benefit small entities by allowing them to provide DTV capability in their larger receivers, with a higher profit margin, rather than requiring them to provide such capability across their product line including sets where the market is more price conscious and price sensitive.
        31. The FNPRM also solicits comment on a proposal to require receiver manufacturers to label as such television sets that are not capable of receiving over-the-air DTV broadcasts but which, instead are intended for digital use only in conjunction with cable television and/or broadcast satellite reception. This proposed requirement is intended to provide the consuming public with easily understandable information concerning the capabilities of the receivers being purchased.

        32. The principal alternatives for minimizing the impact of the transition on manufacturers include plans that would relax the schedule for the percentages of units required to comply. The FNPRM requests comments on this proposal and also invites interested parties to submit alternatives. The labeling proposal will be made as simple and inexpensive to comply with as possible to minimize the impact on small entity producers. Comments on how it may be made even simpler are solicited.
        33. Federal Rules that May Duplicate, Overlap, or Conflict With the Proposed Rules. None.
        34. Initial Paperwork Reduction Act Analysis. This FNPRM may contain either proposed or modified information collections. As part of our continuing effort to reduce paperwork burdens, we invite the general public to take this opportunity to comment on the information collections contained in this FNPRM, as required by the Paperwork Reduction Act of 1996. Public and agency comments are due at the same time as other comments on the FNPRM. Comments should address: (a) whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) ways to enhance the quality, utility, and clarity of the information collected; and (c) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology. In addition to filing comments with the Secretary, a copy of any comments on the information collections contained herein should be submitted to Judy Boley, Federal Communications Commission, 445 Twelfth Street, SW., Room C-1804, Washington, DC 20554, or via the Internet to jboley@fcc.gov and to Edward C. Springer, OMB Desk Officer, 10236 NEOB, 725 17th Street, NW., Washington, DC 20503 or via the Internet to Edward.Springer@omb.eop.gov.

        II. Ordering Clauses

        35. Pursuant to the authority contained 47 U.S.C. 151, 152(a), 154(i), 157 and 303, this FNPRM is adopted.

        36. The Commission's Consumer Information Bureau, Reference Information Center, shall send a copy of this FNPRM, including the Initial Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

          Federal Communications Commission.
          Shirley Suggs,
          Chief, Publications Branch.

      [FR Doc. 01-3638 Filed 2-12-01; 8:45 am]
      BILLING CODE 6712-01-P


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 648
        [Docket No.0909251266-81274-01]
        RIN 0648-XJ96
        Fisheries of the Northeastern United States; Summer Flounder, Scup, and Black Sea Bass Fisheries; 2009 Summer Flounder, Scup, and Black Sea Bass Specifications; 2009 Research Set-Aside Projects

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

          ACTION:
          Proposed specifications; request for comments.

          SUMMARY:
          NMFS proposes specifications for the 2009 summer flounder, scup, and black sea bass fisheries and provides notice of three conditionally approved projects that will be requesting Exempted Fishing Permits (EFPs) as part of the Mid-Atlantic Fishery Management Council's (Council) Research Set-Aside (RSA) program. The implementing regulations for the Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan (FMP) require NMFS to publish specifications for the upcoming fishing year for each of these species and to provide an opportunity for public comment. Furthermore, regulations under the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) require a notice to be published to provide interested parties the opportunity to comment on applications for EFPs. The intent of this action is to establish harvest levels that assure that the target fishing mortality rates (F) or exploitation rates specified for these species in the FMP are not exceeded and to allow for rebuilding of the stocks as well as to provide notice of EFP requests, all in accordance with the Magnuson-Stevens Act.

          DATES:
          Comments must be received on or before November 12, 2008.

          ADDRESSES:
          You may submit comments, identified by RIN 0648-XJ96, by any one of the following methods:

          • Electronic Submissions: Submit all electronic public comments via the Federal eRulemaking Portal http://www.regulations.gov.

          • Mail and hand delivery: Patricia A. Kurkul, Regional Administrator, NMFS, Northeast Regional Office, One Blackburn Drive, Gloucester, MA 01930. Mark the outside of the envelope: “Comments on 2009 Summer Flounder, Scup, and Black Sea Bass Specifications.”
          • Fax: (978) 281-9135.

          Instructions: All comments received are a part of the public record and will generally be posted to http://www.regulations.gov without change. All Personal Identifying Information (for example, name, address, etc.) voluntarily submitted by the commenter may be publicly accessible. Do not submit Confidential Business Information or otherwise sensitive or protected information.
          NMFS will accept anonymous comments (enter N/A in the required fields, if you wish to remain anonymous). You may submit attachments to electronic comments in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only.

          Copies of the specifications document, including the Environmental Assessment, Regulatory Impact Review, and Initial Regulatory Flexibility Analysis (EA/RIR/IRFA) and other supporting documents for the specifications are available from Daniel Furlong, Executive Director, Mid-Atlantic Fishery Management Council, Room 2115, Federal Building, 300 South Street, Dover, DE 19901-6790. These documents are also accessible via the Internet at http://www.nero.noaa.gov.

          FOR FURTHER INFORMATION CONTACT:
          Michael Ruccio, Fishery Policy Analyst, (978) 281-9104.

        SUPPLEMENTARY INFORMATION:
        Background

        The summer flounder, scup, and black sea bass fisheries are managed cooperatively by the Council and the Atlantic States Marine Fisheries Commission (Commission), in consultation with the New England and South Atlantic Fishery Management Councils. The management units specified in the FMP include summer flounder (Paralichthys dentatus) in U.S. waters of the Atlantic Ocean from the southern border of North Carolina northward to the U.S./Canada border, and scup (Stenotomus chrysops) and black sea bass (Centropristis striata) in U.S. waters of the Atlantic Ocean from 35°13.3′ N. lat. (the latitude of Cape Hatteras Lighthouse, Buxton, North Carolina) northward to the U.S./Canada border. Implementing regulations for these fisheries are found at 50 CFR part 648, subpart A (General Provisions), subpart G (summer flounder), subpart H (scup), and subpart I (black sea bass).
        The summer flounder, scup, and black sea bass regulations outline the process for specifying the annual commercial quotas and recreational harvest limits for the summer flounder, scup, and black sea bass fisheries, as well as other management measures (e.g., mesh requirements, minimum commercial fish sizes, gear restrictions, possession restrictions, and area restrictions) for these fisheries. The measures are intended to achieve the annual targets set forth for each species in the FMP, specified either as an F or an exploitation rate (the proportion of fish available at the beginning of the year that are removed by fishing during the year). Once the catch limits are established, they are divided into quotas based on formulas contained within the FMP.
        The Magnuson-Stevens Fishery Conservation and Management Reauthorization Act of 2006 (MSRA), signed into law by President Bush on January 12, 2007, added new requirements to involve the Council's Scientific and Statistical Committee (SSC) in the specification-setting process. Specifically, section 302(g)(1)(B) of the MSRA states that an SSC for each Regional Fishery Management Council ''shall provide its Council ongoing scientific advice for fishery management decisions, including recommendations for acceptable biological catch, preventing overfishing, maximum sustainable yield, and achieving rebuilding targets, and reports on stock status and health, bycatch, habitat status, social and economic impacts of management measures, and sustainability of fishing practices.'' The Acceptable Biological Catch (ABC) is a level of a stock catch that accounts for the scientific uncertainty in estimate of that stock's defined overfishing level. This new requirement implemented by the MSRA was put into practice by the Council for the first time in the 2009 specification setting process. The SSC met on July 31, 2008.
        The FMP's implementing regulations also require that a Monitoring Committee for each species review the best available scientific information and recommend catch limits and other management measures that will mitigate management uncertainty and/or implementation imprecision to ensure the target F or exploitation rate for each fishery is not exceeded. The Monitoring Committees met on August 1, 2008.
        The Council and the Commission's Summer Flounder, Scup, and Black Sea Bass Management Board (Board) consider the SSC and Monitoring Committees' recommendations and any public comment and make their own recommendations. While the Board action is final, the Council's recommendations must be reviewed by NMFS to assure that they comply with FMP objectives and applicable law. The Council and Board made their recommendations at a joint meeting held August 5-7, 2008.
        Explanation of RSA

          Background: In 2001, regulations were implemented under Framework Adjustment 1 to the FMP to allow up to 3 percent of the Total Allowable Landings (TAL) for each species to be set aside each year for scientific research purposes. For the 2009 fishing year, a Request for Proposals was published to solicit research proposals based upon the research priorities that were identified by the Council (73 FR 7528, February 8, 2008).
        NMFS has conditionally approved three research projects for the harvest of the portion of the quota that has been recommended by the Council to be set aside for research purposes. In anticipation of receiving applications for EFPs to conduct this research, the Assistant Regional Administrator for Sustainable Fisheries, Northeast Region, NMFS (Assistant Regional Administrator), has made a preliminary determination that the activities authorized under the EFPs issued in response to the approved RSA projects would be consistent with the goals and objectives of the FMP. However, further review and consultation may be necessary before a final determination is made to issue any EFP.

        For informational purposes, these proposed specifications include a statement indicating the amount of quota that has been preliminarily set aside for research purposes (a percentage of the TAL for each fishery, not to exceed 3 percent, as recommended by the Council and Board), and a brief description of the RSA projects, including exemptions requested, and the amount of RSA requested for each project. The RSA amounts may be adjusted, following consultation with RSA applicants, in the final rule establishing the 2009 specifications for the summer flounder, scup, and black sea bass fisheries. If the total amount of RSA is not awarded, NMFS will publish a document in the Federal Register to restore the unused amount to the applicable TAL.

        For 2008, the conditionally approved projects may collectively be awarded the following amounts of RSA: 553,500 lb (251 mt) of summer flounder; 220,200 lb (100 mt) of scup; and 69,000 lb (31 mt) of black sea bass. The projects may also be collectively awarded up to 1.3 million lb (590 mt) of Loligo squid; 844,680 (383 mt) of Atlantic bluefish; and 33,069 lb (15 mt) of butterfish.

          2009 RSA Proposal Summaries: Project number 1 would conduct a fishery-independent scup survey that would utilize unvented fish traps fished on hard bottom areas in southern New England waters to characterize the size composition of the scup population. Survey activities would be conducted June 15-October 15, 2009, at 10 rocky bottom study sites located offshore, where there is a minimal scup pot fishery and no active trawl fishery, and at two scup spawning ground sites. Up to two vessels would conduct the research survey. Sampling would occur off the coasts of Rhode Island and southern Massachusetts. Up to four vessels would harvest the RSA during the period January 1-December 31, 2009. The principal investigators have requested exemptions from trip limits, gear requirements (excluding marine mammal avoidance and/or release devices), and closed seasons for harvest of RSA species. The preliminary RSA awarded for this project is 2,000 lb (0.9 mt) of summer flounder; 51,172 lb (23 mt) of scup; and 28,000 lb (13 mt) of black sea bass.

        Project number 2 would conduct a near-shore trawl survey in Mid-Atlantic waters between Gay Head, Massachusetts, and Cape Hatteras, North Carolina, including both Block Island and Rhode Island Sounds. A stratified random sampling of approximately 200 stations will occur in depths between 18-60 feet (8-18 m). The function of the survey would be to provide stock assessment data for summer flounder, scup, black sea bass, Loligo squid, butterfish, Atlantic bluefish, several species managed by the Commission such as weakfish and Atlantic croaker, and unmanaged forage species. The research aspects of the trawl survey will be conducted by one scientific research vessel. This vessel will operate under a Letter of Authorization (LOA) as provided for by the specific exemption for scientific research activities found at 50 CFR 600.745. Up to 35 vessels will harvest the RSA January 1-December 31, 2009, during commercial fishing operations, except that these vessels have requested exemptions for closed seasons and trip limits to harvest the RSA allocated to the project. The preliminary RSA awarded to this project is 367,768 lb (167 mt) of summer flounder; 169,028 lb (77 mt) of scup; 41,000 lb (19 mt) of black sea bass; 97,750 lb (44 mt) of Atlantic bluefish; and 276,827 lb (126 mt) of Loligo squid.
        Project number 3 would conduct an evaluation of discard mortality for summer flounder in trawl fisheries. Combined sources of mortality and injury quantification that occur as part of trawling, tracking and tagging, and scuba diver observation will be utilized to provide an estimate of trawl-related mortality. Research sampling will be conducted adjacent to Little Egg Inlet off the New Jersey coast. Sampling would occur on the winter offshore fishing grounds south and east of Long Island, New York, between Veatch Canyon and Hudson Canyon during February-April 2009 and November-December 2009. Up to six vessels of opportunity will conduct the research activities and may simultaneously participate in harvesting RSA, if the season for summer flounder is closed or if more fish, above those needed for the research activities, are caught than are permitted by possession limits. The principal investigators have requested exemption from the commercial summer flounder minimum size so that fish smaller than 14 inches (35.5 cm) may be temporarily retained to assess viability and to affix tags and data transmitters. Up to 35 vessels will harvest the RSA January 1-December 31, 2009, during commercial fishing operations, except that these vessels have requested exemptions for closed seasons and trip limits to harvest the RSA allocated to the project. The preliminary RSA awarded to this project is 183,732 lb (83 mt) of summer flounder. Regulations under the Magnuson-Stevens Act require publication of this notification to provide interested parties the opportunity to comment on applications for proposed EFPs.
        Explanation of Quota Adjustments Due to Quota Overages

        This action proposes commercial quotas based on the proposed TALs and Total Allowable Catches (TACs) and the formulas for allocation contained in the FMP. In 2002, NMFS published final regulations to implement a regulatory amendment (67 FR 6877, February 14, 2002) that revised the way in which the commercial quotas for summer flounder, scup, and black sea bass are adjusted if landings in any fishing year exceed the quota allocated (thus resulting in a quota overage). If NMFS approves a different TAL or TAC at the final specifications stage (i.e., in the final rule), the commercial quotas will be recalculated based on the formulas in the FMP. Likewise, if new information indicates that overages have occurred and deductions are necessary, NMFS will publish notice of the adjusted quotas in the Federal Register. NMFS anticipates that the information necessary to determine whether overage deductions are necessary will be available by the time the final specifications are published. The commercial quotas contained in these proposed specifications for summer flounder, scup, and black sea bass are not adjusted for any overages that have occurred. The final specifications will contain quotas that have been fully adjusted consistent with the procedures described above.
        Summer Flounder

        The timeline for completion of the summer flounder rebuilding program was extended from January 1, 2010, to no later than January 1, 2013, by section 120(a) of the MSRA. The Southern Demersal Working Group (SDWG), a technical stock assessment group composed of personnel from the Northeast Fisheries Science Center (NEFSC), NMFS Northeast Regional Office, Council, Commission, state marine fisheries agencies, academia, and independently-hired scientists, conducted a benchmark stock assessment of summer flounder in 2008. The recommendations of the SDWG were externally peer reviewed by scientists provided by the Center for Independent Experts (CIE) through the NEFSC Stock Assessment Workshop (SAW)/Stock Assessment Review Committee (SARC) process. The 47th SARC, which peer reviewed the benchmark assessment conducted by the SDWG, upheld the recommendations of the SDWG described in the stock assessment, resulting in changes to the modeling approach used, adoption of revised F threshold and F management target values, and a change in assumed natural mortality. These changes resulted in modifications to the stock status determination criteria. Information regarding the results of the benchmark assessment, including summary information, reports provided by individual peer reviewers, and the detailed final assessment document can be found on the NEFSC SAW/SARC web page at: http://www.nefsc.noaa.gov/nefsc/saw/.

        The 2008 SDWG benchmark assessment shows that summer flounder were not overfished and that overfishing did not occur in 2007, the year for which the most recent, complete fishery-dependent data are available. The fishing mortality rate in 2007 was estimated to be 0.288, below the benchmark assessment's overfishing threshold (FMSY=FTHRESHOLD=F35 percent
          A

          =0.310) but above the assessment-recommended management target (FTARGET=F40 percent=0.255). FMSY is the fishing mortality rate that, if applied constantly, would result in maximum sustainable yield (MSY) from the summer flounder stock. When F>FTHRESHOLD, overfishing is considered to be occurring. Fishing year 2007 is the first year of the rebuilding program in which overfishing did not occur on summer flounder. Spawning stock biomass (SSB) was estimated to be 95.6 million lbs (43,363 mt) in 2007, about 72 percent of the SSB35 percent (SSBMSY target proxy reference point) = 132.4 million lbs (60,056 mt). The benchmark assessment shows that the summer flounder stock has not been overfished since 2001. The average recruitment from 1982 to 2007 is 41.6 million fish. The 2007 year class is considered slightly below average at approximately 40.0 million fish.

            A The fishing mortality rate which reduces the spawning stock biomass per recruit (SSB/R) to 35 percent of the amount present in the absence of fishing. More generally, FX percent is the fishing mortality rate that reduces the SSB/R to x percent of the level that would exist in the absence of fishing.

        The SSC, using the updated assessment information, recommended to the Council that the 2009 TAL be set no higher than 19.02 million lb (8,627 mt). Their recommendation was based on utilizing the benchmark assessment-recommended FTARGET and related assessment information and methodology to derive an ABC that accounts for scientific uncertainty within the assessment. The Monitoring Committee considered the SSC's ABC recommendation, the assessment results, and management uncertainty. The Monitoring Committee recommended that the TAL could be set within a range of 19.02-17.87 million lb (8,627-8,105 mt) to account for imprecision associated with implementation of the management program.

        The Council and Board considered the SSC and Monitoring Committee recommendations before adopting a 2009 TAL of 18.45 million lb (8,368 mt) to recommend to NMFS. This TAL is the mid-point in the range recommended by the Monitoring Committee and is lower than the SSC's recommendation for ABC. This TAL has a 63-percent probability of not exceeding the F target in 2009 and a 97-percent probability of constraining fishing mortality below the overfishing threshold (FMSY = F35 percent), and is thus expected to achieve the required stock rebuilding for summer flounder to exceed the BMSY target by the January 1, 2013, deadline. This would be a 17-percent increase from the 2008 TAL of 15.77 million lb (7,153 mt). All other management measures were recommended to remain status quo.

        The regulations state that the Council shall recommend, and NMFS shall implement, measures (including the TAL) necessary to achieve, with at least a 50-percent probability of success, a fishing mortality rate that produces the maximum yield per recruit (FMAX). However, Framework Adjustment 7 to the FMP (Framework 7) was implemented October 1, 2007 (72 FR 55704), to ensure that the best available scientific information could be adopted without delay by the Council for use in managing summer flounder. As such, the SDWG benchmark assessment recommended FMSY=F35 percent is now the best available fishing mortality rate that produces the optimum yield per recruit and is the threshold value for assessing whether overfishing is occurring on summer flounder, replacing FMAX. A 2000 Federal Court Order (Natural Resources Defense Council v. Daley, Civil No. 1:99 CV 00221 (JLG)) also requires the annual summer flounder TAL to have at least a 50-percent probability of success. As previously stated, the Council and Board's recommended TAL of 18.45 million lb (8,368 mt) has a 97-percent probability of constraining fishing mortality below the overfishing threshold of FMSY=F35 percent and a 63-percent probability of constraining fishing mortality below the assessment-recommended management target of F40 percent. This TAL also has a 83-percent probability of constraining fishing mortality below the fishing mortality level (FREBUILD=0.274) that is expected to achieve the exact biomass target (BMSY) required under the rebuilding plan by January 1, 2013. In the past two years, TALs with a 75-percent probability of achieving FREBUILD have been implemented for the summer flounder fishery. NMFS is proposing to implement a TAL of 18.45 million lb (8,368 mt) for 2009, consistent with the Council's and Board's recommendation.
        The FMP specifies that the TAL is to be allocated 60 percent to the commercial sector and 40 percent to the recreational sector; therefore, the initial TAL would be allocated 11.07 million lb (5,021 mt) to the commercial sector and 7.38 million lb (3,348 mt) to the recreational sector. The Council and Board also agreed to set aside up to 3 percent (553,500 lb (251 mt)) of the summer flounder TAL for research activities. After deducting the RSA, the TAL would be divided into a commercial quota of 10,737,900 lb (4,871 mt) and a recreational harvest limit of 7,158,600 lb (3,247 mt).
        Table 1 presents the proposed allocations by state with and without the commercial portion of the RSA deduction. These state quota allocations are preliminary and are subject to reductions if there are overages of states quotas carried over from a previous fishing year (using the landings information and procedures described earlier). Any commercial quota adjustments to account for overages will be included in the final rule implementing these specifications.

          Table 1—2009 Proposed Initial Summer Flounder State Commercial Quotas

            State
            Percent Share
            Commercial Quota
            lb
            kg2

            Commercial Quota less RSA1

            lb
            kg2

            ME
            0.04756
            5,265
            2,388
            5,107
            2,317

            NH
            0.00046
            51
            23
            49
            22

            MA
            6.82046
            755,025
            342,479
            732,374
            332,205

            RI
            15.68298
            1,736,106
            787,498
            1,684,023
            763,873

            CT
            2.25708
            249,859
            113,336
            242,363
            109,936

            NY
            7.64699
            846,522
            383,982
            821,126
            372,463

            NJ
            16.72499
            1,851,456
            839,821
            1,795,913
            814,626

            DE
            0.01779
            1,969
            893
            1,910
            866

            MD
            2.03910
            225,728
            102,390
            218,957
            99,319

            VA
            21.31676
            2,359,765
            1,070,390
            2,288,972
            1,038,278

            NC
            27.44584
            3,038,254
            1,378,152
            2,947,107
            1,336,808

              Total3

            100.00001
            11,070,001
            5,021,353
            10,737,901
            4,870,712

            1 Preliminary Research Set-Aside amount is 553,500 lb (251 mt).

            2 Kilograms are as converted from pounds and do not sum to the converted total due to rounding.

            3 Rounding of quotas results in totals exceeding 100 percent.

        The Commission is expected to maintain the voluntary measures currently in place to reduce regulatory discards that occur as a result of landing limits established by the states. The Commission established a system whereby 15 percent of each state's quota would be voluntarily set aside each year to enable vessels to land an incidental catch allowance after the directed fishery has been closed. The intent of the incidental catch set-aside is to reduce discards by allowing fishermen to land summer flounder caught incidentally in other fisheries during the year, while also ensuring that the state's overall quota is not exceeded. These Commission set-asides are not included in these proposed specifications because these measures are not authorized by the FMP and NMFS does not have authority to implement them.
        Scup
        The scup stock is considered overfished when the 3-year average of scup SSB is less than the biomass threshold (2.77 kg/tow; the maximum NEFSC spring survey 3-year average of SSB). In 2005, the NEFSC 3-year SSB index value decreased to 0.69 kg/tow, indicating that the stock was again below the minimum biomass threshold and considered overfished. Fishing year 2009 is the second year of the scup rebuilding program implemented in Amendment 14 to the FMP (72 FR 40077, July 23, 2007). The Amendment 14 rebuilding plan applies a constant F of 0.10 in each year of the 7-year rebuilding period.
        The 2007 NEFSC Spring SSB 3-year average (2006-2008) index value of 1.16 kg/tow remains below the minimum biomass threshold of 2.77 kg/tow. While this is a 52-percent increase from the 2006 value of 0.76 kg/tow, the scup stock is considered overfished. The SSC, Monitoring Committee, Council, and Board recommended a status quo initial TAL of 7.34 million lb (3,329 mt). Using the F=0.10 target exploitation rate specified in the Amendment 14 scup rebuilding plan would result in an initial TAL of 11.18 million lb (5,384 mt), a 52-percent increase from the 2008 TAL/status quo. The updated 3-year index value of 1.16 kg/tow is below the rebuilding plan projected value for 2006-2008 of 2.08 kg/tow, indicating rebuilding progress is currently behind the schedule established in Amendment 14. The SSC, Monitoring Committee, Council, and Board cited the need to ensure that rebuilding objectives are met in the early years of the program to avoid possible significant impacts in later years, as has occurred with a number of rebuilding efforts for other species that have fallen behind schedule. These groups also raised the issue of uncertainty surrounding the scup stock status, discard estimates, and survey inter-annual variation as a rationale for recommending status quo for 2009.
        Scup discard estimates are deducted from both sectors' TACs to establish TALs for each sector, i.e., TAC minus discards equals TAL. The FMP specifies that the TAC associated with a given exploitation rate be allocated 78 percent to the commercial sector and 22 percent to the recreational sector. The commercial TAC, discards, and TAL (commercial quota) are then allocated on a percentage basis to three quota periods, as specified in the FMP: Winter I (January-April)--45.11 percent; Summer (May-October)--38.95 percent; and Winter II (November-December)--15.94 percent.
        The discard estimates used in the 2009 TAC calculations were based on the average discards of 2006 and 2007 for the commercial and recreational fisheries. This discard estimate is 4.36 million lb (1,978 mt), resulting in a TAC of 11.70 million lb (5,339 mt). NMFS is proposing to implement the Council and Board recommendation for an initial TAL of 7.34 million lb (3,329 mt) and an 11.70 million-lb (5,339 mt) TAC.
        The commercial TAC would be 9,126,000 lb (4,140 mt) and the recreational TAC would be 2,574,000 lb (1,168 mt). After deducting estimated discards (3.58 million lb (1,624 mt) for the commercial sector and 0.78 million lb (353 mt) for the recreational sector), the initial commercial quota would be 5.546 million lb (2,516 mt) and the recreational harvest limit would be 1.79 million lb (813 mt). The Council and Board agreed to set aside the maximum 3 percent (220,200 lb (100 mt)) of the TAL for research activities. Deducting this RSA would result in a commercial quota of 5,378,648 lb (2,006 mt) and a recreational harvest limit of 1,741,152 million lb (649 mt).
        The TAC and TAL (commercial quota and recreational harvest limit) calculation methodology is the same as utilized in 2008 and previous years. However, it should be noted that because the discard estimates used for 2009 are different than those utilized in 2008, the final commercial quota and recreational harvest limits are not status quo; only the initial TAL of 7.354 million lb (3,329 mt) is the same as 2008.
        The proposed 2009 specifications would maintain the status quo base scup possession limits, i.e., 30,000 lb (13,608 kg) for Winter I, to be reduced to 1,000 lb (454 kg) when 80 percent of the quota is projected to be reached, and 2,000 lb (907 kg) for Winter II.

        Table 2 presents the 2009 commercial allocation recommended by the Council, with and without the preliminary RSA deduction. These 2009 allocations are preliminary and may be subject to downward adjustment in the final rule implementing these specifications due to 2008 or other previously unaccounted for overages, based on the procedures for calculating overages described earlier.

          Table 2—2009 Proposed Initial TAC, Initial Commercial Scup Quota, and Possession Limits

            Period
            Percent
            TAC in lb (mt)
            Discards in lb (mt)
            Commercial Quota in lb (mt)
            Commercial Quota less RSA in lb (mt)
            Possession Limits in lb (kg)

            Winter I
            45.11
            4,116,739 (1,867)
            1,614,938 (732)
            2,501,801 (1,134)
            2,426,308 (1,100)
            30,0001 (13,608)

            Summer
            38.95
            3,554,577 (1,612)
            1,394,410 (632)
            2,160,167 (980)
            2,094,983 (950)
            n/a

            Winter II
            15.94
            1,454,684 (660)
            570,652 (259)
            884,032 (401)
            857,356 (389)
            2,000 (907)

              Total2

            100.00
            9,126,000 (3,139)
            3,580,000 (1,623)
            5,546,000 (2,516)
            5,378,648 (2,440)

            1The Winter I landing limit would drop to 1,000 lb (454 kg) upon attainment of 80 percent of the seasonal allocation.

            2Totals subject to rounding error.
          n/a-Not applicable

        The final rule to implement Framework 3 to the FMP (68 FR 62250, November 3, 2003) implemented a process, for years in which the full Winter I commercial scup quota is not harvested, to allow unused quota from the Winter I period to be rolled over to the quota for the Winter II period. As shown in Table 3, the proposed specifications would maintain the status quo Winter II possession limit-to-rollover amount ratios (i.e., 1,500 lb (0.68 mt) per 500,000 lb (227 mt) of unused Winter I period quota).

          Table 3—Potential Increase in Winter II Possession Limits Based on the Amount of Scup Rolled Over from Winter I to Winter II Period

            Initial Winter II Possession Limit
            lb
            kg
            Rollover from Winter I to Winter II
            lb
            mt
            Increase in Initial Winter II Possession Limit
            lb
            kg
            Final Winter II Possession Limit after Rollover from Winter I to Winter II
            lb
            kg

            2,000
            907
            0-499,999
            0-227
            0
            0
            2,000
            907

            2,000
            907
            500,000-999,999
            227-454
            1,500
            680
            3,500
            1,588

            2,000
            907
            1,000,000-1,499,999
            454-680
            3,000
            1,361
            5,000
            2,268

            2,000
            907
            1,500,000-1,999,999
            680-907
            4,500
            2,041
            6,500
            2,948

            2,000
            907
            2,000,000-2,500,000
            907-1,134
            6,000
            2,722
            8,000
            3,629

        Black Sea Bass

        Amendment 12 to the FMP indicated that the black sea bass stock, which was determined by SARC 27 to be overfished in 1998, could be rebuilt to the target biomass within a 10-year period, i.e., by 2010. The current target exploitation rate is based on the current estimate of FMAX=FMSY=FREBUILD, or 0.33 (25.6 percent). The northern stock of black sea bass was last assessed at the 43rd SAW in June 2006. The SARC 43 Panel did not consider the stock assessment to provide an adequate basis to evaluate stock status against the biological reference points, but did not recommend any other reference points to replace them.
        The most recent NEFSC spring survey results indicate that the exploitable biomass of black sea bass decreased in 2007. The 2007 biomass index, i.e., the 3-year average exploitable biomass for 2005 through 2007, is estimated to be 0.29 kg/tow, below the threshold biomass value of 0.976 kg/tow. Based on these results, if the biological reference points in the FMP are applied, black sea bass once again would be considered to be overfished.
        The SSC, Monitoring Committee, Council, and Board recommended a 2009 TAL of 2.30 million lb (1,043 mt) for 2009, as calculated using the methodology in the rebuilding plan. This would be a 45-percent decrease from the 2008 TAL of 4.22 million lb (1,914 mt).
        NMFS proposes to implement a 2009 black sea bass TAL of 2.3 million lb (1,043 mt), consistent with the Council and Board recommendations. The FMP specifies that the TAL associated with a given exploitation rate be allocated 49 percent to the commercial sector and 51 percent to the recreational sector; therefore, the initial TAL would be allocated 1.127 million lb (511 mt) to the commercial sector and 1.173 million lb (532 mt) to the recreational sector. The Council and Board also agreed to set aside up to 3 percent (69,000 lb (31 mt)) of the black sea bass TAL for research activities. After deducting the RSA, the TAL would be divided into a commercial quota of 1,093,190 lb (456 mt) and a recreational harvest limit of 1,137,810 lb (516 mt), as specified in the FMP.

        Classification
        Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this proposed rule is consistent with the Summer Flounder, Scup, and Black Sea Bass FMP, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment.
        These proposed specifications are exempt from review under Executive Order 12866.

        An IRFA was prepared, as required by section 603 of the Regulatory Flexibility Act (RFA). The IRFA describes the economic impact these proposed specifications, if adopted, would have on small entities. A description of the action, why it is being considered, and the legal basis for this action are contained in the preamble to this proposed rule. A copy of this analysis is available from NMFS (see ADDRESSES). A summary of the analysis follows.
        The total gross revenue for the individual vessels that would be directly regulated by this action is less than $4.0 million for commercial fishing and $6.5 million for recreational fishing activities. All vessels that would be impacted by this proposed rulemaking are therefore considered to be small entities and, thus, there would be no disproportionate impacts between large and small entities as a result of the proposed rule. The categories of small entities likely to be affected by this action include commercial and charter/party vessel owners holding an active Federal permit for summer flounder, scup, or black sea bass, as well as owners of vessels that fish for any of these species in state waters. The Council estimates that the proposed 2009 specifications could affect 2,263 vessels that held a Federal summer flounder, scup, and/or black sea bass permit in 2007 (the most recent year of complete permit data). However, the more immediate impact of this rule will likely be felt by the 891 vessels that actively participated in these fisheries (i.e., landed these species) in 2007.
        There are no new reporting or recordkeeping requirements contained in any of the alternatives considered for this action. In addition, NMFS is not aware of any relevant Federal rules that may duplicate, overlap, or conflict with this proposed rule.
        If the Council took no action regarding the 2009 specifications the following would occur: (1) No specifications for the 2009 summer flounder, scup, and black sea bass fisheries; (2) the indefinite management measures (minimum mesh sizes, minimum sizes, possession limits, permit and reporting requirements, etc.) would remain unchanged; (3) there would be no quota set-aside allocated to research in 2009; and (4) there would be no specific cap on the allowable annual landings in these fisheries (i.e., there would be no quotas). Implementation of the no action alternative would be inconsistent with the goals and objectives of the FMP, its implementing regulations, and the Magnuson-Stevens Act. Under the no action alternative, the fisheries would operate without an identified cap on allowable landings because the quotas implemented for 2008 expire on December 31, 2008, and there are no provisions to roll-over those quota provisions into 2009 if specifications are not published for the year. Therefore, the no action alternative is not considered to be a reasonable alternative to the preferred action.The Council analyzed three TAL alternatives for 2009. Of these, one alternative, labeled Alternative 2, contained the most restrictive TAL options (i.e., lowest catch levels). While this alternative would achieve the objectives of the proposed action for all three species, it has the highest potential economic impact on small entities in the form of potential foregone fishing opportunities. Alternative 2 was not preferred by the Council because other alternatives considered have lower impacts on small entities while achieving the stated objectives of this proposed rule.
        The Council analyzed two TAL alternatives that would accomplish the stated objectives of the proposed action, consistent with applicable statutes, and that would minimize significant economic impact of the proposed rule on small entities. Alternative 1 (Council's preferred) would implement the following TALs in 2009: Summer flounder, 18.45 million lb (8,369 mt); scup, 7.34 million lb (3,329 mt); and black sea bass, 2.30 million lb (1,043 mt). Alternative 3 (least restrictive/highest quota levels) would implement the following TALs in 2009: Summer flounder, 19.02 million lb (8,627 mt); scup, 11.18 million lb (5,071 mt); and black sea bass, 4.22 million lb (1,914 mt).
        Council staff conducted preliminary analysis on the potential economic impact of changes in recreational harvest limits associated with the alternatives. For the purposes of the RFA, the only entities affected by the proposed changes to the recreational harvest limit are owners and operators of recreational party/charter (for hire) vessels. These analyses indicate that it is possible that adverse economic impacts could occur under Alternative 1 but would not be likely under Alternative 3. The methods utilized in the analysis compare 2007 recreational landings to the respective alternative's recreational harvest limit and make inferences on possible negative impacts to the demand for party/charter vessel trips and angler participation. While useful for a general statement on potential impacts, demand for party/charter trips has remained relatively stable for many years regardless of increases or decreases in the recreational harvest limit and ascertaining angler satisfaction relative to a total recreational harvest limit is subjective. More thorough analysis of recreational fisheries impacts will be conducted following the Council's recommendations for recreational management measures in December 2008. Once actual 2009 recreational management measures recommendations are known, more detailed analysis, including an IRFA, will be prepared by the Council.
        To assess the impact of the alternatives on commercial fisheries, the Council conducted both threshold analysis and analysis of potential changes in ex-vessel gross revenue that would result from Alternatives 1 and 3. Some degree of caution should be utilized when interpreting the economic impact data as a host of variations could influence the outcomes of the analyses. Vessels have permits for multiple fisheries and may supplement income by landing other species; economic dependence on a particular species may be masked by vessels landing multiple species; ex-vessel value of the three species may change from the estimated values utilized in the analysis; revenues may increase or decrease as a result of changes to possession limits or seasons set by individual states; and reduction in commercial quota to account for previous years' overages may still occur in the specifications final rule.

        Under Alternative 1 (Council's preferred), analysis indicates that 224 vessels out of the 891 (25 percent) that participated in 2007 summer flounder, scup, and black sea bass fisheries would be expected to incur revenue reductions of 5 percent or more. The reductions are attributable to the reduction in black sea bass TAL and affect vessels that landed solely black sea bass or black sea bass in combination with the other two species. The Alternative 1 IRFA analysis indicated that 647 of the 891 vessels (75 percent) that landed summer flounder and scup or some combination of both in 2007 would be expected to experience revenue increases in 2009 as a result of the 16-percent increase in summer flounder and the 15-percent increase in scup allowable commercial landings in 2009.
        Utilizing ex-vessel information from 2007, the Council estimated that Alternative 1 would increase cumulative summer flounder and scup vessel revenues by $3.32 and $0.57 million, respectively. Black sea bass vessel revenues are projected to decrease by $2.85 million compared to 2008. If these increases and decreases are distributed equally among the vessels that landed summer flounder, scup, and black sea bass in 2007, the resulting increase in revenue per vessel would be $4,770 for summer flounder and $1,360 for scup. Individual vessel revenue would decrease by $5,053 for vessels landing black sea bass.
        Under Alternative 3 (least restrictive TALs), analysis indicates that 121 vessels out of the 891 (14 percent) that participated in 2007 summer flounder, scup, and black sea bass fisheries would be expected to incur revenue reductions of 5 percent or more. The reductions are again attributable to the reduction in black sea bass TAL. The Alternative 3 threshold analysis indicated that 770 of the 891 vessels (86 percent) of vessels would be expected to experience revenue increases in 2009 as a result of the 19-percent increase in summer flounder and the 77-percent increase in scup allowable commercial landings under the alternative.
        The Council estimated that Alternative 3 would increase cumulative summer flounder and scup vessel revenues by $4.08 and $2.98 million, respectively. Black sea bass vessel revenues are projected to decrease by $0.06 million compared to 2008. If these increases and decreases are distributed equally among the vessels that landed summer flounder, scup, and black sea bass in 2007, the resulting increase in revenue per vessel would be $5,268 for summer flounder and $7,112 for scup. Individual vessel revenue would decrease by $153 for vessels landing black sea bass.

        The Council selected Alternative 1 (preferred) over Alternative 3 (least restrictive) because, for summer flounder, Alterative 1 provides a higher probability of achieving the FTARGET in 2009 (63 percent) and a higher likelihood of achieving the rebuilding target by January 1, 2013, than does Alternative 3, which provides a 50-percent probability of achieving the FTARGET. For scup, Alternative 1 was preferred by the Council because it employs a more conservative TAL for 2009 as the rebuilding plan is slightly behind schedule in the first year of the 7-year rebuilding plan. The Council's previous experience with other species' rebuilding plans indicates that failing to set harvest levels below the maximum amount possible (i.e., the TAL in Alternative 3) in early years of rebuilding plans when progress is slow or behind schedule has resulted in the need for more restrictive measures in late years of rebuilding efforts. The Council recommended the Alternative 1 TAL for black sea bass to be consistent with the FREBUILD value prescribed by the rebuilding plan. The black sea bass TAL in Alternative 3 is status quo from 2008 and would be inconsistent with the goals and objectives of the black sea bass rebuilding plans as it would produce an F rate higher than FREBUILD. As such, the IRFA provided by the Council indicates that the TALs of Alternative 1 satisfy the objectives of the applicable statutes and rebuilding programs and minimize the adverse impacts of the proposed rule on directly regulated small entities. NMFS agrees with the Council's IRFA analysis and rationale for recommending TAL Alternative 1. As such, NMFS is proposing to implement the TALs contained in Alternative 1 (Summer flounder, 18.45 million lb (8,369 mt); scup, 7.34 million lb (3,329 mt); and black sea bass, 2.30 million lb (1,043 mt)) for 2009.

          Dated: October 22, 2008
          Samuel D. Rauch III,
          Deputy Assistant Administrator For Regulatory Programs, National Marine Fisheries Service.

      [FR Doc. E8-25707 Filed 10-27-08; 8:45 am]
      BILLING CODE 3510-22-S