        DEPARTMENT OF TRANSPORTATION
        Federal Railroad Administration
        49 CFR Chapter II
        [Docket No. FRA-2009-0038]
        RIN 2130-AC11
        Risk Reduction Program

          AGENCY:
          Federal Railroad Administration (FRA), Department of Transportation (DOT).

          ACTION:
          Notice of public hearings.

          SUMMARY:
          FRA is announcing public hearings to provide interested persons an opportunity to discuss the development of a regulation requiring certain railroads to develop a Risk Reduction Program (RRP). The Rail Safety Improvement Act of 2008 requires the development and implementation of railroad safety risk reduction programs. Risk reduction is a comprehensive, system-oriented approach to safety that (1) determines an operation's level of risk by identifying and analyzing applicable hazards and (2) develops plans to mitigate that risk. Each RRP is statutorily required to be supported by a risk analysis and a Risk Reduction Program Plan (RRPP), which must include a Technology Implementation Plan and a Fatigue Management Plan.

          DATES:
          To encourage participation, two public hearings will be held. A public hearing will be held on July 19, 2011, in Chicago, and a public hearing will be held on July 21, 2011, in Washington, DC. At both locations, the times of the public hearings will be from 9 a.m. to 4 p.m.

          ADDRESSES:

            Public Hearings. The public hearing in Chicago will be held at the W Chicago City Center Hotel located at 172 West Adams, in the Great Room I, Plateau. The public hearing in Washington, DC, will be held at the Doubletree Hotel located at 1515 Rhode Island Avenue, NW., in the Terrace Ballroom.

            Attendance: Any persons wishing to make a statement at the hearing should notify FRA's Docket Clerk, Michelle Silva, by telephone, e-mail, or in writing, at least five business days before the date of the hearing. Ms. Silva's contact information is as follows: FRA, Office of Chief Counsel, Mail Stop 10, 1200 New Jersey Avenue, SE., Washington, DC 20590; telephone: 202-493-6030; e-mail: michelle.silva@dot.gov. For information on facilities or services for persons with disabilities or to request special assistance at the meetings, please contact by telephone or e-mail as soon as possible, Wendy A. Noble Burns at 202-493-6304 or wendy.noble@dot.gov.

          FOR FURTHER INFORMATION CONTACT:

          Miriam Kloeppel, Staff Director, Risk Reduction Program Division, Office of Safety Analysis, FRA, 1200 New Jersey Avenue, SE., Mail Stop 25, Washington, DC 20590; telephone: 202-493-6224; e-mail: miriam.kloeppel@dot.gov; or Matthew L. Navarrete, Trial Attorney, Office of Chief Counsel, FRA, 1200 New Jersey Avenue, SE., Mail Stop 10, Washington, DC 20590; telephone: 202-493-0138; e-mail: matthew.navarrete@dot.gov.

        SUPPLEMENTARY INFORMATION:

        Interested parties are invited to present oral statements and to proffer information and views at the hearings. The hearings will be informal and will be conducted by a representative designated by FRA in accordance with FRA's Rules of Practice (49 CFR 211.25). The hearings will be non-adversarial proceedings; therefore, there will be no cross examination of persons presenting statements or proffering evidence. An FRA representative will make an opening statement outlining the scope of each hearing. After all initial statements have been completed, those persons wishing to make a brief rebuttal will be given the opportunity to do so in the same order in which the initial statements were made. Additional procedures, as necessary for the conduct of the hearings, will be announced at the hearings. The purpose of these hearings is to receive oral comments in response to an Advanced Notice of Proposed Rulemaking (ANPRM) that requested public comment on a potential risk reduction rulemaking. See 75 FR 76345-76351, Dec. 8, 2010. A transcript of the discussions will be made part of the public docket in this proceeding.

          Public Participation Procedures. Any person wishing to participate in one of the public hearings should notify the Docket Clerk by mail or at the address or fax number provided in the Attendance section at least five working days prior to the date of the hearing and submit three copies of the oral statement that he or she intends to make at the proceeding. The notification should identify the party the person represents, the particular subject(s) the person plans to address, and the time requested. The notification should also provide the Docket Clerk with the participant's mailing address and other contact information. FRA reserves the right to limit participation in the hearings of persons who fail to provide such notification. FRA reserves the right to limit the duration of presentations if necessary to afford all persons with the opportunity to speak.
        Background

        In § 103 of the Rail Safety Improvement Act of 2008, Public Law 110-432, 122 Stat. 4854 (Oct. 16, 2008) (codified at 49 U.S.C. 20156) (hereinafter RSIA), Congress directed the Secretary of Transportation to issue a regulation by October 16, 2012, requiring certain railroads to develop an RRP. While the statute vests certain responsibilities with the Secretary of the U.S. DOT (Secretary), the Secretary has since delegated those responsibilities to the FRA Administrator. See 49 CFR 1.49(oo); 74 FR 26981 (June 5, 2009); see also 49 U.S.C. 103(g).

        Each railroad subject to the regulation would have to develop and implement an RRP approved by FRA. See 49 U.S.C. 20156(a)(1). This RRP is required to be supported by an RRPP. See 49 U.S.C. 20156(d)(2). FRA would conduct an annual review to ensure that each railroad has complied with its RRP. See 49 U.S.C. 20156(a)(3). The RSIA mandates that the following three categories of railroads be required to develop and implement an FRA-approved RRP:
        (1) Class I railroads;
        (2) Railroad carriers with inadequate safety performance, as determined by the Secretary; and
        (3) Railroad carriers that provide intercity rail passenger or commuter rail passenger transportation (passenger railroads).

          See 49 U.S.C. 20156(a)(1).

        Railroads not required to implement RRPs under the RSIA would be permitted to voluntarily submit plans meeting the requirements of any final RRP regulation for FRA review and approval. See 49 U.S.C. 20156(a)(4).

        On December 8, 2010, FRA published an ANPRM soliciting public comment on how FRA can best develop a risk reduction regulation based upon the RSIA's requirements. See 75 FR 76345-76351. The ANPRM discussed certain major components that must be included in the final rule under the RSIA and identified various approaches that FRA could take in developing the rule. The purpose of these hearings is to receive oral comment in response to the issues discussed in the ANPRM.
        FRA encourages all interested persons to participate in one of these hearings, at the addresses noted above. We encourage participants wishing to make oral statements to plan on attending an entire hearing, since FRA may not be able to accommodate competing requests to appear at specific times.

          Issued in Washington, DC, on June 29, 2011.
          Jo Strang,
          Associate Administrator for Railroad Safety/Chief Safety Officer, Federal Railroad Administration.

      [FR Doc. 2011-16983 Filed 7-7-11; 8:45 am]
      BILLING CODE 4910-06-P


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 635
        [Docket No. 110520295-1295-01]
        RIN 0648-BA64
        Atlantic Highly Migratory Species; Vessel Monitoring Systems

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

          ACTION:
          Proposed rule; request for comments.

          SUMMARY:

          The National Marine Fisheries Service (NMFS) proposes to require replacement of currently required Mobile Transmitting Unit (MTU) Vessel Monitoring System (VMS) units with Enhanced Mobile Transmitting Unit (E-MTU) VMS units in Atlantic HMS fisheries; implement a declaration system that requires vessels to declare target fishery and gear type(s) possessed on board; and require that a qualified marine electrician install all E-MTU VMS units. This proposed rulemaking would remove dated MTU VMS units from service in Atlantic HMS fisheries, make Atlantic HMS VMS requirements consistent with other VMS-monitored Atlantic fisheries, provide the National Marine Fisheries Service Office of Law Enforcement (NMFS Enforcement) with enhanced communication with HMS vessels at sea. This rule would affect all HMS pelagic longline (PLL), bottom longline (BLL), and shark gillnet fishermen who are currently required to have VMS onboard their vessels.

          DATES:

          Comments on this proposed rule must be submitted by August 1, 2011. NMFS will hold three public hearings for this proposed rule in July 2011. For specific dates and times, see the SUPPLEMENTARY INFORMATION section of this document.

          ADDRESSES:

          The public hearings will be held in Florida, Louisiana, and New Jersey. For specific locations see the SUPPLEMENTARY INFORMATION section of this document.
          You may submit comments, identified by 0648-BA64, by any one of the following methods:
          • Electronic Submissions: Submit all electronic public comments via the Federal eRulemaking Portal: http://www.regulations.gov.

          • Fax: 301-713-1917, Attn: Michael Clark.
          • Mail: Highly Migratory Species Management Division (SF1), 1315 East-West Highway, Silver Spring, MD 20910.

          Instructions: All comments received are 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.

          Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this proposed rule may be submitted to the Atlantic Highly Migratory Species Management Division and by e-mail to OIRA_Submission@ omb.eop.gov, or fax to 202-395-7285

          FOR FURTHER INFORMATION CONTACT:
          Greg Fairclough, (phone: 727-824-5399, fax: 727-824-5398) or Michael Clark (phone: 301-713-2347, fax: 301-713-1917).

          Copies of this proposed rule and related documents, including the Regulatory Impact Review and Initial Regulatory Flexibility Analysis, can be obtained by writing to the HMS Management Division, 1315 East-West Highway, Silver Spring, MD 20910, visiting the HMS Web site at http://www.nmfs.noaa.gov/sfa/hms/, or by contacting Greg Fairclough or Michael Clark.

        SUPPLEMENTARY INFORMATION:

        Background
        Atlantic HMS are managed under the dual authority of the Magnuson-Stevens Fishery Conservation and Management Act (MSA) and the Atlantic Tunas Conservation Act (ATCA). Under the MSA, NMFS must ensure consistency with the National Standards and manage fisheries to maintain optimum yield, rebuild overfished fisheries, and prevent overfishing. Under ATCA, the Secretary of Commerce is required to promulgate regulations, as necessary and appropriate, to implement measures adopted by the International Commission for the Conservation of Atlantic Tunas (ICCAT). The implementing regulations for Atlantic HMS are at 50 CFR part 635.
        Maintaining NMFS's VMS monitoring program ensures compliance with both international and domestic requirements while facilitating enforcement of Atlantic HMS fisheries regulations. As a Contracting Party of ICCAT, the United States is required to collect biological statistics for research purposes (fishing effort and catch) and to implement, maintain, and monitor a viable VMS program for vessels in certain Atlantic HMS fisheries. Requirements to use VMS in the PLL fishery were implemented (June 25, 2003, 68 FR 37772) prior to ICCAT Recommendation's (03-14 and 04-11) that concern VMS usage in the convention area.
        In addition, NMFS issued a rule on December 24, 2003 (68 FR 74746), which required VMS operation for vessels with BLL gear onboard between 33°00′ N. latitude and 36°30′ N. latitude to ensure compliance with the mid-Atlantic shark closed area. This same rule extended VMS requirements for shark gillnet vessels operating during the right whale calving season. This rule was implemented in December 2003 for purposes of domestic Atlantic shark management.
        Properly functioning MTU VMS units aid NMFS enforcement agents in monitoring and enforcing closed or restricted areas implemented to reduce bycatch of undersized swordfish, sharks, sea turtles, and other species necessary to comply with the Marine Mammal Protection Act (MMPA), Endangered Species Act (ESA), and National Standard 9 (bycatch and bycatch mortality reduction) of the MSA. There are numerous areas closed to fishing with PLL and BLL gear. Additionally, the location of all shark gillnet vessels is monitored using VMS between November 15 and April 15 to protect right whales consistent with legal requirements. NMFS has implemented complementary regulations enforcing closed areas that were created by the Gulf of Mexico, Caribbean, and South Atlantic Fishery Management Councils. The effectiveness of traditional methods of monitoring and surveillance, such as vessel and aerial patrols, is increased tremendously through the addition of VMS—particularly where large geographic areas are involved. VMS has been required in various HMS fisheries since 2003.
        The MTU VMS unit is currently required to report positions on an hourly basis when HMS fishing vessels carrying PLL, BLL, or shark gillnet gear are away from port. The MTU VMS units report vessel position only, and, in some instances, do not even indicate whether the unit is on and functioning properly. The MTU VMS unit technology is dated, and NMFS enforcement has reported that these units have failed to report while vessels are at sea. NMFS enforcement agents have also reported difficulty communicating with vessels when needed, such as when closed areas change due to an emergency rule. The newer E-MTU VMS units use more recent technology that, in addition to reporting vessel position, allows for two-way communication. By requiring that E-MTU VMS units be professionally installed and used to replace the dated MTU VMS units, NMFS will ensure that newer, more reliable, technology is in use, improve fisheries monitoring and enforcement of regulations, and provide NMFS enforcement agents with the ability to communicate directly with vessels at sea via electronic messaging and other means. With this newer technology, NMFS enforcement agents could: notify vessel operators of emergency changes to closed areas; provide notice of fishery closures in real time; inform operators of environmental disasters (oil rig fires/oil spills); send notice of dangerous weather; and receive distress or emergency transmissions.

        NMFS is also proposing that, two hours prior to leaving port, fishermen provide NMFS enforcement with notice of the beginning of a fishing trip and a declaration of the target fishery and gear onboard. In addition, this proposed rule would require vessel operators to provide a minimum of three hours' advance notice of landing. Currently, vessel operators are required to turn on the VMS unit two hours before leaving port. Under this proposed rule, vessel operators would also need to declare the species being targeted and the gear being used. Creating a fishery declaration system would facilitate enforcement and compliance monitoring. Vessels may be permitted to participate in multiple fisheries that authorize numerous fishing gears. The declaration system would provide NMFS enforcement with advance notice of the target fishery and gear possessed onboard which provides enforcement with critical information concerning which regulations apply to that particular vessel during that trip.
        Any new declaration system would be compatible with the capabilities of newly required E-MTU VMS units and consistent with declaration protocols currently employed in Council-managed fisheries. Additionally, the requirement to notify NMFS enforcement at least three hours prior to returning to port provides notification that fishing activities are being completed, gear is no longer being deployed, and the vessel is transiting back to port.
        Additionally, vessels with E-MTU VMS units would be able to communicate through electronic messages with shore-based fishery personnel, which could allow fishery participants to: Communicate directly with NMFS enforcement in the case of a power disruption; download updated E-MTU software without removal of the device; communicate with manufacturers to remedy malfunctions; receive required software upgrades with little interference; communicate with vessel owners and fish houses; and send distress calls to monitoring companies in the event of an emergency. Although some of these features are potentially useful functions, they are not the primary purpose of VMS and, it is important that fishermen not see them as a substitute for required safety equipment such as a properly installed and functioning Emergency Position Indicating Radio Beacon (EPIRB).
        Currently, an installation and activation checklist must be submitted by the vessel owner to NMFS enforcement after installation of a VMS unit. This proposed rulemaking would require that this checklist be filled out and signed by a qualified marine electrician and returned to NMFS enforcement by the vessel owner in order to demonstrate that the unit was installed properly. The installation and activation checklist is available from NMFS.
        On January 31, 2008, NMFS published in the Federal Register a type-approval notice listing the specifications for approved E-MTU VMS units (73 FR 5813). These type-approval notices may be updated in the future as specifications change and/or new units become approved. Currently, if an existing MTU VMS unit fails and is not able to be repaired, the vessel owner in Atlantic HMS fisheries that are subject to VMS regulations would be required to purchase and use E-MTU VMS units that are approved by NMFS.
        Reimbursement funds are available for participants upgrading to E-MTU VMS units in HMS fisheries, subject to limitations. Reimbursement funds will be distributed on a first come, first served basis. Furthermore, individuals that have previously received reimbursement funds for an E-MTU VMS unit required in another fishery would not be eligible for additional funds.
        Request for Comments
        NMFS is requesting comments on any of the measures or analyses described in this proposed rule. Furthermore, NMFS also requests comments related to the potential economic impacts of this proposed action, including:
        1. A delayed implementation date or date by which vessel owners would be required to start using E-MTU VMS units to provide participants with ample opportunity to procure a unit and have it installed while still having the opportunity to take advantage of reimbursement funds. Currently, NMFS is considering requiring that vessel owners have an E-MTU VMS unit installed and operational within 90 days of publication of the final rule.
        2. The time and costs associated with having the E-MTU VMS units installed by a qualified marine electrician.

        3. The advance notice timeframes associated with the proposed hail-out and hail-in requirements (i.e., the two hour notice before leaving port and the three hour notice before returning to port).
        Comments on this proposed rule may be submitted via http://www.regulations.gov, mail, or fax. Comments may also be submitted at a public hearing (see DATES and ADDRESSES). NMFS solicits comments on this proposed rule until August 1, 2011. NMFS will hold two public hearings for this proposed rule. The hearing locations are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Greg Fairclough at 727-824-5399, at least 7 days prior to the meeting. The public is reminded that NMFS expects participants at the public hearings to conduct themselves appropriately. At the beginning of each public hearing, a representative of NMFS will explain the ground rules (e.g., alcohol is prohibited from the hearing room; attendees will be called to give their comments in the order in which they registered to speak; each attendee will have an equal amount of time to speak; and attendees should not interrupt one another). The NMFS representative will attempt to structure the meeting so that all attending members of the public will be able to comment, if they so choose. Attendees are expected to respect the ground rules and, if they do not, they will be asked to leave the hearing.

            Location
            Date
            Time
            Address

            St. Petersburg, FL
            July 7, 2011
            6:00-8:00 p.m
            NOAA, Southeast Regional Office263 13th Ave. S., St. Petersburg, FL 33701.

            New Orleans/Kenner, LA
            July 13, 2011
            2:00-5:00 p.m
            901 Airline Drive, Kenner, LA 70062.

            Atlantic City, NJ
            July 28, 2011
            5:45-7:45 p.m
            Atlantic County Library System, Brigantine Branch201 15th St. South,
              Brigantine, NJ 08203.

        Classification
        The NMFS Assistant Administrator has determined that this proposed rule is consistent with the 2006 Consolidated HMS Fishery Management Plan and its amendments, the MSA and National Standards, and other applicable law, subject to further consideration after public comment.

        This proposed rule would modify a collection-of-information requirement associated with VMS use in Atlantic HMS fisheries subject to the Paperwork Reduction Act (PRA), and that has been approved by the Office of Management and Budget (OMB) under control number (0648-0372). The proposed modifications are subject to review and approval by OMB under the Paperwork Reduction Act (PRA). This requirement has been submitted to OMB for approval. There would be 329 vessel owners (respondents) that may be affected by this collection. Public reporting burden for having the E-MTU VMS units installed by a qualified marine electrician (4 hours, one-time), submitting a checklist (completed by a qualified marine electrician) (5 minutes, one-time), and providing declaration reports before and after leaving port (5 minutes/declaration, ongoing) is estimated to result in an estimated total annual burden of 4,452 hours in the first year. A total of 48,358 responses (checklists and declaration reports) would be collected in the first year. The annual burden would decrease in subsequent years because the installation and submission of a completed checklist would be one-time burdens. Table 1 provides estimates of the number of participants affected by this collection and the financial burden associated with this action in year one and subsequent years.

        Public comment is sought regarding the estimated burden hours associated with installation of the new E-MTU VMS units (4 hours per vessel). Furthermore, comments are also sought concerning whether this proposed collection of information is necessary for the proper performance of the functions of NMFS, including whether the information would have practical utility; the accuracy of the burden estimate; ways to enhance the quality, utility, and clarity of the information to be collected; and ways to minimize the burden of the collection of information, including through the use of automated collection techniques or other forms of information technology. Send comments on these or any other aspects of the collection of information to Greg Fairclough, the Highly Migratory Species Management Division, at the ADDRESSES above, and by e-mail to OIRA_Submission@omb.eop.gov or fax to (202) 395-7285. Comments submitted in response to this proposed modification to an existing information collection will be summarized and/or included in the request for OMB approval of this information collection and will also be included in the public record.
        Notwithstanding any other provision of the law, no person is required to respond to, and no person shall be subject to penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB control number.
        This proposed rule has been determined to be not significant for purposes of Executive Order 12866.
        Environmental impacts are not expected and the action is within the scope of that previously analyzed when existing VMS requirements were implemented. This action would not directly affect fishing effort, quotas, fishing gear, authorized species, interactions with threatened or endangered species, or other relevant parameters.

        NMFS has prepared an Initial Regulatory Flexibility Analysis (IRFA), as required by 5 U.S.C. 603 of the Regulatory Flexibility Act, to analyze the economic impacts that this proposed rule could have on small entities. A description of the proposed action, why it is being considered, and the legal basis for this proposed action are contained in the preamble to this proposed rule. A summary of the analysis follows. A copy of the complete analysis is available from NMFS (see ADDRESSES).
        Section 603(b)(1) of the Regulatory Flexibility Act requires that the Agency describe the reasons the action is being considered. The purpose of this proposed rulemaking is, consistent with the Magnuson-Stevens Act and the 2006 Consolidated HMS FMP and its amendments, to aid NMFS in monitoring and enforcing fisheries regulations, including those implemented at 50 CFR part 635 pertaining to HMS. Requiring that an E-MTU VMS unit be installed by a qualified marine electrician and implementing a declaration system would provide NMFS enforcement with improved communication capabilities with vessels at sea and fishing for HMS. The declaration system would also provide valuable information concerning target species and gear possessed onboard vessels to ensure enforcement of closed or restricted areas and other regulations.
        Section 603(b)(2) of the Regulatory Flexibility Act requires a succinct statement of the objectives of, and legal basis for, the proposed rule. The objectives of this proposed rulemaking are to consider changes to the HMS regulations at 50 CFR part 635 requiring the use of VMS in Atlantic HMS fisheries. Requiring E-MTU VMS units in Atlantic HMS fisheries would represent a technological improvement over the MTU VMS units currently in use. By removing dated MTU VMS units from HMS fishing vessels and requiring that E-MTU VMS units be professionally installed, NMFS would improve fisheries monitoring and enforcement of regulations and provide NMFS the ability to communicate directly with individual vessels at sea via electronic messaging and other means.
        Under 5 U.S.C. 603 (b)(3), Federal agencies must provide an estimate of the number of small entities to which the rule would apply. The Small Business Administration (SBA) standards for a “small” versus “large” business entity are entities that have average annual receipts less than $4.0 million for fish-harvesting; average annual receipts less than $6.5 million for charter/party boats; 100 or fewer employees for wholesale dealers; or 500 or fewer employees for seafood processors. Under these standards, NMFS considers all HMS permit holders subject to this rulemaking to be small entities. NMFS estimates that this proposed rule would require 329 vessel owners deploying either PLL, BLL, or gillnet gear in HMS fisheries to have an E-MTU VMS unit installed by a qualified marine electrician. All of these vessel owners are considered small entities and are already required to have MTU VMS units. Depending on the fishing gear possessed on board, vessels would continue to use VMS units when away from port to provide location reports consistent with existing regulations. These vessels would also be required to declare target species and gear types possessed on board to NMFS enforcement prior to leaving port and then provide NMFS enforcement advanced notice of landing. The fishery declaration and return reports must be sent via an E-MTU VMS unit.
        This proposed rule contains some modifications to existing reporting, recordkeeping, or other compliance requirements (5 U.S.C. 603 (b)(4)). This proposed rule would not conflict, duplicate, or overlap with other relevant Federal rules (5 U.S.C. 603(b)(5)). Fishermen, dealers, and managers in these fisheries must comply with a number of international agreements, domestic laws, and other FMPs. These include, but are not limited to, the MSA, ATCA, the High Seas Fishing Compliance Act, the Marine Mammal Protection Act, the Endangered Species Act, the National Environmental Policy Act, and the Coastal Zone Management Act. NMFS does not believe that the new regulations proposed to be implemented would duplicate, overlap, or conflict with any relevant regulations, Federal or otherwise.

        One of the requirements of an IRFA is to describe any alternatives to the proposed rule which accomplish the stated objectives and which minimize any significant economic impacts. The Regulatory Flexibility Act (5 U.S.C. 603 (c) (1)-(4)) lists four general categories of “significant” alternatives that would assist an agency in the development of significant alternatives. These categories of alternatives are:
        1. Establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities;
        2. Clarification, consolidation, or simplification of compliance and reporting requirements under the rule for such small entities;
        3. Use of performance rather than design standards; and
        4. Exemptions from coverage of the rule for small entities.
        In order to meet the objectives of this proposed rule, consistent with the Magnuson-Stevens Act, NMFS cannot exempt small entities or change the reporting requirements only for small entities because all of the participants in Atlantic HMS fisheries are considered small entities. The new proposed requirements to have an updated E-MTU VMS unit installed by a qualified marine technician and expand reporting requirements to include a declaration system is expected to improve the reliability of VMS transmissions and provide NMFS enforcement with additional information to accurately monitor fishing activities. NMFS does not specify a particular manufacturer or model of VMS unit that vessel owners would need to procure to comply with the proposed action. There are several models available that meet the specifications described in the latest type approval notice (January 31, 2008; 73 FR 5813). NMFS performance standards are outlined in type approval notices published periodically by NMFS.
        NMFS is considering two alternatives in compliance with the Initial Regulatory Flexibility Act. Alternative one, the no action alternative, would maintain the existing VMS requirements in Atlantic HMS fisheries. Alternative two would mandate that Atlantic HMS vessels that are required to use VMS replace their MTU VMS unit with an E-MTU VMS and have the new unit installed by a qualified marine electrician. This alternative would also implement a fishery declaration system where vessels would declare their target species and gear type (s) possessed onboard, as well as require vessels to provide advanced notice of departure and landing. Alternative two is the preferred alternative.
        Under the no action alternative, vessels that are required to use VMS would be able to continue to use the MTU VMS units currently being employed in the PLL, BLL, and gillnet fisheries or access reimbursement funds ($3,100 per VMS unit) to replace these units with E-MTU VMS units. The decision to replace existing units with E-MTU VMS units would be at the discretion of individual vessel owners. Costs for individual E-MTU VMS units that meet the type approval specifications start at approximately $3,100 per unit depending on the manufacturer, model, and additional features of the unit. In the event that existing units failed beyond repair, E-MTU VMS units would need to be installed, and owners would be eligible for reimbursement funds ($3,100 per VMS unit) to offset the initial costs of the unit. NMFS expects that any vessel owner who applies for reimbursement funds will receive those funds, however reimbursement funds are not guaranteed and are subject to limitations and distributed on a first come, first served basis. In the event of necessary replacement, the E-MTU VMS units would need to be procured by vessel owners before returning to fishing activities, consistent with existing regulations, depending on the gear possessed onboard the vessel, timing, and location of the fishing activity. This alternative would not require that the new units be installed by a qualified marine electrician, rather, the new units could be installed by vessel owners/operators and an installation checklist would need to be completed and sent to NMFS enforcement per existing requirements.
        Existing units are not capable of sending or receiving electronic messages, therefore, vessel owners or operators would not be required to provide NMFS enforcement with information concerning target species and gear possessed on board prior to leaving port to engage in fishing activities. Furthermore, vessel owners or operators would not be required to provide NMFS enforcement with advanced notice of departure and landing. Vessels would still be required to provide hourly position reports, starting two hours before leaving port, when away from port. It is estimated that these reports would continue to cost $1.00 per day assuming 24 reports are sent. Maintenance costs for these units are estimated at $500 per vessel per year. Some vessels may be committed to long-term service contracts with communication service providers and maintaining the status quo would not require vessels to break these contracts, avoiding any early termination fees.
        Under the preferred alternative, participants would be required to install E-MTU VMS units, but they would be able to access reimbursement funds ($3,100 per VMS unit) to offset the initial costs of the units. Reimbursement funds would be subject to limitations and distributed on a first come, first served basis. Furthermore, individuals that have previously received reimbursement funds for an E-MTU VMS unit required in another fishery would not be eligible for additional funds. The proposed action would also require that the units are installed by a qualified marine electrician ($200 per installation) to ensure that units are installed and operating properly to avoid transmission failures that may occur when vessels are away from port and subject to VMS requirements. Marine electricians are capable of providing information on E-MTU VMS use and troubleshooting during the installation process. NMFS is also considering a delayed implementation date of 90 days after the final rule publishes to allow vessel owners time to procure and have an E-MTU VMS unit installed by a qualified marine electrician and operational on their vessels, thereby avoiding any early termination fees that may incur. The exact cost of termination fees are difficult to calculate as the terms of service contracts vary according to service providers and are likely to be vessel specific. Finally, unlike the MTU VMS units, which could have maintenance costs of approximately $500 per year, E-MTU VMS units have very low to no maintenance costs.
        Costs of compliance with the preferred alternative for vessel owners are estimated to be $3,771; $3,630; $3,537 per vessel for PLL, BLL, and shark gillnet vessels, respectively, in the first year (Table 1). These are the costs of compliance, pre-reimbursement. Reimbursement funds of $3,100 per VMS unit would reduce the costs to $546 per vessel, on average, across all fisheries. Costs in year two (and beyond) would be limited to the costs of sending/receiving declaration reports ($0.06 per report) and providing vessel location information on an hourly basis ($1.56 per vessel per day) and is estimated to be $471; $331; and $237 per vessel for PLL, BLL, and shark gillnet vessels respectively.

        Table 1 summarizes some of the costs associated with the proposed rule. A description of the figures and calculations used in Table 1 is provided below the table.

          Table 1—Costs of Compliance Expected as a Result of Requiring E-MTU VMS Units in Affected HMS Fisheries

            Pelagic longline vessels

            Shark bottom longline vessels

            Shark gillnet vessels

            E-MTU VMS Unit
            $3,100
            $3,100
            $3,100.

            Estimated Installation Costs (one-time)
            $50-400 ($200 used for estimation purposes)
            $50-400 ($200 used for estimation purposes)
            $50-400 ($200 used for estimation purposes)

            Daily Position Report Costs (Hourly, 24/day) ($0.06/report * 24 reports/day)
            $1.44
            $1.44
            $1.44.

            Estimated Days Fishing/Year
            324
            212
            152.

            Annual Position Report Costs/Vessel ($1.44/day * days fishing/year)
            $466.56/vessel
            $305.28/vessel
            $218.88/vessel.

            Annual Number of Fishing Trips
            36
            212
            152.

            Annual Gear/Spp. Declaration Costs ($0.12/trip)/Vessel ($0.12/trip * trips/year) 1

            $4.32
            $25.44
            $18.24.

            Total Estimated Costs/Vessel (Year 1) (VMS unit + installation + position reports + declaration reports)
            $3,770.88
            $3,630.72
            $3,537.12.

            Number of Affected Vessels
            249
            50
            30.

            Total Costs by Fishery (Year 1) (Total Estimated Costs/Vessel * Number of Affected Vessels)
            $938,949
            $181,536
            $106,113.

            Gross Cost of Compliance, Year One (all HMS vessels combined)

            $1,226,598

            Potential Reimbursement Funds ($3,100/vessel * Number of Affected Vessels)

            $1,019,900

            Compliance Costs (Year 1) (avg. cost/vessel) (installation + position reports + declaration reports)
            $670/vessel
            $530/vessel
            $437/vessel.

            Compliance Costs/Vessel (Year 2 and Beyond) (position reports + declaration reports)
            $470/vessel
            $330/vessel
            $237/vessel.

            1 The declaration costs per trip will vary based upon the number of gear types possessed onboard as operators would be required to submit one declaration for each fishing gear possessed.

        There are benefits associated with the proposed action relative to the no-action alternative. Requiring that an E-MTU VMS unit be installed by a qualified marine electrician would improve the reliability of VMS data transmitted from HMS vessels. Implementing a declaration system would enhance NMFS communication with HMS vessels at sea and provide valuable information concerning target species and gear type(s) possessed onboard vessels to ensure sound enforcement of closed areas and other regulations. Furthermore, the delayed implementation date associated with the preferred alternative would allow more time for fishermen to make the transition to the new VMS units and a declaration system. NMFS is seeking comment from the public regarding the implementation date and costs for installation to ensure that economic impacts are accurate. One of the objectives of this proposed action is to modify the requirements in order to ensure that small entities affected can access the reimbursement funds and make the transition to E-MTU VMS gradually.
        This proposed action does not contain regulatory provisions with federalism implications sufficient to warrant preparation of a Federalism Assessment under E.O. 13132.

          List of Subjects in 50 CFR Part 635
          Fisheries, Fishing, Fishing vessels, Foreign relations, Imports, Penalties, Reporting and recordkeeping requirements, Treaties.

          Dated: June 14, 2011.
          John Oliver,
          Deputy Assistant Administrator for Operations, National Marine Fisheries Service.

        For the reasons set out in the preamble, 50 CFR part 635 is proposed to be amended as follows:

          PART 635—ATLANTIC HIGHLY MIGRATORY SPECIES
          1. The authority citation for part 635 continues to read as follows:

            Authority:
            16 U.S.C. 971 et seq.; 16 U.S.C. 1801 et seq.

          2. In § 635.69, paragraphs (a) introductory text, (d), (e), and (g) are revised to read as follows:

            § 635.69
            Vessel monitoring systems.
            (a) Applicability. To facilitate enforcement of time/area and fishery closures, an owner or operator of a commercial vessel, permitted to fish for Atlantic HMS under § 635.4 and that fishes with a pelagic or bottom longline or gillnet gear, is required to install a NMFS-approved enhanced mobile transmitting unit vessel monitoring system (VMS) on board the vessel and operate the VMS unit under the following circumstances:

            (d) Installation and activation. Only a VMS unit that has been approved by NMFS for the applicable fishery may be used, and the VMS unit must be installed by a qualified marine electrician. When the NMFS-approved VMS unit is installed and activated or reinstalled and reactivated, the vessel owner or operator must—
            (1) Follow procedures indicated on a NMFS-approved installation and activation checklist for the applicable fishery, which is available from NMFS, Office of Enforcement, Southeast Region; and,

            (2) Submit to NMFS, Office of Enforcement, Southeast Region, a statement certifying compliance with the checklist, as prescribed on the checklist.
            (3) Submit to NMFS, Office of Enforcement, Southeast Region, the checklist, completed by a qualified marine electrician, which is available from NMFS, Office of Enforcement, Southeast Region. Vessels fishing prior to NMFS' receipt of the completed checklist and compliance certification statement will be in violation of the VMS requirement.
            (e) Operation. (1) Owners or operators of vessels permitted, or required to be permitted, to fish for HMS, that have pelagic or bottom longline gear or gillnet gear on board, and that are required to have a VMS unit installed, as specified in paragraph (a) of this section, must activate the VMS unit to submit automatic position reports at least 2 hours prior to leaving port and continuing until the vessel returns to port. While at sea, the unit must always be on, operating and reporting without interruption, and NMFS enforcement must receive position reports without interruption. No person may interfere with, tamper with, alter, damage, disable, or impede the operation of a VMS, or attempt any of the same. Vessels fishing outside the geographic area of operation of the installed VMS will be in violation of the VMS requirement.
            (2) At least 2 hours prior to departure for each trip, a vessel owner or operator must report to NMFS any HMS fishery in which the vessel will participate on that trip and the specific type(s) of fishing gear, using NMFS-defined gear codes, that will be on board the vessel. If the vessel will be participating in multiple HMS fisheries, or multiple gears will be possessed on board the vessel, the vessel owner or operator must submit multiple electronic reports to NMFS. This information must be reported to NMFS using an attached VMS terminal.
            (3) A vessel owner or operator must report advance notice of landing to NMFS. For the purposes of this paragraph, landing means to arrive at a dock, berth, beach, seawall, or ramp. The vessel owner or operator is responsible for ensuring that NMFS is contacted at least 3 hours in advance of landing. This information must be reported to NMFS using an attached VMS terminal.

            (g) Repair and replacement. After a fishing trip during which interruption of automatic position reports has occurred, the vessel's owner or operator must have a qualified marine electrician replace or repair the VMS unit prior to the vessel's next trip. Repair or reinstallation of a VMS unit or installation of a replacement, including change of communications service provider, shall be in accordance with the installation and activation requirements specified at paragraph (d) of this section.

      [FR Doc. 2011-15325 Filed 6-20-11; 8:45 am]
      BILLING CODE 3510-22-P


        ENVIRONMENTAL PROTECTION AGENCY
        40 CFR Part 300
        [FRL-7629-3]
        National Oil and Hazardous Substances Pollution Contingency Plan; National Priorities List

          AGENCY:
          Environmental Protection Agency.

          ACTION:
          Notice of intent for partial deletion of the West Virginia Ordnance Works Site from the National Priorities List.

          SUMMARY:
          The Environmental Protection Agency (EPA) Region III announces its intent to delete five areas of the West Virginia Ordnance Works (WVOW) National Priorities List (NPL) site from the NPL and requests public comment on this action. The areas are the Operable Unit 10 (OU-10) South Acids Area, Cooling Tower Area, and Toluene Storage Areas; the Expanded Site Investigation 1 (ESI-1) Magazine Area; the ESI-4 Red Water Outfall Sewer; the ESI-6 Motorpool/Maintenance Area; and the ESI-7 Former Sewage Treatment Plant. The NPL constitutes Appendix B to the National Oil and Hazardous Substances Pollution Contingency Plan (NCP), 40 CFR part 300, which EPA promulgated pursuant to section 105 of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA).
          This proposal for partial deletion pertains only to OU-10, ESI-1, ESI-4, ESI-6, and ESI-7. The U.S. Army Corps of Engineers (USACE), together with EPA, issued a no further action Record of Decision (ROD) for OU-10. USACE and EPA issued no further action Decision Documents for ESIs-1, -4, -6, and -7, which were concurred upon by the West Virginia Department of Environmental Protection (WVDEP). EPA bases its proposal to delete these five areas at WVOW on the determination by EPA, USACE, and WVDEP that all appropriate actions under CERCLA have been implemented to protect human health and the environment at OU-10 and ESIs-1, -4, -6, and -7.
          This partial deletion pertains only to these areas of the WVOW site and does not include any other ESI or any OU. All other ESIs and OUs not previously deleted will remain on the NPL, and investigation and response activities will continue at those ESIs and OUs.

          DATES:
          EPA will accept comments on this proposal until April 2, 2004.

          ADDRESSES:
          Comments may be submitted to the following: Mr. Jack Potosnak, PE, Remedial Project Manager, U.S. EPA, Region III (3HS13), 1650 Arch Street, Philadelphia, Pennsylvania 19103-2029, Telephone: (215) 814-3362.

          INFORMATION REPOSITORIES:
          Comprehensive information on the WVOW site, information specific to this proposed partial deletion, the Administrative Record and the Deletion Docket for this partial deletion are available for review at the following WVOW site document/information repositories:
          Mason County Public Library, 508 Viand Street, Point Pleasant, WV 25550, (304) 675-0894, Hours of Operation: Monday through Thursday, 10 a.m.-8 p.m. and Friday through Saturday, 10 a.m.-5 p.m.
          U.S. EPA Region III Library, 1650 Arch Street, Philadelphia, PA 19103-2029, (215) 814-5254, Hours of Operation: Monday through Friday, 8 a.m.-5 p.m.
          U.S. Army Corps of Engineers, Huntington District, 502 8th Street, Huntington, WV 25701, (800) 822-8413 or (304) 399-5388, Hours of Operation: Monday through Friday, 8 a.m.-4:30 p.m.

          FOR FURTHER INFORMATION CONTACT:
          Mr. Jack Potosnak, PE, Remedial Project Manager, U.S. EPA Region III (3HS13), 1650 Arch Street, Philadelphia, PA 19103-2029, (215) 814-3362.

        SUPPLEMENTARY INFORMATION:

          Table of Contents
          I. Introduction
          II. NPL Deletion Criteria
          III. Deletion Procedures
          IV. Basis for Intended Partial Site Deletion

        I. Introduction
        The United States Environmental Protection Agency (EPA) Region III announces its intent to delete a portion of the West Virginia Ordnance Works (WVOW) site located in Mason County, West Virginia, from the National Priorities List (NPL), which constitutes Appendix B of the National Oil and Hazardous Substances Pollution Contingency Plan (NCP), 40 CFR part 300, and requests comments on this proposal. This proposal for partial deletion pertains to OU-10, ESI-1, ESI-4, ESI-6, and ESI-7.
        The WVOW site is located on the east bank of the Ohio River, approximately six miles north of Point Pleasant, Mason County, West Virginia. Contamination of the WVOW site originated from the operation of a trinitrotoluene (TNT) manufacturing facility during World War II. Nitroaromatic (explosive) compounds are the primary contaminants of concern at the WVOW site.

        The WVOW site, as added to the NPL in 1983, encompassed an entire area of approximately 8,323 acres. In 1994, after 11 years of investigation and other activities at the WVOW site that helped to determine where contamination at the site existed, EPA, USACE, and WVDEP worked together to clarify the boundary of the WVOW site by developing a site boundary map delineating areas of known or suspected contamination. The WVOW site boundary as delineated in the 1994 mapping encompassed approximately 2700 acres. This clarification of the site boundary was undertaken in accordance with EPA's interpretation of “facility,” which was defined by Congress in section 101(9)(B) of CERCLA, 42 U.S.C. 9601(9)(B), as “any site or area where a hazardous substance has been deposited, stored, disposed of, or placed or otherwise come to be located * * *.” EPA has routinely explained how site boundaries are determined when notifying the public regarding additions to the NPL. See, e.g., National Priorities List for Uncontrolled Hazardous Waste Sites, 67 FR 56757, 56759 (Sept. 5, 2002).

        A previous partial deletion of the WVOW site from the NPL was completed on December 13, 2002 by publication of a Notice of Partial Deletion (NOPD) in the Federal Register, 67 FR 76683 (Dec. 13, 2002). No public comments were received in response to the Notice of Intent for Partial Deletion, which was published in the Federal Register approximately seven weeks before the NOPD, 67 FR 64846 (Oct. 22, 2002). The partial deletion, which removed approximately 512 acres from the WVOW site, was comprised of the OU-11 Sellite Plant, the OU-12 North and South Powerhouses and Vicinity, the ENV-6 Wetlands Mitigation Area, the ESI-3 Tract 21, the ESI-5 Refueling Depot, and the ESI-9 Main and Outgoing Classification Yards.
        The current WVOW site boundary, after the 2002 partial deletion, encompasses approximately 2,188 acres. All areas proposed for deletion from the NPL are located within the current boundary for the WVOW site. The Clifton F. McClintic Wildlife Management Area (MWMA) occupies 2,788 acres of the 1983 site, and most of the MWMA is also within the current NPL boundary.
        OU-10: South Acids Area, Cooling Tower Area, and Toluene Storage Areas
        A focused remedial investigation was conducted for OU-10 in 1995; however, surface soil samples were not collected until November 2000. Monitoring wells were installed in 2002 to periodically test and analyze groundwater. Based on these investigations, it was determined that hazardous substances within OU-10 do not pose an imminent and substantial danger to public health and welfare or to the environment. USACE and EPA issued a ROD in September 2003, which was concurred upon by the WVDEP, documenting the conclusion that no remedial action was required at OU-10 because no contaminants present in the soil, sediment, surface water or groundwater at OU-10 pose a threat to human health or the environment.
        ESI-1: Magazine Area
        The southwest portion of ESI-1 overlaps with OU-7, the Point Pleasant Landfill. Several investigations have been conducted within ESI-1. Based on these investigations, no further risk characterization was recommended for those portions of ESI-1 that do not overlap with OU-7. Therefore, on January 22, 2003, USACE, EPA and WVDEP executed a Decision Document stating that no further action is necessary to protect human health and the environment and that ESI-1 should be removed from the NPL, with the exception of the portion of ESI-1 that overlaps with OU-7. OU-7 is being addressed by EPA and is not part of this proposed partial deletion.
        ESI-4: Red Water Outfall Sewer
        Field investigations, consisting of soil and groundwater sampling and analysis, geophysical surveys, and confirmatory excavations, were performed in 1994, 1997, and 2003 at the Red Water Outfall Sewer, designated as ESI-4. The data from these field investigations were undertaken to discover if nitroaromatic compounds, which could have been produced by operations at the former WVOW, were present in soil and groundwater. Evaluation of contaminant levels and site conditions indicated that ESI-4 poses no significant threat to human health. On June 25 and 29, 2003, USACE, EPA, and WVDEP executed a Decision Document stating that no further action is necessary to protect human health and the environment and that ESI-4 should be removed from the NPL.
        ESI-6: Motorpool/Maintenance Area
        Prior to 1994, no known environmental studies of soil or groundwater had been conducted at the Motorpool/Maintenance Area. The objective of ESI-6 was to determine whether contamination directly associated with former WVOW site activities existed within the Motorpool/Maintenance Area and, if present, the nature of this contamination. The initial ESI-6 investigation conducted in 1994 included a geophysical survey and subsurface soil sample collection. In 1997, as part of a data gaps investigation, several hydropunch groundwater samples were collected and analyzed. The 1997 investigation showed magnetic anomalies and low levels of petroleum contamination in site soils in the gasoline area of ESI-6, so an investigation was completed in 1999 to further determine whether underground storage tanks (USTs) could be present. The 1999 investigation did not discover any USTs in the gasoline area, and it was presumed that an UST for storing and dispensing gasoline had most likely been removed at some time after the WVOW facility ceased operation. However, trenching activities were undertaken in the locomotive area and in 2000 an UST was removed. A supplemental investigation was conducted in 2002 to provide further information on potential contamination in ESI-6 surface and subsurface soil from lead, volatile organic compounds (VOCs), and PCBs and in ESI-6 groundwater from VOCs.
        Based on these investigations, it was determined that ESI-6 poses no significant threat to human health or the environment. This finding was based on the following facts: (a) Remedial activities in 2000 removed the UST and surrounding soils in the locomotive area, which was the only likely source of contamination; (b) no significant contamination was found in site groundwater; and (c) there is no potential for significant release of hazardous substances because the UST and contaminated soils have been removed. On June 18, 2003, USACE, EPA, and WVDEP executed a Decision Document stating that no further action is necessary to protect human health and the environment and that this area should be removed from the NPL.
        ESI-7: Former Sewage Treatment Plant
        The objective of ESI-7 was to determine the existence and, if present, the nature of contamination directly associated with the plant's influent lines and outfall. The initial ESI-7 investigation completed in 1994 consisted of the collection and analysis of one collocated surface water and sediment sample taken 100 feet downstream of the plant's discharge conduit. The sample was analyzed for target compound list and target analyte list volatile organic compounds, semivolatile organic compounds, and metals. In addition, the sediment sample was analyzed for nitroaromatic compounds. On September 28, 2000, USACE, EPA, and WVDEP executed a Decision Document stating that no further action is necessary to protect human health and the environment; however, concerns were later raised concerning the wastewater influent lines. Additional sampling within the lines that carry wastewater to the plant was conducted in 2003. Based on the analysis of the sampling and site conditions, ESI-7 poses no significant threat to human health or the environment and requires no further action to address WVOW-related contaminants.
        II. NPL Deletion Criteria

        This partial deletion of the WVOW site is proposed in accordance with 40 CFR 300.425(e) and the Notice of Policy Change: Partial Deletion of Sites Listed on the National Priorities List, 60 FR 55446 (Nov. 1, 1995). The NCP establishes the criteria that EPA uses to delete sites from the NPL. In accordance with 40 CFR 300.425(e), sites may be deleted from the NPL where no further response is appropriate to protect public health or the environment. In making such a determination pursuant to 40 CFR 300.425(e), EPA will consider, in consultation with the State, whether any of the following criteria have been met:
        Section 300.425(e)(1)(i). Responsible parties or other persons have implemented all appropriate response actions required; or
        Section 300.425(e)(1)(ii). All appropriate responses under CERCLA have been implemented, and no further response action by responsible parties is appropriate; or
        Section 300.425(e)(1)(iii). The remedial investigation has shown that the release poses no significant threat to public health or the environment and, therefore, taking of remedial measures is not appropriate.
        Deletion of a portion of a site from the NPL does not preclude eligibility for subsequent CERCLA actions at the area deleted if future site conditions warrant such actions. Section 300.425(e)(3) of the NCP provides that CERCLA actions may be taken at sites that have been deleted from the NPL. A partial deletion of a site from the NPL does not affect or impede EPA's ability to conduct CERCLA response activities at areas not deleted and remaining on the NPL. In addition, deletion of a portion of a site from the NPL does not affect the liability of responsible parties or impede agency efforts to recover costs associated with response efforts.
        III. Deletion Procedures
        Deletion of a portion of a site from the NPL does not itself create, alter, or revoke a person's rights or obligations. The NPL is designed primarily for informational purposes and to assist agency management. The following procedures were used for the proposed deletion of OU-10 and ESIs-1, -4, -6, and -7 at the WVOW site:
        1. EPA has recommended the partial deletion and USACE has prepared the relevant documents.
        2. The State of West Virginia through the West Virginia Department of Environmental Protection concurs with this partial deletion.

        3. Concurrent with this national Notice of Intent for Partial Deletion, a notice has been published in a newspaper of record and has been distributed to appropriate federal, state, and local officials, and other interested parties. These notices announce a thirty (30) day public comment period on the deletion package, which commences on the date of publication of this notice in the Federal Register and publication of a notice of availability of this notice in a newspaper of record.
        4. EPA and USACE have made all relevant documents available at the information repositories listed previously.
        This Federal Register document and a concurrent notice in a newspaper of record announce the initiation of a thirty (30) day public comment period and the availability of the Notice of Intent for Partial Deletion. The public is asked to comment on EPA's proposal to delete OU-10 and ESIs-1, -4, -6, and -7 of the WVOW site from the NPL. All critical documents needed to evaluate EPA's decision are included in the Deletion Docket and are available for review at the information repositories. Upon completion of the thirty (30) day comment period, EPA will evaluate all comments received before issuing the final decision on the partial deletion. EPA will prepare a Responsiveness Summary for comments received during the public comment period and will address concerns presented in the comments. The Responsiveness Summary will be made available to the public at the information repositories listed previously. Members of the public are encouraged to contact EPA Region III to obtain a copy of the Responsiveness Summary. If, after review of all public comments, EPA determines that the partial deletion from the NPL is appropriate, EPA will publish a final notice of partial deletion in the Federal Register. Deletion of the areas does not actually occur until the final Notice of Partial Deletion is published in the Federal Register.
        IV. Basis for Intended Partial Site Deletion
        The following provides EPA's rationale for deletion of OU-10, ESI-1, ESI-4, ESI-6, and ESI-7 from the NPL and EPA's finding that the criteria in 40 CFR 300.425(e) are satisfied.
        Background
        The WVOW site is located on the east bank of the Ohio River, approximately six miles north of Point Pleasant, Mason County, West Virginia. The WVOW site, as added to the NPL in 1983, encompassed a land mass of approximately 8,323 acres. As explained in section I, earlier in this Notice, the NPL boundary was clarified in 1994, which reduced the WVOW site area to approximately 2,700 acres. A partial deletion from the NPL was completed in December 2002, which further reduced the boundary to approximately 2,188 acres. The Clinton F. McClintic Wildlife Management Area (MWMA) occupies 2,788 acres of the original site, and is mostly included in the current site boundary.
        Contamination of the WVOW site originated from the operation of a trinitrotoluene (TNT) manufacturing facility during World War II. Nitroaromatic (explosive) compounds are the primary contaminants of concern at the WVOW site. To expedite CERCLA response actions at this large site, the WVOW site is divided into 13 Operable Units (OUs) and 10 Expanded Site Investigations (ESIs):

          OU-1: TNT Manufacturing Area, Burning Grounds, and Waste Water Process Lines

          OU-2: Red Water Reservoir

          OU-3: Yellow Water Reservoir

          OU-4: Groundwater Extraction and Treatment for OUs 2 and 3

          OU-5: Pond 13/Wet Well Area

          ENV-6: Wetlands Mitigation

          OU-7: Point Pleasant Landfill

          OU-8: TNT Manufacturing Area Soils

          OU-9: TNT Manufacturing Area Groundwater

          OU-10: South Acids Area and Toluene Storage Areas

          OU-11: Sellite Plant

          OU-12: North and South Powerhouses

          OU-13: Pantasote Plant

          ESI-1: Magazine Area

          ESI-2: Acid Dock

          ESI-3: Tract 21

          ESI-4: Red Water Outfall Sewer

          ESI-5: Refueling Depot

          ESI-6: Motorpool and Maintenance Area

          ESI-7: Former Sewage Treatment Plant

          ESI-8: Dump Site Adjacent to the TNT Manufacturing Area

          ESI-9: Classification Yards

          ESI-10: Various Areas of Concern

        OU-11, OU-12, ENV-6, ESI-3, ESI-5, and ESI-9 were deleted from the NPL site by the December 2002 partial deletion.
        USACE has been investigating and conducting human health risk evaluations and assessments for each OU and ESI separately. Once investigations and assessments are complete, USACE and EPA together have made CERCLA response action decisions, with the concurrence of WVDEP.
        The WVOW was established in 1942 as a government-owned, contractor-operated plant for the manufacture of TNT from toluene, nitric acid, and sulfuric acid. The WVOW plant was operated by the General Defense Corporation of New York from October 1942 through August 1945. The plant had the capacity to produce 720,000 pounds of TNT each day, utilizing 12 manufacturing lines; however, it has been reported that only lines 1 through 10 were operated, and the plant never reached full capacity.

        The facility was constructed on approximately 5,800 acres, of which more than 2,000 acres were used as a safety zone between the plant and other properties. The plant included the 12 TNT manufacturing lines; two acid manufacturing areas; two coal-fired power plants; a Sellite manufacturing plant; pumping stations; a sewage treatment plant; 100 concrete TNT storage magazines; and various administrative, shop, and housing facilities.
        In 1945, the production of TNT ceased, and shutdown of the WVOW plant was initiated. The production of TNT had resulted in soil contamination from nitroaromatic compounds in the manufacturing areas, process facilities, and wastewater disposal facilities. Partial decontamination actions were performed, such as flashing the TNT lines and draining and capping the Red and Yellow Water Reservoirs, and the property was transferred from the U.S. War Department to the U.S. War Assets Administration in late 1946.
        Numerous site visits and investigations beginning in 1947 and continuing through the 1950s determined that additional contamination not previously identified was present at the site. In addition, several tracts of land that had received decontamination certificates were determined to be contaminated. Because the site could not be completely decontaminated, a portion of the site was not released for private ownership and was transferred to the State of West Virginia as a wildlife management area in 1949.
        In 1981, a red water seepage was discovered at Pond 13, later designated as OU-5. Subsequent investigations led the State of West Virginia to nominate the WVOW site for inclusion on the NPL; ultimately the WVOW site was ranked 84th. A memorandum of understanding was signed in 1983 between EPA Headquarters and the Department of Defense to establish responsibilities for remediating the site. For the Department, the U.S. Army Toxic and Hazardous Materials Agency began the first remedial investigation and feasibility study in 1984. Initially, only two operable units were established, and Records of Decision (RODs) and Interagency Agreements (IAGs) were signed to address these areas. Later, more operable units were created until the current total of thirteen was reached.
        Construction of the OU-1 remedy was completed in 1988 before the site was transferred from the U.S. Army Toxic and Hazardous Materials Agency to USACE, Baltimore District, in 1991. OU-1 remediation included capping of the burning grounds and the ten TNT manufacturing lines that had been operated in the 1940s and excavation and flaming of process waste water lines. Construction on OU-2, which included draining and capping of the Red and Yellow Water Reservoirs, was completed in 1992 before the site administration was transferred to USACE, Huntington District, where it remains. Portions of OU-2 were later divided into OU-3, OU-4, and OU-5 to simplify management. The construction of the OU-4 remedy was completed in 1997, and the two groundwater treatment plants are currently operational. Nitroaromatic-contaminated soil from OU-5 and Area of Concern 21 has been excavated and bioremediated on-site via windrow composting. OU-6 was re-designated as ENV-6, and construction of wetlands has been completed. OU-7 and OU-13, the Point Pleasant landfill and the Pantasote plant, respectively, have been designated by EPA as potentially responsible party sites, and EPA is the lead agency for addressing these areas. Buildings were demolished and debris removed at OU-11 and OU-12. Asbestos-containing material has been removed from ESI-3, which was the only hazard posed on that area. An underground storage tank (UST) was removed from ESI-6, and petroleum-contaminated soil from another area of ESI-6 was excavated and bioremediated on-site via windrow composting. Asbestos materials and other debris were removed and capped at ESI-8.
        OU-10: South Acids Area, Cooling Tower Area, and Toluene Storage Areas
        The South Acids Area (SAA) is located in the central region of the former WVOW, southwest of County Road 12 (Wadsworth Road) and is outside of the MWMA. SAA is currently owned by the State of West Virginia and is part of the West Virginia State Farm Museum property. During the WVOW's period of operation, SAA was used primarily for the production of nitric and sulfuric acids, used in the TNT production process. Most of the buildings in SAA were removed prior to 1968, but a few building foundations, a few buildings, and several concrete tank supports remain. Toluene Storage Area (TSA) 1 and TSA 2 are both located south of SAA. TSA 1 is located south of SAA and west of the TNT Manufacturing Area within the boundaries of the MWMA, which is owned by the State of West Virginia and managed by the WVDNR. TSA 1 previously housed four 270,000-gallon above-ground storage tanks in which toluene was stored and from which toluene was transferred for use in TNT production. These tanks were arranged in a square, with each storage tank surrounded by an earthen berm. Tanks and other structures were removed from TSA 1, except for earthen berms and fire-suppression bunkers, which are still present. TSA 2, comprising approximately 2.3 acres, is located between the Sellite Manufacturing Area and TSA 1 and is outside of the MWMA. Part of this property is owned by the State of West Virginia and is on the West Virginia State Farm Museum property. The other part is owned by the Department of the Army, which plans to transfer the property to the State of West Virginia to be part of the State Farm Museum. TSA 2 contains two earthen berms, but it is unclear from historic records whether the storage tanks were removed from TSA 2 and moved to the Sellite Manufacturing Area (OU-11) or if the tanks were never erected at the TSA 2 location.
        The Cooling Tower Area is located north of SAA, outside of the MWMA. The parcel is approximately 2.0 acres and is currently owned by Mason County, West Virginia. The Cooling Tower Area was used to provide noncontact cooling water to various process units in the facility. All structures, except for two building foundations, have been removed. One of these foundations holds standing water.
        ESI-1: Magazine Area
        The Magazine Area was used for storage of TNT during the WVOW operational period from 1942 through 1945. One hundred concrete dome-shaped magazines (also called “igloos”) were constructed for this purpose and still remain at the site; 45 are located within the southern half of the Magazine Area, and the remaining 55 are in the northern half. Each magazine is constructed of reinforced concrete covered with 2 feet of soil and has an interior diameter of 45 feet, a ceiling height of 15 feet, and a TNT storage capacity of 125 tons. No WVOW operations other than TNT storage are known to have been conducted in the Magazine Area.

        After closure of the WVOW facility, parts of the Magazine Area were transferred to private ownership. The southwest portion of ESI-1 was transferred to Mason County and comprises a portion of the Point Pleasant Landfill (the “landfill”), which operated from 1974 through 1984 as a municipal landfill. The landfill has been designated by EPA as OU-7, and EPA is the lead agency for addressing OU-7 because many private or public parties could be responsible for any contamination found at OU-7. The landfill is not included in this Notice of Intent for Partial Deletion.
        A portion of the southern half of the Magazine Area, referred to as the TNT Remelt Area, was used for reclamation of explosives, most likely TNT and other nitroaromatics, from naval mines and perhaps other ordnance. The TNT Remelt Area, along with other property in the southern half of the Magazine Area (for a total acreage of 281.5 acres), was sold by the War Assets Administration in 1947 to the Liberty Powder Company. An archives search hypothesized that, after the sale, this area was used for TNT reclamation by the Liberty Powder Company in the 1950s and that reclamation activities by American Cyanamid, observed during a 1966 site visit, were a continuation of the Liberty Powder Company operation.
        In the northern half of the Magazine Area, there was an unregulated open civilian dumping area from the end of World War II until the early 1970s. Over the years since the end of World War II, numerous owners and lessees have used portions of the Magazine Area for the storage of herbicides, commercial explosives, waste solvents, materials contaminated with polychlorinated biphenyls, and war surplus explosives.
        The southern half of the Magazine Area lies within the boundaries of the MWMA and is heavily wooded. The northern half, which is managed as part of the MWMA, is similarly wooded. The State of West Virginia now owns the southern half of the Magazine Area, which is currently part of the MWMA. The northern half of the Magazine Area is currently owned by American Electric Power but is leased to the State of West Virginia and managed as part of the MWMA. Some of the 100 magazines in the Magazine Area have been emptied and the steel doors welded shut. Other magazines in the southern half of the Magazine Area are currently leased to West Virginia Ordnance Works, Inc., a subsidiary of Hi-Performance Ammunition Company, Inc. of Apollo, Pennsylvania, or to private individuals.
        ESI-4: Red Water Outfall Sewer
        ESI-4 is comprised of the Red Water Outfall Sewer (RWOS) and its vicinity, an approximately 6,200-foot section of the Red Water Sewer Line (RWSL) extending from the Red Water Reservoir (RWR) to the Ohio River. Except for the approximately 350 feet of RWSL nearest the RWR, ESI-4 is outside of the MWMA and is currently used for agricultural and residential purposes.
        The RWSL, constructed in 1942, transported red wastewater generated during the final washing of crystallized TNT. Red wastewater flowed by gravity from the TNT Manufacturing Area through wood-stave and vitrified-clay sewer lines to the main wastewater pumping station in the vicinity of Pond 13 (OU-5). From there, the red wastewater was pumped either directly to the Ohio River or to the retention ponds known as the RWR for temporary storage, when the river was too low to permit proper dilution. The discharge pipe to the Ohio River was located south of Eight Mile Island and extended into the channel. The RWOS, constructed of an 18-inch-diameter vitrified-clay pipeline, is the final section of the RWSL that extends from the RWR downgradient (west) to the Ohio River.
        ESI-6: Motorpool/Maintenance Area
        ESI-6 is located approximately six-tenths of a mile east of State Route 62, within the boundary of the Mason County Fairgrounds and entirely outside of the MWMA. The site is currently used during the annual county fair for displaying exhibits, showing livestock, and as a storage facility. Part of ESI-6 is also on the West Virginia State Farm Museum property. During the operation of WVOW, the site was used for the repair and maintenance of vehicles, locomotives, and equipment. The need for a sampling investigation was based on historical knowledge regarding the presence and use of petroleum fuels, oils, lubricants, solvents, and related materials. ESI-6 has been subdivided into eight individual study areas: Paint, Solvent, and Acetylene Sheds Area; Locomotive House Area; Maintenance Shop Area; Millwright Shop Area; Auto Repair Shop Area; Gasoline Station Area; General Storehouse Area; and Material Shed Area.
        The Paint, Solvent, and Acetylene Sheds Area was used for the storage of oil and paint, solvents, and acetylene. Apparently, the Acetylene Shed was torn down in the post-WVOW operations period, and a larger building was constructed in its place. Locomotives maintenance was performed in Building 718 of the Locomotive House Area, which has been torn down. A pit had been located in the northeast portion of the building. This building with two tracks inside had been located adjacent to the railroad tracks that ran through the Motorpool/Maintenance Area during the WVOW operational period. The railroad tracks are no longer present at the site. A geophysical survey undertaken by USACE indicated that there was an UST in the Locomotive House Area, which was found during trenching activities and subsequently removed. Possible contaminants of concern in this area included oils, lubricants, waste oils, petroleum fuels, solvents, PCBs, and lead.
        The Maintenance Shop is still in place and used for exhibits during the annual county fair. Varied maintenance was performed in this large building, apparently including additional space for locomotive maintenance. Presumably, the Millwright Shop and the other small buildings in this area were mainly used as headquarters for the maintenance staff and as storage for their tools. The Auto Repair Shop is not currently standing, but the building housing the Garage and Repair Shop still stands. The Auto Repair Shop was located midway between County Road 12 and Pond 2. It had an attached shed on the southeast side, and the shed had a grease pit. This area was used for the maintenance and repair of WVOW vehicles. The Gasoline Station still stands and is located approximately 120 feet south of the Maintenance Shop. Two dispenser pumps had been located on its northeast and southwest sides. An abandoned refueling line was found east of the site. From a 1944 photograph, no aboveground gasoline storage tank was visible. An UST was probably used to store the gasoline dispensed at the facility at the southeast corner of this same building and was removed in the post-operational period of the facility. During geophysical survey activities undertaken by USACE, a magnetic anomaly was observed at this location, but no UST was found during trenching activities.
        The General Storehouse is in place and has been expanded since the WVOW period of operations. A review of existing records did not reveal what categories of supplies were stored in this area. Review of existing records does not show how the Material Shed was utilized. An UST was reported to be located between the Material Shed and the General Storehouse during the period of WVOW operations; however, no UST was indicated by the geophysical survey.
        ESI-7: Former Sewage Treatment Plant

        ESI-7 is located outside of the MWMA, approximately 1,000 feet southwest of the former RWR in the northwest portion of WVOW and to the south of Mill Run Creek. The plant received sanitary sewage from the former TNT Manufacturing Area, the North and South Acid Areas, and the Administration Area. The system discharged treated effluent into a nearby tributary of Mill Run Creek. USACE undertook a sampling investigation because it was possible that contaminants from the manufacturing areas could have been transported to the plant via the daily operation of the sewage system.
        Response Actions
        At OU-10, a removal was performed in 2000 to remove asbestos-containing debris. From ESI-6, an UST was removed in 2000 and a small area of petroleum-contaminated soil was removed in 2003.
        Community Involvement
        Public participation activities have been satisfied as required in CERCLA Section 113(k), 42 U.S.C. 9613(k), and Section 117, 42 U.S.C. 9617.
        On August 26, 2003, a public meeting was held to present the Proposed Plan for OU-10, which proposed no further action, and decision documents for ESI-1, ESI-4, and ESI-6. The public did not comment on the decision documents. A public comment period for the Proposed Plan was open from August 18 through September 16. The plan was made available at the meeting and at the Mason County Library. Only one minor comment was received, and it was answered at the public meeting and in the responsiveness summary of the OU-10 ROD.
        On November 8, 2000, a public meeting was held to present a Decision Document for ESI-7. No public comments were received regarding the decision.
        Current Status
        Removals at OU-10 and ESI-6 have been successfully completed. No further response action is planned or scheduled for OU-10, ESI-1, ESI-4, ESI-6, or ESI-7. Pursuant to the NCP, a five-year review will not need to be performed at any of these five areas. While EPA does not believe that any future response actions will be needed, if future conditions warrant such action, the areas proposed for deletion in this Notice remain eligible for future response actions. Furthermore, this partial deletion does not alter the status of any other OUs or ESIs at the WVOW site that are not proposed for deletion and remain on the NPL. EPA, together with USACE and with concurrence from the State of West Virginia, has determined that all appropriate CERCLA response actions have been completed at OU-10, ESI-1, ESI-4, ESI-6 and ESI-7 and that protection of human health and the environment has been achieved in these areas. Therefore, EPA makes this proposal to delete OU-10, ESI-1, ESI-4, ESI-6, and ESI-7 of the WVOW site from the NPL.

          Dated: February 11, 2004.
          Thomas Voltaggio,
          Acting Regional Administrator, Environmental Protection Agency, Region III.

      [FR Doc. 04-4624 Filed 3-2-04; 8:45 am]
      BILLING CODE 6560-50-P