Federal Register Vol. 82, No.90,

Congress established the Bureau in the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act).1 In the Dodd-Frank Act, Congress generally consolidated in the Bureau the rulemaking authority for Federal consumer financial laws previously vested in certain other Federal agencies. Congress also provided the Bureau with the authority to, among other things, prescribe rules as may be necessary or appropriate to enable the Bureau to administer and carry out the purposes and objectives of the Federal consumer financial laws and to prevent evasions thereof.2 Since 2011, the Bureau has issued a number of rules adopted under Federal consumer financial law.3

Section 1022(d) of the Dodd-Frank Act requires the Bureau to conduct an assessment of each significant rule or order adopted by the Bureau under Federal consumer financial law. The Bureau must publish a report of the assessment not later than five years after the effective date of such rule or order. The assessment must address, among other relevant factors, the rule's effectiveness in meeting the purposes and objectives of title X of the Dodd-Frank Act and the specific goals stated by the Bureau. The assessment must reflect available evidence and any data that the Bureau reasonably may collect. Before publishing a report of its assessment, the Bureau must invite public comment on recommendations for modifying, expanding, or eliminating the significant rule or order.

In January 2013, the Bureau issued the “Mortgage Servicing Rules Under the Real Estate Settlement Procedures Act (Regulation X)” (2013 RESPA Servicing Final Rule).4 The Bureau amended the 2013 RESPA Servicing Final Rule on several occasions before it took effect on January 10, 2014.5 As discussed further below, the Bureau has determined that the 2013 RESPA Servicing Final Rule and all the amendments related to it that the Bureau made that took effect on January 10, 2014 collectively make up a significant rule for purposes of section 1022(d). The Bureau will conduct an assessment of the 2013 RESPA Servicing Final Rule as so amended, which this document refers to as the “2013 RESPA Servicing Rule.” In this document, the Bureau is requesting public comment on the issues identified below regarding the 2013 RESPA Servicing Rule.

Assessments pursuant to section 1022(d) of the Dodd-Frank Act are for informational purposes only and are not part of any formal or informal rulemaking proceedings under the Administrative Procedure Act. The Bureau plans to consider relevant comments and other information received as it conducts the assessment and prepares an assessment report. The Bureau does not, however, expect that it will respond in the assessment report to each comment received pursuant to this document. Furthermore, the Bureau does not anticipate that the assessment report will include specific proposals by the Bureau to modify any rules, although the findings made in the assessment will help to inform the Bureau's thinking as to whether to consider commencing a rulemaking proceeding in the future.6 Upon completion of the assessment, the Bureau plans to issue an assessment report no later than January 10, 2019.

Congress adopted the Dodd-Frank Act in response to an unprecedented cycle of expansion and contraction in the mortgage market that sparked the most severe U.S. recession since the Great Depression. In the Dodd-Frank Act, Congress enacted a number of new provisions governing the origination and servicing of consumer mortgages. Beginning in 2013, the Bureau issued several final rules to implement these new statutory provisions. Those rules generally took effect in January 2014.

In January 2013, the Bureau issued the 2013 RESPA Servicing Final Rule.7 The 2013 RESPA Servicing Final Rule contained a number of new borrower protections, which are summarized below. After finalizing the rule, consistent with its obligations under section 1022(c) of the Dodd-Frank Act, the Bureau continued to monitor the mortgage servicing market and consider whether changes to the 2013 RESPA Servicing Final Rule were appropriate.8 During 2013, the Bureau amended the rule to address important questions raised by industry, consumer advocacy groups, and other stakeholders.9 As noted above, the effective date of the 2013 RESPA Servicing Rule, including these amendments, was January 10, 2014.10

The 2013 RESPA Servicing Rule in part implements section 1463 of the Dodd-Frank Act, which amended RESPA. Section 1463(a) imposed new mortgage servicing requirements and prohibitions under RESPA on servicers of federally related mortgage loans with respect to force-placed insurance, borrower assertions of error, and borrower requests for information.11 It also provided the Bureau authority to establish obligations on servicers of federally related mortgage loans appropriate to carry out the consumer protection purposes of RESPA. The Bureau also has the authority under RESPA to prescribe such rules and regulations, to make such interpretations, and to grant such reasonable exemptions for classes of transactions as may be necessary to achieve the purposes of RESPA.12 Accordingly, the 2013 RESPA Servicing Rule included not only provisions that implemented the specific Dodd-Frank Act requirements mentioned above but also provisions regarding servicing policies and procedures, early intervention with delinquent borrowers, continuity of contact with delinquent borrowers, and loss mitigation procedures, as well as certain exemptions, all of which the Bureau found to be appropriate to carry out or necessary to achieve the purposes of RESPA and title X and prevent evasion of those laws.

The 2013 RESPA Servicing Rule addressed six major topics, which are summarized below. Many of these requirements do not apply to small servicers, generally defined as servicers that service 5,000 mortgage loans or fewer and only service mortgage loans the servicer or an affiliate owns or originated.13 Small servicers are exempt from: Certain requirements relating to obtaining force-placed insurance; the provisions relating to general servicing policies, procedures, and requirements; and certain requirements and restrictions relating to communicating with borrowers about, and evaluation of, loss mitigation applications.

1. Force-placed insurance. The rule prohibits servicers from charging a borrower for force-placed insurance coverage unless the servicer has a reasonable basis to believe the borrower has failed to maintain hazard insurance required by the loan agreement. Where the borrower has an escrow account for the payment of hazard insurance premiums, the servicer is prohibited from obtaining force-placed insurance where the servicer can continue the borrower's homeowner insurance, even if the servicer needs to advance funds to the borrower's escrow account to do so. The rule also requires servicers to send two notices before charging the borrower for force-placed insurance coverage and provides other requirements regarding force-placed insurance.

2. Error resolution and information requests. The rule requires servicers to comply with certain error resolution procedures for written notices of error relating to the servicing of a mortgage loan. Servicers generally are required to acknowledge the notice of error within five days and to investigate and respond in writing within 30 days, either correcting the error or notifying the borrower that no error occurred. Similar procedures and timeframes apply to servicer acknowledgment of and response to borrower written requests for information.

3. General servicing policies, procedures, and requirements. The rule requires servicers to establish policies and procedures reasonably designed to achieve objectives specified in the rule.

4. Early intervention with delinquent borrowers. The rule generally requires servicers to establish or make good faith efforts to establish live contact with borrowers by the 36th day of their delinquency (for each billing cycle for which a payment sufficient to cover principal, interest, and, if applicable, escrow is due and unpaid) and to promptly inform such borrowers, where appropriate, that loss mitigation options may be available. In addition, servicers must generally provide borrowers a written notice with information about loss mitigation options by the 45th day of their delinquency.

5. Continuity of contact with delinquent borrowers. The rule requires servicers to maintain reasonable policies and procedures with respect to providing delinquent borrowers with access to personnel to assist them with loss mitigation options where applicable.

6. Loss mitigation procedures. The rule requires servicers to follow specified loss mitigation procedures for a mortgage loan secured by a borrower's principal residence. Servicers generally must provide a written notice acknowledging receipt of a borrower's loss mitigation application within five days and exercise reasonable diligence in obtaining documents and information to complete the application. For a complete loss mitigation application received more than 37 days before a foreclosure sale, the rule requires the servicer to evaluate the borrower, within 30 days, for all loss mitigation options available to the borrower in accordance with the investor's eligibility rules. The rule also prohibits a servicer from making the first notice or filing required by applicable law for any judicial or nonjudicial foreclosure process until a mortgage loan is more than 120 days delinquent and places certain restrictions on “dual tracking,” where a servicer is simultaneously processing a consumer's loss mitigation application at the same time that it advances the foreclosure process.

The Bureau has determined that the 2013 RESPA Servicing Rule is a significant rule for purposes of Dodd-Frank Act section 1022(d). The Bureau makes this determination partly on the basis of the estimated aggregate annual cost to industry of complying with the rule.14 The rule mandated a large number of changes in the features of mortgage servicing, including new disclosures for force-placed insurance, an expanded error resolution regime, and new servicing procedures and requirements that apply to all servicing of delinquent loans, including mandated timelines and procedural rights in loss mitigation. These changes in turn required multiple changes in business operations, including adjustments in technology, training and compliance. The Bureau noted in the preamble to the 2013 RESPA Servicing Final Rule that these changes would require servicers to make changes to systems and procedures and that the new requirements could require servicers to increase staffing time devoted to certain activities and to hire more staff.15 Taking all of these factors into consideration, the Bureau has concluded that the 2013 RESPA Servicing Rule is “significant” for purposes of Dodd-Frank Act section 1022(d).

The 2013 TILA Servicing Final Rule became effective at the same time as the 2013 RESPA Servicing Rule. The Bureau has determined that the 2013 TILA Servicing Final Rule is not a significant rule (either individually or collectively with any amendments to the 2013 TILA Servicing Final Rule that took effect on January 10, 2014) for purposes of Dodd-Frank Act section 1022(d). The rule implemented the periodic statement requirement created by Dodd-Frank Act section 1420, and exempted small servicers from this requirement. The rule also required a new initial adjustable-rate mortgage notice and revised certain existing disclosures and other servicing provisions under the Truth in Lending Act. The estimated cost to servicers of complying with the rule is small, as set forth in the Bureau's analysis of benefits and costs that accompanied the rule.16 In this respect, the 2013 TILA Servicing Final Rule generally modified important disclosures that consumers were already receiving, meaning that additional ongoing costs and operational changes to distribute the disclosures are small.17 The rule did require one-time changes to provide additional important information in the disclosures; 18 however, Bureau outreach generally found that vendors would make these changes so the one-time costs would be spread over many entities.19 The rule's new disclosure requirements were intended to help certain groups of consumers make better decisions and were not expected to affect competition, innovation, or pricing in the mortgage market. These factors lead the Bureau to conclude that the 2013 TILA Servicing Final Rule is not “significant” for purposes of section 1022(d).

Because the Bureau has determined that the 2013 RESPA Servicing Rule is a significant rule for purposes of Dodd-Frank Act section 1022(d), section 1022(d) requires the Bureau to assess the rule's effectiveness in meeting the purposes and objectives of title X of the Dodd-Frank Act and the specific goals stated by the Bureau. Section 1021 of the Dodd-Frank Act states that the Bureau's purpose is to implement and, where applicable, enforce Federal consumer financial law consistently for the purpose of ensuring that all consumers have access to markets for consumer financial products and services and that markets for consumer financial products and services are fair, transparent, and competitive. Section 1021 also sets forth the Bureau's objectives, which are to ensure that, with respect to consumer financial products and services:

• Consumers are provided with timely and understandable information to make responsible decisions about financial transactions;

• Consumers are protected from unfair, deceptive, or abusive acts and practices and from discrimination;

• Outdated, unnecessary, or unduly burdensome regulations are regularly identified and addressed in order to reduce unwarranted regulatory burdens;

• Federal consumer financial law is enforced consistently, without regard to the status of a person as a depository institution, in order to promote fair competition; and

• Markets for consumer financial products and services operate transparently and efficiently to facilitate access and innovation.

In the 2013 RESPA Servicing Rule, the Bureau stated that, considered as a whole, RESPA, as amended by the Dodd-Frank Act, reflects at least two significant consumer protection purposes: (1) To establish requirements that ensure that servicers have a reasonable basis for undertaking actions that may harm borrowers; and (2) to establish servicers' duties to borrowers with respect to the servicing of federally related mortgage loans.20 The Bureau further stated that, specifically with respect to mortgage servicing, the consumer protection purposes of RESPA include: (1) Responding to borrower requests and complaints in a timely manner; (2) maintaining and providing accurate information; (3) helping borrowers avoid unwarranted or unnecessary costs and fees; and (4) facilitating review for foreclosure avoidance options.21 The Bureau further stated that each of the provisions adopted in the 2013 RESPA Servicing Rule was intended to achieve some or all of these purposes.22 The Bureau intends to focus the assessment on how well the rule has met these four purposes, which it believes are corollaries to certain of the Bureau's five objectives set forth in section 1021.

To assess the effectiveness of the 2013 RESPA Servicing Rule, the Bureau plans to analyze a variety of metrics and data to the extent feasible. Feasibility will depend on the availability of data and the cost to obtain any new data. The Bureau will seek to gather information about activities and outcomes including the ones listed below and seek to understand how these activities and outcomes relate to each other:

(1) Servicer activities undertaken to comply with the 2013 RESPA Servicing Rule, such as responding to loss mitigation applications or responding to borrower notices of error, including the timing of these actions;

(2) Consumer activities, including (a) utilization of the rights provided by the 2013 RESPA Servicing Rule, such as assertion of errors, submission of loss mitigation applications, submission of complete applications, and use of appeals; and (b) consumer actions that may be prompted or enabled by the 2013 RESPA Servicing Rule, such as additional payments or other consumer responses after early intervention by the servicer or consumer verification of hazard insurance in response to the 45 day notice sent by the servicer; and

(3) Consumer outcomes that the 2013 RESPA Servicing Rule sought to affect, including, for example, fees and charges assessed and paid, incidence and severity of delinquency, how delinquency is resolved, and time to resolution of delinquency. The Bureau will seek data that can help distinguish negative outcomes that are plausibly avoidable by consumers from those that are not.

The Bureau will seek to understand how these metrics relate to one another. In particular, to the extent possible given available data, the Bureau will seek to understand how the consumer outcomes described in category 3 are affected by the measures of servicer and consumer activities described in categories 1 and 2.

The Bureau intends to place emphasis in the assessment on provisions of the 2013 RESPA Servicing Rule that have particular relevance to delinquent borrowers. These include provisions governing servicers' communication with delinquent borrowers and loss mitigation procedures, as well as provisions providing rights that could be particularly important to consumers facing payment difficulties, including error resolution requirements and requirements applicable to force-placed insurance. In conducting the assessment the Bureau plans to focus its resources, particularly with respect to efforts to collect new data, on these provisions. The Bureau anticipates addressing other provisions of the 2013 RESPA Servicing Rule to the extent that data are already available to the Bureau, provided by commenters in response to this document, or identified by commenters and reasonably available.

In conducting the assessment, the Bureau will seek to compare servicer and consumer activities and outcomes to a baseline that would exist if the 2013 RESPA Servicing Rule's requirements were not in effect. Doing so is challenging because the Bureau cannot observe the activities and outcomes of an unregulated “control” group, i.e., of a representative group of servicers that are exempt from the 2013 RESPA Servicing Rule.23 In some cases the Bureau may have access to data from before the effective date of the 2013 RESPA Servicing Rule that is informative about the outcomes absent the 2013 RESPA Servicing Rule. In other cases there may be institutional factors that indicate what one would expect to observe absent the 2013 RESPA Servicing Rule's requirements, for example, where servicer incentives absent the rule are very clear. Even if one can observe a clear association between activities that the rule requires and consumer outcomes, the Bureau recognizes that some of those activities might also be required by consent orders, State law, or private contracts. In these cases, the impacts one observes may reflect these other requirements in addition to those of the rule. The Bureau will draw conclusions as supported by the data, taking into account that factors other than the rule itself may affect observable outcomes.

The Bureau has data sources, currently available or in development, with which to undertake these analyses, and the Bureau is also planning to secure additional data. These data sources include the National Mortgage Database (NMDB) and the American Survey of Mortgage Borrowers (ASMB),24 data from consumer complaints submitted to the Bureau, servicing data from a private vendor, and applicable information obtained from Bureau supervision and enforcement activities. The Bureau is also exploring the availability and utility of other sources of administrative data for conducting the assessment.

The Bureau intends to seek input from housing counselors, legal aid attorneys, and mortgage servicers as it analyzes the data described above and interprets the findings. The Bureau is also seeking to obtain deidentified loan-level data from a small number of servicers. This would potentially allow the Bureau to correlate mandated servicer activity (e.g., the early intervention requirements of the 2013 RESPA Servicing Rule) with consumer activity (e.g., additional consumer payments or additional loss mitigation applications occurring shortly after early intervention communications). It would also potentially allow the Bureau to correlate consumer and servicer activity with the measures of immediate consumer outcomes discussed earlier (fees and charges, delinquency resolution, time to resolution).

To inform the assessment, the Bureau hereby invites members of the public to submit information and other comments relevant to the issues identified below, as well as any information relevant to assessing the effectiveness of the 2013 RESPA Servicing Rule in meeting the purposes and objectives of title X of the Dodd-Frank Act (section 1021) and the specific goals of the Bureau (enumerated above). In particular, the Bureau invites the public, including consumers and their advocates, housing counselors, mortgage loan servicers and other industry representatives, industry analysts, and other interested persons to submit the following:

(1) Comments on the feasibility and effectiveness of the assessment plan, the objectives of the 2013 RESPA Servicing Rule that the Bureau intends to emphasize in the assessment, and the outcomes, metrics, baselines, and analytical methods for assessing the effectiveness of the rule as described in part IV above;

(2) Data and other factual information that may be useful for executing the Bureau's assessment plan, as described in part IV above;

(3) Recommendations to improve the assessment plan, as well as data, other factual information, and sources of data that would be useful and available to execute any recommended improvements to the assessment plan;

(4) Data and other factual information about the benefits and costs of the rule for consumers, servicers, and others in the mortgage industry; and about the effects of the rule on transparency, efficiency, access, and innovation in the mortgage market;

(5) Data and other factual information about the rule's effectiveness in meeting the purposes and objectives of title X of the Dodd-Frank Act (section 1021), which are listed in part IV above; and

(6) Recommendations for modifying, expanding or eliminating the 2013 RESPA Servicing Rule.

We invite you to participate in this rulemaking by submitting written comments, data, or views. We also invite comments relating to the economic, environmental, energy, or federalism impacts that might result from adopting the proposals in this document. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should send only one copy of written comments, or if comments are filed electronically, commenters should submit only one time.

We will file in the docket all comments that we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning this proposed rulemaking. Before acting on this proposal, we will consider all comments we receive on or before the closing date for comments. We will consider comments filed after the comment period has closed if it is possible to do so without incurring expense or delay. We may change this proposal in light of the comments we receive.

EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD No. 2015-0016, dated January 30, 2015, to correct an unsafe condition for Airbus Model AS 332 L2 and EC 225 LP helicopters with certain part-numbered attachment pins installed. EASA advises of three cracked attachment pins on a Model AS 332 L2 helicopter. According to EASA, the cracks resulted from a combination of factors including corrosion that had initiated in the inner diameter area of the attachment pin chamfer. EASA states that if this condition is not detected and corrected, it may lead to failure of the attachment pin with loss of control of the helicopter. Due to design similarity, Model EC225LP helicopters are also affected by this issue.

For these reasons, EASA AD No. 2015-0016 requires repetitive inspections of the attachment pins for corrosion.

These helicopters have been approved by the aviation authority of France and are approved for operation in the United States. Pursuant to our bilateral agreement with France, EASA, its technical representative, has notified us of the unsafe condition described in its AD. We are proposing this AD because we evaluated all known relevant information and determined that an unsafe condition is likely to exist or develop on other products of these same type designs.

We reviewed Airbus Helicopters Alert Service Bulletin (ASB) No. AS332-05.00.99, Revision 0, dated December 22, 2014 (AS332-05.00.99), for Model AS332L2 helicopters and Airbus Helicopters ASB No. EC225-05A040, Revision 0, dated December 22, 2014 (EC225-05A040), for Model EC225LP helicopters. Airbus Helicopters advises of cracks discovered in attachment pins that resulted from a combination of factors, but mainly corrosion which initiated in the inner diameter at the chamfer. This service information specifies repetitively inspecting for corrosion and cracks and ensuring there are no corrosion pits in the attachment pins. If there is corrosion, this service information allows an attachment pin to be reworked up to four times before removing it from service. If there is a crack, this service information specifies contacting and sending the attachment pin to Airbus Helicopters.

This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

This proposed AD would require an initial and recurring inspection of each attachment pin for corrosion, a crack, and any pitting. If there is a crack or any pitting, this proposed AD would require replacing the attachment pin. If there is corrosion, this proposed AD would require removing the corrosion up to a maximum of four times. This proposed AD would also require performing these inspections prior to installing an attachment pin.

The EASA AD does not require an inspection of the protective coating of each attachment pin for Model EC225LP helicopters. This proposed AD would require inspecting the protective coating of each attachment pin for both model helicopters. The EASA AD requires ensuring there are no corrosion pits without a corresponding corrective action. This proposed AD would require replacing an attachment pin that has any pitting. The EASA AD requires a non-destructive inspection if in doubt about whether there is a crack, while this proposed AD would not. Lastly, the EASA AD requires contacting and returning to Airbus Helicopters any attachment pin with a crack, and this proposed AD would not.

We estimate that this proposed AD would affect 5 helicopters of U.S. Registry. We estimate that operators may incur the following costs in order to comply with this proposed AD. Labor costs are estimated at $85 per work-hour.

For Model AS332L2 helicopters, there would be no costs of compliance with this proposed AD because there are no helicopters with this type certificate on the U.S. Registry.

For Model EC225LP helicopters, which have ten attachment pins installed, inspecting the attachment pins would take about 1 work-hour for a total cost of $85 per helicopter and $425 for the U.S. fleet. Removing corrosion would take about 1 work-hour for a total cost of $85 per attachment pin. Replacing an attachment pin would take negligible additional labor time and required parts would cost about $5,720.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed, I certify this proposed regulation:

1. Is not a “significant regulatory action” under Executive Order 12866;

2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);

3. Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction; and

4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

We prepared an economic evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.

Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

United States Coast Guard Sector Buffalo was notified by Niagara Frontier Antique and Classic Boats along with BR Guest Inc. that there would be a boat race held on July 22 and 23, 2017 from 10:00 a.m. to 4:00 p.m. on the Buffalo Outer Harbor. Hazards from the boat race include high speed vessels. The Captain of the Port Buffalo (COTP) has determined that potential hazards associated with the Thunder on the Outer Harbor boat race would be a safety concern for anyone within the designated course encompassed by all waters of the Outer Harbor, Buffalo, NY starting at position 42°52′21″ N. and 078°53′14″ W. then West to 42°52′15″ N. and 078°53′32″ W. then South to 42°51′41″ N. and 078°53′02″ W. then East to 42°51′46″ N. and 078°52′45″ W. (NAD 83) then returning to the point of origin.

The purpose of this rulemaking is to ensure the safety of vessels and the navigable waters within the above stated points before, during, and after the scheduled event. The Coast Guard proposes this rulemaking under authority in 33 U.S.C. 1231.

The COTP proposes to establish a temporary safety zone, enforced intermittently, from 9:45 a.m. to 4:15 p.m. on July 22 and 23, 2017. The safety zone will encompass all waters of the Outer Harbor, Buffalo, NY starting at position 42°52′21″ N. and 078°53′14″ W. then West to 42°52′15″ N. and 078°53′32″ W. then South to 42°51′41″ N. and 078°53′02″ W. then East to 42°51′46″ N. and 078°52′45″ W. (NAD 83) then returning to the point of origin. The duration of the zone is intended to ensure the safety of vessels and these navigable waters before, during, and after the scheduled 10:00 a.m. to 4:00 p.m. boat races. No vessel or person would be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative. The regulatory text we are proposing appears at the end of this document.

We developed this proposed rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders and we discuss First Amendment rights of protestors.

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. Executive Order 13771 (“Reducing Regulation and Controlling Regulatory Costs”), directs agencies to reduce regulation and control regulatory costs and provides that “for every one new regulation issued, at least two prior regulations be identified for elimination, and that the cost of planned regulations be prudently managed and controlled through a budgeting process.”

This NPRM has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, the NPRM has not been reviewed by the Office of Management and Budget.

As this rule is not a significant regulatory action, this rule is exempt from the requirements of Executive Order 13771. See OMB's Memorandum titled “Interim Guidance Implementing Section 2 of the Executive Order of January 30, 2017 titled `Reducing Regulation and Controlling Regulatory Costs' ” (February 2, 2017).

This regulatory action determination is based on the size, location, duration, and time-of-day of the safety zone. Vessel traffic would be able to safely transit around this safety zone, which would impact a small designated area of the Buffalo Outer Harbor, by transiting a short distance in Lake Erie. The safety zone would also have built in times where vessels will be able to transit though between race heats. Moreover, the Coast Guard would issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone, and the rule would allow vessels to seek permission to enter the zone.

The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities.

While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section IV.A above this proposed rule would not have a significant economic impact on any vessel owner or operator.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section. The Coast Guard will not retaliate against small entities that question or complain about this proposed rule or any policy or action of the Coast Guard.

This proposed rule would not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this proposed rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

Also, this proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this proposed rule has implications for federalism or Indian tribes, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves an intermittently enforced safety zone lasting 6.5 hours per day that would prohibit entry into the boundaries created by points starting at position 42°52′21″ N. and 078°53′14″ W. then West to 42°52′15″ N. and 078°53′32″ W. then South to 42°51′41″ N. and 078°53′02″ W. then East to 42°51′46″ N. and 078°52′45″ W. (NAD 83) then returning to the point of origin. Normally such actions are categorically excluded from further review under paragraph 34(g) of Figure 2-1 of Commandant Instruction M16475.lD. A preliminary Record of Environmental Consideration (REC) supporting this determination is available in the docket where indicated under the ADDRESSES section of this preamble. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places, or vessels.

We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.

We encourage you to submit comments through the Federal eRulemaking Portal at http://www.regulations.gov. If your material cannot be submitted using http://www.regulations.gov, contact the person in the FOR FURTHER INFORMATION CONTACT section of this document for alternate instructions.

We accept anonymous comments. All comments received will be posted without change to http://www.regulations.gov and will include any personal information you have provided. For more about privacy and the docket, you may review a Privacy Act notice regarding the Federal Docket Management System in the March 24, 2005, issue of the Federal Register (70 FR 15086).

Documents mentioned in this NPRM as being available in the docket, and all public comments, will be in our online docket at http://www.regulations.gov and can be viewed by following that Web site's instructions. Additionally, if you go to the online docket and sign up for email alerts, you will be notified when comments are posted or a final rule is published.

For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 165 as follows:

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:

EPA proposes to approve a November 18, 2015, Ohio SIP submittal consisting of adjustments and additions to OAC Chapter 3745-21. Specifically, this includes amended OAC rules 3745-21-01, 3745-21-03, 3745-21-04, 3745-21-08, 3745-21-09, 3745-21-10, 3745-21-12, 3745-21-13, 3745-21-14, 3745-21-15, 3745-21-16, 3745-21-17, 3745-21-18, 3745-21-19, 3745-21-20, 3745-21-21, 3745-21-22, 3745-21-23, 3745-21-25, 3745-21-27, 3745-21-28, 3745-21-29; rescission of existing OAC rule 3745-21-24, and adoption of new OAC rules 3745-21-24 and 3745-21-26.

Except for OAC rule 3745-21-26, the changes to the Chapter 3745-21 rules are based on an Ohio-initiated five-year periodic review of its VOC rules. When Ohio reviews a rule and amends greater than fifty percent of that rule, Ohio issues the entire rule as a new replacement rule. This is the case with OAC 3745-21-24. OAC rule 3745-21-26 is an entirely new rule, the purpose of which is to update the VOC RACT requirements for the Cleveland area for the miscellaneous metal and plastic parts coatings source category. Additionally, EPA proposes to approve OAC 3745-110-03(N) into the Ohio SIP; this rule includes an emission limit that Ohio is using as an offset in its CAA 110(l) demonstration for architectural coatings, which is discussed in detail later in this proposed rulemaking.

Many of Ohio's amendments to the rules in Chapter 3745-21 are not significant. These amendments include: Updates to items incorporated by reference; minor typographical changes to conform to new state preferences on style and formatting; updates to correct typographical and format errors; updates to reflect source name and/or address changes; the removal of references to sources which have been permanently shut down; updates to replace deadlines associated with previous rule effective dates with actual dates (e.g. “sixty days from the effective date of this rule” replaced with an actual date); and language updates to provide clarification and to avoid confusion. EPA reviewed these and other non-significant and/or non-substantive amendments and proposes to approve them since they do not constitute significant and/or substantive changes to Ohio's rules. More significant amendments, those amendments requiring more explanation, and the addition of OAC rule 3745-21-26 are discussed below.

Ohio amended catalytic incinerator requirements where rules require monitoring, recordkeeping, and reporting of both the catalytic incinerator inlet temperature and the temperature difference across the catalyst bed. Ohio updated these requirements for catalytic incinerators to include catalytic incinerator inspection and maintenance requirements in addition to monitoring the temperature at the inlet to the catalyst bed as an alternative to monitoring the temperature difference across the catalyst bed. Monitoring of the temperature difference across the catalyst bed may not necessarily be a useful indicator of destruction efficiency when there is a low concentration of VOC at the inlet to the catalyst bed. In these cases, Ohio recommends implementing a catalytic incinerator inspection and maintenance program as a compliance alternative to using catalyst bed temperature difference data. Ohio made catalytic incinerator requirement amendments to rules 3745-21-09, 3745-21-10, 3745-21-12, 3745-21-13, 3745-21-14, 3745-21-15, 3745-21-16, 3745-21-23, 3745-21-27, 3745-21-28. Ohio has similar provisions that are already included in OAC rules 3745-21-22 and 3745-21-24.

EPA has implemented a similar alternative for a site-specific inspection and maintenance plan to be implemented as an alternative to monitoring the temperature difference across the catalyst bed under the following rules: 40 CFR part 63, subpart JJJJ (Paper and Other Web Coating) at 63.3360(e)(3)(ii)(C); 40 CFR part 63, subpart OOOO (Printing, Coating, and Dyeing of Fabrics and Other Textiles) at 63.4363(b)(3); 40 CFR part 63, subpart SSSS (Surface Coating of Metal Coil) at 63.5160(d)(3)(ii)(C); and 40 CFR part 63, subpart PPPPP (Engine Test Cells/Stands) at 63.9324(b)(3). Therefore, EPA proposes to approve these catalytic incinerator requirement amendments to Ohio's rules 3745-21-09, 3745-21-10, 3745-21-12, 3745-21-13, 3745-21-14, 3745-21-15, 3745-21-16, 3745-21-23, 3745-21-27, 3745-21-28.

Ohio replaced references to “operating permits” and “permits-to-operate” with “permits-to-install and operate” for Chapter 3745-3l sources (non-Title V sources), since “operating permits” under Chapter 3745-35 have been replaced with “permits-to-install and operate” under Chapter 3745-31 for non-Title V sources. Ohio made this amendment for the following rules 3745-21-12, 3745-21-13, 3745-21-14, 3745-21-15, 3745-21-16, 3745-21-19, 3745-21-20, 3745-21-21, 3745-21-22, 3745-21-23, 3745-21-24, 3745-21-25, 3745-21-27, 3745-21-28, and 3745-21-29. EPA proposes to approve this amendment in each instance since it results in increased clarity and consistency in the Ohio rules.

Ohio amended VOC recordkeeping language as it relates to source applicability. Ohio changed the requirement to maintain records of VOC content in percent by weight and pounds per gallon to percent by weight or pounds per gallon depending upon whether total pounds or total gallons of each adhesive or solvent is recorded. Ohio no longer requires records in both units of measurement as long as the units of measurement chosen to be recorded match and can be used to establish whether monthly or daily applicability cutoffs are exceeded. Ohio made these VOC recordkeeping amendments for rules 3745-21-23 and 3745-21-28. Similarly, for rule 3745-21-29, Ohio added the option to record VOC content in pounds per gallon (or percent by weight) and the option to record coating and cleaning solvent usage in pounds (or gallons) as long as the units of measurement for these two parameters match and can be used to establish whether monthly or daily applicability cutoffs are exceeded. EPA proposes to approve these amendments to rules 3745-21-23, 3745-21-28, and 3745-21-29, since compliance can be determined with either VOC content record as long as the units of measurement are consistent with the associated coating and/or solvent usage records.

Ohio amended rule 3745-21-23 paragraph (C)(6)(b) to allow resin manufacturers to use the alternative cleaning operations compliance option. Prior to this revision, the rule only allowed manufacturers of coatings, inks, or adhesives to use the alternative cleaning operations compliance option. The alternative solvent cleaning and storage option in (C)(6)(b) is based on the California Bay Area Air Quality Management District's rules which are referenced in EPA's solvent cleaning CTG and have been established by EPA as RACT for cleaning coatings, inks, and resins from storage tanks and grinding mills. EPA, therefore, proposes to approve this amendment.

When Ohio reviews a rule and amends greater than fifty percent of that rule, Ohio issues the entire rule as a new replacement rule. This is the case with OAC 3745-21-24. EPA proposes to approve the revisions to OAC rule 3745-21-24, since they provide increased clarity and consistency.

OAC rule 3745-21-26 is a new rule updating the VOC RACT requirements for the Cleveland area for the miscellaneous metal and plastic parts coatings source category as outlined in EPA's September 2008, “Control Techniques Guidelines for Miscellaneous Metal and Plastic Parts Coatings.” 1 Pursuant to CAA section 182(b)(2), the Cleveland area was subject to VOC RACT requirements since it was classified as moderate nonattainment under the 1997 ozone National Ambient Air Quality Standard (NAAQS). Section 182(b)(2) requires states with moderate nonattainment areas to implement RACT under section 172(c)(1) with respect to each of the following: (1) All sources covered by a Control Technology Guideline (CTG) document issued between November 15, 1990, and the date of attainment; (2) all sources covered by a CTG issued prior to November 15, 1990; and, (3) all other major non-CTG stationary sources. EPA's 2008 CTG is a revised CTG that is a strengthening of previous CTGs covering these categories that were addressed by rules adopted and updated by Ohio during previous rulemakings (61 FR 18255; 74 FR 37171) prior to the Cleveland area being redesignated to attainment of the 1997 ozone NAAQS in September 2009 (74 FR 47414).

Prior to Ohio's adoption of OAC rule 3745-21-26, OAC rule 3745-21-09(U) regulated the surface coating of miscellaneous metal parts and OAC rule 3745-21-09(HH) regulated the surface coating of automotive/transportation plastic parts and business machine plastic parts. OAC rule 3745-21-26 applies to such sources located in the Cleveland area. The requirements of paragraphs (U) and (HH) of OAC rule 3745-21-09 will no longer apply to these sources after the compliance date for facilities subject to the requirements of OAC rule 3745-21-26. Prior to this action, EPA has not approved into the Ohio SIP 3745-21-09(U)(1)(h) pertaining to VOC content limits for architectural coatings. In this rulemaking, however, EPA proposes to approve 3745-21-09(U)(1)(h) into the Ohio SIP, since Ohio's anti-backsliding demonstration for architectural coatings shows, as discussed below, that our approval of this rule in conjunction with our approval of 3745-110-03(N) into the Ohio SIP will not interfere with CAA section 110(l).

Ohio established a 6.2 pounds per gallon (lbs/gal) VOC content limit for high-performance architectural aluminum coatings effective May 9, 1986, at OAC rule 3745-21-09(U)(1)(h). Prior to this, high-performance architectural aluminum coatings in Ohio were subject to a VOC content limit of 3.5 lbs/gal under a general SIP-approved coating category of extreme performance coatings. EPA disapproved Ohio's 1986 rule, since Ohio did not demonstrate that the relaxation from 3.5 lbs/gal to 6.2 lbs/gal represented RACT and would not interfere with attainment of the 1997 ozone NAAQS (75 FR 50711). Since EPA's CTG, updated in 2008, recommends a VOC content limit of 6.2 lbs/gal for high performance architectural coatings and Ohio has adopted OAC rule 3745-21-26 to supersede OAC rule 3745-21-09(U) for sources in the Cleveland area, Ohio, as part of this submittal, requested that EPA approve into the Ohio SIP OAC rule 3745-21-26 including the relaxation of the high-performance architectural aluminum coatings VOC content limit.

Ohio also requested that EPA approve a NOX emission limit contained in paragraph (N) of OAC rule 3745-110-03 for unit P046 at Arcelor-Mittal Cleveland. EPA's approval of the emission limit for unit P046 into the Ohio SIP will make this emission limit federally enforceable and available to use as an emission offset for the purposes of Ohio's demonstration to show that the relaxation of the high-performance architectural coatings VOC content limit from 3.5 lbs/gal to 6.2 lbs/gal will not result in a net increase in ozone precursor emissions in the Cleveland area.

Section 110(l), known as the anti-backsliding provision of the CAA, states:

Ohio performed a CAA section 110(l) demonstration for the VOC content limits in paragraph (C)(1) Tables 1 and 6 of OAC rule 3745-21-26 for high performance architectural coatings.

In the absence of an attainment demonstration, to demonstrate no interference with any applicable NAAQS or requirement of the CAA under section 110(l), states may substitute equivalent emissions reductions to compensate for any change to a SIP-approved program, as long as actual emissions are not increased. “Equivalent” emissions reductions mean reductions which are equal to or greater than those reductions achieved by the control measure approved in the SIP. To show that compensating emissions reductions are equivalent, modeling or adequate justification must be provided. The compensating, equivalent reductions must represent actual, new emissions reductions achieved in a contemporaneous time frame to the change of the existing SIP control measure, in order to preserve the status quo level of emissions in the air. As described in EPA's memorandum “Improving Air Quality with Economic Incentive Programs” published in January 2001 (EPA-452/R-01-001), the equivalent emissions reductions must also be permanent, enforceable, quantifiable, and surplus to be approved into the SIP.

Ohio completed a demonstration that indicates that the prerequisite for approval under section 110(l) of the CAA will be satisfied despite the VOC content limit relaxation for high-performance architectural coatings. Ohio's methodology involved identifying actual emissions from all operating permitted architectural aluminum coating processes in the state, of which there are five emission units among three permitted facilities. This includes one emission unit at the American Warming and Ventilation facility, one unit at the Thermo Fisher Scientific facility, and three units at the American Japanning facility, which is the only facility of the three operating permitted facilities that is located in the Cleveland area.

For the five emission units with architectural aluminum coating processes, Ohio converted the unit-specific facility-reported actual VOC emissions in tons per year (TPY) to gallons per year assuming an average solvent density of 7.36 lbs VOC/gal VOC. Then, using the full VOC content limit of 6.2 lbs/gal under OAC rule 3745-21-09(U)(1)(h) as listed in each facility's permit, Ohio estimated actual gallons of coating utilized per year at each unit at each facility for the 2010-2012 time period. Next, Ohio used the gallons of coating per year to estimate the 2010-2012 emissions from each unit using a VOC content limit of 3.5 lbs/gal rather than 6.2 lbs/gal. Ohio's calculations show that, in going from 3.5 lbs/gal to 6.2 lbs/gal, the estimated VOC emissions increase averaged over the 2010-2012 time period is 2.02 TPY in the Cleveland area and 10.5 TPY statewide. Ohio's calculations are provided in its SIP submittal, which is included in the docket to this proposed rulemaking.

In order to make a satisfactory 110(l) demonstration and render this SIP revision approvable by EPA under the requirements of the CAA, Ohio needs a comparable emission reduction to offset this estimated VOC emissions increase. VOCs and NOX contribute to the formation of ground-level ozone. Thus, the potential increase in VOC needs to be offset with equivalent (or greater) emissions reductions from another VOC control measure or proportionally equivalent (or greater) emissions reductions from a NOX control measure in order to demonstrate anti-backsliding.

For its offset, Ohio requested to use a NOX emission limit contained in paragraph (N) of OAC rule 3745-110-03 for unit P046 at Arcelor-Mittal Cleveland. Since only a portion of this emission limit has been used for a previous 110(l) demonstration, the remaining portion is available for use as an offset for the purposes of this demonstration. In December 2007, Ohio promulgated OAC Chapter 3745-110, “Nitrogen Oxides—Reasonably Available Control Technology” to address NOX emissions from stationary combustion sources as a potential attainment strategy in the Cleveland area. In September 2009 (74 FR 47414), EPA redesignated the Cleveland area to attainment of the 1997 ozone NAAQS and approved a waiver for the Cleveland area from the NOX RACT requirements of section 182(f). Ohio's NOX RACT rules are therefore surplus and are available to be used to offset the potential increase in emissions from a higher VOC content limit for high performance architectural aluminum coatings in Ohio. For the purposes of this 110(l) demonstration, Ohio is requesting to use an emission limit on one specific emission unit at one specific facility for its offset.

Prior to Ohio's promulgation of OAC Chapter 3745-110, Arcelor-Mittal Cleveland operated with an emission factor of 0.55 lbs NOX/million British thermal units (MMBTU) established via a stack test in 2003. To meet the requirements of OAC Chapter 3745-110, Arcelor-Mittal installed low-NOX burners in the facility's three reheat furnaces (Ohio emission unit IDs P046, P047, and P048) and reduced its emission factor to 0.29 lbs NOX/MMBTU established via a stack test in 2010 to comply with the OAC 3745-110-03(N) NOX emission limit of 0.35 lbs/MMBTU. Based on actual natural gas usage reported for 2010-2012 and going from an emission factor of 0.55 lbs NOX/MMBTU to an emission factor of 0.29 lbs NOX/MMBTU, Ohio calculated an average NOX emission reduction for this facility of 571.6 TPY and an average NOX emission reduction specifically from unit P046 of 193.8 TPY.

Using the 2011 National Emissions Inventory (NEI), Ohio calculated the ratio of NOX emissions to VOC emissions in the Cleveland area at approximately 1.30 lbs NOX per lb of VOC. Ohio applied this factor to the Arcelor-Mittal Cleveland NOX reductions to show that the average VOC emissions offset theoretically available for the time period of 2010-2012 is 438.2 TPY of VOC for the facility and 148.6 TPY of VOC from unit P046.

Not all emission reductions from Arcelor-Mittal Cleveland are available for use as offsets. On October 25, 2010, Ohio submitted a similar 110(l) demonstration for emissions from sheet molding compound (SMC) machines in Ohio regulated by OAC rule 3745-21-07. Ohio used the same reductions from Arcelor-Mittal Cleveland to demonstrate sufficient offsets to justify an emissions increase for SMC machines. The offset needed for SMC machines was 7.1 TPY of VOC, meaning the quantity of VOC offsets available for this 110(l) demonstration is 431.1 TPY of VOC from Arcelor-Mittal Cleveland and 141.5 TPY of VOC from EU P046. Therefore, there is enough of an emission offset remaining from EU P046 for Ohio to offset the estimated increase in VOC emissions (10.5 TPY for all five units and 2.02 TPY for the three Cleveland area units) as a result of relaxing its high-performance architectural coatings VOC content limit from 3.5 lbs/gal to 6.2 lbs/gal in the Ohio SIP.

EPA proposes to approve into the Ohio SIP the NOX limit on emission unit P046 at Arcelor-Mittal Cleveland, which will make this emissions limit federally enforceable. In combination with Ohio's use of an offset in the form of a permanent, enforceable, contemporaneous, surplus emission reduction achieved through the NOX limit on unit P046 at Arcelor-Mittal Cleveland, EPA proposes that our SIP approval of Ohio's relaxation of the high-performance architectural coatings VOC content limit from 3.5 lbs/gal to 6.2 lbs/gal would not interfere with section 110(l) of the CAA. Furthermore, this VOC content limit satisfies RACT for high-performance architectural coatings as recommended in EPA's 2008 CTG. Therefore, EPA proposes to approve into the Ohio SIP, OAC rule 3745-21-26 including the VOC content limits in paragraph (C)(1) Tables 1 and 6 for high performance architectural coatings.

Ohio performed a 5% RACT equivalency analysis to justify the OAC rule 3745-21-26 paragraph (A)(3)(f)(i) exemption from the VOC content limits of metal coating lines that use less than three gallons per day. Ohio demonstrated that the increase in emissions from this exemption would be no more than 5% compared to adopting the CTG exactly as EPA issued it. EPA guidance entitled “Issues Relating to VOC Regulation Cutpoints, Deficiencies, and Deviations” also referred to as “the Bluebook” 2 contains an example 5% equivalency analysis calculation.

Ohio performed its 5% RACT equivalency analysis consistent with EPA's Bluebook and determined that the increase in emissions resulting from a three gallons per day exemption would be approximately 4%. Since the emissions increase is less than 5%, Ohio may incorporate this exemption into its VOC RACT rule for the control of emissions from surface coating of miscellaneous metal parts and products for the Cleveland area.

To conduct its 5% RACT equivalency analysis, Ohio listed all of the current metal parts and products surface coating sources in the Cleveland area and each source's actual 2008 VOC emissions or, where 2008 actual emissions data were unavailable, used information based on current operation to determine representative 2008 actual emissions from metal coating lines. Ohio identified each emission unit at each facility that would be subject to the new OAC rule 3745-21-26 and converted TPY of VOC to gallons per year of VOC using an average solvent density of 7.36 lbs VOC/gal VOC. Ohio used source-specific information to obtain gallons of coating used in 2008 or, where such data were unavailable, used an average mix density of 10.0 lbs VOC/gal coating. Ohio also subtracted gallons of VOC per year from total gallons of coating used per year to obtain gallons of solids per year, since some limits in the 2008 CTG are expressed in lbs of VOC per gallon of coating and some are expressed in lbs of VOC per gallon of solids. Ohio used these 2008 baseline data to find the difference in the two options: The option to include a three gallons per line per day exemption and the option that specifies an applicability cutoff of 15 lbs of VOC per day across all lines as specified in EPA's 2008 CTG. Ohio's analysis shows that the difference between allowing and disallowing the three gallons per day exemption is less than 5%. Ohio's analysis is provided in its SIP submittal, which is included in the docket to this proposed rulemaking. Since the result of Ohio's RACT equivalency analysis to support the exemption in its rule is less than 5%, and since Ohio's general methodology for conducting the equivalency analysis is consistent with EPA's Bluebook, which indicates that for the purposes of VOC RACT regulation a difference of no more than 5% between EPA's CTG and the state's rules is not a significant emissions differential, EPA proposes to approve into the Ohio SIP the OAC rule 3745-21-26 exemption from the VOC content limits of metal coating lines that use less than three gallons per day.

EPA's 2008 CTG includes VOC content limits for pleasure craft coatings, which Ohio has not historically regulated. Ohio systematically analyzed existing permitted facilities which may become subject to its new pleasure craft coating rules. Ohio's analysis is important, because, theoretically, a facility could go from being subject to an existing VOC content limit under a different coating category to being subject to a less stringent VOC content limit under Ohio's new pleasure craft coating rules. If that were the case, the potential for interference with CAA section 110(l) would need to be addressed. Ohio's analysis indicates that there are 12 sources in the state with the potential to be subject to the new OAC rule 3745-21-26. Ohio determined six of these sources are not subject to OAC rule 3745-21-26, because they are not located in the Cleveland area, and four of the remaining sources are not subject to OAC rule 3745-21-26, since they are marinas that only contain gasoline dispensing facilities. The remaining two sources are the Duramax Marine facility in Geauga County and the Hanover Marine facility in Lake County. The Duramax facility operates spray booths that only apply adhesives and are therefore exempt from OAC rule 3745-21-26. Rather, this facility may be subject to the OAC rule 3745-21-28; “Miscellaneous Industrial Adhesives” requirements. The Hanover facility builds fiberglass boats. It operates one small spray booth for painting stripes only and historically has had emissions under the applicability levels. Mostly this facility performs resin/gel work and may be subject to New Source Review requirements and the requirements of OAC rule 3745-21-27; “Fiberglass Boat Manufacturing.” Ohio's analysis shows that our approval into the Ohio SIP of these pleasure craft coating VOC content limits will have no or minimal effect to reduce emissions, but, of course, the adoption of these limits will not cause any increase in emissions and, therefore, not interfere with section 110(l) of the CAA.

Table 1, below, shows a comparison of the differences between EPA's 2008 CTG and Ohio's OAC rule 3745-21-26 VOC content limits for pleasure craft coatings. The portion of Ohio's OAC rule 3745-21-26 pertaining to pleasure craft coatings differs from EPA's 2008 CTG in several ways. Ohio's VOC content limits for the “extreme high gloss topcoat” and “other substrate antifoulant” coating categories are greater than those recommended in EPA's 2008 CTG, and Ohio's rule contains a “antifouling sealer/tie coat” coating category that is not included in EPA's 2008 CTG. Additionally, Ohio's OAC rule 3745-21-26 defines extreme high gloss coating for the pleasure craft coating industry as that which achieves greater than 90% reflectance, as opposed to greater than 95% reflectance recommended in EPA's 2008 CTG.

The differences shown in Table 1, above, between EPA's original recommendations in the 2008 CTG and Ohio's VOC content limits for pleasure craft coatings in OAC rule 3745-21-26 are consistent with those requested by the pleasure craft coating industry. When EPA released the 2008 CTG, the pleasure craft coating industry requested that EPA reconsider the 2008 CTG recommended VOC content limits for extreme high gloss, high gloss, and antifoulant coatings citing what the industry deemed to be technological and feasibility challenges to meeting the VOC content limits recommended in the CTG. EPA responded in a June 1, 2010, memorandum entitled “Control Technique Guidelines for Miscellaneous Metal and Plastic Part Coatings—Industry Request for Reconsideration.” While EPA did not formally revise the 2008 CTG to reflect the changes requested by the pleasure craft coating industry, in the June 1, 2010, memo, EPA encouraged the pleasure craft industry to work together with state agencies in the RACT rule development process to assess what is reasonable for the specific sources regulated under each state's rules. EPA's CTGs are intended to provide state and local air pollution control authorities with information to assist them in determining RACT for VOC, but CTGs impose no legally binding requirements on any entity, including pleasure craft coating facilities. Regardless of whether a state chooses to implement the recommendations contained in the CTG through state rules, or to issue state rules that adopt different approaches, states must submit their RACT rules to EPA for review and approval as part of the SIP process. In the June 1, 2010, memo, EPA stated its intent to evaluate the state's RACT rules and determine, through notice and comment rulemaking in the SIP approval process, whether the submitted rules meet the RACT requirements of the CAA and EPA's regulations.

EPA proposes to approve into the Ohio SIP these OAC rule 3745-21-26 VOC content limits for pleasure craft coatings as RACT since this rule, in most respects, is consistent with EPA's 2008 CTG, and, where it differs from EPA's 2008 CTG as explained above, EPA proposes to find these differences to be reasonable in terms of available control technology for the pleasure craft coating industry.

Ohio made two amendments to Table 1 of OAC rule 3745-21-28; the first amendment was to indicate that the VOC content limit excludes water and exempt solvents, and the second amendment was to change the category “tire retread” to “tire repair.” EPA proposes to approve these amendments, since these changes result in language that is consistent with EPA's CTG for miscellaneous industrial adhesives, which is the basis for OAC rule 3745-21-28.

EPA proposes to approve into the Ohio SIP adjustments and additions to VOC RACT rules in OAC Chapter 3745-21. Additionally, EPA proposes to incorporate OAC 3745-110-03(N) into the Ohio SIP; this rule includes an emission limit that Ohio is using as an offset in its CAA 110(l) demonstration for the OAC rule 3745-21-26 VOC content limit for architectural coatings.

In this rule, EPA proposes to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA proposes to incorporate by reference Ohio's updated VOC rules including 3745-21-01, 3745-21-03, 3745-21-04, 3745-21-08, 3745-21-09, 3745-21-10, 3745-21-12, 3745-21-13, 3745-21-14, 3745-21-15, 3745-21-16, 3745-21-17, 3745-21-18, 3745-21-19, 3745-21-20, 3745-21-21, 3745-21-22, 3745-21-23, 3745-21-24, 3745-21-25, 3745-21-26, 3745-21-27, 3745-21-28, 3745-21-29, effective October 15, 2015, and the NOX emission limit on unit P046 at Arcelor-Mittal Cleveland contained in paragraph (N) of OAC rule 3745-110-03. EPA has made, and will continue to make, these documents generally available through www.regulations.gov, and/or at the EPA Region 5 Office (please contact the person identified in the “For Further Information Contact” section of this preamble for more information).

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and

• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

In the final rules section of this Federal Register, the EPA is approving the State's SIP submittal as a direct rule without prior proposal because the Agency views this as noncontroversial submittal and anticipates no adverse comments. A detailed rationale for the approval is set forth in the direct final rule. If no relevant adverse comments are received in response to this action no further activity is contemplated. If the EPA receives relevant adverse comments, the direct final rule will be withdrawn and all public comments received will be addressed in a subsequent final rule based on this proposed rule. The EPA will not institute a second comment period. Any parties interested in commenting on this action should do so at this time.

For additional information, see the direct final rule which is located in the rules section of this Federal Register.

This rulemaking proposes to approve Tennessee's noninterference demonstration, submitted on April 12, 2017, in support of the State's request that EPA relax the federal RVP requirement from 7.8 psi to 9.0 psi for gasoline sold between June 1 and September 15 of each year (i.e., during high ozone season) in Shelby County. The State is requesting the removal of the federal 7.8 psi RVP requirement. As part of that request, Tennessee has evaluated whether removal of this requirement would interfere with air quality in Shelby County. To make this demonstration of noninterference, Tennessee completed a technical analysis, including modeling, to estimate the change in emissions that would result from a switch to 9.0 psi RVP fuel in Shelby County.1 The noninterference demonstration is further supported by the June 23, 2016 (81 FR 40816), revised and approved maintenance plan that utilizes an RVP input parameter of 9.0 psi.

On January 19, 2016, Tennessee submitted a redesignation request and maintenance plan for the portion of Tennessee that is within the Memphis, Tennessee-Mississippi-Arkansas (Memphis, TN-MS-AR) 2008 8-hour ozone nonattainment area to attainment for the 2008 8-hour ozone NAAQS, which EPA approved on June 23, 2016 (81 FR 40816). Shelby County is in the Tennessee portion of the Memphis, TN-MS-AR area. In the maintenance plan, Tennessee used EPA's Motor Vehicle Emissions Simulator (MOVES) to develop its projected emissions inventory according to EPA's guidance for on-road mobile sources using MOVES version 2014. Future-year on-road mobile source emissions estimates for 2017, 2020, and 2027 were generated with MOVES2014 using an RVP input parameter of 9.0 psi. The maintenance plan showed compliance with and maintenance of the 2008 8-hour ozone NAAQS by providing information to support the demonstration that current and future emissions of nitrogen oxides (NOX) and volatile organic compounds (VOC) remained at or below the 2012 base year emissions inventory. For more detailed information, see EPA's April 19, 2016 (81 FR 22948), proposed approval of the maintenance plan for the 2008 8-hour ozone NAAQS, which was finalized on June 23, 2016 (81 FR 40816).

It should be noted that when Tennessee requested that Shelby County be redesignated to attainment for the 2008 8-hour ozone standard, the State took a conservative approach for the maintenance demonstrations and modeled 9.0 psi for the RVP requirements for this Area as opposed to 7.8 psi. The State did not, at that time, request the removal of the federal RVP requirements for Shelby County.

EPA is proposing to find that Tennessee's noninterference demonstration supports the conclusion that the use of gasoline with an RVP of 9.0 psi in Shelby County will not interfere with attainment or maintenance of any NAAQS or with any other applicable requirement of the CAA.

Shelby County, Tennessee (then referred to as the Memphis, TN Area) was originally designated as a single-county marginal nonattainment area for the 1-hour ozone standard on November 6, 1991 (56 FR 56694). On February 16, 1995 (60 FR 3352), the Memphis, TN Area was redesignated as attainment for the 1-hour ozone standards, and was considered to be a maintenance area subject to a CAA section 175A maintenance plan for the 1-hour ozone standard. Tennessee's 1-hour ozone redesignation request and maintenance plan did not include a request to relax the 7.8 psi federal RVP standard.

On April 30, 2004 (69 FR 23857), EPA designated the Memphis, TN-AR Area, which included Shelby County, as a “moderate” 1997 8-hour ozone NAAQS nonattainment area under Clean Air Act title I, part D, subpart 2 (“Additional Provisions for Ozone Nonattainment Areas”). On July 15, 2004, pursuant to section 181(a)(4) of the CAA, the State of Tennessee submitted a petition to EPA, requesting that the classification of Memphis, TN-AR Area be adjusted downward from “moderate” to “marginal” for the 1997 8-hour ozone standard. The petition was based on the fact that the area's “moderate” design value of 0.092 parts per million (ppm) was within five percent of the maximum “marginal” design value of 0.091 ppm. Pursuant to section 181(a)(4), areas with design values within five percent of the standard may request a reclassification under specific circumstances. EPA approved the petition for reclassification, which became effective on November 22, 2004 (69 FR 56697, September 22, 2004). The Tennessee portion of the Memphis, TN-AR Area (i.e., Shelby County) was redesignated to attainment for the 1997 8-hour ozone NAAQS in a final rulemaking on January 4, 2010 (75 FR 56). Tennessee's 1997 8-hour ozone redesignation request and maintenance plan did not include a request to relax the 7.8 psi federal RVP standard.

On March 12, 2008, EPA promulgated a revised 8-hour ozone NAAQS of 0.075 ppm. See 73 FR 16436 (March 27, 2008). Under EPA's regulations at 40 CFR part 50, the 2008 8-hour ozone NAAQS is attained when the 3-year average of the annual fourth highest daily maximum 8-hour average ambient air quality ozone concentrations is less than or equal to 0.075 ppm. See 40 CFR part 50.15. Ambient air quality monitoring data for the 3-year period must meet a data completeness requirement. The ambient air quality monitoring data completeness requirement is met when the average percent of days with valid ambient monitoring data is greater than 90 percent, and no single year has less than 75 percent data completeness as determined in appendix P of part 50.

Shelby County, as part of the Memphis, TN-AR-MS Area, was designated as a marginal nonattainment area for the 2008 8-hour ozone NAAQS on May 21, 2012 (effective July 20, 2012), using 2008-2010 ambient air quality data. See 77 FR 30088. The Tennessee portion of the Memphis, TN-AR Area (i.e., Shelby County) was redesignated to attainment on June 23, 2016 (81 FR 40816). Tennessee's 2008 8-hour ozone redesignation request and maintenance plan did not include a request to relax the 7.8 psi federal RVP standard, although the maintenance plan reflected the 9.0 psi RVP standard. Tennessee is now requesting that EPA remove the federal 7.8 psi RVP requirement for Shelby County.

On August 19, 1987 (52 FR 31274), EPA determined that gasoline nationwide had become increasingly volatile, causing an increase in evaporative emissions from gasoline-powered vehicles and equipment. Evaporative emissions from gasoline, referred to as VOCs, are precursors to the formation of tropospheric ozone and contribute to the nation's ground-level ozone problem. Exposure to ground-level ozone can reduce lung function (thereby aggravating asthma or other respiratory conditions), increase susceptibility to respiratory infection, and may contribute to premature death in people with heart and lung disease.

The most common measure of fuel volatility that is useful in evaluating gasoline evaporative emissions is RVP. Under section 211(c) of CAA, EPA promulgated regulations on March 22, 1989 (54 FR 11868), that set maximum limits for the RVP of gasoline sold during the high ozone season. These regulations constituted Phase I of a two-phase nationwide program, which was designed to reduce the volatility of commercial gasoline during the summer ozone control season. On June 11, 1990 (55 FR 23658), EPA promulgated more stringent volatility controls as Phase II of the volatility control program. These requirements established maximum RVP standards of 9.0 psi or 7.8 psi (depending on the State, the month, and the area's initial ozone attainment designation with respect to the 1-hour ozone NAAQS during the high ozone season).

The 1990 CAA Amendments established a new section, 211(h), to address fuel volatility. Section 211(h) requires EPA to promulgate regulations making it unlawful to sell, offer for sale, dispense, supply, offer for supply, transport, or introduce into commerce gasoline with an RVP level in excess of 9.0 psi during the high ozone season. Section 211(h) prohibits EPA from establishing a volatility standard more stringent than 9.0 psi in an attainment area, except that EPA may impose a lower (more stringent) standard in any former ozone nonattainment area redesignated to attainment.

On December 12, 1991 (56 FR 64704), EPA modified the Phase II volatility regulations to be consistent with section 211(h) of the CAA. The modified regulations prohibited the sale of gasoline with an RVP above 9.0 psi in all areas designated attainment for ozone, beginning in 1992. For areas designated as nonattainment, the regulations retained the original Phase II standards published on June 11, 1990 (55 FR 23658). A current listing of the RVP requirements for states can be found on EPA's Web site at: https://www.epa.gov/gasoline-standards.

As explained in the December 12, 1991 (56 FR 64704), Phase II rulemaking, EPA believes that relaxation of an applicable RVP standard is best accomplished in conjunction with the redesignation process. In order for an ozone nonattainment area to be redesignated as an attainment area, section 107(d)(3) of the Act requires the state to make a showing, pursuant to section 175A of the Act, that the area is capable of maintaining attainment for the ozone NAAQS for ten years after redesignation. Depending on the area's circumstances, this maintenance plan will either demonstrate that the area is capable of maintaining attainment for ten years without the more stringent volatility standard or that the more stringent volatility standard may be necessary for the area to maintain its attainment with the ozone NAAQS. Therefore, in the context of a request for redesignation, EPA will not relax the volatility standard unless the state requests a relaxation and the maintenance plan demonstrates, to the satisfaction of EPA, that the area will maintain attainment for ten years without the need for the more stringent volatility standard.

As noted above, Tennessee did not request relaxation of the applicable 7.8 psi federal RVP standard when Shelby County was redesignated to attainment for the 1-hour ozone NAAQS, the 1997 8-hour ozone NAAQS, and the 2008 8-hour ozone NAAQS. Tennessee is therefore now submitting a noninterference demonstration concluding that relaxing the federal RVP requirement from 7.8 psi to 9.0 psi for gasoline sold between June 1st and September 15th of each year in Shelby County would not interfere with attainment or maintenance of the NAAQS.

To support Tennessee's request to relax the federal RVP requirement in Shelby County, the State must demonstrate that the requested change will satisfy section 110(l) of the CAA. Section 110(l) requires that a revision to the SIP not interfere with any applicable requirement concerning attainment and reasonable further progress (as defined in section 171), or any other applicable requirement of the Act. EPA's criterion for determining the approvability of Tennessee's April 12, 2017, noninterference demonstration, is whether the noninterference demonstration associated with the relaxation request satisfies section 110(l). The modeling associated with Tennessee's maintenance plan for the 2008 8-hour ozone NAAQS is premised upon the future-year emissions estimates for 2017, 2020, and 2027, which are based on the 9.0 psi RVP. EPA is proposing approval of the noninterference demonstration based on an evaluation of current air quality monitoring data and the information provided in the noninterference demonstration.

EPA evaluates each section 110(l) noninterference demonstration on a case-by-case basis considering the circumstances of each SIP revision. EPA interprets 110(l) as applying to all NAAQS that are in effect, including those that have been promulgated but for which EPA has not yet made designations. The degree of analysis focused on any particular NAAQS in a noninterference demonstration varies depending on the nature of the emissions associated with the proposed SIP revision. EPA's analysis of Tennessee's April 12, 2017, noninterference demonstration pursuant to section 110(l) is provided below.

EPA notes that in this action, it is only proposing to approve the State's technical demonstration that the Area can continue to attain and maintain the NAAQS and meet other CAA requirements after switching to the sale of gasoline with an RVP of 9.0 psi in Shelby County during the high ozone season. Consistent with CAA section 211(h) and the Phase II volatility regulations, EPA will initiate a separate rulemaking to relax the current federal requirement to use gasoline with an RVP of 7.8 psi in Shelby County.

On April 12, 2017, TDEC submitted a noninterference demonstration to support the State's request to modify the RVP summertime gasoline requirement from 7.8 psi to 9.0 psi for the Area. This demonstration includes an evaluation of the impact that the removal of the 7.8 psi RVP requirement would have on maintenance of the ozone standards and on the maintenance of the other NAAQS.2 Tennessee focused its analysis on the impact of the change in RVP to attainment and maintenance of the ozone, particulate matter (PM),3 and NO2 NAAQS because: RVP requirements do not affect lead, sulfur dioxide (SO2), or carbon monoxide (CO) emissions; because VOC and NOX emissions are precursors for ozone and PM; and because NO2 is a component of NOX.

TDEC's noninterference demonstration relied on a previously-approved maintenance plan (June 23, 2016, 81 FR 40816) in which Tennessee used EPA's MOVES2014 model to develop its projected emissions inventory according to EPA's guidance for on-road mobile sources. The future-year on-road mobile source emissions estimates for 2017, 2020, and 2027 were generated with MOVES2014 4 using a RVP input parameter of 9.0 psi. The maintenance plan showed compliance with and maintenance of the 2008 8-hour ozone NAAQS by providing information to support the demonstration that current and future emissions of NOX and VOC remained at or below the 2012 base year emissions inventory. Tables 1 and 2 show the direct impact on mobile source emissions as a result of the change for RVP requirements for Shelby County. As summarized below, NOX and VOC emissions are expected to continue to decrease with the use of the 9.0 psi RVP standard.

These mobile source emissions are used as part of the evaluation of the potential impacts to the NAAQS that might result exclusively from changing the high ozone season RVP requirement from 7.8 psi to 9.0 psi. Therefore, emissions resulting from the change in RVP are not expected to cause the area to be out of compliance with any NAAQS.

As a previous 1-hour ozone nonattainment area, Shelby County has been subject to the federal RVP requirements for high ozone season gasoline. Although implemented for purposes of bringing areas into attainment for the 1-hour ozone NAAQS, these federal RVP requirements continued to apply in Shelby County because the State did not, until now, request removal of the federal RVP requirements.

As described previously, Shelby County was redesignated to attainment for the 1-hour ozone NAAQS, the 1997 8-hour ozone NAAQS, and the 2008 8-hour ozone NAAQS. The Memphis Area is continuing to meet the 1-hour ozone NAAQS, the 1997 8-hour ozone NAAQS, and the 2008 8-hour ozone NAAQS,5 based on recent air quality monitoring data. Additionally, the current design value (DV) is below the most recently promulgated 2015 ozone NAAQS in the Memphis Area. The 2008 ozone NAAQS is met when the annual fourth-highest daily maximum 8-hour average concentration, averaged over 3 years is 0.075 ppm or less. Similarly, the 2015 ozone NAAQS, as published in a final rule on October 26, 2015 (80 FR 65292), is met when the annual fourth-highest daily maximum 8-hour average concentration, averaged over 3 years is 0.070 ppm or less. The trend in DVs for ozone for the Memphis Area is shown in Table 3, with the current DV in the Area being 0.067 ppm in 2015, below the 2015 standard. EPA also evaluated the potential increase in the VOC and NOX precursor emissions and whether it is reasonable to conclude that the requested change to RVP requirements in Shelby County during the high ozone season would cause the Memphis Area to violate any ozone NAAQS.

Table 3 also shows that there is an overall downward trend in ozone concentrations in the Memphis Area. This decline can be attributed to federal and state programs that have led to significant emissions reductions in ozone precursors, such as federal standards in on-road and non-road mobile source sectors and resultant fleet turnover. See 81 FR 22948, (April 19, 2016). Given this downward trend, the downward trend in precursor emissions, the current ozone concentrations in the Memphis Area, and the results of Tennessee's emissions analysis, EPA is proposing to determine that a change to 9.0 psi RVP fuel for Shelby County would not interfere with the Memphis Area's ability to maintain the 2008 8-hour ozone NAAQS.

Over the course of several years, EPA has reviewed and revised the PM2.5 NAAQS a number of times. On July 16, 1997, EPA established an annual PM2.5 NAAQS of 15.0 micrograms per cubic meter (μg/m3), based on a 3-year average of annual mean PM2.5 concentrations, and a 24-hour PM2.5 NAAQS of 65 μg/m3, based on a 3-year average of the 98th percentile of 24-hour concentrations. See 62 FR 36852 (July 18, 1997). On September 21, 2006, EPA retained the 1997 Annual PM2.5 NAAQS of 15.0 μg/m3 but revised the 24-hour PM2.5 NAAQS to 35 μg/m3, based again on a 3-year average of the 98th percentile of 24-hour concentrations. See 71 FR 61144 (October 17, 2006). On December 14, 2012, EPA retained the 2006 24-hour PM2.5 NAAQS of 35 μg/m3 but revised the annual primary PM2.5 NAAQS to 12.0 μg/m3, based again on a 3-year average of annual mean PM2.5 concentrations. See 78 FR 3086 (January 15, 2013).

The main precursor pollutants for PM2.5 are NOX, SO2, VOC, and ammonia. As mentioned above, the federal RVP requirements only result in emissions benefits for VOC and NOX. Therefore, Tennessee focused on these two PM2.5 precursors in its analysis of the potential impact of changing the RVP requirements for Shelby County on the PM2.5 NAAQS. Tennessee asserted in its 110(l) demonstration that relaxing the RVP standard will have little impact on these precursor emissions in relation to PM formation and is not expected to negatively impact attainment or maintenance of the PM2.5 NAAQS. Moreover, there have been a number of studies which have indicated that SO2 is the primary driver of PM2.5 formation in the Southeast.6

Given the downward trend in precursor emissions (specifically for NOX and VOC) noted above and given that, as previously stated, RVP does not affect the most significant PM2.5 precursor (SO2), EPA is proposing to determine that a change to 9.0 psi RVP fuel for the affected counties would not interfere with the Area's ability to attain or maintain the PM2.5 NAAQS in the Area.

On February 17, 2012, EPA designated all counties in Tennessee as unclassifiable/attainment for the 2010 NO2 NAAQS. See 77 FR 9532. Based on the technical analysis in Tennessee's April 12, 2017, noninterference demonstration, as shown in Table 3, there is an overall downward trend in ozone concentrations in the Memphis Area, and NO2, as a component of NOX, is an ozone precursor. This decline can be attributed to federal and state programs that have led to significant emissions reductions in ozone precursors, such as federal standards in on-road and non-road mobile source sectors and resultant fleet turnover. See 81 FR 22948, (April 19, 2016). Given this downward trend, the downward trend in precursor emissions, the current ozone concentrations in the Memphis Area, and the results of Tennessee's emissions analysis and the current unclassifiable/attainment designation, EPA is proposing to determine that a change to 9.0 psi RVP fuel for Shelby County would not interfere with maintenance of the 2010 NO2 NAAQS in the Area.

EPA is proposing to approve Tennessee's April 12, 2017, noninterference demonstration supporting the State's request to relax the RVP standard to 9.0 psi in Shelby County. EPA is also proposing to find that this change in the RVP requirements for Shelby County will not interfere with attainment or maintenance of any NAAQS or with any other applicable requirement of the CAA.

EPA is proposing that Tennessee's April 12, 2017, SIP noninterference demonstration associated with the State's request for the removal of the federal RVP requirements, are consistent with the applicable provisions of the CAA. Should EPA decide to remove Shelby County from those areas subject to the 7.8 psi federal RVP requirements, such action will occur in a separate, subsequent rulemaking.

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations. See 42 U.S.C. 7410(k); 40 CFR part 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this proposed action merely approves state law as meeting federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:

• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);

• does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);

• is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);

• does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and

• does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

The SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.

In the “Rules and Regulations” section of this Federal Register, the EPA is approving updates to the Code of Federal Regulations delegation tables to reflect the current delegation status of New Source Performance Standards and National Emission Standards for Hazardous Air Pollutants in Arizona and Nevada. We are approving these updates in a direct final action without prior proposal because we believe this action is not controversial. A detailed rationale for the approval is set forth in the direct final rule. If we receive adverse comments, however, we will publish a timely withdrawal of the direct final rule and address the comments in a subsequent final rule based on this proposed rule. Please note that if the EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, the EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

We do not plan to open a second comment period, so anyone interested in commenting should do so at this time. If we do not receive adverse comments, no further activity is planned. For further information, please see the direct final action.