Federal Register / Vol. 89, No. 18 / Friday, January 26, 2024 / Proposed Rules 5145 

1 88 FR 71757, (October 18, 2023). Henceforth 

referred to as the ‘‘October 2023 findings.’’ 

vessels must comply with lawful 

instructions of the Fifth Coast Guard 

District Commander or designated 

representative via VHF–FM channel 16 

or by phone at 757–398–6391 (Fifth 

Coast Guard District Command Center). 

(e) Effective and enforcement periods. 

This section will be in effect from May 

1, 2024, through 11:59 p.m. on May 1, 

2027. Individual safety zones designated 

in the table in subparagraph (a) will 

only be subject to enforcement, 

however, during active construction or 

other circumstances which may create a 

hazard to navigation as determined by 

the Fifth Coast Guard District 

Commander. The Fifth Coast Guard 

District Commander will provide 

notification of the exact dates and times 

each safety zone is subject to 

enforcement in advance of each 

enforcement period for each of the 

locations listed above, in paragraph (a) 

of this section. Notifications will be 

made to the local maritime community 

through the Local Notice to Mariners 

and the Coast Guard will issue a 

Broadcast Notice to Mariners via marine 

channel 16 (VHF–FM) as soon as 

practicable in response to an emergency. 

If the entire project is completed before 

May 1, 2027, enforcement of the safety 

zones will be suspended, and notice 

given via Local Notice to Mariners. The 

Fifth Coast Guard District Local Notice 

to Mariners can be found at: https://

www.navcen.uscg.gov. 

Dated: January 22, 2024. 

S.N. Gilreath, 

Rear Admiral, U.S. Coast Guard, Commander, 

Fifth Coast Guard District. 

[FR Doc. 2024–01546 Filed 1–25–24; 8:45 am] 

BILLING CODE 9110–04–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 81 

[EPA–R06–OAR–2023–0536; FRL–11640– 

01–R6] 

Clean Air Act Reclassification of the 

San Antonio, Dallas-Fort Worth, and 

Houston-Galveston Brazoria Ozone 

Nonattainment Areas; TX 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: Pursuant to the Federal Clean 

Air Act (CAA), the Environmental 

Protection Agency (EPA) is proposing to 

grant a request from the Governor of 

Texas to reclassify the San Antonio, 

Dallas-Fort Worth (DFW), and HoustonGalveston Brazoria (HGB) ozone 

nonattainment areas from Moderate to 

Serious for the 2015 ozone National 

Ambient Air Quality Standards 

(NAAQS). The EPA is also herein 

outlining its interpretation that 

following reclassification, a state is no 

longer required to submit SIP revisions 

addressing the following requirements 

related to the prior reclassification level 

for an ozone nonattainment area: a 

demonstration of attainment by the 

prior attainment date; a Reasonably 

Available Control Measures (RACM) 

analysis tied to the prior attainment 

date; and contingency measures 

specifically related to the area’s failure 

to attain by the prior attainment date. 

The EPA is also proposing deadlines for 

the Texas Commission on 

Environmental Quality (TCEQ or State) 

to submit revisions to the State 

Implementation Plan (SIP) addressing 

the Serious area requirements and for 

the first transportation control 

demonstrations for these areas. The EPA 

is also proposing deadlines for 

implementation of new Reasonably 

Available Control Technology (RACT) 

rules and for any new or revised 

Enhanced vehicle Inspection and 

Maintenance (I/M) programs. 

DATES: Written comments should be 

received on or before February 26, 2024. 

ADDRESSES: Submit your comments, 

identified by Docket No. EPA–R06– 

OAR–2023–0536, at https://

www.regulations.gov. Follow the online 

instructions for submitting comments. 

Once submitted, comments cannot be 

edited or removed from Regulations.gov. 

The EPA may publish any comment 

received to its public docket. Do not 

submit electronically any information 

you consider to be Confidential 

Business Information (CBI) or other 

information whose disclosure is 

restricted by statute. Multimedia 

submissions (audio, video, etc.) must be 

accompanied by a written comment. 

The written comment is considered the 

official comment and should include 

discussion of all points you wish to 

make. The EPA will generally not 

consider comments or comment 

contents located outside of the primary 

submission (i.e., on the web, cloud, or 

other file sharing system). For 

additional submission methods, please 

contact Ms. Carrie Paige, 214–665–6521, 

paige.carrie@epa.gov. For the full EPA 

public comment policy, information 

about CBI or multimedia submissions, 

and general guidance on making 

effective comments, please visit https:// 

www.epa.gov/dockets/commenting-epadockets. 

Docket: The index to the docket for 

this action is available electronically at 

www.regulations.gov. While all 

documents in the docket are listed in 

the index, some information may not be 

publicly available due to docket file size 

restrictions or content (e.g., CBI). 

FOR FURTHER INFORMATION CONTACT: Ms. 

Carrie Paige, EPA Region 6 Office, 

Infrastructure and Ozone Section, 214– 

665–6521, paige.carrie@epa.gov. The 

EPA encourages the public to submit 

comments via https://

www.regulations.gov. Please call or 

email the contact listed above if you 

need alternative access to material 

indexed but not provided in the docket. 

SUPPLEMENTARY INFORMATION: 

Throughout this document wherever 

‘‘we’’ or ‘‘our’’ is used, we mean the 

EPA. 

I. EPA’s Proposed Action 

The EPA is proposing to grant a 

request submitted by Texas Governor 

Greg Abbott to reclassify the San 

Antonio, DFW, and HGB ozone 

nonattainment areas from Moderate to 

Serious for the 2015 ozone NAAQS. The 

EPA is also herein outlining its 

interpretation that following 

reclassification, a state is no longer 

required to submit SIP revisions 

addressing the following requirements 

related to the prior reclassification level 

for an ozone nonattainment area: (1) a 

demonstration of attainment by the 

prior attainment date, (2) a RACM 

analysis tied to the prior attainment 

date, and (3) contingency measures 

specifically related to the area’s failure 

to attain by the prior attainment date. 

Accordingly, if EPA were to finalize its 

reclassification of the San Antonio, 

DFW, and HGB areas to Serious for the 

2015 ozone NAAQS, Texas would no 

longer be required to submit these three 

identified SIP elements as they relate to 

the Moderate classification level, and 

EPA’s October 18, 2023, Finding of 

Failure to Submit 1 would be mooted as 

to these specific SIP elements. 

The EPA is also proposing a deadline 

for the TCEQ to submit revisions to the 

SIP addressing the Serious area 

requirements for these areas; 

specifically, the EPA is proposing and 

taking comment on a range of deadlines, 

from 12 to 18 months from the effective 

date of the EPA’s final rule reclassifying 

the San Antonio, DFW, and HGB areas 

as Serious, for the TCEQ to submit the 

revised SIPs addressing the Serious area 

requirements for these nonattainment 

areas. The EPA is also proposing a 

deadline for implementation of new 

RACT rules as expeditiously as 

practicable but no later than January 1, 


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2 80 FR 65292 (October 26, 2015). 

3For the 2015 ozone NAAQS, the DV at each 

monitoring site is the annual fourth-highest daily 

maximum 8-hour average ozone concentration, 

averaged over three consecutive years. For areas 

with more than one monitoring site, the highest DV 

among the monitoring sites is the DV for such areas. 

4 83 FR 25776 (June 4, 2018). The DFW 

nonattainment area for the 2015 ozone NAAQS 

includes nine counties: Collin, Dallas, Denton, Ellis, 

Johnson, Kaufman, Parker, Tarrant, and Wise. The 

HGB nonattainment area for the 2015 ozone 

NAAQS includes six counties: Brazoria, Chambers, 

Fort Bend, Galveston, Harris, and Montgomery. 

5 83 FR 35136 (July 25, 2018). The San Antonio 

nonattainment area includes all of Bexar County 

and is referred to as the ‘‘Bexar County 

nonattainment area’’ in the reclassification request 

from the Governor of Texas, discussed in Section 

II of this proposal. 

6 88 FR 71757, (October 18, 2023). 

7 If the EPA has not affirmatively determined that 

a state has made the required complete SIP 

submittal for an area within 18 months of the 

effective date of finding, then the offset sanction 

identified in CAA section 179(b)(2) will apply in 

the affected nonattainment area (CAA section 179(a) 

and (b) and 40 CFR 52.31). If the EPA has not 

affirmatively determined that a state has made the 

required complete SIP submittal within 6 months 

after the offset sanction is imposed, then the 

highway funding sanction will apply in the affected 

nonattainment area (CAA section 179(b)(1) and 40 

CFR 52.31). The EPA must promulgate a FIP no 

later than 2 years after issuance of the FFTS if an 

affected state has not submitted, and the EPA has 

not approved, the required SIP submittal. 

8See the FFTS for more detail—the FFTS is also 

posted in the docket for this action. 

9The submitted request is posted in the docket 

for this action. 

10Specifically, we are referring to the EPAapproved Texas SIP at Section 116.150, titled ‘‘New 

Major Source or Major Modification in Ozone 

Nonattainment Area.’’ 60 FR 49781 (September 27, 

1995) and subsequent revisions at 77 FR 65119 

(October 25, 2012). 

2026. Additionally, the EPA is 

proposing a deadline for any new or 

revised Enhanced vehicle I/M programs 

to be fully implemented as 

expeditiously as practicable but no later 

than four years after the effective date of 

EPA’s final rule reclassifying these areas 

as Serious. Lastly, the EPA is proposing 

a deadline for the first transportation 

control demonstration, as required by 

CAA section 182(c)(5), to be submitted 

two years after the attainment 

demonstration due date. 

II. Background 

On October 1, 2015, the EPA 

strengthened the primary and secondary 

eight-hour ozone NAAQS from 0.075 

parts per million (ppm) to 0.070 ppm 

(‘‘2015 ozone NAAQS’’).2 In accordance 

with CAA section 107(d), the EPA must 

designate an area ‘‘nonattainment’’ if it 

is violating the NAAQS or if it is 

contributing to a violation of the 

NAAQS in a nearby area. With respect 

to the ozone NAAQS, the EPA further 

classifies nonattainment areas as 

Marginal, Moderate, Serious, Severe, or 

Extreme, depending upon the ozone 

design value (DV) for the area.3 See 

CAA section 181(a)(1). As a general 

matter, higher classified ozone 

nonattainment areas are subject to a 

greater number of, and more stringent, 

CAA planning requirements than lower 

classified areas and are allowed more 

time to attain the ozone NAAQS. See, 

generally, subpart 2 of part D of title I 

of the CAA. 

Effective August 3, 2018, the EPA 

designated and classified the DFW and 

HGB areas under the CAA as Marginal 

nonattainment for the 2015 ozone 

NAAQS.4 Effective September 24, 2018, 

the EPA designated and classified the 

San Antonio area under the CAA as 

Marginal nonattainment for the 2015 

ozone NAAQS.5 The EPA’s 

classification of the San Antonio, DFW, 

and HGB ozone nonattainment areas as 

Marginal established a requirement that 

these areas attain the 2015 ozone 

NAAQS as expeditiously as practicable, 

but no later than three years from the 

effective date of designation, i.e., August 

3, 2021, for the DFW and HGB areas and 

September 24, 2021, for the San Antonio 

area. Consistent with CAA section 

181(b)(2), the EPA is required to 

determine whether an area attained the 

ozone NAAQS by the applicable 

attainment date. 

In October 2022, the EPA determined 

that the DFW and HGB areas failed to 

attain the 2015 ozone NAAQS by the 

August 3, 2021, attainment date and 

reclassified these areas as Moderate for 

the 2015 ozone NAAQS with an 

attainment date of August 3, 2024. In 

that same action, the EPA also 

determined that the San Antonio area 

failed to attain the 2015 ozone NAAQS 

by the September 24, 2021, attainment 

date and reclassified the area as 

Moderate for the 2015 ozone NAAQS 

with an attainment date of September 

24, 2024 (see 87 FR 60897, October 7, 

2022). 

On October 13, 2023, the EPA signed 

a finding that 11 states failed to submit 

SIP revisions required by the CAA in a 

timely manner for certain 

nonattainment areas reclassified as 

Moderate for the 2015 ozone NAAQS.6

This final action was effective on 

November 17, 2023, and triggered 

certain CAA deadlines for the 

imposition of sanctions if a state does 

not submit a complete SIP addressing 

the outstanding requirements and for 

the EPA to promulgate a Federal 

Implementation Plan (FIP) if the EPA 

does not approve the state’s SIP revision 

addressing the outstanding 

requirements.7

Texas is included in the October 2023 

findings for failing to submit required 

SIP revisions for the San Antonio, DFW, 

and HGB areas. The required Moderate 

area SIP elements that the TCEQ failed 

to submit include Nonattainment New 

Source Review (NNSR), Reasonable 

Further Progress (RFP), the attainment 

demonstration, RACM, RACT, 

contingency measures, and Basic I/M.8

III. Voluntary Reclassification of the 

San Antonio, DFW, and HGB Areas as 

Serious Ozone Nonattainment 

On October 12, 2023, Texas Governor 

Greg Abbott submitted a request to the 

EPA Administrator to reclassify the San 

Antonio, DFW, and HGB ozone 

nonattainment areas from Moderate to 

Serious for the 2015 ozone NAAQS.9 A 

Serious classification is one category 

higher than the current classification of 

Moderate. If these areas are classified as 

Serious, the DFW and HGB areas must 

attain the 2015 ozone NAAQS no later 

than August 3, 2027, and the San 

Antonio area must attain the 2015 ozone 

NAAQS no later than September 24, 

2027. 

CAA section 181(b)(3) provides for 

‘‘voluntary reclassification’’ and states 

that ‘‘[t]he Administrator shall grant the 

request of any state to reclassify a 

nonattainment area in that State . . . to 

a higher classification. The 

Administrator shall publish a notice in 

the Federal Register of any such request 

and of action by the Administrator 

granting the request.’’ The EPA herein is 

providing such notice of the request and 

is proposing to grant the request from 

Texas. The EPA reads the relevant 

statutory language to provide no 

discretion to deny the request made in 

this instance. 

IV. Consequences of Reclassification 

A. Permitting for Stationary Air 

Pollution Sources 

Upon reclassification, stationary air 

pollution sources in the San Antonio, 

DFW, and HGB ozone nonattainment 

areas will be subject to Serious ozone 

nonattainment area New Source Review 

(NSR) and Title V permit requirements. 

The source applicability thresholds for 

major sources and major source 

modification emissions will be 50 tons 

per year (tpy) for volatile organic 

compounds (VOC) and nitrogen oxides 

(NOX). For new and modified major 

stationary sources subject to review 

under Texas Administrative Code Title 

30, Chapter 116, Section 116.150 (30 

TAC 116.150) in the EPA approved 

SIP,10 VOC and NOX emission increases 

from the proposed construction of the 


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11For Severe ozone nonattainment areas, the 

nonattainment NSR source applicability thresholds 

for major sources and major source modification 

emissions are 25 tpy for VOC and NOX, and the 

minimum emissions offset ratio is 1.30 to 1 (see 

CAA sections 182(d) and 182(d)(2)). 

12See 42 U.S.C. 7511a(c)(2)(A). As required by 

the CAA, a state must submit ‘‘[a] demonstration 

that the plan, as revised, will provide for attainment 

of the ozone [NAAQS] by the applicable attainment 

date.’’ [emphasis added] 

13See 40 CFR 51.1312(c). See Sierra Club v. EPA, 

No. 01–1070 (D.C. Cir. 2002) (holding that the 

‘‘RACM requirement is to be understood as a means 

of meeting the deadline for attainment’’). 

14Contingency measures for failure to meet RFP 

by the Moderate attainment date would continue to 

be required after voluntary reclassification from 

Moderate to Serious. 

15 88 FR 71757. 

16 If a state demonstrates that ROP has been met 

for an area, the EPA believes that the requirement 

for contingency measures for that purpose could 

similarly be mooted. 

new or modified major stationary 

sources must be offset by emission 

reductions by a minimum offset ratio of 

1.20 to 1 (see CAA section 182(c)(10)). 

We note that the DFW and HGB areas 

are classified as Severe under the 2008 

ozone NAAQS and thus, the more 

stringent Severe area requirements are 

currently being implemented in those 

areas.11

B. Status of Certain Requirements of 

Previous Classification 

EPA interprets the ozone 

nonattainment requirements of the CAA 

to provide that when an ozone 

nonattainment area is reclassified, the 

attainment date for the prior 

classification is superseded by the 

attainment date for the new 

classification. Thus, once a 

nonattainment area has been reclassified 

and as a result has a new statutory 

attainment deadline, certain SIP 

elements (in this action, the attainment 

demonstration, RACM, and contingency 

measures for failure to attain) which are 

tied to the applicable attainment 

deadline are no longer required for the 

lower, superseded classification. 

Requiring a state to submit or EPA to act 

on such SIP elements would make no 

logical or practical sense. Generally, 

after EPA has determined that an area 

has failed to attain by its applicable 

attainment date, the area is reclassified. 

Consequently, that former, superseded 

classification’s attainment date is in the 

past and is no longer applicable, and it 

is no longer meaningful to evaluate 

whether a plan demonstrates that an 

area would attain by that superseded 

date. At that point in time, no changes 

could be made to the attainment 

demonstration that would change facts 

that have already come to pass, i.e., that 

the area has failed to attain by its 

applicable attainment date.12 This 

reasoning also applies in the case of 

RACM, which for ozone is submitted 

with the attainment demonstration 

demonstrating that an area has adopted 

all RACM necessary to demonstrate 

attainment as expeditiously as 

practicable.13 EPA has long evaluated 

RACM in terms of whether there are any 

reasonably available control measures 

that could advance an area’s attainment 

date. In the situation discussed herein, 

the attainment date is in the past, so it 

is not possible to conduct an evaluation 

as to whether attainment could be 

advanced. Accordingly, EPA interprets 

the CAA such that following 

reclassification, any required attainment 

demonstration and associated RACM 

analysis must be done with respect to 

the new and current applicable 

attainment date. 

The same logic applies for voluntary 

reclassifications. Section 181(b)(3) of the 

CAA clearly authorizes states to request 

reclassification for an ozone 

nonattainment area, as Texas did here. 

The effect of EPA’s grant of such a 

request would be to reclassify the area 

and establish a new attainment date for 

the higher classification, which would 

replace the old attainment date 

associated with the area’s former, 

superseded classification. A voluntary 

reclassification to a higher classification 

could occur before the lower 

classification’s attainment date but 

would still establish a new attainment 

date. Thus, voluntary reclassification 

would still render inapplicable those 

requirements specifically tied to the 

lower classification’s attainment date, 

which would no longer be applicable. 

The CAA does not require attainment 

demonstrations (and associated RACM 

analysis) for attainment dates associated 

with classifications that are not 

applicable to the area. Moreover, 

following voluntary reclassification 

from Moderate to Serious before the 

Moderate attainment date, the EPA is no 

longer required to determine whether 

the area attained by the no longer 

applicable Moderate attainment date. 

Because the EPA would not issue such 

a finding of failure to attain, 

contingency measures for failure to 

attain by the Moderate attainment date 

no longer have logical significance.14

Therefore, the EPA proposes that if this 

reclassification takes effect, the 

following Moderate area SIP 

requirements would no longer be 

required: (1) an attainment 

demonstration with respect to the 

Moderate attainment date, (2) a RACM 

analysis with respect to the Moderate 

attainment date, and (3) contingency 

measures for failure to attain by the 

Moderate attainment date. Texas must 

submit these SIP elements for the 

Serious classification according to the 

deadlines established elsewhere in this 

proposal. Accordingly, the EPA is 

proposing to determine that the October 

2023 findings that EPA published with 

respect to SIP revisions for these three 

identified elements for the Moderate 

classification are now moot, and that the 

associated deadlines triggered by the 

October 2023 findings for imposition of 

sanctions or promulgation of a FIP no 

longer apply with respect to these three 

identified elements.15

Note, however, that there remain 

several Moderate area SIP requirements 

that continue to be required after these 

areas are reclassified to Serious. They 

are unaffected because their meaning is 

not dependent upon the attainment date 

itself. These are: (1) a 15 percent rateof-progress (ROP) plan (40 CFR 

51.1310), (2) contingency measures for 

failure to achieve RFP, including the 15 

percent rate-of-progress (ROP) 

requirement for Moderate areas (CAA 

sections 172(c)(9) and 182(c)(9)),16 (3) a 

RACT demonstration (40 CFR 51.1312), 

(4) NNSR rules (40 CFR 51.165), and (5) 

a Basic I/M program (CAA section 

182(b)(4) and 40 CFR 51 subpart S). 

Reclassification does not change the 

submission requirement or 

implementation deadlines for these SIP 

elements that were due for the Moderate 

classification for the San Antonio, DFW, 

and HGB areas. Changing the 

submission requirement or 

implementation deadlines for these 

elements would delay the 

implementation of these measures 

beyond what the CAA intended. While 

the CAA does provide for later 

attainment dates for higher 

classifications, it does not authorize 

altering requirements that came due as 

a result of the lower classifications aside 

from the very particular situation 

outlined for requirements that are 

directly dependent on the attainment 

date. For example, the CAA requirement 

in section 182(b)(2) to implement RACT 

for specified categories of sources is 

implemented and assessed based on 

whether the RACT rules are 

implementing what is economically and 

technologically feasible. In other words, 

this analysis of whether controls 

comprise RACT is done irrespective of 

the attainment deadline. There is 

nothing in the CAA to suggest that 

reclassification as Serious, and the 

associated change in an area’s 

attainment date, should alter the 

preexisting requirement to submit a SIP 


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17EPA notes that reclassification does obligate the 

state to conduct an additional RACT analysis for the 

new classification. This does not relieve the 

obligation for the prior classification. A state may 

be able to consider the results of its overdue 

Moderate RACT analysis in preparing its Serious 

area RACT submittal. 

18 In June 2022, the EPA released new guidance 

that provides several options for states to either 

continue to rely upon their existing Clean Fuel 

Fleets Program, to add new components to these 

programs, or to rely on recent EPA regulations to 

satisfy the Clean Fuel Fleets requirement. This new 

guidance reaffirms and supplements the 1998 

guidance with new compliance options. This 

guidance is posted at https://www.epa.gov/stateand-local-transportation/clean-fuel-fleets-programguidance. 

19See CAA section 182(c). 

20An I/M performance standard is a collection of 

program design elements which defines a 

benchmark program to which a state’s proposed 

program is compared in terms of its potential to 

reduce emissions of the ozone precursors, VOC, and 

NOX. 

21See Performance Standard Modeling for New 

and Existing Vehicle Inspection and Maintenance 

(I/M) Programs Using the MOVES Mobile Source 

Emissions Model (October 2022, EPA–420–B–22– 

034) at https://nepis.epa.gov/Exe/

ZyPDF.cgi?Dockey=P1015S5C.pdf. 

22 40 CFR 51.372(a)(2). 

23See Implementation of the 2015 National 

Ambient Air Quality Standards for Ozone: 

Nonattainment Area Classifications and State 

Implementation Plan Requirements, 83 FR 62998, 

63001– 63002 (December 6, 2018). Performance 

standard modeling is also required for Enhanced 

I/M programs in Serious and above ozone 

nonattainment areas for the 2015 ozone NAAQS. 

24The DFW proposed SIP revision is identified as 

Project No. 2022–021–SIP–NR, the HGB proposed 

SIP revision is identified as Project No. 2022–022– 

SIP–NR, and the proposed I/M SIP revision for the 

San Antonio nonattainment area is identified as 

2022–027–SIP–NR The Texas proposed SIP 

revisions are posted at https://www.tceq.texas.gov/ 

airquality/sip/Hottop.html. 

25CAA section 182(i) specifically provides 

authority to EPA to adjust applicable deadlines, 

other than attainment dates, for areas that are 

reclassified as a result of failure to attain under 

CAA section 182(b)(2), to the extent such 

adjustment is necessary or appropriate to assure 

consistency among the required submissions. The 

provision does not specifically reference areas that 

are voluntarily reclassified under CAA section 

181(b)(3); EPA is therefore reasonably proposing to 

adjust deadlines for such areas under its general 

rulemaking authority in CAA section 301(a), 

consistent with CAA section 182(i). 

implementing RACT level controls and 

the deadline to implement those 

controls.17 This same logic applies to all 

the identified requirements not 

specifically tied to the attainment date, 

and the associated deadlines for 

imposition of sanctions and EPA’s 

obligation to promulgate a FIP triggered 

by the October 2023 findings would 

continue to apply with respect to these 

elements. 

C. Required Plans, and Submission and 

Implementation Deadlines 

1. Serious Area Plan Requirements 

The SIP requirements that apply 

specifically to Serious areas are listed 

under CAA section 182(c) and include: 

Enhanced monitoring (CAA section 

182(c)(1); Emissions inventory and 

emissions statement rule (40 CFR 

51.1300(p) and 40 CFR 51.1315); RFP 

(40 CFR 51.1310); Attainment 

demonstration and RACM (40 CFR 

51.1308 and 40 CFR 51.1312(c)); RACT 

(40 CFR 51.1312); Nonattainment NSR 

(40 CFR 51.1314 and 40 CFR 51.165); 

Enhanced I/M (CAA section 182(c)(3) 

and 40 CFR 51 Subpart S); Clean-fuel 

vehicle programs (CAA section 

182(c)(4); 18 and Contingency measures 

(CAA sections 172(c)(9) and 182(c)(9)). 

In addition, a demonstration evaluating 

the need for a transportation control 

measure program (CAA section 

182(c)(5)) is also required. Note that the 

analysis addressing RACT level controls 

for major sources should include an 

evaluation of controls for sources 

emitting 50 tpy or more that are 

currently reasonably available, 

consistent with the definition of ‘‘major 

source’’ or ‘‘major stationary source’’ for 

areas classified as Serious.19 The RACT 

analysis should also include an 

evaluation of any newly-identified VOC 

sources covered by an EPA Control 

Techniques Guideline, and an 

evaluation of controls for VOC and NOX

sources emitting 100 tpy or more that 

may have become reasonably available 

since the January 1, 2023, Moderate area 

deadline for adopting and implementing 

RACT. 

Consistent with the I/M regulations, 

for the existing I/M programs in the 

DFW and HGB areas, the State would 

need to conduct and submit a 

performance standard 20 modeling 

(PSM) analysis 21 as well as make any 

necessary program revisions as part of 

the Serious area I/M SIP submissions to 

ensure that I/M programs are operating 

at or above the Enhanced I/M 

performance standard level for the 2015 

ozone NAAQS.22 The State may 

determine through the PSM analysis 

that an existing SIP-approved program 

would meet the Enhanced performance 

standard for purposes of the 2015 ozone 

NAAQS without modification. In this 

case, the State could submit an I/M SIP 

revision with the associated 

performance modeling and a written 

statement certifying their determination 

in lieu of submitting new revised 

regulations.23 With the passage of time 

and changes in fleet mix, it is 

appropriate for the State to confirm 

existing programs’ compliance with the 

performance standard. 

The State included PSM for the 

existing (Enhanced) I/M program in 

Appendix C of the SIP revisions, 

proposed by the State on May 31, 2023, 

for the DFW and HGB attainment 

demonstrations, and included PSM as 

an attachment to the I/M SIP revision, 

proposed by the State on May 31, 2023, 

for the San Antonio nonattainment area, 

to demonstrate that PSM is met for Basic 

I/M in that area.24 The EPA will address 

these SIP revisions in a separate future 

action after the State has finalized these 

proposed SIP revisions and submitted 

them to the EPA for consideration. 

However, following reclassification as 

Serious, as outlined above for existing 

I/M programs, the State will need to 

make any necessary revisions to the 

proposed San Antonio Basic I/M 

program and submit a PSM analysis 

along with a written certification as part 

of the Serious area SIP submissions to 

demonstrate that the San Antonio area 

I/M program will be operating at or 

above the Enhanced I/M performance 

standard level for the 2015 ozone 

NAAQS when the Enhanced I/M 

program is implemented. The Enhanced 

I/M program requirements are to be 

fully implemented as expeditiously as 

practicable but no later than the 

implementation deadline determined by 

the final action reclassifying these areas 

as discussed in Section III.C.4. of this 

proposal. 

In addition, CAA section 182(c)(5) 

requires that ozone nonattainment areas 

classified as Serious submit a 

demonstration of whether current 

aggregate vehicle mileage, aggregate 

vehicle emissions, congestion levels, 

and other relevant parameters are 

consistent with those used for an area’s 

demonstration of attainment. If the 

demonstration shows that these 

transportation parameters will result in 

an exceedance of the projected 

emissions in the attainment 

demonstration, the State would be 

required to develop and submit a SIP 

revision within 18 months that includes 

transportation control measures to 

reduce emissions to levels consistent 

with the attainment demonstration. 

2. Submission Deadline for the San 

Antonio, DFW, and HGB Serious Area 

SIPs for the 2015 Ozone NAAQS 

The SIP submission deadlines for 

nonattainment areas initially classified 

as Serious for the 2015 ozone NAAQS 

have passed and thus, the EPA is 

proposing new SIP submission 

deadlines for the reclassified Texas 

areas.25 In proposing these new 

deadlines, EPA is considering the 

statutory guidance provided in CAA 

section 182(i), which allows the 

Administrator to adjust applicable 

deadlines other than attainment dates 

for areas that are reclassified as a result 


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26See reclassification final actions for the DFW 

area at 75 FR 79302 (December 20, 2010) and 63 

FR 8128 (February 18, 1998). 

27Air Quality Control Region (AQCR) 215 

includes the DFW area, AQCR 216 includes the 

HGB area, and AQCR 217 includes the San Antonio 

area. See also 62 FR 30270 (June 3, 1997) and 40 

CFR subpart B. 

28The I/M program implementation deadline at 

40 CFR 51.373(d) states: ‘‘For areas newly required 

to implement Enhanced I/M as a result of 

designation under the 8-hour ozone standard, the 

required program shall be fully implemented no 

later than 4 years after the effective date of 

designation and classification under the 8-hour 

ozone standard.’’ A start date for I/M programs of 

4 years after the effective date of designation and 

classification under the 8-hour ozone standard is 

also cited in the Enhanced I/M performance 

standard at 40 CFR 51.351(c) and (i)(2). 

of failure to attain, ‘‘to the extent such 

adjustment is necessary or appropriate 

to assure consistency among the 

required submissions.’’ EPA’s proposed 

deadlines are also informed by the 

amount of time and balance of 

considerations, including an area’s 

attainment date, that the CAA prescribes 

when new implementation plans are 

required to be submitted. See, e.g., CAA 

section 110(k)(5) (allowing EPA to 

‘‘establish reasonable deadlines (not to 

exceed 18 months)’’ after notification 

that a SIP is inadequate); CAA section 

179(d) (requiring states to submit a new 

SIP revision demonstrating attainment 

within one year of a finding that a 

nonattainment area has failed to attain 

by its attainment date). EPA also 

considered the time necessary for the 

State to adopt revisions to necessary 

attainment strategies, address other SIP 

requirements, and complete the public 

notice process necessary to adopt and 

submit timely SIP revisions. Given the 

Serious area attainment year of 2026 

and the Serious area attainment dates in 

2027, we are proposing and taking 

comment on a range of SIP submission 

deadlines from 12 to 18 months from 

the effective date of the EPA’s final 

action reclassifying the San Antonio, 

DFW, and HGB areas as Serious. Twelve 

months is consistent with submission 

deadlines set forth in prior mandatory 

reclassifications for the DFW area, i.e., 

12 months from the effective date of 

reclassification.26 This shorter deadline 

would also provide for additional time 

for adopted control measures to 

influence an area’s air quality and 2024– 

2026 attainment DV and aid in these 

areas’ ability to attain by the Serious 

attainment deadline. Given the 

anticipated timing of these area 

reclassifications, an 18-month SIP 

submission deadline could also be 

reasonable, falling before the beginning 

of the Serious area attainment year 

(January 1, 2026) and increasing the 

State’s available time for assessing, 

adopting, and implementing emission 

reduction measures such that these 

areas can meet the ozone NAAQS 

expeditiously. Therefore, we are 

proposing and taking comment on a 

range of deadlines, from 12 to 18 

months from the effective date of 

reclassification, for submission of the 

revised SIPs for the San Antonio, DFW, 

and HGB Serious nonattainment areas. 

We request that comments on the 

deadline for submission of the revised 

SIPs be accompanied by justification for 

the commenter’s position. We will 

review comments received during the 

comment period and determine the 

appropriate SIP submission deadline in 

our final action for these Serious area 

submission requirements. 

3. Implementation Deadline for RACT 

With respect to implementation 

deadlines, the EPA’s implementing 

regulations for the 2015 ozone NAAQS 

require that, for RACT required 

pursuant to reclassification, the state 

shall provide for implementation of 

such RACT as expeditiously as 

practicable, but no later than the start of 

the attainment year ozone season 

associated with the area’s new 

attainment deadline, or January 1 of the 

third year after the associated SIP 

revision submittal deadline, whichever 

is earlier; or the deadline established by 

the Administrator in the final action 

issuing the area reclassification (see 40 

CFR 51.1312(a)(3)(ii)). The modeling 

and attainment demonstration 

requirements for 2015 ozone NAAQS 

areas classified Moderate or higher 

require that a state must provide for 

implementation of all control measures 

needed for attainment no later than the 

beginning of the attainment year ozone 

season, notwithstanding any alternative 

deadline established per 40 CFR 

51.1312 (see 40 CFR 51.1308(d)). 

In the case of the potential reclassified 

Serious areas addressed in this 

proposal, the start of the ozone season 

varies among the areas—January for the 

HGB area and March for the DFW and 

San Antonio areas (see 40 CFR part 58, 

appendix D, section 4.1, Table D–3).27

Per 40 CFR 51.1312(a)(3)(ii), and 

consistent with CAA section 182(i)’s 

provision that EPA may adjust 

deadlines for mandatorily reclassified 

areas as necessary and appropriate ‘‘to 

assure consistency among the required 

submissions’’ the EPA is proposing a 

consistent single RACT implementation 

deadline for all the areas addressed in 

this proposal, that RACT be 

implemented as expeditiously as 

practicable but no later than the 

beginning of the applicable attainment 

year, i.e., January 1, 2026. This 

proposed deadline would require 

implementation of RACT as early as 

possible in the attainment year to 

influence an area’s air quality and 2024– 

2026 attainment DV. 

The EPA requests comment on its 

proposed deadline that RACT be 

implemented as expeditiously as 

practicable but no later than the 

beginning of the applicable attainment 

year, i.e., January 1, 2026. 

4. Implementation Deadline for 

Enhanced I/M Programs 

With respect to the implementation 

deadline for Enhanced I/M programs, if 

the State intends to rely upon emission 

reductions from its newly required 

Enhanced I/M programs for the 2015 

ozone NAAQS, the State would need to 

have such Enhanced programs fully 

implemented as expeditiously as 

practicable but no later than the 

beginning of the applicable attainment 

year, i.e., January 1, 2026. However, 

given the unique nature of I/M 

programs, there are many challenges, 

tasks, and milestones that must be met 

in establishing and implementing an 

Enhanced I/M program. The EPA 

realizes that implementing a new or 

revised I/M program on an accelerated 

timeline may be difficult to achieve in 

practice so, if the State does not intend 

to rely upon emission reductions from 

its Enhanced I/M programs in SIPs 

demonstrating attainment or RFP, we 

are proposing to allow any new or 

revised Enhanced I/M programs to be 

fully implemented no later than 4 years 

after the effective date of 

reclassification, explained as follows. 

Under CAA section 182(i), reclassified 

areas are generally required to meet the 

requirements associated with their new 

classification ‘‘according to the 

schedules prescribed in connection with 

such requirements.’’ The I/M 

regulations provide such a prescribed 

schedule in stating that newly required 

I/M programs are to be implemented as 

expeditiously as practicable. The I/M 

regulations also allow areas newly 

required to implement Enhanced I/M up 

to ‘‘4 years after the effective date of 

designation and classification’’ to fully 

implement the I/M program.28 With the 

effective date of this action expected to 

be in 2024, the implementation deadline 

for Enhanced I/M programs for the 2015 

ozone NAAQS under the proposal 

would be in 2028. This proposed 

implementation deadline is beyond the 

Serious area attainment date of August 


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29See John S. Seitz, Memo, ‘‘Reasonable Further 

Progress, Attainment Demonstration, and Related 

Requirements for Ozone Nonattainment Areas 

Meeting the Ozone National Ambient Air Quality 

Standard,’’ May 10, 1995, at 4. 

30See 87 FR 60897, October 7, 2022, at 60900. 31See https://www.epa.gov/ejscreen. 

3, 2027 (or September 24, 2027, for the 

San Antonio area). However, by 

proposing such a deadline for newly 

reclassified Serious areas required to 

implement an Enhanced I/M program 

(but not needing I/M emission 

reductions for attainment or RFP SIP 

purposes), the EPA maintains that these 

newly required Enhanced I/M programs 

could reasonably be implemented after 

the attainment year ozone season (i.e., 

after 2026) relevant to the Serious area 

attainment date if reductions from these 

Enhanced I/M programs are not 

necessary for an area to achieve timely 

attainment of the 2015 ozone NAAQS. 

The EPA has long taken the position 

that the statutory requirement for states 

to implement I/M in ozone 

nonattainment areas classified Moderate 

and higher generally exists 

independently from the attainment 

planning requirements for such areas.29

Considering the numerous challenges 

and milestones necessary in 

implementing an Enhanced I/M 

program, this proposed implementation 

deadline of up to 4 years is reasonable. 

This proposed implementation 

deadline for Enhanced I/M 

implementation does not extend the 

deadline for implementation of the San 

Antonio area’s Basic I/M program 

(November 7, 2026), which is still 

required from the area’s prior 

classification as Moderate.30

The EPA requests comment on 

requiring that any new or revised 

Enhanced I/M programs be fully 

implemented as expeditiously as 

practicable but no later than four years 

after the effective date of 

reclassification. If the State intends to 

rely upon emission reductions from its 

newly required Enhanced I/M programs 

for the 2015 ozone NAAQS, the State 

would need to have such Enhanced 

programs fully implemented as 

expeditiously as practicable but no later 

than the beginning of the applicable 

attainment year, i.e., January 1, 2026. 

5. Reporting Deadline for the 

Transportation Control Demonstration 

In Serious ozone nonattainment areas, 

CAA section 182(c)(5) requires the state 

to submit, six years after November 15, 

1990, and every three years thereafter, a 

demonstration as to whether current 

aggregate vehicle mileage, aggregate 

vehicle emissions, congestion levels, 

and other relevant parameters are 

consistent with those used for the area’s 

demonstration of attainment. Six years 

after November 15, 1990, was two years 

after the statutory deadline established 

to submit attainment demonstrations. 

To be consistent with this CAA 

schedule, we are proposing that the first 

transportation control demonstration be 

required to be submitted two years after 

the attainment demonstrations for these 

areas are due, and every three years 

thereafter. 

V. Proposed Action 

Pursuant to CAA section 181(b)(3), we 

are proposing to grant the Texas 

Governor’s request to reclassify the San 

Antonio, DFW, and HGB nonattainment 

areas from Moderate to Serious for the 

2015 ozone NAAQS. The EPA is also 

proposing to set a deadline for the 

submission of revised SIPs addressing 

the Serious area requirements for the 

San Antonio, DFW, and HGB ozone 

nonattainment areas. We are proposing 

to establish a deadline within the range 

of 12 to 18 months from the effective 

date of the final action reclassifying the 

San Antonio, DFW, and HGB areas as 

Serious for the TCEQ to submit SIP 

revisions addressing the CAA Serious 

ozone nonattainment area requirements. 

We are also proposing a deadline for 

implementation of new RACT controls 

as expeditiously as practicable but no 

later than January 1, 2026. Also, if the 

State does not intend to rely upon 

emission reductions from its Enhanced 

I/M programs in SIPs demonstrating 

attainment or RFP, we are proposing a 

deadline for any new or revised 

Enhanced I/M programs to be fully 

implemented as expeditiously as 

practicable but no later than four years 

after the effective date of the final action 

reclassifying these areas as Serious for 

the 2015 ozone NAAQS. We are also 

proposing a deadline for the first 

transportation control demonstration, as 

required by CAA section 182(c)(5), to be 

submitted two years after the attainment 

demonstration due date, and every three 

years thereafter. 

VI. Environmental Justice 

Considerations 

For this proposed action, the EPA 

conducted screening analyses using the 

EPA’s Environmental Justice (EJ) 

screening tool (EJScreen tool, version 

2.2).31 The EPA reviewed 

environmental and demographic data of 

the populations living within the San 

Antonio, DFW, and HGB areas. The EPA 

then compared these data to the 

national average for each of the 

environmental and demographic groups. 

The results of this analysis are being 

provided for informational and 

transparency purposes. 

Review of the environmental analyses 

indicate that Collin, Dallas, Denton, and 

Tarrant counties in the DFW area and 

all six counties in the HGB area are 

above the 80th percentile for ozone. 

Review of the demographic analyses 

indicate that Chambers, Galveston, and 

Harris counties in the HGB area are 

above the 80th percentile for limited 

English-speaking households. A 

detailed description of the EJ 

considerations and the EJScreen 

analysis reports are available in the 

docket for this rulemaking. 

VII. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review, Executive Order 

13563: Improving Regulation and 

Regulatory Review, and Executive Order 

14094: Modernizing Regulatory Review 

This proposed action is not a 

significant regulatory action as defined 

in Executive Order 12866, as amended 

by Executive Order 14094, and was 

therefore not subject to a requirement 

for Executive Order 12866 review. 

Because the statutory requirements are 

clearly defined with respect to the 

differently classified areas, and because 

those requirements are automatically 

triggered by reclassification, the timing 

of the submittal of the Serious area 

requirements does not impose a 

materially adverse impact under 

Executive Order 12866. 

B. Paperwork Reduction Act (PRA) 

This proposed action does not impose 

an information collection burden under 

the provisions of the PRA. 

C. Regulatory Flexibility Act (RFA) 

I certify that this proposed rule will 

not have a significant economic impact 

on a substantial number of small entities 

under the RFA. This proposed action 

will not impose any requirements on 

small entities, because the EPA is 

seeking comment only on the timing of 

submittal requirements. 

D. Unfunded Mandates Reform Act of 

1995 (UMRA) 

This proposed action does not contain 

an unfunded mandate of $100 million or 

more as described in UMRA, 2 U.S.C. 

1531–1538, and does not significantly or 

uniquely affect small governments. The 

proposed action imposes no new 

enforceable duty on any State, local or 

Tribal governments or the private sector. 

E. Executive Order 13132: Federalism 

This proposed action does not have 

federalism implications. It will not have 


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substantial direct effects 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. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

This proposed action does not have 

Tribal implications as specified in 

Executive Order 13175. There are no 

Indian reservation lands or other areas 

where the EPA or an Indian tribe has 

demonstrated that a tribe has 

jurisdiction within the San Antonio, 

DFW, or HGB ozone nonattainment 

areas. Therefore, this proposed action 

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. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

The EPA interprets Executive Order 

13045 as applying only to those 

regulatory actions that concern health or 

safety risks that the EPA has reason to 

believe may disproportionately affect 

children, per the definition of ‘‘covered 

regulatory action’’ in section 2–202 of 

the Executive order. This proposed 

action is not subject to Executive Order 

13045 because the EPA is seeking 

comment only on the timing of 

submittal requirements and as such, 

does not concern an environmental 

health risk or safety risk. 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution or Use 

This proposed action is not subject to 

Executive Order 13211 because it is not 

a significant regulatory action under 

Executive Order 12866. 

I. National Technology Transfer and 

Advancement Act (NTTAA) 

This proposed action does not involve 

technical standards. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations and LowIncome Populations and Executive 

Order 14096: Revitalizing Our Nation’s 

Commitment to Environmental Justice 

for All 

Executive Order 12898 (Federal 

Actions to Address Environmental 

Justice in Minority Populations and 

Low-Income Populations, 59 FR 7629, 

February 16, 1994) directs Federal 

agencies to identify and address 

‘‘disproportionately high and adverse 

human health or environmental effects’’ 

of their actions on minority populations 

and low-income populations to the 

greatest extent practicable and 

permitted by law. The EPA defines 

environmental justice (EJ) as ‘‘the fair 

treatment and meaningful involvement 

of all people regardless of race, color, 

national origin, or income with respect 

to the development, implementation, 

and enforcement of environmental laws, 

regulations, and policies.’’ The EPA 

further defines the term fair treatment to 

mean that ‘‘no group of people should 

bear a disproportionate burden of 

environmental harms and risks, 

including those resulting from the 

negative environmental consequences of 

industrial, governmental, and 

commercial operations or programs and 

policies.’’ 

This proposed action would reclassify 

the San Antonio, DFW, and HGB 

nonattainment areas from Moderate to 

Serious for the 2015 ozone NAAQS, set 

deadlines for the submission of revised 

SIPs addressing the Serious area 

requirements for these three ozone 

nonattainment areas, and set deadlines 

for implementation of controls required 

for these three nonattainment areas. 

This proposal does not revise measures 

in the current SIP. As such, at a 

minimum, this action would not worsen 

any existing air quality and is expected 

to ensure the areas are meeting 

requirements to attain and/or maintain 

air quality standards. Further, there is 

no information in the record indicating 

this action is expected to have 

disproportionately high or adverse 

human health or environmental effects 

on a particular group of people. The 

EPA performed an environmental 

justice analysis, as described earlier in 

this action under ‘‘Environmental 

Justice Considerations.’’ The analysis 

was done for the purpose of providing 

additional context and information 

about this proposal to the public, not as 

a basis of the action. 

K. Judicial Review 

Section 307(b)(1) of the CAA governs 

judicial review of final actions by EPA. 

This section provides, in part, that 

petitions for review must be filed in the 

D.C. Circuit: (i) when the agency action 

consists of ‘‘nationally applicable 

regulations promulgated, or final actions 

taken, by the Administrator,’’ or (ii) 

when such action is locally or regionally 

applicable, if ‘‘such action is based on 

a determination of nationwide scope or 

effect and if in taking such action the 

Administrator finds and publishes that 

such action is based on such a 

determination.’’ For locally or regionally 

applicable final actions, the CAA 

reserves to EPA complete discretion to 

decide whether to invoke the exception 

in (ii). 

This proposal, if finalized, would be 

locally applicable because it would 

apply only to three nonattainment areas 

located in the State of Texas. However, 

if the Administrator finalizes this 

proposed rulemaking, the Administrator 

intends to exercise the complete 

discretion afforded to him under the 

CAA to make and publish a finding that 

the final action is based on a 

determination of ‘‘nationwide scope or 

effect’’ within the meaning of CAA 

section 307(b)(1). This proposed action, 

if finalized, would be based on EPA’s 

determination as a matter of law that 

upon reclassification of a nonattainment 

areas for the 2015 ozone NAAQS, 

certain nonattainment area planning 

requirements that are tied to the lower, 

superseded classification’s attainment 

date for these NAAQS (i.e., for this 

action, the Moderate area attainment 

demonstration, Moderate area RACM 

demonstration, and contingency 

measures for failure to attain) are no 

longer required. This is a determination 

of nationwide scope or effect because it 

reflects EPA’s nationwide approach to 

implementing the CAA’s mandates 

concerning the consequences, in all 

states, of reclassification from Moderate 

to Serious under subpart 2 of title I, part 

D of the CAA. For these reasons, the 

Administrator intends, if this proposed 

action is finalized, to exercise the 

complete discretion afforded to him 

under the CAA to make and publish a 

finding that this action is based on a 

determination of nationwide scope or 

effect for purposes of CAA section 

307(b)(1). 

List of Subjects in 40 CFR Part 81 

Environmental protection, 

Administrative practice and procedure, 

Air pollution control, Designations and 

classifications, Intergovernmental 

relations, Nitrogen oxides, Ozone, 

Reporting and recordkeeping 

requirements, and Volatile organic 

compounds. 

Authority: 42 U.S.C. 7401 et seq. 

Dated: January 19, 2024. 

Earthea Nance, 

Regional Administrator, Region 6. 

[FR Doc. 2024–01525 Filed 1–25–24; 8:45 am] 

BILLING CODE 6560–50–P 


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