In 1981, Congress amended the Federal Deposit Insurance Act (FDI Act) to permit the FDIC to provide deposit insurance coverage to branches of U.S.-chartered IDIs located in the Trust Territory of the Pacific Islands (Trust Territory). At that time, the Trust Territory included what is now the Federated States of Micronesia (FSM), the Republic of the Marshall Islands (Marshall Islands), the Republic of Palau (Palau), and the Northern Mariana Islands. Between 1986 and 1994, the FSM, the Marshall Islands, and Palau became independent nations (collectively known as the Freely Associated States), and each entered a Compact of Free Association (Compacts) with the United States. The Compacts and associated agreements authorize certain government agencies, including the FDIC, to provide specific services to each of the Freely Associated States. In 2023, the United States and each of the Freely Associated States entered new agreements relating to their respective Compacts, which were subsequently approved by Congress. The new agreements authorize the FDIC to provide deposit insurance to IDIs chartered by any of the Freely Associated States.

Three U.S.-chartered IDIs also operate branches in the Freely Associated States that have historically been insured under authority in the FDI Act. After the Compacts and the related agreements were concluded, the FDIC adopted an interim final rule  1 to clarify that it insures the deposits of legacy branches of U.S. IDIs operating in the Freely Associated States, and requested public comment. The interim final rule defined “legacy branches” as the number of branches operating in the Freely Associated States by each U.S. IDI as of the rule's effective date, August 9, 2024. The FDIC received one comment supporting the clarification but requesting that the FDIC remove language limiting coverage to legacy branches. In response to that feedback, the FDIC is adopting this final rule pursuant to its authorities under section 11 of the FDI Act, relating to deposit insurance, as well as authorities under sections 9 and 10, to make deposit insurance available to all branches of U.S.-chartered IDIs in the Freely Associated States, whether present or future.

Under the FDIC's regulations, an obligation of an IDI that is payable solely at an office of the IDI located outside any State is not considered a “deposit” for purposes of the deposit insurance regulations. 2 Where an obligation of an IDI is carried on the books and records of an office of the IDI located outside any State, the regulations provide that it shall not be considered an insured deposit, even if it is also made payable at an office of the IDI located within any State. 3 That is, where obligations booked outside the U.S. are made dually payable (meaning that the deposits are expressly payable in an office of the IDI in the United States), 4 they may be entitled to depositor preference (payment ahead of the institution's other creditors), but under the FDIC's rules, are not generally eligible for deposit insurance coverage.

The interim final rule amended the FDIC's regulations to provide that legacy branches of U.S. IDIs in the Freely Associated States are not considered to be offices located outside any State for purposes of the deposit insurance rules. Therefore, deposits in those branches, if dually payable (meaning that the deposits are expressly payable in an office of the IDI in the United States), are insured by the FDIC. The interim final rule defined “legacy branches” as the number of branches operated by each U.S. IDI as of August 9, 2024. The interim final rule limited coverage to the legacy branches of U.S. IDIs in order to align deposit insurance coverage with the coverage provided historically for U.S. banks operating in the Freely Associated States.

The FDIC received one comment letter from the Bank of Guam (commenter), a U.S.-chartered IDI, that operates branches in the Freely Associated States. While the commenter supported the interim final rule to the extent it clarified the application of FDIC deposit insurance to legacy branches of U.S. IDIs in the Freely Associated States, the commenter raised concerns about the effect of limiting deposit insurance to just those legacy branches. Specifically, the commenter requested clarity as to whether a relocated branch would qualify as a legacy branch. The commenter also noted that the limitation of coverage to legacy branches would act as a restriction to growth and expansion that never historically existed prior to the interim final rule.

The final rule removes the reference to “legacy branches” in the FDIC's regulations. Under the amended rule, all branches of U.S. IDIs in the Freely Associated States, whether present or future, are not considered to be offices located outside any State for purposes of deposit insurance coverage. As a result, dually payable deposits of all branches of U.S.-chartered banks in the Freely Associated States, whether present or future, will be insured by the FDIC.

Providing deposit insurance to all branches of U.S. IDIs in the Freely Associated States achieves the FDIC's intent to align its deposit insurance regulations with the historical availability of FDIC deposit insurance in the Freely Associated States. The final rule also puts U.S. IDIs operating in the Freely Associated States on equal footing with IDIs chartered by the Freely Associated States. Further, removing a limitation that may have served as a barrier to entry will support a competitive banking environment in the Freely Associated States. Additionally, the FDIC does not have a clear rationale to limit deposit insurance only to existing branches of U.S. IDIs and not new branches of U.S. IDIs.

In 2024, the FDIC adopted an interim final rule that provided deposit insurance to legacy branches of U.S. IDIs operating in the Freely Associated States. This final rule further amends 12 CFR part 330 to remove the requirement that the branches be “legacy” branches. Under the final rule, FDIC will insure dually payable deposits of all branches of U.S. IDIs operating in the Freely Associated States.

As described above, the interim final rule clarified continuing deposit insurance coverage for all legacy branches in the Freely Associated States—that is, all eight branches operating as of August 9, 2024, the effective date of the interim final rule, by three U.S. IDIs. of the quarter ending June 30, 2025, there are still eight branches operated in the Freely Associated States by three U.S. IDIs. 5 Taken together, these branches have approximately $803.47 million in deposits.

As discussed above, the interim final rule did not alter deposit insurance coverage at the eight branches currently operating in the Freely Associated States. Costs imposed by the interim final rule on the operators of these branches, if any, were likely limited to costs associated with clarifications to their customers regarding the nature of deposit insurance for products offered at these branches. The FDIC does not have data to quantify these costs but believes they were de minimis.

The final rule extends deposit insurance coverage to all branches of U.S.-insured depository institutions in the Freely Associated States. In contrast to the interim final rule, any new branches formed by U.S. IDIs in the Freely Associated States will now be eligible to have their deposits insured under the final rule. As such, the final rule may affect the formation of new branches in the Freely Associated States. The FDIC believes that more branches may potentially be opened as a result of the final rule. In the absence of the final rule, it is more likely that U.S. IDIs operating in the Freely Associated States would continue to endeavor to attract new customers and depositors but without opening new branches. The FDIC does not have data to estimate these impacts.

Additionally, the FDIC notes that given the very small size of the Freely Associated States relative to the U.S. population and economy, and the preexisting availability of deposit insurance for IDIs operating in the Freely Associated States, the final rule is expected to have a de minimis impact on the Deposit Insurance Fund.

The Administrative Procedure Act requires an agency to publish a substantive rule not less than 30 days before its effective date, except when an agency otherwise publishes in the final rule good cause for providing for an earlier effective date. 6 Accordingly, the final rule is effective as of the date set forth above in this document under the DATES heading.

The Regulatory Flexibility Act (RFA) generally requires an agency, in connection with a final rule, to prepare and make available for public comment a final regulatory flexibility analysis that describes the impact of the final rule on small entities. 7 However, a final regulatory flexibility analysis is not required if the agency certifies that the final rule will not, if promulgated, have a significant economic impact on a substantial number of small entities. The SBA has defined “small entities” to include banking organizations with total assets of less than or equal to $850 million. 8 Generally, the FDIC considers a significant economic impact to be a quantified effect in excess of 5 percent of total annual salaries and benefits or 2.5 percent of total noninterest expenses. The FDIC believes that effects in excess of one or more of these thresholds typically represent significant economic impacts for FDIC-supervised institutions. The final rule applies to U.S.-chartered IDIs that operate in the Freely Associated States presently or in the future. As of the quarter ending June 30, 2025, there are three U.S. IDIs with eight total branches in the Freely Associated States. 9 Of these, one U.S. IDI is considered small for purposes of the RFA.

The FDIC does not believe that the final rule will have a significant impact on a substantial number of small entities. The sole small entity affected by the interim final rule has a single branch. As discussed in the Expected Effects section, the FDIC expects any effects of the final rule on this branch and its customers to be de minimis. The FDIC does not have information on the extent the final rule may affect business decisions—such as marketing and deposit solicitation and future branch openings—of IDIs that are not currently doing business in the Freely Associated States but may choose to do so in the future. However, the single small entity affected by the interim final rule and any additional small entities that may open a branch in the Freely Associated States are unlikely to constitute a substantial number of small entities.

In light of the foregoing, the FDIC certifies that the final rule will not have a significant economic impact on a substantial number of small entities. Accordingly, a final regulatory flexibility analysis is not required.

The Paperwork Reduction Act of 1995 (PRA)  10 states that no agency may conduct or sponsor, nor is the respondent required to respond to, an information collection unless it displays a currently valid Office of Management and Budget (OMB) control number. The final rule does not create any new, or revise any of these existing assessment information collections pursuant to the PRA; consequently, no submissions in connection with these OMB control numbers will be made to the OMB for review.

Any new branch applications that result from this rule will be reflected in the next information collection renewal.

The Riegle Community Development and Regulatory Improvement Act of 1994 generally provides that new regulations or amendments to regulations prescribed by a Federal banking agency that impose additional reporting, disclosure, or other new requirements on IDIs shall take effect on the first day of a calendar quarter that begins on or after the date on which the regulations are published in final form, unless the agency determines, for good cause published with the rule, that the rule should become effective before such time. 11 The rule does not impose any reporting, disclosure, or other requirements on IDIs.

Section 722 of the Gramm-Leach-Bliley Act  12 requires the Federal banking agencies to use plain language in all proposed and final rulemakings published in the Federal Register after January 1, 2000. The FDIC has sought to present the final rule in a simple and straightforward manner and did not receive any comments relating to plain language.

For purposes of the Congressional Review Act, the OMB makes a determination as to whether a final rule constitutes a “major” rule. 13 If a rule is deemed a “major rule” by the OMB, the Congressional Review Act generally provides that the rule may not take effect until at least 60 days following its publication. 14

The Congressional Review Act defines a “major rule” as any rule that the Administrator of the Office of Information and Regulatory Affairs of the OMB finds has resulted in or is likely to result in (1) an annual effect on the economy of $100,000,000 or more; (2) a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies or geographic regions; or (3) significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets. 15

The OMB has determined that the final rule is not a major rule for purposes of the Congressional Review Act.

Executive Order 12866, as amended, provides that the Office of Information and Regulatory Affairs (OIRA) will review all “significant regulatory actions” as defined therein. The FDIC has submitted this regulatory act to OIRA for review. OIRA has determined that this final rule is not a “significant regulatory action” for purposes of Executive Order 12866. For more information on the analysis conducted in connection with Executive Order 12866, refer to other sections of this SUPPLEMENTARY INFORMATION .

Executive Order 14192 directs agencies, unless prohibited by law, to identify at least 10 existing regulations to be repealed when the agency publicly proposes for notice and comment or otherwise promulgates a new regulation with total costs greater than zero. Executive Order 14192 further requires that new incremental costs associated with new regulations shall, to the extent permitted by law, be offset by the elimination of existing costs associated with at least 10 prior regulations. An Executive Order 14192 deregulatory action is an action that has been finalized and has total costs less than zero. This final rule is considered an Executive Order 14192 deregulatory action.

For the reasons stated in the preamble, the Federal Deposit Insurance Corporation adopts as final the interim final rule amending 12 CFR part 330, which was published at 89 FR 65166 on August 9, 2024, with the following change:

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Piaggio Aviation S.p.A. (type certificate currently held by Baykar Piaggio Aerospace S.p.A.) Model P-180 airplanes. The NPRM was published in the Federal Register on December 10, 2025 (90 FR 57170). The NPRM was prompted by European Union Aviation Safety Agency (EASA) AD 2025-0014, dated January 13, 2025 (EASA AD 2025-0014) (also referred to as the MCAI), issued by EASA, which is the Technical Agent for the Member States of the European Union. The MCAI states that an occurrence was reported where, during scheduled airplane maintenance, chafing was detected on the flap transmission shafts. A subsequent investigation identified a limited clearance between flap transmission shafts 1 and 7 and the wing rib at wing station 440 and between flap transmission shaft 7 and the cabin door seal inflation system pneumatic pipe. This condition, if not detected and corrected, could affect the integrity of the flap transmission and lead to reduced control of the airplane.

In the NPRM, the FAA proposed to require inspecting the flap transmission shafts for chafing or any damage (surface abrasions, grooves or rubbing tracks, and metallic smears or transfers), measuring specific gaps, and, depending on the findings, accomplishing corrective actions. The FAA is issuing this AD to address the unsafe condition on these products.

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2025-5027.

The FAA received no comments on the NPRM or on the determination of the costs.

The FAA has revised the applicability of this AD to identify the type certificate holder's name as published in the most recent type certificate data sheet for the affected models.

These products have been approved by the civil aviation authority of another country and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with this State of Design Authority, that authority has notified the FAA of the unsafe condition described in the MCAI referenced above. The FAA reviewed the relevant data, considered any comments received, and determined that air safety requires adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on these products. Except for minor editorial changes, this AD is adopted as proposed in the NPRM. None of the changes will increase the economic burden on any operator.

The FAA reviewed Piaggio Aerospace Service Bulletin (SB) 80-0498, Revision 0, dated August 2, 2024 (Piaggio SB 80-0498, Revision 0). This material specifies procedures for inspecting the flap transmission shaft for chafing or any damage (surface abrasions, grooves or rubbing tracks, and metallic smears or transfers), measuring specific gaps, and depending on findings, accomplishing applicable corrective actions. This material 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.

The referenced material requires contacting Piaggio for approved repair instructions. This AD requires contacting either the Manager, International Validation Branch, FAA; EASA; or Piaggio's EASA Design Organization Approval (DOA), for approved repair instructions.

The FAA estimates that this AD affects 98 airplanes of U.S. registry.

The FAA estimates the following costs to comply with this AD:

The FAA estimates the following costs to do any rework, repairs or replacements that would be required based on the results of the inspection. Any corrective action that may be needed as a result of the inspection can vary from airplane to airplane. The agency has no way of determining the number of airplanes that might need this rework, repairs, or replacements:

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.

The FAA is 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.

This AD will not have federalism implications under Executive Order 13132. This AD will 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 above, I certify that this AD:

(1) Is not a “significant regulatory action” under Executive Order 12866,

(2) Will not affect intrastate aviation in Alaska, and

(3) 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.

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

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. 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. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends restricted area airspace at Fort Drum, NY, to enhance aviation safety and accommodate essential United States (U.S.) Army training activities.

The FAA published an NPRM for Docket No. FAA-2025-2645 in the Federal Register (90 FR 58522; December 17, 2025), proposing to amend restricted area R-5201 at Fort Drum, NY. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. One comment was received in favor of the proposal.

This action amends 14 CFR part 73 by amending the time of designation for restricted area R-5201, Fort Drum, NY, from “Continuous April 1 through September 30 and 0600 through 1800 hours local time, October 1 through March 31; other times by Notice to Airmen (NOTAM) 48 hours in advance” to “continuous” to align with actual usage and support Army training requirements. Additionally, the FAA updates the using agency from “Commanding Officer, Fort Drum, NY” to “U.S. Army, Commanding Officer, Fort Drum, NY,” to follow the FAA's current airspace description format guidance.

Further, the FAA makes a minor technical amendment by adding two geographic coordinates to the description of restricted area R-5201. Adding these coordinates to the description of restricted area R-5201 does not change the boundaries of the restricted area, but rather ensures coincident boundary alignment with the adjacent restricted areas R-5202A and R-5202B. The geographic coordinates “lat. 44°09′34″ N, long. 75°40′00″ W” and “lat. 44°06′00″ N, long. 75°28′49″ W” are added to the description of restricted area R-5201.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA has determined that this action of amending the time of designation, updating the using agency, and making a minor technical amendment for restricted area R-5201, Fort Drum, NY, qualifies for categorical exclusion under the National Environmental Policy Act (42 U.S.C. 4321, et seq. ) and in accordance with FAA Order 1050.1G, FAA National Environmental Policy Act Implementing Procedures, paragraph B-2.5(a), which categorically excludes from further environmental impact review rulemaking actions that designate or modify classes of airspace areas, airways, routes, and reporting points ( see 14 CFR part 71, Designation of Class A, B, C, D, and E Airspace Areas; Air Traffic Service Routes; and Reporting Points).

Additionally, the FAA, as a Cooperating Agency to the Army's Lead Agency proposed action, and having regulatory jurisdiction over the National Airspace System (NAS), has adopted the Army's Record of Environmental Consideration (REC) and categorical exclusion (CATEX) determination that Army CATEX 32 CFR 651, Appendix B, Section II (j)(2) is applicable to this action. This CATEX applies to “[f]lying activities in compliance with Federal Aviation Administration Regulations and in accordance with normal flight patterns and elevations for that facility, where the flight patterns/elevations have been addressed in an installation master plan or other planning document that has been subject to NEPA public review.”. The FAA has adopted this CATEX determination in accordance with FAA Order 1050.1G, paragraph 1-4(h). In accordance with the FAA's NEPA implementation policy and procedures regarding extraordinary circumstances, the FAA has reviewed this action for factors and circumstances in which a normally categorically excluded action may have a significant environmental impact requiring further analysis. The FAA has determined that no extraordinary circumstances exist that warrant preparation of an environmental assessment or environmental impact statement. As such, this action is not expected to result in any potentially significant environmental impacts.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 73 as follows:

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. 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. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it updates the information in the airspace descriptions of restricted areas R-3002A, R-3002B, R-3002C, R-3002D, R-3002E, R-3002F, and R-3002G; Fort Moore, GA.

On March 3, 2025, the Secretary of Defense directed the United States Army to change the name of “Fort Moore, GA” by redesignating it as “Fort Benning, GA.” Consequently, this rulemaking action implements the requisite changes to part 73 by updating the airspace descriptions of restricted areas R-3002A, R-3002B, R-3002C, R-3002D, R-3002E, R-3002F, and R-3002G to reflect the new name.

This action amends 14 CFR part 73 by updating the airspace titles and using agency descriptions for restricted areas R-3002A, R-3002B, R-3002C, R-3002D, R-3002E, R-3002F, and R-3002G by removing the name “Fort Moore, GA” and replacing it with “Fort Benning, GA.” The using agency for all seven restricted areas is changed to “U.S. Army, Commanding General, Fort Benning, GA.”

Under 5 U.S.C. 553, federal agencies engaged in informal rulemaking must provide the public with a notice of proposed rulemaking and an opportunity for public participation. However, 5 U.S.C. 553(b)(B) exempts a rule from these requirements “when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” Courts have construed these exceptions narrowly, but have nonetheless accepted determinations of good cause that notice and comment is unnecessary in “those situations in which the administrative rule is a routine determination, insignificant in nature and impact, and inconsequential to the industry and to the public.” See Mack Trucks, Inc. v. EPA, 682 F.3d 87, 94 (D.C. Cir. 2012). This action consists of administrative name changes and minor technical amendments only. It does not affect the boundaries, altitudes, time of designation, operating requirements, or activities conducted in the restricted areas. Therefore, FAA has determined that good cause exists to find that notice and public procedure under 5 U.S.C. 553(b) are unnecessary.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA has determined that this action of making an administrative change to rename the facility associated with restricted areas R-3002A, R-3002B, R-3002C, R-3002D, R-3002E, R-3002F, and R-3002G; Fort Moore, GA, qualifies for categorical exclusion under the National Environmental Policy Act (42 U.S.C. 4321, et seq. ) and in accordance with FAA Order 1050.1G, FAA National Environmental Policy Act Implementing Procedures, paragraph B-2.5(a), which categorically excludes from further environmental impact review rulemaking actions that designate or modify classes of airspace areas, airways, routes, and reporting points ( see 14 CFR part 71, Designation of Class A, B, C, D, and E Airspace Areas; Air Traffic Service Routes; and Reporting Points); and paragraph B-2.5(d), which categorically excludes from further environmental impact review the modification of the technical description of special use airspace (SUA) that does not alter the dimensions, altitudes, or times of designation of the airspace (such as changes in designation of the controlling or using agency, or correction of typographical errors). As such, this action is not expected to result in any potentially significant environmental impacts. In accordance with the FAA's NEPA implementation policy and procedures regarding extraordinary circumstances, the FAA has reviewed this action for factors and circumstances in which a normally categorically excluded action may have a significant environmental impact requiring further analysis. The FAA has determined that no extraordinary circumstances exist that warrant preparation of an environmental assessment or environmental impact statement.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 73 as follows:

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. 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. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it updates the information in the airspace descriptions of restricted areas R-2103A, R-2103B, and R-2103C, Fort Novosel, AL.

On June 11, 2025, the Secretary of Defense directed the United States Army to change the name of “Fort Novosel, AL” by redesignating it as, “Fort Rucker, AL.” Consequently, this rulemaking action implements the requisite changes to part 73 by updating the airspace descriptions and titles of restricted areas R-2103A, R-2103B, and R-2103C to reflect the new name.

This action amends 14 CFR part 73 by updating the airspace titles and using agency descriptions for restricted areas R-2103A, R-2103B, and R-2103C by removing the name “Fort Novosel, AL” and replacing it with “Fort Rucker, AL.” The using agency for all three restricted areas is changed to the “Commanding General, U.S. Army Aviation Center, Fort Rucker, AL.”

Under 5 U.S.C. 553, federal agencies engaged in informal rulemaking must provide the public with a notice of proposed rulemaking and an opportunity for public participation. However, 5 U.S.C. 553(b)(B) exempts a rule from these requirements “when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” Courts have construed these exceptions narrowly but have nonetheless accepted determinations of good cause that notice and comment is unnecessary in “those situations in which the administrative rule is a routine determination, insignificant in nature and impact, and inconsequential to the industry and to the public.” See Mack Trucks, Inc. v. EPA, 682 F.3d 87, 94 (D.C. Cir. 2012). This action consists of administrative name changes and minor technical amendments only. It does not affect the boundaries, altitudes, time of designation, operating requirements, or activities conducted in the restricted areas. Therefore, FAA has determined that good cause exists to find that notice and public procedure under 5 U.S.C. 553(b) are unnecessary.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA has determined that this action of making an administrative change to rename restricted areas R-2103A, R-2103B, and R-2103C, from Fort Novosel, AL to Fort Rucker, AL, qualifies for categorical exclusion under the National Environmental Policy Act (42 U.S.C. 4321, et seq. ) and in accordance with FAA Order 1050.1G, FAA National Environmental Policy Act Implementing Procedures, paragraph B-2.5(a), which categorically excludes from further environmental impact review rulemaking actions that designate or modify classes of airspace areas, airways, routes, and reporting points ( see 14 CFR part 71, Designation of Class A, B, C, D, and E Airspace Areas; Air Traffic Service Routes; and Reporting Points); and paragraph B-2.5(d), which categorically excludes from further environmental impact review the modification of the technical description of special use airspace (SUA) that does not alter the dimensions, altitudes, or times of designation of the airspace (such as changes in designation of the controlling or using agency, or correction of typographical errors). As such, this action is not expected to result in any potentially significant environmental impacts. In accordance with the FAA's NEPA implementation policy and procedures regarding extraordinary circumstances, the FAA has reviewed this action for factors and circumstances in which a normally categorically excluded action may have a significant environmental impact requiring further analysis. The FAA has determined that no extraordinary circumstances exist that warrant preparation of an environmental assessment or environmental impact statement.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 73 as follows:

The Commission has engaged with crypto assets  1 for more than a decade. 2 In 2017, the Commission issued a report pursuant to section 21(a) of the Securities Exchange Act of 1934 (the “Exchange Act”)  3 regarding offers and sales of crypto assets by an unincorporated organization named “The DAO.”  4 The Commission, in The DAO Report, determined, among other things, that crypto assets issued by The DAO were offered and sold as investment contracts and, therefore, securities under section 2(a)(1) of the Securities Act of 1933 (the “Securities Act”)  5 and section 3(a)(10) of the Exchange Act. 6 In making this determination, the Commission applied the “ Howey test,” which the U.S. Supreme Court (the “Supreme Court”) has used to determine whether a contract, transaction, or scheme is an investment contract and therefore a security. 7 In the years following publication of The DAO Report, the Commission applied the Howey test, mostly in the context of enforcement actions, to determine whether crypto assets were offered and sold as investment contracts and therefore as securities. Some Commissioners and other commentators expressed concerns about the Commission's approach to crypto assets during this period. Some described that approach as “regulation by enforcement,” stating that the Commission pursued enforcement actions against crypto asset issuers for alleged violations of the Federal securities laws rather than developing a tailored regulatory framework that accommodates crypto asset innovation and entrepreneurship. 8

Applying the Howey test to crypto assets and transactions involving crypto assets can be challenging because of the varying degrees of control that persons or groups may have over crypto systems, the diversity of the types of crypto assets with varying characteristics, uses, and functionality, and the evolving nature of crypto assets and crypto systems. These unique attributes of crypto assets have prompted divergent views among market participants, financial regulators, and the courts over the application of the Howey test to crypto assets and transactions involving crypto assets, particularly with respect to secondary market transactions involving crypto assets. Accordingly, market participants have requested guidance from the Commission regarding the circumstances under which the Commission will characterize crypto assets as securities and transactions involving crypto assets as securities transactions. 9

On January 21, 2025, Acting Chairman Mark T. Uyeda established the Crypto Task Force to help provide greater clarity on the application of the Federal securities laws to the crypto asset markets. 10 The Crypto Task Force's focus is to support, among other things, the Commission's efforts to draw clear regulatory lines, appropriately distinguish securities from non-securities, craft tailored disclosure frameworks, provide realistic paths to registration for crypto asset offerings and intermediaries subject to the Federal securities laws, and ensure that investors have the information necessary to make informed investment decisions. 11 To this end, the Crypto Task Force has hosted a series of roundtables, including a March 21, 2025 roundtable on security status titled, “How We Got Here and How We Get Out—Defining Security Status.”  12 The Crypto Task Force also has requested and received written input from, 13 and held meetings with, members of the public. 14 To date, the Crypto Task Force has received over 300 written submissions from issuers, investors (both individual and institutional), law firms and legal professionals, audit and accounting professionals and firms, academics, professional and investor associations and organizations, investment companies and advisors, market intermediaries, service providers, network foundations, foreign entities, other crypto asset market participants, and other members of the public. 15

In July 2025, the President's Working Group on Digital Asset Markets released a report titled, “Strengthening American Leadership in Digital Financial Technology” that, among other things, addresses the need for a taxonomy for crypto assets and sets forth a number of recommended regulatory reforms relating to the crypto asset markets. 16 In particular, the report recommended that the “SEC and CFTC should use their existing authorities to provide fulsome regulatory clarity that best keeps blockchain-based innovation within the United States.”  17 In connection with the release of the report, Chairman Paul S. Atkins launched “Project Crypto,” a Commission-wide initiative to modernize rules and regulations under the Federal securities laws in accordance with the President's Working Group's recommendations to enable America's financial markets to move onchain. 18 Among other things, Chairman Atkins directed the staff to “work to develop clear guidelines that market participants can use to determine whether a crypto asset is a security or subject to an investment contract.”  19 On January 29, 2026, Chairman Atkins and CFTC Chairman Michael S. Selig announced that Project Crypto—previously an SEC-led initiative—will proceed as a joint effort between the SEC and the CFTC to harmonize federal oversight of crypto asset markets. 20

In light of the concerns raised about the Commission's approach to crypto assets before 2025, the regulatory developments beginning in 2025, and the public input provided to the Crypto Task Force, the Commission has determined to issue herein an interpretation of the definition of “security” as applied to crypto assets and transactions involving crypto assets as part of its efforts to provide greater clarity regarding the Commission's treatment of crypto assets under the Federal securities laws. We first discuss the definition of “security” under the Federal securities laws, including the term “investment contract.” We then classify crypto assets into categories based on their characteristics, uses, and functions, and analyze each category under the definition of “security.” We also address how a “non-security crypto asset”—which is a crypto asset that itself is not a security—may become subject to, and how it may cease to be subject to, an investment contract. Further, we discuss the Federal securities laws status of the crypto asset activities known as “protocol mining,” “protocol staking,” and “wrapping.” Finally, we discuss the application of the Howey test to certain crypto asset disseminations known as “airdrops.”

The interpretation in this release does not supersede or replace the Howey test, which is binding legal precedent. Rather, the interpretation conveys the Commission's views, informed by the extensive feedback the Commission and its staff have received to date on these topics (including from the Crypto Task Force's roundtables, written input, and meetings), regarding how certain aspects of the Howey test apply to crypto assets and transactions involving crypto assets. 21 The Commission and its staff will administer the Federal securities laws consistent with the interpretation, including with respect to enforcement actions. The interpretation is the Commission's first step toward developing a clearer regulatory framework for the treatment of crypto assets under the Federal securities laws. 22

Further, the CFTC provides herein guidance that the CFTC and its staff will administer the Commodity Exchange Act  23 consistent with the interpretation, 24 and that certain non-security crypto assets could meet the definition of “commodity” under the Commodity Exchange Act. 25

The interpretation in this release is based on the Commission's current understanding of the crypto asset markets, including the typical transactional and structural features of these markets and the typical characteristics, uses, and functions of crypto assets. To help inform the Commission's ongoing consideration of the topics addressed in this release, we are soliciting public comment on the views set forth in the interpretation, including the descriptions of the crypto assets and crypto asset transactions contained herein. Based on the feedback received, the Commission may refine, revise, or expand upon the interpretation in order to provide further clarity regarding the Commission's treatment of crypto assets under the Federal securities laws.

In delineating the scope of the Federal securities laws, Congress “enacted a broad definition of `security,' sufficient to encompass virtually any instrument that might be sold as an investment.”  26 While the definition of “security” includes an enumerated list of “the commonly known documents traded for speculation or investment,” including “stock,” “bond,” and “note,” it also includes instruments “of a more variable character,” such as “investment contract,” “certificate of interest or participation in a profit-sharing agreement,” and “any interest or instrument commonly known as a security.”  27 In addition, the definition of “security” includes any “receipt for, guarantee of, or warrant or right to subscribe to or purchase” any of the financial instruments enumerated in the definition of “security.”  28

The Supreme Court has said that “[b]ecause securities transactions are economic in character Congress intended the application of these statutes to turn on the economic realities underlying a transaction, and not the name appended thereto.”  29 The Supreme Court has reasoned that “in searching for the meaning and scope of the word `security' . . . , form should be disregarded for substance and the emphasis should be on economic reality.”  30 Nonetheless, the definition of “security” is not boundless: “Congress, in enacting the securities laws, did not intend to provide a broad federal remedy for all fraud.”  31 While the securities laws cover “those instruments ordinarily and commonly considered to be securities in the commercial world,” not every instrument is “the type of instrument that comes to mind when the term `security' is used,” and not every instrument falls within “the ordinary concept of a security.”  32 Importantly, the Federal securities laws generally do not apply to items that are purchased for use or consumption, 33 whether they are physical or digital.

There is no universal test to determine whether an instrument is a security. 34 Instead, it must be analyzed to determine if it constitutes one of the financial instruments enumerated in the definition of “security.” The financial instruments enumerated in the definition of “security” generally are not defined in statute or Commission rules, 35 but the Supreme Court and other Federal courts have interpreted many of them based on economic reality. For example, the Supreme Court has established tests for determining whether an instrument that is designated as a “note”  36 or “stock”  37 is a security for purposes of the Federal securities laws.

The definition of “security” is not limited to “obvious and commonplace” instruments. 38 In cases involving a “[n]ovel, uncommon, or irregular device,” courts often evaluate whether the instrument is an “investment contract,” a term that is not defined in statute or Commission rules. 39 The Commission and Federal courts typically have evaluated the security status of crypto assets and crypto asset transactions under an investment contract analysis. 40

In Howey, the Supreme Court defined the term “investment contract” in a way that it intended to be “capable of adaptation to meet the countless and variable schemes devised by those who seek the use of the money of others on the promise of profits.”  41 Under Howey, the term “investment contract” means any contract, transaction, or scheme whereby a person invests money in a common enterprise and reasonably expects profits to be derived from the efforts of others. 42 This definition, known as the “ Howey test,”  43 is intended to afford “the SEC and the courts sufficient flexibility to ensure that those who market investment contracts are not able to escape the coverage of the Federal securities laws by creating new instruments that would not be covered by a more determinate definition.”  44 Since the Supreme Court decided Howey in 1946, Federal courts have applied the Howey test to a broad range of contracts, transactions, and schemes. 45

Virtually any type of security, good, service, right, or interest can be represented in a digital format as a crypto asset. The developer of a crypto asset can determine the quantity of units of a crypto asset that will be generated, the parameters for distribution of the crypto asset, and the functionality (or lack thereof) of the crypto asset, among other things. The developer can generate crypto assets as fungible units or as non-fungible units (commonly known as “non-fungible tokens” or “NFTs”). 46 As such, crypto assets encompass a broad range of instruments with varying characteristics, uses, and functions. For purposes of this release, we classify crypto assets into five categories based on their characteristics, uses, and functions: (i) digital commodities; (ii) digital collectibles; (iii) digital tools; (iv) stablecoins; and (v) digital securities.

Digital commodities, digital collectibles, and digital tools, each as further described below, are not themselves securities. However, as with any asset that is not a security, a non-security crypto asset can be offered and sold subject to an investment contract, which is a security. 47 Stablecoins, as further described below, are a broad category of crypto assets that may or may not be securities depending on their characteristics. Digital securities, as further described below, are securities. Given the variations in crypto assets and the constantly evolving nature of the crypto asset markets, including the underlying technology, there may be crypto assets that do not fall within any of these five categories, as well as crypto assets with hybrid characteristics that may fall within more than one category.

A digital commodity is a crypto asset that is intrinsically linked to and derives its value from the programmatic operation of a crypto system that is “functional, 49 as well as supply and demand dynamics, rather than from the expectation of profits from the essential managerial efforts of others. 50 A digital commodity does not have intrinsic economic properties or rights, such as generating a passive yield or conveying rights to future income, profits, or assets of a business enterprise or other entity, promisor, or obligor, but may have certain other rights (as discussed below). Examples of digital commodities include Aptos (APT); Avalanche (AVAX); Bitcoin (BTC); Bitcoin Cash (BCH); Cardano (ADA); Chainlink (LINK); Dogecoin (DOGE); Ether (ETH); Hedera (HBAR); Litecoin (LTC); Polkadot (DOT); Shiba Inu (SHIB); Solana (SOL); Stellar (XLM); Tezos (XTZ); and XRP (XRP). 51

A digital commodity is necessary to participate in or use certain aspects of an associated functional crypto system. The programmed purpose of a digital commodity is to facilitate and incentivize the validation, ordering, and confirmation of transactions on the associated functional crypto system, serve as a mechanism to maintain the functioning and/or security of the associated functional crypto system, and foster network effects. 52 Accordingly, a digital commodity is integral to the operation of the associated functional crypto system. For example, a digital commodity typically conveys to holders certain technical rights with respect to the associated functional crypto system, such as enabling holders to participate in the system's consensus mechanism by staking (or locking up) the system's native digital commodity. 53 A digital commodity also may convey to holders certain governance rights with respect to the associated functional crypto system. Such a “governance token” typically allows holders to vote on certain technical or governance matters, such as software upgrades and treasury expenditures. Further, a functional crypto system may require users to pay transaction (or “gas”) fees in the system's native digital commodity. These gas fees—in addition to units of the digital commodity newly generated by the protocol—typically are used as an incentive mechanism to reward participation in and use of the associated functional crypto system.

A digital commodity itself, as described in this release, is not a security because it does not have the economic characteristics of a security. A digital commodity does not constitute any of the financial instruments enumerated in the definition of “security” because, among other things, it does not represent a digitized form of any such instruments, including an investment contract. Like commodities generally, a digital commodity has intrinsic value derived from the value of the goods and services that may be produced or accessed using that commodity, as well as from supply and demand dynamics. Users of a functional crypto system use the system's native digital commodity to interact with the system's features and functionalities. A functional crypto system incorporates economic mechanisms that reward voluntary cooperation and coordination among the system's users. Users are encouraged to participate in a functional crypto system based on its economic mechanism design, and developers are incentivized to build crypto applications for functional crypto systems that successfully attract users. A functional crypto system does not have a central party  54 that oversees participation or distributes rewards to users. As a result, the value of a digital commodity is intrinsically linked to the programmatic functioning of the associated functional crypto system. Therefore, given that a digital commodity is associated with a functional crypto system, a purchaser would not reasonably expect to profit based on the essential managerial efforts of others.

A digital collectible is a crypto asset that is designed to be collected and/or used and may represent or convey rights to artwork, music, videos, trading cards, in-game items, or digital representations or references to internet memes, characters, current events, or trends, among other things. A digital collectible does not have intrinsic economic properties or rights, such as generating a passive yield or conveying rights to future income, profits, or assets of a business enterprise or other entity, promisor, or obligor. Examples of digital collectibles available in the markets today, based on our understanding of their characteristics, terms, and functions as of the date of this release, include CryptoPunks, 55 Chromie Squiggles, 56 Fan Tokens, 57 WIF, 58 and VCOIN. 59

Like physical collectibles, digital collectibles do not provide holders with any legal rights or interest in or with respect to a business enterprise or other entity, promisor, or obligor associated with the creator of the digital collectible or otherwise. 60 Digital collectibles may provide holders with a limited license or other intellectual property rights, often pursuant to an end user agreement. For example, creators of unique artwork digital collectibles often provide holders with the right to display and commercialize the acquired artwork. 61 Social media platforms, video games, and other consumer applications sometimes incorporate digital collectibles to enhance the user experience and facilitate network effects. The developers of these applications often reward early users with digital collectibles or allow active users to earn digital collectibles by engaging with the application. These digital collectibles include badges, video game “skins,” and rewards points.

Some digital collectibles have limited or no functionality. For example, a “meme coin” is a type of crypto asset inspired by internet memes, characters, current events, or trends for which the creator seeks to attract an enthusiastic online community to purchase the meme coin and engage in its trading. 62 Meme coins typically are acquired for artistic, entertainment, social, and cultural purposes, and their value is driven by supply and demand, rather than any essential managerial efforts of others. Nonetheless, meme coin holders may create uses for meme coins, such as by limiting access to a chatroom to meme coin holders or whitelisting meme coin holders for an airdrop. 63 Further, a crypto asset may be offered and sold initially as a meme coin that has no functionality within an associated functional crypto system (and no related representations or promises to create such functionality or crypto system) and that derives its value from the asset's artistic, entertainment, social, or cultural significance, but later become a digital commodity because it becomes functional within an associated functional crypto system.

A digital collectible itself, as described in this release, is not a security because it does not have the economic characteristics of a security. 64 A digital collectible does not constitute any of the financial instruments enumerated in the definition of “security” because, among other things, it does not represent a digitized form of any such instruments, including an investment contract. Digital collectibles generally have artistic, entertainment, social, or cultural value or utility. The purchase of a digital collectible is not an investment in any business enterprise or other entity, promisor, or obligor associated with the creator of the digital collectible.

Like a physical collectible, a digital collectible's value is not based on the expectation of profits from any essential managerial efforts of its creator following creation but rather on supply and demand, which in many cases depends on the subject matter, popularity, or scarcity of the digital collectible, as is the case with physical collectibles. For example, buying a digital collectible with the hope that its subject matter, popularity, or scarcity will increase its price is like buying a piece of art with the hope that market forces will create demand for the art and increase its price. While the value of a digital collectible may be impacted directly or indirectly by the activities or reputation of the creator—as may occur with respect to a physical collectible—the creator of a digital collectible typically does not make representations or promises to undertake essential managerial efforts from which a purchaser would reasonably expect to derive profits. 65

However, as can be the case with physical collectibles, 66 the offer and sale of a digital collectible that either is fractionalized or otherwise enables individuals to acquire a fractional ownership interest of a single digital collectible, could constitute the offer or sale of a security because it may involve essential managerial efforts from which a purchaser would reasonably expect to derive profits and, therefore, may be offered and sold as an investment contract. 67

A digital tool is a crypto asset that performs a practical function, such as a membership, ticket, credential, title instrument, or identity badge. Digital tools are commonly issued for use in connection with crypto systems and are designed to perform practical functions within such systems. Digital tools often are non-transferrable or “soul-bound,”  68 and their value is derived from their practical functionality. Digital tools may be issued by a central party or autonomously in accordance with the programmatic functioning of a crypto system. A digital tool does not have intrinsic economic properties or rights, such as generating a passive yield or conveying rights to future income, profits, or assets of a business enterprise or other entity, promisor, or obligor. Examples of digital tools available in the markets today, based on our understanding of their characteristics, terms, and functions as of the date of this release, include Ethereum Name Service domain names  69 and CoinDesk's `Microcosms' NFT Consensus Ticket. 70

A digital tool itself, as described in this release, is not a security because it does not have the economic characteristics of a security. 71 A digital tool does not constitute any of the financial instruments enumerated in the definition of “security” because, among other things, it does not represent a digitized form of such instruments, including an investment contract. Persons acquire digital tools for their functional utility and do not have any rights or interest in or with respect to a business enterprise or other entity, promisor, or obligor just as persons acquiring a museum membership do not expect to realize a profit from the essential managerial efforts of the museum's operators. The price at which the digital tool may be resold, if it may be resold at all, is based upon its functional utility rather than any expectation of profits from any essential managerial efforts of its developer. While the value of a digital tool may be impacted directly or indirectly by the activities of the developer, the creator of a digital tool typically does not make representations or promises to undertake any essential managerial efforts from which a purchaser would reasonably expect to derive profits. 72

A stablecoin is a crypto asset that is designed to maintain a stable value relative to a reference asset like the U.S. dollar. 73 In July 2025, Congress enacted the GENIUS Act, which creates a comprehensive regulatory framework for a specific type of stablecoin called a “payment stablecoin.”  74 The GENIUS Act excludes from the definition of “security” any “payment stablecoin issued by a permitted payment stablecoin issuer,” as such terms are defined in section 2 of the GENIUS Act. 75 A “payment stablecoin” is defined as a digital asset that is, or is designed to be, used as a means of payment or settlement, and the issuer of which generally is obligated to convert, redeem, or repurchase the digital asset for a fixed amount of monetary value, and represents that it will maintain, or create the reasonable expectation that it will maintain, a stable value relative to the value of a fixed amount of monetary value. 76

A “permitted payment stablecoin issuer” is defined as a person formed in the United States that is: (1) a subsidiary of an insured depository institution that has been approved to issue payment stablecoins under section 5 of the GENIUS Act; (2) a Federal qualified payment stablecoin issuer; or (3) a State qualified payment stablecoin issuer. 77 A permitted payment stablecoin issuer is prohibited under the GENIUS Act from paying any form of interest or yield to the permitted stablecoin holders (whether in cash, tokens, or other consideration) solely in connection with the holding, use, or retention of the payment stablecoin. 78 These crypto assets categorically will not be securities by operation of statute after the effective date of the GENIUS Act. Stablecoins other than payment stablecoins issued by a permitted payment stablecoin issuer may meet the definition of “security” depending on the facts and circumstances.

Prior to the enactment of the GENIUS Act, Corporation Finance issued a statement addressing the characterization of certain stablecoins—referred to therein as “Covered Stablecoins”—under the definition of “security.”  79 Given that the GENIUS Act is not yet effective, 80 and to clarify the Commission's views on the application of the Howey test to stablecoins, the Commission interprets that, for the reasons set forth in the Staff Stablecoin Statement, the offer and sale of Covered Stablecoins does not involve the offer and sale of securities within the meaning of section 2(a)(1) of the Securities Act or section 3(a)(10) of the Exchange Act. 81 Accordingly, persons involved in the process of issuing and redeeming Covered Stablecoins do not need to register those transactions with the Commission under the Securities Act or fall within one of the Securities Act's exemptions from registration. The foregoing interpretation does not address stablecoins other than Covered Stablecoins as described in the Staff Stablecoin Statement.

A digital security (commonly known as a “tokenized” security) is a financial instrument enumerated in the definition “security” that is formatted as or represented by a crypto asset, where the record of ownership is maintained in whole or in part on or through one or more crypto networks. 82 There are a variety of models used to tokenize securities, but they may vary in terms of structure and the rights afforded to holders. As such, the rights of a holder of the crypto asset may be materially different from the rights of a holder of the underlying security, including economic and voting rights. Tokenized securities generally fall into two categories: (1) securities tokenized by or on behalf of the issuers of such securities; and (2) securities tokenized by third parties unaffiliated with the issuers of such securities, which may involve the third party issuing a separate security that derives its value from or is otherwise linked to the subject security.

A security is a security regardless of whether it is issued, or otherwise represented, offchain or onchain. All devices and instruments that have the economic characteristics of a security are securities regardless of format or label. Many digital securities convey the same legal rights with respect to a business enterprise or other entity, promisor, or obligor as offchain securities. Some digital securities do not convey the same legal rights as offchain securities but instead entitle the holder to receive economic distributions from a central party that manages a business enterprise or other entity, promisor, or obligor on behalf of digital security holders. Purchasers of this latter type of digital security invest in a business enterprise or other entity, promisor, or obligor operated by a central party and look to the central party to earn such distributions. Further, digital securities may provide non-financial benefits to holders, similar to a digital commodity, digital collectible, or digital tool. A digital security does not fall outside of the definition of “security” merely because it provides such non-financial benefits.

How an issuer  83 markets and promotes a contract, transaction, or scheme is relevant to assessing whether the issuer is offering or selling an investment contract. 84 A non-security crypto asset becomes subject to an investment contract when an issuer offers it by inducing an investment of money in a common enterprise with representations or promises to undertake essential managerial efforts from which a purchaser would reasonably expect to derive profits. 85 A purchaser's reasonable profit expectations depend on the issuer's representations or promises to engage in such essential managerial efforts. 86 Absent such representations or promises being conveyed to purchasers, 87 it would not be reasonable for a purchaser to expect profits from the contract, transaction, or scheme.

Whether it would be reasonable for a purchaser to expect profits based on representations or promises to engage in essential managerial efforts depends on the specific facts and circumstances, taken as a whole, under which those representations and promises are made. 88 For example, the source of the representations or promises is relevant to a purchaser's reasonable expectations. Because the issuer establishes the essential managerial efforts that it intends to undertake, it would be reasonable for a purchaser to expect profits based on the explicit representations or promises to engage in essential managerial efforts made by or on behalf of the issuer and conveyed to purchasers. In contrast, it would not be reasonable for a purchaser to expect profits based on representations or promises made by third parties, 89 such as unaffiliated proponents of the relevant crypto system or holders of the relevant crypto asset, unless the representations or promises are authorized by the issuer and conveyed to purchasers. 90 Moreover, the timing of the representations or promises is relevant to a purchaser's reasonable expectations. 91 Of necessity, in order to shape a purchaser's expectations, the representations or promises must be conveyed to the purchaser prior to or contemporaneously with the issuer's offer or sale to the purchaser. As such, the issuer's post-sale representations or promises would not convert the prior sale into an offer or sale of an investment contract.

Similarly, the manner in which the representations or promises are made is relevant to a purchaser's reasonable expectations. It is reasonable for a purchaser to expect profits based on representations or promises conveyed to purchasers in written or oral agreements, public communications through which the issuer has established a regular pattern of communicating (such as the issuer's website or official social media accounts), direct private communications between the issuer and purchasers, regulatory filings publicly available to purchasers, or documents clearly attributable to the issuer (such as a whitepaper). 92 Outside of such channels, the reasonableness of a purchaser's expectations of profit depends on whether the representations or promises are widely disseminated, the specific means by which the representations or promises are conveyed, and the issuer's established communication practices.

Further, representations or promises are more likely to create reasonable expectations of profit when they are explicit and unambiguous as to the essential managerial efforts to be undertaken by the issuer, contain sufficient details demonstrating the issuer's ability to implement the proposed project, and explain how the issuer's efforts will produce the profits that purchasers reasonably expect. Representations or promises by an issuer conveyed to purchasers to develop and achieve functionality for a non-security crypto asset and/or develop an associated crypto system together with a business plan containing detailed milestones, a timeline, information about personnel, sources of funding and other resources needed to meet those milestones, and an explanation of how holders of the non-security crypto asset will profit from those efforts, likely would reasonably create an expectation of profit because they speak directly to those essential managerial efforts that affect the failure or success of the project. 93 In contrast, representations or promises that are vague or contain no semblance of an actionable business plan, such as those lacking milestones, funding, or other plans for needed resources, likely would not create reasonable expectations of profit.

The issuer's representations or promises to engage in essential managerial efforts from which a purchaser would reasonably expect to derive profits, when combined with an investment of money in a common enterprise, creates an investment contract under the Howey test. As is the case with other non-security assets, 94 the fact that a non-security crypto asset is subject to an investment contract does not transform the non-security crypto asset itself into a security. For this reason, a non-security crypto asset that has been subject to an investment contract does not remain subject to the associated investment contract in secondary market transactions where purchasers would not reasonably expect such representations or promises to remain connected to the non-security crypto asset. If, on the other hand, purchasers would reasonably expect such representations or promises to remain connected to the non-security crypto asset, the non-security crypto asset would continue to be subject to the associated investment contract in secondary market transactions. Under such circumstances, secondary market offers and sales of such a non-security crypto asset would constitute securities transactions that must be registered under the Securities Act or conducted pursuant to an available exemption from registration. The associated investment contract will continue to be transferred to subsequent purchasers of the non-security crypto asset in secondary market transactions until the non-security crypto asset separates from the issuer's representations or promises, as discussed below.

A non-security crypto asset that was offered and sold subject to an investment contract does not necessarily remain subject to the associated investment contract in perpetuity. A non-security crypto asset remains subject to the associated investment contract if purchasers continue to have a reasonable expectation of profits to be derived from the issuer's essential managerial efforts. For that to be so, purchasers must continue to reasonably expect the issuer's representations or promises to engage in essential managerial efforts to remain connected to the non-security crypto asset.

When a purchaser of a non-security crypto asset that has been subject to an investment contract could no longer reasonably expect the issuer's representations or promises to engage in essential managerial efforts to remain connected to the non-security crypto asset, the non-security crypto asset separates from such representations or promises, and thereafter the non-security crypto asset is not subject to the Federal securities laws. This separation of the non-security crypto asset from the issuer's representations or promises to engage in essential managerial efforts may occur at any time after the offer of the associated investment contract, such as immediately upon delivery of the non-security crypto asset to purchasers or at a future date. As discussed below, we would not expect a non-security crypto asset to be subject to an investment contract when any of the following non-exclusive indicia of separation is present.

A non-security crypto asset that was offered and sold subject to an investment contract is no longer subject to the associated investment contract once the issuer has fulfilled its representations or promises to engage in essential managerial efforts, even if the issuer continues to provide efforts that are not essential managerial efforts with respect to the non-security crypto asset or an associated crypto system or other software project. 95 Because the issuer has fulfilled the essential managerial efforts it represented or promised it would undertake, purchasers no longer have any reasonable expectations of profits to be derived from those efforts. Such representations or promises to engage in essential managerial efforts could, for example, relate to developing certain functionalities or features for the non-security crypto asset or the associated crypto system or other software project, achieving certain software development milestones on a roadmap, or open-sourcing related computer code. 96 Upon the issuer's fulfillment of such representations or promises, the issuer is no longer offering or selling an investment contract and the investment contract itself ceases to exist. Accordingly, the issuer's subsequent offers or sales of the non-security crypto asset would not constitute securities transactions unless the issuer creates a new investment contract to which the non-security crypto asset is subject.

To illustrate, a non-security crypto asset may be offered and sold subject to an investment contract in a primary offering for immediate delivery or delayed delivery. In an offering involving immediate delivery, such as through an “initial coin offering,” the issuer agrees to deliver newly generated non-security crypto assets immediately to investors in exchange for their investment. In an offering involving delayed delivery, such as through a “simple agreement for future tokens,” the issuer agrees to deliver non-security crypto assets that have not yet been generated to investors at a later date in exchange for their investment today. In either case, the sale of the non-security crypto assets occurs at the time of entry into the agreement with the investors (with settlement occurring either immediately or at a future date), 97 at which time the non-security crypto assets become subject to an investment contract regardless of when they are delivered.

Upon delivery, where a purchaser would not reasonably expect profit from the efforts of the issuer (such as where the issuer has publicly disclosed that it completed the essential managerial efforts it represented or promised it would undertake), the non-security crypto assets are no longer subject to the associated investment contract because a necessary element of an investment contract no longer exists. In contrast, upon delivery, where a purchaser would reasonably expect profits from the efforts of the issuer (such as where the issuer has continued providing essential managerial efforts in accordance with its representations or promises or has not publicly disclosed that it completed the essential managerial efforts it represented or promised it would undertake), the non-security crypto assets would continue to be subject to the associated investment contract.

A non-security crypto asset that was offered and sold subject to an investment contract is no longer subject to an investment contract if a purchaser would not reasonably expect the issuer to be able to fulfill or to continue to engage in the essential managerial efforts it represented or promised it would undertake. There are several reasons why this could occur. For example, a sufficiently long period of time may have passed since the issuer's offer and sale of the investment contract and, during this time period, it has become clear to investors that the issuer has neither conducted the essential managerial efforts it represented or promised it would undertake nor indicated that it still intends to conduct such efforts. Similarly, the issuer may publicly announce that it will no longer perform the essential managerial efforts it represented or promised it would undertake ( e.g., where the issuer effectively “abandons” the development of a crypto system). 98

Under these circumstances, a purchaser of the non-security crypto asset would not reasonably expect an issuer's past representations or promises to engage in essential managerial efforts to continue to remain connected to the non-security crypto asset. Accordingly, such purchaser would not reasonably expect the non-security crypto asset to be subject to the associated investment contract. An issuer that fails to perform or otherwise complete the essential managerial efforts it represented or promised it would undertake may face liabilities under the Federal securities laws for these failures, including under the anti-fraud provisions of the Federal securities laws.

To illustrate, a non-security crypto asset is offered and sold subject to an investment contract comprising the issuer's representations or promises to undertake certain essential managerial efforts in connection with the development of a crypto system. The offer and sale of that investment contract must be registered under the Securities Act or conducted pursuant to an exemption from registration. As the issuer endeavors to develop the crypto system, the issuer experiences difficulties that affect its ability to fulfill the essential managerial efforts it represented or promised to undertake, such as insufficient funding or other resources, poor system architecture, technical issues ( e.g., scalability problems, smart contract flaws, or security vulnerabilities), competition, poor management, and market conditions. Based on these difficulties, the issuer decides that it is unable or unwilling to fulfill the essential managerial efforts it promised to undertake and abandons the development of the crypto system.

In such case, if the issuer publicly announces through a widely disseminated communication that it is abandoning the development of the crypto asset and will no longer perform the essential managerial efforts it represented or promised it would undertake when the investment contract was created, it would not be reasonable to expect the issuer's representations or promises to engage in such essential managerial efforts to remain connected to the non-security crypto asset. Accordingly, the non-security crypto asset would no longer be subject to the associated investment contract, and the associated investment contract would cease to exist. Nevertheless, the issuer would continue to be potentially liable for material misstatements or omissions in connection with its failure to perform or otherwise complete the essential managerial efforts that it represented or promised that it would undertake.

The interpretation above assumes that an investment contract has been created and does not address or otherwise affect the analysis regarding its creation under the Howey test. The interpretation only addresses certain circumstances under which a non-security crypto asset that is subject to an existing investment contract may separate from that investment contract and no longer be subject to that investment contract. Consequently, the interpretation only applies after an investment contract is created, even if the investment contract later ceases to exist because the issuer is unable or unwilling to complete the essential managerial efforts it represented or promised to undertake when the investment contract was created.

Similarly, the fact that a non-security crypto asset may separate from the associated investment contract at some time following its creation does not affect the application of the Federal securities laws with respect to that investment contract. For example, the offer and sale of a non-security crypto asset that is subject to an investment contract must be registered under the Securities Act or conducted pursuant to an available exemption. If the issuer fails to register the offering of that investment contract or conduct it pursuant to an available exemption, the issuer will violate the Securities Act and investors will have certain rights against the issuer under the Federal securities laws for this failure to register or use an applicable exemption, even if the non-security crypto asset subsequently separates from the associated investment contract and that investment contract ceases to exist. Moreover, if the issuer makes material misstatements or omissions in connection with the creation of the associated investment contract or at any time during the existence of that investment contract, the issuer may be subject to liability under the anti-fraud provisions of the Federal securities laws for such conduct, even if the non-security crypto asset subsequently separates from the associated investment contract and that investment contract ceases to exist.

The interpretation in this section IV is intended to underscore the Commission's view that how an issuer markets and promotes a contract, transaction, or scheme impacts whether the issuer is offering or selling an investment contract. To the extent issuers make representations or promises about essential managerial efforts they plan to undertake, we encourage issuers to clearly and in sufficient detail outline those efforts, provide a timeline and milestones for completing those efforts, explain the resources needed to complete those efforts, and publicly disclose the completion of those efforts.

Crypto networks rely on cryptography and economic mechanism design to eliminate the need for designated trusted intermediaries to verify crypto network transactions and provide settlement assurances to users. The operation of each crypto network is governed by an underlying software protocol, consisting of computer code, which programmatically enforces certain rules, technical requirements, and reward distributions. Each protocol incorporates a “consensus mechanism,” which is a method for enabling the distributed network of unrelated computers (known as “nodes”) that maintain the peer-to-peer network to agree on the “state” (or authoritative record of network address ownership balances, transactions, smart contract code, and other data) of the network. Public, permissionless crypto networks allow anyone to participate in the crypto network's operation, including the validation of new transactions to the crypto network in accordance with the crypto network's consensus mechanism.

In the following discussion, we provide an interpretation regarding the application of the Federal securities laws to: (1) certain digital commodity activities known as “mining” on public, permissionless crypto networks that use proof-of-work (“PoW”) as a consensus mechanism (“PoW Networks”); and (2) certain digital commodity activities known as “staking” on public, permissionless crypto networks that use proof-of-stake (“PoS”) as a consensus mechanism (“PoS Networks”). In this release, we refer to mining digital commodities on PoW Networks as “Protocol Mining”  99 and staking digital commodities on PoS Networks as “Protocol Staking.”  100

PoW is a consensus mechanism that incentivizes transaction validation by rewarding participants, called “miners,” who operate nodes adding computational resources to the PoW Network. PoW involves validating transactions on a PoW Network and adding them in blocks to the distributed ledger. The “work” in PoW is the computational resources that miners contribute to validate transactions and add new blocks to the PoW Network. Miners do not have to own the PoW Network's digital commodity to validate transactions.

Miners use computers to solve complex mathematical equations in the form of cryptographic puzzles. Miners compete with their peers to solve these puzzles, and the first miner to solve a puzzle is charged with accepting batches of transactions from other nodes and validating (or proposing) new blocks of transactions to the PoW Network. In exchange for providing validation services, miners earn rewards in the form of newly generated digital commodities that are delivered under the terms of the PoW Network's software protocol. 101 In this way, PoW provides an incentive for miners to invest the resources necessary to add valid blocks to the PoW Network.

A miner providing validation services receives the reward only after the other nodes on the PoW Network verify, through the software protocol, that the solution is correct and valid. To this end, once a miner finds the correct solution, it broadcasts this information to other miners who can verify whether the miner properly solved the puzzle to receive the reward. Once verified, all miners then add the new block to their own copies of the PoW Network. PoW is designed to secure the PoW Network by requiring miners to spend considerable time and computational resources to authenticate transactions. When the validation process functions in this way, it not only makes it less likely that someone would seek to undermine a PoW Network but also makes it less likely that miners could include altered transactions, such as those enabling the “double spending” of digital commodities. 102

In addition to self (or solo) mining, miners can join “mining pools,” which allow miners to combine their computational resources to increase their chances of successfully validating transactions and mining new blocks on the PoW Network. There are several types of mining pools, each with differing methods of operation and reward distribution. 103 A pool operator typically is responsible for coordinating the miners' computational resources, maintaining the pool's mining hardware and software, overseeing the pool's security measures to protect against theft and cyberattacks, and ensuring that the miners are paid their rewards. In return, the pool operator charges a fee that is deducted from the rewards earned by the mining pool. Reward payouts vary among pools, although rewards often are distributed across the mining pool in proportion to the amount of computational resources that each miner contributes to the pool. Miners generally have no obligation to stay in a pool and can choose to leave a pool at any time.

The interpretation below pertains to the following Protocol Mining activities when such activities conform to the descriptions in this release (“Protocol Mining Activities” and each a “Protocol Mining Activity”): (1) mining digital commodities on a PoW Network; and (2) the roles of mining pools and pool operators involved in the Protocol Mining process, including their roles in connection with the earning and distribution of rewards. Only Protocol Mining Activities undertaken in connection with the following types of Protocol Mining are addressed in this release:

Self (or Solo) Mining, which involves a miner mining digital commodities using its own computational resources. The miner may work alone or together with others to operate a node and mine digital commodities.

Mining Pool, which involves miners combining their computational resources with other miners to increase their chances of successfully validating transactions and mining new blocks on the PoW Network. Reward payments may flow from the PoW Network directly to the miners or indirectly to them through the pool operator.

Protocol Mining Activities, in the manner and under the circumstances described in this release, do not involve the offer and sale of a security within the meaning of section 2(a)(1) of the Securities Act and section 3(a)(10) of the Exchange Act. Accordingly, participants in Protocol Mining Activities do not need to register transactions with the Commission under the Securities Act or fall within an available exemption from registration in connection with these Protocol Mining Activities.

As noted above, 104 a digital commodity itself does not constitute any of the financial instruments enumerated in the definition of “security.” Accordingly, we conduct our analysis of certain transactions involving digital commodities in the context of Protocol Mining under the Howey test.

Self (or Solo) Mining. A miner's self (or solo) mining is not undertaken with a reasonable expectation of profits to be derived from the essential managerial efforts of others. Rather, a miner contributes its own computational resources, which secure the PoW Network and enable the miner to earn rewards issued by the PoW Network in accordance with its software protocol. To earn rewards, the miner's activities must comply with the rules of the PoW Network's software protocol. By adding its computational resources to the PoW Network, the miner merely is engaging in an administrative or ministerial activity to secure the PoW Network, validate transactions and add new blocks, and receive rewards. A miner's expectation to receive rewards is not derived from any third party's essential managerial efforts upon which the PoW Network's success depends. Instead, the expected financial incentive from the PoW Network's software protocol is derived from the administrative or ministerial act of Protocol Mining performed by the miner. As such, rewards are payments to the miner in exchange for services it provides to the PoW Network rather than profits derived from the essential managerial efforts of others.

Mining Pool. Likewise, when a miner combines its computational resources with other miners to increase their chances of successfully mining new blocks on the PoW Network, the miner has no expectation of profit derived from the essential managerial efforts of others. By adding its own computational resources to a mining pool, the miner merely is engaging in an administrative or ministerial activity to secure the PoW Network, validate transactions and add new blocks, and receive rewards. In addition, any expectation of profits that the miners have is not derived from the efforts of a third party, such as a pool operator. Even when participating in a mining pool, individual miners still perform the actual mining activity by contributing their computational power to solve the cryptographic puzzles for validation of new blocks. 105 Moreover, whether a miner self (or solo) mines or mines as a member of a mining pool does not alter the nature of Protocol Mining for purposes of the Howey test. In either case, Protocol Mining, as described in this release, remains an administrative or ministerial activity. Further, a pool operator's activities in operating the mining pool using the combined computational resources of participating miners are administrative or ministerial in nature. While some of the pool operator's activities may benefit the group of miners, any such efforts are not sufficient to constitute essential managerial efforts because miners are expecting the computational resources that they provide in conjunction with other members to the mining pool to earn profits. 106 To this end, a miner does not join a mining pool based on the ability to earn profits passively from the activities of the pool operator.

PoS is a consensus mechanism used to prove that operators of nodes (“Node Operators”) participating in the PoS Network have contributed value to the PoS Network that, in some cases, can be forfeited if they act dishonestly. 107 In a PoS Network, a Node Operator must stake the PoS Network's digital commodity to be selected programmatically by the PoS Network's software protocol to validate new blocks of data to, and update the state of, the PoS Network. 108 When selected, the Node Operator serves as a “Validator.” In exchange for providing validation services, Validators earn rewards of two types: (1) newly generated digital commodities that are programmatically distributed to the Validator by the PoS Network in accordance with its software protocol; and (2) a percentage of the transaction fees, paid in digital commodities, by parties who are seeking to add their transactions to the PoS Network. 109

In PoS Networks, Node Operators must commit or “stake” digital commodities to be eligible to validate and earn rewards, which typically is effected using a smart contract. When initially staked, digital commodities are subject to a “bonding period,” which is a length of time set by the terms of the applicable PoS Network's software protocol after which the staked digital commodities become eligible to earn rewards. While staked, the digital commodities are locked up and cannot be transferred. 110 The Validator does not take possession or control of the staked digital commodities, which means that ownership and control of the staked digital commodities do not change.

Each PoS Network's software protocol contains the rules for operating and maintaining the PoS Network, including the method of selecting Validators among Node Operators. Some software protocols provide for random selection of Validators while others employ specific criteria for selecting Validators, such as the number of digital commodities staked by the Node Operators. Protocols also may contain rules intended to deter activities that are detrimental to the PoS Network's security and integrity, such as validating invalid blocks or double signing (which occurs when a Validator attempts to add the same transaction to the PoS Network multiple times, effectively spending the same crypto assets more than once). 111

In this final rule, the Drug Enforcement Administration (DEA) permanently schedules 3-methoxyphencyclidine (1-(1-(3-methoxyphenyl)cyclohexyl)piperidine; 3-MeO-PCP) in schedule I of the Controlled Substances Act (CSA), including its salts, isomers, and salts of isomers whenever the existence of such salts, isomers, and salts of isomers is possible within the specific chemical designation.

The United States is a party to the 1971 United Nations Convention on Psychotropic Substances (1971 Convention), Feb. 21, 1971, 32 U.S.T. 543, 1019 U.N.T.S. 175, as amended. Procedures respecting changes in drug schedules under the 1971 Convention are governed domestically by 21 U.S.C. 811(d)(2)-(4). When the United States receives notification of a scheduling decision pursuant to Article 2 of the 1971 Convention indicating that a drug or other substance has been added to a schedule specified in the notification, the Secretary of Health and Human Services (Secretary), 1 after consultation with the Attorney General, shall first determine whether existing legal controls under subchapter I of the CSA and the Federal Food, Drug, and Cosmetic Act meet the requirements of the schedule specified in the notification with respect to the specific drug or substance. 2 In the event that the Secretary did not so consult with the Attorney General, and the Attorney General did not issue a temporary order, as provided under 21 U.S.C. 811(d)(4), the procedures for permanent scheduling set forth in 21 U.S.C. 811(a) and (b) control.

Pursuant to 21 U.S.C. 811(a)(1) and (2), the Attorney General (as delegated to the Administrator of DEA pursuant to 28 CFR 0.100) may, by rule, and upon the recommendation of the Secretary, add to such a schedule or transfer between such schedules any drug or other substance, if she finds that such drug or other substance has a potential for abuse, and makes with respect to such drug or other substance the findings prescribed by 21 U.S.C. 812(b) for the schedule in which such drug or other substance is to be placed.

3-MeO-PCP is an arylcyclohexylamine that has been identified in the United States' illicit drug market. It is a 3-methoxy derivative of phencyclidine (PCP; schedule II substance) and produces similar hallucinogenic effects as PCP. 3-MeO-PCP has no approved medical use in the United States.

On June 10, 2021, the Secretary-General of the United Nations advised the Secretary of State of the United States that the Commission on Narcotic Drugs (CND), during its 64th Session in April 2021, voted to place 3-MeO-PCP in Schedule II of the 1971 Convention (CND Decision 64/4). As a signatory to the 1971 Convention, the United States is required, by scheduling under the CSA, to place appropriate controls on 3-MeO-PCP to meet the minimum requirements of the treaty.

Because the procedures in 21 U.S.C. 811(d)(3) and (4) for consultation and issuance of a temporary order for 3-MeO-PCP, discussed in the above legal authority section, were not followed, DEA is utilizing the procedures for permanent scheduling set forth in 21 U.S.C. 811(a) and (b) to control 3-MeO-PCP. Such scheduling would satisfy the United States' international obligations.

In a letter dated November 15, 2022, in accordance with 21 U.S.C. 811(b), and in response to DEA's October 25, 2021, request, the Department of Health and Human Services (HHS) provided to DEA a scientific and medical evaluation and scheduling recommendation for 3-MeO-PCP. DEA reviewed the scientific and medical evaluation and scheduling recommendation for schedule I placement provided by HHS, and all other relevant data, pursuant to 21 U.S.C. 811(b) and (c), and conducted its own analysis under the eight factors stipulated in 21 U.S.C. 811(c). DEA found, under 21 U.S.C. 812(b)(1), that this substance warrants control in schedule I. Both DEA's and HHS' Eight-Factor analyses are available in their entirety under the tab Supporting Documents of the public docket for this action at https://www.regulations.gov under docket number DEA-1146.

On June 10, 2025, DEA published a notice of proposed rulemaking (NPRM) to permanently control 3-MeO-PCP in schedule I. 3 Specifically, DEA proposed to add 3-MeO-PCP to the list of hallucinogenic substances under 21 CFR 1308.11(d). The NPRM provided an opportunity for interested persons to file a request for hearing in accordance with DEA's regulations on or before July 10, 2025. DEA did not receive any requests for such a hearing. The NPRM also provided an opportunity for interested persons to submit comments on or before July 10, 2025.

DEA received one anonymous comment in response to the NPRM for the placement of 3-MeO-PCP into schedule I of the CSA. The commenter asserted that the recreational use of 3-MeO-PCP was “very small” and that the current “primary use seems to be for legitimate research.” The commenter suggested that DEA should wait until there is more information and research into the potential medical use before making the determination for placement into schedule I.

DEA Response: DEA appreciates this comment and would like to provide further clarification regarding the control of 3-MeO-PCP. 3-MeO-PCP has been placed under international control. In order to comply with treaty obligations, DEA must place 3-MeO-PCP under the most appropriate schedule, taking into consideration all appropriate scientific data. Additionally, as set forth in the NPRM, 3-MeO-PCP has no currently accepted medical use in treatment in the United States. Therefore, 3-MeO-PCP must be placed in schedule I of the CSA along with other substances which have no currently accepted medical use, lack accepted safety for use under medical supervision, and possess a high potential for abuse. With respect to research for potential medical use, the placement of substances in schedule I of the CSA does not preclude research on these substances. 4 Those wishing to conduct research on schedule I substances must comply with the processes and requirements for registration with DEA involving schedule I substances. 5

After consideration of the public comment, the scientific and medical evaluation and accompanying scheduling recommendations from HHS, and its own eight-factor evaluation, DEA finds that these facts and all relevant data constitute substantial evidence of potential for abuse of 3-MeO-PCP. As such, DEA is permanently scheduling 3-MeO-PCP as a controlled substance under schedule I of the CSA. The permanent scheduling of 3-MeO-PCP fulfills the United States' obligations as a party to the 1971 Convention.

The CSA establishes five schedules of controlled substances known as schedules I, II, III, IV, and V. The CSA also outlines the findings required to place a drug or other substance in any particular schedule, per 21 U.S.C. 812(b). After consideration of the analysis and recommendation of the then-Assistant Secretary for Health of HHS and review of all other available data, the Administrator of DEA, pursuant to 21 U.S.C. 812(b)(1), finds that:

(1) 3-MeO-PCP has a high potential for abuse that is comparable to other controlled substances, such as the ethylamine analog of phencyclidine (PCE; schedule I), the thiophene analog of phencyclidine (TCP; schedule I), phencyclidine (PCP, schedule II), and ketamine (schedule III). 3-MeO-PCP, similar to PCP and ketamine, produces dissociative anesthetic and hallucinogenic effects.

(2) 3-MeO-PCP has no currently accepted medical use in treatment in the United States. In HHS' 2022 recommendation to control 3-MeO-PCP, it was noted there are no approved New Drug Applications for 3-MeO-PCP and no known therapeutic applications for 3-MeO-PCP in the United States. DEA is not aware of any other evidence suggesting that 3-MeO-PCP has a currently accepted medical use in treatment in the United States. 6

(3) There is a lack of accepted safety for use of 3-MeO-PCP under medical supervision. Because 3-MeO-PCP has no approved medical use and has not been investigated as a new drug, its safety for use under medical supervision has not been determined.

Based on these findings, the Administrator of DEA concludes that 3-MeO-PCP, as well as its salts, isomers, and salts of isomers whenever the existence of such salts, isomers, and salts of isomers is possible, warrants control in schedule I of the CSA.

3-MeO-PCP is subject to the CSA's schedule I regulatory controls and administrative, civil, and criminal sanctions applicable to the manufacture, distribution, reverse distribution, import, export, engagement in research, conduct instructional activities or chemical analysis with, and possession of, schedule I controlled substances, including the following:

1. Registration. Any person who handles (manufactures, distributes, reverse distributes, imports, exports, engages in research, or conducts instructional activities or chemical analysis with, or possesses), or who desires to handle, 3-MeO-PCP must register with DEA to conduct such activities pursuant to 21 U.S.C. 822, 823, 957, and 958, and in accordance with 21 CFR parts 1301 and 1312. Any person who currently handles 3-MeO-PCP and is not registered with DEA must submit an application for registration and may not continue to handle 3-MeO-PCP, unless DEA has approved that application for registration pursuant to 21 U.S.C. 822, 823, 957, 958, and in accordance with 21 CFR parts 1301 and 1312. Retail sales of schedule I controlled substances to the general public are not allowed under the CSA. Possession of any quantity in a manner not authorized by the CSA is unlawful and those in possession of any quantity may be subject to prosecution pursuant to the CSA.

2. Disposal of Stocks. Any person unwilling or unable to obtain a schedule I registration must surrender or transfer all quantities of currently held 3-MeO-PCP to a person registered with DEA before the effective date of the final scheduling action in accordance with all applicable Federal, State, local, and Tribal laws. 3-MeO-PCP must be disposed of in accordance with 21 CFR part 1317, in addition to all other applicable Federal, State, local, and Tribal laws.

3. Security. 3-MeO-PCP is subject to schedule I security requirements and must be handled and stored pursuant to 21 U.S.C. 823, and in accordance with 21 CFR 1301.71-1301.76, as of the effective date of this final scheduling action. Non-practitioners handling 3-MeO-PCP must comply with the employee screening requirements of 21 CFR 1301.90-1301.93.

4. Labeling and Packaging. All labels, labeling, and packaging for commercial containers of 3-MeO-PCP must comply with 21 U.S.C. 825 and be in accordance with 21 CFR part 1302.

5. Quota. Generally, only registered manufacturers are permitted to manufacture 3-MeO-PCP in accordance with a quota assigned pursuant to 21 U.S.C. 826, and in accordance with 21 CFR part 1303.

6. Inventory. Every DEA registrant who possesses any quantity of 3-MeO-PCP must take an inventory of 3-MeO-PCP on hand, pursuant to 21 U.S.C. 827 and in accordance with 21 CFR 1304.03, 1304.04, and 1304.11(a) and (d).

Any person who registers with DEA must take an initial inventory of all stocks of controlled substances (including 3-MeO-PCP) on hand on the date the registrant first engages in the handling of controlled substances, pursuant to 21 U.S.C. 827 and in accordance with 21 CFR 1304.03, 1304.04, and 1304.11(a) and (b).

After the initial inventory, every DEA registrant must take an inventory of all controlled substances (including 3-MeO-PCP) on hand every two years, pursuant to 21 U.S.C. 827 and in accordance with 21 CFR 1304.03, 1304.04, and 1304.11.

7. Records and Reports. Every DEA registrant must maintain records and submit reports for 3-MeO-PCP, or products containing 3-MeO-PCP, pursuant to 21 U.S.C. 827 and in accordance with 21 CFR 1301.74(b) and (c), 1301.76(b), and parts 1304, 1312 and 1317. Manufacturers and distributors must submit reports regarding 3-MeO-PCP to the Automation of Reports and Consolidated Orders System pursuant to 21 U.S.C. 827 and in accordance with 21 CFR parts 1304 and 1312.

8. Order Forms. Every DEA registrant who distributes 3-MeO-PCP must comply with the order form requirements, pursuant to 21 U.S.C. 828 and 21 CFR part 1305.

9. Importation and Exportation. All importation and exportation of 3-MeO-PCP must comply with 21 U.S.C. 952, 953, 957, and 958, and in accordance with 21 CFR parts 1304 and 1312.

10. Liability. Any activity involving 3-MeO-PCP not authorized by, or in violation of, the CSA or its implementing regulations, is unlawful, and may subject the person to administrative, civil, and/or criminal sanctions.

In accordance with 21 U.S.C. 811(a), this final scheduling action is subject to formal rulemaking procedures performed “on the record after opportunity for a hearing,” which are conducted pursuant to the provisions of 5 U.S.C. 556 and 557. The CSA sets forth the procedures and criteria for scheduling a drug or other substance. Such actions are exempt from review by the Office of Management and Budget (OMB) pursuant to section 3(d)(1) of Executive Order (E.O.) 12866 and the principles reaffirmed in E.O. 13563. DEA scheduling actions are not subject to either E.O. 14192, Unleashing Prosperity Through Deregulation, or E.O. 14294, Overcriminalization of Federal Regulations.

This regulation meets the applicable standards set forth in sections 3(a) and 3(b)(2) of E.O. 12988 to eliminate drafting errors and ambiguity, provide a clear legal standard for affected conduct, and promote simplification and burden reduction.

This rulemaking does not have federalism implications warranting the application of E.O. 13132. The rule does not have 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.

This rule does not have Tribal implications warranting the application of E.O. 13175. It does not have substantial direct effects 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.

The Administrator of DEA, in accordance with the Regulatory Flexibility Act, 5 U.S.C. 601 through 612, has reviewed this final rule, and by approving it, certifies that it will not have a significant economic impact on a substantial number of small entities.

DEA is placing the substance 3-MeO-PCP (chemical name: 1-(1-(3-methoxyphenyl)cyclohexyl)piperidine), including its salts, isomers, and salts of isomers, in schedule I of the CSA to enable the United States to meet its obligations under the 1971 Convention. This action imposes the regulatory controls and administrative, civil, and criminal sanctions applicable to schedule I controlled substances on persons who handle (manufacture, distribute, reverse distribute, import, export, engage in research, conduct instructional activities or chemical analysis with, or possess) or propose to handle 3-MeO-PCP.

Based on the review of HHS' scientific and medical evaluation and all other relevant data, DEA determined that 3-MeO-PCP has high potential for abuse, has no currently accepted medical use in treatment in the United States, and lacks accepted safety for use under medical supervision. There appear to be no legitimate sources for 3-MeO-PCP as a marketed drug in the United States, but DEA notes that this substance is available for purchase from legitimate suppliers for scientific research. There is no evidence of significant diversion of 3-MeO-PCP from legitimate suppliers. Therefore, this final rule will not have a significant economic impact on a substantial number of small entities.

This rule does not impose a new collection or modify an existing collection of information requirement under the Paperwork Reduction Act of 1995. 7 This action does not impose new or modify existing recordkeeping or reporting requirements on State or local governments, individuals, businesses, or organizations. However, this rule requires compliance with the following existing OMB collections: 1117-0003, 1117-0004, 1117-0006, 1117-0008, 1117-0009, 1117-0010, 1117-0012, 1117-0014, 1117-0021, 1117-0023, 1117-0029, and 1117-0056. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.

In accordance with the Unfunded Mandates Reform Act (UMRA) of 1995, 2 U.S.C. 1532, DEA has determined that this action would not result in any Federal mandate that may result “in the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any 1 year . . . .” Therefore, neither a Small Government Agency Plan nor any other action is required under UMRA of 1995.

The Office of Information and Regulatory Affairs has determined that this rule is not a major rule as defined by the Congressional Review Act (CRA), 5 U.S.C. 804. However, pursuant to the CRA, DEA is submitting a copy of this rule to both Houses of Congress and to the Comptroller General.

For the reasons set out above, DEA proposes to amend 21 CFR part 1308 as follows:

The Labor-Management Reporting and Disclosure Act of 1959 (LMRDA), 29 U.S.C. 401 et seq., mandates specific reporting and disclosure requirements for labor organizations, their officers and employees, employers, labor relations consultants, and surety companies. Under Section 202 of the LMRDA, 29 U.S.C. 432, every officer or employee of a labor organization, or whose spouse or “minor child,” directly or indirectly holds any interest, or derives income or benefit from certain employers or businesses dealing with the labor organization, is required to file a disclosure report with the Secretary of Labor. The Secretary of Labor has the authority to prescribe the form for these financial disclosure reports. 29 U.S.C. 438.

The U.S. Department of Labor (Department), Office of Labor-Management Standards (OLMS), uses the Form LM-30 Labor Organization Officer and Employee Report to address actual or potential conflicts of interest involving union officials' personal financial interests, as well as those of their spouse or “minor child,” and their labor organization. In 2007, OLMS defined “minor child” as a “son, daughter, stepson, or stepdaughter under 21 years of age”. This definition aimed to provide a uniform, nationwide standard, noting that 21 was the age of majority in most states at the time of the LMRDA's passage. See generally 72 FR 36106. In light of the statutory silence on the age at which a child reaches majority, OLMS reasoned that age 21 was sensible because there needed to be a uniform, nationwide definition that Form LM-30 filers, union members, and the public could easily ascertain, and that 21 was already the age of majority in most states at the time of LMRDA passage. See Labor Organization Office and Employee Report, Form LM-30, 72 FR 36145 (July 2, 2007).

On July 1, 2025, the Department published a Notice of Proposed Rulemaking (“NPRM”) seeking public comment on amending its regulations to redefine “minor child” as a son, daughter, stepson, or stepdaughter under the age of 18. See Minor Child Definition for Form LM-30 Labor Organization Officer and Employee Report, 90 FR 28255 (July 1, 2025).

After reviewing the one and only comment received in response to the July 1, 2025 NPRM, the Department is now issuing a final rule that implements the proposed rule. This revision aligns the Form LM-30 reporting requirements with current legal norms, where individuals aged 18 and older are generally considered capable of managing their own financial affairs and are legally responsible for their actions. In various areas of the law, such as voting, entering into contracts, and military service, adulthood typically begins at age 18. Currently, 47 states and Washington, DC, recognize 18 as the age of majority, with only Alabama and Nebraska at age 19, and Mississippi at age 21. 1

As the one public comment received on the proposed rule explicitly stated, “[t]his proposal to redefine a minor child as an individual `under 18 years of age' is based on sound reasoning. It correctly aligns the LMRDA's reporting requirements with the legal age of majority now established in 47 states and Washington, DC. This change creates a more consistent, modern, and common-sense standard for filers nationwide.”

Additionally, this change has potential to reduce administrative burdens on filers. Requiring disclosure of financial interests or transactions for children or stepchildren aged 18 to 20 imposed unnecessary administrative burdens without significantly enhancing transparency or the detection of conflicts of interest, especially since union officials lack legal control over the financial affairs of their adult children. This amended definition maintains the essential conflict-of-interest disclosure requirements while alleviating an undue burden. In practice, this means filers are no longer required to obtain, review, or disclose information about the financial interests, gifts, employment relationships, or business transactions of children or stepchildren aged 18 through 20 who are legally adults, nor to collect supporting documentation for those disclosures.

Finally, the Department has made a technical correction on page 6 of the Form LM-30 Instructions, in Item 7, removing outdated references to the “How to Provide Additional Information” section, as this instruction is no longer necessary for completing the form.

The Department has reviewed this final rule under various executive orders and acts, concluding the following:

Executive Order (E.O.) 12866, “Regulatory Planning and Review,” 58 FR 51735 (Oct. 4, 1993), requires agencies, to the extent permitted by law, to (1) propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs (recognizing that some benefits and costs are difficult to quantify); (2) tailor regulations to impose the least burden on society, consistent with obtaining regulatory objectives, taking into account, among other things, and to the extent practicable, the costs of cumulative regulations; (3) select, in choosing among alternative regulatory approaches, those approaches that maximize net benefits; (4) to the extent feasible, specify performance objectives, rather than specifying the behavior or manner of compliance that regulated entities must adopt; and (5) identify and assess available alternatives to direct regulation, including providing economic incentives to encourage the desired behavior, such as user fees or marketable permits, or providing information upon which choices can be made by the public. Section 6(a) of E.O. 12866 also requires agencies to submit “significant regulatory actions” to OIRA for review.

OIRA has determined that this final rule does not constitute a “significant regulatory action” under section 3(f) of E.O. 12866, as it reduces reporting and recordkeeping burden for filers and potential filers. Accordingly, this rule was not submitted to OIRA for review under E.O. 12866.

By revising the definition of “minor child” to align with the widely accepted age of majority, the rule is designed to reduce unnecessary administrative burdens on filers while maintaining the integrity and purpose of the Labor-Management Reporting and Disclosure Act's (LMRDA) disclosure requirements. The Department views the benefits of reducing unnecessary burden on filers as justifying the non-existent costs associated with this change.

The Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) requires preparation of an initial regulatory flexibility analysis (IRFA) and a final regulatory flexibility analysis (FRFA) for any rule that by law must be proposed for public comment, unless the agency certifies that the rule, if promulgated, will not have a significant economic impact on a substantial number of small entities.

The Department conducted a review under the provisions of the Regulatory Flexibility Act (RFA). This rule will eliminate burdensome regulations; therefore, the Department concluded that the impacts of this final rule will not have a “significant economic impact on a substantial number of small entities.” E.O. 13272, “Proper Consideration of Small Entities in Agency Rulemaking,” 67 FR 53461 (Aug. 16, 2002). A “significant economic impact” is generally defined as affecting costs or revenues by more than three percent annually, and a “substantial number” of small entities is typically considered 20 percent.

Because this rule reduces burden rather than imposing new requirements, the preparation of an initial regulatory flexibility analysis (IRFA) or a final regulatory flexibility analysis (FRFA) was not warranted. The Department will transmit this certification, along with a supporting statement of factual basis, to the Chief Counsel for Advocacy of the Small Business Administration for review under 5 U.S.C. 605(b).

This final rule imposes no new information or recordkeeping requirements. The Department does not anticipate any changes to the number of respondents or reporting or recordkeeping hours. An Information Collection Request (ICR) revision package will be submitted to the Office of Management and Budget (OMB) for approval to update the Form LM-30 Instructions. The OMB Control Number for Labor Organization and Auxiliary Reports is 1245-0003.

E.O. 13132, “Federalism,” 64 FR 43255 (August 10, 1999), imposes certain requirements on Federal agencies formulating and implementing policies or regulations that preempt State law or that have federalism implications. The Executive order requires agencies to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and to carefully assess the necessity for such actions. The Executive order also requires agencies to have an accountable process to ensure meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.

The Department has determined that this rule will 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.

With respect to the review of existing regulations and the promulgation of new regulations, section 3(a) of E.O. 12988, “Civil Justice Reform,” imposes on Federal agencies the general duty to adhere to the following requirements: (1) eliminate drafting errors and ambiguity, (2) write regulations to minimize litigation, (3) provide a clear legal standard for affected conduct rather than a general standard, and (4) promote simplification and burden reduction. 61 FR 4729 (Feb. 7, 1996). Regarding the review required by section 3(a), section 3(b) of E.O. 12988 specifically requires that Executive agencies make every reasonable effort to ensure that the regulation: (1) clearly specifies the preemptive effect, if any, (2) clearly specifies any effect on existing Federal law or regulation, (3) provides a clear legal standard for affected conduct while promoting simplification and burden reduction, (4) specifies the retroactive effect, if any, (5) adequately defines key terms, and (6) addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. Section 3(c) of E.O. 12988 requires Executive agencies to review regulations in light of applicable standards in section 3(a) and section 3(b) to determine whether they are met or it is unreasonable to meet one or more of them.

The Department has completed the required review under E.O. 12988 and has determined that, to the extent permitted by law, this final rule meets the relevant standards of E.O. 12988, which include eliminating drafting errors and ambiguity, minimizing litigation, providing a clear legal standard, promoting simplification and burden reduction, and adequately defining key terms.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) requires each Federal agency to assess the effects of Federal regulatory actions on State, local, and Tribal governments and the private sector. Public Law 104-4, sec. 201 (codified at 2 U.S.C. 1531). For a regulatory action likely to result in a rule that may cause the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector of $100 million or more in any one year (adjusted annually for inflation), section 202 of UMRA requires a Federal agency to publish a written statement that estimates the resulting costs, benefits, and other effects on the national economy. 2 U.S.C. 1532(a), (b)). The UMRA also requires a Federal agency to develop an effective process to permit timely input by elected officers of State, local, and Tribal governments on a “significant Federal intergovernmental mandate,” and requires an agency plan for giving notice and opportunity for timely input to potentially affected small governments before establishing any requirements that might significantly or uniquely affect them. 2 U.S.C. 1534(a).

The Department examined this final rule according to UMRA and its statement of policy. It determined that the final rule does not contain a Federal intergovernmental mandate. Furthermore, it is not expected to require expenditures of $100 million or more in any one year by State, local, and Tribal governments, in the aggregate, or by the private sector. As a result, the analytical requirements of UMRA do not apply.

Section 654 of the Treasury and General Government Appropriations Act, 1999, requires Federal agencies to issue a Family Policymaking Assessment for any rule that may affect family well-being. This final rule will not have any impact on the autonomy or integrity of the family as an institution. Accordingly, the Department concluded that it is not necessary to prepare a Family Policymaking Assessment.

Pursuant to E.O. 12630, the Department has determined that this final rule will not result in any takings that might require compensation under the Fifth Amendment to the U.S. Constitution.

Section 515 of the Treasury and General Government Appropriations Act, 2001, provides for Federal agencies to review most disseminations of information to the public under information quality guidelines established by each agency pursuant to general guidelines issued by OMB. OMB's guidelines were published at 67 FR 8452 (Feb. 22, 2002). The Department has reviewed this final rule under the OMB guidance and has concluded that it is consistent with applicable policies in those guidelines.

The Department has examined this final rule and determined that it is consistent with the policies and directives outlined in E.O. 14154, “Unleashing American Energy,” E.O. 14192, “Unleashing Prosperity Through Deregulation,” and the Presidential Memorandum, “Delivering Emergency Price Relief for American Families and Defeating the Cost-of-Living Crisis.” This rule is specifically expected to be an E.O. 14192 deregulatory action.

For the reasons set forth in the preamble, the Department amends part 404 of chapter IV of title 29 of the Code of Federal Regulations, as set forth below:

Throughout this document “we,” “us,” and “our” means the EPA.

The background for this action is discussed in detail in (1) our proposed rule published on March 10, 2021 (86 FR 13679) to approve revisions to the Texas SIP for VOC and NO X RACT submitted by Texas on May 13, 2020; (2) our July 24, 2025, supplemental proposal (90 FR 34790) for the VOC portion; and (3) our September 5, 2025, supplemental proposal (90 FR 42887) for the NO X portion.

In this final action, we are approving the May 13, 2020, revisions to the Texas SIP as meeting the 2008 8-hour ozone Serious classification RACT level control requirements consistent with section 172(c)(1) and 182 of the CAA for the HGB NAA, with the exception of the requirement to implement RACT for sources subject to the 2016 Oil and Natural Gas Industry Control Techniques Guidelines (CTG) because the EPA has already taken final action via a different rulemaking process to approve those SIP revisions. 1 This action also approves the CTG RACT negative declarations made by Texas in its May 13, 2020, SIP revisions for fiberglass boat manufacturing materials, manufacturing of pneumatic rubber tires, flat wood paneling coatings, letterpress printing, and automobile and light-duty truck assembly coatings sectors in the HGB area. Texas stated in its May 13, 2020, submittal that it did not locate any major sources subject to the NO X Emissions from Cement Manufacturing Alternative Control Techniques (ACT) document. 2

Following the EPA's March 2021 rulemaking proposing approval of the May 2020 SIP revision, the EPA received comments from Air Alliance Houston, Earthjustice, Sierra Club, Texas Environmental Justice Advocacy Services (“t.e.j.a.s.”), and Harris County. The comments are available in the docket for this rulemaking. Our responses to all relevant comments follow this section.

Because of the comments the EPA received on the March 2021 proposal, the EPA provided additional analysis in our Technical Support Documents (TSDs) associated with our July and September 2025 supplemental proposals (referred to as the “supplemental proposals”, “supplemental NO X TSD”, “supplemental VOC TSD”, or “supplemental TSDs”). Our supplemental NO X TSD analysis in table 1 (pages 5-20) lists Chapter 117 Emissions Specifications for Attainment Demonstration (ESAD) rates for each category of sources in the HGB NAA. We gathered and analyzed relevant information, including comments received during the 2021 comment period, Texas' rulemaking record which contained information on specific control technologies and technical and economic feasibility for the ESAD rates, Texas Register documents which included Texas' response to comments on the rulemaking, and recent documents issued by EPA (such as the 2017 OTC Draft White Paper on Control Technologies, OTC State Regulations from Eight Source Categories, 2019 OTC State Regulations from Eight Source Categories, and 2019 OTC Regulatory and Technical Guideline for Control of Nitrogen Oxides (NO X ) Emissions from Natural Gas Pipeline Compressor Fuel‐Fired Prime Movers). In our 2025 supplemental VOC TSD, the EPA performed an additional evaluation of Texas' VOC RACT which considered relevant information including comparing Texas' CTGs and non-CTG categorical RACT rules to other relevant state rules, and review of EPA's RACT/BACT/LAER Clearinghouse (RBLC), NSPS, MACT standards, and NESHAPs, where applicable (see Supplemental VOC TSD, pages 2-50). Consistent with this analysis, we proposed to determine that Texas' EPA-previously-approved Chapter 115 and 117 rules still fulfill the RACT level of control requirements for sources of VOC and NO X in the HGB Serious ozone nonattainment area for the purpose of the 2008 ozone NAAQS. The supplemental VOC and NO X TSDs that accompanied the supplemental proposals are provided in the docket. 3

EPA received no substantive technical comments on VOC or NO X RACT on the supplemental proposals or supplemental TSDs supporting EPA's proposed approval during the public comment period. Comments were received from Texas (which were mainly corrections and clarifications for the record) and two anonymous commenters.

In this final action, we are responding to comments received on the 2021 proposal, even though those comments are not reflective of EPA's supplemental proposals or the supplemental TSDs. Our additional analysis found in the supplemental proposals and supplemental TSDs was conducted, in part, in response to the adverse comments we received in 2021. We note that we did not receive any adverse comments on the 2025 supplemental proposals or supplemental TSDs. We have also responded to Texas' comments and non-substantive technical comments received on the supplemental proposals and supplemental TSDs; the comments are available in the docket for this action.

We received comments from five entities on the 2021 proposed rulemaking and comments from three entities on the supplemental proposals.

Comment: Several commenters asserted that unhealthy air impacts residents of the HGB NAA, especially those in environmental justice communities. Commenters urged the EPA to bring relief to communities across the state that suffer a disproportionate impact from violations to federal (CAA) and state regulations.

Response: First, the EPA notes that Executive Order 14148, “Initial Rescission of Harmful Executive Orders and Actions” (90 FR 8237, January 28, 2025), revoked certain past Executive Orders that specifically addressed environmental justice concerns, including Executive Order 12898 and Executive Order 14094. Further, under section 110(k)(3) of the CAA, the EPA is required to approve a SIP submission that complies with the provisions of the CAA. The EPA has determined that the RACT SIP submittals at issue in this action do meet all applicable requirements of the CAA, and therefore the EPA is finalizing approval of the relevant SIP revisions. Implementation of RACT is designed to assist with improving air quality in the nonattainment area. To the extent commenters are raising concerns about violations of the CAA and/or state regulations, those concerns are outside the scope of this action which is only evaluating the approvability of the identified RACT SIP revisions.

Comment: The EPA received several comments regarding the adverse health impacts of ozone on Houston residents.

Response: We agree that excessive ozone pollution is a significant health issue in the HGB area, but we also recognize that significant progress has been made in reducing ozone levels in the area. We recognize that further improvement is necessary in the area to meet the current ozone NAAQS and protect public health. The HGB area was designated as nonattainment for the 1-hour and the 1997 8-hour revoked ozone NAAQS and is now designated as nonattainment for the two current (2008 and 2015) 8-hour ozone NAAQS. 4 As a result, the State and HGB NAA—including local governments, business and industry—have implemented measures to reduce emissions of NO X and VOC that form ozone. A list of permanent and enforceable measures that have been implemented in the HGB NAA under the 1-hour and the 1997 8-hour revoked ozone NAAQS may be found in 40 CFR 52.2270. 5 The HGB NAA was recently reclassified as a Severe nonattainment area for the 2008 ozone NAAQS, and therefore, the State is required to submit SIP revisions and implement controls to satisfy the statutory and regulatory requirements for a Severe area for the 2008 ozone NAAQS. 6 Further, implementation of RACT is designed to assist with improving air quality in the nonattainment area. This action, which is finalizing the EPA's approval of RACT SIP amendments to fulfill CAA ozone nonattainment plan requirements, demonstrates that the State and the EPA continue to work together to address air quality concerns in the HGB nonattainment area.

Comment: In 2021, commenters claimed that the EPA's CTGs and ACTs are outdated as guidance documents for RACT, and that the contents of the Texas rules and the CTG/ACT documents— i.e., the numerical emissions requirements, control efficiency requirements, or work practices—do not reflect current levels of performance. The commenters also claim that many of Texas' VOC rules, and all of the Texas' 30 TAC Chapter 117 rules dealing with NO X are also outdated.

Commenters further claimed in 2021 that approving Texas' RACT SIP would be unlawful and arbitrary because Texas failed to meet its statutory requirements under the Clean Air Act because it did not evaluate additional measures that could reduce emissions in the HGB area and relied on its existing controls. Commenters claimed that the EPA's 2021 proposal to approve Texas' RACT SIP is unlawful, and contrary to the EPA's own rule on implementing the 2008 ozone NAAQS and case law. The commenters claim that, based on case law and the EPA's statutory authority, the EPA must “adequately explain” its RACT determinations, including explaining decisions that are contradictory to information in the record.

Response: As stated in EPA's March 2021 proposal, EPA previously approved Texas' NO X and VOC RACT limits and analysis for HGB's Severe area RACT requirements under the 1997 8-hour ozone NAAQS. 7 The EPA acknowledges that over time, control strategies/technologies may result in a change in what represents RACT for a particular category of emissions sources. In response to this concern raised by comments on the March 2021 proposal, the EPA provided additional analysis, explained above, in our 2025 supplemental proposals and supplemental NO X and VOC TSDs. As noted above, in 2025, during the public comment period for the supplemental proposals and supplemental TSDs, EPA received no adverse comments on the content or quality of our analysis or conclusions.

In 2021, EPA received comments that highlighted several specific control technologies for RACT implementation to reduce NO X and VOC emissions. Those specific comments are addressed in detail further below. In this general comment, commenters did not present any new technologies or any specific RACT limits for any category of sources.

Comment: In 2021, several comments were received on disapproving or “pulling” Texas' RACM.

Response: EPA did not propose approval of Texas' RACM in 2021 nor in the 2025 supplemental proposals. RACM is outside the scope of this action.

In 2021, the EPA received several comments related to Texas' failure to attain by its attainment date and CAA requirements related to a failure to attain. The comments claim the following:

• Since the state failed to meet its attainment deadlines, additional controls are needed but the state's submission would keep the same RACT determinations used for the 1997 8-hour ozone NAAQS;

• Texas claims that “additional control measures are not necessary for the area to demonstrate attainment by the attainment date”;

• The CAA does not restrict RACT requirements only for when a state deems them necessary; it mandates RACT when an area fails an attainment deadline, and the technology meets certain criteria;

• To remedy its failure to meet its attainment deadlines, Texas is statutorily required to implement RACT-level controls on existing sources in this nonattainment area.

• Texas has not updated its RACT rules to require more stringent measures to reduce NO X and VOC emissions in the HGB NAA;

• When areas fail to meet deadlines, the Act requires enhanced air pollution abatement measures so that the area can meet its next deadline. The HGB area failed to meet a deadline and Texas must implement enhanced control technologies.

Response: Comments on failure to attain by the attainment date are beyond the scope of this final action. The fact that the HGB NAA failed to attain the NAAQS is not relevant to the question of whether the RACT SIP revisions at issue here comport with the CAA. In this action, the EPA is approving the Serious area RACT requirements for the HGB NAA under the 2008 standard. The TSDs for the supplemental proposals detail our review of relevant information, including comments submitted to the EPA, to support our determination that the Texas Chapter 115 and 117 rules fulfill RACT level control requirements for the Serious classification.

Comment: In 2021, several commenters stated Texas proposes no new RACT and did not address control technologies identified in public comment. Commenters request that the EPA require that Texas implement new and better control technologies. Commenters requested that the EPA conduct an independent analysis of RACT in the HGB area.

Response: In response to this comment on our 2021 proposed approval, EPA provided additional analysis that is outlined in the 2025 supplemental TSDs for the supplemental proposals. As explained earlier in the background section of this final action, EPA considered relevant information, including comments on control technologies received in the 2021 comment period. We do not address specific technologies in response to this broad and general comment made in 2021 but do respond in detail to 2021 comments with specificity further below.

Comment: In response to the EPA's 2021 proposal, commenters claimed that Texas failed to meet the standard outlined by the EPA that would allow the state to use its previous RACT determination. Specifically, commenters claim that the Texas final action failed to respond to comments that they received that outlined how additional controls could result in a large reduction of emissions in the HGB area. Commenters state that many of the largest sources of NO X emissions in the HGB area are associated with electric power generation. Commenters claim that Texas did not conduct any analysis of the largest NO X source, W.A. Parish station or consider additional controls for NO X and VOC at this source.

Response: EPA disagrees with commenters' claim that Texas failed to respond to comments. Texas identified comments submitted by Earthjustice on behalf of Achieving Community Tasks Successfully, Air Alliance Houston, Earthjustice, Sierra Club, and Texas Environmental Justice Advocacy Services (Earthjustice). In its response to comments document, 8 Texas responded to Earthjustice's comments on pages 2, 3, 6, 10-12, 14-17, 19-20, and 22. With respect to the specific comment on W.A. Parish station, the Earthjustice comment is on page 20, and Texas's response is on pages 21-22.

EPA disagrees with commenters 2021 characterization of a state's obligation with respect to a RACT determination. In 2015, EPA published the final SIP Requirements Rule (SRR) for implementing the 2008 8-hour ozone NAAQS (80 FR 12279, March 6, 2015). EPA described in the SRR an approach “allowing in some cases for states to conclude that sources already addressed by RACT determinations for the 1-hour and/or the 1997 ozone NAAQS do not need to implement additional controls to meet the 2008 ozone NAAQS RACT requirement” and noted that “in some cases, a new RACT determination would result in the same or similar control technology under the 1-hour or 1997 standard because fundamental control techniques, as described in the CTGs and ACTs, are still applicable.” Importantly, EPA stated that while states should refer to the existing CTGs and ACTs for purposes of informing their RACT requirements, in doing an updated assessment of RACT for the nonattainment the state should also refer to “all relevant information (including recent technical information and information received during the public comment period) that is available at the time that they are developing their RACT SIPs for the 2008 ozone NAAQS.”

As stated earlier, our 2025 supplemental proposals and supplementals TSDs detail our analysis of the ESAD rates. Specifically with respect to the W.A. Parish station, table 1, pages 17-18 of our supplemental NO X TSD, identified the relevant information considered by EPA in support of our approval, including ESAD rates, combustion control technologies, flue gas controls, and other state RACT rules for similar categories of sources. We have also responded in more detail to specific technical comments on W.A. Parish that the EPA received in 2021 elsewhere in this final action. In 2025, no comment was received on our supplemental proposals and supplemental NO X TSD for the W.A. Parish station.

Comment: In 2021, Commenters claim that a RACT determination is unlawful and arbitrary when other states have RACT requirements that are more stringent.

Response: The EPA disagrees with this general claim expressed by commenters in 2021. RACT is defined as “the lowest emission limitation that a particular source is capable of meeting by the application of control technology that is reasonably available considering technological and economic feasibility”  9 Technological and economic feasibility can be affected by many factors including, but not necessarily limited to, geographic location of the source, industry/source specific considerations, and operational considerations. There are many variables that can result in variations in RACT determinations in different nonattainment areas, and for different sources, or groups of sources. Just because RACT has been determined to be one thing for certain sources in a certain state, that does not automatically mean that RACT is always the same for similar sources in all states. The EPA has reviewed Texas' SIP submissions and rulemaking records for their analysis and RACT determination. In the EPA's 2025 supplemental proposal actions, we provided a summary of our evaluation and we received no comment on our supplemental proposals or TSDs related to the stringency of RACT in other state rules.

Comment: In 2021, commenters quote language from a decision issued by the United States Court of Appeals for the District of Columbia Circuit and assert that RACT determinations must be made and implemented quickly, even with “potentially expensive technology or expensive process changes to reduce pollution.”  10

Response: The CAA case cited by the commenters is not on point for this action. The cited case briefly mentions “reasonably available control technology” (when listing statutory language provided in the CAA), but the case does not address the EPA's review and approval of a state's RACT SIP submittal. The EPA agrees in general with the concepts that the state “must reach attainment as expeditiously as possible”, that the EPA “may extend the attainment date to the extent [it] determines appropriate”, 11 and that implementing control technology to meet CAA requirements may be potentially expensive. This final action does not conflict with the caselaw cited by commenters, nor does this caselaw speak directly to the issue of whether the RACT SIP revisions at issue in this action ought to be approved.

Comment: In 2021, commenters suggested a RACT framework that could: “(a) identify the NO X rates for each such large source; (b) identify the current NO X controls if any (such as: low NO X burners, ultra-low NO X burners, flue gas recirculation (FGR), over-fire air, SNCR, or SCR, etc.) that each source has; (c) identify, based on (a) and (b), the additional NO X reductions that can be obtained if additional or higher/better types of technically feasible NO X controls could be applied; (d) determine cost-effectiveness of the additional controls.”

Response: The EPA does not consider the source-specific review methodology presented by commenters as necessary to fulfilling RACT requirements when a state is not submitting source-specific RACT in a SIP revision. The EPA's obligation under CAA sections 110(k)(2) and (3) is to evaluate and act on the SIP revisions submitted by the state. In this instance, Texas did not submit source-specific RACT determinations akin to what the commenter is suggesting. States have discretion in terms of how they wish to fulfill their RACT obligations. The EPA's role here is to evaluate and act on the SIP revisions submitted by the state. Our 2025 supplemental NO X TSD, table 1, pages 16-20 confirmed that Texas considered the same technologies as identified by the commenters for the Chapter 117 ESAD rates. In 2025, EPA did not receive any comments on technologies that Texas should have considered.

Comment: In 2021, commenters state that Texas provides little explanation as to why it rejected commenters' RACT recommendations. Commenters stated the W.A. Parish plant coal-burning units burn more efficiently than the gas-burning units. Commenters speculate that maintenance on the installed controls is the cause.

Response: This 2021 comment did not make a RACT-specific recommendation. Our 2025 supplemental NO X TSD, table 1, page 17, details our analysis of the ESAD rates for gas-fired and coal-fired utility boilers. The ESAD rates for the gas-fired utility boilers category of sources are lower than the ESAD rates for the coal-fired utility boilers category of sources. The 2025 supplemental TSD details EPA's review in support of its approval of the ESAD rates for both of these categories of sources as fulfilling RACT requirements (see Table 1, page 17). The EPA's obligation under CAA sections 110(k)(2) and (3) is to evaluate and act on the SIP revisions submitted by the state. In this instance, Texas did not submit source-specific RACT determinations for W.A. Parish. States have discretion in terms of how they wish to fulfill their RACT obligations. The EPA's role here is to evaluate and act on the SIP revisions submitted by the state.

In 2025, EPA did not receive a comment on the supplemental proposal or supplemental NO X TSD on ESAD rates for gas-fired or coal-fired utility boiler units.

Comment: In 2021, commenters identified several available control technologies and claimed that Texas did not adequately analyze them. For boilers and furnaces, commenters identify ultra-low NO X burners, flue gas recirculation, selective non-catalytic reduction, and selective catalytic reduction. For turbines, commenters identify dry low NO X combustors followed by SCR. Commenters also state that Texas did not address maintenance and efficiency of installed controls, including available NO X reductions at the W.A. Parish power plant.

Response: The 2021 comment broadly categorizes “boilers, furnaces, and heaters”, but Texas regulates eight categories of boilers, six categories of furnaces, two categories of turbines, and one category of heaters. Our 2025 supplemental NO X TSD, table 1 page 5-19, contains our analysis and review for all of the different types of sources identified by the 2021 commenters. Page 4 of the 2025 supplemental NO X TSD broadly identifies Texas' “Tier I” as combustion modifications (low NO X burners, dry low NO X burners (DLN), mid kiln firing), “Tier II” (flue gas) controls ( i.e., Selective Non-catalytic Reduction (SNCR), Selective Catalytic Reduction (SCR, NO X oxidation scrubbers), and “Tier III” controls as a combination of Tier I and Tier II controls. The EPA's 2025 supplemental NO X TSD confirmed that, for the Chapter 117 ESAD rates, Texas considered the same technologies as identified by the commenters. We did not receive any technology specific comments on our 2025 supplemental proposals or supplemental NO X TSD for these categories of sources.

Comment: In 2021, commenters state that table F-4 (the last column) in appendix F of Texas' submittal shows the NO X RACT rules that apply to each source per Texas and the rules in §§ 117.300 through 117.356 apply to almost every one of these sources. Section 117.305 addresses the NO X emissions from gas-fired combustion equipment, such as boilers and heaters burning natural gas, expressed in lb/MMBtu of heat input to such devices. Commenters claim that the requirements of § 117.305 for gas-fired combustion equipment are outdated and are not consistent with current RACT. Thus, EPA's approval of § 117.305 in its current form is improper because it does not represent current RACT.

Response: The EPA agrees that table F-4 lists the Chapter 117 rules applicable to NO X major sources and that list includes section 117.305. However, § 117.305(g) states that the section no longer applies after the appropriate compliance date(s) for emission specifications for attainment demonstration (referred to as ESAD rates) The ESAD rates are listed in § 117.310. 30 TAC § 117.9020(2)(F) requires compliance by March 31, 2005. Therefore, § 117.305 rates no longer apply. Our 2025 supplemental proposals and supplemental TSDs detail our review of relevant information, including comments submitted to EPA, to support its determination that ESAD rates fulfill RACT requirements. We received no comments on our 2025 supplemental proposals or supplemental NO X TSD for these categories of sources.

Comment: In 2021, Commenters claim that W.A. Parish coal units, each equipped with SCR, has had a deterioration in the SCR performance, as reflected in the higher NO X rates for the recent years as compared to the NO X rates in the years immediately after SCR installation. Commenters further claim that replacing catalyst and obtaining post-SCR NO X levels that are similar to original performance is RACM and RACT.

Response: Our 2025 supplemental NO X TSD (table 1, page 17) details our review of the category of sources that include gas-fired and coal-fired utility boilers. The ESAD rates for the coal-fired utility boilers category of sources has not changed over time.

The EPA's obligation under CAA sections 110(k)(2) and (3) is to evaluate and act on the SIP revisions submitted by the state. In this instance, Texas did not submit source-specific RACT determinations for W.A. Parish. States have discretion in terms of how they wish to fulfill their RACT obligations. The EPA's role here is to evaluate and act on the SIP revisions submitted by the state.

Commenters did not present any information or analysis to support their claim that replacing the catalyst on coal-fired utility boilers equipped is RACT for this category of sources. Our 2025 supplemental NO X TSD (see pages 17-18) details EPA's review in support of its approval of the ESAD rates for this category of sources as fulfilling RACT requirements. We received no comments on our 2025 supplemental proposals or supplemental NO X TSD for these categories of sources.

Comment: In 2021, commenters claim that Texas' HGB SIP RACM and RACT analyses do not address NO X sources. Commenters claim that a RACM/RACT analysis must: (a) identify the NO X rates for each such large source; (b) identify the current NO X controls if any (such as: low NO X burners, ultra-low NO X burners, flue gas recirculation (FGR), over-fire air, SNCR, or SCR, etc.) that each such source has; (c) identify, based on (a) and (b), the additional NO X reductions that can be obtained if additional or higher/better types of technically feasible NO X controls could be applied; (d) determine cost-effectiveness of the additional controls. Typical ( i.e., installed in such units at refineries) NO X controls for boilers, furnaces, and heaters would be a combination of ultra-low NO X burners/FGR/SNCR or ultra-low NO X burners/SCR. Similarly, controls for turbines would typically be dry low NO X combustors followed by SCR.

Response: The EPA does not consider the source-specific review methodology presented by commenters as necessary to fulfilling the requirements of RACT when a state is not submitting a source-specific RACT analysis in a SIP revision. The EPA's obligation under CAA sections 110(k)(2) and (3) is to evaluate and act on the SIP revisions submitted by the state. In this instance, Texas did not submit source-specific RACT determinations akin to what the commenter is suggesting. States have discretion in terms of how they wish to fulfill their RACT obligations. The EPA's role here is to evaluate and act on the SIP revisions submitted by the state. As detailed in our 2025 supplemental NO X TSD, the EPA's review confirmed that Texas considered the same technologies identified by the commenters for the Chapter 117 ESAD rates. Commenters did not suggest any RACT limits lower than Chapter 117 ESAD rates for any category of sources.

The EPA received several comments that were not relevant to this action. Consistent with CAA section 110, a SIP is designed to address the relevant NAAQS pollutant and its precursors. Under section 110(k)(3) of the CAA, the EPA is required to approve a SIP submission that complies with the provisions of the CAA. As such, the EPA is required to review the state's RACT SIP revision to determine if it meets the RACT requirements of the CAA. RACT requirements apply to NO X and VOC, which are ozone precursors.

Comment: Commenters claim that the EPA's review does not adequately address the potential for increased carbon dioxide (CO 2 ) and other greenhouse gas (GHG) emissions and the Texas analysis provided does not appear to include an evaluation of the potential GHG impacts, and an overall environmental impact must also consider the economic costs associated with increased CO 2 emissions.

Response: Emissions and impacts associated with CO 2 and other GHG emissions are outside of the scope of this action.

Comment: Residents are impacted by the release of particulate matter from chemical manufacturing and industry and should be protected under national guidance.

Response: Particulate matter standards are outside of the scope of this action which is limited to ozone RACT.

Comment: Several comments requested better enforcement of the National Ambient Air Quality Standard.

Response: Comments regarding general enforcement of the CAA are outside of the scope of this action. Implementation of RACT is designed to assist with improving air quality in the nonattainment area. To the extent commenters are raising concerns about violations of the CAA and/or state regulations, those concerns are outside the scope of this action which is only evaluating the approvability of the identified RACT SIP revisions.

Comment: Commenters requested that the EPA implement better protective National Ambient Air Quality standards. Commenters also stated the standard must be lowered as it is not protective yet.

Response: Reviewing and determining NAAQS standards are outside the scope of this action, which is limited to review and approval of RACT SIP revisions from Texas. The EPA's process for reviewing and possibly revising the ozone NAAQS is different from this action.

Comment: The EPA has also issued a finding of failure to meet Sulfur Dioxide (SO 2 ) national standards.

Response: SO 2 standards are outside of the scope of this ozone action. RACT requirements for SO 2 standards are separately addressed in other SIP revisions that address requirements related to areas designated nonattainment under the SO 2 standards.

Comment: Commenters expressed concerns regarding Texas' ability to achieve compliance with so many industrial facilities in the HGB area. Commenters assert that the ability to achieve compliance is regarded as nearly impossible due to the discounting of enforcement penalties. Commenters identified a need for a revision to achieve compliance based on the multiple major disasters experienced by the Houston Ship Channel communities. When an evaluation is done on the enforcement calculation, this calculation demonstrates more of a focus on harm from minor sources of emissions.

Response: Commenters did not make a RACT-specific recommendation. General enforcement and penalties on specific industrial sources are outside the scope of this action.

Comment: Commentors assert that the Texas SIP for RACT should be “pulled” to see enforcement of the NAAQS.

Response: Under section 110(k)(3) of the CAA, the EPA is required to approve a SIP submission that complies with the provisions of the CAA. The EPA has determined that the RACT SIP revisions at issue here comport with the CAA and are therefore approvable.

Comment: Commenter says that the State needs pressure to make a SIP revision. A revision that could potentially offer better monitoring, accurate information and afford the ability to prevent harmful exposures to health.

Response: Under section 110(k)(3) of the CAA, the EPA is required to approve a SIP submission that complies with the provisions of the CAA. The EPA has determined that the RACT SIP revisions at issue here comport with the CAA and are therefore approvable. Increased monitoring requirements outside of RACT are outside the scope of this action.

Comment: Commenter expressed its wish that the State develop a public participation plan for SIP revisions tailored to Limited English Proficient (LEP) persons.

Response: This is beyond the scope of this action.

We received comment letters from Texas in support of our actions. Texas also requested specific corrections to the supplemental VOC and NO X TSDs.

Comments:

• In the Stage 1 Vapor Control Systems (1975) table on page 2 of the supplemental VOC TSD, Texas requested EPA remove floating roof tank from the Texas Requirement Summary. While a floating roof tank may be an equivalent control under § 115.223, this control option is not specifically mentioned in §§ 115.221-115.229.

• In the Tank Truck Gasoline Loading Terminals (1977) table on page 11, Texas requested EPA remove floating roof tank from the Texas Requirement Summary. While a floating roof tank may meet the 90% control requirement at § 115.212 or be considered an equivalent control under § 115.213 or § 115.223, it is not specifically mentioned in §§ 115.211-115.219 or §§ 115.221-115.229.

• In the Surface Coating of Metal Furniture (1977) and Metal Furniture Coatings (2007) table on page 13, Texas requested EPA add §§ 115.450-115.459 to the Texas Requirement Summary. Texas implemented the 1977 CTG in §§ 115.420-115.429 and the 2007 CTG in §§ 115.450-115.459. EPA's stated range of 2.3 to 5.1 pound per gallon (lb/gal) applies to § 115.453. The correct limit in § 115.421(2) is 3.0 lb/gal. In the Bulk Gasoline Plants (1977) table on page 16, Texas requested EPA remove floating roof tank from the Texas Requirement Summary. While a floating roof tank may meet the 90% control requirement at § 115.212(a)(5) or be considered an equivalent control under § 115.213, it is not specifically mentioned in §§ 115.211-115.219.

• In the Surface Coating of Miscellaneous Metal Parts and Products (1978) and Control Techniques for Miscellaneous Metal Parts Coatings (2008) table on page 2, Texas requested EPA add §§ 115.450-115.459 to the Texas Requirement Summary. Texas implemented the 1978 CTG in §§ 115.420-115.429 and the 2008 CTG in §§ 115.450-115.459.

• In the Graphic Arts-Rotogravure and Flexography table on page 26, Texas requested EPA correct the Texas Requirement Summary. Texas rules contain a requirement for 90% control of captured vapors and capture requirements for various printing processes ranging from 60% to 75%.

• In the Petroleum Liquid Storage in External Floating Roof Tanks (1978) table on page 28, Texas requested EPA correct the Texas Requirement Summary. Texas rules in §§ 115.110-115.119 require various combinations of a submerged fill pipe, floating roof, floating roof with seals, and/or a vapor control system based on the vapor pressure of the liquid stored and the size of the tank.

• In the Aerospace (1997) table on page 41, Texas requested EPA correct the Texas Requirement Summary. Texas rules in §§ 115.420-115.429 require VOC content limits ranging from 60 to 1230 grams per liter. The cleaning solvents used must be over 80% water by volume or have a composite vapor pressure less than or equal to 45 millimeters of mercury at 20 degrees Celsius.

• In the Industrial Cleaning Solvents (2006) table on page 42, Texas requested EPA remove §§ 115.420-115.429 from the Texas Requirement Summary. Texas rules implementing the 2006 CTG are in §§ 115.460-115.469. While §§ 115.420-115.429 have some cleaning solvent regulations, these are associated with recommendations from the various surface coating and cleaning CTGs implemented in Chapter 115, Subchapter E, Divisions 1 and 2, not the 2006 CTG.

Response: We provide a final VOC TSD that reflects these corrections to the supplemental VOC TSD, which can be found in the docket for this action.

Comment: Texas requested that EPA update the TSD, Documents Reviewed section of Table 1, to reflect the following:

• On page 5 of the NO X TSD, the current NO X concentration limit in 30 TAC § 117.310(a)(2) was part of the Texas Register document published on January 3, 2003 (28 Texas Register (TexReg) 242).

• On page 7, the current NO X emission specification in 30 TAC § 117.310(a)(5) was part of the Texas Register document published on January 3, 2003 (28 TexReg 242).

• On pages 10 and 11 of the TSD, Texas requests EPA correct the Documentation section of the table to include Texas' proposal rulemaking that was published in the Texas Register on June 21, 2002 (27 TexReg 5454).

• On page 11, the current NO X emission specification in 30 TAC § 117.310(a)(10) was part of the Texas Register document published on January 3, 2003 (28 TexReg 242).

• On pages 13 and 14, include Texas' proposal and adoption rulemakings that were published in the Texas Register on June 21, 2002 (27 TexReg 5454), and on January 3, 2003 (28 TexReg 242), respectively. These Texas Register document, in conjunction with the other documents cited by EPA, explain why the 30 TAC § 117.310(a)(13) NO X emission specification for lightweight aggregate kilns changed to its current value.

• On page 16 and 17 for the utility boilers, auxiliary steam boilers, and stationary gas turbines (including duct burners used in turbine exhaust ducts) that are subject to the requirements in 30 TAC § 117.1210(a)(1)-(3), include the document published in the Texas Register on June 21, 2002 (27 TexReg 5454), and on January 3, 2003 (28 TexReg 242), since these document, in conjunction with the other documents cited by EPA, help to explain how Texas arrived at the current NO X emission specifications in 30 TAC § 117.1210(a).

Response: EPA appreciates the additional information. We are including it in the docket for this action.

Comment: On pages 9 and 10 of the TSD, Texas requests EPA correct the Documents Reviewed section of the table to reflect that the current NO X emission specification in 30 TAC § 117.310(a)(8) was part of the Texas Register document published on June 8, 2007 (32 TexReg 3206). This document states that selective catalytic reduction (SCR) may be necessary for process heaters with a maximum rated capacity equal to or greater than 40 million British thermal units per hour (MMBtu/hr), and owners or operators of gas-fired process heaters with maximum rated capacities less than 40 MMBtu/hr may be required to install low-NO X burners or make other combustion modifications.

Response: EPA did review 32 TexReg 3206 and it was inadvertently omitted from the table. EPA has provided a corrected TSD that reflects the review of 32 TexReg 3206, SCR for units with equal to 40 MMBtu/hr or greater, and low NO X burners or other combustion modifications for units with capacities less 40 MMBtu/hr.

Comment: On pages 10 and 11 of the TSD, the June 15, 2001 Texas Register document (26 TexReg 4400), provides Texas' explanation for the rule provision option of the lower of 11.0 grams per horsepower-hour (g/hp-hr) or the emission rate established by testing, monitoring, manufacturer's guarantee, or manufacturer's other data. This same document also provides the discussion for the reason to include the rule provision compliance option, which at the time was to ensure that an inadvertent windfall was not created for existing diesel engines that emitted less than 11.0 g/hp-hr. As EPA noted, the discussion is also provided in Texas' Rule Project No. 2002-038-117-AI.

Response: EPA has provided a final TSD that reflects the correction to include “or the emission rate established by testing, monitoring, manufacturer's guarantee, or manufacturer's other data”.

Comment: On page 11 of the TSD, Texas requests EPA correct the last paragraph of the Evaluation section of the table to reflect that in the June 8, 2007, Texas Register document (32 TexReg 3206), Texas stated it expected NSCR to be the primary control technology for gas-fired rich-burn engines. Texas further stated it expected combustion modifications, exhaust gas recirculation kits combined with Non-Selective Catalytic Reduction (NSCR), or SCR to be necessary to meet the NO X specifications for gas-fired lean-burn engines in 30 TAC § 117.310(a)(9).

Response: EPA broadly summarized the information from 32 TexReg 3206 for the gas-fired engines overall. In response to this comment, EPA has provided a final TSD that reflects the correction to add “exhaust gas recirculation kits with” to the last paragraph of the TSD.

Comment: On pages 11 and 12 of the TSD, regarding the first paragraph of the Evaluation section of the table, Texas requests EPA clarify that Texas' statements concerning the anticipated need for combustion modifications such as dry low-NO X burners or water or steam injection to achieve the NO X emission specification of 0.15 pounds per million British thermal units (lb/MMBtu) heat input were for stationary gas turbines and duct burners used in turbine exhaust ducts were related to minor sources of NO X in the HGB area.

Response: EPA has provided a final TSD that includes this correction for stationary gas turbines related to minor sources of NO X .

Comment: On page 12 of the TSD, regarding the last paragraph of the Evaluation section of the table, Texas requests EPA clarify that Texas stated that compliance with the emission specification of 0.032 lb/MMBtu for stationary gas turbines and duct burners used in turbine exhaust ducts may require the installation of SCR. Texas further stated the emission specifications for all stationary gas turbines less than 10 megawatts and duct burners used in associated turbine exhaust ducts were expected to be achievable through combustion modifications such as water or steam injection or other modifications.

Response: EPA has provided a final TSD that reflects the correction to include the clarifications requested.

Comment: On page 14 of the TSD, Texas requests EPA update the Documents Reviewed section of the table to include the Texas Register document published on January 12, 2001 (26 TexReg 524), since the relevant information pertains to both the heat-treating furnaces in § 117.310(a)(14)(A) and the reheat furnaces 30 TAC § 117.310(a)(14)(B).

Response: 26 TexReg 524 was reviewed by EPA and inadvertently omitted from the table. The final TSD reflects the correction to include this reference.

The EPA is approving the SIP revision submitted by Texas on May 13, 2020, concerning NO X and VOC RACT requirements for the HGB 2008 ozone NAAQS. EPA is finalizing the determination that Texas' rules continue to fulfill NO X and VOC RACT requirements for the HGB nonattainment area for the 2008 8-hour ozone NAAQS under the Serious classification. The EPA is also approving the VOC RACT negative declarations made by Texas for fiberglass boat manufacturing materials, manufacturing of pneumatic rubber tires, flat wood paneling coatings, letterpress printing, and automobile and light-duty truck assembly coatings sectors.

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the CAA. 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);

• Is not subject to Executive Order 14192 (90 FR 9065, February 6, 2025) because SIP actions are exempt from review under Executive Order 12866;

• 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 subject to Executive Order 13045 (62 FR 19885, April 23, 1997) because it approves a state program;

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

• 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.

In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian Tribe has demonstrated that a Tribe has jurisdiction. In those areas of Indian country, the proposed 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).

This action is subject to the Congressional Review Act, and the EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by May 22, 2026. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

For the reasons stated in the preamble, the EPA amends CFR part 52 as follows:

Throughout this document, “we,” “us,” and “our” refer to the EPA.

On November 14, 2025, the EPA proposed to approve California's Smog Check Contingency Measure State Implementation Plan Revision (“Smog Check Contingency Measure SIP”), submitted by the California Air Resources Board (CARB), as meeting the attainment-related requirements for contingency measures under CAA section 172(c)(9) for the San Joaquin Valley nonattainment area for the 1997 ozone standards. 1 The EPA previously approved the Smog Check Contingency Measure as a stand-alone contingency measure, and we indicated at the time we approved the measure that we would be taking a separate action on the Smog Check Contingency Measure SIP to evaluate whether the Smog Check Contingency Measure SIP fulfills the attainment-related contingency measure requirements under CAA section 172(c)(9) for the San Joaquin Valley for the 1997 ozone NAAQS. 2 Our November 24, 2025 proposed action and this final action constitute the separate, later action referred to in our final action on the Smog Check Contingency Measure.

In section I. of our proposed action, we presented background information on the ozone NAAQS, 3 the nonattainment designation and classification of the San Joaquin Valley for the 1997 ozone NAAQS, and the resultant contingency measure SIP obligations, and we summarized our previous actions on the contingency measure requirement for the San Joaquin Valley for the 1997 ozone NAAQS. 4 In section II. of the proposed action, we summarized the contingency measure SIP requirements under the CAA and the EPA's implementing regulations, relevant EPA guidance, and legal precedent, including a brief discussion of relevant decisions by the Ninth Circuit Court of Appeals  5 and the D.C. Circuit Court of Appeals. 6

In addition, in section II. of our proposed action, we described the EPA's long-standing approach to contingency measures and the EPA's revised approach for addressing the contingency measure SIP requirements, as presented in the EPA's “Guidance on the Preparation of State Implementation Plan Provisions that Address the Nonattainment Area Contingency Measure Requirements for Ozone and Particulate Matter (December 3, 2024) (“Revised Contingency Measure Guidance”). 7 The principal differences between the revised guidance and previous guidance on contingency measures relate to the EPA's recommendations concerning the specific amount of emissions reductions that implementation of contingency measures should achieve and the timing for when the emissions reductions from the contingency measures should occur.

The previous EPA recommendation for the amount of emissions reductions to achieve from implementation of contingency measures was one year's worth of reasonable further progress (RFP), which, for ozone, is three percent of baseline emissions of VOC. The previous recommendation for time over which the reductions from contingency measures may occur was one year. The Revised Contingency Measure Guidance introduces “one year's worth of progress” (“OYW of progress”), a metric intended to be more closely tied to the emissions reductions required for attainment of the NAAQS, for determining the amount of emissions reductions that contingency measures should achieve.

The Revised Contingency Measure Guidance also provides recommended procedures for developing a demonstration, if applicable, that the area lacks sufficient feasible contingency measures to achieve the recommended amount of reductions, which builds on existing guidance that the state provide a reasoned justification (referred to herein as an “infeasibility demonstration”) for why the smaller amount of emissions reductions from contingency measures is appropriate.

In section III. of the proposed rule, we described the Smog Check Contingency Measure SIP and evaluated how the District and CARB complied with the procedural requirements for adopting SIP revisions and the contingency measure requirements under the CAA.

The Smog Check Contingency Measure SIP includes a contingency measure (“Smog Check Contingency Measure”) that would narrow the exemption for new vehicles from emissions testing under the Smog Check program from eight model years old to seven model years old in a given nonattainment area if triggered by an EPA finding of failure to meet an RFP milestone or an EPA finding of failure to attain the NAAQS by the applicable attainment date for such area. As noted in the proposed rule, we approved the Smog Check Contingency Measure as a stand-alone contingency measure in a separate rulemaking, 8 and, within the San Joaquin Valley, the Smog Check Contingency Measure has already been triggered as a result of the EPA's determination that the San Joaquin Valley failed to attain the applicable attainment date for the 1997 ozone NAAQS. 9

The Smog Check Contingency Measure SIP also includes estimates of emissions reductions from implementation of the Smog Check Contingency Measure in the relevant years and nonattainment areas to which the measure applies, CARB's evaluation of various mobile and area source categories to identify other feasible contingency measures, and an infeasibility demonstration that provides CARB's justification for not adopting additional contingency measures for sources under CARB jurisdiction ( i.e., other than the Smog Check Contingency Measure).

In addition to the Smog Check Contingency Measure SIP, CARB and the District recommended that the EPA take into consideration the District's and CARB's “Ozone Contingency Measure State Implementation Plan Revision for the 2008 and 2015 8-hour Ozone Standards (April 25, 2024)” (“2024 SJV Ozone Contingency Measure Plan”), which addresses the contingency measure SIP requirements for the San Joaquin Valley for the 2008 and 2015 ozone NAAQS. 10 The 2024 SJV Ozone Contingency Measure Plan relies on two adopted contingency measures and commitments for five additional contingency measures for San Joaquin Valley for the 2008 and 2015 ozone NAAQS. It also includes the District's infeasibility demonstration for stationary and area sources under District jurisdiction, 11 CARB's expanded infeasibility demonstration for certain area sources under State jurisdiction, 12 and the District's infeasibility demonstration for transportation control measures. 13

As noted in the proposed rule, we took into account the infeasibility demonstrations included in the 2024 SJV Ozone Contingency Measure Plan in our evaluation of the Smog Check Contingency Measure SIP with respect to contingency measure SIP requirements for the San Joaquin Valley for the 1997 ozone NAAQS. Our reliance on the infeasibility demonstrations included in the 2024 SJV Ozone Contingency Measure Plan is appropriate even though it was not developed or submitted to address the contingency measure requirements for the 1997 ozone NAAQS because control strategies for all three ozone NAAQS (the 1997 ozone NAAQS, the 2008 ozone NAAQS, and the 2015 ozone NAAQS) relate to the same averaging period (8-hour average), the same precursor emissions (NO X and VOC) and the same emissions sources, the same planning emissions inventories (summertime average day), and the same types of control measures.

As explained in more detail in the proposed rule, we preliminarily found that the infeasibility demonstrations provided in the Smog Check Contingency Measure SIP and the 2024 SJV Ozone Contingency Measure Plan support the conclusion that the contingency measures already adopted and approved, plus the contingency measures to which the District and CARB have committed currently, constitute the entire set of feasible contingency measures for ozone precursor emissions in the San Joaquin Valley. We noted that, because the identified feasible contingency measures have been selected to address only the 2008 and 2015 ozone NAAQS, they are not available for the 1997 ozone NAAQS, which means that the only feasible contingency measure for the purposes of the 1997 ozone NAAQS is the Smog Check Contingency Measure.

Therefore, we preliminarily concluded that, based on achieving a portion of OYW of progress for NO X and VOC reductions from a contingency measure (the Smog Check Contingency Measure) that meets the requirements of CAA section 172(c)(9) and the reasoned justifications contained in the infeasibility demonstrations, the Smog Check Contingency Measure SIP fulfills the attainment-related contingency measure SIP requirements for the 1997 ozone NAAQS for the San Joaquin Valley and thereby fulfills the commitment the State made in connection with the EPA's approval of the attainment plan for the 1997 ozone NAAQS. We are confirming that preliminary conclusion in this final rule.

Please see our proposed rule for more information. 14

The EPA's proposed action provided a 30-day public comment period. During this period, we received comments from seven individuals and groups.

In the following paragraphs, we summarize the substantive comments objecting to our proposed action and provide our responses. All comment letters in their entirety, including attachments where provided, are available in the docket for this rulemaking.

The EPA's proposed action provided a 30-day public comment period. During this period, we received comments from seven individuals and groups.

In the following paragraphs, we summarize the substantive comments objecting to our proposed action and provide our responses. All comment letters in their entirely, including attachments where priovided, are avaiable in the docket for this rulemaking.

Comment A-1: Valley Air Advocates note that, in the proposed action, the EPA does not calculate OYW of RFP and should make the effort to include this information in the final rule for a complete record. Valley Air Advocates further assert that the EPA fails to provide a reasoned explanation for why it may approve the Smog Check Contingency Measure SIP with respect to the attainment-related contingency measure requirements for the 1997 ozone NAAQS based on a different standard from that which the Agency applied in 2012 to approve the contingency measure element of the attainment plan for the 1997 ozone NAAQS.

Response to Comment A-1: Valley Air Advocates are correct that the EPA applied the Agency's contingency measure guidance in effect at that time in approving the contingency measure element of the attainment plan for the San Joaquin Valley for the 1997 ozone NAAQS as meeting the RFP-related contingency measure requirements of the CAA. 16 The EPA's previous contingency measure guidance cited OYW of RFP as the amount of emissions reductions contingency measures should achieve to meet the CAA contingency measure requirements and allowed states to rely on emissions reductions that were in excess of the reductions needed for RFP and attainment to meet contingency measure requirements.

However, the EPA did not approve the contingency measure element of the attainment plan as meeting the attainment-related contingency measure requirements of the CAA on that same basis. The EPA relied on CAA section 182(e)(5) to approve the contingency measure element of the attainment plan as meeting the attainment-related contingency measure requirements of the CAA on the basis of a commitment by CARB to develop, adopt and submit by 2020 attainment contingency measures meeting the requirements of CAA section 172(c)(9), pursuant to CAA section 182(e)(5). 17

In our previous action on the attainment plan for the San Joaquin Valley for the 1997 ozone NAAQS, we indicated that, following the State's submittal of the additional attainment-related contingency measures, the EPA would approve or disapprove the submission for compliance with the contingency measure requirements pursuant to CAA section 110. 18

In our proposed rule, we proposed to approve the Smog Check Contingency Measure SIP (which represents the submission from the state to fulfill the commitment approved in 2012) using the Agency's contingency measure guidance in effect at the time of the action. The Agency's current contingency measure guidance cites OYW of progress (rather than RFP) as the amount of emissions reductions contingency measures should achieve to meet the CAA contingency measure requirements, but it does not allow states to rely on emissions reductions that were in excess of the reductions needed for RFP and attainment to meet contingency measure requirements. In both the previous action in 2012 and the proposed action in 2025, the EPA appropriately applied the Agency's contingency measure guidance in effect at the time of the EPA action.

As to the previous recommendation of OYW of RFP, the Valley Air Advocates are correct in that the amount of emissions reductions calculated in terms of OYW of RFP is greater than the amount calculated in terms of OYW of progress, but the difference is not as great as described in the comment. Under the previous EPA contingency measure guidance, the recommended amount of reductions for contingency measures would have been 17.0 tons per day (tpd) of NO X , 13.7 tpd of VOC, or some combination of contingency measures that would reduce NO X and VOC such that the total reduction is equivalent on a percentage basis to a three percent reduction in base year VOC emissions. 19 In contrast, OYW of progress amounts to 5.0 tpd or 4.1 tpd for NO X and VOC, respectively. Under the EPA's revised contingency measure guidance, the recommended amount (OYW of progress) applies to both NO X and VOC where reductions of both precursors are needed for attainment.

More importantly, in the case of the EPA's review of the Smog Check Contingency Measure SIP for compliance with the attainment-related contingency measure requirements for the 1997 ozone NAAQS, the EPA would have expected the State to provide a reasoned justification for not providing contingency measures that would achieve the recommended amount, whether that amount equals OYW of RFP or OYW of progress. The State has provided a reasoned justification in the form of infeasibility demonstrations that show that there are no additional feasible contingency measures for ozone precursors in the San Joaquin Valley other than the Smog Check Contingency Measure and the District's contingency measures already adopted or committed to for the 2008 and 2015 ozone NAAQS.

Comment A-2: The Valley Air Advocates assert that EPA's approval of the Smog Check Contingency Measure SIP violates the anti-backsliding provisions in CAA section 172(e) and the specific anti-backsliding provisions associated with the revocation of the 1997 ozone NAAQS in 40 CFR 51.1105(a)(1). The Valley Air Advocates indicate that the approval violates the anti-backsliding provisions by effectively eliminating the requirement by reducing the required emissions reductions to a de minimis level.

Response to Comment A-2: The EPA promulgated anti-backsliding provisions consistent with the principles in CAA section 172(e) to govern the transition from the revoked 1997 ozone NAAQS to the more stringent 2008 ozone NAAQS. 20 The anti-backsliding provisions identify those SIP requirements that continue to apply to an air quality planning area for the 1997 ozone NAAQS if they applied to the area at the time of revocation of the 1997 ozone NAAQS, and the contingency measure requirement is included among the list of “applicable requirements” that continue to apply after revocation. 21

Neither CAA section 172(e) nor EPA's anti-backsliding provisions bear on the question of whether the Smog Check Contingency Measure SIP meets the attainment-related contingency measure requirements for the San Joaquin Valley for the 1997 ozone NAAQS. Rather, CAA section 172(e) and EPA's anti-backsliding provisions bear on the question of which requirements continue to apply to a given area after revocation of the NAAQS, not how a state complies with the requirement that has been established as one that continues to apply.

In this case, the EPA finds that the Smog Check Contingency Measure SIP meets the applicable contingency measure requirements under CAA section 172(c)(9) for the revoked 1997 ozone NAAQS through the State's adoption of a measure (the Smog Check Contingency Measure), the contingency measure infeasibility demonstration included in the Smog Check Contingency Measure SIP, and the contingency measure infeasibility demonstrations included in the 2024 SJV Ozone Contingency Measure Plan. In developing the infeasibility demonstrations in the 2024 SJV Ozone Contingency Measure Plan, the District identified five additional contingency measures that the District has now committed to adopt for the 2008 and 2015 ozone NAAQS. While these contingency measures have been determined by the District to be feasible, the District has already committed to adopt them for the current 2008 and 2015 ozone NAAQS and is not required to adopt them for the revoked 1997 ozone NAAQS.

Comment A-3: The Valley Air Advocates assert that the EPA unlawfully and arbitrarily proposes approval of the Smog Check Contingency SIP as meeting the requirements of CAA section 172(c)(9) for the 1997 ozone NAAQS because the EPA's new interpretation weakens the amount of reductions required by the EPA-approved SIP. Valley Air Advocates also assert that the EPA has unlawfully and arbitrarily failed to provide a reasoned explanation and make a finding on whether the approval of the Smog Check Contingency Measure SIP with respect to the 1997 ozone NAAQS constitutes illegal backsliding.

Response to Comment A-3: In relevant part, CAA section 110(l) prohibits EPA approval of a SIP revision that would interfere with any applicable requirement concerning attainment and reasonable further progress (RFP) or any other applicable requirement of the CAA. The Smog Check Contingency Measure SIP is a SIP revision, and thus, CAA section 110(l) governs the EPA's review of the submission.

The SIP revision that is the subject of this rulemaking (the Smog Check Contingency Measure SIP) relates to the contingency measure requirements for nonattainment areas under the CAA. Because, by design, contingency measures are adopted to achieve emissions reductions beyond those needed by an area to demonstrate RFP and attainment, contingency measures by their nature do not interfere with attainment and RFP. In this instance, the EPA approved the contingency measure ( i.e., the Smog Check Contingency Measure) that is included in the Smog Check Contingency Measure SIP in a separate action. In that separate action, the EPA found that the Smog Check Contingency Measure would provide emissions reductions that are surplus to those that are needed for other CAA purposes or that are relied upon for RFP or attainment. 22

CAA section 110(l) also prohibits approval of SIP revisions that interfere with “any other applicable requirement” of the CAA. The only other “applicable requirement” of the CAA that applies in this instance is the attainment-related contingency measure requirement under CAA section 172(c)(9). For the reasons provided by the EPA in our proposed rule and in the responses to comment provided herein, we conclude that the Smog Check Contingency Measure SIP meets the attainment-related contingency measure requirements under CAA section 172(c)(9) for the San Joaquin Valley for the 1997 ozone NAAQS. Based on our conclusion that the Smog Check Contingency Measure SIP meets the only other “applicable requirement” of the Act, we find that our approval would not interfere with any other applicable requirement of the Act, consistent with the provisions of CAA section 110(l).

Lastly, the EPA-approved SIP includes a commitment by CARB to develop, adopt and submit by 2020 attainment contingency measures meeting the requirements of CAA section 172(c)(9), pursuant to CAA section 182(e)(5), for the San Joaquin Valley for the 1997 ozone NAAQS. The EPA-approved commitment does not specify an amount of emissions reductions that the attainment contingency measures must achieve but only specifies that the attainment contingency measures must meet the requirements of CAA section 172(c)(9). Thus, our approval of the Smog Check Contingency Measure SIP does not weaken the amount of reductions required for contingency measures under the SIP, as the commenter suggests, because the SIP does not specify an amount.

Comment A-4: Valley Air Advocates assert that EPA's proposed approval of the Smog Check Contingency Measure SIP based on OYW of progress, as opposed to OYW of RFP, violates CAA section 172(c)(9). Valley Air Advocates cite the language of the provision, the legislative history, and the statutory scheme to support an interpretation that the CAA section 172(c)(9) requires contingency measures to achieve OYW of RFP. As for the language of CAA section 172(c)(9), Valley Air Advocates note that while the contingency measure requirement applies to both failures to make RFP and failures to attain the NAAQS by the applicable attainment date, only the reference to RFP suggests a specific quantity of emissions to be reduced. Valley Air Advocates also cite the Ninth Circuit's decision in Association of Irritated Residents v. EPA   23 as support for the interpretation that CAA section 172(c)(9) requires contingency measures that provide for OYW of RFP. Lastly, Valley Air Advocates state that the OYW of RFP approach is more consistent with the CAA's scheme of imposing more stringent requirements for ozone nonattainment areas based on attainment status ( i.e., an Extreme area has more stringent requirements than a Serious area, which likewise has more stringent requirements than a Moderate area) than the OYW of progress approach.

Response to Comment A-4: Regarding emissions reduction metrics ( i.e., the recommended amount of emissions reductions that contingency measures should achieve), we disagree with commenters as to what is required under the CAA and with the commenters' broader framing of contingency measures within the overall planning requirements for nonattainment areas. While there is a statutory link between RFP and the contingency measure requirements of CAA section 172(c)(9), it does not function as the commenter suggests ( i.e., to establish an amount of emissions reductions that contingency measures should achieve).

CAA section 172(c)(9) (“Contingency measures”) requires the state to adopt SIP revisions for nonattainment areas that provide for the implementation of specific measures to be undertaken if the area fails to make reasonable further progress, or to attain the national primary ambient air quality standard by the attainment date. Section 172(c)(9) also specifies that such measures must be included in the SIP revision as contingency measures to take effect in any such case without further action by the state or the EPA.

Thus, while section 172(c)(9) requires contingency measures where an area fails to make RFP, the language does not specify what amount of emissions reductions such measures should achieve ( i.e., does not explicitly tie the amount of reductions to RFP). Moreover, the statutory text also has a link to attainment, but it too does not specify what amount of emissions reductions contingency measures should achieve.

While Congress did not specify an amount that contingency measures must achieve to comply with CAA section 172(c)(9), Congress must have intended the amount to be material because, without a specified amount, a state would not know how to comply with the requirement. Thus, Congress must have at least implicitly delegated to the EPA the authority to determine an amount of emissions reductions that contingency measures should achieve and thereby give meaning to the requirement and provide states with a basis to comply with CAA section 172(c)(9) for a given nonattainment area.

The EPA has taken a policy approach to this question, and in the past, the EPA has indicated that the recommended amount is OYW of RFP but allowed states to provide a reasoned justification for adopting contingency measures that would provide less than the recommended amount. Under the Revised Contingency Measure Guidance, the EPA is continuing to take a policy approach but is recommending OYW of progress and describing a specific analytical framework that states may use to develop a reasoned justification in the form of an infeasibility demonstration if the state is unable to identify and adopt contingency measures that can achieve the recommended amount of emissions reductions. 24

In support of our revised approach, we first note that, for both RFP and attainment purposes, contingency measures are intended to provide for continued progress in the event that an area fails to meet an RFP milestone or fails to attain the NAAQS by the applicable attainment date. They are not themselves expected to provide for either RFP or attainment. With respect to RFP, the CAA provides certain remedies if the contingency measures do not make up the shortfall for a given RFP milestone. 25 With respect to a failure to attain by the applicable attainment date, the CAA too provides a remedy by requiring a new attainment plan. 26

In reviewing our long-standing approach to contingency measures, the EPA observed that basing the amount of emissions reductions on the annual amount of reductions needed to meet the separate RFP requirement—OYW of RFP—may in some cases lead to an amount that is greater than what typically would be needed to make up for a shortfall in RFP or for attainment purposes. 27 The OYW of RFP approach was unnecessarily conservative for estimating the amount of emissions reductions needed for contingency measure purposes because a given percentage of the base year inventory tends to represent a much more significant portion of the attainment projected inventory.

In shifting to the OYW of progress approach, the EPA recognizes attainment of the NAAQS as the primary objective of the nonattainment plan requirements, and thus the appropriate metric should be attainment-focused. In the absence of a CAA-specified amount of emissions reductions required for contingency measures, the EPA's new approach is a better reading of the contingency measure SIP requirement given our understanding of the statutory purpose of contingency measures following a failure to attain or to make RFP, which is to ensure uninterrupted progress toward attainment while the next steps unfold in response to the failure. In addition, for ozone, the recommended percentage of reductions represents appropriate progress toward attainment as opposed to a fixed amount. The annual rate of reductions ( i.e., the percentage) could be more or less than three percent, depending on the amount of reductions necessary to demonstrate attainment, and states should perform this calculation for both ozone precursors, VOC and NO X .

Moreover, unlike the previous approach, the EPA's new approach takes into account the declining emissions inventories between the base year and attainment year for a given nonattainment area and aligns the metric for determining the amount of emissions reductions that contingency measures should achieve for ozone and particulate matter (PM). The alignment between ozone and PM is a better reading of the statute considering that the relevant statutory provision, CAA section 172(c)(9), applies to all the NAAQS.

As to the specific SIP submission addressed in this document, we acknowledge that CARB used the newly-recommended metric in preparing the Smog Check Contingency Measure SIP for which the EPA is now finalizing approval but, in this instance, the SIP submission and the EPA's evaluation thereof would have been the same in substance if the previous metric ( i.e., OYW of RFP) had been used instead. This is because, using either metric, the SIP submission relies on a contingency measure that provides for less than OYW of progress or RFP for both ozone precursors. The only difference is the extent to which the emissions reductions from the contingency measure fall short of each metric.

Using either metric, the EPA would have expected the State to provide a reasoned justification for not adopting contingency measures sufficient to achieve greater VOC and NO X emissions reductions. Consistent with the EPA's recommendations in the Revised Contingency Measure Guidance, California did so in this case in the form of infeasibility demonstrations in the Smog Check Contingency Measure SIP and the 2024 SJV Ozone Contingency Measure Plan.

Second, the commenters are incorrect by stating that only the reference to RFP in CAA section 172(c)(9) suggests a specific amount of emissions reductions. RFP and attainment both suggest a specific quantity of emissions reductions. For ozone, the emissions reductions required for RFP are generally three percent of baseline VOC emissions each year (averaged over a three-year period). Emissions reductions needed for attainment are the emissions from the attainment year inventory subtracted from the base year emissions inventory and then divided by the number of years between the attainment year and the base year.

Third, Valley Air Advocates assert that the decision in the Association of Irritated Residents v. EPA case highlights and connects to the statutory link between contingency measures and RFP. The Association of Irritated Residents v. EPA decision supports the proposition that surplus emissions reductions from already-implemented measures cannot be relied upon as a justification for adoption of contingency measures that provide for less than the recommended amount of emissions reductions for such measures. However, the decision does not bear on the question of the amount of emissions reductions that contingency measures should achieve or the consideration of feasibility of additional measures as justification for not adopting contingency measures sufficient to achieve the recommended amount of such measures.

The rationale for our approval of the Smog Check Contingency Measure Plan SIP for the 1997 ozone NAAQS is not the same as the rationale for our approval, later withdrawn in response to the Association of Irritated Residents v. EPA decision, of the contingency measure element for San Joaquin Valley for the 2008 ozone NAAQS that was at issue in this case. In the case of the contingency measure element for the 2008 ozone NAAQS, the EPA took into account the surplus emissions reductions from already-implemented measures in the milestone years and the years following the attainment date, not as constituting contingency measures per se, but rather as justification for approving a contingency measure element that included a single contingency measure that would provide for far less than the recommended amount.

The Court found that, by doing so, the EPA had “severed the relationship between the requirement of contingency measures and the benchmark of reasonable further progress, without an adequate explanation of why the new—and far more modest—contingency measure is reasonable.”  28 The Court did not indicate that the Agency could not depart from previous guidance but cautioned that the EPA “must give a reasoned explanation for departing from agency practice or policy.”  29 The Court concluded that “[I]f already-implemented measures cannot themselves be contingency measures—and Bahr makes clear that they cannot—then neither can they be a basis for declining to establish contingency measures that would otherwise be appropriate.”  30 The Court rejected the EPA's rationale for allowing consideration of surplus emissions reductions from already-implemented measures, reasoning that the EPA could not approve a contingency measure element “lacking robust contingency measures by assuming that they will not be needed. Because the agency did not provide a reasoned explanation for approving the state plan, the rule is arbitrary and capricious.”  31

In the wake of the Association of Irritated Residents v. EPA decision, and other case law interpreting the contingency measure SIP requirement, the EPA undertook an internal process to reconsider previous guidance provided by the Agency to states for preparation of SIP submissions to meet the contingency measure requirements—a process that led to the publication of the Revised Contingency Measure Guidance. Among other things, in the Revised Contingency Measure Guidance, the EPA explains why the Agency believes that it is appropriate to update its prior guidance with respect to the recommended amount of emissions reductions that contingency measures should achieve and the considerations that states could use to justify adoption of contingency measures that do not provide for the recommended amount of emissions reductions. 32 We found that an update to our contingency measures guidance was justified in light of changed factual circumstances and a current understanding of what remaining controls may be available for states to adopt as contingency measures.

Lastly, we have reviewed the commenter's hypothetical scenario purportedly illustrating a fatal flaw in the OYW of progress metric and disagree that it shows that the OYW of progress metric runs contrary to the structure of the CAA. The scenario compares three ozone areas: one is a Serious nonattainment area, one is a Severe nonattainment area, and one is an Extreme ozone nonattainment area. All three areas have base year emissions of 200 tpd and require emissions reductions of 100 tpd to attain the ozone NAAQS. The Serious area has a maximum of 9 years to attain, the Severe area has a maximum of 15 years to attain, and the Extreme area has a maximum of 20 years to attain. In this scenario, the commenter estimates OYW of progress would be 5.7 tpd for the Serious area, 3.3 tpd for the Severe area, and 2.5 tpd for the Extreme area and asserts that the structure of the CAA would suggest that the Extreme area should be subject to a greater burden to achieve emissions reductions as compared to the Severe area, which in turn should be subject to a greater burden that the Serious area, not lesser burdens.

Under this scenario, we must assume that the nine years, 15 years, and 20 years represents “expeditious attainment” for the Serious, Severe and Extreme area, respectively. Therefore, the Serious area has identified control measures sufficient to achieve approximately 11.1 tpd reduction on an annual basis over the nine-year period from the base year to the attainment year. In contrast, the Severe and Extreme areas have identified control measures sufficient to achieve approximately 6.7 tpd and 5 tpd reduction, respectively, on an annual basis over the 15-year period (for the Severe area) or 20-year period (for the Extreme area).

This suggests that the Serious area has a greater number of feasible control measures available to adopt and, in the event of a failure to attain, that a higher burden to continue that rate of progress after the attainment year is appropriate. Conversely, the Severe and Extreme areas would appear to have fewer feasible options available and, in the event of a failure to attain, that a lower burden (compared to the Serious area) to maintain the lower rate of progress after the attainment year is also appropriate. For these reasons, we do not agree that the scenario provided by the commenter shows that our revised interpretation, as set forth in the Revised Contingency Measure Guidance, of the amount of emissions reductions that states should achieve to meet the CAA's contingency measure SIP requirement runs contrary to the general remedial scheme of the CAA that imposes more stringent requirements on higher classified areas.

Comment A-5: Valley Air Advocates state that the EPA does not have authority under the CAA to exempt California from adopting additional contingency measures, other than the Smog Check Contingency Measure, based on an infeasibility demonstration. Section 172(c)(9) does not include an exemption for measures deemed infeasible. Valley Air Advocates also state that the EPA's argument that the CAA includes provisions in other sections to allow air agencies to exclude control measures that are infeasible does not support its interpretation of the use of an infeasibility justification for contingency measures; rather, the inclusion of language related to feasibility in other CAA provisions but not in section 172(c)(9) suggests the omission by Congress of a feasibility standard with regard to contingency measures was intentional.

Response to Comment A-5: As discussed in Response to Comment A-4, Congress must have at least implicitly delegated to the EPA the authority to determine an amount of emissions reductions that contingency measures should achieve and thereby give meaning to the requirement and provide states with a basis to comply with CAA section 172(c)(9) for a given nonattainment area. The EPA is continuing to take a policy approach to this question and is recommending OYW of progress and describing a specific analytical framework that states may use to develop a reasoned justification if the state is unable to identify and adopt contingency measures that can achieve the recommended amount of emissions reductions. More specifically, as stated in our proposed rule and the EPA's Revised Contingency Measures Guidance, where a state is unable to identify contingency measures that would provide emissions reductions approximately equal to OYW of progress, the state should provide a reasoned justification in the form of an infeasibility demonstration that explains and documents how it has evaluated all existing and potential control measures relevant to the appropriate source categories and pollutants in the nonattainment area and has reached reasonable conclusions regarding whether such measures are feasible. Thus, while the EPA acknowledges that CAA section 172(c)(9) does not explicitly provide for consideration of whether specific measures are feasible, the EPA does not read the statute to require air agencies to adopt and impose infeasible measures.

As stated in the proposed rule, the statutory provisions applicable to other nonattainment area plan control measure requirements, including reasonably available control measures/reasonably available control technology (RACM/RACT), best available control measures/best available control technology (BACM/BACT), and most stringent measures (MSM), allow air agencies to exclude certain control measures that are deemed unreasonable or infeasible (depending on the requirement). For example, the MSM provision in CAA section 188(e) requires plans to include “the most stringent measures that are included in the implementation plan of any state or are achieved in practice in any state, and can feasibly be implemented in the area.” While the contingency measures provisions do not include such caveats, the EPA does not conclude that the contingency measures provisions should be read to require plans to include infeasible measures. Thus, the EPA anticipates that a demonstrated lack of feasible measures would be a reasoned justification for adopting contingency measures that achieve less than the recommended amount of emissions reductions. 33

Comment A-6: Valley Air Advocates assert that, even if CAA section 172(c)(9) did allow the EPA to exempt states from contingency measures it deems infeasible, there is not an objective standard or criteria for such a feasibility determination. The Revised Contingency Measure Guidance does not provide such objective standards, meaning that any determinations EPA makes as to feasibility or infeasibility are inherently arbitrary.

Response to Comment A-6: The Revised Contingency Measure Guidance provides states with a recommended approach for identifying potential contingency measures and, if there are an insufficient number of feasible contingency measures to achieve OYW of progress, for documenting the basis for that conclusion via an infeasibility demonstration. The criteria include economic and technological feasibility as well as timing considerations. Contingency measures are expected to achieve emissions reductions within a year or two of the triggering event to qualify as contingency measures.

The EPA evaluates state SIP submissions for other CAA requirements, including RACM/RACT, BACM/BACT, and MSM, on the same basis (economic and technological feasibility) that we are employing to evaluate SIP submissions for contingency measures. By their nature, judgements made based on economic and technological feasibility are fact-specific, but that does not make them arbitrary.

Comment A-7: Valley Air Advocates comment that the EPA has contradicted itself by finding that the contingency measures that the EPA has approved and the contingency measures to which CARB and the District committed are “the entire set of feasible contingency measures for ozone precursor emissions in the San Joaquin Valley.”  34 The commenter states that this is inconsistent with the EPA's action approving a contingency measure with just one trigger for three PM 2.5 standards, because that approval relied upon a rationale that the state would adopt and submit additional contingency measures should a triggering event occur. 35 The commenter states that EPA has not provided an adequate explanation of why the state would be able to develop and submit additional contingency measures for PM 2.5 and not for the 1997 ozone NAAQS.

Response to Comment A-7: Ozone and PM 2.5 are different criteria air pollutants for which the EPA has established NAAQS. Within the San Joaquin Valley, the relevant pollutants and plan precursors are direct PM 2.5 and NO X for the purpose of meeting CAA SIP requirements for the PM 2.5 NAAQS. For ozone, the precursors are NO X and VOC. NO X is a precursor to both PM 2.5 and ozone for the purpose of meeting CAA requirements in the San Joaquin Valley.

Direct PM 2.5 emissions are not relevant for ozone SIP planning purposes. Thus, there is no contradiction by the EPA where the Agency states that State and District have adopted (or committed to adopt) the entire set of feasible contingency measures for ozone precursors and that, upon triggering of the PM 2.5 contingency measures, we expect that CARB and the District would adopt and submit a SIP revision to demonstrate that the SIP continues to meet PM 2.5 contingency measure requirements. In so doing, we expect CARB and the District to update their previous evaluations of direct PM 2.5 source categories to identify potential contingency measures and to adopt such measures that are economically and technologically feasible and that can achieve meaningful emissions reductions within a year or two of a future PM 2.5 -related triggering event.

With respect to NO X , the finding with respect to the 1997 ozone NAAQS that State and District have adopted (or committed to adopt) the entire set of feasible contingency measures for ozone precursors (VOC and NO X ) is keyed to a moment in time. With the passage of time, new information and analyses can be used to identify potential contingency measures that have not been identified to date and that warrant evaluation for economic and technological feasibility as well as the potential to achieve meaningful NO X emissions reductions within a year or two of a future triggering event.

Comment A-8: Valley Air Advocates assert that the Smog Check Contingency Measure provides only de minimis emissions reductions and that compliance with CAA section 172(c)(9) requires more than a de minimis amount of reductions from contingency measures. Citing the decision in Committee for a Better Arvin, 36 the commenter notes that the Ninth Circuit upheld the EPA's assertion that certain California rules for the 1997 PM 2.5 annual NAAQS did not need to be approved into the SIP because the rules achieved only de minimis reductions and that the reductions deemed by the EPA to be de minimis for the 1997 PM 2.5 NAAQS are greater than those from the Smog Check Contingency Measure. As such, the commenter asserts that the EPA cannot dispute that the Smog Check Contingency Measure provides de minimis emissions reductions and simply does not fulfill the requirement under CAA section 172(c)(9) to adopt contingency measures.

Response to Comment A-8: The EPA does not agree that the emissions reductions from the Smog Check Contingency Measure are de minimis. Characterizing an amount as de minimis cannot be severed from its context. In the case of the emissions reductions (amounting to 0.62 tpd of NO X ) that the EPA characterized as de minimis in connection with the Agency's approval of the San Joaquin Valley attainment plan for the 1997 PM 2.5 NAAQS, and that are cited in the Committee for a Better Arvin decision, the context was the overall amount of emissions reductions from the base year needed to demonstrate attainment of the 1997 PM 2.5 NAAQS by the applicable attainment date. The relevant amount of NO X emissions reductions needed for attainment was 284.2 tpd, 37 and the emissions reductions from the rules at issue (0.62 tpd) represented only 0.2 percent of the overall reduction amount.

With respect to our evaluation of the Smog Check Contingency Measure, the context is the EPA's recommended amount of emissions reductions that contingency measures should achieve ( i.e., OYW of progress). The estimated reductions from the Smog Check Contingency Measure (0.112 tpd of NO X ) amount to 2.2 percent of OYW of progress, an order of magnitude greater than the corresponding percentage cited in the previous paragraph in relation to the attainment needs of the area.

We do however find that the emissions reductions from the Smog Check Contingency Measure, which CARB estimates to be 0.112 tpd and 0.056 tpd of NO X and VOC, respectively, represent only about one or two percent of OYW of progress. Because the estimate reductions are well below the recommended metric ( i.e., OYW of progress), CARB and the District are not relying solely on the Smog Check Contingency Measure to demonstrate compliance with the contingency measure requirements of CAA section 172(c)(9) for the San Joaquin Valley for the 1997 ozone NAAQS. Rather, CARB and the District are relying on their infeasibility demonstrations that document their evaluation for potential additional contingency measures and the rationale for their conclusions that there are no additional feasible contingency measures for the area for the 1997 ozone NAAQS.

Likewise, in approving the Smog Check Contingency Measure SIP as meeting the applicable requirements for the San Joaquin Valley for the 1997 ozone NAAQS, we are not solely relying on the Smog Check Contingency Measure but also on our evaluation of the submitted infeasibility demonstrations.

Comment A-9: Valley Air Advocates comment that, even if the EPA may lawfully excuse a state from adopting contingency measures based on an infeasibility demonstration, the state did not submit an infeasibility demonstration for stationary and area sources for the 1997 ozone NAAQS. Instead, the EPA accepted the state's request to rely upon the infeasibility demonstration submitted for the 2008 and 2015 ozone NAAQS, without any additional analysis. The commenter further points to EPA's Revised Contingency Measure Guidance, which indicates that, for infeasibility demonstrations, “lower amounts of CM emissions reductions will warrant more robust analyses demonstrating a thorough effort to identify candidate measures and to document the infeasibility of candidate measures,”  38 and that, in the case of the 1997 ozone NAAQS, with fewer reductions from contingency measures compared to those for the 2008 ozone contingency measures requirement, the EPA accepted an infeasibility demonstration that was clearly not more robust than that accepted for the 2008 ozone NAAQS.

Response to Comment A-9: In our proposed rule, we explained why we found that reliance on the infeasibility demonstrations included in the 2024 SJV Ozone Contingency Measure Plan is appropriate even though it was not developed or submitted to address the contingency measure requirement for the 1997 ozone NAAQS for two reasons. First, the control strategies for all three ozone NAAQS (the 1997 ozone NAAQS, the 2008 ozone NAAQS, and the 2015 ozone NAAQS) relate to the same averaging period (8-hour average), the same precursor emissions (NO X and VOC) and the same emissions sources, the same planning emissions inventories (summertime average day), and the same types of control measures. Second, CARB and the District recommended that the EPA take into consideration the 2024 SJV Ozone Contingency Measure Plan during its review of the Smog Check Contingency Measure SIP for compliance with the attainment-related contingency measure requirements for the 1997 ozone NAAQS. 39

The commenter is correct that, in the Revised Contingency Measure Guidance, the EPA states that a lower amount of emissions reductions from contingency measures relative to OYW of progress warrants more robust analyses demonstrating a thorough effort to identify candidate contingency measures and to document the infeasibility of such measures. The commenter is also correct that the emissions reductions for the 1997 ozone NAAQS are lower than those for the 2008 and 2015 ozone NAAQS and yet all three ozone NAAQS rely on the same set of analyses to justify adoption of contingency measures that provide for less than OYW of progress.

For these reasons, the EPA would normally have expected the State to conduct updated analyses to identify candidate measures for, in this case, the 1997 ozone NAAQS, but the Smog Check Contingency Measure SIP (for the 1997 ozone NAAQS) and the 2024 SJV Ozone Contingency Measure Plan (for the 2008 and 2015 ozone NAAQS) were submitted within a short period of one another. CARB submitted the Smog Check Contingency Measure SIP on November 13, 2023, and the 2024 SJV Ozone Contingency Measure Plan on April 29, 2024.

The more recently-submitted SIP provides the missing pieces of the earlier submission by including a comprehensive review of stationary and area source categories for candidate contingency measures. Because of the proximity in time of the two SIP submissions, the Smog Check Contingency Measure SIP and the 2024 SJV Ozone Contingency Measure Plan can be considered collectively, and together, they constitute a comprehensive review of stationary, area, and mobile source categories for candidate ozone contingency measures in the San Joaquin Valley for all three ozone NAAQS.

The review of stationary and area source categories in the 2024 SJV Ozone Contingency Measure Plan revealed certain additional feasible ozone contingency measures that the District has committed to adopt. The District has chosen to adopt these additional contingency measures for the 2008 and 2015 ozone NAAQS and not to adopt them for the 1997 ozone NAAQS. The District is not required to extend the applicability of these additional contingency measures to a third ozone NAAQS ( i.e., the 1997 ozone NAAQS).

Comment A-10: Valley Air Advocates assert that, even if the EPA may lawfully excuse a state from contingency measures based on an infeasibility demonstration, the infeasibility demonstration for confined animal facilities (CAFs) is inadequate. It relies on statements from the District that Rule 4570, which covers CAFs in the Valley, is the most stringent rule for this source category compared to other air districts. Such a rationale is not a feasibility analysis, as it does not answer the question of whether the current rule, which is menu-based, allowing CAF operators to choose from among a menu of control options, could feasibly be made more stringent as a contingency measure by requiring operators to implement additional menu options. Additionally, the commenter states that the 2010 amendments to Rule 4570 retired most of the Class Two Mitigation Measures on grounds that they were infeasible. The infeasibility demonstration for contingency measures submitted as part of the 2024 SJV Ozone Contingency Measure Plan does not address whether this set of mitigation measures could be feasible as contingency measures.

Response to Comment A-10: In response to comments received on our proposed rule, we requested that CARB and the District clarify the basis for the conclusion that there are no feasible contingency measures for CAFs. CARB and the District responded with additional analyses to clarify and supplement their feasibility analysis for the CAF source category. 40 We have reviewed the supplemental information provided by CARB and the District and find that it affirms our preliminary finding from the proposed rule that CARB and the District have demonstrated that contingency measures for this source category are infeasible at this time.

In the Confined Animal Facilities Supplement, the District first discusses Rule 4570's menu-based approach, where CAF operators must select from a limited menu of mitigation measures. The District contends that the menu-based approach is necessary because CAFs in the San Joaquin Valley vary significantly compared to traditional industrial sources. 41 As a result, it is not feasible for all operators to implement identical mitigation measures given the differences in infrastructure, climate, permitting requirements, water availability and water board regulations, production contracts, and other limitations. Furthermore, the District reasons that requiring all measures from the menu would be duplicative and would not result in additional emissions reductions, as the measures control emissions through the same mechanisms. The EPA concurs with the District's menu-based approach for this source category and agrees that requiring implementation of additional mitigation measures from the menu in Rule 4570 as a contingency measure would be duplicative and would not result in increased emissions reductions.

The District then discusses the feasibility of Class Two Mitigation Measures from the pre-2010 version of Rule 4570 as contingency measures. The District explains that Class Two mitigation measures referred to practices that could potentially achieve emissions reductions equal to or greater than those achieved by Class One mitigation measures and were originally included in Rule 4570 to encourage CAF operators to go beyond the basic rule requirements and implement innovative practices to further reduce emissions. 42 However, the District notes that many of the Class Two Mitigation Measures were theoretical measures that had not been demonstrated in practice at CAFs. The District points to its previous evaluation of these Class Two Mitigation Measures in its “2010 Final Staff Report for the Revised Proposed Amendments to Rule 4570,”  43 where the Class Two Mitigation Measures were found to be technologically or economically infeasible and subsequently removed from Rule 4570. The District highlights the specific example of venting silage to a control device as a Class Two Mitigation Measure found to be infeasible and explains that it is infeasible because active venting introduces air into the silage, whereas silage preservation requires anaerobic conditions. 44

The next step in the District's analysis was to evaluate the feasibility of adopting certain specific additional mitigation measures as contingency measures in Rule 4570. The District evaluated mitigation measure categories applicable to the San Joaquin Valley, including litter amendments and additives, biofilters, wet scrubbers, anaerobic digestion, injection of liquid and slurry manure, reducing crude protein for beef cattle, reducing crude protein content for dairy cattle, and increased grazing time for dairy cattle. For each mitigation measure, the District evaluated the technological and economic feasibility to determine whether the measure would be feasible for adoption as a contingency measure. 45

With respect to litter amendments and manure additives, the District separately analyzed acidifying amendments and additives for poultry litter, manure additives, and microbial additives. 46 With respect to acidifying amendments and additives for poultry litter, the District notes that emissions reductions from acidifying amendments and additives for poultry litter have not been quantified in regard to VOC. Furthermore, the District contends that many additives to litter and manure require approval from the CA Regional Water Quality Control Board (RWQCB), may not be allowed, or may be toxic to handle. 47 The District then performed an economic analysis of using aluminum sulfate, commonly referred to as “alum,” as an additive to reduce VOC from poultry litter. Based on this analysis, the District concludes that it is not viable to adopt the measure as a contingency requirement to reduce VOC emissions. For manure additives for liquid and slurry manure, the District states that the measure is infeasible due to pH, hydrogen sulfide emissions, and salinity concerns. The District contends that microbial additives are not feasible or practical for operations in the Valley. Citing a study by the National Hog Farmer, 48 the District contends that the effectiveness of microbial manure additives for VOC emissions reduction remains unproven. 49

When a biofilter is used, exhaust air containing pollutants passes through media that contain an established, diverse population of aerobic microorganisms that oxidize organic contaminants, ammonia, and sulfur compounds. Biofilters have been successfully used to control odors and emissions from industrial sources, and the “Agricultural Air Quality Conservation Measures, Reference Guide for Poultry and Livestock Systems” (“USDA Reference Guide”) identifies biofilters as a potential method to control VOC emissions at CAFs. 50 However, the USDA Reference Guide also notes several considerations that must be taken into account when using biofilters to control emissions from CAFs, including the substantial costs involved. The District has evaluated the potential for greater use of biofilters to reduce VOC emissions from CAFs but finds that using biofilters to treat all the exhaust air from CAFs in the San Joaquin Valley is impractical due to the size of the biofilters that would be needed, the energy required to overcome the airflow resistance they create, and the airflow required to cool the enclosed spaces effectively. 51 The District also notes certain other practical difficulties, particularly in connection with biofilter maintenance. In light of all of these considerations, the District concludes that requiring the installation and use of biofilters as a contingency measure to control VOC emissions at CAFs is not feasible.

Wet scrubbers are capable of reducing particulate matter and gas emissions from animal production houses that are mechanically ventilated by physically trapping the particulate matter on wet surfaces and absorbing gases into a liquid. Many of the same technical difficulties posed by installation and maintenance of biofilters at CAFs also apply to installation and maintenance of wet scrubbers at CAFs. Specifically, the District notes that, similar to biofilters, the practicality of scrubbers is limited as a result of their potential to compromise the ventilation airflow rated needed to control temperature in production houses and ensure animal health. 52 Citing the USDA Reference Guide, the District finds that a high air flow rate in the summer, animal housing differences, ongoing maintenance, and water demand make this mitigation measure infeasible. 53 Additionally, the District notes that they previously demonstrated the economic infeasibility of using wet scrubbers to control emissions from CAFs in the District's “Ammonia: Supplemental Information for EPA in Support of 15 µg/m 3 annual PM 2.5 Standard, Appendix B” (“Ammonia Technical Supplement”). 54

Anaerobic digesters are systems that break down manure in oxygen-free tanks to produce biogas. In the process of anaerobic digestion, most of the VOC compounds in the substrate are converted to methane, carbon dioxide, and water. The District reports that the California Department of Food and Agriculture (CDFA) has funded the installation of anaerobic digesters at certain dairy CAFs in the Valley. The District notes that a significant obstacle to wider installation and use of anaerobic digesters at CAFs is the high initial and ongoing maintenance costs. The District cites a CDFA reference for the figure of $7.5 million as the average cost for dairy digester projects in California. 55 As such, the District concludes that installation of additional anaerobic digesters in the San Joaquin Valley as a contingency measure is economically infeasible without a stable funding source. 56

Injection of liquid or slurry manure is generally accepted as a method to reduce emissions relative to traditional surface broadcasting. However, the District notes that nearly all liquid manure in the San Joaquin Valley is already diluted and applied via surface gravity irrigation systems, such as flood and furrow irrigation. The District further notes that this application method reduces emissions because the diluted liquid manure has much lower concentration of VOCs, and liquid manure in furrow and flood irrigation systems emits significantly less VOCs compared to broadcasting. 57 Furthermore, the District contends that no research that has quantified VOC emissions reductions from different methods of land application of manure. Finally, the District notes that to avoid damaging growing crops and to protect water quality, farmers must restrict the frequency, timing, and amount of nitrogen that they can apply to cropland in certain portions of the San Joaquin Valley. 58 Such restrictions further reduce the potential of injection of liquid or slurry manure for adoption as a contingency measure in the San Joaquin Valley.

Reducing the crude protein content for beef and dairy cattle feed has been evaluated as potential measures to reduce ammonia emissions during certain phases of beef and dairy production, and for that reason, the District has evaluated them as potential contingency measures for VOC. The District notes that the potential VOC reductions from these measures have not been quantified, and achievable reductions are uncertain. 59 For beef cattle, the District notes that reducing the crude protein content of the feed as a means of reducing ammonia has only been tested for the finishing cycle of beef cattle lives, and that there are limited opportunities to implement this measure as there are very few finishing cycle feeder beef cattle in the San Joaquin Valley. 60 Furthermore, the District notes that there may be no net reduction in VOC emissions over the life of the cattle because any VOC reductions from reducing the crude protein content of beef cattle feed may be offset due to the longer time necessary to reach market weight. 61

For dairy cattle, the District notes significant gaps in knowledge of what would occur if crude protein were reduced in dairy cattle, specifically in the San Joaquin Valley. Higher levels of milk production require higher levels of protein, so reducing the crude protein content of feed will probably reduce milk yields. 62 Citing communications with Dr. Peter Robinson, UC Davis Extension Specialist, Dairy Cattle Nutritional Management Department of Animal Science, the District contends that lowering crude protein below required levels results in an immediate negative impact on milk production. 63 The District reasoned, for both of these measures, it is not feasible to adopt this measure as a contingency requirement, given the remaining uncertainties about VOC emissions reductions, the impacts on milk production and animal health, and overall costs. 64

Increasing the amount of time dairy cows spend grazing is considered a potential VOC mitigation measure because it could reduce ammonia emissions due to less silage consumption and may thus also reduce VOC emissions. Based on a number of assumptions for such parameters as the number of acres of pasture required to allow a mature dairy cow to graze per unit of time, the District estimates that 3.1 million acres of irrigated pasture would need to be available for dairy cows in the San Joaquin Valley to graze for the entire year. The land needed is significantly beyond that which is available. For this reason, the District concludes that increased grazing time for daily cattle is not viable to adopt as a contingency requirement to reduce VOC emissions. 65

In summary, for all mitigation measures evaluated, the District did not identify any new measures capable of achieving VOC emissions reductions that are technologically and economically feasible. Based on our review of the supplemental analysis, we find that the District has evaluated an appropriate set of potential contingency measures for CAFs and presented a reasonable basis to conclude that the measures are not feasible for adoption as contingency measures at this time. Therefore, we continue to agree with the District's conclusion that there are no feasible contingency measures for this source category.

Comment A-11: Valley Air Advocates assert that the EPA fails to provide a reasoned explanation when it approves CARB's and the District's infeasibility demonstrations when both overlook operational restrictions on heavy duty diesel trucks as potential contingency measures. For example, Valley Air Advocates suggest that CARB or the District could adopt contingency measures that prohibit operation of certain old and highly polluting diesel trucks in the Valley.

Response to Comment A-11: CARB has already adopted control measures intended to reduce NO X emissions from in-use heavy-duty diesel trucks. In 2008, CARB adopted the Truck and Bus Regulation  66 and later submitted the regulation, as amended in 2011, to the EPA for approval as part of the SIP. 67 Under the Truck and Bus Regulation, by January 1, 2023, nearly all trucks and buses were required to have 2010 or newer model-year engines to reduce particulate matter (PM) and NO X emissions. To help ensure that the benefits of this regulation are achieved, starting in 2020, only vehicles compliant with this regulation will be registered by the California Department of Motor Vehicles (DMV).

More recently, CARB adopted the Heavy-Duty Inspection and Maintenance Regulation  68 that establishes a comprehensive inspection and maintenance program for non-gasoline combustion vehicles above 14,000 gross vehicle weight rating (GVWR) that operate in California. The regulation is intended to ensure that vehicle emissions control systems on these vehicles are operating as designed and repaired quickly. 69

The emissions reductions from both these regulations are necessary for California to meet CAA requirements to demonstrate RFP and attainment for the various nonattainment areas within the State. Because they were adopted and are being implemented, they were not available to adopt as contingency measures.

Comment A-12: Valley Air Advocates assert that the EPA fails to provide a reasoned explanation when it approves CARB's and the District's infeasibility demonstrations when both overlook amendments to increase the stringency of the existing Indirect Source Review (ISR) program as potential contingency measures. In this regard, Valley Air Advocates state the EPA did not discuss or consider whether an ISR-based contingency measure adopted by the District, including amendments to Rule 9510, would be feasible.

Response to Comment A-12: Under CAA section 110(a)(5)(A), a state may include in a SIP any ISR program, but the EPA may not require the state to adopt an ISR program as a condition of approval of the SIP. Thus, the District may choose to revise the ISR rule that the District has adopted or adopt an additional ISR rule as a contingency measure, but the EPA cannot require the District to do so even if adopting such a contingency measure would be feasible and would achieve emissions reductions within two years of the triggering event.

Comment B-1: CVAQ notes that the EPA recently found that the San Joaquin Valley failed to attain the 1997 ozone NAAQS by the June 15, 2024 applicable attainment date and that, as a result, the Smog Check Contingency Measure was triggered for the area. CVAQ also states that the associated emissions reductions from the Smog Check Contingency Measure would be “extremely small” and asserts that the CAA requires much more to protect public health. CVAQ notes that the EPA's new interpretation of CAA section 172(c)(9) allows state to claim additional measure to be infeasible, even though the CAA does not provide such an exemption, and urges the EPA to implement the CAA by reinstating the EPA's long-standing interpretation of CAA section 172(c)(9) to require meaningful contingency measures.

Response to Comment B-1: We acknowledge that we now recommend a different approach to determining the amount of emissions reductions that contingency measures should provide to meet CAA section 172(c)(9). Under current guidance, we recommend that states adopt contingency measures that would provide OYW of progress rather than OYW of RFP. We also acknowledge that, for San Joaquin Valley for the 1997 ozone NAAQS, OYW of progress is less than OYW of RFP. Nonetheless, under either metric, we would have expected California to submit a reasoned justification to demonstrate compliance with CAA section 172(c)(9) for the San Joaquin Valley for the 1997 ozone NAAQS because the adopted contingency measure would provide less than OYW of progress or OYW of RFP.

California did submit a reasoned justification in the form of infeasibility documentations in the Smog Check Contingency Measure SIP and in the 2024 SJV Ozone Contingency Measure Plan. We reviewed the infeasibility documentations and concluded that California had identified the contingency measures that are technically and economically feasible and that can achieve emissions reductions within two years of the triggering event. These measures include two adopted measures and commitments for five additional contingency measures for the 2008 ozone 2015 ozone NAAQS. California is not required to also adopt those same measures for the 1997 ozone NAAQS, and California has declined to do so, leaving the Smog Check Contingency Measure as the only contingency measure for San Joaquin Valley for the 1997 ozone NAAQS. 71

With respect to the allowance for a state to provide a reasoned justification for not adopting contingency measures that achieve OYW of progress (or RFP), we acknowledge in our Revised Contingency Measure Guidance and proposed rule that CAA section 172(c)(9) does not explicitly provide for consideration of whether specific measures are feasible. However, the Agency does not read these statutory provisions to require states to adopt contingency measures that are not feasible. The statutory provisions applicable to other nonattainment area plan control measure requirements, including RACM)/RACT (for ozone and PM), BACM/BACT (for PM), and MSM (for PM), allow air agencies to exclude certain control measures that are deemed unreasonable or infeasible (depending on the requirement). While the contingency measures provisions do not include such caveats, the EPA does not conclude that the contingency measures provisions should be read to require plans to include infeasible measures. Thus, the EPA anticipates that a demonstrated lack of feasible measures would be a reasoned justification for adopting contingency measures that achieve less than the recommended amount of emissions reductions.

Lastly, we note that CARB and the District continue to adopt and implement new control measures that go beyond those that were relied upon in the attainment demonstration for the 1997 ozone NAAQS, such as those that target trucks, consumer products, and agricultural burning for additional reductions, and that will continue to provide for emissions reductions within the San Joaquin Valley into the future.

Comment C-1: CEV suggests that there are additional opportunities for reductions from large stationary sources in the Valley, especially stronger leak detection requirements for oil and gas operations, including active idle oil and gas wells, which the commenter states are more likely to leak VOC and other pollutants. They suggest as a contingency measure that there be more frequent inspections, use of optical gas imaging cameras to detect leaks, and a requirement for timely repairs.

Response to Comment C-1: The District undertook a review of the source categories that include major stationary sources to identify potential contingency measures for the 2008 and 2015 ozone NAAQS. 72 The District concluded that no feasible contingency measures that could achieve emissions reductions within two years of a triggering event were available for these source categories. As described in section III.B. of the proposed rule, we reviewed the District's evaluation in their infeasibility demonstration and agreed with the District's conclusions.

With respect to oil and gas operations in particular, the District reviewed the agency's rules regulating such operations to identify feasible contingency measures for the 2008 and 2015 ozone NAAQS. 73 As described in the section 5.4 of the 2024 SJV Ozone Contingency Measure Plan, six of the rules were amended in 2023 to tighten VOC requirements. Five of the rules were amended specifically to lower the leak detection and repair limit to 500 parts per million by volume (ppmv) to implement best available retrofit control technology (BARCT) as required under State law. 74 The District evaluated lower leak detection and repair thresholds as part of the rule amendment process and found that the incremental cost effectiveness of lowering the leak detection and repair threshold from 500 ppmv to 100 ppmv would be well over $300,000 per ton of VOC reduced. 75 On that basis, the District concluded that lowering the leak detection and repair threshold would not be economically feasible to adopt as a contingency measure. We agree with the District's assessment and conclusion in this regard.

In addition, CARB's Oil and Gas Methane Rule applies to those oil and gas sources in the San Joaquin Valley that are not subject to District requirements. CARB undertook a review of the petroleum production and marketing source categories to identify potential contingency measures for the 2008 and 2015 ozone NAAQS. 76 With respect to leak detection and repair (LDAR), CARB notes that, under the Oil and Gas Methane Rule, LDAR is already mandated on a quarterly basis using a very sensitive methodology (U.S. EPA's Method 21) and that the only exemption that results in a significant number of sources not being subject to LDAR is for equipment handling exclusively heavy oil, which is not economically feasible to control based on analysis using currently available data. 77 For these reasons, CARB concluded that there are no new technologically feasible control measures that CARB can implement as a contingency measure in the Oil and Gas Methane Rule. The EPA agrees with CARB's evaluation and conclusion in this regard.

Comment C-2: CEV suggests that there are opportunities for additional reductions by strengthening and modernizing SJVUAPCD's ISR rule, to account for the growth of distribution centers and related truck traffic in the Valley. They suggest the rule be updated to include tracking of truck activities and suggest that updating the ISR rule could be a contingency measure for ozone.

Response to Comment C-2: Under CAA section 110(a)(5)(A), a state may include in a SIP any ISR program, but the EPA may not require the state to adopt an ISR program as a condition of approval of the SIP. Thus, the District may choose to revise the ISR rule that the District has adopted or adopt an additional ISR rule as a contingency measure, but the EPA cannot require the District to do so, even if adopting such a contingency measure would be feasible and would achieve emissions reductions within two years of the triggering event.

Comment C-3: CEV suggests that the Valley's contingency measure strategy include a pesticide-related contingency measure to reduce VOC emissions. They state that the pesticide category has been under-regulated in the Valley and that residents have expressed concerns about pesticide emissions.

Response to Comment C-3: CARB evaluated the potential for further reduction of VOCs from pesticide use as part of the development of their 2022 State Strategy for the State Implementation Plan (“2022 State SIP Strategy”). As adopted, the 2022 State SIP Strategy includes a pesticides-related committal measure. 78 Specifically, under the 2022 State SIP Strategy, the California Department of Pesticide Regulation (DPR) is committed to the development and implementation of a statewide regulation to address both cancer and acute risks to non-occupational bystanders from the use of 1,3-Dichloropropene (1,3-D), which is a VOC and is a fumigant used to control nematodes, insects, and disease organisms in soil. 79 This regulation is under development by DPR and will address cancer and acute risk from the use of 1,3-D by shifting to application methods with lower 1,3-D emissions or use of other measures to reduce exposure. 80 DPR estimates that the regulation would reduce VOC emissions in the San Joaquin Valley by 0.4 tpd by 2037. 81

Contingency measures are measures that are held in reserve until triggered by, for example, a determination by the EPA that an area has failed to attain the NAAQS by the applicable attainment date. Because this pesticides-related measure is intended to be implemented upon adoption and not to be held in reserve, it is unavailable for adoption as a contingency measure.

Comment D-1: The CRA alleges that the EPA's proposed action suffers from procedural deficiencies under the Paperwork Reduction Act, the Regulatory Flexibility Act/Small Business Regulatory Enforcement Fairness Act (SBREFA), and the Unfunded Mandates Reform Act. The CRA asserts that the action, if finalized, would approve “contingency measures” for the San Joaquin Valley for the 1997 ozone NAAQS under CAA sections 110(k) and 172(c)(9). By doing so, the CRA contends the EPA would federalize the contingency measures and impose obligations that carry concrete, foreseeable impacts on small entities in the San Joaquin Valley and incorporate information collection and fee/reporting requirements that require proper review under the Paperwork Reduction Act, the Regulatory Flexibility Act/SBREFA, and the Unfunded Mandates Reform Act.

In addition, even if the EPA ultimately concludes that the action is not economically significant for the purposes of Executive Order (E.O.) 12866, the CRA contends that the EPA should either submit the action for review under the E.O. or explain why it does not meet the criteria of section 3(f)(4) of the E.O.. The CRA asks the EPA to supplement the record, conduct the required analyses (or narrow the approval accordingly), and to extend the comment period by at least 60 days to allow members of the public to review any additional analyses that EPA may provide.

Response to Comment D-1: We disagree that further analysis is required or appropriate under the Paperwork Reduction Act, Regulatory Flexibility Act/SBREFA, or the Unfunded Mandates Reform Act, and thus, there is no need to extend the comment period.

In the action that the EPA is finalizing in this document, the EPA is approving the Smog Check Contingency Measure SIP as meeting the attainment-related contingency measure requirements of CAA section 172(c)(9) and as fulfilling the State's commitment made in connection with the EPA's approval of the 1997 ozone NAAQS plan for San Joaquin Valley. The EPA is not approving any contingency measure into the SIP. The Smog Check Contingency Measure SIP relies on the Smog Check Contingency Measure, which the EPA approved in a separate action published at 89 FR 56222 (July 9, 2024). Thus, even if we agreed that approval of control measures or contingency measures as part of a SIP imposes obligations that the EPA must evaluate under the Paperwork Reduction Act, the Regulatory Flexibility Act/SBREFA, and the Unfunded Mandates Reform Act, which we do not, there would be no obligations to evaluate with respect to this particular SIP action because we are not approving any specific measures as part of this action. Rather, we are finding that the measure that we previously approved, in conjunction with the State's justification for not adopting contingency measures sufficient to provide for emissions reductions amounting to OYW of progress, meets the attainment-related SIP requirements of CAA section 172(c)(9) for the San Joaquin Valley for the 1997 ozone NAAQS.

Second, this action is not a significant regulatory action subject to Office of Management and Budget (OMB) review under E.O. 12866 (“Regulatory Planning and Review”) because it is a SIP approval, which is a category of regulations that has been exempted from review under section 3(d)(4) of E.O. 12866. 82 Section 3(f)(4) of the E.O., 83 which identifies a type of “significant regulatory action” under the E.O., is not relevant because “significant regulatory action” is a type of “regulatory action” that is defined by reference to the terms “regulation” or “rule,” and SIP approvals are exempt from consideration as a “regulation” or “rule” for the propose of the E.O.

Comment E-1: This commenter asserts that the EPA has not adequately demonstrated a rational connection between the facts found and the choice made, citing Motor Vehicle Manufacturers Assoc. v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29 (1983). The commenter also states that where an agency changes policy or adopts a position with foreseeable public health implications, it must provide a reasoned explanation supported by evidence and that the proposed rule fails to meet this standard. The commenter also asserts:

• The EPA has an obligation to assess cumulative impacts and disproportionate effects on overburdened communities, consistent with Executive Order 12898 and EPA's environmental justice guidance;

• In connection with any EPA action that elevates risks of increased emissions, delayed compliance, or weakened oversight, which directly threatens protected interests, the EPA must demonstrate that the proposed action will not result in adverse public health outcomes; and

• The EPA must consider reasonable alternatives that would achieve statutory objectives with less risk to public health and the environment.

Response to Comment E-1: The commenter does not indicate in what way the EPA has not adequately demonstrated a rational connection between the facts found and the choice made or in what way the proposed rule fails to provide a reasoned explanation supported by evidence. To the extent that the commenter is referring to the EPA's reliance on the principles in the Revised Contingency Measure Guidance, we provide our explanation for, and application of, the principles in the guidance in section 1 of the Revised Contingency Measure Guidance and section III.B. of the proposed rule. We disagree with the other comments for the following reasons:

• The EPA does not have an obligation to assess cumulative impacts and disproportionate effects on overburdened communities, consistent with Executive Order 12898 and EPA's environmental justice guidance because Executive Orders 12898, 14094, and 14096 have been rescinded and because those three executive orders were the foundation for the development of the EPA environmental justice guidance. 84

• The final action that the EPA is taking in this document would not increase emissions, delay compliance, or weaken oversight. The final action approves a SIP submission as meeting the attainment-related contingency measure requirements under CAA section 172(c)(9) for the San Joaquin Valley for the 1997 ozone NAAQS and finds that the State has fulfilled a commitment made in connection with the EPA's 2012 approval of the attainment plan for the San Joaquin Valley for the 1997 ozone NAAQS.

• The EPA is not required to consider reasonable alternatives that would achieve statutory objectives with less risk to public health and the environment. Under the CAA, the EPA is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the CAA. In this role, EPA is not required to compel the state to consider alternatives to the choices made by the state, provided that the state's choices meet the criteria of the CAA. In this instance, the EPA is concluding that the submission by the State meets the applicable requirements, and for that reason, we are not required to compel the State to consider alternatives.

Comment F-1: The anonymous commenters both assert that the 1997 ozone standard and related requirements are insufficient to address the air quality problems in the San Joaquin Valley. One of the anonymous commenters also notes that the contingency measure submitted for the 1997 ozone standard is not adequate for the area because it only targets one source: pollution from vehicles. This commenter notes that there are other sources of emissions that could potentially be controlled in the Valley and points out that the contingency measures proposed for the 2008 and 2015 ozone NAAQS include measures that aim to reduce emissions from other sources, such as coatings and paints. This commenter also suggests additional contingency measures such as VOC emissions from industrial and agricultural sources.

Response to Comment F-1: We note that the EPA continues to review and update, when necessary, the national ambient air quality standards (NAAQS) for ozone and other pollutants. Subsequent to setting the eight-hour ozone NAAQS in 1997, the EPA tightened the ozone NAAQS from 0.08 ppm to 0.075 ppm (in 2008) and then to 0.070 ppm (in 2015). The EPA works with states to implement the 2008 and 2015 ozone NAAQS through review and action on updated rules and regulations and other required SIP revisions.

Meanwhile, CARB and the District have adopted and continue to implement control measures that go beyond the measures that were relied upon in the attainment demonstration for the 1997 ozone NAAQS, such as those that target trucks, consumer products, and agricultural burning for additional reductions, 85 and that will continue to provide for emissions reductions within the San Joaquin Valley into the future. Due to these measures, CARB and the District predict Valley-wide emissions reductions of 35 percent and 5 percent of NO X and VOC, respectively, between 2023 (the modeled attainment year for the 1997 ozone NAAQS) and 2031 (the attainment year for the 2008 ozone NAAQS) based on implementation of control measures adopted prior to 2022. 86

With regard to SIP requirements for contingency measures, we expect to take action on SIP submissions for the 2008 and 2015 ozone NAAQS for San Joaquin Valley in the near future. Notwithstanding these upcoming actions, the EPA continues to implement the 1997 ozone NAAQS for certain anti-backsliding purposes, such as contingency measures and the section 185 fee program (fees on sources in the area levied upon failure to attain).

For the reasons set forth in our proposed rule and in our responses to comments, we are taking final action to approve the Smog Check Contingency Measure SIP with respect to the CAA's attainment-related contingency measure requirement under CAA section 172(c)(9) for the San Joaquin Valley area for the 1997 ozone NAAQS. Our approval relies on the previously-approved contingency measure for the 1997 ozone NAAQS for the San Joaquin Valley ( i.e., the Smog Check Contingency Measure) and the justifications from CARB and the District for not adopting additional contingency measures to provide for the recommended amount of emissions reductions for such measures. Based on this approval, the EPA is also taking final action to determine that the State of California has fulfilled the commitment made by the State in connection with a previous approval action to develop, adopt, and submit attainment contingency measures for the San Joaquin Valley for the 1997 ozone NAAQS meeting the requirements of CAA section 172(c)(9).

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. 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 OMB under Executive Order 12866 (58 FR 51735, October 4, 1993);

• Is not subject to Executive Order 14192 (90 FR 9065, February 6, 2025) because SIP actions are exempt from review under Executive Order 12866;

• 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 subject to Executive Order 13045 (62 FR 19885, April 23, 1997) because it approves a state program;

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

• 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.

In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where the 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).

This action is subject to the Congressional Review Act (CRA), and the EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by May 22, 2026. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements (see section 307(b)(2)).

Throughout this document “we,” “us,” and “our” means the EPA.

The background for this action is discussed in detail in our July 24, 2025  1 and September 5, 2025  2 proposals (referred to as the “proposals”). In those actions we proposed to approve Texas' May 13, 2020, RACT SIP revision and May 12, 2020, SIP revision to 30 TAC Chapter 115 and Chapter 117 as meeting the 2008 8-hour ozone Serious classification RACT level control requirements consistent with section 172(c)(1) and 182 of the CAA. The EPA's July 24, 2025, action proposed to determine that the Texas SIP revisions fulfill the Serious NO X RACT requirements for the DFW NAA for the 2008 ozone NAAQS and to approve the concurrent Chapter 117 rule revisions. The EPA's September 5, 2025, action proposed to determine that the Texas SIP revisions meet the Serious RACT requirements for CTG and non-CTG VOC major sources  3 for the 2008 ozone NAAQS and to approve the concurrent Chapter 115 rule revisions. The relevant Texas SIP revisions included Texas' finding that previously approved federally enforceable limits on cement kilns continue to fulfill RACT requirements, and CTG RACT negative declarations for the following categories of sources fiberglass boat manufacturing materials, surface coating for flat wood paneling, letterpress printing, shipbuilding and ship repair surface coating operations, vegetable oil manufacturing, and rubber tire manufacturing categories. Texas also submitted negative declarations for several CTG categories for Wise County: graphic arts—rotogravure and flexography, flexible package printing, refinery vacuum producing systems and process unit turnarounds, wood furniture manufacturing, and manufacture of synthesized pharmaceutical products. Texas stated in its May 13, 2020, submittal that it did not locate any major sources subject to the NO X Emissions from Nitric or Adipic Acid Manufacturing Alternative Control Techniques (ACT) document. The EPA has already taken final action through a different rulemaking process to approve the requirement for implementation of RACT for sources covered by the 2016 Oil and Natural Gas Industry Control Techniques Guidelines (CTG). 4

During the EPA's July and September 2025 public comment periods, the EPA received a total of six comments on our proposals. As explained in further detail below, several comments were received on a NO X Technical Support Document (TSD) that is not associated with this action and those comments do not reflect our evaluation of Texas' RACT SIP submittal or current Texas rules. In the NO X TSD associated with this action, the EPA gathered and analyzed relevant information including Texas' rulemaking record which contained information on specific control technologies and technical and economic feasibility for the Emissions Specifications for Attainment Demonstration (ESAD) rates, Texas Register documents which included Texas' response to comments on the rulemaking, and recent documents issued by EPA (such as the 2017 OTC Draft White Paper on Control Technologies, OTC State Regulations from Eight Source Categories, 2019 OTC State Regulations from Eight Source Categories, and 2019 OTC Regulatory and Technical Guideline for Control of Nitrogen Oxides (NO X ), and Emissions from Natural Gas Pipeline Compressor Fuel‐Fired Prime Movers). In the VOC TSD for this action, the EPA gathered and analyzed relevant information including comparing Texas' CTGs and non-CTG major source RACT rules to other relevant state VOC RACT rules, and reviewed EPA's RACT/BACT/LAER Clearinghouse (RBLC), NSPS, MACT standards, and NESHAPs, where applicable. Consistent with this analysis, we proposed to determine that Texas' EPA-previously-approved Chapters 115 and 117 rules still fulfill the RACT level of control requirements for sources of VOC and NO X in the DFW Serious ozone nonattainment area for the purpose of the 2008 ozone NAAQS.

In this final action, we are responding to comments received on both NO X and VOC proposals. The comments are available in the docket for this action.

Comment: Commenters stated that the EPA failed to incorporate environmental justice analyses.

Response: First, the EPA notes that Executive Order 14148, “Initial Rescission of Harmful Executive Orders and Actions” (90 FR 8237, January 28, 2025), revoked certain past Executive Orders that specifically addressed environmental justice concerns, including Executive Order 12898 and Executive Order 14094. Further, under section 110(k)(3) of the CAA, the EPA is required to approve a SIP submission that complies with the provisions of the CAA. The EPA has determined that the RACT SIP submittals at issue in this action meet all applicable requirements of the CAA, and therefore the EPA is finalizing approval of the relevant SIP revisions. Implementation of RACT is designed to assist with improving air quality in the nonattainment area.

Comment: Commenters claim that the EPA provided a cursory NO X RACT analysis in its TSD.

Response: As an initial note, commenters appear to be commenting on a TSD that is not associated with this action and is neither fully cited nor made available for additional reference purposes by commenters. Specifically, commenters reference a document titled “EPA Technical Support Document (TSD), Oxides of Nitrogen (NO X ) Reasonably Available Control Technology (RACT): Dallas—Fort Worth (DFW) 2008 8-Hour Ozone Nonattainment Area,” Docket No” (the commenters' reference does not include a docket number). Furthermore, in some comments, commenters reference TSD page numbers that are greater than 27 pages, which is the length of the TSD for this action.

The commenters reference a TSD that is not the NO X TSD that the EPA published in the docket for the proposed rulemaking. The NO X TSD for the proposed rulemaking is titled, “Technical Support Document, Reasonably Available Control Technology Application Analysis for Nitrogen Oxides in the Dallas-Fort Worth 2008 Ozone Serious Nonattainment Area.”

The commenters' reference to an unrelated TSD is evidenced further by other comments, which will be addressed on a comment-by-comment basis in this Response to Comments section. However, even if commenters were referring to the correct TSD, the EPA still disagrees with the comment. The EPA's TSD provides an extensively detailed evaluation of Texas' NO X RACT limits that includes a review and comparison to recent Best Available Control Technology (BACT) determinations in the RBLC, recent documents issued by the EPA to compare to Texas' SIP submittal, and rules in other states where similar sources exist in nonattainment areas to support our approval. 5

Comment: Commenters claim that Texas failed to impose new RACT emissions limits in Wise County, despite such limits being technologically and economically feasible.

Response: Referencing the incorrect TSD, commenters make a broad general claim regarding all RACT limits in Wise County. This general comment did not provide any technological or economic feasibility information specific to any limit for any category of sources to support their cursory statement for sources in Wise County. We note that other comments with greater specificity to the type of source and specific limits were received and our responses to those comments follow below in this document. The EPA's NO X TSD (available in the docket for this action) details relevant information, including BACT, RACT rules in other states, the 2019 OTC Regulatory and Technical Guideline for Control of Nitrogen Oxides (NO X ) Emissions from Natural Gas Pipeline Compressor Fuel‐Fired Prime Movers, the 2017 OTC Draft White Paper on Control Technologies, and OTC State Regulations from Eight Source Categories, considered in support of our proposed approval of the Wise County RACT rates (pages 9-12 of the NO X TSD).

Comment: Commenters claim that the EPA's TSD states that the EPA is conditionally approving the NO X RACT limits for the Martin Marietta Cement plant and that these limits are not part of the SIP submission.

Response: Commenters appear to be commenting on an unrelated TSD to this action. The EPA took final action to fully approve these limits into the SIP on February 22, 2019 (84 FR 5601).

Comment: Commenters state that NO X emissions limits in California's South Coast Air Quality Management District (SCAQMD) for electric generating units (EGUs) are lower than Texas' RACT rules. Commenters point to the SCAQMD's 2022 proposal of Rule 1135(d)(1) table 1, which limits NO X emissions from EGUs to 5 parts per million by volume (ppmv) and lower. Commenters claim, with specific TSD page references, that the EPA's TSD does not address RACT for gas-fired EGUs and only references the 1994 Alternative Control Techniques (ACT) for utility boilers.

Response: Similar to previous comment responses in this document, commenters reference specific pages of an unrelated TSD to support their comment. Again, the specific pages referenced in their comment do not correspond to the TSD associated with this action. The EPA's NO X TSD associated with this action does not reference the 1994 ACT as the basis for our approval. The EPA disagrees that our NO X TSD fails to address EGUs (see pages 24-26 of the NO X TSD included in the docket).

Based on the information made available in the docket for this action and in consideration of the comment received, we are responding to provide additional clarity concerning the SCAQMD Rule 1135(d)(1) limit, aside from the commenters review of the unrelated TSD and rules. The SCAQMD Rule 1135(d)(1) is titled “Emissions Limits for Boilers and Gas Turbines”, and states that the emissions limits in table 1 apply “On and after January 1, 2024”. In response to this comment, EPA reviewed SCAQMD's 2018 “Draft Staff Report, Proposed Amended Rule 1135” (the “Staff Report”). 6 Of particular relevance in our review of the Staff Report, is SCAQMD's determination that it has the authority to require equipment replacement to meet state emissions standards: “SCAQMD retains broad statutory authority to adopt emission-control requirements for stationary sources, and that authority may require equipment replacement, as long as the requirement is not arbitrary and capricious.”  7

With respect to boilers, the Staff Report examines all of the natural gas boilers to which the limit would apply. The Staff Report states that “18 of 23 natural gas boilers are planned to be shutdown. Of those 18 natural gas boilers, all but four of them will be shut down by January 1, 2024. . . . Another . . . two natural gas boilers scheduled for shutdown in 2025 and the two natural gas boilers scheduled for shutdown in 2029. Three natural gas boilers are expected to be repowered to natural gas turbines or renewable power sources. However, if they are not, they will be required to meet the proposed limit. . . . The last two natural gas boilers have not been in operation since 2012.” The EPA notes that of the affected natural gas boilers, 20 out of 23 sources will meet the Rule 1135(d)(1) limit through shutdowns. The EPA also notes that the remaining three are expected to be either converted to natural gas-fired turbines (thus will no longer be boilers) or repowered to renewable power sources (thus will no longer be gas-fired). Notably, the Staff Report does not include any evaluation or even identification of any “reasonably available control technology considering technical and economic feasibility”  8 that could be applied to these existing gas-fired boiler units to meet the Rule 1135(d)(1) limit with the unit continuing to remain a natural gas-fired boiler.

It appears that the Rule 1135(d)(1) limit that commenters claim to be RACT for natural gas-fired boiler EGUs is actually a specific RACT limit for natural gas-fired boiler EGUs that will be converted to natural gas-fired turbines or repowered to renewables, but we do not agree that Rule 1135(d)(1) limits are RACT for natural gas-fired boiler EGUs where the state does not require conversion to natural gas-fired turbines or repowering to renewables for this category of sources to meet RACT. Therefore, SCAQMD Rule 1135(d)(1) is not comparable to Texas' Chapter 117.1310 limits due to the differences in the category of sources regulated.

For natural gas-fired utility boilers, our NO X TSD (see pages 24-26) detailed relevant information considered, including but not limited to, EPA's 2023 EGU NO X Mitigation Strategies Final Rule TSD and RACT rules in other states for this category of sources. EPA concluded that Texas' ESAD limits for utility boilers are comparable to performance of Selective Catalytic Reduction (SCR) on gas-fired utility boilers and fulfill RACT requirements.

With respect to stationary gas turbine EGUs, the Staff Report examines both natural gas combined cycle and simple cycle gas turbines. All of the combined cycle gas turbines are equipped with selective catalytic reduction (SCR) pollution control equipment, and 15 out of 23 units are already permitted at 2 parts per million (ppm), which is the Rule 1135(d)(1) limit for this category of sources. Of the remaining 8 units, two are limited to 2.5 ppm and the remaining units have limits ranging from 7 ppm-9 ppm. For simple cycle gas turbines, out of the total 59 units, all but two are equipped with SCR. The two units without SCR are used sporadically to support renewable power generation and can use the low-use provisions to be exempt from the limit. For the remaining 57 SCR equipped units, 37 units are permitted at or below the Rule 1135 limit of 2.5 ppm, and 20 units are equipped with SCR and have a permit emission limitation of 5 ppm.

It appears that the Rule 1135(d)(1) limits, which commenters claim to be RACT for all stationary gas turbine EGUs, may be RACT specifically for stationary gas turbines with SCR EGUs that are already permitted at or near Rule 1135(d)(1) rates, but we do not agree these rates are RACT for existing units without SCR where the state does not require replacement to meet state limits. Therefore SCAQMD Rule 1135(d)(1) rates are not comparable to Texas' Chapter 117.1310 limits due to the differences in the category of sources regulated.

As detailed on page 26 of our NO X TSD for stationary gas turbines EGUs, the EPA reviewed relevant information, including 2017 OTC Draft White Paper on Control Technologies and OTC State Regulations from Eight Source Categories and RACT rules in other states, in support of our approval.

Comment: Commenters claim Texas fails to establish RACT for gas-fired boilers and process heaters because Texas' RACT limits for gas-fired boilers are higher than other state's RACT rules. In support of their claim, commenters refer to California SCAMQD Rule 1146(c)(1)(A) which limits NO X from industrial boilers and process heaters to a NO X limit of 0.035 lb/MMBtu or lower, and a New York State NO X RACT limit of 0.05-0.08 lb/MMBtu for gas-fired boilers.

Response: SCAQMD Rule 1146 applies to boilers, steam generators, and process heaters. Specifically, SCAQMD Rule 1146(c)(1)(A) applies to “All Units Fired on Gaseous Fuels”. Under the Texas rules, 30 TAC Chapter 117.410 regulates process heaters and gas-fired boilers as separate categories. Considering the significant differences in the applicability of Rule 1146(c)(1)(A) and the applicability of Texas' Chapter 117.410 rates (explained further below), the EPA disagrees with commenters claims regarding natural gas-fired boilers and process heaters for categories of sources in nine of the ten DFW NAA Counties. For these two categories of sources, Texas' Chapter 117.410 includes ESAD limits that are applicable to nine out of ten counties included in the DFW NAA. These Texas ESAD rates include a range of limits and are comparable to SCAQMD's Rule 1146(c)(1)(A) rates and lower than the New York State RACT rule cited by the commenters (see pages 12 and 14 of the NO X TSD). The remaining county in the DFW NAA, Wise County, does not have any gas-fired boilers.

With respect to process heaters in Wise County, EPA notes that SCAQMD 1146 (c)(1)(A) rule applies to “all units firing gaseous fuels” and the rule is applicable to “boilers, steam generators, and process heaters”, not solely to process heaters. The EPA further notes that “process heaters” have a different definition than “thermal fluid heaters”. In response to this comment, EPA reviewed the record associated with the development of the limits in SCAQMD Rule 1146. 9 The SCAQMD “Final Staff Support” report extensively documents the testing data of the units to which these limits apply. 10 There was no discussion on “process heaters” in the Final Staff Support document, thus EPA is unable to verify that any process heaters exist or were considered in setting the limit for Rule 1146(c)(1)(A) “All Units” limit that commenters claim to be RACT for process heaters. It appears that SCAQMD's Rule 1146(c)(1)(A) that commenters claim to be RACT for process heaters is actually RACT specifically for gaseous fuel fired boilers and steam generators and not process heaters. Therefore, SCAQMD's Rule 1146(c)(1)(A) is not comparable to Texas' Chapter 117.410 limits due to the differences in the category of sources regulated.

Thermal fluid heaters can be considered a subcategory of process heaters and are subject to SCAQMD Rule 1146(c)(1)(L) (which commenters do not cite, but we discuss here since it regulates a subcategory of process heaters). In the Final Staff Support document, there was a discussion on “thermal fluid heaters”, which states that “Source tests records from a total of 14 thermal fluid heaters ranging from 2 MMBtu/hr to 10 MMBtu/hr with emissions limit of 30 ppm were evaluated. Five out of 14 units source tested substantially (>64%) below the permit limit. Out of the five units, 3 units were new or modified equipment permitted at BACT and 2 units utilized burner replacements. This shows that it is technically feasible for thermal fluid heaters applicable to Rule 1146.1 and Rule 1146 thermal fluid heaters to achieve an emission level of 12 ppm with burner replacements after providing at least 10% buffer for rule compliance.”  11 The EPA notes that only “thermal fluid heaters” already achieving 30 ppm were evaluated and that the Rule 1146 limit could only be achieved with burner replacements of existing units having undergone a “major modification” to trigger the installation of control equipment that met BACT requirements. It appears that SCAQMD determined existing units could not meet these limits without BACT level control. As a result, SCAQMD Rule 1146(c)(6) extends the date of compliance for existing sources as far out as 2033; for units permitted to construct or permitted to operate prior to “December 7, 2018, must meet the limits in Rule 1146(c)(1) by 2033 or when 50% or more of the unit's burners are replaced whichever is earlier.” It further appears that SCAQMD 1146(c)(1)(L) may be RACT for existing units with emissions limits of 30 ppm and will have a 50% burner replacement at some future date, but we do not agree that these rates are RACT for existing process heaters where the state does not require a 50% burner replacement at some future date to meet a future compliance date. Therefore, SCAQMD Rule 1146 (c)(1)(L) is not comparable to Texas' Chapter 117.405 limits for Wise County due to the differences in the category of sources regulated. The EPA's NO X TSD details relevant information, including RACT rules in other states and economic and technical feasibility issues considered by Texas in support of our approval for the Wise County RACT limits for process heaters (see page 10 of the NO X TSD).

Comment: Referencing pages 37 of a TSD, commentors claim that EPA's TSD only considered the 1994 ACT for process heater and industrial boilers.

Response: Commenters again reference specific pages of an unrelated TSD to support the basis of their comment. As the EPA has previously detailed in this document, the specific pages referenced by the commentor do not correspond to the TSD associated with this action and included in the docket for this action. The EPA's NO X TSD associated with this action does not reference the 1994 ACT as the basis for our approval. The EPA's analysis of process heaters (see pages 10 and 14 of the NO X TSD) did not consider the 1994 ACT. The EPA considered and discussed in a previous response, the relevant information and consideration for the process heaters category of sources in support of its proposed approval for this category of sources.

Comment: Commenters provided comments related to the SCAQMD's Rule 1134, Emissions of Oxides of Nitrogen From Stationary Gas Turbines, and specifically Rule 1134(d)(3) related to Emissions Limitations. Commenters state that SCAQMD's Rule 1134(d)(3) applicability threshold starts at 0.3 megawatt (MW) stationary gas turbines and that Texas only sets limits for 10 MW or greater units. Commenters claim that Texas' limits are higher than SCAQMD's Rule 1134, which range from 2-12.5 ppm. Commenters also included specific comments related to turbine units located in Bexar County and Wise County. In Bexar County, commenters stated that turbine units must be subject to RACT. For Wise County, commenters claim that the TSD quotes reasoning from Texas for limits in Wise County and generalized arguments about the cost of implementing retrofit technology without providing adequate support. Commenters reference specific page numbers from a TSD to claim that the TSD cites information from 1994 and prior RACT approval.

Response: As previously detailed in this action, commenters are referencing specific pages of an unrelated TSD and the EPA's NO X TSD associated with this action does not reference the 1994 ACT as the basis for our approval. EPA disagrees that its NO X TSD cited information from 1994 and prior RACT approvals as the basis for our approval. Commenters cited to pages that are not present in our NO X TSD that was included in the docket. The EPA also disagrees that Texas' limits are only applicable to stationary gas turbines greater than 10 megawatts (MW); commenters appear to be commenting on threshold applicability rules that do not exist for the DFW NAA. RACT for Bexar County is outside the scope of this action because Bexar County is not part of the DFW NAA. The DFW NAA under the 2008 8-hour ozone NAAQS includes the counties of Collin, Dallas, Denton, Ellis, Johnson, Kaufman, Parker, Rockwall, Tarrant, and Wise.

Based on the information made available in the docket for this action and consideration of the comment received, we are responding to provide additional clarity concerning stationary gas turbines. All existing stationary gas turbines are regulated in the DFW NAA under Chapters 117.405 and 117.410.

SCAQMD Rule 1134(d)(3) which commenters claim to be RACT, states that the table 1 limits are applicable “On and after January 1, 2024, or when required by a Permit to Construct or Permit to Operate, whichever occurs first”. The EPA notes that a Permit to Construct is required for new sources and does not apply to existing sources.

SCAQMD Rule 1134(d)(3) table 1 lists five different stationary gas turbine limits that vary depending on the type of turbine (simple or combined cycle), and type of fuel (natural gas, pipeline gas, produced gas, or other gas). Texas Chapter 117.405 and Chapter 117.410 apply limits based only upon the turbine's size. As such, EPA believes that the limits cannot be directly compared because Texas may not have all of the same types of stationary gas turbines as SCAQMD. The EPA notes that Texas' limit of 0.032 lb/MMbtu (which converts to 9 ppm) for the largest size of stationary gas turbine, in nine of the DFW NAA Counties, is comparable to SCAQMD's limit of 8 ppm for Natural Gas Simple Cycle Pipeline Gas Turbines.

In response to this comment, the EPA reviewed SCAQMD's 2018 “Preliminary Draft Staff Report, Stationary Gas Turbines” (the “Preliminary Draft Staff Report”). 12 Table 2-2, Natural Gas Combined Cycle Gas Turbines, identifies information on the sources in this category. The EPA's review notes that all but one of units appear to be operating at or just above the limits provided for in Rule 1134(d)(3) for sources that commenced operation in 2009 or later, equipped with SCR as new or replacement units. Preliminary Draft Staff Report, Table 2-3—Natural Gas Simple Cycle Gas Turbines identifies the information on sources in this category. All but two of the units permitted at 5 ppm or lower have SCR and were installed in 2001. SCAMQD recognizes that a unit would have to be a new or replacement unit with SCR by providing a low-use provision in Rule 1134(h)(4) for existing units without SCR that are unable to meet the limit without replacement. Furthermore, the Preliminary Draft Staff Report discusses SCAQMD's determination that it has the authority to require equipment replacement to meet state emissions standards: “The SCAQMD retains broad statutory authority to adopt emission-control requirements for stationary sources, and that authority may require equipment replacement, as long as the requirement is not arbitrary and capricious.”  13

It appears that the use of SCR either as a new installation or as a replacement unit is the basis of Rule 1134(d)(3) limits. While Rule 1134(d)(3) limits may be RACT for gas-fired turbines with SCR where the state requires existing units to be replaced to meet RACT, we do not agree that Rule 1134(d)(3) limits are RACT for existing gas-fired turbines where the state does not require units to be replaced to meet RACT. Therefore, SCAQMD Rule 1134(d)(3) is not comparable to Texas' Chapter 117.405 and 117.410 due to the differences in sources regulated.

As detailed in our analysis in the NO X TSD, Texas stated that “Compliance with the emission specification of 0.032 lb/MMBtu for stationary gas turbines and duct burners used in turbine exhaust ducts may require the installation of SCR. The emission specifications for all stationary gas turbines . . . are expected to be achievable through combustion modifications such as water or steam injection or other modifications”. 14

Texas considered the same technologies as identified as SCAQMD when determining the Chapter 117.410 ESAD rates for the nine DFW NAA counties. However, applying the same control technology to existing units and achieving the same rate as a new or replacement unit subject rates presents reasonable technological and economic feasibility issues.

For Chapter 117.405 rates in Wise County, Texas stated “These limits for industrial gas turbines are based on . . .comments and supplemental information provided by affected source owners and operators: retrofit options or kits to reduce NO X emissions may not exist for some of these particular makes and models; some units have already been retrofitted with dry low-NO X combustors to reduce emissions and thus may be unable to further reduce NO X emissions; and in some cases the cost to retrofit the unit may be more than the cost of a new unit. . . Additional information provided by commenters indicated unit performance variability among various turbine model ratings, and stack test data provided by an affected source owner or operator for specific units identified in Wise County, indicated greater unit-specific performance variability. The commission therefore determined that 0.55 lb/MMBtu for units rated less than 10,000 hp is an appropriate RACT control level considering current performance levels of existing units in Wise County”. 15

As detailed in the NO X TSD on pages 11-12 for Wise County and pages 15-16 for the other nine DFW NAA Counties, the EPA considered relevant information, including the 2017 OTC Draft White Paper on Control Technologies and OTC State Regulations from Eight Source Categories, 2019 OTC Regulatory and Technical Guideline for Control of Nitrogen Oxides (NO X ) Emissions from Natural Gas Pipeline Compressor Fuel‐Fired Prime Movers, and RACT rules in other states in support of its proposed approval of Texas' limits for this category of sources.

Comment: Commenters claim that Texas fails to establish RACT for gas-fired, stationary, internal combustion engines. Commenters state that the State of New York limits gas-fired, stationary internal combustion engines with a mechanical output rating of 200 bhp or greater to 1.5 g/bhp-hr which applies to rich-burn and lean-burn engines. Commenters claim that Texas' rule does not cover lean-burn engines. Commenters also claim that the EPA's TSD provided no support for our proposed approval and cited information from 1994 and previous approvals. Commenters cite to pages in a TSD in support of their statements.

Response: Based on the information made available in the docket for this action and consideration of the comment received, we are responding to provide additional clarity concerning RACT for gas-fired, stationary, internal combustion engines. Again, as previously detailed in this action, commenters are referencing specific pages of a TSD that is not associated with this action. The New York State rule that commenters cite is applicable to 200 hp or greater engines. This limit from a New York State rule is for engines that are only fired with natural gas. New York State's RACT limits for engines that are fired with other types of fuel range from 2.0-2.3 grams per brake hp-hr (g/bhp-hr). Unlike New York State's rule, which has a size applicability threshold, Texas' limits for stationary internal combustion engines apply to all engines. Texas' limits for rich-burn engines in nine of the ten counties in the DFW NAA are lower than New York State's RACT limit (see page 14 of the NO X TSD). Texas' limits in Wise County are comparable to the New York State rule (see pages 10-11 of the NO X TSD).

Commenters incorrectly claim that Texas' rules do not cover lean-burn engines. Texas' Chapter 117.405 and 117.410 rules limit NO X emissions from lean-burn engines and these emission limitations apply to all sizes of engines, not just those of 200 brake hp or greater (see pages 10-11, and 14 of the NO X TSD). Texas presented economic considerations in setting the rate for pre-2015 lean-burn engines in Wise County (discussed in detail in a later comment in this action). Texas does not apply different limits for different fuels, unlike New York State's rule. Wise County's RACT rate for post-2015 engines, 2.0 g/hp-hr, is comparable to New York's RACT rates considering all fuel types. For the other nine counties in the DFW NAA, all ESAD rates for lean-burn engines are lower than New York State's RACT rule (see pages 10-11, and 14 of the NO X TSD). The EPA disagrees that our NO X TSD cited 1994 information and past approvals as the basis for its proposed approval. The NO X TSD for this action details our review of relevant information, including 2019 OTC Regulatory and Technical Guideline for Control of Nitrogen Oxides (NO X ) Emissions from Natural Gas Pipeline Compressor Fuel‐Fired Prime Movers, 2017 OTC Draft White Paper on Control Technologies and OTC State Regulations from Eight Source Categories and RACT rules in other states for this category of sources. Commenters appear to have reviewed a TSD other than the one associated with this action.

Comment: Commenters made a claim that, for gas-fired stationary engines where Texas and the EPA believes that existing rules constitute RACT, they must provide justification that stronger controls are infeasible. Commenters claim that the cost of these controls must be computed in order to know whether the retrofit would be economically feasible. Commenters state that Texas acknowledges that the limits adopted for Wise County are less stringent than elsewhere in the DFW area.

Response: Commenters present no new technologies or other RACT limits that are lower than the ESAD limits in nine out of the ten counties in the DFW NAA for this category of sources. Commenters also do not present any cost data demonstrating the economic feasibility of new retrofit technologies for sources in Wise County. The EPA acknowledges that the Wise County RACT rates for lean burn engines appear to be higher than the other nine counties' ESAD limits. While the Wise County RACT rates for lean burn engines appear to be higher than the ESAD limits for the other nine counties in the DFW NAA, Texas addressed this issue in their rulemaking record. Specifically, Texas stated that requiring the same limits in Wise County “may necessitate the installation of SCR technology. SCR would cost more than the technologies already evaluated for the particular stationary engines in Wise County, and would likely result in the replacement of many of the gas-fired lean-burn engines in Wise County. Such an outcome is contrary to the definition of RACT, i.e., the lowest emission limitation that a particular source is capable of meeting by the application of control technology that is reasonable available considering technological and economic feasibility. A control level cannot represent RACT for a “particular source” if it is more cost effective to replace that source with an entirely new source in order to meet the emission limitation. Additionally, the commission is allowed to make source-specific RACT determinations, as the definition of RACT states. The commission contends that the NO X emission specifications in adopted § 117.405(b)(2)(B) present RACT for the particular gas-fired lean-burn engines in Wise County.”  16

As stated on page 11 of the NO X TSD, EPA reviewed recent information including, New York State's RACT limit, 2019 OTC Regulatory and Technical Guideline for Control of Nitrogen Oxides (NO X ) Emissions from Natural Gas Pipeline Compressor Fuel‐Fired Prime Movers, 2017 OTC Draft White Paper on Control Technologies and OTC State Regulations from Eight Source Categories, and Texas' rulemaking records, in support of its proposed approval of the Wise County RACT limits and ESAD limits for this category of sources (see pages 11 and 14 of the NO X TSD).

Comment: Commenters claim that the EPA's Federal Register publication is inadequate, because the proposal does not identify the specific facilities that are the subject of the rule making and a person would have no way of knowing whether to be “interested” in the rule making without resorting to the technical support document in the docket.

Response: The EPA disagrees with the comment. We are required to provide adequate notice to the public and interested parties, and we did this through publishing a document in the Federal Register , where we outlined Texas' RACT program featuring rules for specific industry sectors. In that notification, we also provided our analysis to support why Texas' SIP revisions and existing rules fulfill the Serious RACT requirements for the DFW nonattainment area for the 2008 ozone NAAQS. Finally, in our document we provided a link to the online docket that contains all of the supporting materials, and EPA's technical support documents that contain our extensive analysis of the Texas RACT program.

This approach to public notice is consistent with EPA's previous proposed approval for the Moderate RACT requirements for the DFW nonattainment area for the 2008 ozone NAAQS (82 FR 33026 (July 19, 2017)), and EPA's recent RACT proposed approval actions. 17

Comment: Commenters state that the notification is inadequate because, according to the Office of the Federal Register, proposed rulemaking must provide “a statement of the proposed rule's basis and purpose . . . in plain language that the reader can easily understand.”

Response: Based on the information provided by the commenter, it is unclear how the information provided by the EPA failed to meet the direction provided by the Office of the Federal Register. In the EPA's proposals for this action, the EPA provided background information, an explanation of Texas' SIP submission, the EPA's analysis, and the proposed publications. The proposals were further supplemented by technical support documents for both NO X and VOC emissions.

Comment: Commenters refer to the Office of Federal Register's “Document Drafting Handbook”  18 (DDH) and state that the document must include a physical mailing address for persons who wish to submit comments by mail and noted that the EPA's proposed rulemaking does not include this information.

Response: The DDH states that all proposed rulemakings “must have at least one address.”  19 The DDH then provides a list of potential addresses that an agency could use, including addresses for mailing public comments, sending public comments electronically, hand-delivering public comments, or attending a public hearing (or meeting). In the proposals for this action, the EPA properly complied with the DDH by offering an address to send public comments electronically (via www.regulations.gov ), and by providing an email address where a potential commenter could contact the EPA staff contact to submit comments via alternative methods.

The EPA received comment letters from the TCEQ in support of our proposals. TCEQ requested clarification and administrative corrections to the VOC and NO X TSDs.

TCEQ requested the following corrections to the VOC TSD:

• In table 2 on page 6, TCEQ requests the EPA correct the CTG Reference Document for Cutback Asphalt, which is mislabeled as Control of Volatile Organic Emissions from Bulk Gasoline Plant.

• In table 2 on page 7, TCEQ requests the EPA correct the CTG Reference Document for Petroleum Liquid Storage Fixed Roof Tanks CTG to document number EPA-450/2-77-035.

• In the Stage 1 Vapor Control Systems (1975) table on page 32 of the TSD, TCEQ requests the EPA remove the floating roof tank from the Texas Requirement Summary. While a floating roof tank may be an equivalent control under 30 TAC § 115.223, this control option is not specifically mentioned in 30 TAC §§ 115.221-115.229.

• In the Tank Truck Gasoline Loading Terminals (1977) table on page 40 of the TSD, TCEQ requests the EPA remove the floating roof tank from the Texas Requirement Summary. While a floating roof tank may meet the 90% control requirement at 30 TAC § 115.212 or be considered an equivalent control under 30 TAC § 115.213 or 30 TAC § 115.223, it is not specifically mentioned in 30 TAC §§ 115.211-115.219 or 30 TAC §§ 115.221-115.229.

• In the Surface Coating of Metal Furniture (1977) and Metal Furniture Coatings (2007) table on page 42 of the TSD, TCEQ requests that the EPA add 30 TAC §§ 115.450-115.459 to the Texas Requirement Summary. TCEQ implemented the 1977 CTG in 30 TAC §§ 115.420-115.429 and the 2007 CTG in 30 TAC §§ 115.450-115.459. The EPA's stated range of 2.3 to 5.1 pound per gallon (lb/gal) applies to 30 TAC § 115.453. The correct limit in 30 TAC § 115.421(2) is 3.0 lb/gal.

• In the Bulk Gasoline Plants (1977) table on pages 45-46 of the TSD, TCEQ requests the EPA remove the floating roof tank from the Texas Requirement Summary. While a floating roof tank may meet the 90% control requirement at 30 TAC § 115.212(a)(5) or be considered an equivalent control under 30 TAC § 115.213, it is not specifically mentioned in 30 TAC §§ 115.211-115.219.

• In the Surface Coating of Miscellaneous Metal Parts and Products (1978) and Control Techniques for Miscellaneous Metal Parts Coatings (2008) table on page 50 of the TSD, TCEQ requests the EPA add 30 TAC §§ 115.450-115.459 to the Texas Requirement Summary. TCEQ implemented the 1978 CTG in 30 TAC §§ 115.420-115.429 and the 2008 CTG in 30 TAC §§ 115.450-115.459.

• In the Graphic Arts-Rotogravure and Flexography table on pages 55-56 of the TSD, TCEQ requests the EPA correct the Texas Requirement Summary. TCEQ rules contain a requirement for 90% control of captured vapors and capture requirements for various printing processes ranging from 60% to 75%.

• In the Petroleum Liquid Storage in External Floating Roof Tanks (1978) table on page 57 of the TSD, TCEQ requests the EPA correct the Texas Requirement Summary. TCEQ rules in 30 TAC §§ 115.110-115.119 require various combinations of a submerged fill pipe, floating roof, floating roof with seals, and/or a vapor control system based on the vapor pressure of the liquid stored and size of the tank.

• In the Aerospace (1997) table on pages 70-71 of the TSD, TCEQ requests the EPA correct the Texas Requirement Summary. TCEQ rules in 30 TAC §§ 115.420-115.429 require VOC content limits ranging from 60 to 1,230 grams per liter. The cleaning solvents used must be over 80% water by volume or have a composite vapor pressure less than or equal to 45 millimeters of mercury at 20 degrees Celsius. Conventional spray application is prohibited.

Comment: TCEQ stated their support for the proposed approval. TCEQ requested the following changes: (1) on page 11, remove the incorrect reference to SCR, (2) on page 14, remove the incorrect reference to SNCR, (3) the correct ratings are less than 1 MW; 1.0 MW or greater, but less than 10MW; and 10 MW or greater. TCEQ also requested correcting minor discrepancies in the VOC TSD table of states' RACT comparisons.

Response: The EPA has provided final NO X and VOC TSDs that reflect these corrections to the supplemental TSDs and the corrected TSDs are available in the docket.

The EPA received several comments that were not relevant to this action and/or which were outside the scope of this action. Consistent with CAA section 110, a SIP is designed to address the relevant NAAQS pollutant and its precursors. For ozone nonattainment purposes, the EPA is required to review the State's SIP revision to determine if it meets the RACT requirements of the CAA. RACT requirements for the ozone NAAQS apply to NO X and VOC, which are ozone precursors.

Comment: Commenters claim that the EPA's review does not adequately address the potential for increased carbon dioxide (CO 2 ) and other greenhouse gas (GHG) emissions, the Texas analysis provided does not appear to include an evaluation of the potential GHG impacts, and an overall environmental impact must also consider the economic costs associated with increased CO 2 emissions. Commenters request that the EPA include an analysis of CO 2 emissions changes associated with the proposed RACT determinations, and the environmental impacts of carbon pollution.

Response: Emissions and impacts associated with CO 2 and other GHG emissions are outside of the scope of this action.

Comment: Commenters recommend if an area does not meet Federal standards then any and all industry in the State that does not meet air quality standard emissions be immediately shut down until air quality standards are met and sustained for one quarter. The commenters also recommended the implementation of a mandatory prison sentence for repeat polluters.

Response: Cessation of operation of industrial sources, enforcement, and penalties are outside the scope of this action.

Comment: Commenter stated their support for the approval and implementation of the proposed regulation to protect the environment and reduce pollution.

Response: The EPA appreciates the support.

The EPA is approving the SIP revisions submitted by Texas on May 12, 2020, and May 13, 2020, that fulfill the Serious RACT requirements for the DFW nonattainment area for the 2008 ozone NAAQS. The EPA is also approving the concurrent 30 TAC Chapters 115 and 117 rule revisions. Specifically, the EPA is approving amendments to 30 TAC Chapter 115, Control of Air Pollution from Volatile Organic Compounds, §§ 115.10, 115.111, 115.112, 115.119, and 115.421, and 30 TAC Chapter 117, Control of Air Pollution from Nitrogen Compounds, §§ 117.10, 117.403, 117.8000, and 117.9030, into the Texas SIP. The 30 TAC Chapter 115 and 117 amendments implement major source NO X and VOC RACT requirements to the DFW nonattainment area for the 2008 8-hour ozone NAAQS Serious classification.

We are also approving in this action the CTG VOC RACT negative declarations for the following categories of sources: fiberglass boat manufacturing materials, surface coating for flat wood paneling, letterpress printing, shipbuilding and ship repair surface coating operations, vegetable oil manufacturing, rubber tire manufacturing categories; for Wise County only: graphic arts—rotogravure and flexography, flexible package printing, refinery vacuum producing systems and process unit turnarounds, wood furniture manufacturing, and manufacture of synthesized pharmaceutical products.

In this rule, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference the revisions to the Texas 30 TAC Chapters 115 and 117 regulations as described in Section III of this preamble, Final Action. The EPA has made, and will continue to make, these materials generally available through www.regulations.gov (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information). Therefore, these materials have been approved by the EPA for inclusion in the SIP, have been incorporated by reference by the EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of the EPA's approval, and will be incorporated by reference in the next update to the SIP compilation.

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. 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);

• Is not subject to Executive Order 14192 (90 FR 9065, February 6, 2025) because State Implementation Plan approvals under the CAA are exempt from review under Executive Order 12866;

• 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 subject to Executive Order 13045 (62 FR 19885, April 23, 1997) because it approves a state program;

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

• 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 Clean Air Act.

In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian Tribe has demonstrated that a Tribe has jurisdiction. In those areas of Indian country, the final 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).

This action is subject to the Congressional Review Act, and the EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by May 22, 2026. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

For the reasons stated in the preamble, the EPA amends 40 CFR part 52 as follows:

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA.

On December 11, 2025 (90 FR 57416), EPA published a Notice of Proposed Rulemaking (NPRM) for the State of New Hampshire. The NPRM proposed approval of revised RACT Order ARD-11-001 for Hutchinson Sealing Systems, Inc., located in Newfields, New Hampshire. The formal SIP revision was submitted by New Hampshire on April 17, 2025.

Other specific requirements of New Hampshire's RACT order and the rationale for EPA's proposed action are explained in the NPRM and will not be restated here. No public comments were received on the NPRM.

EPA is approving revised RACT Order ARD-11-001 for Hutchinson Sealing Systems as a revision to the New Hampshire SIP.

In this rule, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of the RACT Order ARD-11-001 dated April 17, 2025, issued by the New Hampshire DES to Hutchinson Sealing Systems as set forth below in the amendments to 40 CFR part 52. Amended RACT Order ARD-11-001 dated January 24, 2025, maintains the previously established limits of volatile organic compound content in motor vehicle weatherstrip adhesive coatings produced by Hutchinson Sealing Systems. The EPA has made, and will continue to make, these documents generally available through https://www.regulations.gov and at the EPA Region 1 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information). Therefore, these materials have been approved by EPA for inclusion in the State implementation plan, have been incorporated by reference by EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference in the next update to the SIP compilation. 1

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Clean Air Act 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 Clean Air Act. 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);

• Is not subject to Executive Order 14192 (90 FR 9065, February 6, 2025) because SIP actions are exempt from review under Executive Order 12866;

• 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 subject to Executive Order 13045 (62 FR 19885, April 23, 1997) because it approves a state program;

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

• 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 Clean Air Act.

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).

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. Section 804, however, exempts from section 801 the following types of rules: rules of particular applicability; rules relating to agency management or personnel; and rules of agency organization, procedure, or practice that do not substantially affect the rights or obligations of non-agency parties. 5 U.S.C. 804(3). Because this is a rule of particular applicability, EPA is not required to submit a rule report regarding this action under section 801.

For the reasons stated in the preamble the Environmental Protection Agency amends part 52 of chapter I, title 40 of the Code of Federal Regulations to read as follows:

Throughout this document whenever “we,” “us,” or “our” is used, we mean the EPA.

On September 25, 2025 (90 FR 46120), the EPA proposed to approve a SIP submittal from the Ohio EPA. The SIP submittal consists of an alternate control technology emission limit of 5.9 lbs. VOC/gallon for RFD Beaufort, Inc.'s life raft manufacturing plant at 1420 Wolf Creek Trail, Wadsworth, Ohio. This limit applies to the facility's nylon reinforced polyurethane adhesive process. An explanation of the Clean Air Act requirements, a detailed analysis of the revisions, and the EPA's reasons for proposing approval were provided in the notice of proposed rulemaking (NPRM) and will not be restated here. The public comment period for this proposed rule ended on October 27, 2025.

During the comment period, the EPA received comments from one commenter regarding the Regulatory Flexibility Act (RFA), the Paperwork Reduction Act (PRA) and materials incorporated by reference. The comments are included in the docket for this action.

These comments were in regard to the EPA procedures and not the substance of the NPRM. None of the comments address a specific regulation or provision in question. We are finalizing our action as proposed.

The commenter requested the EPA withdraw the direct final rule and provide an additional 30 days of public comment period. The EPA had published a proposed rule, not a direct final rule. The proposed rule included a comment period.

The commenter also made arguments regarding the applicability of the RFA and the PRA. The RFA and PRA are not applicable to the rulemaking because this rule will not have a significant economic impact on a substantial number of small entities. The regulatory analysis provisions of the RFA are only triggered by a threshold determination by the Agency that the rule will have a significant economic impact on a substantial number of small entities. This rulemaking does not impose any regulatory requirements beyond those imposed by State law.

The EPA has complied with the PRA by certifying in the rule that the PRA does not apply because the action does not involve an information collection burden as defined by the Clean Air Act. Specifically, the EPA is not posing identical questions or imposing identical reporting and recordkeeping requirements on “ten or more persons.” See 40 CFR 1320.3(c).

The commenter requested that the EPA include the documents that are being incorporated by reference in the docket. The EPA provided those materials during the proposed rulemaking in docket EPA-R05-OAR-2025-0232 on https://www.regulations.gov.

The EPA is approving the alternative emissions limitation for Emission Unit Group 1: R001, R002, R003, R004, R005, R006, R007, R008, R009, R010 by approving permit conditions C.1.b)(1)c. and C.1.b)(2)c. into the Ohio SIP as listed in the March 25, 2025, final permit to install and operate (P0127562).

In this rule, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of the Ohio permit conditions in section III of this preamble and set forth in the amendments to 40 CFR part 52 below. The EPA has made, and will continue to make, these documents generally available through https://www.regulations.gov, and at the EPA Region 5 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information). Therefore, these materials have been approved by the EPA for inclusion in the SIP, have been incorporated by reference by the EPA into that plan, are fully federally enforceable under sections 110 and 113 of the Clean Air Act as of the effective date of the final rulemaking of the EPA's approval, and will be incorporated by reference in the next update to the SIP compilation. 1

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Clean Air Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve State choices, provided that they meet the criteria of the Clean Air Act. 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 Order 12866 (58 FR 51735, October 4, 1993);

• Is not subject to Executive Order 14192 (90 FR 9065, February 6, 2025) because SIP actions are exempt from review under Executive Order 12866;

• 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 subject to Executive Order 13045 (62 FR 19885, April 23, 1997) because it approves a State program;

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

• 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 Clean Air Act.

In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where the 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).

This rule is exempt from the Congressional Review Act because it is a rule of particular applicability.

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by May 22, 2026. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

For the reasons stated in the preamble, title 40 CFR part 52 is amended as follows:

Throughout this document, “we,” “us,” and “our” refer to the EPA.

On July 24, 2025 (90 FR 34785), the EPA proposed to conditionally approve the rules listed below. Table 1 lists the rules addressed by this proposal with the dates they were amended or revised by the MDAQMD and submitted by the California Air Resources Board (CARB), the agency that serves as the governor's designee for California SIP submittals.

The August 7, 2024 submittal is intended to address certain deficiencies that the EPA had identified in earlier versions of the MDAQMD Rules 1301, 1302, 1303, 1304, and 1305. The deficiencies pertain to certain applicable nonattainment NSR (NNSR) requirements under the CAA, in part D of title I of the Act, and the implementing regulations under 40 CFR part 51.165. Portions of the MDAQMD are currently designated as Moderate nonattainment for the 1987 PM 10 NAAQS and as Severe nonattainment for the 2008 and 2015 8-hour ozone NAAQS. 1 The rules listed in Table 1 are intended to replace the rules currently in the SIP.

In our proposed rule, we determined that the MDAQMD's submitted rules could not be fully approved without supplementation from the MDAQMD and CARB. However, we determined that the submitted rules could be conditionally approved based upon commitments from the MDAQMD and CARB to supplement MDAQMD Rule 1304 through submission, as a SIP revision (within one year of our final conditional approval action), of a revised MDAQMD rule that would rescind the deficient provision from MDAQMD Rule 1304. 2 Please see our proposed rule for more information concerning the background for this action and for a more detailed discussion of the rationale for our conditional approval of MDAQMD Rules 1301, 1302, 1303, 1304, and 1305.

In addition, on July 24, 2025, 3 the EPA published an Interim Final Determination to stay the imposition of the offset sanction and defer the imposition of the highway sanction that was triggered by our June 30, 2023 limited disapproval of an earlier version of the MDAQMD's NSR rules. 4

The EPA's proposed action provided a 30-day public comment period. The public comment period on the proposed rule opened on July 24, 2025, the date of its publication in the Federal Register , and closed on August 25, 2025. During this period, the EPA received one comment letter submitted by an anonymous commenter. The EPA also received one comment letter from an anonymous commenter on the interim final determination to defer sanctions that accompanied the proposed rule. Copies of the comment letters are included in the docket for this action and accessible at https://www.regulations.gov.

Comment #1: The commenter requests that the EPA require the MDAQMD and permit applicants to include carbon dioxide emission estimates and the associated social cost calculations for new or modified sources, provide technical guidance on using the federal social cost of carbon in permit evaluations, and consider the long-term climate and economic consequences of exempting or under-evaluating carbon dioxide emissions in future permit decisions.

Response to Comment #1: The EPA does not agree with the commenter. This action relates to the MDAQMD's minor and NNSR programs and the EPA's minor and NNSR regulations do not require states to regulate carbon dioxide. 5

Throughout this document, the use of “Agency,” “we,” “us,” or “our” refers to the EPA.

On November 19, 2025, the EPA proposed to find that the Phoenix-Mesa area would have attained the 2015 ozone NAAQS of 0.070 parts per million (70 parts per billion (ppb)) by the Moderate area attainment date of August 3, 2024, but for emissions emanating from outside the United States, and is therefore not subject to the CAA requirements pertaining to reclassification upon failure to attain. 1 We briefly summarize the proposal in this section.

CAA section 181(b)(2)(A) requires that within six months following the applicable attainment date, the EPA shall determine whether an ozone nonattainment area attained the ozone standard based on the area's Design Value (DV) as of that date. If the EPA determines that an area failed to attain, then CAA section 181(b)(2)(A) requires the area to be reclassified by operation of law to the higher of: (1) the next higher classification for the area, or (2) the classification applicable to the area's DV as of the determination of failure to attain. CAA section 181(b)(2)(B) of the CAA requires the EPA to publish the determination of failure to attain and accompanying reclassification in the Federal Register no later than six months after the attainment date.

The EPA originally designated and classified the Phoenix-Mesa area as a Marginal ozone nonattainment area for the 2015 ozone NAAQS with an attainment date of August 3, 2021. 2 On October 7, 2022, the EPA determined that the Phoenix-Mesa area did not attain the standard by the Marginal attainment date, and thus the area was reclassified as Moderate by operation of law, with an attainment date of August 3, 2024. 3 Because a DV for this NAAQS is based on the three most recent, complete calendar years of data, attainment must occur no later than December 31 of the year prior to the attainment date ( i.e., December 31, 2023, in the case of Moderate nonattainment areas for the 2015 ozone NAAQS with an August 3, 2024 attainment date). Therefore, the EPA's determination for the Phoenix-Mesa area is based in part upon the complete, quality assured, and certified ambient ozone air monitoring data from calendar years 2021, 2022, and 2023. The DV for this period is 80 ppb, indicating that the Phoenix-Mesa area did not attain the 2015 ozone NAAQS of 70 ppb by its August 3, 2024 attainment date.

CAA section 179B(b) provides that where a state demonstrates to the Administrator's satisfaction that an ozone nonattainment area would have attained the NAAQS by the applicable attainment date but for emissions emanating from outside the United States, that area shall not be subject to the provisions of CAA section 181(b)(2). 4 In the event an air agency does not demonstrate to the Administrator's satisfaction that it would have attained the NAAQS but for international emissions, CAA section 179B(b) does not excuse that area from the provisions of CAA section 181(b)(2).

On September 24, 2025, the Maricopa Association of Governments (MAG) submitted to the EPA for review the “MAG 2025 Clean Air Act Section 179B(b) Retrospective Demonstration of the Impact of International Emissions on Ozone Concentrations in the Maricopa Nonattainment Area” (“Demonstration”). 5 Using several lines of evidence, MAG evaluated the extent to which ambient ozone levels in the Phoenix-Mesa area have been affected by international emissions. The Demonstration includes a conceptual model of ozone formation in the Phoenix-Mesa area including a discussion of the meteorological and topographic conditions that influence ozone formation, modeling to quantify international contribution, information about precursor emissions and ozone air quality trends, and an analysis of the transport patterns influencing the area. In addition, MAG provided information to support the exclusion of data from days that it found to be “atypical wildfire exceedance days” from the calculation of the base DV and the relative response factors used to quantify the international contribution in the modeling.

On November 19, 2025, the EPA proposed to find that MAG established to the satisfaction of the Administrator that, consistent with CAA section 179B(b), the Phoenix-Mesa area would have attained the 2015 ozone NAAQS by the Moderate area attainment date of August 3, 2024, but for emissions emanating from outside the United States, and is therefore not subject to the provisions of CAA section 181(b)(2)(A) and therefore would not be reclassified based on failure to attain. 6 The EPA also proposed that, if the Agency were to finalize the proposed CAA section 179B(b) determination, the State would no longer be required to submit contingency measures under CAA section 172(c)(9) for the Phoenix-Mesa 2015 ozone nonattainment area.

Please see our proposed rule and the associated technical support documents (TSDs)  7 for more information concerning the background for this action and for a more detailed discussion of our evaluation of the Demonstration and the rationale for our determination that the Phoenix-Mesa area would have attained the 2015 ozone NAAQS by the Moderate area attainment date of August 3, 2024, but for emissions emanating from outside of the United States. These documents are included in the docket for this action.

The EPA's proposed action provided a 30-day public comment period. The comment period opened on November 19, 2025, the date of publication in the Federal Register , and closed on December 19, 2025. During this period, we received a total of 69 comment submissions, 19 of which were supportive of our proposed action, and 48 that were opposed. Two comment submissions did not express either support or opposition. The EPA has prepared a response to comments document (RTC) that summarizes and responds to germane comments we received on this rulemaking. The RTC and all comments received are included in the docket for this rulemaking.

Commenters supporting the proposed rulemaking agreed with the proposed determination that MAG had demonstrated that the Phoenix-Mesa area would have attained the 2015 ozone NAAQS but for international emissions. These commenters also supported the determination that, if the EPA finalized the determination, the State would no longer be required to submit attainment and RFP contingency measures. MAG also provided additional information supporting the Demonstration as a part of its comments on the proposal.

A number of commenters requested that the EPA use this rulemaking to issue national guidance for areas affected by international emissions and provided specific legal rationales and recommendations for implementing 179B. We appreciate these comments and understand the desire for issuance of guidance regarding the implementation of CAA section 179B; however, as noted in the proposal, this rulemaking is applicable only to the Phoenix-Mesa area. Therefore, comments and recommendations related to potential future nationally applicable guidance for CAA section 179B are outside the scope of this action.

The EPA also received comments opposing the proposed rulemaking. Some commenters expressed overall opposition to the proposal, while others specifically challenged the Agency's legal interpretations of the CAA and prior rulemakings, the EPA's policy direction, and the adequacy of technical aspects of the Demonstration. Several commenters also opposed the proposal that the State would not be required to submit attainment or RFP contingency measures if the EPA finalizes the proposal on this issue. Commenters opposing the proposal also provided additional information supporting their arguments. In the following paragraphs, we provide a brief summary of our responses regarding some of the key issues raised in adverse comments.

We do not agree with assertions by some commenters that the proposal failed to provide a sufficient explanation for any changes in policy and interpretation of CAA section 179B(b). Under FCC v. Fox Television Stations, Inc., an agency's change in policy is permissible if the agency acknowledges the change, believes it to be better, and “show[s] that there are good reasons for the new policy.”  8 As explained further in responses III.B.1. and III.B.3. of the RTC, the EPA has both acknowledged any changes in interpretation and policy and provided justification for those changes based on the wording of CAA section 179B(b). As noted in the proposal, we no longer consider specific characteristics as necessarily suggesting the need for a more detailed demonstration with additional evidence. We also no longer consider the weight of evidence more compelling when a CAA section 179B demonstration shows that international contributions are larger than when a demonstration shows that domestic contributions exceed international contributions. 9 Finally, we proposed to find that states will no longer be expected to show that they could not attain with on-the-books measures and potential reductions associated with controls required to be implemented by the attainment date in order to qualify for approval of a 179B(b) determination. 10 With respect to the proper interpretation of the statute, the EPA explained its proposed view of the statute's requirements as relevant to this decision.

We also do not agree with comments opposing our proposed determination that, following a final determination under CAA section 179B(b), the State would no longer be required to submit contingency measures for the Phoenix-Mesa 2015 ozone nonattainment area. As described in response III.B.2. of the RTC, the commenters' arguments conflate the requirements and consequences of actions under CAA sections 179B(a) and 179B(b), ignore the exemption from milestone compliance demonstrations requirements for Moderate Ozone nonattainment areas in CAA section 182(g), and improperly rely on CAA section 172(e).

In addition, we do not agree with comments asserting that CAA section 179B applies only to “International border areas” based on the section's heading. While “the title of a statute and the heading of a section are tools available for the resolution of a doubt about the meaning of a statute” they will not “override the plain words” of a statute. 11 The plain words of CAA section 179B(b) make the provision available to “any State” that meets the relevant requirements and do not limit its application to border areas. Thus, even though the heading of the section could suggest that it only applies to a subset of areas along international borders, the statutory language within the section does not explicitly limit it to a subset of states or areas. That interpretation is consistent with the plain meaning of the term “any.”  12 As further explained in response III.C. of the RTC, the commenters' other arguments regarding the purpose and legislative history of the provision similarly cannot overcome the plain text of the Act.

Finally, we do not agree with comments arguing that there was insufficient technical basis for approval of the Demonstration. As discussed in the proposal, the 179B(b) TSD, and response IV.A. of the RTC, the EPA has considered and weighed each piece of evidence in the Demonstration. The primary piece of evidence provided by MAG was photochemical source apportionment modeling, which indicated an international anthropogenic contribution of 14 ppb to the 2021-2023 DV in the Phoenix-Mesa area. When subtracted from the 2021-2023 DV of 80 ppb, this would be a DV that attains the 70 ppb standard. Other photochemical modeling, including zero-out modeling performed by the EPA and other zero-out modeling performed by MAG, indicated an international anthropogenic contribution of 8.5-10.0 ppb to the Phoenix-Mesa area 2021-2023 DV. Information regarding potential wildfire influence on 31 exceedance days in 2021-2023 is supportive of the overall weight of evidence, as discussed in response IV.F. of the RTC, but is not relied upon to exclude particular days from the photochemical modeling. MAG also provided emissions estimates that ozone precursor emissions in the Phoenix-Mesa area are decreasing, while emissions in Mexico are increasing. Air parcel transport provided additional qualitative evidence of influence of emissions from Mexico on the Phoenix-Mesa area. We considered and qualitatively weighed each of these analyses based on their relevance to CAA section 179B and the nature of international contributions in the Phoenix area, as described in MAG's conceptual model. After considering all of these analyses, as well as both the supportive and adverse comments, we reaffirm that the weight of evidence supports the conclusion that the 2023 ozone DVs at all monitoring sites in the Phoenix area would have been at or below 70 ppb but for the influence of international emissions. Therefore, we conclude that the State  13 has established to the satisfaction of the Administrator that the Phoenix-Mesa area would have attained the 2015 ozone NAAQS but for emissions emanating from outside the United States.

After reviewing the Demonstration and considering all comments received during the public comment period, and based on the weight of evidence, the EPA is finalizing its determination that the State has established to the satisfaction of the Administrator that the Phoenix-Mesa area would have attained the 2015 ozone NAAQS but for emissions emanating from outside the United States. This final action fulfills the EPA's statutory obligation under CAA section 181(b)(2)(A) to determine whether the Phoenix-Mesa area attained the NAAQS by the attainment date. As a result of this final action, the State is no longer required to submit attainment and RFP contingency measures for this area. The area will remain designated nonattainment and thus the State must continue to comply with applicable requirements for a Moderate ozone nonattainment area, other than the contingency measures requirement, as discussed in responses III.B.1., III.B.2., and III.E. of the RTC.

Additional information about these statutes and Executive Orders can be found at https://www.epa.gov/lawsregulations/laws-and-executive-orders.

This action is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget (OMB) for review.

Executive Order 14192 does not apply because this is not significant regulatory action and it is therefore exempted from review under Executive Order 12866.

This action does not impose an information collection burden under the PRA. This action does not impose any information collection activities.

I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities. The determination that the Phoenix-Mesa area would have attained the 2015 ozone NAAQS but for international emissions does not in and of itself create any new requirements beyond what is mandated by the CAA.

This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. The action imposes no enforceable duty on any state, local, or Tribal governments, or the private sector.

This action does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the National government and States and Tribes, or on the distribution of power and responsibilities among the various levels of government. The division of responsibility between the Federal Government and States for the purposes of implementing the NAAQS is established under the CAA.

This action has Tribal implications. However, it will neither impose substantial direct compliance costs on federally recognized Tribal governments, nor preempt Tribal law.

The EPA has identified areas of Indian country within the Phoenix-Mesa area that would be potentially affected by this rulemaking. Specifically, the Fort McDowell Yavapai Nation, Gila River Indian Community of the Gila River Indian Reservation, Salt River Pima Maricopa Indian Community of the Salt River Reservation, and Tohono O'odham Nation have lands that are located within the boundaries of the Phoenix-Mesa area.

The EPA notified potentially affected Tribes located within the boundaries of the Phoenix-Mesa 2015 ozone nonattainment area upon publication of the proposed rule. The EPA did not receive any comments or requests for additional information from Tribes.

The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental 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 action is not subject to Executive Order 13045 because it does not concern an environmental health risk or safety risk.

This action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866.

This action does not involve technical standards.

This action is subject to the CRA, and the EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by May 22, 2026. This action may not be challenged later in proceedings to enforce its requirements (see section 307(b)(2)).