1. (a) The Failure to Attain Fee will continue to apply until one of the following actions is final:

   1. (1) the effective date of redesignation of the area classified as severe or extreme under the 2008 eight-hour ozone National Ambient Air Quality Standard (NAAQS or standard) to attainment by the U.S. Environmental Protection Agency (EPA);
   2. (2) any final action or final rulemaking by EPA to end the Failure to Attain Fee requirement;
   3. (3) finding of attainment by EPA; or (4) a demonstration indicating that the area would have attained by the attainment date but for emissions emanating from outside the United States.
2. (b) Notwithstanding subsection (a) of this section, the Failure to Attain Fee will be calculated but not invoiced, and the fee collection may be placed in abeyance by the executive director if three consecutive years of quality-assured data resulting in a design value that did not exceed the 2008 eight-hour ozone National Ambient Air Quality Standard (NAAQS), or a demonstration indicating that the area would have attained by the attainment date but for emissions emanating from outside the United States, are submitted to EPA. The design value may exclude days submitted to EPA by the executive director that exceeded the standard because of exceptional events. Fee collection will remain in abeyance until EPA takes final action on its review of the certified monitoring data and any demonstration(s).

Source Note:The provisions of this §101.718 adopted to be effective November 13, 2025, 50 TexReg 7293.