Part 1.
TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
Chapter 114.
CONTROL OF AIR POLLUTION FROM MOTOR VEHICLES
The Texas Commission on Environmental Quality (commission) proposes
amendments to §§114.21, 114.260, and 114.452 and corresponding revisions
to the state implementation plan (SIP). The amendments and revised SIP narrative
will be submitted to the United States Environmental Protection Agency (EPA)
as proposed revisions to the SIP.
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULES
The statutory citation, "Texas Dealer Law, Article 6686, Vernon's Civil
Statutes, Title 43, Texas Administrative Code" referenced in §114.21(d)
has been repealed by legislative action and recodified in Texas Transportation
Code, §503.001 with some changes to the terms used in the original citation.
Therefore, the current citation as referenced in §114.21(d) to define
the terms "wholesale dealer" and "retail dealer" is no longer valid. In addition,
when the statutory language was recodified in the Texas Transportation Code,
some terms were combined and their definitions broadened, which will allow
the proposed revisions in §114.21(d) to simply reference the term "dealer"
instead of the previous two specific terms.
Existing §114.21(e)(2) requires that certain signed statements be
retained by certain sellers of vehicles, but does not specify the length of
time. Because the documents pertain to the possible need to fix the emissions
systems on the sold vehicles, and because there are mechanisms in place to
require testing of the emissions systems in ozone nonattainment areas on a
periodic basis, the commission believes that the records should be retained
for only two years.
The Federal Clean Air Act (FCAA) Amendments of 1990 (42 United States Code
(USC), §§7401
et seq
.) required
each state to submit a revision to its SIP by November 25, 1994, establishing
enforceable criteria and procedures for making conformity determinations for
metropolitan transportation plans, transportation improvement programs, and
projects funded by the Federal Highway Administration or the Federal Transit
Administration. Final rules regarding conformity requirements were published
by EPA November 24, 1993. The Texas SIP revision which incorporated conformity
requirements was adopted October 19, 1994, and was approved by EPA November
8, 1995. EPA has amended the federal transportation conformity rule five times:
August 7, 1995; November 14, 1995; August 15, 1997; April 10, 2000; and August
6, 2002. The commission previously incorporated the federal changes up to
and including the 1997 amendment. The commission is now updating its rule
to incorporate the latest federal amendments.
The Houston/Galveston ozone nonattainment area (HGA) is classified as Severe-17
under 42 USC, §§7401
et seq
. Therefore,
the area is required to attain the one-hour ozone standard of 0.12 parts per
million (ppm) by November 15, 2007. Division 6, Lawn Service Equipment Operating
Restrictions, of Subchapter I, adopted by the commission in 2000, was part
of the HGA Post-1996 Rate-of-Progress (ROP)/Attainment Demonstration SIP that
was designed to meet the one- hour ozone standard. Implementation of this
control strategy is necessary in order for the HGA nonattainment area to comply
with the requirements of the FCAA and achieve attainment for ozone. However,
the commission believes that for two reasons the lawn service equipment operating
restrictions should be amended to allow those in the lawn and garden industry
more time to submit their emission reduction plans.
First, the commission believes that, due to flaws in the Nonroad Assessment
Tool and Estimator (NATE) model, the lawn care industry does not have sufficient
time to create an emission reduction plan before the current May 31, 2003
deadline. The NATE model was designed to aid the lawn and garden industry
in development of emission reduction plans. However, programming flaws were
discovered after the NATE model was made available to the public. These flaws
have been corrected, and the program is now back on the commission web site.
Second, the commission is seeking to delay the compliance requirements associated
with the lawn and garden rules until 2004 to provide commission staff with
the time needed to reexamine the need for the rules as part of the mid-course
review of the entire HGA SIP. If it is determined that these rules are not
needed or can be replaced by more effective emission reduction strategies,
the new deadline would reduce the expenditure of unnecessary resources in
planning for compliance. Because the proposed amendment to §114.452 only
concerns the date by which emission reduction plans must be submitted to the
commission, no changes in the amount of emission benefits that were originally
estimated to be achieved by the lawn and garden rules are anticipated.
SECTION BY SECTION DISCUSSION
The proposed amendment to §114.21(c)(2) changes the name of the agency
to its new name. The proposed amendment to §114.21(d) replaces the terms
"wholesale dealers" and "retail dealers" with the term "dealer" and identifies
the statutory citation defining this term as "Texas Transportation Code, §503.001."
The proposed amendment makes reformatting and textual revisions that appropriately
reflect the new broader term. This proposed revision is necessary because
the current statutory citation is no longer valid. The "Texas Dealer Law,
Article 6686, Vernon's Texas Civil Statutes, Title 43, Texas Administrative
Code" was repealed by legislative action and the regulatory language was recodified
with changes in Texas Transportation Code, §503.001. In the proposed
amendment to §114.21(e)(2), a period of two years is added for the retention
of certain records, rather than the current indefinite period. Because the
documents pertain to the possible need to fix the emissions systems on the
sold vehicles, and because there are mechanisms in place to require testing
of the emissions systems in ozone nonattainment areas on a periodic basis,
the commission believes that the records should be retained for only two years.
The proposed amendment to §114.260(c) incorporates the date (August
6, 2002) that EPA last amended the federal transportation conformity rule.
The changes to federal regulations that are incorporated into the rule include
the following. 40 Code of Federal Regulations (CFR) §93.102 was amended
by adding as paragraph (d) a grace period for new nonattainment areas. 40
CFR §93.102 implements an FCAA amendment, enacted October 27, 2000, that
provides a one-year grace period before conformity is required in areas that
are designated nonattainment for a given air quality standard for the first
time. 40 CFR §93.104(e)(2), relating to the frequency of conformity determinations,
was amended to change the point by which a conformity determination must be
made following a state's submission of a control strategy implementation plan
or maintenance plan for the first time (an "initial" SIP submission). 40 CFR §93.104(e)(2)
requires conformity to be determined within 18 months of EPA's affirmative
finding that the SIP's motor vehicle emission budgets are adequate. Prior
to this action, the conformity rule required a new conformity determination
within 18 months of the submission of an initial SIP. In order to take advantage
of these positive changes and to provide consistency between state and federal
conformity requirements, the commission is proposing to adopt all of the current
federal rules with the exception of 40 CFR §93.105, which is met through
the remainder of the state conformity rule. The commission is proposing to
remove the reference in the rule to 40 CFR §93.102(d) because this reference
was originally included in the rule to acknowledge that the grace period at
that time had been invalidated by a court challenge. However, the new 40 CFR §93.102(d)
is now authorized by congressional action and the commission is proposing
to adopt by reference the grace period which it provides.
The proposed amendments to §114.260(d) correct typographical errors,
change the language to be consistent with current agency style and format,
and update the name of the agency and the title of the Strategic Assessment
Division director. The proposed amendments to §114.260(e) clarify that
compliance with the rule must begin upon the date of EPA approval of the SIP
and rule revisions under FCAA, §176(c)(4)(C) and remove outdated references
to previous adoption dates. The commission notes however, that the one-year
conformity grace period currently applies as a statutory matter for all newly
designated nonattainment areas, since this grace period was required as a
matter of law once the FCAA was amended, and therefore does not require EPA
approval before it is effective.
The proposed amendments to §114.452 include changes to make the text
consistent with the current agency style and format for rules and to correct
typographical errors. The proposed amendment to §114.452(c) changes the
deadline to submit an emission reduction plan from May 31, 2003 to May 31,
2004. The affected area would still include the following counties within
the HGA nonattainment area: Brazoria, Fort Bend, Galveston, Harris, and Montgomery.
The effective date of the lawn and garden rules would remain April 1, 2005.
The intent of this amendment is to change the deadline by which emission reduction
plans must be submitted to the commission. The proposed amendment to §114.452(c)
would also change the deadline for plan approval from May 31, 2004 to March
31, 2005 to account for the later submission deadline but still provide for
approval prior to the compliance date. Proposed §114.452(c) would state
that commercial operators or persons not exempt under subsection (b) of this
section who submit an emissions reduction plan by May 31, 2004, which is approved
by the executive director and the EPA no later than March 31, 2005, are exempt
from operating hour restrictions upon implementation of these rules in 2005,
and are permitted to operate during the restricted hours. In addition to changing
the submission deadline the commission also proposes to delete the sentence
which states that the executive director may allow plans to be submitted after
May 31, 2003. This change is made in order to resolve the conflict between
this date and the proposed new deadline of May 31, 2004.
FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT
Yia Hang, Analyst in the Strategic Planning and Appropriations Section,
has determined that, for the first five-year period the proposed amendments
are in effect, there will be no significant fiscal implications for the agency
or any other unit of state and local government as a result of administration
or enforcement of the proposed amendments.
The proposed amendments would revise sections relating to air pollution
from mobile sources by: simplifying language and updating textual references
that are no longer valid; defining a document retention period for vehicle
sales by certain sellers; extending a submission deadline for emission reduction
plans to be developed by lawn and garden companies; providing a one-year grace
period for new nonattainment areas to demonstrate conformity to a SIP's motor
vehicle emission budgets; and incorporating changes to federal rules which
include changing the timing that conformity is required from 18 months following
state submission of an initial SIP to 18 months following EPA finding that
the motor vehicle emission budget is adequate for conformity. The proposed
amendments would simplify language and update textual references that are
no longer valid in rule sections relating to vehicle transactions under motor
vehicle anti-tampering requirements for pollution control equipment. The proposed
amendments would replace the terms "wholesale dealers" and "retail dealers"
with the general term "dealer," update statutory references and name changes,
and correct insubstantial formatting and typographical errors. No fiscal implications
are anticipated as a result of the administration or enforcement of the proposed
changes.
Under current rules, commercial vehicle auctions and federal, state, and
local agencies or their agents which sell abandoned, confiscated, or seized
vehicles are exempt from restrictions on selling vehicles not in compliance
with pollution control requirements if they provide buyers with written statements
informing the buyers of the liabilities of operating vehicles prior to the
restoration of all pollution control systems or devices. Sellers are required
to retain copies of these signed statements, but current rules did not specify
a length of time for document retention. The proposed amendments would require
that the statements be retained for two years. The commission does not know
how many vehicles have been sold by federal, state, or local governments which
had defective pollution control equipment, nor how many of these entities
had been retaining such documents, but it assumes that this proposed revision
may potentially result in reduced document storage costs to those units of
government or their agents who sell vehicles with defective pollution control
equipment, though these costs are not considered significant.
The proposed amendments also extend the deadline by which owners and operators
of lawn and garden companies in the HGA ozone nonattainment area must submit
their emission reduction plans. The proposed deadline extension would affect
owners and operators in Brazoria, Fort Bend, Galveston, Harris, and Montgomery
Counties. Submitting an emission reduction plan enables a lawn care company
to be eligible for exemption from restrictions on the hours of operation for
the lawn care industry. The proposed amendments would change the submission
deadline from May 31, 2003 to May 31, 2004. The commission believes that the
lawn care industry did not receive sufficient time to create emission reduction
plans and that more time is needed to examine the need for the rule. Because
the proposed amendments merely extend the deadline for plans, no fiscal implications
are anticipated, though there may be a delay in any costs to those lawn care
industry owners or operators who contract for assistance in developing their
plans. No changes are anticipated to the amount of previously projected emission
benefits achieved by the lawn and garden rules as a result of the deadline
extension.
The proposed amendments would also incorporate by reference two amendments
to the federal transportation conformity rule, which ensures that transportation
spending in nonattainment areas is in compliance with the SIP. The federal
amendments provide state and local governments with additional time to demonstrate
conformity of transportation planning activities with the SIP. The first federal
rule change incorporates an amendment to the FCAA, enacted on October 27,
2000, giving new nonattainment areas a one-year grace period before conformity
applies. The second federal rule change incorporates a decision by the United
States Court of Appeals for the D.C. Circuit Court by changing the time frame
for conforming to the standard. The requirement would change from 18 months
following state submission of an initial SIP to 18 months following a finding
by the EPA that the motor vehicle emissions budget is adequate for conformity.
The one-year grace period for areas designated nonattainment for the first
time is in effect by statute. The revised 18-month conformity trigger would
allow metropolitan planning organizations in nonattainment areas up to an
additional three months to demonstrate conformity. Currently, Texas has six
metropolitan areas that are projected to exceed the new eight-hour ozone standard:
Austin, San Antonio, Longview-Tyler, Dallas-Forth Worth, Beaumont-Port Arthur,
and Houston-Galveston. Four of these areas have the potential to be newly
designated nonattainment (Austin, San Antonio, Longview-Tyler, and the Dallas
perimeter). However, no significant fiscal implications are anticipated for
units of state and local governments as the grace period is already a matter
of law and an additional three months for the 18-month conformity trigger
will not increase the cost of transportation planning requirements.
PUBLIC BENEFITS AND COSTS
Ms. Hang also determined that for each year of the first five years the
proposed amendments are in effect, the public benefit anticipated from the
enforcement of and compliance with the proposed amendments will be: the clarification
and simplification of regulatory language; increased flexibility with a more
sufficient amount of time to create emission reduction plans; and overall
state compliance with federal rules.
No significant fiscal implications are anticipated for any individual or
business due to implementation of the proposed amendments, though there may
be cost savings for those businesses or individuals who sell abandoned, confiscated,
or seized vehicles or participate in commercial vehicle auctions due to potentially
reduced document storage costs. In addition, owners and operators of lawn
care businesses in the HGA ozone nonattainment area who contract for assistance
in developing their emission reduction plans may experience a delay in any
costs associated with developing their plans due to the proposed extension
of the deadline for submitting their plans.
The proposed changes would revise sections relating to air pollution from
mobile sources by: updating a statutory citation and textual references that
are no longer valid; defining a document retention period for vehicle sales
by certain sellers; extending a submission deadline for emission reduction
plans to be developed by lawn and garden companies; and providing a one-year
grace period for new nonattainment areas to reach conformity with federal
transportation rules.
Under current rules, commercial vehicle auctions and federal, state, and
local agencies or their agents which sell abandoned, confiscated, or seized
vehicles are exempt from restrictions on selling vehicles not in compliance
with pollution control requirements if they provide buyers with written statements
informing the buyers of the liabilities of operating vehicles prior to the
restoration of all pollution control systems or devices. Sellers are required
to retain copies of these signed statements, but current rules did not specify
a length of time for document retention. The proposed amendments would require
that the statements be retained for two years. The commission does not know
how many vehicles have been sold by agents for federal, state, local governments
which had defective pollution control equipment, nor how many of these agents
had been retaining such documents, but assumes that this proposed revision
may potentially result in reduced document storage costs to those who sell
vehicles with defective pollution control equipment, though these costs are
not considered significant.
The proposed amendments also extend the deadline by which owners and operators
of lawn and garden companies in the HGA ozone nonattainment area must submit
their emission reduction plans. The proposed deadline extension would affect
owners and operators in Brazoria, Fort Bend, Galveston, Harris, and Montgomery
Counties. Submitting an emission reduction plan enables a lawn care company
to be eligible for exemption from restrictions on the hours of operation for
the lawn care industry. The proposed amendments would change the submission
deadline from May 31, 2003 to May 31, 2004. The commission believes that the
lawn care industry did not receive sufficient time to create emission reduction
plans and that more time is needed to examine the need for the rule. Because
the proposed amendments merely extend the deadline for plans, no fiscal implications
are anticipated, though there may be a delay in any costs to those lawn care
industry owners or operators who contract for assistance in developing their
plans. No changes are anticipated to the amount of previously projected emission
benefits achieved by the lawn and garden rules as a result of the deadline
extension.
SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT
No adverse fiscal implications are anticipated for small or micro-businesses
as a result of implementation of the proposed amendments, and any fiscal implications
to any small or micro- business resulting from the implementation of the proposed
amendments may be positive, though not considered significant.
Under current rules, commercial vehicle auctions and federal, state, and
local agencies or their agents which sell abandoned, confiscated, or seized
vehicles are exempt from restrictions on selling vehicles not in compliance
with pollution control requirements if they provide buyers with written statements
informing the buyers of the liabilities of operating vehicles prior to the
restoration of all pollution control systems or devices. Sellers are required
to retain copies of these signed statements, but current rules did not specify
a length of time for document retention. The proposed amendments would require
that the statements be retained for two years. The commission does not know
how many vehicles have been sold by small or micro-businesses which had defective
pollution control equipment, nor how many of these entities had been retaining
such documents, but assumes that this proposed revision may potentially result
in reduced document storage costs to those small or micro-businesses that
sell vehicles with defective pollution control equipment, though these costs
are not considered significant.
The proposed amendments also extend the deadline by which owners and operators
of lawn and garden companies in the HGA ozone nonattainment area must submit
their emission reduction plans. The proposed deadline extension would affect
owners and operators in Brazoria, Fort Bend, Galveston, Harris, and Montgomery
Counties. Submitting an emission reduction plan enables a lawn care company
to be eligible for exemption from restrictions on the hours of operation for
the lawn care industry. The proposed amendments would change the submission
deadline from May 31, 2003 to May 31, 2004. The commission believes that the
lawn care industry did not receive sufficient time to create emission reduction
plans and that more time is needed to examine the need for the rules. The
commission does not know how many lawn care industry small or micro-businesses
are in the lawn care industry, but because the proposed amendments merely
extend the deadline for plans, no fiscal implications are anticipated, though
there may be a delay in any costs to those lawn care industry owners or operators
who contract for assistance in developing their plans. No changes are anticipated
to the amount of previously projected emission benefits achieved by the lawn
and garden rules as a result of the deadline extension.
LOCAL EMPLOYMENT IMPACT STATEMENT
The commission has reviewed this proposed rulemaking and determined that
a local employment impact statement is not required because the proposed amendments
do not adversely affect a local economy in a material way for the first five
years that the proposed amendments are in effect.
DRAFT REGULATORY IMPACT ANALYSIS DETERMINATION
The commission reviewed the proposed rulemaking in light of the regulatory
analysis requirements of Texas Government Code, §2001.0225, and determined
that the amendments do not meet the definition of a "major environmental rule."
A major environmental rule means a rule, the specific intent of which is to
protect the environment or reduce risks to human health from environmental
exposure, and that may adversely affect in a material way the economy, a sector
of the economy, productivity, competition, jobs, the environment, or the public
health and safety of the state or a sector of the state. The proposed amended
sections would make clarifications regarding the anti- tampering rules, adopt
by reference federal changes to the transportation conformity rules, and extend
the deadline for filing an emission reduction plan for compliance with the
lawn and garden rules. These proposed amendments would not require additional
emission controls or new capital expenses.
In addition, Texas Government Code, §2001.0225, only applies to a
major environmental rule, the result of which is to: 1) exceed a standard
set by federal law, unless the rule is specifically required by state law;
2) exceed an express requirement of state law, unless the rule is specifically
required by federal law; 3) exceed a requirement of a delegation agreement
or contract between the state and an agency or representative of the federal
government to implement a state and federal program; or 4) adopt a rule solely
under the general powers of the agency instead of under a specific state law.
The proposed amendments to Chapter 114 are not subject to the regulatory analysis
provisions of §2001.0225(b), because the proposed rules do not meet any
of the four applicability requirements. The commission invites public comment
regarding the draft regulatory impact analysis determination.
TAKINGS IMPACT ASSESSMENT
The commission completed a takings impact assessment for the proposed rules.
Promulgation and enforcement of the rules will not burden private real property.
The amended sections will not affect private property in a manner which restricts
or limits an owner's right to the property that would otherwise exist in the
absence of a governmental action. Therefore, the proposed rules do not constitute
a taking under Texas Government Code, Chapter 2007.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission determined the proposed rulemaking relates to an action
or actions subject to the Texas Coastal Management Program (CMP) in accordance
with the Coastal Coordination Act of 1991, as amended (Texas Natural Resources
Code, §§33.201
et seq
.) , and the
commission rules in 30 TAC Chapter 281, Subchapter B, concerning Consistency
with the Texas Coastal Management Program. As required by 30 TAC §281.45(a)(3)
and 31 TAC §505.11(b)(2), relating to actions and rules subject to the
CMP, commission rules governing air pollutant emissions must be consistent
with the applicable goals and policies of the CMP. The commission reviewed
this action for consistency with the CMP goals and policies in accordance
with the regulations of the Coastal Coordination Council and has determined
that the proposed amendments are consistent with the applicable CMP goal expressed
in 31 TAC §501.12(1) of protecting and preserving the quality and values
of coastal natural resource areas, and the policy in 31 TAC §501.14(q),
which requires that the commission protect air quality in coastal areas. If
adopted, the amendments will update definitions related to motor vehicle dealers
to correspond to changes made in statute, will set a retention period for
certain records, will incorporate updates to federal rules on transportation
conformity, and will delay by one year the deadline by which lawn and garden
companies must submit emission reduction plans to the commission. No new contaminants
will be authorized by these proposed amendments, although the submittal of
emission reduction plans will be delayed on the use of lawn and garden equipment
in the HGA nonattainment area. Interested persons may submit comments on the
consistency of the proposed amendments with the CMP during the public comment
period.
ANNOUNCEMENT OF HEARINGS
Public hearings on this proposal will be held in Houston on February 27,
2003, at 2:00 p.m. at the City Hall Annex, Council Agenda Briefing Room, 900
Bagby (between McKinney and Walker), and in Austin on February 28, 2003, at
2:00 p.m. at the Texas Commission on Environmental Quality, Building F, Room
2210, 12100 Park 35 Circle. Individuals may present oral statements when called
upon in order of registration. Open discussion will not occur during the hearings;
however, a staff member will be available to discuss the proposal 30 minutes
before the hearings and will answer questions before and after the hearings.
Persons with disabilities who have special communication or other accommodation
needs, who are planning to attend the hearing, should contact the Office of
Environmental Policy, Analysis, and Assessment at (512) 239-4900. Requests
should be made as far in advance as possible.
SUBMITTAL OF COMMENTS
Written comments may be submitted to Lola Brown, Office of Environmental
Policy, Analysis, and Assessment, MC 205, P.O. Box 13087, Austin, Texas 78711-3087
or faxed to (512) 239-4808. All comments should reference Rule Log Number
2003-008-114-AI. Comments must be received by 5:00 p.m., February 28, 2003.
For further information or questions concerning this proposal, please contact
Joseph Thomas, Office of Environmental Policy, Analysis, and Assessment, (512)
239-4580.
Subchapter B. MOTOR VEHICLE ANTI-TAMPERING REQUIREMENTS
30 TAC §114.21
STATUTORY AUTHORITY
The amendment is proposed under Texas Water Code (TWC), §5.103, concerning
Rules, and §5.105, concerning General Policy, which authorize the commission
to adopt rules necessary to carry out its powers and duties under the TWC;
and under Texas Clean Air Act (TCAA), §382.017, concerning Rules, which
authorizes the commission to adopt rules consistent with the policy and purposes
of the TCAA. The amendment is also proposed under TCAA, §382.002, concerning
Policy and Purpose, which establishes the commission's purpose to safeguard
the state's air resources, consistent with the protection of public health,
general welfare, and physical property; §382.011, concerning General
Powers and Duties, which authorizes the commission to control the quality
of the state's air; §382.012, concerning State Air Control Plan, which
authorizes the commission to develop a general, comprehensive plan for control
of the state's air; §382.019, which provides the commission the authority
to adopt rules to control and reduce emissions from engines used to propel
land vehicles; and §382.208, which provides the commission the authority
to coordinate with federal, state, and local transportation planning agencies
to develop and implement transportation programs and other measures necessary
to demonstrate and maintain attainment of NAAQS and to protect the public
from exposure to hazardous air contaminants from motor vehicles.
The proposed amendment implements TWC, §5.103 and §5.105 and
TCAA, §§382.002, 382.011, 382.012, 382.019, and 382.208.
§114.21.Exemptions.
(a) - (b)
(No change.)
(c)
Motor vehicles are exempt from the provisions of §114.20(a),
(b), and (d) of this title if the following conditions apply:
(1)
(No change.)
(2)
the motor vehicles were granted an exemption from the provisions
of §114.20(a) and (b) of this title by the
commission
[
(A) - (B)
(No change.)
(d)
The following vehicle transactions involving
a "dealer"
[
(1)
sales or transfers from one [
[
(2)
[
[
[
(e)
Federal, state, and local agencies or their agents which
sell abandoned, confiscated, or seized vehicles and any commercial vehicle
auction facilities are exempt from the provisions of §114.20(c) of this
title if the following conditions are met.
(1)
(No change.)
(2)
All potential buyers of the vehicle must be informed that
deficiencies may be present in the vehicle pollution control systems on the
vehicle. The buyer must also be informed of the liabilities to the buyer under §114.20
of this title and §114.50 of this title (relating to Vehicle Emissions
Inspection Requirements) of operating the vehicle prior to the adequate restoration
of all pollution control systems or devices on the vehicle as originally equipped.
The seller of the vehicle shall provide to the buyer a written acknowledgment
of the receipt of this information which must be signed by the buyer prior
to completion of the sales transaction. The seller shall retain a copy of
this signed acknowledgment
for two years
and shall make it available,
upon request.
(f)
(No change.)
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on January 24, 2003.
TRD-200300517
Stephanie Bergeron
Director, Environmental Law Division
Texas Commission on Environmental Quality
Earliest possible date of adoption: March 9, 2003
For further information, please call: (512) 239-0348
30 TAC §114.260
STATUTORY AUTHORITY
The amendment is proposed under TWC, §5.103, concerning Rules, and §5.105,
concerning General Policy, which authorize the commission to adopt rules necessary
to carry out its powers and duties under the TWC; and under TCAA, §382.017,
concerning Rules, which authorizes the commission to adopt rules consistent
with the policy and purposes of the TCAA. The amendment is also proposed under
TCAA, §382.002, concerning Policy and Purpose, which establishes the
commission's purpose to safeguard the state's air resources, consistent with
the protection of public health, general welfare, and physical property; §382.011,
concerning General Powers and Duties, which authorizes the commission to control
the quality of the state's air; §382.012, concerning State Air Control
Plan, which authorizes the commission to develop a general, comprehensive
plan for control of the state's air; §382.019, which provides the commission
the authority to adopt rules to control and reduce emissions from engines
used to propel land vehicles; and §382.208, which provides the commission
the authority to coordinate with federal, state, and local transportation
planning agencies to develop and implement transportation programs and other
measures necessary to demonstrate and maintain attainment of NAAQS and to
protect the public from exposure to hazardous air contaminants from motor
vehicles.
The proposed amendment implements TWC, §5.103 and §5.105 and
TCAA, §§382.002, 382.011, 382.012, 382.019, and 382.208.
§114.260.Transportation Conformity.
(a)
Purpose. The purpose of this section is to implement the
requirements set forth in Title 40 [
(b)
(No change.)
(c)
CFR incorporation. The Transportation Conformity Rules,
as specified in 40 CFR
Part
93, Subpart A, (62 FR 43780) dated
August 15, 1997
and amended through August 6, 2002
, are incorporated
by reference with the exception of [
(d)
Consultation. Under 40 CFR [
(1)
General factors.
(A)
For the purposes of this subsection, concerning consultation,
the affected agencies shall include:
(i) - (v)
(No change.)
(vi)
local
publicly owned
[
(vii)
Texas Commission on Environmental Quality (TCEQ
or commission)
[
(viii)
(No change.)
(B)
All correspondence with the affected agencies in subparagraph
(A) of this paragraph shall be addressed to the following designated points
of contact:
(i) - (ii)
(No change.)
(iii)
TxDOT:
director
[
(iv)
TxDOT:
director
[
(v)
FHWA:
administrator
[
(vi)
FTA:
director
[
(vii)
EPA:
regional administrator
[
(viii)
TxDOT District:
district engineer
[
(ix)
local
publicly owned
[
(x)
local air quality agencies (recipients of FCAA, §105
funds):
director
[
(xi)
(No change.)
(2)
Roles and responsibilities of affected agencies.
(A)
The MPO, in cooperation with TxDOT and publicly owned transit
services, shall consult with the agencies in paragraph (1)(A) of this subsection
in the development of Metropolitan Transportation Plans (MTPs), Transportation
Improvement Programs (TIPs), projects, technical analyses, travel demand or
other modeling, and data collection. Specifically, the MPOs shall:
(i)
allow the commission's
Strategic Assessment Division
director
[
(ii)
send information on time and location, an agenda, and
supporting materials (including preliminary versions of MTPs and TIPs) for
all regularly scheduled meetings on surface transportation or air quality
to each of the agencies specified in paragraph (1)(B) of this subsection.
This information shall be provided in accordance with the locally adopted
public involvement process as required by 23 CFR [
(iii)
after preparation of final draft versions of MTPs and
TIPs, and before adoption and approval by the affected governing body, ensure
that the agencies specified in paragraph (1)(B) of this subsection receive
a copy, and that they are included in the local area's public participation
process as required by the Metropolitan Planning Rule, 23 CFR [
(iv)
for the purposes of regional emissions analysis, initiate
a consultation process with the affected agencies specified in paragraph (1)(A)
of this subsection during the development stage of new or revised MTPs and
TIPs to determine which transportation projects should be considered regionally
significant and which projects should be considered to have a significant
change in design concept and scope from the effective MTP and TIP. Regionally
significant projects will include, at a minimum, all facilities classified
as principal arterial or higher, or fixed guideway systems or extensions that
offer an alternative to regional highway travel. Also, these include minor
arterials included in the travel demand modeling process which serve significant
interregional and intraregional travel, and connect rural population centers
not already served by a principal arterial, or connect with intermodal transportation
terminals not already served by a principal arterial. A significant change
in design concept and scope is defined as a revision of a project in the MTP
or TIP that would significantly affect model speeds, vehicle miles traveled,
or network connections. In addition to new facilities, examples include changes
in the number of through lanes or length of project (more than one mile),
access control, addition of major intermodal terminal facilities (such as
new international bridges, park- and-ride lots, and transfer terminals), addition/deletion
of interchanges, or changing between free and toll facilities. When a significant
change in the design and scope of a project is proposed, the MPO shall document
the rationale for the change and give the affected agencies specified in paragraph
(1)(A) of this subsection a 30-day opportunity to comment on
the
[
(v)
include in the TIP a list of projects exempted from the
requirements of a conformity determination under 40 CFR [
(vi)
notify the affected agencies specified in paragraph (1)(A)
of this subsection in writing of any MTP or TIP revisions or amendments which
add or delete the exempt projects identified in 40 CFR[
(vii)
as required by 40 CFR [
(viii)
before adoption of any new or substantially different
methods or assumptions used in the
hot spot
[
(ix) - (xii)
(No change.)
(B)
The commission, as the lead air quality planning agency,
shall work in consultation with the agencies specified in paragraph (1)(A)
of this subsection in developing applicable
transportation-related
[
(i)
set agendas and schedule meetings to seek advice and comments
from all agencies specified in paragraph (1)(A) of this subsection during
preparation of applicable
transportation- related
[
(ii)
schedule public hearings in order to gather public input
on the applicable transportation-related SIP revisions in accordance with
40 CFR [
(iii)
provide copies of final documents, including applicable
adopted or approved
transportation-related
[
(iv)
after consultation with the MPO regarding TCMs, distribute
to all agencies specified in paragraph (1) (B) of this subsection and other
interested persons the list of TCMs proposed for inclusion in the SIP. In
consultation with the agencies specified in paragraph (1)(A) of this subsection,
the commission shall determine whether past obstacles to implementation of
TCMs have been identified and are being overcome, and determine whether the
MPOs and the implementing agencies are giving maximum priority to approval
or funding for TCMs. Also, the commission shall consider, in consultation
with the affected agencies, whether delays in TCM implementation necessitate
a SIP revision to remove TCMs or to substitute TCMs or other emission reduction
measures
; and
[
(v)
consult with the applicable agencies specified in paragraph
(1)(A) of this subsection, in order to cooperatively choose conformity tests
and methodologies for isolated rural nonattainment and maintenance areas,
as required by 40 CFR [
(C)
Any group, entity, or individual planning to construct
a regionally significant transportation project which is not an FHWA-FTA project
(including projects for which alternative locations, design concept and scope,
or the no-build option are still being considered) must disclose project plans
to the MPO on a regular basis and disclose any changes to those plans immediately.
This requirement also applies to recipients of funds designated under Title
23
United States Code
[
(3)
General procedures.
(A) - (B)
(No change.)
(C)
For the purposes of evaluating and choosing a model (or
models) and associated methods and assumptions to be used in
hot spot
[
(D)
The commission, affected MPOs, affected local air quality
agencies, and TxDOT shall cooperatively evaluate events which will trigger
the need for new conformity determinations. New conformity determinations
may be triggered by events established in 40 CFR [
(E)
The MPO and its governing body, or TxDOT if applicable,
shall make conformity determinations for all MTPs, TIPs, regionally significant
projects, and all other events as required by 40 CFR [
(4)
Conflict resolution.
(A)
(No change.)
(B)
In the event that the MPO or TxDOT determines that every
effort has been made to address the commission's concerns, and that no further
progress is possible, the MPO or TxDOT shall notify the
TCEQ
[
(C)
(No change.)
(5)
Public comment on conformity determinations. Consistent
with the requirements of 23 CFR [
(6)
In formulating an enforcement policy regarding a violation
[
(e)
Compliance date. Compliance with this section shall
begin
[
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State on January 24, 2003.
TRD-200300518
Stephanie Bergeron
Director, Environmental Law Division
Texas Commission on Environmental Quality
Earliest possible date of adoption: March 9, 2003
For further information, please call: (512) 239-0348
Texas Natural Resource Conservation Commission (commission)
] or its
predecessor agency prior to June 1, 2000.
"wholesale dealers" and "retail dealers"
] as defined in
Texas Transportation Code, §503.001
[
the Texas Dealer Law,
Article 6686, Vernon's Texas Civil Statutes, Title 43, Texas Administrative
Code
], are exempt from the requirements of §114.20(c) of this title:
vehicle wholesale
]
dealer to another;
and
(2)
sales or transfers from a
vehicle wholesale dealer to a vehicle retail dealer;]
(3)
] sales, transfers, or trade-ins
from an individual to a [
vehicle wholesale or retail
] dealer
.
[
;
]
(4)
sales or transfers from one
retail dealer to another retail dealer; and]
(5)
sales or transfers from a
retail dealer to a wholesale dealer.]
Subchapter G. TRANSPORTATION PLANNING
of the
] Code of Federal Regulations
([
40
] CFR) Part 93, Subpart A (relating to Conformity to State
or Federal Implementation Plans of Transportation Plans, Programs, and Projects
Developed, Funded, or Approved Under Title 23 United States Code or the Federal
Transit Laws), which are the regulations developed by the EPA under the FCAA
Amendments of 1990, §176(c). It includes policy, criteria, and procedures
to demonstrate and assure conformity of transportation planning activities
with the
state implementation plan
[
State Implementation Plan
] (SIP).
§93.102(d) and
] §93.105.
The requirements of §93.105 are addressed in this section.
,
] §93.105,
regarding consultation, the following procedures shall be undertaken in nonattainment
and maintenance areas before making conformity determinations and before adopting
applicable SIP revisions.
publicly-owned
]
transit services in nonattainment or maintenance areas (the designated recipient
of FTA §5307 (formerly §9 funds);
Texas Natural Resource Conservation Commission
(commission)
];
Director
] of Transportation
Planning and Programming or designee;
Director
] of Environmental
Affairs Division or designee;
Administrator
]
of Texas Division or designee;
Director
] of Office
of Program Development or designee - FTA Region 6;
Regional
Administrator
] or designee - EPA Region 6;
District Engineer
] or designee;
publicly-owned
]
transit services (the designated recipient of FTA §5307 (formerly §9)
funds):
general manager
[
General Manager
] or designee;
Director
] or designee; and
Air Quality Planning and Assessment Division Director
], or a designated representative, to be a voting member of technical
committees on surface transportation and air quality in each nonattainment
and maintenance area in order to consult directly with the particular committee
during the development of the transportation plans, programs, and projects;
, Part 450,
] §450.316(b)(1);
,
] §450.316(b)(1).
Upon approval of MTPs and TIPs, MPOs shall distribute final approved copies
of the documents to the agencies specified in paragraph (1)(B) of this subsection;
their
] rationale. The MPO shall consider the views of each agency that
comments, and respond in writing before any final action on these issues.
If the MPO receives no comments within 30 days, the MPO may assume concurrence
by the agencies specified in paragraph (1)(A) of this subsection;
, Part 93,
] §93.126
and §93.127. The MPO shall consult with the affected agencies specified
in paragraph (1)(A) of this subsection in determining if a project on the
list has potentially adverse emissions for any reason, including whether or
not the exempt project will interfere with implementation of an adopted transportation
control measure (TCM). The MPO shall respond in writing to all comments within
30 days on final MTP and TIP documents. In addition, if no comments are received
as part of the subsequent public involvement process for the TIP, the MPO
may proceed with implementation of the exempt project
;
[
.
]
,
] §93.126;
,
] §93.116 and §93.123,
and in cooperation with TxDOT, make a preliminary identification of those
projects located at sites in PM
10
nonattainment
and maintenance areas that require quantitative PM
10
hot spot
[
Hot Spot
] analyses. After these projects
have been identified, the MPO shall submit a list of these projects and sufficient
data to the agencies specified in paragraph (1)(A) of this subsection for
review and comment;
Hot Spot
]
or
regional emmissions analysis
[
Regional Emissions Analysis
], provide an opportunity for the agencies specified in paragraph (1)(A)
of this subsection to review and comment;
transportation related
] SIP revisions, air quality modeling, general
emissions analysis, emissions inventory, and all related activities. Specifically,
the commission shall:
transportation
related
] SIP revisions;
,
] §51.102 and notify the agencies specified in paragraph
(1)(B) of this subsection of the hearings;
transportation
related
] SIP revisions and supporting information, to all agencies specified
in paragraph (1)(B) of this subsection; [
and
]
.
]
,
] §93.109(g)(2)(iii).
U.S.C.
] or the Federal Transit
Laws.
Hot Spot
] and
regional emissions analyses
[
Regional Emissions Analyses
], agencies specified in paragraph (1)(A)
of this subsection shall participate in a working group identified as the
Technical Working Group for Mobile Source Emissions [
(TWG)
]. The
frequency of meetings and agendas for them will be cooperatively determined
by the agencies specified in paragraph (1)(A) of this subsection. The function
of this working group may be delegated to an existing group with similar composition
and purpose.
,
] §93.104
as well as other events, including emergency relief projects that require
substantial functional, locational, and capacity changes, or in the event
of any other unforeseeable circumstances.
,
] Part 93,
Subpart A and this section. Upon completion of the transportation conformity
determination review process (including consultation, public participation,
and all other requirements of this section), FHWA and FTA will issue a joint
conformity finding, indicating the transportation conformity status of the
document(s) under review. The effective date of the conformity determination
for an area is the date of the joint conformity finding made by FHWA-FTA.
commission
] executive director in writing to this effect. This subparagraph
shall be cited by the MPO or TxDOT in any notification of a conflict which
may require action by the Governor, or his or her delegate under subparagraph
(C) of this paragraph.
,
] Part 450, concerning public
involvement, the agencies making conformity determinations on transportation
plans, programs, and projects shall establish a proactive public involvement
process which provides opportunity for public review and comment. This process
shall, at a minimum, provide reasonable public access to technical and policy
information considered by the agency at the beginning of the public comment
period and before taking formal action on conformity determinations for all
MTPs and TIPs, as required by 23 CFR §450.316(b) and this section. Any
charges imposed for public inspection and copying should be consistent with
the fee schedule contained in 49 CFR §7.95. In addition, these agencies
shall address in writing any public comment claiming that a non-FHWA/FTA funded,
regionally significant project has not been properly represented in the conformity
determination for an MTP or TIP. Finally, these agencies shall provide opportunity
for public involvement in conformity determinations for projects where otherwise
required by law.
of a rule
] of this subsection (relating to the consultation process)
the commission may consider any
good-faith
[
good faith
]
effort made by the consulting agencies to comply.
Effective date. The revisions to this section adopted by
the commission on November 18, 1998, and filed with the Secretary of State
on November 23, 1998, shall be in effect
] on the date of EPA approval
of the transportation conformity SIP associated with this rule.
Subchapter I. NON-ROAD ENGINES