Part 1.
TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
Chapter 114.
CONTROL OF AIR POLLUTION FROM MOTOR VEHICLES
The Texas Commission on Environmental Quality (commission) adopts
amendments to §§114.21, 114.260, and 114.452 and the corresponding
revisions to the state implementation plan (SIP). Section 114.21 is adopted
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED 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has been repealed by legislative action and recodified in Texas Transportation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the terms "wholesale dealer" and "retail dealer" is no longer valid.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 adopted revisions in §114.21(d) to simply reference the term "dealer"
instead of the previous two specific terms.
Section 114.21(e)(2) previously required that certain signed statements
be retained by certain sellers of vehicles, but did 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 an
annual basis, the commission finds 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 finds 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 finds 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 approving a delay of 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 reduces the expenditure of unnecessary resources
in planning for compliance. Because the adopted 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 amendment to §114.21(c)(2) changes the name of the agency to its
new name. The 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 amendment
makes reformatting and textual revisions that appropriately reflect the new
broader term. This 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 amendment to §114.21(e)(2), a period of two
years is added for the retention of certain records, rather than the previous
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 an annual basis, the commission finds that the records should be
retained for only two years. Section 114.21(a)(1) has been changed from proposal
to correct a typographical error.
The 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
subsection (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 adopts 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 removes 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 adopts by reference
the grace period which it provides.
The 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 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 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 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
still includes the following counties within the HGA nonattainment area: Brazoria,
Fort Bend, Galveston, Harris, and Montgomery. The effective date of the lawn
and garden rules remains 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 amendment to §114.452(c) also changes 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. Amended §114.452(c) states "... 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 deleted 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 new deadline of May
31, 2004.
FINAL REGULATORY IMPACT ANALYSIS DETERMINATION
The commission reviewed the 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 amended sections
make minor amendments to 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 amendments do 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 amendments to Chapter 114 are not subject to the regulatory analysis provisions
of §2001.0225(b), because the amended rules do not meet any of the four
applicability requirements.
TAKINGS IMPACT ASSESSMENT
The commission completed a takings impact assessment for the adopted 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 adopted rules do not constitute
a taking under Texas Government Code, Chapter 2007.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission determined the 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
PUBLIC COMMENT
Public hearings on this proposal were held in Houston on February 27, 2003,
and in Austin on February 28, 2003, but no oral comments were received. The
public comment period ended at 5:00 p.m. on February 28, 2003. Written comments
were submitted by EPA and the Houston-Galveston Area Council (HGAC), indicating
that they supported the amendments to §114.260.
RESPONSE TO COMMENTS
EPA stated that the draft revisions to the SIP and the rules had been received
and reviewed. EPA commented that it supported the changes to §114.260
and did not have comments on the amendments to the other sections.
The commission appreciates the support for this rulemaking.
HGAC stated that it had previously provided comments in favor of having
the 18-month conformity period begin when EPA finds that the motor vehicle
emissions budgets in the SIP are adequate, rather than when a budget is initially
submitted. HGAC commented that the method of beginning the period with submission
of the budget can result in having to start the conformity process prior to
the EPA adequacy finding because of the length of time needed to make a conformity
determination and stated that in one case this requirement resulted in wasted
resources when EPA found the budgets inadequate. HGAC further commented that
revised §114.260 allows a more logical, streamlined conformity process
without the potential of a futile exercise by a metropolitan planning organization,
and without affecting attainment.
The commission appreciates the support for this rulemaking.
HGAC commented that the one-year grace period for areas newly designated
as nonattainment areas provides a good window for conducting a full conformity
analysis. HGAC further commented that the grace period provides for better
public review, which is integral to the conformity process.
The commission appreciates the support for this rulemaking.
Subchapter B. MOTOR VEHICLE ANTI-TAMPERING REQUIREMENTS
30 TAC §114.21
STATUTORY AUTHORITY
The amendment is adopted 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 adopted 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 the national ambient air quality
standard (NAAQS) and to protect the public from exposure to hazardous air
contaminants from motor vehicles.
§114.21.Exemptions.
(a)
The following exemptions shall apply to specified motor
vehicles or motor vehicle engines.
(1)
Motor vehicles or motor vehicle engines which are intended
solely or primarily for legally sanctioned motor competitions, for research
and development uses, or for instruction in a bona fide vocational training
program where the use of a system or device would be detrimental to the purpose
for which the vehicle or engine is intended to be used are exempt from the
provisions of §114.20(a), (b), and (d) of this title (relating to Maintenance
and Operation of Air Pollution Control Systems or Devices Used to Control
Emissions from Motor Vehicles).
(2)
Motor vehicles or motor vehicle engines intended solely
or primarily for research and development uses, or for instruction in a bona
fide vocational training program where the introduction of leaded gasoline
or the circumvention of an emission control system or device is necessary
for the intended purposes of the program are exempt from the provisions of §114.20(e)
of this title.
(b)
Vehicles belonging to members of the U.S. Department of
Defense (DoD) participating in the DoD Privately Owned Vehicle Import Control
Program or other persons being transferred to a foreign country are exempt
from the provisions of §114.20(a), (b), and (d) of this title if the
following conditions are met.
(1)
Only the catalytic converter, oxygen sensor, and/or the
fuel filler inlet restrictor are removed from the vehicle.
(2)
The vehicle is delivered to the appropriate port for overseas
shipment within 30 days after the emission control device(s) is removed.
(3)
If the vehicle is returned to the United States, all systems
or devices used to control emissions from the vehicle are restored to good
operable condition within 30 days of pick-up of the vehicle from the appropriate
port of importation.
(4)
Documentation shall be kept with the vehicle at all times
while the vehicle is operated in Texas which provides sufficient information
to demonstrate compliance with all appropriate qualifications and conditions
of this exemption, including the following:
(A)
the unique vehicle identification number (VIN) of the subject
vehicle;
(B)
the agency, company, or organization which employs the
owner of the subject vehicle;
(C)
the country to which the owner of the subject vehicle is
being transferred;
(D)
the dates when applicable alterations were performed on
the subject vehicle;
(E)
the date when the subject vehicle is scheduled to be delivered
to the appropriate port for shipment out of the United States; and
(F)
the date when the subject vehicle is picked up from the
port of importation upon returning to the United States.
(c)
Motor vehicles are exempt from the provisions of §114.20(a),
(b), and (d) of this title if the following conditions apply:
(1)
the motor vehicles are registered as farm vehicles with
the Vehicle Titles and Registration Division of the Texas Department of Transportation,
are intended solely or primarily for use on a farm or ranch, and their air
pollution control devices or systems were removed or made inoperable prior
to June 1, 2000; or
(2)
the motor vehicles were granted an exemption from the provisions
of §114.20(a) and (b) of this title by the commission or its predecessor
agency prior to June 1, 2000.
(A)
A copy of the exemption shall be kept with the vehicle
at all times and shall be available for inspection by representatives of the
commission, the Texas Department of Public Safety (DPS), or any other law
enforcement agency upon request. The approved exclusion shall also be presented
to the certified vehicle inspector before each annual vehicle safety inspection
of the vehicle as administered by the DPS.
(B)
The exemption shall be void and all pollution control systems
and devices replaced on the vehicle and/or engine covered by the exclusion
when the vehicle changes ownership or is no longer used for the purpose identified
in the exclusion application. The executive director shall be informed in
writing prior to the change of ownership or usage.
(d)
The following vehicle transactions involving a "dealer"
as defined in Texas Transportation Code, §503.001, are exempt from the
requirements of §114.20(c) of this title:
(1)
sales or transfers from one dealer to another; and
(2)
sales, transfers, or trade-ins from an individual to a
dealer.
(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)
The DPS motor vehicle safety inspection certificates must
be removed from the vehicle and destroyed before the vehicle may be offered
for sale or displayed for public examination.
(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)
The owner of a motor vehicle which has been totally disabled
by accident, age, or malfunction and which will no longer be operated is exempt
from the provisions of §114.20(c) of this title if the DPS motor vehicle
safety inspection certificate is removed and destroyed before the vehicle
is offered for sale or displayed for public examination.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on May 2, 2003.
TRD-200302741
Stephanie Bergeron
Director, Environmental Law Division
Texas Commission on Environmental Quality
Effective date: May 22, 2003
Proposal publication date: February 7, 2003
For further information, please call: (512) 239-0348
30 TAC §114.260
STATUTORY AUTHORITY
The amendment is adopted 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 adopted 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.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed
with the Office of the Secretary of State on May 2, 2003.
TRD-200302742
Stephanie Bergeron
Director, Environmental Law Division
Texas Commission on Environmental Quality
Effective date: May 22, 2003
Proposal publication date: February 7, 2003
For further information, please call: (512) 239-0348
Subchapter G. TRANSPORTATION PLANNING
Subchapter I. NON-ROAD ENGINES