Bryan W. Shaw, Ph.D., Clwinnarz 

Carlos Rubinstein, Commissioner 

Toby Baker, Commissioner 

Zak Covar; Ewcutive Director 

RECEIVED- 6PDL 

AIR PLANNING SEC. 

12 SEP 24 PM 5: o-, 

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY 

Protecting Texas by Reducing and Preventing Pollution 

September 19,2012 

Samuel Coleman 

Acting Regional Administrator 

U.S. Environmental Protection Agency- Region 6 

1445 Ross Avenue 

Dallas, Texas 75202-2733 

Dear Mr. Coleman: 

Docket No. 2009-2039-RUL 

Rule Project No. 2009-001-114-EN 

On August 22, 2012, the Texas Commission on Environmental Quality (Commission) adopted 

revisions to the State Implementation Plan (SIP). 

The Commission adopted amendments to §§114.6, 114.312, and 114.314- 114.319, the repeal 

of §114.313 and new §114.313 in 30 TAC Chapter 114, Control of Air Pollution from Motor 

Vehicles; and corresponding revisions to the SIP. The adoption revises definitions; 

establishes new designated alternative limits; removes expired registration requirements and 

establishes new registration requirements; revises approval procedures for alternative diesel 

fuel formulations; specifies conditions for revocation of additive-based alternative diesel fuel 

formulations approvals; allows all alternative diesel formulations approved by the 

Commission prior to April1, 2012, to remain in effect; revises reporting requirements; 

requires quarterly compliance determinations for alternative emission reduction plans using 

the Unified Model; and removes expired early gasoline sulfur reduction credits provisions. 

Enclosed are the proposed revisions to the SIP, a public hearing certification, a complete 

record of the public hearing, and the accompanying order. I look forward to your expeditious 

approval of these SIP revisions. 

Sincerely, 

!~::~!-' Chairman 

BWSjjmm 

Enclosures 

cc: The Honorable Rick Perry, Governor of Texas 

Mr. Jonathan Stinson, Office of Budget, Planning and Policy, Office of the Governor 

Mr. Zak Covar, Executive Director, Texas Commission on Environmental Quality 

P.O. Box 13087 • Austin, Texas 78711-3087 • 512-239-1000 • tceq.texas.gov 

How is our customer service? tceq.texas.gov jcustomersurvey 
TEXAS COMMISSION ON ENVIRONMENTAL QUALITY 

. THE STATE OF TEXAS 

COUNTY OF TRAVIS 

Docket No. 2009-2039-RUL 

Rule Project No. 2009-001-114-EN 

This is to certify that the attached electronic file is included and that the electronic file is a 

true and correct copy of documents for a revision to the Texas State Implementation Plan, 

adopted on August 22, 2012, pursuant to 40 Code of Federal Regulations § 51.104. I am the 

records administrator for the Air Quality Planning Division of the Texas Commission on 

Environmental Quality (Commission). 

~~ Air Quality Division 

Texas Commission on Environmental Quality 
Texas Commission on Environmental Quality 

Public Hearing 

April 26, 2012 

Concerning Revisions to 30 T AC Chapter 114 

Control of Air Pollution from Motor Vehicles and 

Corresponding Revision to the State Implementation Plan 

Rule Project No. 2009-001-114-EN 
INTRODUCTION 

The Texas Commission on Environmental Quality (TCEQ or commission) held a public hearing in 

Austin on April26, 2012, to receive testimony regarding proposed revisions to 30 TAC Chapter 114, 

Control of Air Pollution from Motor Vehicles, and corresponding revisions to the state 

implementation plan. 

The rulemaking revises definitions; specifies established new designated alternative limits for Texas 

low emission diesel fuel properties; removes expired registration requirements and establishes new 

registration requirements for identifying production and import facilities; revises approval procedures 

for alternative diesel fuel formulations; specifies that the approvals of all additive-based alternative 

diesel fuel formulations would be subject to revocation if the composition of the additive is found to 

be altered; allows all alternative diesel formulations approved by the TCEQ prior to April1, 2012, to 

remain in effect; revises reporting requirements to include production and import facility data; 

requires alternative emission reduction plans using the Unified Model to determine compliance each 

calendar quarter; removes expired early gasoline sulfur reduction credits provisions; and makes 

other clarifying changes as needed for accuracy and consistency. 

The comment period closed on April27, 2012. All testimony and comments have been reviewed 

and seriously considered. This hearing record contains a complete record of the public hearings 

and is divided into the following four sections: 

o Public Notification and Proposal 

o Written and Oral Testimony 

o Evaluation of Testimony 

o Staff Recommendations/Order 
Additional copies of this hearing record are maintained in the TCEQ Morris Brown at (512) 239-

1438. 
NOTICE & PROPOSAL 
PUBLIC NOTIFICATION 

Notification to the public of the proposed revisions was conducted by the following procedures: 

1. Publication of notice of public hearing in the following newspapers on the date listed: 

Austin American-Statesman: March 9, 2012 

Fort Worth Star-Telegram: March 9, 2012 

Houston Chronicle: March 9, 2012 

San Antonio Express-News: March 9, 2012 

2. Publication of the proposed rules in the March 23, 2012, issue of the Texas Register(37 TexReg 

2009). 

3. Publication of the Notice of Public Hearing in the March 23, 2012, issue of the Texas Register 

(37 TexReg 2099). 

4. Correspondence forwarding the notice of public hearings to the following officials and agencies: 

Speaker of the House 

Lieutenant Governor 

Alamo Area Council of Governments 

Capital Area Planning Council 

City of Austin, Mayor's Office 

City of Dallas, Department of Environmental Quality 

City of Dallas, Department of Aviation 

City of El Paso, Environmental Services 

City of Fort Worth, Environmental Management Department 

City of Houston, Department of Health and Human Services 

East Texas Council of Governments 
El Paso Metropolitan Planning Organization 

Federal Highway Administration 

Galveston County Health District 

Harris County Public Health and Environmental Services 

Houston-Galveston Area Council 

North Central Texas Council of Governments 

South East Texas Regional Planning Commission 

Texas Department of Transportation 

Travis County Judge 

Victoria Metropolitan Planning Organization 

Arkansas Department of Pollution Control and Ecology 

Louisiana Department of Environmental Quality 

New Mexico Environmental Department 

Oklahoma Department of Environmental Quality 

United States Environmental Protection Agency 
Example of Newspaper Classified Ad 

San Antonio Express-News, March 9, 2012 

PUBLIC HEARING ON PROPOSED REVISIONS TO 30 TAC CHAPTER 114 AND THE STATE 

IMPLEMENTATION PLAN The Texas Commission on Environmental Quality (commission) will 

conduct a public hearing to receive testimony concerning proposed amendments to 30 T AC Chapter 

114, Control of Air Pollution from Motor Vehicles; and cmTesponding revisions to the state 

implementation plan (SIP), under the requirements of Texas Health and Safety Code, §382.017; Texas 

Government Code, Chapter 2001, Subchapter B; and 40 Code of Federal Regulations §51.102 of the 

United States Environmental Protection Agency (EPA) regulations concerning SIPs. The proposed 

rulemaking would revise definitions; specify establish new designated alternative limits for Texas low 

emission diesel fuel properties; remove expired registration requirements and establish new registration 

requirements for identifying production and import facilities; revise approval procedures for alternative 

diesel fuel formulations; specify that the approvals of all additive-based alternative diesel fuel 

formulations would be subject to revocation if the composition of the additive is found to be altered; 

allow all alternative diesel formulations approved by the TCEQ prior to April!, 2012, to remain in 

effect; revise reporting requirements to include production and import facility data; require alternative 

emission reduction plans using the Unified Model to determine compliance each calendar quarter; 

remove expired early gasoline sulfur reduction credits provisions; and make other clarifying changes as 

needed for accuracy and consistency. The commission will hold a public hearing on this proposal in 

Austin on April26, 2012, at 10:00 a.m. in Building E, Room 201S, at the commission's central office 

located at 12100 Park 35 Circle, Austin. The hearing is structured for the receipt of oral or written 

comments by interested persons. Individuals may present oral statements when called upon in order of 

registration. Open discussion will not be permitted during the hearing; however, commission staff 

members will be available to discuss the proposa130 minutes prior to the hearing. Persons who have 

special communication or other accommodation needs who are planning to attend the hearing should 

contact Sandy Wong, Office of Legal Services at (512) 239-1802. Requests should be made as far in 

advance as possible. Written comments may be submitted to Charlotte Horn, MC 205, Office of Legal 

Services, Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 78711-3087, or 

faxed to (512) 239-4808. Electronic comments may be submitted at: 

http://www5.tceq.texas.gov/rules/ecomments/. File size restrictions may apply to comments being 

submitted via the eCornments system. All comments should reference Rule Project Number 2009-001-

114-EN. The comment period closes April27, 2012. Copies of the proposed mlemaking can be 

obtained from the commission's Web site at http:/!www.tceq.texas.gov!nav/mles/propose_adopt.htrnl. 

For further information, please contact Morris Brown, Air Quality Division, at (512) 239-1438. 

3/9!2012 
An agreed order was entere regarding Meriliol USA LLC, Docket No. 

2011-1608-AIR·E on Marc 7, 2012 assessing $21,625 in administra· 

tive penalties with .$4,325 d ferred. 

Information concerning any aspect of this order may be obtained by 

contacting Trina Grieco, En rcement Coordinator at(210) 403-4006, 

Texas Commission on Envir nmental Quality, P.O. Box. 13087, Austin, 

Texas 78711-3087. 

An agreed order was enter d regarding Cily of Mexia, Docket No. 

2011-1644-MWD·E on Mach 7, 2012 assessing $15,900 in admin· 

istrative penalties with $3,1 0 deferred. 

Information concerning any aspect of this order may be obtained by 

contacting Jill Russell, Enfi rcement Coordinator at (512) 239-4564, 

Texas Commission on Envir nmental Quality, P.O. Box 13087, Austin, 

Texas 78711·3087. 

TRD-201201412 

Bridget C. BOhllC 

Chief Clerk 

Texas Commission on Envir mental Quality 

Filed: March 14, 2012 

+ + + 

Notice of a Public Hearin on Proposed Revisions to 30 TAC 

Chapter 30 

The Texas Commission on nvironmental Quality (commission) will 

conduct a public hearing to eceive testimony regarding proposed re· 

visions to 30 TAC Chaplet' 0, Occupational Licenses and Registrations, §§30.24, 30.26, and 3 33, under the requirements of Texas Wa· 

ter Code, §§5.102, 5.103, an 37.008; Texas Family Code, §232.0134 

and §232.0135; Texas Occu ions Code, §55.004; and Texas Govern· 

ment Code, Chapter 2001, S bchapter B. 

The proposed rulemaking wo ld implement House Bill (HB) 965, 82nd 

Legislature, 2011,. relating t Class A and B Public Water System Op· 

erators and Class A and B astewater Treatment Facility Operators 

being able to certify their c tinuing education, when renewing their 

license. The proposed rules lso implement HB 1674, 82nd Legisla· 

ture, 2011, relating to the issu ce or renewal of a license or registration 

for applicants who have full to pay child suppo11 for six months or 

more. 

Additionally, the proposed les implement Senate Bill (SB) 1733, 

82nd Legislature, 2011, rei ing to issuance of a license to an appli· 

cant who is the spouse of a p rson serving on active duty as a member 

of the armed forces of the U 'ted States and holds a current license issued by another state. 

TI1e commission will hold a ublic hearing on this proposal in Austin 

onAprill2, 2012, at 10:00 a. . in BuildingE, Room 201S, at the commission's central office locat d at 12100 Park 35 Circle. The hearing 

is structured for the receipt oral or written comments by interested 

persons. Individuals may pr ent oral S1atements when called upon in 

order of registJ·ation. Open d cussion will not be permitted dming the 

hearing; however,. commissi n staff members will be available to dis· 

cuss the proposal 30 minutes prior to 1he headng. 

Persons who have special mmunication or other accommodation 

needs who are planning to ttend the hearing should contact Sandy 

Wong, Office of Legal Servi es, at (512) 239-1802. Requests should 

be made as far in advance as possible. 

Written comments may be ubmitted to Charlotte Hom, MC 205, 

Office of Legal Services, Texas Commission on Environmental 

Quality, P.O. Box 13087, Austin, Texas 78711·3087, or faxed 

to (512) 239-4808. Elec nic conunents may be submitted at: 

http://www5.tceq.texas. v/rules/ecommentsl. File size restric· 

tions may apply to co ents being submitted via the eComments 

system. All commen s shotlld reference Rule Project Number 

2011-044-030-WS. The omment period closes April13, 2012. Copies 

of the proposed rulemal ing can be obtained from the commission's 

Web site at http://www. ceq.texas.govlnavlru/es/propose_adopt.html. 

For furthel' information, lease contact Terry Thompson, Occupational 

Licensing Section, (512 239-6095. 

TRD-201201323 

Robert Martinez 

Director, Environmental aw Division 

Texas Commission on E vlronmental Quality 

Filed: March 9, 2012 

+ + + 

Notice of a Public Hearing on Proposed Revisions to 30 TAC 

Chapter 114 and State Implementation Plan 

The Texas Commission on Environmental Quality (commission) will 

conduct a public hearing to receive testimony concerning proposed 

amendments to 30 TAC Chapter ll4, Control of Air Pollution from 

Motor Vehicles; and corresponding revisions to the state implemen· 

tation plan (SIP), under the requirements of Texas Health and Safety 

Code, §382.017; Texas Government Code, Chapter 2001, Subchapter 

B; and 40 Code of Federal Regulations §51.102 of the United States 

Environmental Protection Agency (EPA) regulations concerning SIPs. 

The proposed rulemaking would revise definitions; specify establish 

new designated alternative limits for Texas low emission diesel fuel 

properties; remove expired registration req\Jirements and establish new 

registration requirements for identifying production and import facili· 

ties; revise approval procedures for alternative diesel fuel formulations; 

specifY that the approvals of all additive-based alternative diesel fuel 

tbrmulations would be subject to revocation if the composition of the 

additive is found to be altered; allow all alterttative diesel formulations 

approved by the TCEQ prior to Aprill, 2012, to remain in effect; revise 

reporting requirements to include production and import facility data; 

require alternative emission reduction plans using the Unified Model 

to determine compliance each calendar quarter; remove expired early 

gasoline sulfur reduction credits provisions; and make other clarifying 

changes as needed for accuracy and consistency. 

The commission will hold a public hearing on this proposal in AuS1in 

onApril26, 2012, at 10:00 a.m. inBuildingE, Room 2018, at the com· 

mission's central office located at 12100 Park 35 Circle, The hearing 

is structured for the receipt of oral or written comments by interested 

persons. Individuals may present oral statements when called upon in 

order of registration, Open discussion will not be permitted during the 

hearing; however, commission staff members will be available to dis· 

cuss the proposal30 minutes prior to the hearing. 

Persons who have special communication or other accommodation 

needs who are planning to attend the hearing shmJld contact Sandy 

Wong, Office ofLegal Services, at (512) 239-1802. Requests should 

be made as far in advance as possible. 

Written comments may be submitted to Charlotte Horn, MC 205, 

Office of Legal Service.~, Texas Commission on Environmental 

Quality, P.O. Box. 13087, Austin, Texas 78711-3087, or faxed 

to (512) 239·4808. Electronic comments may be submitted at: 

http://www5.tceq.texas.govlru/eslecomments!. File size restrictions may apply to comments being submitted via the eComments 

system. All comments should reference Rule Project Number 

2009-001-114-EN. The comment period closes April27, 2012. Copies 

of the proposed rulemaldng can be obtained fi"Om the commission's 

Web site at http:llwww.tceq.texas.gov/navlrulel!lpr.opose_adopt.html. 

IN ADDITION March 23, 2012 37 TexReg 2099 
For further information, please contact Morris Brown, Air Quality 

Division, (512) 239-1438. 

nm-2o12o1325 

Robert Martinez 

Director, Environmental Law Division 

Texas Commission on Environmental Quality 

Filed: March 9, 2012 

• • • 

Notice of a Public Hearing on Proposed Revisions to 30 TAC 

Chapters 293 and 294 

The Texas Commission on Envir mnental Quality (commission) will 

conduct a public hearing to recei e testimony regarding proposed l'e· 

visions to 30 TAC Chapter 293, Water Districts, §§293.19, 293.20, 

293.22 and 293.23; and Chapter 94, Priority Groundwater Management At'eas, §§294.30 and 294.4 - 294.44, w1der the requirements of 

Texas Government Code, Chapte · 2001, Subchapter B. 

The proposed rulemaklng would mplement Senate Bills 313 and 660 

from the 82nd Legislature, 2011 relating to the creation of ground· 

water conservation districts. in pri rity groundwater management areas 

that were designated before Sept mber 1, 1997; the study and "desig· 

nation" of new priority groundwa cr manageme11t areas; the cmation of 

groundwater-conservation distri ill new priority groundwater management areas; the definition of n affected person; and the reasons 

that an affected person may petiti n the commission for an inquiry of a 

groundwater conservation distric in a groundwater management area. 

The commission will hold a pub c hearing on this proposal in Austin 

onApri117, 2012, at 2:00p.m. i Building E, Rooni 201S, at the commission's central office located a 12100 Park 35 Circle. The. hearing 

is structured for the receipt of or or written comments by interested 

persons. Individuals may presen oral statements when called upon in 

order of registration. Open disctl sion will not be permitted during the 

hearing; however, commission s ff members will be available to dis· 

cuss the proposal 30 minutes pri r to the hearing. 

Persons who have special co 

needs who are planning to atte 

Wong, Office of Legal Services 

be made as far in advance as po 

unication or other accommodation 

the hearing should contact Sandy 

t (512) 239·1802. Requests should 

ib1e. 

Written comments may be sub itted to Michael Pal'l'ish, MC 205, 

Office of Legal Services, Te s Commission on Environmental 

Quality, P.O. Box 13087, Au tin, Texas 78711-3087, or faxed 

to (512) 239-4808. Electroni comments may be submitted at: 

http://www5.tceq.texas.gov/rules. ecommentsl. File size restrictions may apply to comme11ts eing submitted via the eComments 

system. All comments shou reference Rule Project Number 

2011-054-294-0W. The co1nmen period closes April23, 2012. Copies 

of the proposed rulemaking ca be obtained (rom the commission's 

Web site at http://www.tceq.tex s.govlnav/rule:I/propose_adopt.html. 

For further iltformation, please ontact Michael Chadwick, Ground· 

water Planning and Assessment earn, (512) 239-4517. 

TRD-201201319 

Robert Martinez 

Director, Environmental Law Divi ion 

Texas Commission on Envlronm tal Quality 

Filed: March 9, 2012 

• • • 

37 TexReg 2100 March 23, 2012 Texas Register 

Notice of Application and Oppottu tty to Request a Public 

Meeting for a New Municipal Solid aste Facility Registration 

Application No. 40261 

Application. Stericycle, Inc., 28161 . Keith Drive, Lake Forest, 

Illinois 60045, has applied. to the Te as Commission on Environ· 

mental Quality (TCEQ) for proposed Registmtion No. 40261, to 

operate a Type V municipal solid w e Transfer Station. The proposed facility, Stericycle • El Paso, w 1 be located at 5307 El Paso 

Drive, El Paso, Texas 79905, in El aso County. The Applicant 

is requesting authorization to lransti r and store municipal solid 

waste which includes medical waste non-hazardous pharmaceuti· 

cals, confidential documents, municip solid waste, and may accept 

Animal and Plant Health Inspection vices regulated waste. The 

registration application is available fi viewing and copying at the 

Clardy Fox Branch Library, 5515 Ro rt Alva Ave., El Paso, Texas 

7990~ and may be viewed online a www.texaspennits.net. The 

following link to an electronic map · the site or facility's general 

location is provided .as a public courte y and is not pa11 of the appli· 

cation or notice: http://www.tceq.te as.gov/assets/public/hb610/index.html7lat=31.770555&1ng=-106.42 222&zoom=13&type=r. For 

exact location, refer to application. 

Public Comment/Public Meeting. Wr en public comments or wdtten requests for a public meeting mus be submitted to the Office of 

Chief Clerk at the add!·ess included in he information section below, 

If a public meetit1g is held, comments ay be made orally at the meeting or submitted in writil1g by the olose fthe public meeting. A public 

meeting will be held by the executive d' ector if requested by a member 

of the legislature who represents the g neral ru·ea where the develop1nent is to be located, or if there is a s bstantial public interest in the 

proposed development. Th!;: put'Pose f the public meeting is for the 

public to provide input for considera:f n by the commission, and for 

the applicant and the commission sta to provide information to the 

public. A public meeting is not a co ested case hearing. The exec· 

utive director will review and consid public comments and written 

requests for a public meeting.submitt d during the comment period. 

The comment period shall begin on t e date this notice is published 

and end 60 calendar days after this no ce is published. The comment 

pel'iod shall be extended to the close o any public meeting. The executive director is not 1-equired to file a r sponse to comments. 

Executive Director Action. The exec 've director shall, after review 

of an application for registration, dete mine if the application will be 

approved or de11ied in whole or in part. If the executive director acts on 

an application, the chief clerk shall m 'I or otherwise transmit notice 

of the action and an explanation of th opportunity to file a motion to 

overturn the executive director's deci ·on. The chief clerk shall mail 

this notice to the owner and operator the public interest counsel, to 

adjacent landowners as shown on the r. quired land owne1·ship map and 

landowners list, and to other persons ho timely filed pt1blic comment 

in response to· public notice. Not all p ns on the mailing list for this 

notice will receive the notice letter fro the Office of the Chief Clerk. 

Information. Written public comme ts or requests to be placed on 

the permanent mailing list for this a plication should be submitted 

to the Office of the CJ1ief Clerk m 'I code MC 105, TCEQ, P.O. 

Box 13087, Austin, Texas 78711-308 Ol' electronically submitted to 

http://www10,tceq.state.tx.us/epic/ec nts/. If you choose to communicate with the TCEQ electronically, lease be aware that your e-mail 

address, like your physical mailing a dress, will become part of the 

agency's public record. For informat n about this application or the 

registration process, individual mem ers of the general public may 

call the TCEQ Public Education Prog at 1-800-687-4040. General 

inforn1ation regarding the TCEQ ca be tbund at our web site at 

www.tceq.state.tx.us. Further inform ion may also be obtained from 
Bryan W. Shaw, Ph.D., Chairman 

Buddy Garcia, Commissioner 

Carlos Rubinstein, Commissioner 

Mark R. Vickery, P.G., Executive Director 

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY 

Protecting Texas by Reducing and Preventing Pollution 

Public Hearing on Proposed Revisions to 30 TAC Chapter 114 and 

the State Implementation Plan 

The Texas Commission on Environmental Quality (commission) will conduct a public hearing to 

receive testimony concerning proposed amendments to 30 TAC Chapter 114, Control of Air 

Pollution from Motor Vehicles; and corresponding revisions to the state implementation plan 

(SIP), under the requirements of Texas Health and Safety Code, §382.017; Texas Government 

Code, Chapter 2001, Subchapter B; and 40 Code of Federal Regulations §51.102 of the United 

States Environmental Protection Agency (EPA) regulations concerning SIPs. 

The proposed rulemaking would revise definitions; specify establish new designated alternative 

limits for Texas low emission diesel fuel properties; remove expired registration requirements 

and establish new registration requirements for identifying production and import facilities; 

revise approval procedures for alternative diesel fuel formulations; specify that the approvals of 

all additive-based alternative diesel fuel formulations would be subject to revocation if the 

composition of the additive is found to be altered; allow all alternative diesel formulations 

approved by the TCEQ prior to April1, 2012, to remain in effect; revise reporting requirements 

to include production and import facility data; require alternative emission reduction plans 

using the Unified Model to determine compliance each calendar quarter; remove expired early 

gasoline sulfur reduction credits provisions; and make other clarifying changes as needed for 

accuracy and consistency. 

The commission will hold a public hearing on this proposal in Austin on April 26, 2012, at 10:00 

a.m. in Building E, Room 201S, at the commission's central office located at 12100 Park 35 

Circle, Austin. The hearing is structured for the receipt of oral or written comments by 

interested persons. Individuals may present oral statements when called upon in order of 

registration. Open discussion will not be permitted during the hearing; however, commission 

staff members will be available to discuss the proposal 30 minutes prior to the hearing. 

Persons who have special communication or other accommodation needs who are planning to 

attend the hearing should contact Sandy Wong, Office of Legal Services at (512) 239-1802. 

Requests should be made as far in advance as possible. 

Written comments may be submitted to Charlotte Horn, MC 205, Office of Legal Services, Texas 

Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 78711-3087, or faxed to 

(512) 239-4808. Electronic comments may be submitted at: 

http://wwws.tceq.texas.govjrulesjecommentsj. File size restrictions may apply to comments 

being submitted via the eComments system. All comments should reference Rule Project 

Number 2009-001-114-EN. The comment period closes April27, 2012. Copies of the proposed 

rulemaking can be obtained from the commission's Web site at 

http:/ jwww.tceq.texas.govjnavjrulesjpropose_adopt.html. For further information, please 

contact Morris Brown, Air Quality Division, at (512) 239-1438. 

P.O. Box 13087 • Austin, Texas 78711-3087 • 512-239-1000 • tceq.texas.gov 

How is our customer service? tceq. texas.gov I customersurvey 

printed on recycled paper 
ill £ej] After notice and earing a license or registration may 

be suspended for a period of up t one year, depending upon the seriousness of the violations. A lie e or registration shall be revoked 

after notice and hearing upon a s ond suspension. 

ill [EJ(j] TI1e commission ay revoke a license or registration 

after notice and hearing for a de ignated tem1 or permanently. If a 

license or registration is revoked a second time, the revocation shall be 

permanent. 

!gU W11 l11e following rocedures for renewal apply to per· 

sons that have had their license o registration suspended. 

(1) If a license m· reg tration expiration date falls within 

the S\lSpension period, a person ay renew the license or registration 

during the suspension period ace ding to §30.24 of this title (relating 

to License and Registration Appl cations for Renewal) and the appli· 

cable subchapters. 

ill [(~]After the sus nsion period has ended, the license 

or registration shall be automatic Iy reinstated unless the person failed 

to renew the license or registratio during the suspension period. 

ill} [fmj) Persons that h ve had their license or registration 

revoked shall not have their licen e or registration reinstated after the 

revocation pedod. Aftet' the revo tion period has ended, a person may 

apply for a nCJw license or registr ion according to this chapter. 

This agency hereby certifies th t the proposal has been reviewed 

by legal counsel and found to b within the agency's legal authority to adopt. 

Filed with the Office of the Se 

TRD-201201324 

Robert Martinez 

Director, Environmental Law Divis on 

Texas Commission on Envlronme tal Quality 

Earliest possible dale of adoption: April 22, 2012 

For further information, please cal : (512) 239-0779 

• • • 

CHAPTER 114. CONTROL OF AIR 

POLLUTION FROM MOTOR VEHICLES 

The Texas Commission on Environmental Quality (TCEQ, 

agency, or commission) proposes amendments to §§114.6, 

114.312, and 114.314 - 114.319; the repeal of §114.313; and 

new §114.313 .. 

If adopted, the revisions would be submitted to the United States 

Environmental Protection Agency (EPA} as revisions to the state 

Implementation plan (SIP). 

Background and Summary of the Factual Basis for the Proposed 

Rules 

The current state regulations for Texas low emission diesel 

(TxLED) under Chapter 114 require that all diesel as defined 

under §114.6 that is sold or supplied for use In a compression-Ignition engine operating in any of the 110 central and 

eastern Texas counties listed in §114.319 must comply with the 

specifications for aromatic hydrocarbons and cetane number 

as listed in §114.312 or one of the other compliance options 

listed under this section. This regulation includes all diesel used 

as fuel for on-road motor vehicles and non-road equipment. 

The TxLED regulations also apply to marine distillate fuels, I.e., 

Marine Distillate fuel X (DMX), Marine Distillate fuel A (DMA), 

and Marine Gas Oil (MGO), when these marine distillate fuels 

are used in the 1997 Houston-Galveston-Brazoria (HGB) ozone 

nonattainment area counties of Brazoria, Chambers, Fort Bend, 

Galveston, Harris, Liberty, Montgomery, and Waller; Diesel 

producers are also allowed to produce TxLED in accordance 

with an alternative emission reduction plan (AERP) as specified 

under §114.318. TxLED producers and Importers are required 

to register with the TCEQ as specified under §114.314 and 

to submit quarterly reports to the TCEQ as specified under 

§114.316. There are 114 producers and importers currently 

registered under the TxLED program. The total nitrogen oxides 

(NO.) emission reduction benefit from TxLED in 2018 from all 

110 counties currently regulated is estimated to be approximately 5.62 tons per day (tpd) from on-road vehicle use and 

7.54 tpd from non-road equipment use. The estimated NO. 

emission reduction benefit in 2018 from TxLED marine diesel 

in the 1997 eight-county HGB ozone nonattainment area Is 

approximately 0.89 tpd. 

The purpose for the proposed rulemaking is to address the following issues. 

Alternative Diesel Formulations 

The TCEQ has currently approved 20 alternative diesel formulations In accordance with the testing requirements specified under §114.315 that producers and importers may use to produce 

TxLED, with 18 of these formulations requiring the use of a diesel 

additive. All but one of the additive-based alternative diesel formulations for TxLED were approved under the testing procedures specified under §114.315(c). In 2010, approximately 36% 

of all TxLED was reported to have been produced using the 

additive-based alternative diesel formulations approved by the 

TCEQ. Approximately 24% of all TxLED in 2010 was reported to 

have been produced using an additive-based alternative diesel 

formulation for California diesel approved by the California Air 

Resources Board (GARB) that producers are allowed to use under §114.312(e) to produce TxLED. 

The TCEQ process to approve an alternative diesel formulation 

for TxLED under §114.315(c) includes review and approval of 

test protocols prior to emissions testing, observation of the emissions testing at the testing facilities, review ofthe final test reports 

from the testing facilities describing the results of the emissions 

testing, and determining whether the emissions test results satisfy the criteria specified in §114.315(c) that allows the TCEQ to 

approve the formulation. The TCEQ is also required to request 

the EPA's consultation when proposing to approve an alternative 

diesel formulation for TxLED. 

The TCEQ approval and review process specified in §114.316(c) 

has resulted in fiscal and staff resource challenges for the 

agency. The professional services needed to validate the 

PROPOSED RULES March 23, 2012 37 TexReg 2009 
emissions testing data and to physically observe the emissions 

testing being performed for approval purposes Is costing the 

TCEQ approximately $20,000 per application. 

The proposed rulemaking would remove the alternative diesel 

fuel formulation test procedures in §114.315(o) and the option 

under §114.315(d) for allowing the testing of these formulations 

through the EPA's Environmental Technology Verification (ETV) 

Program, which the EPA has discontinued. The other approval 

option currently specified under §114.315(d), which specifies criteria for using the Unified Model that was developed by the EPA 

specifically for the TxLED program, would remain as the only 

TCEQ method for approving alternative diesel formulations. Acceptance of alternative diesel formulations approved by CARB 

as allowed under §114.312(e) would also continue. The proposed rulemaking would greatly lessen the TCEQ's fiscal and 

staff resource needs in the physical testing aspects of the alternative diesel formulation approval process. 

Designated Alternative Umits 

The current TxLED regulations specified In §114.312(e) allow 

diesel fuel produced to comply with specific California regulations for diesel fuel to be used for compliance with the TxLED requirements, including diesel fuel produced under the designated 

equivalent limits specified under Title 13 California Code of Regulations (13 CCR) §2282(h)(1). Although this subsection was 

adopted in March 2005, It does not appear that many producers 

in Texas are taking advantage of the flexibility provided by these 

parameters. The proposed rulemaking would repeal the current 

rules in §114.313 and simultaneously propose a new §114.313 

that would establish new designated alternative limits with the 

same fuel property limits specified In 13 CCR §2282(h)(1) that 

producers may use to produce TxLED. This proposed action 

would provide further clarification of an underutiilzed flexibility In 

the TxLED program while ensuring equivalent emission reductions. 

Alternative Emission Reduction Plans 

The current TxLED regulations allow producers to use diesel offset credits from early gasoline sulfur reductions as a compliance 

option under the AERP provisions specified under §114.318. 

However, the ability to use diesel offset credits in the ozone 

nonattalnment counties specified under §114.319(b)(1) ~ (3) 

expired December 31, 2008, and expired In the other 90 TxLED 

counties on December 31, 2010. The proposed rulemaking 

would remove the expired provisions specified under §114.318 

pertaining to the use of early gasoline sulfur reduction credits as 

a methodology option for AERP compliance. 

Administrative 

The current TxLED regulations contain several administrative 

compliance deadlines that have expired and other administrative requirements relating to registration and reporting that are 

outdated or need further clarification. The proposed ruiemaking 

would revise definitions in §114.6 to clarify that only the person or 

company that owns or operates the production facility that is producing the final blend of diesel fuel is considered a producer and 

is therefore required to register and comply with the other TxLED 

requirements. In addition, the proposed rulemaking would revise 

the registration requirements in §114.314 to remove expired provisions and to add new requirements for the registration of production and import facilities. The proposed rulemaking would 

also make other clarifying changes to the administrative provisions of the rules as needed for accuracy and consistency. 

37 TexReg 2010 March 23, 2012 Texas Register 

Section by Section Discussion 

To conform to TCEQ and Texas Register formatting requirements, non-substantive revisions would be made throughout 

the proposed amendments to correct citations, acronym usage, 

and other minor issues, 

§114.6, Low Emission Fuel Definitions 

The proposal would amend §114.6 to remove the definition 

of designated alternative limit as needed for consistency with 

proposed new §114.313; remove the definition of motor vehicle 

fuel; renumber and revise the definitions of bulk plant, bulk 

purchaser/consumer, further process, import, Import facility, 

importer, produce, producer, and production facility to replace 

the term, "motor vehicle fuel," with the terms, "gasoline" or 

"diesel fuel," as needed for consistency and to make other 

changes to these terms as needed. to clarify that only the person 

or company that owns or operates the production facility that is 

producing the final blend of diesel fuel is considered a producer 

and Is therefore required to register and comply with all TxLED 

requirements. The proposal would also make changes to clarify 

the definitions of additive, diesel fuel, final blend, gasoline, low 

emission diesel, motor vehicle, non-road equipment, and retail 

dispensing outlet. 

§114.312, Low Emission Diesel Standards 

The proposal would amend §114.312 to make changes needed 

for accuracy and consistency with the proposed new §114.313 

and the proposed revisions to §114.315. The proposal would 

amend §114.312 to remove language limiting the acceptance 

of CARB' approved alternative diesel fuel formulations to only 

those approved on or before January 18, 2005, to allow the use 

of new alternative diesel fuel formulations approv.ed by CARB in 

the future. The proposal would also amend §114.312 to cite the 

current effective date of the California diesel regulations relevant 

to this section. 

§114.313, Designated Alternative Limits 

The proposal would repeal existing §114.313 and propose a new 

§114.313 that would establish new designated alternative limits 

that have the same fuel property limits as currently specified In 

California regulations ( 13 CCR §2282(h)(1 )) to provide further 

clarification of an underutilized flexibility in the TxLED program 

while ensuring equivalent emission reductions. 

§114.314, Registration of Diesel Producers and Importers 

The proposal would amend §114.314 to remove expired registration requirements and to require all new producers and Importers 

to register by no later than 45 days after the first date that they begin to provide TxLED to the affected counties listed in §114.319. 

In addition, the proposal would amend §114.314 to require producers and importers to provide information on each production 

facility and import facility from which TxLED is produced or imported. The proposed registration requirements would provide 

further clarification that only owners and operators of production 

facilities are considered producers subject to the TxLED regulations. The proposal would make other clarifying changes to 

§114.314 as needed to enhance and simplify the registration 

process. 

§114.315, Approved Test Methods 

The proposal would amend §114.315 to remove the altema~ve 

diesel formulation test procedures In subsection (c) to clarify 

that alternative diesel fuel formulations would only be approved 

through the provisions currently specified under subsection (d). 
The proposal would also amend §114.315 to remove the option for allowing testing of an alternative diesel fuel formulation 

through the EPA's ETV Program, which the EPA has discontinued. The proposal would also amend §114.315 to remove the 

supplementary test methods for viscosity and flash point in subsection (a) for consistency with the changes to subsection (c). 

The proposal would also amend §114.315 to specify that the approvals of all additive-based alternative diesel fuel formulations 

approved prior to April 1, 2012, and thereafter, would be subject to revocation if the composition of the additive is found to 

be altered. Producers using an additive-based alternative diesel 

formulation would be required to discontinue use of the formulation within 45 days of the date of revocation. In addition, the 

proposal would amend §114.315 to add a new subsection (e) to 

specify that all alternative diesel fuel formulations approved by 

the executive director prior to April1, 2012, may continue to be 

used for compliance. 

§114.316, Monitoring, Reoordkeeping, and Reporting Requirements 

The proposal would amend §114.316 to make clarifying changes 

to the reporting requirements as needed for accuracy and consistency with the proposed changes to §§114.313- 114.315, and 

114.318. The proposal would also amend §114.316 to specify the sampling and analysis requirements for the specific fuel 

properties for TxLED produced under §§114.312, 114.313, and 

114.318. 

§114.317, Exemptions to Low Emission Diesf>l Rf>quirements 

The proposal would amend§ 114.317 to make clarifying changes 

as needed for accuracy and consistency with the proposed 

changes to §-114.316 and §114.319. 

§114.318, Alternative Emission Reduction Plan 

The proposal would amend §114.318 to remove the provisions 

pertaining to the calculation and use of early gasoline sulfur reduction credits as a methodology option for AERP compliance. 

in addition, the proposal would amend §114.318(b) to require 

AERPs that use the Unified Model to calculate compliance based 

on the average fuel properties determined each calendar quarter, instead of yearly as currently required. The proposal would 

also amend §114.318(b) to allow producers to calculate the average fuel properties used in the Unified Model based on the fuel 

properties of diesel sold or supplied for use in all affected counties, instead of specific groups of counties as currently required. 

§114.319, Affected Counties and Compliance Oates 

The proposal would amend §114.319 to remove expired compliance schedules in subsection (c) and to modify subsection (d) 

to clarify that if the final compliance date of any provision in the 

section is before the adoption of the current revl.sion to the section and the compliance dates are not specified in the current 

revision, then the compliance date is past and all affected persons must be and remain in compliance with the provision as of 

the original compliance date. The proposal would also amend 

§114.319 to make other clarifying changes as needed for accuracy and consistency within the section. 

Fiscal Note: Costs to State and Local Government 

Nina Chamness, Analyst, Strategic Planning and Assessment, 

has determined that for the first five-year period the proposed 

rules are in effect, no significant fiscal implications are antici" 

pated for the agency as a result of administration or enforcement 

of the proposed rules. The proposed rules are expected to resuit in some cost savings for the agency for activities associated 

with the emissions testing and approval of alternative diesel formulations. However, any cost savings associated with this task 

will be reallocated to other air compliance activities and are not 

expected to be significant. Other state agencies and local governments are not expected to be affected by the proposed rules. 

The proposed rules amend sections of Chapter 114 that concern 

Low Emission Diesel. The proposed rulemaking would make 

several changes including the following: revise definitions; establish new designated alternative limits for TxLED fuel properties; remove expired registration requirements and establish new 

registration requirements for identifying production and import 

facilities; revise approval procedures for alternative diesel fuel 

formulations; specify that the approvals of an additive-based alternative diesel formulations are subject to revocation if the composition of the additive Is altered; allow all alternative diesel formulations approved by the TCEQ prior to Apri 11, 2012, to remain 

in effect; revise reporting requirements to include production and 

Import facility data; require alternative emission reduction plans 

using the EPA's Unified Model to determine compliance each 

calendar quarter; remove expired early gasoline sulfur reduction 

credits provisions; and make other clarifying changes as needed 

for accuracy and consistency. · 

Impacts to the Agency- Alternative Diesel Formulations 

The proposed rules will revise approval procedures for alternative diesel fuel formulations by removing agency test and certification procedures and by removing the option for seeking approval through the EPA's ETV program, which the EPA has discontinued, thereby limiting agency approval of alternative diesel 

fuel formulations to the certification option currently available in 

the rules that specifies criteria for approval through the use of 

EPA's Unified Model. Acceptance of alternative diesel formulations approved by the CARB will also remain an option for the 

agency. Because the agency will no longer validate emissions 

testing data, the proposed rules could save the agency as much 

as $20,000 per application in professional services costs. However, the exact amount of savings is difficult to quantify, because 

of the variance In the number of applications the agency has received. Applications have ranged from a low of two in Fiscal Year 

2009to a high of eight in Fiscal Year 2008 ($40,000to $160,000). 

Any costs savings experienced by the agency will be reallocated 

to other air compliance activities. 

Impact to Other State Agencies and Local Government 

The proposed rules will not have fiscal impacts for other state 

agencies or local governments since these governmental entj.. 

ties do not typically produce low emission diesel fuels. 

Public Benefits and Costs 

Nina Chamness also determined that for each year of the first 

five years the proposed rules are in effect, the public benefit anticipated from the changes seen in the proposed rules will be a 

statewide improvement in air quality. 

The proposed rules are not expected to have a significant fiscal 

impact on individuals in the 11 o central and eastern Texas counties in which TxLED Is required to be used. 

The proposed rules are not expected to have a significant fiscal 

impact on large businesses. All alternative diesel formulations 

approved prior to April 1, 2012, will remain in effect under the 

proposed rules. The proposed rules do remove two certification 

options available under current rules, but two other existing opPROPOSED RULES March 23, 2012 37 TexReg 2011 
lions for certification will still be available, and th.ere will be no 

change in certification costs under the proposed rules. 

Small Business and Micro-Business Assessment 

No adverse fiscal implications are anticipated for small or micro"businesses as a result of the proposed rules. All alternative 

diesel formulations approved prior to April1, 2012, will remain in 

affect under the proposed rules. The proposed rules do remove 

two certification options available under current rules, but two 

other existing options for certification will still be available, and 

there will be no change in certification costs under the proposed 

rules. 

Small Business Regulatory Flexibility Analysis 

The agency has reviewed this proposed rulemaking and determined that a small business regulatory flexibility analysis is not 

required, because the proposed rules are necessary to protect 

human health and the environmentand the proposed rules are 

not expected to adversely impact small businesses. 

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 rules do not adversely affect a 

local economy In a material way for the first five years that the 

proposed rules are in effect 

Draft Regulatory Impact Analysis Determination 

The commission reviewed the proposed rulemaking consider~ 

ing the regulatory analysis requirements of Texas Government 

Code, §2001.0225, and determined that the rulemaking does 

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 exp.osure, 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 revisions to Chapter 114, Subchapter H, would 

remove the alternative diesel fuel formulation test procedures in 

§114.315(c) and the option for testing for approval through the 

EPA's ETV program, which the EPA has discontinued, thereby 

only allowing approval of alternative diesel formulations through 

the other two approval options currently allowed that either specify criteria for using the Unified Model that was developed by 

the EPA specifically for the TxLED program or accept alternative diesel formulations approved by GARB. The proposal would 

lessen the TCEQ's fiscal and staff resource needs in the physical testing aspects of the alternative diesel formulation approval 

process. 

This rulemaking action would repeal existing §114.313 and propose a new §114.313 that would establish new designated alternative limits with the same fuel property limits specified in California regulations ( 13 CCR §2282(h)( 1 )) that producers may use 

to produce TxLED. This proposed action would provide added 

flexibility to the TxLED progtam while ensuring equivalent emission reductions. The proposed rulemaking would remove the expired provisions specified under §114.318 pertaining to the use 

of early gasoline sulfur reduction credits as a methodology op.. 

tion for AERP compliance. 

Finally, the current TxLED regulations contain several administrative compliance deadlines that have expire'd and other administrative requirements relating to registration and reporting that 

37 TexReg 2012 March 23, 2012 Texas Register 

are outdated or need further clarification. The proposed rulemaking would make clarifying changes to the administrative provisions of the rules as needed for accuracy and consistency. 

Due to the limited nature and scope of these amendments, this 

action would not adversely affect, In a materlal way, the economy 

or a sector of the economy, productivity, competition, or jobs. 

The proposed rule changes continue to provide alternatives and 

flexibility to producers of TxLED and additives in order to meet 

the fuel requirements. The amendments to the rules do not affect 

the NO, reductions expected from the sale and use of TxLED In 

Texas. Therefore, adverse impacts to the environment or public 

health and safety In the state will not occur. 

The TxLED rules are part of the strategy to reduce NO. emissions necessary for designated areas in the state to be able to 

demonstrate attainment and maintenance of the National Ambient Air Quality Standards (NAAQS) for ozone. This .strategy 

is intended to protect the environment or reduce risks to human 

health from environmental exposure to ozone by reducing NO, 

emissions that help form ozone. 

Assuming the proposed revisions constituted a major environmental rule, the action Is not subject to the regulatory analysis 

provisions ofTexas Government Code, §2001.0225(b), because 

the proposed rule making does not meet any of the four applicability requirements. Texas GovarnmentCode, §2001.0225 only 

applies to a major environmental rule, the result of which is to: 1) 

exceed a standard set by federal 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. 

Specifically, this rulemaking action will make improvements to 

the alternative formulation and additive approval process. The 

TxLED program was developed as part of the control strategy 

to meet the NAAQS for ozone set by the EPA under Federal 

CleanAirA9t (FCAA),42 United States Code (USC), §7409, and 

therefore meet a federal requirement. 

The proposed rulemaking implements requirements of 42 USC, 

§7 410. which requires states to adopt a SIP that provides for "implementation, maintenance, and enforcement" of the NAAQS in 

each air quality control region of the state. While 42 USC, §741 0 

does not require specific programs, methods, or reductions to 

meet and maintain the standard, SIPs must Include "enforceable emission limitations and other control measures, means or 

techniques (including economic incentives such as fees, marketable permits, and auctions of emissions rights), as well as 

schedules and timetables for compliance as may be necessary 

or appropriate to meet the'appllcable requirements ofthls chapter," (meaning 42 USC, Chapter 85, Air Pollution Prevention and 

Control). It Is true that the FCAA does require some specific 

measures for SIP purposes, such as the Inspection and maintenance program, but those programs are the exception, not the 

rule, in the SIP structure of 42 USC, §7410. The provisions of 

the FCAA recognize that states are in the best position to determine what programs and controls are necessary or appropriate 

In order to meet and maintain the NMQS. This flexibility allows 

states, affected Industry, and the public to collaborate on the best 

methods to attain the NAAQS for the specific regions In the state. 

Even though the FCAA allows states to develop their own programs, this flexibility does not relieve a state from developing a 

program that meets the requirements of 42 USC, §7410. Thus, 
while specific measures are not generally required, the emission 

reductions are required. States are not free to ignore the requirements of 42 USC, §7 410, and must develop programs to assure 

that the nonattainment areas of the state would be brought Into 

attainment on schedule and to maintain the NAAQS after redesignation. The proposed revisions will help areas in the state attain and maintain the 1997 eight-hour ozone NAAQS as expeditiously as practicable. 

The requirement to provide a fiscal analysis of proposed regulations in the Texas Government Code was amended by Senate Bill (SB) 633 during the 75th Legislature, 1997. The intent 

of SB 633 was to require agencies to conduct a regulatory impact analysis of extraordinary rules. These rules are identified in 

the statutory language as major environmental rules that would 

have a material adverse impact and would exceed a requirement 

of state law, federal law, or a delegated federal program, or are 

adopted solely under the general powers of the agency. With 

the understanding that this requirement would seldom apply, the 

commission provided a cost estimate for SB 633 that concluded 

"based on an assessment of rules adopted by the agency in the 

past, it is not anticipated that the bill would have significant fiscal implications for the agency due to its limited application." The 

commission also noted that the number of rules that would require assessment under the provisions of the bill was not large. 

This conclusion was based, in part, on the criteria set forth in the 

bill that exempted proposed rules from the full analysis unless 

the rule was a major environmental rule that exceeds a federal 

law. As discussed previously in this preamble,.42 USC, §7410 

does not require specific programs, methods, or reductions in 

order to meet and maintain the NAAQS; thus, states must develop programs for each non attainment area to ensure that area 

would meet the attainment deadlines. Because of the ongoing 

need to address nonattainment Issues, the commission routinely 

proposes and adopts SIP rules. The legislature is presumed to 

understand this federal scheme. If each rule proposed for inclusion In the SIP was considered to be a major environmental rule 

that exceeds federal law, then every SIP rule would require the 

full regulatory impact analysis contemplated by SB 633. This 

conclusion is Inconsistent with the conclusions reached by the 

commission In its cost estimate and by the Legislative Budget 

Board in its fiscal notes. Because the legislature is presumed 

to understand the fiscal impacts of the bills it passes, and that 

presumption is based on information provided by state agencies 

and the Legislative Budget Board, the commission contends that 

the Intent of SB 633 was only to require the full regulatory impact analysis for rules that are extraordinary in nature. While the 

SIP rules would have a broad impact, that impacf is no greater 

than is necessary or appropriate to meet the requirements of 

42 usc, §7410. For these reasons, rules adopted for inclusion 

In the SIP fall under the exception in Texas Government Code, 

§2001.0225(a), because they are specifically required by federal 

law. 

In addition, 42 USC, §7502(a}(2) requires attainment as expeditiously as practicable, and 42 USC, §7511(a) requires states to 

submit ozone attainment demonstration SIPs for ozone nonattainment areas, such as the HGB and the Dallas-Fort Worth 

eight-hour ozone nonattainment areas. The commission has 

consistently applied this construction to its rules since this statute 

was enacted in 1997. Since that time, the legislature has revised 

the Texas Government Code but left this provision substantially 

un-amended. The commission presumes that "when an agency 

interpretation Is in effect at the time the legislature amends the 

laws without making substantial change in the statute, the legislature is deemed to have accepted the agency's interpretation." 

Central Power & Light Co. v. Sharp, 919 S.W2d 485, 489 

(Tex. App. Austin 1995), writ denied with per curiam opinion 

respecting another issue, 960 S.W.2d 617 (Tax. 1997); Bullock 

v. Marathon Oil Co., 798 S.W.2d 353, 357 (Tex. App. Austin 

1990), no writ; Cf. Humble Oil & Refining Co. v. Calvert, 414 

S.W.2d 172 (Tex. 1967); Sharp v. House of Lloyd, Inc., 815 

S.W.2d 245 (Tex. 1991); Southwestern Life Ins. Co. v. Montemayor, 24 S.W.3d 581 (Tex. App. Austin 2000), pel denied; 

and Coastallndust Water Auth. v. Trinity Portland Cement Div., 

563 S.W.2d 916 (Tex. 1978). 

As discussed previously in this preamble, this rulemaking action 

implements requirements of42 USC, §7410. Furthermore, there 

is no contract or delegation agreement that covers the topic that 

is the subject of this action. Therefore, the proposed rulemaking does not exceed a standard set by federal law, exceed an 

express requirement of state law, or exceed a requirement of a 

delegation agreement. Finally, this rulemaking action was not 

developed solely under the general powers of the agency, but is 

authorized by specific sections of Texas Health and Safety Code, 

Chapter 382 (also known as the Texas Clean Air Act), and the 

Texas water Code, which are cited in the Statutory Authority section of this preamble, including Texas Health and Safety Code, 

§§382.012, 382.017, 382.019, and 382.202. Therefore, the proposed rulemaking does not exceed a standard set by federal law, 

exceed an express requirement of state law, exceed a requirement of a delegation agreement, nor is adopted solely under the 

general powers of the agency, 

Based on the foregoing, if this rulemaking action Is assumed to 

be a major environmental rule, it is not subject to the regulatory 

analysis provisions of Texas Government Code, §2001.0225(b), 

because the proposed rulemaking does not meet any of the four 

applicability requirements. The commission invites public comment on the draft regulatory impact analysis determination. 

Written comments on the draft regulatory impact analysis determination may be submitted to the contact person at the address 

listed under the. Submittal of Comments section of this preamble. 

Takings Impact Assessment 

The commission evaluated this proposed rulemaking and 

performed an analysis of whether these proposed revisions 

to rules constitute a taking under Texas Government Code, 

Chapter 2007. The specific purpose of these proposed rules 

is to achieve reductions in NO. emissions to reduce ozone 

formation in order to help bring nonattainment areas in the 

state into attainment with the federal NAAQS for ozone and to 

maintain it. The proposed rules would substantially advance 

this stated purpose by clarifying and simplifying testing procedures for additives and alternative fuel formulation approvals, 

clarifying designated alternative limits for TxLED, and updating 

and adding definitions. Promulgation and enforcement of these 

proposed rules wo'-lld be neither a statutory nor a constitutional 

taking of private real property, Specifically, the subject rulemaking does not affect a landowner's rights in private real property, 

because this rulemaklng does not burden (constitutionally); 

nor resbict or limit the owner's right to property and reduce 

its value by 25% or more beyond that which would otherwise 

exist in the absence of the regulations. These revisions will not 

place a burden on private real property, because this action 

does not require an investment in the permanent installation of 

new refinery processing equipment Additive-based alternative 

fuel formulations can be developed to meet TxLED that do 

not require changes to refinery processes. Additionally, the 

PROPOSED RULES March 23, 2012 37 TexReg 2013 
alternative formulation approvals made by the executive director 

are not property rights, and the proposed changes to the rules 

do not foreclose other approval options to meet TxLED for these 

alternative formulations, Alternative formulations were initially 

developed as a way to provide flexibility for diesel producers 

and suppliers to meet TxLED requirements. 

Furthermore, the commission's analysis indicates tha.t Texas 

Government Code, Chapter 2007 does not apply to these proposed rules, because this Is an action that is reasonably taken 

to fulfill an obligation mandated by federal law, whicl:1 is exempt 

under Texas Government Code, §2007.003(b)(4). Specifically, 

the TxLED requirements were developed in order to meet 

the NAAQS for ozone set by the EPA under 42 USC, §7409. 

States are primarily responsible for ensuring attainment and 

maintenance of NAAQS once the EPA has established them. 

Pursuant to 42 USC, §7410, and related provisions, states 

must submit, for approval by the EPA, SIPs that provide for the 

attainment and malnte.nance of NAAQS through control programs directed to sources of the pollutants involved. Therefore, 

one purpose of this rulemaking action is to provide additional 

clarification and flexibility in implementing the TxLED program 

necessary for the state's nonattalnment areas to meet the air 

quality standards established under federal law as NMQS. 

Attainment and maintenance of the new ozone standard require 

substantial reductions In NO, emlss.ions as well as volatile 

organic compounds emissions.. This rulemaking is only one 

step among many necessary for attaining and maintaining the 

new ozone standard. 

In addition, Texas Government Code, §2007,003(b)(13), states 

that Chapter 2007 does not apply to an action that 1) is taken in 

response to a real and substantial threat to public health and 

safety; 2) is designed to significantly advance the health and 

safety purpose; and 3} does not impose a greater burden than Is 

necessary to achieve the health and safety purpose. Although 

the rules do not directly prevent a nuisance or prevent an lmmedi.ate threat to life or property, they do prevent a real and substantial threat to public health and safety and significantly advance 

the health and safety purpose. This action is taken In response 

to areas of the state exceeding the federal NMQS for ozone, 

which adversely affects public health, primarily through irritation 

of the lungs. The action significantly advances the health and 

safety purpose by improving the TxLED program that reduces 

ozone levels In the nonattainment areas and other areas of the 

state that contribute to high ozone levels in these areas. Consequently, these proposed rules meet the exemption in Texas 

Government Code, §2007.003(b)(13). This rulemaking action 

therefore meets the requirements of Texas Government Code, 

§2007.003(b)(4} and (13). For these reasons, the proposed rulemaking does 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 C.oordinatlon Act 

of 1991, as amended (Texas Natural Resources Coda, §§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 CM P. 

The commission reviewed this acUon for consistency with the 

37 TexReg 2014 March 23, 2012 Texas Register 

CMP goals and policies in accordance with the regulations of 

the Coastal Coordination Council and 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. The proposed rulemaking 

will ensure that the amendments comply with 40 Coda of Federal Regulations (CFR} Part 50, National Primary and Secondary 

Air Quality Standards, and 40 CFR Part 51, Requirements for 

Preparation, Adoption, and Submittal of Implementation Plans. 

This rulemaking. action Is consistent with CMP goals and policies, in compliance with 31 TAC §505.22(e}. 

Written comments on the consistency of this rulemaking may be 

submitted to the contact person at the address listed under the 

Submittal of Comments section of this preamble. 

Announcement of Hearing 

The commission will hold a public hearing on this proposal In 

Austin on April 26, 2012, at 10:00 a.m. in Building E, Room 

201S, at the commission's central office located at 12100 Park 

35 Circle. The hearing Is structured for the receipt of oral or written comments by interested persons. Individuals may present 

oral statements when called upon in order of registration. Open 

discussion will not be permitted during the hearing; however, 

commission staff members will be available to discuss the proposal 30 minutes prior to the hearing. 

Persons who have special communication or other accommodation needs who are planning to attend the hearing should contact 

Sandy Wong, Office of Legal Services, at (612) 239-1802. Requests should be made as far in advance as possible. 

Submittal of Comments 

Written comments may be submitted to Charlotte Horn, MC 

205, Office of Legal Services, Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 78711-3087 

or faxed to (512) 239-4808. Electronic comments may be 

submitted at: http:llwww5.tceq.texas.govlrules/eoomments/. 

File size restrictions may apply to comments being submitted 

via the eComments system. All comments should reference Rule Project Number 2009-001-114-EN. The comment 

period closes April 27, 2012. Copies. of the proposed rulemaking can be obtained from the commissi.on's Web site at 

·http://www. tceq. texas. govlnavlru/es/proposa _ adopt.html. For 

further Information, please contact Morris Brown, Air Quality 

Division, at (512) 239-1438. 

SUBCHAPTER A. DEFINITIONS 

30 TAC §114.6 

Statutory Authority 

The amendment is proposed under Texas Water Code (TWC), 

§5.1 03, concerning Rules, and TWC, §5. 105, concerning General Policy, which authorize the commission to adopt rules necessary to carry out its powers and duties under the TWC. The 

amendment is also proposed under Texas Health and Safety 

Code (THSC}, §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; THSC, §382.011, concerning General Powers and Duties, which authorizes the commission to control the quality of the state's air; THSC, §382.012, 

concerning State Air Control Plan, which authorizes the com-
mission to prepare and develop a general, comprehensive plan 

for the control of the state's air; THSC, §382.017, concerning 

Rules, which authorizes the commission to adopt rules consistent with the policy and purposes of the Texas Clean Air Act; and 

THSC, §382.202, concerning Vehicle Emissions Inspection and 

Maintenance Program, which authorizes the commission to establish vehicle fuel content standards after January 1, 2004, as 

long as distribution of low emission diesel (LED) as described in 

the state implementation plan is not required prior to February 

1, 2005, and authorizes the commission to conslqer alternative 

emission reduction plans to comply with LED requirements. 

The proposed amendment implements THSC, §§382.002, 

382.011, 382.012, 382.017, and 382.202. 

§114.6. Low Emission Fuel Definitions. 

Unless specifically defined in Texas Health and Safety Code, Chapter 

382, also known as the Texas Clean Air Act (TCAA), or in the rules of 

the commission, the terms used in this subchapter have the meanings 

commonly ascribed to them in the field of air pollution conti'Ol. In 

addition to the terms that are defined by TCAA, §3.2, and§ 101.1 ofthis 

title (relating to Definitions), the [.fuRewing] words and terms specified 

in this section, when used in Subchapter H of this chapter (relating to 

Low Emission Fuels), have the [fullawiag] meanings as defined in this 

section, unless the context clearly indicates otherwise. 

(1) Additive·· Any substance that is intentionally added to 

gasoline or diesel fuel for the purpose of producing a gasoline or diesel 

fuel in compliance with the requirements of Subchapter H of this chapter[; ineludit1g afty aEkied tea m&teP whleJe fool system; afK-i that i& net 

ifoonti&llali]' r-emeved Jlfiar, te sale ef IJSe aftd] that is: 

(A) l! registered additive with the United States Environmental Protection Agency (EPA) in accordance with 40 Code of 

Federal Regulations (CFR) Part 79 (relating to Registration of Fuels 

and Fuel Additives); or 

(B) added to gasoline m· diesel for the purpose of reduc· 

ing exhaust emissions from motor vehicles or non-road equipment and 

is exempted from the EPA registration requirements in accordance with 

40 CFR [G&de e-f Fedefal RegulatioHs] Part 79. 

(2) Barrel--A unit of measure equal to 42 United States gal· 

Ions. 

(3) Bulk plant--An intennediate gasoline or diesel [1neter 

~]fuel distribution facility where gasoline or diesel fuel is stored 

and then transported for delivery to a bulk plJrchaser/consmner or retail 

fuel dispensing facility [ deiJvery &f m&teP ~ f:ue! te and fff>m the 

faeiHty- is oolely by lmek & pipe-line]. 

(4) Bulk purchaser/consumer--A person who purchases or 

otherwise obtains gasoline or diesel [meltlP veh-i~] fuel in bulk and 

then dispenses it into the fuel tanks of motor vehicles owned or operated 

by the person. 

(5) Common carrier--A person engaged in the transportation of goods or products of another person for compensation and is 

available to the public for hire. 

f(-6) Ilesigflated a!temat+ve limit tfl~--An alteraative 

speeifieatiea futffi faf a speeifie fuel st-aodafd-; wlmllt i& assigned by 

a pr-adneeP or- itnf)orter- ta a flMl blood ef ffiw emission diesel fuel 

~ ffi aeeafdanee with~:l afthill title (-reltlting te DesigHated 

Alremative bimitsj.3 

.® [t7J] Diesel fuel--Any middle distillate fuel used in 

compression-ignition internal combustion engines that is commonly or 

commercially known, sold, m· represented as: 

(A) Grade No. 1-D or Grade No. 2-D diesel fuel, in 

accordance with the active version of American Society for Testing 

and Materials (ASTM) D975 (Standard Specification for Diesel Fuel 

Oils)[; eJreeflt faf ~]; 2! [and] 

(B) Marine Distillate fuel X (DMX), Marine Distillate 

fuel A (DMA), or Mal'ine Gas Oil (MGO) diesel fuel in accordance with 

the active version of the International Organization for Standardization 

(ISO) 8217 Specifications ofMarine Fuels. 

ill [f&-)] Final blend--A distinct quantity of[le-w eJ:ll-.ffisiea] 

diesel fuel [(biiD1] that is introduced into commerce as low emission 

diesel fuel (LED), without further process [rutemtioo-;- whish -weuhl 

tend te ~a reglli&te€1 speeifiootion ef bBG]. 

ill [(91] Furthet' process·· To perform any alteration to 

diesel [aetivity ea metef :y&fl.H*e] fuel, including distillation, treating 

with hydrogen, blending, or addition of an [~] additive, for the 

purpose of producing a diesel fuel in [lmngiag the m.&te!' ¥eh-iele fool 

iflte] compliance with the requirements of Subchapter H, Division 2 

of this chapter prior to the diesel fuel being introduced into commerce 

as LED. 

ill [fl{l1] Gasoline--Any fuel that is commonly or com· 

mercially known, sold, or represented as gasoline, in accordance with 

the active version of American Society for Testing and Materials 

(ASlM) 04814 [~48-14·99-] (Standard Specification for Automotive 

Spark-Ignition Engine Fuel)[, dated -1-999]. 

_Q_Q} [€l-11] Import·-The process by which gasoline or 

diesel [me-w whiele] fuel is transported into the State of Texas by 

any means or method whatsoever, including transp01t via pipeline, 

railway, truck, motor vehicle, barge, boat, or railway tank car. 

Ql)_ [~] Import facility--The stationary gasoline or 

diesel [m&teP ~] fuel transfer point wherein the importer takes 

delivery of imported gasoline or diesel [metof vehk;leJ fuel and from 

which imported gasoline or diesel [fOOte!' ~] fuel is transferred 

into the cargo tank truck, pipeline, or other delivery vessel from which 

the fuel will be delivered to a bulk plant, bulk purchaser/consumer, or 

retail fuel dispensing facility. 

@ [tl-3:t] Importer--Any person, except a person acting 

as a common carrier, who imports gasoline or diesel [metm• :yeflicle] 

fuel. 

@ [f!41) Low emission diesel fuel (LED)--Any diesel 

fuel that conforms to the requirements specified in §§114.312, 114.313, 

or 114.318 of this title (relating to Low Emission Diesel Standardsi 

Designated Alternative Limits; or Alternative Emission Reduction 

Plan, respectively).[+] 

£tA-1 said-; intended faf wiD, et' made avilllable fet' sale 

that may ultimately be tJSed t& flewel' a dieool fueled eem-pressiea-ig· 

nitien engi-fle i:n tfle ~$tOO ia fl--l-4.S-l-9 e-fthis OOe (rel-atffi-g to 

:A4TeeteEI Goonties aH4 ~mpliilaee :911-tesM 

@j that the 13ffidueeF lata~ eJ.' «Jasel:ltl-bly shtndcl 

knew, fll:!I.Y ultimately lle tiSOO to pe-we~ a dW:iel- fueled eempre-ssiea-igtlitian engine in eeumies listed ifl tl--J4*1-9 of tlri.:s title;- tlfltij 

f(G-) eomplies witH tlte ~specified in §H4-J-!2 

afthis tide Et'elati-ng te !-6w Emissiea Piesel StancltlfdsH 

(!1)_ [8--$--)] Moto1· vehicle-Any self-propelled device pow· 

ered by a gasoline fueled spark-ignition i11ternal combustion engine or a 

diesel fueled compression-ignition internal combllstion engine in or by 

which a person or property is or may be transp(l!ted, and is l'equil'ed to 

be registered under Texas Transportation Code [E-'FfGt], §502.002, exPROPOSED RULES March 23, 2012 37 TexReg 2015 
eluding vehicles registered undeJ' Texas Tnmsportation Code, §502.006 

[l+G,- ~06(0}], 

~· .MG!ef ~fuel--Any gaseline 61' diesel f~el uaed 

m pewe1 gaoo!-ine fueled sp!ll'k-ignitien 61' diesel fueled oompressienignitien engine&} 

@ [EJ-+1] Non-road equipment--Any device powct-ed by 

a gasoline fueled spark-ignition internal combustion engine or a diesel 

fueled compression-ignition internal combustion engine that is not required to be registered under Texas Transportation Code, §502.002. 

@ [fM11 Produce--Perform the process to convert liquid compounds [that ftl'e net mete!' veh:iel.e fuel] into gasoline or diesel 

[metal' vehiele] fuel or to further pt·occss diesel fuel to create a final 

blend of LED[, except where a per-sen supplies metal' vehlele ·fuel to a 

tlfOOueel who agroos in Wl'itiRg to f.at'thtW proeess the mete1 ~ Rwl 

at the preduotien faei:lliy and to be treated as ft produGel' af the f!\OtOI' 

¥ehlel& fuel, enly the tinal predueet• shall .be ~ fer- tl.U pufj!eses 

Wldet• Sub~ H efthis ~to t'le the produGel' afthe metal' -vehiG!e fuel}. 

{!11 [fl91] Producer--Any person who owns, leases, operates, controls, or supervises a production facility that [tl.OO/er] produces 

gasoline or diesel [mete!' whiele] fuel. 

(18) [(-aGj] Production facility-A!Il' [A] facility where 

gasoline or diesel [ffi whleh m<:>tet' vehiele] fuel is produced or that 

manufactures liquid fuels by distilling petroleum. 

(!2l [t2~1-)] Retail fuel· dispensing outlet·· Any establishment where [at whlffi] gasoline and/or diesel fuel is sold or offered for 

sale for use in motor vehicles and/or non-road equipment, and the fuel 

is directly dispensed into the fuel tanks of the motor vehicles and/or 

non-road equipment using the fuel. 

. ruD_ [~] Supply--To pl'ovide or transfer gasoline or 

diesel fuel to a physically separate facility, vehicle, or transpol'tation 

system. 

This agency hereby certlfles that the proposal has been reviewed 

by legal counsel and found to be within the agency's legal author~ 

ity to adopt 

Filed with the Office of the Secretary of State on March 9, 2012. 

TRD-201201326 

Robert Martinez 

Director, Environmental Law Division 

Texas Commission on Environmental Quality 

Earliest possible date of adoption: April 22, 2012 

For further Information, please call: (512) 239-0779 

+ + + 

SUBCHAPTER H. LOW EMISSION FUELS 

DIVISION 2. LOW EMISSION DIESEL 

30 TAC §§114.312 - 114.319 

Statutory Authority 

The amendments and new section are proposed under Texas 

Water Code (1WC), §5.1 03, concerning Rules, and TWC, 

§5.105, concerning General Policy, which authorlza the commission to adopt rules necessary to carry out its powers and 

duties under the TWC. The amendments and new section are 

also proposed under Texas Health and Safety Code (THSC), 

§382.002, concerning Policy and Purpose, which establishes 

the commission's purpose to safeguard the state's air resources, 

37 TexR.eg 2016 March 23, 2012 Texas Register 

consistent with the protection of public health, general welfare, 

and physical property; THSC, §382.011, concerning General 

Powers and Duties, which authorizes the commission to control 

the quality of the state's air; THSC, §382.012, concerning State 

Air Control Plan, ·which authorizes the commission. to prepare 

and develop a general, comprehensive plan for the control 

of the state's air; THSC, §382.017, concerning Rules, which 

authorizes the commission to adopt rules consistent with the 

policy and purposes of the Texas Clean Air Act; and THSC, 

§382.202, concerning Vehicle Emissions Inspection and Maintenance Program, which authorizes the commission to establish 

vehicle fuel content standards after January 1, .2004, as long 

as distribution of low emission diesel (LED) as described in the 

state implementation plan is not required prior to February 1, 

2005, and authorizes the commission to consider alternative 

emission reduction plans to comply with LED requirements. 

The amendments .and new section implement THSC, 

§§382.002, 382.011, 382.D1~, 382.017, and 382.202. 

§114.31 2. Low Emission Diesel Standal'ds. 

(~) No person shall sell, offer for sale, supply, or offer fot• supply; dispe118e, tl'ansfer, allow the transfer, place, store, or hold any diesel 

fuel in any stationary tank, reservoit; or other container in the counti.es 

listod in §114.319 of this title (relating to Affected Cow1tles and Compliance Dates)[;] that may ultimately be used to power a diesel fueled 

compressjon-ignition internal combustion engine in the affected coun· 

ties[;] that docs not meet [eithtw] the low emission diesel fuel (LED) 

standards specified in paragraphs (1) and (2) of this subsection. [af 

flUbsootioos 00 ana (e-) of this swtioo; eF the telfltirements of subsootffin t!) ef thls seetian:] 

ill [(bj] The maximtJm at·omatic hydrocarbon content of 

LED is 10% by vohune per gallon,Ji 61' the lJID has been reyefled 1n 

ae.eardanee with aU of tl~e requiremsats e.f fl-14.-3-l.~ ef tttis title ~­

tag. te 9esignated Alttlffiati-1e himits1; where+] 

fB1 the aramatie hydraearbon eontent dees net eJWeed the 

desigaated alternative limit E9Ab-)1 and} 

W1 the 9Ab ~ -W% by V&lwne;:theeJOOe68 ~e 

hyereeafben GeRtoot is fully &ffset in~ with~ afthis 

ti&.} 

ill [(G-)] The minimum cetane number fot' LED is 48. 

@ [(€!-)] Subsection (a) of this section does not apply to a sale, 

offer for sale, or supply of diesel ftJel to a producet· where the producer 

further processes the diesel fuel at the producer's production facility 

prior to any subsequent sale, offer for sale, or supply of the final blend 

of LED [diesel fuel]. 

.(22 [(ej) Diesel fuel that has been produced to comply with 

all specifications for a Certified Diesel Fuel Formulation as approved 

by au executive order by the California Air Resources Board [oa er 

befere .JmRiafy +8; ~] for compliance with California diesel fuel 

regulations that were in effect as of August 4, 2005, [Getehef -1, .J.~] 

except for those appreved for small refinery compliance, or diesel fuel 

that has been produced to meet all specifications for diesel fuel under 

regulations adopted by the California Air Resources Board[;~ fer 

these awwved fer small refit.let:y eemplianee,] that were in effect as of 

August 4, 2005, except for those approved for small refinery compliance, [Jaooat!y +S; ~] may be used to satisfy the requirements of 

subsection (a) of this section. 

@ [001 Alternative diesel fuel formulations that have been 

approved by [thai the produooJ! has demanstt·ateEI te the satis.faetioo af.l 

the executive director~[; tlwoogh emissieas and perfarmll!lee testiBg 

metheds] prescribed in §114.315(c) [ami tdj] of this title (relating to 
Approved Test Methods)[, as aehieviRg e&mJlft!'ftllkl et' better redue· 

~ns 1n emifl&if>fllj &f tl*ie~ ef nttl'a~a aad paffiwl&t~ mattef] may 

be used to satisfY the requirements of subsection (a) [subseeti&tl!l ~ 

mid (ej] of this section. [Ffli' alternati'<'e diesel fuel fermulatlens thllt i.-llOOl'pE»'at~ ft~ systems, the estimated emisskt:as mmefi.t-s &ftfie altel'oot-ive die;;el fuel fer-m·utatktn f:l'lllY be Eletefffiffied &y OO!l'ij)afing the 

emi-ssiens and perfermanee OOal'a&tefisties mthe alterrlttti¥e diesel fuel 

with the addttive system vei'SUS the emissiens and perfot·menee ehafae· 

teristies ef a Eltesel fu\H withe'llt the addi#ve eystem, as Elete.l'flli.ned by 

the test-ing metheds l'!l'ell&fi.bed 1n fU-4-*~~) and (dj &f tlti6 t#le.] 

§114.313. Designated Alternative Limits. 

(a} Diesel fuel that has been produced to meet all of the desig· 

nated alternative limits specified in subsection (b) of this section may be 

used to satisfy the low emission diesel fuel (LED) requirements speci· 

fied In §114.312(a) of this title (relating to Low Emission Diesel Standards). 

(b) The designated alternative limits per gallon ofLED are set 

forth it1 paragraphs (1) • (6) of this subsection: 

(1) An aromatic hydrocarbon content of no greater than 

21.0% by weight; 

(2) A polycyclic aromatic hydrocarbon content of no 

greater than 3 .5% by weight; 

(3) An American Petroleum Institute gravity index of no 

less than 36.9; 

(4) A cetane number of no less than 53; 

(5) A nitrogen content of no greater than 500 parts per mil· 

lion by weight (ppmw); and 

(6) A sulfur content of no greater than 15 ppmw. 

(c) Compliance with the designnted alternative limits specified 

in subsection (b) ofthis section must be determined by the test methods 

specified in §ll4.315(a) of this title (relating to Approved Test Meth· 

ads). 

( 

§ 114.314. Registration of Diesel Producers and Importers. 

(a) Each producer and importer that sells, offers for sale, sup· 

plies, offers to supply, dispenses, transfers, allows the transfer, places, 

stores, or holds any diesel fuel in any stationary tank, reservoir, or other 

container in the affected counties listed in §114.319 of this title (relat· 

ing to Affected Counties and Compliance Dates) that may ultimately 

be used to power a diesel fueled compression-ignition internal combustiotl engine in the affected counties listed in § 114.319 of this title shall 

register with the executive director by no later than 45 days after the 

first date the diesel fuel from it~ production facility or import facility is 

made available for use in the affected counties listed in § 114.319 of this 

title. [said, e!Tored fer- sale;~&!' &ffered ffil' supJ*y- die5el fuel 

trem its predu~ fe.effity et' impert fooi1ity that may have beeB: used 

in OOllflti.es listed m f-l!4Jl-9 efthis title (relatiftg w -Af.footeEl Goont4es 

Wld Ge~lianee I)ates} on et• bef~re ~ +; 100.5;-shall register w-ith 

the exeeuti¥e di.rootor· by M-ay+;~] 

W"J Baeh predueer et' imperter that dkl11et begin to sell, affer. 

fef sale, supply, er effuf te ~ d1esel fuel frem its pre®etien fa.. 

OOky et' lmjJOO faeility tll.at may ultimately· he used ffi ooutttie.s l-isted 

in fl-1~-1-9 efthia title until aftel! April+; 200S, shall register- with the 

executive Elireei.& at least W day& pr-ier- to the fir-st date the diesel fuel 

is w he made l!Vfli.lable -fer- uS& in the l-isted effi\l'lties.1 

lli} [B>f] Registration must be submitted on tbrms prescribed 

by the executive director and must include, at a minimum, the in for· 

mation specified in paragraphs (11· (5) of this subsection: 

(I) the legal business name of the producer or importer, 

mailing address, agency assigned customer reference number, and con· 

tact information for the producer or importer, or their authorized rep· 

resentative; [a signed statement i.adieatiag whether- the p~ et' J.m. 

pefter- dees or- dees !lOt 1ntend te pr-eduee eE itllperi le-w emissieR diesel 

fef \150 ffi the eeunties listee i-n §-H-4.3-1-9 ef this title en &!' 11-fref Gvt&be1 

+;~) 

(2) a statement of the estimated total number of barrels of 

row emission diesel fuel that the producer or importer is planning to 

produce or import in the 12 months following the date of registration 

that the producer or importer intends to sell, offer fbr sale, supply, or 

offer to supply from its production facility or import facility [tet-!11 nttm· 

bel' &f~ &f diesel .fee! f!I'etlueecl ar- i:m:pefled in the -ll mooths j)fief 

ta the date efregistr-atioo that the fJffldHeer eE impeftef seld, &ft'ered fef 

S≤ ~ eE eft'ered w oowly trem its pretluet4en faeUif)' eJ im· 

J*lrt.f-aeHitythatwesffitellded) for use in the counties listed in §114.319 

of this title; 

(3) the physical address, agency assigned regulated entity 

reference number, and contact information for each production facility 

or import facility that is used to produce or import diesel fuel that may 

be sold, offered for sale, supplied, or offered for S1.1pply [if ilfill'8pPiat&; 

a st-atement m the estim-ated tetalllUlllber m bmels ef le-w emissien 

diesel that th11 j*'edt~OOI' er- imper-teF is j')l-aooiflg te ~ m impflft ffi 

the H ffiOflths fellewing the oompliaMC date !isted m §-~l-9(ejfl1 

&f this title -that the produeer er ·ilnpel'tel ffi•ends to 1lei:l; &tfef ffil' wle; 

Wpp}y; 0i' effeF to SUJ'lflly fr-em its )3Feduetien.faeilliy ei' lmflei'l faetl:iiy) 

for use in the affected counties listed in §114.319 of this title; 

{(4) if apprapriate, -a statement afthe estimated tetal ffilftl· 

~er- &f.OO!'I'els ef diesel fuel that the p!edueer ar impOI'ter -is p1mmffig te 

preEiuee 

~ 

91' -itnpal't tinder an alteraati'le emissi:en reduetien plan 1:mcle¥ 

eftltitl*le~w AJteraative Emissioo Reduetien P.~ 

m the H lll&llth.s fellewing the oomplfa.nee date listed i-11 § ll 4 .319(G)flj 

&f ihls title that the predueef 0i' ~-intends {e eel~ effer- fer -sale; 

~ m effer- te 5llpply ft•em 1t-s p1'0de00:ell .faeHlty et' impel't .faeHlty 

fat• use -ill. the 001;Illties -listed m ~ &f .fui.s titw,1 

ill [(-§1] any other information determined by the exec· 

utive director to be necessary to identify the persons responsible for 

[detel'lll:ine] the adequacy of diesel Sl.lpply in the affected counties; and 

ill [(-6-)] a signed statement of consent by the registrant 

that the executive director is permitted to collect samples and access 

documentation and records at any production facility or import facility 

used to pmduce or impo11 diesel fuel that may ultimately be used to 

power a diesel fueled compression-ignition internal combustion engine 

in the counties listed in § 114.319 of this title. 

.W [(EI1] The executive director shall maintain a listing of all 

registered producers and in1porters. 

§ 114.315. Approved Test Methods. 

(a) Compliance with the diesel fuel content requirements of 

this division m\tst be determined by applying the approprinte test mcth· 

ads and procedures specified in the active version of American Society 

for Testing and Matel'ials (AS1M) D975 (Standard Specification for 

Diesel Fuel Oils), or by applying the [the ·f&llewing] supplementary 

test methods and procedures specified in paragraphs (1) • ill of this 

subsection, as appropriate. 

(I) The aromatic hydrocarbon content may be determined 

by ti1e active vcrsioo of ASTM Test Method D5186 (Standard Test 

Method for Determinatiotl of Aromatic Content and Polynuclear Aro· 

matic Content ofDiesel Fuels and Aviation Turbine Fuels by Supercrit· 

leal Fluid Chromatography). The following correlation equation must 

be used to convert the supercritical fluid chromatography (SFC) results 

PROPOSED RULES March 23, 2012 37 TexReg 2017 
in mass percent to volume percent: aromatic hydrocarbons expressed 

in percent by volum.e = 0.916 x (aromatic hydrocarbons expressed in 

percent by weight)+ 1.33. 

(2) The polycyclic aromatic hydrocarbon (also referred to 

as polynuclear aromatic hydrocarbons or PAH) content may be determined by the active version of ASTM Test Method D5186 (Standard 

Test Method for Determination of Aromatic Content and Polynuclear 

Aromatic Content of Diesel Fuels and Aviation Turbine Fuels by Supercritical Fluid Chromatography). TI1e correlation equation specified 

in paragraph (1) of this subsection must be used to convett the SFC 

results in mass percent to volume perce~t. 

(3) The nitrogen content may be determilted by the active 

version of ASTM Test Method D4629 (Standard Test Method for Trace 

Nitrogen in Liquid Petroleum Hydrocarbons by Syringe/Inlet Oxidative Combustion and Chemiluminescence Detection). 

(4) The Amel'lcan Petroleum Institute (API) gravity index 

may be determined by the active version of ASTM Test Method D287 

(Standard Test Method for API Gravity of Crude Petroleum and Petroleum Products (Hydrometer Method)). 

((~ The viseooi-ty may be determiaed by the aetive ~ 

af ASN~ Methed D4# (Standat·d :restMethoo ful' ~ic:Viseooi-ty ofTronSfJareflt and Qpaque ·~(the Gahmlatien af];)ynami.e 

¥ifreesity1H 

f«jj The l'lasflpo int may he detet'tnined by the aetiw .yersien af A8'J'M :rest M&thad D9J- (Staadar<l :rest Methads IDI' FlashPeiat hy Pesky Martens Glesed Gt.~p :resterj.J 

ill [tf)] The distillation tempet·atures may be detemtined 

by the active versio11 of ASTM Test Method 086 (Standard Test 

Method for Distillation of Petroleum Products at Atmospheric Pressure), · 

(b) Modifications to the testing methods and procedures in this 

section may be approved by the executive director after consultation 

with and agreement by the United States. Environmental Protection 

Agency (EPA). 

·(c) The executive director, upon application, may approve alternative diesel fuel formulations as prescribed undet' § 114.312@. [ffj] 

of this title (relating to Low Emission Diesel Standards) that may be 

used to satisfy the low emission diesel fuel (LED) requirements specifred in §114.312(a) of this title if the applicant has demonstrated to 

the satisfaction of the executive directot· and the EPA in accordance 

with the procedures specified in paragraph (1) of this subsection that 

the alternative diesel fuel formulation will achieve equivalent or better 

reductions in emissions of nitrogen oxides (NOJ [in ~ee with 

the &Hawing preeeE!ures]. 

(1) The applicant shall submit documentation demonstmt· 

ing that the applicable fuel properties of the altemative diesel fuel formulation demonstrate at least a 5.5% reduction in NO, emissions from 

on-road diesel fuel for the year 2007, and at least a 6.2% reduction 

in NO, emissions from non-road diesel ft>el, using the Unified Model 

as described in the EPA staff discussion document, Slrategles and Issues in Correlating Diesel Fuel Properties with Emissions, Publication 

Numbet· EPA420-P-01-001, published July 2001. 

(2) For alternative diesel fuel formulations that achieve 

emission reductions as demonstrated in accordance with the criteria 

specified in paragraph (1) of this subsection, the applicant shall 

provide documentation to the executive director upon application that 

includes the cetane number, aromatic hydrocarbon content, specific 

gravity, and the temperature corresponding to the 50% point on 

the distillation curve in degrees Fahrenheit (TSO) of the alternative 

37 TexReg 2018 March 23, 2012 Texas Register 

diesel fuel formulation for which the applicant is requesting approval 

as dete1·m!tted In accordance with the test methods and procedures 

specified in subsection (a) of this section. 

(3) If the alternative diesel fuel formulation has been 

demonstrated to the satisfaction of the executive director and the EPA 

to achieve- comparable or better reductions itt emissions of NO,. in 

accordance with paragraph (1) of this. subsection, then the executive 

director may issuo a notice ot' approval indicating that the alternative 

diesel fuel formulation may be used to satisfY the LED requirements 

of §114.312(a) of this title. 

(A) The approval notification must identify the specifications ofthc alternative diesel fuel formulation as appi'Oved under this 

subsection by listing the cetanc number, aromatic hydrocarbon contcnj. 

specific gravity, and the temperature corresponding to the SO% point 

on the distillation curve in degrees Fahrenheit (TSO) of the alternative 

diesel fuel formulation as documented in paragraph (2) of this subsection. 

(B) The approval notification must assign attldentification number to the specific approved alternative diesel fuel formulation. 

{~ :rhe awJ-iwa.t shall initially subtntt a prepesoo test protocol te the eMeeutive d!relltof ful' appra'lal, thai tnl:lst inehu.lei-} 

I(A-) the i.dtmtity af the entity that will oondue! the test~~ 

deseribed in pat'ftgriiph (4j afthls subseetie.a;] 

E(Bt a testing pla.a with test ~res that tlfe ootlt!istem with the requirements ef parogi'Elphs (~)and (4j eft!HB ~!¥,-} 

.~ .fuel analysis test data shewifl:g that the Gaadffiate 

.fuel meets the speeifieatioru; .fot the appropr-iate ~ Me. W 8-1-S 

e!' Grode Me. 2.-D st-5 diesel fuel as ~ tn the aeti¥e -vet'sien ef 

A.S:f..M ~ ~.fot ktbt~eity; endid~the ehafaeter.istios af 

the ~e .fuel iileatlHOO in paragraph (21 efthlssubseetian;] 

{(DJ .fuel analysis test data shewing that the fuel to be 

uwd as the re-ferenoo fuel~ the clutraeter-il>ties ideflt;ified in parogt'aflh tJj af this lffi\)seGMont.J 

{fE) a eetailed deseft!*ieti af the ~ quality asml1'll!We end~ eeH:trel preoodures that will be implententw hy the 

eflt:ity ideRtl-:fied in subparagraph W afth·is parog1'aflh to eRllW'e the '1'11-

:lkHty- afthe te.sting being performed; and} 

{tFj ~en af an;y Ollilief ideBtffieatiea.aftd elf&l~· 

sien ~e thftt wtl! he l;ISed, and a demonstratiaa tliat any sueh 

preGe!iwe meets genemlly OOGeJolted statistieal prineiples.] 

~ :f..lie applieaffi shall~ the eandiaate fuel to ~e uwd 

in the oomparotive testing in aeeei'Eltmee with paragraph t4) af this &~±9-

seetien.3 

£fAj +he ~ oo.atent, tetal arematie hydroeal'ben 

eentent, p&lyc-ye-lie me~ hyEireearben, ftitregea oent&ll.t, ~ 

nl:lffibel'; API gravity indelt; ¥i5ee&ity at 44 degrees.~ flftsh tJehtt; 

and distillat:iaa ~ degrees Fahrenheitj ef the eandidate fuel !miSt be 

determiHed as the twel'flge f}f·tiuoee tests~ -in aeeer4mee ·with 

the t•efet·eneed test method speeffied in &ubseetien (a) e-f tl.tis ~lo:] 

ftB1 ~ ~er-native ~fuel formulatians that title an 

aElElitive in the candidate fuel te aelWve fedl:teHell$; the~ shall 

~to the ~t.fve ~upoo~ the ·identity,~­

$-1 ~es#i0B; end GOBGeBtratia.a ef eaeft ad4itive ·used ffi the .farmu. 

.tatia.B end the test meth.ed by whiOO. the pt'eBetlee il!ld eeneootratlen af 

the aElElitive mf'l;)' be detem1iaed.] 

{(G) :J:he applioont may alsa speei4iy «flY other parameters ful' the ooaaidate fuel, itleng with the test method ful' determifling 
the par-ametMs; +he llflPlioont shall previde the ehem-ietl-1 eelil:pe&itiea 

ef eaeh additwe ffi tile eaadidate fuel; eJEeept whtll'l the el'lemieal oompesit4ea af an addtti-ve :is net knewB ta eitheF tile applioont e!' ta the 

ITJ.ftiUt-faoturet: ef the llilditi¥e tif etherJ, the applieant may Jli'(Wide a full 

El:isele<r-e ef the ehemiool fll'Gee&S af maaufaetll!'e af the ad4i#ve ffi 

lieti ef its ehemkffil eeftlJle&:itieft.:J 

f~ Th.e ·~fuel used tft the eel:~ testing eeseflbed i:n ~ (4j af thla aubseetioo must be predtieeEI ifem 

stmighH!m diooel ·fuel ey a hy6redeftl'6ma!'izfttiea f!l'6eel!S aftd must 

ha-ve the fullewing ehar-aettll'·isties El~e6 tfl aeooreaaoo wi-141 tile 

l'e-fefefleed t~ m~ed speOOieEI ffi 5llbseet4aa. (-a) af this ~ 

{~} S1:llfur. eeateffi • H jlaftS peF tnUl:ien m~ 

«B7 tetal aromati:e hytlro(l!ll'bea eentent - -1-Q.% tl'la*i· 

fiiUA~ -Yaffime j)eFeetltj-) 

fEG-) fl~ &re~Mtie hyclreearllea 0011teat - -h4%; 

mftldmum weight peFeent;} 

tnUtflt} 

and} 

@-) B.itrogen eeateffi - ten j')flftS j'l~W m-iJ1-ien, ffill*i· 

ft.IB eetane llUflibep - 48; m-inim1:1mt} 

fEB API gra-vity tneeJE - ~ te ~ tl~ 

~ ¥io'!eesity at 4(} degrees Gelsius - ~ te +.I- eentio'!· 

f(-B tl:istill&tierej 

ffi) -init:ial b&i-Hng p-effit- ~0 te ~G degr-eet~ Fahren-

{fff) .J4.% peffit • 400 ta 490 degrees Fah-l'eflhe-itjj 

{-(iii) W% peifl.t - 4'tG ta %0 degrees Fahrenheit;} 

f(-W) !}(}% p&iffi - m ta 6M degrees Fahr~nheitt 

EM ern! peffit • ~ te 660 degrees Fi!hr~nheit} 

£(4--) E-X'ha-ust em-issi:all tests Uo'!iBg the eaB.EI-i.dttte ft~el and the 

t•ef~reaw fuel o'!fleeitied in -par-avaf!h ~ efthls subseetlen l!ll!Stbe oon.· 

dooted in aooerdanee -wtth the federal test preeedures M speeUl.ea in 

4Q ~ ili Fedeml R:egulatiens P&J"t 36 fGootrel ef Emissi&rto'! from 

New aad la-Yse Highway .Vehieles and Engin~ ~ N $mffisi:ea Regulat-Ions .fur New Otte Cyele and mesel Heavy-!)my Bagines 

- Gaseoos aa6 -Pai4ieulate -l*haust -Test -PreeeEiuresj, as -amencleEh-] 

{(A-) :fhe tests ffllfflt be pe!'fuflned using a -)';)etroit Diesel 

Gtlrperati-ea Series-6() engine & an ~ speeifie6 ey the applioont 

and appreved by ~he ~eeutive dit-eete¥ te be e{jOOI:ly representatwe e.f 

the pe&t-1-990 meElel yellf fieavy tbzy diesel eagifle fleet. -the test engioo illllSt have a·m-ininHIHI ef ill hoofs ef llStl and ~hie it &table operlltioo befere begitmtng -the testing~ -in thls pllfllgffl;ph IIIia must 

net el'eeea-1--W% efits applieaele ex:haust em:issiefl staadards when m· ffig the referetwe ·fuel speeffied -in paragraph t31 efthis ·&ubseutien.j 

{fB1 -tile ~ testing tll:tt~ be eendueted -by a 

tflffil party -that -is mutually agreed Uf)ea by tile eJEee-u-tive tiireetm ·and 

the appli~t. ~e awlieaat -shallee -l'e!lp&BSible ~ al-1 005ts e-f 4\e 

eemJlarlltl'te -te111:mg.] 

·((G-) -the applretmt OOa!l eBSUre t-hat ene f)-[ the test J~e· 

queaoos -in ~e fi-1 or {-iJ) ef-th-is subparagraph is used te eenduet ~he 

ex;haust emissions -tests,-] 

f(i) 1-f betll %l.d -sttwt -and fl&t st!lfl el!haust em-i-ss:ien 

tests are eondueted, a minimum t~f &te ~ emissiet1 -tests, eaeh 

test ~isth1g .ef -at 4\l!ISt ooe ool4 st!lfl and twa hot -st-art eyeles; mast 

-be per-for-med en theeagi-newith. eooh f1:1e~ t1singeifuer &fthe fullewing 

-sequenees; -where .!!.R'J is a test oo the refereuee .fu&l ood .!!G!! -it~ a -test ea 

-the eandidate fuel.; RG RG R:G(-and ~-in the same e!'del'j mRG 

-GR RG GR RG~ ooatitmffigm the -same <tJ>deJ•)o -the engiae mappffig 

~reeedures and -a eenditiening trflllS-ient ~ fflllSt be ooAduetetl -with 

-the rererenee fl:Jel befere ~eh oold start JII'Oeedur-e tilling ·the ·referenee 

fuel. the refereaee eyele t!Secl fer the~ fllelllll!St be the 5flftle 

eyele M that -used .fur the fuel preeeEiil!g :fu) 

f(ii) l.f eruy ~:Jet 5taFt ~ emissloo tests are e&fi• 

dueted; ene af the fellewing test 5equeaees mtlSt be \!sed tmeugheut 

the testing; -where !!R:ll is a test oa the refere:aee fuel and .!!G! is -a test en 

the eandidate fuel; ~eh t$t eeas-isting ili at ~st three het st!lfl eyeles!:) 

fflt Alternative -li RG GRRG GR-. (-eerttimting -in 

the Sllffie &!'del' -fe1 a gt¥tlll ooJend.ar ~ a n~inim-~1m af ~ i:adi-viclool 

hat start~ must be OOJ.'Etpletecl-with eaeh flleW 

f(il) Altemaaw ~ R:R GG R:R GG (eentinuing 

in -the wrne ewe!' fef a gi¥en ~~a minimum ef~ -ifldi'fidool 

het 5taFt ~ tnllSt be oomplete6 -with ~eh fuelf,] 

{flll} AJtemative ~ RRR GGG RRR ~ {-ee-n· 

tinuing in the same eJder fer a gi¥en ealendar ~ a minimum ef U 

ffidi¥idual hat start~ 1tlllSt be eemJlleted with eaeh fuel-); efj 

ffl¥} Altefltative 4t. AA GGG RR fa mini:mttm ef 

s* hat start eyeies mUst be pe!'f-ertned en the referenee fuel f&lfflwed 

with a ~g pel'ied wt to ~ n hOOfS ef engine epet'lffien 

en the ea£ldidate fu~ before the rust iftdWitlwl bet sttlft et'llissien -test 

ea the eand-idate .:fi~:~el ill flerf~ the eenditlening eyele must repre· 

sent net'fl"lal engine eperatien; a mffii±wm ef nine hat slaPt ~ 1tlllSt 

oo peFfetmed &n the ea£lditiate fuel afuw the eenditiening pefi:e~ enlythe emis&'ieas from the tests en the refereftee .fuel eenduetecl befer-e the 

eandidate fuel test-s must be used in tile ealeulatiens eendueted ffi oo· 

oorcdanee with paragraph fA ef thl11 llubseetieu)aminimum ef s-H. hot 

start &yeles must oo p$rf-ermed en the re&reaee fuel ~the eandidate 

fuel tests te Elet~ any etlffY-O'Iei' efi"eet fuat may aeGuf .frem the 

use eftlle eanEiidate .fueiH 

{(Hi) Far altematives ,1, ~and -3,- an eEjtlill fl\lffibep 

ef te&s l!lllSt be eandueted 'USing the r-eferenee .fu&l and the eandidate 

fuel en iley g-i¥eB. oolendaP day, A-t -the begifm ing ef eaeh ea!entltlf dey, 

fue SeiJ:tienee ef testing must begiH with the f1;1el that was tested at the 

end ef fue ~ 4ay;) 

f(iv) Fe!' all altematives, the engffia mapping pr<>ee· 

tiures and a otmdit-iellffig tmnsieflt eyele l!lllSt he oonduoted aJte1 ever-y 

.fuel ehange andler- at the beginn.ing ef eaeh day. +he fefefenee eye!e 

generated .frem the refe!'ellve f1:1el ·for the tl-l'st test must be -used fer all 

Bubseqoont -tests.:} 

EM Eaefl paired e!' -triplieate sePies e-f indiv-idual 

tests must be aver-aged ta ebta-in a single ¥!llue that wetikl be used ill: 

-the ealeulatiefls \lelidueted ·in aeem'tlaflve with paragraph fA ef th-Is 

aubseetiea-] 

-ft9j +he ~rt shaH sub1'llit a test JJehedHie te the WE· 

eeutive d1rootef at least ooe week pri:e!' ta oemmeneemeflt-ef the tests' 

the test sehed~1le must -iEieati.fy the 4ays tha! the testa-wi-l-l be eanduGted; 

and mu-st previde fer eefldueting ~he test oonsee-u!Wel-y witheut m· 

stantiul intet'ru13ti:eas ethel' than these resuHing .fretn the nomtlli hOOfS 

ef epet'atien,g ut {he test f-aeility. The eJEeeUtive diFeeter Ol his designee 

shall be permitted t-a absel've any testfu the i*1f1Y eendueting the test· 

ing shall maintain a test lag thai -identifies al-l tests eandueted, all efl· 

gffie mapping praeeaures; al-l physiool med#ieatieliS to .of o(:let•atianal 

PROPOSED RULES March 23, 2012 37 TexReg 2019 
tests eftlw Gngine, all re-ealibt•ations Oi' othet' ehanges to th;; tsst io£tFu· 

ments, aad all inter-ruptions between tests arul the l'e\\600 fu!' e:aeli sooh 

·intem1ptien.- AU tests eene;luat\!tl •n aooePdanoo with the ~ sahedule, 

etflef than any tests rejeete4 in aee01•danee with illl eat-lie!' ldeatifieatian 

and e:X:elusion preoomw ~ ffi the~ test protoool; must 

be ~ ffi the eemj'lal'ison ef emissions in aacorcdanoo with fllli'a· 

gt'ap-h €S~ ef this su!J.seetion.} 

ftE1 In eaeh test ef a fuel, eJth&nst emissions ef exidea 

ef nitrogen (Nt:lx); total hyaraGJll'bons ~nan methane~­

bans~ and partieulate matief (PM1 must be measm•oo,.] 

[{l'j !fche ll*haust emissions testf! desGfibed in this pamgr-aph must nat be eendRGted until the test~ as deseribed in para• 

· gfflj3h EB ef ~'his fftlbsoot:ien is approved by the eKeeutWe ~ 

f(Gf llflen sempletion of the tests ~ed in this 

JWagl'aJllr, the appl:i(.l!lll:t may submit fl.\1 appliea:tien fur. ee(tifieatian 

test 

t~ the 

pr~toool, 

emJe1!ti·1e 

all efthe 

direeter. 

fuel 

+he 

analysis 

appl:ieatien 

and emissions 

must inelude 

test data, 

th.e 

a 

~ 

oopy of 

the oomplete test leg prepared in ileoordanee with subparagraph (I)1 

of this pal'agl'aph, a demenstl'atien that the earulidate fuel meets t11e 

r~emeflts ful' Gertifieatioa speeified in this subseetmn, arui ethel' 

iaferma!ioo as the e:X:eoutive di!eete!l ~ reasonably require. ·l:lflen 

l'Wi&W ef the eel'tiB.eatiea applieaiien;- the eX:eettt-iv~> d-it'l!GteF shall 

grant or- Eleny the: ap!»ieath·>ll• Any. d~ must be aesompa.nied by a 

wffitefl statement of the reasons fe!' deniabl 

~ :fhe aver-age emil!Si~ EIW'ing testing with the &&1\EI-idate fmH lmlf!t be. aempal'ed to the avel'age emissions d\lfiog testing 

with the r-eftll'tmee fu~ speeified in pa!'agl'aph ~ ef this subsestian; 

applying e11e-sided ~ t statistiw as set rorth: in Snedeoorc Ill*! 

~ StollstieaJ Methods ~ ~ ~ 9-1, lewa .state, l:Inj-

¥ei'S}ty l4'e55; Wl«h +he exeeutlye di!e:etef may tllsue a ool't!B.eatlen m 

aeeardanee with this ptll'agraph 9nly if the executive dirootel' ~all 

ef the fullewing determinations:] 

IW the avewge inah.:iaua-l emisl!iens efN9; aad PM, 

respeetivel1; 1llOOfdsd !luring testing with the eandiilate fuel are oomparahle erbette!' thaa tlleaverageind!vidual emissions ef~ and PM; 

rasp~ feeerdeEl dur-ing· testing with tl)oe referenee fueJtl 

WB 115e ef any additive ide1<tmed ffi aeeordanee with 

f3!1t'llgt'!lph (~(Bj efthis Sllbseetien in diesel: flowered engines wi.U not 

inerease e:missioru; ef ne*io11s or- lolHo substanees that wootd net be 

emitted by saeh engines eperatiog with6Ut tlte additive;] 

· «Gt in el'tie!' fer- the determinatiens in s11eparagraph W 

ef this pru·ag.rapn to be made; fOi' ooeh t'e'm-&a.eed pellutaa! the Gandiaate fuel mu1tt se.ti!!fy !:he fe!lewing relationship; and] 

~ W :fAG. § 114 .315(e)f-51(:G)] 

f(I}) the average tadWidtm! emi&iiens ef mG and 

NMMG; reS!*lGii'.'el:y, i'tle6l'ded dlffiag testing with the &&1\diElate :fuel 

do nst eJ!Geed the test engine's applieable Gl!:haust emi&Sie.n staadards,} 

ffi) the tetal ft1'0illlltie hydroearben eootem; eetane 

wmbetj oF oth61' 9Ha!'ae.tel'i£tias as appFe~t~at<l nnd as detGr·mined in 

aeeerdanee with -the test methods identitied in subseetien (a) ef this 

~-Of} 

ffli) fa!' an al!ernati•1e diesei fuel fetmulatien \!Sing 

nn adcl:itive to aehieve reduetlons; the identity and mJniffltlffi eeneentl'afienru tJ:eatment !'ate eftheadiDtive, the minimum speeifieations eftha 

belle diesel fuel Ul!eB in the approved fermulat:ian, arui the test method er methods that must be used to satisfY the menlter±ng requirement-s 

ef.~ ef ~ title·~ to Monitoring, Reoordl.Eeeping, a00 R.Gpartmg~ 

{fBj The apprevalnotl&atien must as&ig.n an ffientifi. 

eatien tl\lffii'Jer to the speeffie appr~ved alt~ diesel fuel f~rmulatien,:j 

. (d) Approval of any additive-based altemative diesel fuel formulation as prescribed under this section prior to April 1, 2012, and 

thereafter~ i:J suhject to !'eVOcation if the executive dircctol' determines 

that the composition of the additive component of the approved alternative diesel fuel formulation has been altered so that it no longer matches 

the composition of the additive as originally approved. If the executive 

director revokes the approval of an additive-based alternative diesel 

formulation, producers using the alteritativc·diesel formulation to satisfy the LED requirements of§ 114.312(a) of this title must discontinue 

all use of the alternative diesel fom1ulation with.l.n 45 days of the date 

of revocation. [Natwithstitndiug llubseotlon (o-) ef this seetkHI; the e.xeGUtive difooter; -llflOO· applleaden, may approve alternative diesel fuel 

fermulat-ions as presG-r1hed unde~ fl~ Gf th-is title ~bat may be 

oused to £atisfy the reEJ:Uirements ef § 114 .312(b) aad W efthis title if the 

appliGant hits 4emenstfated te tho oot.i&fal>fien eftho G*e<mtwe dil'OOt&!' 

tl!l.d the EPA -tltat the formulation will aehleve eemparaele er bett'el•t•e· 

dHOOeRS tn emissions efNG_aud PM.] 

fEB Fer- al<ernati'le diesel fuel formt!latieru; that use rut additWeto aehieve red\-IC-tions; the app!ieant shall previde te the ell<eem.ive 

direGtl'lf UJ*)Il applieatien, the identity, GIJ.emieal oompesitien; tl!l.d GOO· 

eentratlen.ef eaeh additive usee-in the for-mulatien, and the test methed 

by- whlcll the J:lresenee nnEI eoneett1Mtiea ef the aeai-twe tMy be deter· 

mffie4} 

f(~ If the alternative diesel fusl formulatien has. ueen 

dtmlensirated to the &a.tisfaetion of the elreGUtive direetor and the 

EPA ro oohieve eem:j*}r-&&le OP eGtte!' redlK?tienll in emi!!siens ef~. 

Ill*! PM llflde:r this subseetien, then the e!l:ee\lthe dire&ter may issue 

an appreval netiiWatioo eertil)'ing that the altemative diesel fuel 

formulation may- be used to ~the FeEJ:Uirements ef f-J.l4,3..J.~-a-) ef 

this title,} 

f(-A-) :r:l1e apfl.ravai netifi.Gatien m!lst 4d6lltio/ the fullawffig sp~GBB ef-tlte a!ternatiYe diessl fuel fermulat-i&n as approved 

lffitler this subsection:] 

ffi} the tetal aromatie hydreeareoo oontent, eetene 

mlfflbet; eP eth.eF parametercs as ajljlropriate end as deW!'mi-ned in 00001 .. 

danoo with thtl test methods 4dentflied ffi &Ubseetien W ef this seetienj 

orj 

{{e) If the exeetllive direGter fiMs -tltat <t eanElid&te fuel lias 

ileeo preperly testeB m awerdanee with this sabseetieiJ.; ood makes tlte 

determinations 

~ 

speelfti!d ffi paragraph~ ef this s•Jbseetian, theJl the 

d-ifeet&F me:y; &fte!. eens:Jitatlaa with tlte EPA, issue an ap· 

tJrevaJ aotifi eatien aertifyiog that -the a11ematP.•e diesel fuel ffimmla· f(il) fur. an alternati'le diesel fuel using an additi'le 

tien l'tlJif&S&atoo by -the eandidate fuel may be 'Used -te ~-the fe- tooohle:vefedi:leti&AS;theidentity-tl!l.dminimumoonoontFatione!'treatquirements ef ~ efthlf! fit!&; :r:he approval netifieatien must moot .rate ef the additive; the ~nimum speeifieatlens a: the base fusl 

identif)' aU ef the relevant eha¥aeteristies ef the enndid&te fuel deter· tlf!ed ffi the ap~ fermYiatt?n, ~ the ~ metho.d Ell' metheds ~ 

___ .. _ ____!!line~~ ~i~.~~l!!tP.~tJ~J~h>f~ su~~G!jan.] ______ ·--=be ~~-~-the me~~~~tng re!~~~~nts ~§ 114.316 ef~- ________ _ 

1W -The appreval netifullltien mw.H identify the ful!ew· 

ing speei&atk>AS efthe a!ternati·1e diesel fuel fo!'mulatien as appreved 

tmd&l this sullseGtion:] 

37 TexReg 2020 March 23, 2012 Texas Register 

f(B1 !fche appl'evalaetifieatien tm1-st assiga an l.EleatifiGatien a\ltllber to the speeiful appreveG ~ diesel fuel furmuJatielh:} 
Wj +he d~ fe(jUired \lftder this 11\!bseetiett 

ttffiY be Bffiisfl:ed ~lSing the ~Medel: 115 desmaed ffi the EPA 5taff 

<iisoossffitt 4eetJmeffi, S/Mte.giee 61nd let~Ufffl in Ge/Wiflt-ing .f)ie&l;l Fuel 

P-Fepe.l'tles w#h Em~s-9/{;}1'111; llll~liootiett Nmnber ~..P..W..GQI, 

pa&l-islletl Jaiy ;!00-l, te aemen!ftflfte tlutt tile applieahle f-uel pr-epei'Hoo 

ef the alter-nati-ve diesel fuel femRI!atieB will aehleve at least a ~ 

~eft ffi NG-- emissiens :ftem ett-l.'ea4 diesel fuel: mf the ye&l' ;!001, 

and fit least a ~ r-eduetiea ffi NG;; emissions frem OOIH-ead diesehl 

£('8 ~-he der-n~ fe(jUired ettder this Sllhseetioo may 

ee satlsfie4 ey the verifieatien ef an <ei•Ilatwe diesel fu&l: fer-mllla· 

#ett ey the Ai·P P&Yatioo Gootrol Teehnelegies G~r, a eenttll' llll· 

de~• the BPNs Etwit'eftmental :reelmelegy VerifieatieB :Progffim; and 

the EPAAI GEtiee ef~ertatien lllld Air- QaaJity!s llelt~ntary )}iesel 

RetroiH Frogpam.-; defllflnstreting at least a~ retluetien in NG;; 

emissi.ettS when OORlf)&f'ed agaillst a base diesel fu&l: wit-h fl.-tel preperties withift the r-anges 115 dese~•ibed fer ootien-wide a¥eJ'Ilgtl fuel 4n 

ElWs T41r{fieatlen ~fm .f>etel'mlna#en efl!imiesi81'11J Redueliei'IIJ 

fJbtftined by Yse ef Altemative {;}I' Refo.-rnulated bi£juid Fttel5r Fuel 

Addlti·~es, Fuel Emtilsiel'lff; &~d ~nlil fm' JlighwGy £md Nenraed 

the Diesel Engines- and bight .f>ufJI Gs.selfne J!,ngine!J and ·Vehidee 

(Revi11-ien Ntr. @; Septembef ~ 

(e) All alternative diesel fuel formulations app1·oved by the ex· 

ecutive director as prescribed Wlder this section prior to April!, 2012, 

may continue to be used to comply with the provisions specified in this 

division. 

§ 1/4, 316. Monitoring, Recordkeeping. and Reporting Requirements. 

(a) Every producer or importer that has elected to sell, offer 

for sale, supply, or offer for supply low emission diesel fuel (LED) 

produced at its production facility or imported fi'Om its import facility 

in compliance with the requirements specified in §§114.312,.114.313, 

or 114.318 of this title {relating to Low Emission Diesel Standards; 

Designated Alternative Limits; Alternative Emission Reduction Plan, 

respectively) that may ultimately be use~ in counties lis~ed in§ 114.31,9 

of this title (relating to Affected Cmmt1es and Compliance Dates) IS 

subject to the applicable requirements of this section. 

(b) Each producer or importer of LED [All reeofds relating te 

law ~JT diesel (I..,IID1lltll'!lf)liag] must keep records that declare or 

demonstrate that each final blend ofLED [ eentain a stateme11t deelar-ing 

~the aretlH\tie h~·ree&fban eantent a·fth<l sample] conforms to 

the basic LED standards [stEIIld&OO] as specified in §114.312.00 [W] of 

this title [~ttting te bew Emission :Diesel Standru•ds-)], to the [a] designated alternative limits as specified in [limit Q;}:A.±r} in aeear-danee 

with] § 114.313 of this title [Erelftting te 9esignated Alternfltive :btmitsj]; to the specifications of a Certified Diesel Fuel FormtJlati?n or a 

diesel fuel [al..tma] as accepted under §114.312{2} [(e)] ofthls title, [orwhether the 4iescl fuel eonforms] to an alternative diesel fuel fol'mulation as approved under §114.312@ [fi)] of this title, or to an altemative 

emisSion reduction plan as approved under§ 114.318 of this tide. 

(c) Each prodtJcer or importer of LED [a diesel fitel that eenf&mlste §ll4.312(a)- Eej efthlsilile] shall collect and analyze [sample 

and test fer. the ~ hytlffie&fbett eentent and minimum ootatw 

l'll:lfllbet' ffi eaeh final &lend ef .t,.BJ;> that the pr-edueeP a~ impertet' tlftll 

p~ &!' tffifJ&I'ted, ey eolleeting -and !lllalyzing] a representative 

sample of each final blend of LED produced at its prod~1ction f~cil· 

ity or imported from its import facility .for th~ fuel properties sp.ec!lied 

in paragraphs (l) - (5) of this subsection [diesel fuel taken w.>tag the 

ll'lethedaJegies Sfleeified ffi ~ ef this title ~ing te /\jJjJf!lYCS 

test Metheds-)], 

(1) The aroma tie hydrocarbon content and cetane nwnber 

must be analyzed for LED produced or imported in accordance with 

§114.312(a) of this title using the test methods specified in §114.315{a) 

of this title (relating to Approved Test Methods), 

(2) The aromatic hydrocarbon content, cetane number, 

and/or any other appropriate components specified in the applicable 

California diesel fuel regulations or the exectttive orde1· issued by 

the California Air Resources Board (CARB) must be analyzed for 

LED produced or imported in accordance with §114.312(c) of this 

title using the test methods specified in § 114.315(a) of this title and 

if appropriate, the test methods as listed in the executive order issued 

by CARB. 

(3) The appropriate components of the alternative diesel 

fuel formulation as listed in the approval notification issued by the executive director under§ 114.315 of this title must be analyzed for LED 

produced or imported in accordance with § 114 .312( d) of this title using 

the methodologies specified in§ I14.315(a.) of this title and ifappropri· 

ate, the test methods as listed in the approval notification. 

(4) The aromatic hydrocarbon content, polycyclic aromatic 

hydrocarbon content, American Petroleum Institute (API) gravity in· 

dex, cetane number, nitrogen content, and sulfur content mttst be ana· 

!yzed for LED produced or imported in accordance with §114.313 of 

this title using the test methods specified in §114.315(a) of this title. 

(5) The aromatic hydrocarbon content, cetane number, spe· 

cific gravity, and the temperature corresponding to the 50% point on 

the distillation curve in degrees Fahrenheit (T50) must be analyzed for 

LED produced in accordance with§ 114.318(b)(l) of this title using the 

test methods specified in §114.315(a) of this title. 

(6) If the final blend of LED required to be analyzed in 

paragraphs (2) and (3) of this subsection is produced at a production 

facility with the use of an additive as it is being loaded directly to tanks, 

pipelines, tank ships, railway tank cars, tank trailers, or fuel delivery 

trucks, the prodttcer or importer may satisfy the srunpling requirements 

of this subsection by recording the volume of additive and the volume 

of diesel additi:red in each final blend of LED as it is prodltced at the 

production facility, The analysis of the volumetric record must demonstrate that sufficient additive was added to the final blend of LED to 

maintain the appropriate additive concentration per gallon as listed in 

the approval notification issued by the executive director or in the executive order issued by the CARB. 

.0 The producer or importer shall maintain[; fer twa ;'llftfS 

from the date of ea&ll .sam~lffig;] records showing the sample date, iden· 

tity of the final blend sampled, identity of the container or other vessel sampled, volume of the final blend sampled [:Yolume], and the fuel 

properties of each sample as analyzed in accordance with paragraphs 

(1)- (6) of this subsection as appropriate, for two years from the date 

each sample was collected [aromatic hydroearoon content and minimum eetooe llllffibel' ]. 

ill All LED [diesel fuel] produced by the producer at its 

production facilities or imported by the importer from its import facilities and not tested [ftll IrED] by the producer or lmp01ter as required by 

this subsection [seetioo] will be deemed to exceed the standards spec• 

ifiedln §114.312 of this title, unless the producer or importer demonstrates that the LED [diesel .fuel] meets those standards and limits. 

(d) A producer or importer subject to the reqttirements of this 

division shall provide to the executive director any records required to 

be maintained by the producer or importer in accordance with this section within 15 days of a written request from the executive director, 

if the request is received before expiration of the period during which 

the records are required to be maintained. Whenever a producer or 

importer fails to provide records regarding a final blend of LED in ac· 

cm·dance with the requlre111e:9ts of this section, the final blend of LED 

PROPOSED RULES March 23, 2012 37 TexReg 2021 
will be presumed to have been sold by the producer or impotter in violation of the standards specified In §114.312 of this title, to which 

the producer or importer has electe(i_ to be subject. ~ ~ ru 

~ ef' a 4iese! fuel that ~nfOfmll ta § 114.3 12(f) &! this~~ 

sample ana wm feE the awl'&fll'*l*e wm-pooetlts ef the altet'natwe dtoo~ 

fue-l furml'!ladan as listed itl the appraval net-ifieatioo issued by the 6*• 

eeutlve direetenmdeJ' §l14.315(c) ru W ef this title ffi eaeh final blend 

of hEll that the~ ru-impaftef has ~dueed er- impor-red; by ool· 

l.eeting aad ~ng a reprooentative 5llll1Ple ef 4iese! fue-l taken~ 

the final blend; using the metlledelagies speeitied ift ~-1-14,-3-1-$ ef tlus 

title, If a~ 61' ~blends the diesel fuel oompeooats e-fthe. 

approved alternative dies0! fool furmulation. to ~ee a final blend e-f 

biiD direetly to pipelines, tank ships, railway- tank Gal'S; 0!' trueks ~ 

trailers, the loading(!;) ID\ISl be 5lllllPled and tested fut! the appropt'Hite 

components ef the alternative diesel fuel fuFmulatie:n as ~ by 

the eKeeuti.w direetaF by the ~ ru im.-pol'l.el' or- auth01'W.:OO eontraetor- at a me e-f ene sample and toot per. 2.~{},000 gnUeAS e-f tJID pro· 

duced, :rhe pmd\1001' of impoftef OOall maintain reoords 5howing -the 

~date; klentit]< efblend sampled; eentain.eJ' ru ~~-sampled- final blend Wllume and the oontent efthe apprepr-tate -fuel oom· 

f>Otl;nt-s fur twa y-eat'5 .from the date ef eaeh lllli11plin~ All diesel fuel 

~Ekleed by the tlmducer o~ impor-ted -by the ~ flfl4 oot tested 

as -blm by the~ iW ~as reEfllired -b)l tflis see.t-ie-n will be 

OOemOO. to 6*GtlOO -t\le standards 6peeilied ffi ~ e:f this title; unless the ~duee~ 01 -importer tlemoo&tl'atCll -tllat the iliesel file! meets 

those standards and limit&.-] 

[(e) If tlte alternatiY~ ~ ~e-1 fer~ulatian. .being ~ 

atlil tested undeP <lttbseetien {;~ &f this ~ ~ an addttwe 

fiY!Iretn; the fulal blerui fiHISl be -sampled and tooted fer- the ~~eat 

ef the apprepriare 4\Je-1 oompanents of the base ffiel and add-itive as 

-listed ill the app1'0¥111 netlfieatian isSHed -by -t\le S*eeuHve direetar OOE!tW 

§ll4.31S(s) ruW ef-!hls title; a11cl tha pr-od-uGeJ' ~r ~ ru authe· 

tilled oontr-aGter- 6hal! rnaintai!l ~ 1lhewlng that ooffieient additive 

was added to maintain the apprepriate additive oonGentmtie-n as ap· 

jli'O¥OO by the ~ direetal': i-f the additive is appr-oved -by ~ 

e-xe-Giltive direetef fef use with 4iewl fue-l pr-edtleed -to GelnMz with 

the fuel oontent standards 5J:le&iFlea -in 40 Q>ae e-f Federal Regulatie;as ~the tast-ing f-er the oomeru efthe Riel oomp61l:eft1s afthe ba!le 

fuel is oot reEfuired.] 

{00 A ~dtleer- ru impeftef. -subjeet w the requirements &fthis 

diw-ien -shall pr-ovide to the exeGutive direelffi' any feeer-til; ~·r-ed to 

be maffitained by -the ~lfueet' ru importer in aeeer-danoo with this see· 

ti&fl within .g aaya ef a Wl'itten reqEeSt ffem the S*eeati-ve Gir-ee-ter; 

-if the l'eEjiMlst is feOOi.ved befur-e ~piMtien af ~ t!Wd dul'ing whi4 

the reGar-ds are ~ te be ataintaifled. Wftelle¥61' a tlFOOuooF 0!' 

-intpoftel' fails te ~e reoords regafding a final bleOO ef IJID ~ ae· 

eei•Eianee with lhe re£tUirements efthls WGt1en;- the final blenEI ef dtesel 

fue-l will be p1-esumed to have been se-lcl by- the pr0dooef e1 imf)Oftel' il1 

¥ie-iatioo ef the standards Jlfleemoo il-l ~ ef ~tie title; te wh-iOO 

the produeet= ru ~ has elee1etl te be subj~t.) 

~ [{~] All patties in the distribution chain (i.e., producers, 

importers, bulk plants, common carriers, [f>reduool'; -importer, terml-

'Rals, ~~elioes; {ruekers; fail ~] and t•etail. fuel dispensi~g o~tlets) that supply diesel fuel subject to the reqmrements specified 111 

[!:>revisions efJ § 114.312 of this title that may ultimately be used ln 

counties listed in §114.319 of this title shall maintain copies or records 

of product transfer documents for a minimum of two years and shall 

upon request, make such copies or records available to representatives 

of the commission, United States Environmental Protection Agency, or 

local air pollution agency having jurisdiction in the area. The product 

transfer documents must contain, at a minimum, the [ful!ovring] intbr· 

mation specified in paragraphs (1) • (7) of this subsection: 

37 TexReg 2022 March 23, 2012 Texas Register 

(I) the date of transfer; 

(2) the name and address of the transfet'ol'; 

(3) the name and address of the transferee; 

(4) in the case of transferors or transferees who are pr?ducers or importers, the registration number of those persons as ass1gncd 

by the commission under §114.314 of this title (relating to Registration 

of Diesel Producers and Importers); 

(5) the volume of diesel fuel being transferred; 

(6) the location of the diesel fuel at the time of transfer; and 

(7) one of the [.following] certification statements sBecified 

in subparagraphs (A), Q3}, or (C) of this paragraph, as appropriate: 

(A) "This pi'Oduct is Texas lowemission diesel and may 

be used as fuel for diesel engines in any Texas cotmty requiring the use 

oflow emission diesel fuel."; or 

(B) "Titis product may not be use.d as fuel for diesel en· 

gines in any Texas .county t-equiring the use oflow emission diesel fuel 

without further processing.''; or 

(C) "This product has been produced under a TCEQ approved alternative emission reduction pl~. and may be ~sed as ~el for 

diesel engines in atty Texas county requmng tl1e use of low emtsston 

diesel fuel." 

fW 1"er eaeh liool blend -that -i-s ~eld m· supplied hy a '(lfetffioor 

w -impor-ter .ftom -the pruty!s fli'Odootien .faeility m- im-port faellity; and 

that oontains -vekanes ef diesel fuel that -the party has ~ and 

ll'n!'Ofted 

~ 

and-volumes {bat the party -ne-itll.tw pre-dueed flar imperted, -tll.e 

iW importer -shal-l establish, maintain, i.I.Bd r-etain adeij:uately 

ot•ganized recot•ds ~ont-ainlng -the fo !lowing infurmatien.] 

ftl1 l'he ¥alum(! of dies~! f-t1el ffi the &a! blend that WM 

net ~redtieed er -impor-ted hy the :t>r-o4ooel' er im.-p!lrtef; the Menili)l ef 

the -per-son(s) fram wham sueR iliesel.fuel WM ~the aate(-5) -that 

-it WM ~ and the -inveioo(s~ -r-epresetltlng the aequisition(s).] 

{-(21 -The ammatiG byaree-at'OOn oontent -onE! tlte eet-one 

-number efilie -volume efdiese! il-l -tll.e fffial bleOO-thatWM oottlredtieed 

er imf)O!'ted -by -the pt=o4ueer er imf)OI'ter, ~etefl'fliHed ~itll&J -~] 

fW -&amflling and testing by the t*edtieel' 0r -~mpeoo= 

ef the ~ iliesel.fue-1 tepr-eseffietl ffi the imal-bleRdj ~1'] 

@) Wl'itten results ef -sampltng and test &f the diesel 

fuel ~ed -by -thepeFSooW .from -wOOm the <lies&! fu&l was aeqtlifed.] 

-ft31 A preEffieer ru -impol'l.el' -s1:ibjeet to th-is oo-!3seetioo sh-all 

est-ablish ~uoh rooeFds -by -the. time the fulal blend triggering -tll.e require· 

meats is se-ld ru oowJ:ied .ffe!n the -pr-odll&tioo iW -imf!el't .faeilliy; and 

Gball -F&tain -sooll feOOJ'ds fa!' twa 1'6afll.from web ilate, .};)u1'ing the Jlefied ef l'eljtlir-ed reteatioo; the pvool:leer iW -imp&r-tel' -BhaU make 1111)1 ef 

the reoor-ds available to the eMeemwe direete-F -llfl&a ~ 

ill [Bj] Each producer or Importer of LED subject to subsection (a) of this section [eleeting te ~ effer fur -sale; OOj}I*YJ '<~)' effev 

to -supply hEf) ill ~ce with~ 0fthis title) shall provide 

a quarterly summation report to the executive director 110 later than 

the 45th day following the end of each ftb.e] calendar quarter and must 

maintain a record of the information submitted in the quarterly report 

for two years from the date of each fl.lport. The quarterly report must~ 

submitted on forms prescribed by the executive director and must in· 

elude [-j)N¥ide], at a minimum, the information specified in pru·~raphs 

(1) - (3) of this subsection for each of the producet's product1011 fa· 

cilities or fot· each of the importer's import facilities: [the .ffifert:natien 

~to -be oolleetecl-by subseeliens -(s) " ~ana til) ef-this -seetien 
ftflti a t'ee&aeil-iatioo efthe ~ ~ns fcl.~m te the reE!Utreffieflts ef lffibseet:iens (e) • (ej, ftfltl W ef thls .seetjen, YpE!!Ites ef re· 

¥isions te estimatOO tJ!aHBa&tien veffimes required .by suhseatlenB t&-)-

(e) ef thls seetioo m\.ISt be inelutJed in thls rep&rt.] 

(l) the total volume of LED produced or imported during 

the calendar qtJarter that Is subject to the requirements of this section, 

and ifthe volume ofLBD required to be reported in this paragraph was 

produced with the use of an additive, the total volume of additive used 

to produce the LED must also be included In the quarterly report; 

(2) a reconciliation of the records required in subsection 

( c)(7) of this section for each sample collected and analyzed dtJring the 

calendar quarter; and 

(3) any other information determined by the executive di· 

rector to be necessary to demonstrate that the producer or importer has 

produced or imported LED that has satisfied the requirements specified 

in §§114.312, 114.313, or 114.318 of this title. 

{g) [€11] Each producer or importer electing to sell, offer 

for sale, supply, or offer to supply LED in accordance with [under] 

§ll4,312{1l} [~] of this title shall provide to the executive director, 

as applicable, a copy of the executive order Issued by the CARB 

[Galffilmia Aif Rese\ll'ees Beftl'EI. ~] for the Ce11ified Diesel 

Fuel Fonnulation used to produce the LED or documentation demon· 

strating that the LED has been produced to meet all specifications 

for diesel fuel under regulations adopted by the CARB, except for 

those approved for small refinery compliance, that wete in effect as of 

August 4 [January!&], 2005[, and shall oompl.')' wJ.th the r~quireJHents 

af S\lbseetians Ee-) and (h) ef tfl-is wetiert using the W spooffieatians 

f{)J' ~ hydreaar'eon ftfltl eetllne set ·\)y tail! exeeutive affi.et 6f 

r~@*la~iens]. 

EEl~) &&h pre~ ~ te $ll, etl'<lF ror sale; sapp-IY; 6f 

·~ te ~diesel fuel.ffi aooerdanee with~~ ef41is title tre· 

Wing te Alternative EmissieB ~B P.lan~ sha:H ooJI'lj}ly with the 

samt*ffig and testing ~eqt~irements ef sl:lbseeti&Hs (d) ftfltl W ef 4lis see· 

tien fe1• the llf'!Jl!'eJll'iate fuel 00ffif1anentll ef taG dies&! upen wh-ioo fue 

fll'6.ieeteEI emisllioo reduetieas Wet'e based, -Eaeh produ\lef shall~ 

a ttuarterly repm't te the eJ<esutive Elireet6f oo l.a!ef than the Mi·tl1 tlay 

fe llewiflg the ~ ef the oole~~.dar quarter, Cf-he EJ:lltll'terly repefl must 

· provide, at a minimum, the f-eUowiflg information:] 

fE·l-) the volume ef diesel·fuel preau-i eytk.G preduOO¥that 

is~ te the pnwisiens efthe alternative e1~sioo reduetie11 plan 

as approved by the e-xeeutive e:ifeetol't) 

fE2:) the 'o'MllOO ef diuse-1 fiiel thai was oot j}ffldueeeJ. hy the 

predueellnltwassetdef ~hythe predueer in the ceunt:ieslisted 

in~ efthls fltle and is oobje~>t to the provisieasefthe altemath•e 

emi&sl6fl ~l plan as a-ppJ•aved by the eJteel:ltive ~ ftfltl the 

identity of the per-sens(-s-) frem: wilem su4 diesel fuel was aGElUiroo .and 

the date(-51 that it was~ +he f*'6du001' f!hal~ rotain reoords of the 

.ffiveieeW r~resent.fng the acquisiHen(s-) .f{)f fwe yel!fS from su4-

and] 

{~ the infonnation required t-e be oolleeted in aeeordanoe 

with the Stll'llplffig and tesffilg requirements ef this 1rubseetian -arul a 

fef;leneiliatian ef tlw EJtlQfter.!s tr-ansaatlons relative te the re<J:uirements 

efthls 5\ihsootian Wl' the upp1•opr-iate fuel eempanents efthe diesel fwl 

that ·the -prejeeted ernissien fedaetiefls demenstrated .ffi the :flFe<iuoor.!s 

altet•nati-ve emissian redwtffia f.llaa were based '\lllea.:J 

§ 114. 317, Exemptions to Low Emission Diesel Requirements. 

(a) Any diesel fuel subject to the low emission diesel {LED) 

requirements specified in §114,312 of this title (relating to Low Emission Diesel Standards) that is either in a reseru·ch, development, or test 

status; or is sold to petroleum, automobile, engine, or component man· 

ufacturers for research, development, or test purposes; or any diesel 

fuel to be used by, or under the control of, petroleum, additive, automo· 

bile, engine, or component manufacturers for research, development, 

or test purposes, is exempted from the provisions of this division (re· 

lating to Low Emission Diesel), provided that: 

(I) the diesel fuel is kept segregated ft·om non-exempt 

product, and the person posseSiiing the product maintains documen· 

tation identifYing the product as research, development, or testing 

fuel, as applicable, and stating that it is to be used only for research, 

development, or testing purposes; and 

(2) the diesel fuel is not sold, dispensed, or transferred, or 

offered for sale, dispensing, or transfer from a retail fuel dispensing 

facility. It shall also not be sold, dispensed, or transferred, or offered 

for sale, dispensing, or transfer from a wholesale purchaser-consumer 

facility, tmless such facility is associated with fuel, automotive, or engine research, development, or testing. 

(b) Any diesel fuel subject to the LED requirements specified 

in § 114.312 of this title that is refined, sold, dispensed, transferred, or 

offered for sale, dispensing, or trru1sfer as competition racing fuel is 

exempted from the provisions of this division, provided that: 

(1) the fuel is kept seg1•egated fi·om non-exempt fuel, and 

the party possessing the fuel for the purposes of refining, selling, dis· 

pensing, transferring, or offering for sale, dispensing, or transfer as 

competition racing fuel maintains documentation identifYing the prod· 

uct as racing fuel, restticted for non-highway use in competition racing 

motor vehicles or engines; 

(2) each pump stand at a regulated facility, from which the 

fuel is dispensed, is labeled with the applicable fuel identification and 

use restrictions described in paragraph (1) of this subsection; and 

(3) the fuel is not sold, dispensed, transferred, or offered 

for sale, dispensing, or transfer for highway use in a motor vehicle. 

(c) The owner or operator of a retail fuel dispensing outlet 

is exempt from all requirements of § 114.316 of this title (relating to 

Monitoring, Recordkeeping, and Reporting Requirements) except 

§l14.316{e) [§-l-l4.3Mtg)] of this title. 

(d) Diesel fuel that does not meet the LED requirements of 

§114.312 of this title [(telating te t.ew Bmissioo DitlSel Standard~)] 

is not prohibited from being transferred, placed, stoJ'ed, and/or held 

within the affected counties so long as it is not ultimately used[;] 

[t!1] to power a diesel fueled compression•ignition internal 

combustion engine operating in a motor vehicle or in non-road equipment in the counties listed in § 114.319 of this title (relating to Affected 

Counties and Compliance Dates), except for that used in conjunction 

with purposes stated in Stlbsections (a) and (b) of this sectionJt er] 

fE21 te :fl&WCl' a tliesel.fuelecl ~ien engine 

·in aen-1'600 eEtUitJmeatffi the OOilBties listed 4n.§-l-l4.-3-1-9f&) ef.fuis title, 

eJreept fer that 1:tSCd .ffi oon}unatlmt with purposes stated in sabseetiens 

~ ftfltl ~ ef this tiel.7tion,.] 

§114. 318. Alternative Emission Reduction Plan. 

(a) Diesel fuel that is sold, offered for sale, supplied, or offered 

for supply by a producer who submits an alternative emission reduction 

plan in accordance with subsection (b) ofthis section that is approved 

by tbe executive dh·ector will be considered in compliance with the 

low emission diesel (LED) requirements of§ 114.312(a) of this title 

(relating to Low Emission Diesel Standards). 

(b) The [An] alternative emission reduction plan must demon· 

strate, using the Unified Model as described in the United States 

Environmental Protection Agency illPA) stati discuSiiion document, 

PROPOSED RULES March 23, 2012 37 TexReg 2023 
Strategies and Issues in Correlating Diesel Fuel Properties with Emissions, Publication Number EPA420-P-Ol-OOI, published July 2001, 

that the average fuel properties of all on-road [emission r-effi!Gtffins 

asseeiate<:i with eeruplianee ofthia dwisien (relmffig to bawilruiss-len 

Diesel) that are athib~table ta the -v&lume oi] diesel f~1el produced in 

any given calendar quarter that ls sold, offered for sale, supplied, or 

offered fot' supply by the producer for use in [to] the affected counties 

listed in §114.319 [tll'Kier §114.319(9)] of this title (relating to Affected 

Counties and Compliance Dates) achieve .at least a 5.5% reduction in 

nitrogen oxides (NO.) emission:~ for the year 2007: and the average 

fuel properties of all non-road diesel produced in any given calendar 

quarter that is sold, offered for sale, supplied, or offered for supply 

by the prodtJcer fbr use in tfte affected counties listed in §114.319 of 

this title achieve at least a 6,2% reduction in NO, emissions. [ooGh 

)'Gllf will be aehieved tluough an equivalent ~itute fuel stmtegy 

-ln aeoordanee with eithet= aoo ru a eetnbinatioll of til& fallowing 

f3f6eedures<] 

{01:-) A ~ shal-l demongtrate fru ooGh speeiful greup 

ef aifooted 6ffilftties timed in unaet: ooGh ~h of §-1-l<f#l-9(9) ef 

this title; using the tJ.nifi.OO Madel as eeser-ibed ill the ~ States 

Bav:irerun6lltal l'!'Bteetioo Ageney {BPA1 statf diseussion Eleew.nent; 

~Wiegie9. and hsuM in G9FYeia/lng Diesel Fuel P-F9pel'#e5 with~ 

ffflm9; llu/J/ieelkm Number EPA4JO-P-()./...()(}J, published luly 200-1, 

aed using oely. the diesel fuel that is seld, &ffer.OO fm sakl, suw!ied;-

et' effered rot• suwJy ey the predueeP ·in tlte speaue voonties listed ill 

tHIGfl ~ ta eeteFmine the average fuel propel'ties W be used fat' the 

demenstFRtioo applieable te eaeh gt'ERlfl ef aifooted eawtties; the fel. 

tawing8 

{fAj the everege fuel pl'aflel'ties ef a-ll ea-t'ead .dies&~ 

f.uel predueed -ln tmy given ~ yeat' #mt 1s sete, affefe6 fat' sate, 

5\!Vplied; Of effere<:l fut' suwJy by the pr-eQueer :ffi the ilpp!leablt~ gt'ffil!il 

of aft'ooted eeunties aehle-ve at kast a .S~o tedootioo in elfides G!'tti· 

tregen (NG;1 enlissiens fat' the year- 200-'Jt an&j 

{E.Bj the average fuel preJ*rtles ef all fl6fl-!'eftd diesel 

pt•odooed in aey- gi¥eft ooleudw yea!' that is seW, effered feE sale; Sllfl• 

p.Hed, or effet!(l{j fef St~pply ~ the prodU(l6f -ln the applieable greup ef 

a!feeted eeutl-ties aehleve at least a li4% reduetiea in NG; eBHooiens.:} 

~ A predUOOI' sl!all demelllltt-ate f~r, the OOUilties li$00 m ~i-14.U9(a)~ of thls title,. the tetitlBillllhet' ef ~ of lleaeomp!i· 

ant 6iesel fuel that may be 9ft'set ~ eredits ffem ~ gasaline l!l.lliuf 

t·eduatioa usl:ag tlte fullawing metllooe!egy er- the IJietlwdelegy- speeifiecl -ln paragt·aph f31 ef this sl:tlolsootfen.} 

{fAj +he eretiits fEem eal'ly gaseline Slill\w reduetffin 

as Eietermitled ia subpar-tlgl'aj'lh tGj of this pamgmph aed paragraph 

(-31fA1 of thls subseetien wit! be bailee oo the aOO:Ial t&vel ef slllfwo 

ill a pr-edtieet"a gase±ille that Wftfl belew the &1lifup levels identifled in 

the EPA!& MGBILE6 model as tile default refinery EW&r-age find eaJ') fat' 

ooll\rentianal gawlia.e in ea~h llf)~ ~ ae<:i as repet=tea by the 

f3f6c:ffieeto te EPA in aOGefdaooe with 41} ~e af Federal Rl)g<~latiens 

(GIZR-) ~fat' :WOO, aed4lt GFR iS~ fef ~ aed ~ 

@1 ~ ere4its from em:Jy. gase&e sulRil' fe(;llietiee 

eoo oely. be generated frem the gasellne suppllecl by the fM'&dueerin ealendaf ye&I'S WQ~ W()4, and 200$, te the eeuntie.o; li$00 ffi 

§ 114 .319(b)(4) af thls fltle.ll!la these Gredits; as Eleteml:iaed in aeeerEiaaee with the llf)plieable gaseline Ia diesel etfset l'lrties ealeulated 

liOOe!' SllhJlaragraph ~ a{ th-iw pa~ ()M eeJy be used m the 

eooeties listed ffi §+l-4.U9~(-41 of thls title to demenstrate eemt>lianee thre~h I:->eoombeP 31-, ~ 

will be detemHned 

{€Gf 

basedc 

:J::he Gl!'edit& 

oo the 

fu:lm 

level 

&arty 

of oolfal' 

gaseliae 

roduatiaa 

SH.J:fl:lf 

in eaeh 

~ 

year 

usl:ag ~ fell owing methe<:ielegies and su9je&t ta the applieable iaae37 TexReg 2024 March 23, 2012 Texas Register 

line-to-diesel offset mtiw detenniiied using the methadology speelfied 

liooe!' aubpa!agraph tD) oHhis paragraph.] 

[fi} Meth<l<:ielegy -1· • va!kl oely. fur woa. gasaline 

sulfut• values between 2£9 parts pot' tnii-Uoo Ewffi) ae<:i W pfltn-:1 

{Figure+ W :f-AG §-llO l8(h)(2)(C)(i)J 

f(ii) Metlladolagy ~ • valid eeJy fe1: ;?.004- gasoline 

~values between :J.-2-t ppm and W PJffilo} 

{F-igure} 30 Me §ll4.318(b)~)(G)(ii)} 

[(iii) Methadelegy 3 • va!kl enly fot• 200$ gaselioo 

sulfur values betwoon n wm alld 3() P!lm.f 

~ ·w :rAG fl-14.-3-t-s(e)(-1,-)(.q~ 

~ 'ffl detennine the numbet= efbmels effleflOOffij)liant dJese-1 fHel that may be 9ft'set ~ eredits fl'elll early gaso-1-lne sulRil' 

r~duction, the aetua±l11t111het: ef btmele af !ewer sulfu¥ gasetiae &UPp.Hed by the predtleerc to the. eeunties listed -ln fl-l4.M9(b)(4) O·f this 

title annually- in :WOO, W()4, and ~ must be di¥ieed by the gase· 

line-te-diesel offset ratie detel'lllfnedin aeeordanee witli the fallowing 

ruethodolegy.j 

[Figure1 W Me §ll4.318(b)~)f.9)} 

E~ A~ shall demonstrate far the oounties &ted m 

§114.319(b)(4) efthist#le ~tata! fl\ltl'lber ef~ ofnanoompl-iant 

diesel fu&! that may :00 offset by; &t'OOits H-em &arty gasetine sHJfHr- re-

~ WJillg the pereentage afNG!< emissioo reduetiens attributed te 

olJ.-1'006 diesel-fur 200'1 eal&Ltlate.d with the~ Medel as deseribed 

ia !*lfllgl'aflh (-1-) of tl1is subseetieR, ll!ld the average fuel pmpet·ties E)f' 

the diesel fuel that is ool<:l, efl'erod fat' ~ ~ or efl'el'ed far 

supply by the prodUGei' ffi ttl0Se ~ eeunties, ta detet'ffilllG the apflliGabJe offset mtie te :00 applied te the aetaal fl\ltl'lber ef barrels ef 

lewet: !J\Ilftw gasoline suppliecl by the~ w the eounties Hsted -ln 

§-l-H4t~~· af this titJe. aenuall~ in :WW; WQ4, ana ;w~ 

{(A) :r-e detel'mine the ffilffi!Jer of barrels of naneomplian~ diesel mel that ffiay be &ffset by- &rod-its from eat'ly gasoline sulfUI' 

reduetien, the aetual ffllnWet' ef barrels {;)!' l&Wer sul·fur gasalffie supplied by tOO ~ ta the oounties listed in ~(4-j ef th-is 

title a!lffilally -ln ~ :6004; llfld :WO$; must be divided ~ the gaselffie..te-dies&l offllet mtie detel'mffied -ln aeeereanee with the felJewtag 

methodetegy.j 

{Figure+ W ::J.+\C §114.318(b)(3)W} 

~ 'file Gt'edfts fietn ~ gasffiine S\l:lfur l'eduetioo 

()M oely. be geeerated from the gasoline ~& ~ the predaeer 

in oolendru• years ~ 2004; ll!ld ;;wg.s, ta the ~ listed in 

§+l4dll)Ea)E4j &f this title and th&s& ereffits; as dete!'l:~tined -ln aGOOl'• 

Elaaee with the applieable gaselille-te-diesel offset l'llties as eahmlated 

in aeeerdal'lee with sub(*lt'-Eigl.'af)h (A1 of thffl ~h; ean oa.jy- be 

ased m the eetlllties listed in ~1-9€&)(4-j af this t-itle fer eeti!plianae 

thim1gh DeGembet= 31-, ~ 

(f4} A f!roduool' shalt demm~ fm the oounties llated -ln 

t~(a)OO fll' ~ efthis title, respeetively, the tetal!Hilnber efbar· 

rels of naneomf!lia!it diesel f«el that may be eifset ~ eredit11 fFem the 

1•esidual ef.l'wt!f of eal'ly gaselille mtlfuf reduetffin en the NGJ. emissioo 

reduetien effieiensles af ootaly-tiG eeevel'tei'S installed in gasoline-pewered metef ¥ehfeles by IISiag ~ fulffiwing methedalegy,j 

fW ~The eretiits fu:lm the !'e6idual effeet of oor~~ gaae1-in.e l!l.lliuf reduetion may oflly- be gen81'1lted by- the -v&lume of !'efer· 

mutated gaseline ~ by the predllee!' ffi 2004 and WO$ .t& the 

00\llltles li5ted :i-e § 114 . 31900 (B fll' · ~ of this title, that had an &¥erage sttlfult level repfll'ted by the fll'Odu~ te EPA in aeee«<aeee with 4G 

Q1R ~ that :was below the .su14'uf level of n wm In ~(}04, and 

+!- ppn~o ffi ~ 
{{B-) +he ftUfllbef ef biiHels ef ftOOeefll-pliftm diesel fool 

that mey be eft'set by e!'ed-iffi frem the t>e&i4l:lfi:l effe&tll ef eat'ly gawlffie 

mdf'UP red~:~etien wi-ll a~ d&temrined by divi4ing the lKffilal.llURlbeF ef 

bafrels ef ffiwer su-lful' gaoolitl.e detefmined te be el-ig-ible te gene!'flte 

erecl-it i·a aeeerdaaee with subparagraph tA1 ef thi& paragraph by the 

fallowing gasolifle-t{)-cl-iesel ef:f-set !'fltie oo a~pliooale.j 

{{if The galloJ.iBe--to-liiesel effset r-atio f&~ eligible 

leweF S:u:l-fut' g~~seUae suwJied te the eeunties listeE! ffi fl14 .319(b)Elj 

efthi& t#le will be ~Q fer ee:leadiw ~-s ~QQ6 thi'&ugh ~QQ&} 

ffiif +he gasetine-te-Eliesel ef4'set !'&He fa!' eligible 

lewer ~ gassl.ffie sawJied te the eoomies J.is.led ffi ~-9fb)(~ 

ef this t#le will be 66,Q f{)f ee:leadar ~-s ~QQ6 through ~Q&} 

{(G) +he &!edits fi!em the fellicl-u~l effe&tll e-f Cffil'iy gaseline ~ redlletioa as deterrniaed ia ftee61'daftee with suejllll'flgraph 

EBW) Ol' EH7 ef this par.agtoaph ean eR·Iy be used ia the eetmties listed i.n 

§ll4.319(b)El-)e-r (21 efthis title; respeetively, for eempliafloo threugh 

t>eoombeF 3-l, ~G&} 

~ All alternatiYe emissioo red\letien plena~ ey the 

e>cetRiti'le direetef pl'iol' to Mfl,y ·1!7; ~QQ6; wi-liO*pife ea t>eeentber 3-l, 

~()1,} 

(lU [(61] An alternative emission reduction plan must be approved by the executive director prior to the use of that plan for compliance with the requirements of this section. 

@ [W] The executive director shall approve or disapprove 

altemative emission reduction plans that have been submitted by producers in accordance with subsection (b) of this section within 45 days 

of submittal. 

@ [ti)] Alternative emission reduction plans submitted to the 

executive director in accordance with subsection (b) of this section 

must contain sufficient documentation to validate the average diesel 

fuel properties used to satisfy the requirements specified in [aeeet'Eiemee 

with] subsection (b) o fthis section [ f:l-7 e-r (21 ef this seetiotumd; $ app!'Opflilte; the sul.f\tF pr&perties and 'VOlumeS: efthe g$&line thaHs l:leing 

ooed to~ eredfl ffi aeeerdaflee with euaseetien ~ e-r f4f ef 

this 11eetien]. 

§114.319. Affected Counties and Compliance Dates. 

(a) All affected [Affeeted] persons in the counties listed in subsection (b) of this section shall continue to comply with [be in oomplianee Ill aeoordanee with the whedule listed ·in ll~Jbse&ti.en (ej ef this 

seetien wi-th] §§114,312- 114.317 of this title (relating to Low Emission Diesel Standards; Designated Alternate Limits; Registration of 

Diesel Producers and Importers; Approved Test Methods; Monitoring, 

Recordkeeping, and Reporting Requirements; and Exemptions to Low 

Emission Diesel Requirements) as reguired by subsection (d) of this 

section, as applicable, for !!QX. diesel fuell!J! defined ffi_§ll4.6(6m 

[tmdeF ·§-H4.6~)(.A)] of this title (relating to Low Emission Fuel Definitions) that may ultimately be used to power a diesel-fueled compression-ignition internal combustion engine in a motor vehicle or in 

non-road equipment in any of the counties listed in subsection (b) of 

this section, 

(b) The [fellewhtg] counties specified in paragraphs (1)- (4) 

of this subsection are subject to subsection (a) of this section: 

(1) Collin, Dallas, Denton, Ellis,. Johnson, Kaufman, 

Parker, Rockwall, and Tarrant; 

(2) Brazoria, Chambers, Fort Bend, Galveston, Harris, 

Liberty, Montgomery, and Waller; 

(3) Hardin, Jefferson, and Orange; and 

(4) Anderson, Angelina, Aransas, Atascosa, Austin, Bastrop, Bee, Bell, Bexar, Bosque, Bowie, Brazos, Burleson, Caldwell,. 

Calhoun, Camp, Cass, Cherokee, Colorado, Coma!, Cooke, Coryell, 

De Witt, Delta, Falls, Fannin, Fayette, Fl'!lnklin, Freestone, Goliad, 

Gonzales, Grayson, Gregg, Grimes, Guadalupe, Harrison, Hays, 

Henderson, Hill, Hood, Hopkins, Houston, Hunt, Jackson, Jasper, 

Karnes, Lamar, Lavaca, Lee, Leon, Limestone, Live Oak, Madison, Mal'ion, Matagorda, McLennan, Milam, Morris, Nacogdoches, 

Navarro, Newton, Nueces, Panola, Polk, Rains, Red River, Refugio, 

Robertson, Rusk, Sabine, San Jacinto, San Patricio, San Augustine, 

Shelby, Smith, Somervell, Titus, Travis, Trinity, Tyler, Upshur, Van 

Zandt, Victoria, Walker, Washington, Wharton, Williamson, Wilson, 

Wise, and Wood. 

(c) All affected[~] persons in the counties listed in sub· 

section (b) of this section shall continue to comply with §§114.312-

114.317 of this title as required by subsection (d) of this section, as 

applicable, for any diesel fuel as defitted in §114.6(6)(B) of this title 

that may ultimately be used to power a diesel-fueled compression-ignition internal combustion engine located on a marine vessel in anY 

of the counties listed in subsection (b)(2) of this section. [wej~ te 

sullseetiefl 00 ef this seetieB shall be Ill eemplianee with this division 

eooer-cliog te the fullewffig ~] 

fE-11 beghming GetebM -I, ~~ fu' fl!'eEibtaer-s il!lEl Impertefstl 

ft21 beginning Ne\'embM #;~~.fe-r iffiR~ plant dtstfil'n:ttitm faci.f.i.tiest and] 

ft33 beginnif\g .ffifluar-y +; ~()()6; ft}f retail .fue-l dispeasing 

eutlets; wllelesale bullE purellaser/eensumer faeilliies, ood aU ether- affeeted pers&H&.-] 

(d) For all counties affected by this section, the final compliance dates for control requirements are given within the subsections 

relating to counties and compliance schedules for provisions specified 

in this division if the final compliance date of any provision is after the 

date of adoption of the current revision to this division. Tfthe compliance dates are not specified for any )2tovision, the compliance date is 

past and all affected persons must be and remain in compliance with 

the p1·ovision as of the original compliance date. [Aifeeted ~ m 

the eeoot4es &ted ffi saaseetien ~ ef this seetioo $all ~e ffi oompliatwtl ffi aeeardaMe with the~~ ffi paragraph {!1, ~ eE ~ 

ef this wbseetioo with *H~l'h- H-4-.ll:f of this tide, liS applieable, 

fe-r aey diesel as defined oodef §H+.(j(f)tBJ ef this title, that may altimately be used te pewet' a diesel-fueled eampressioa igflitlen eagine 

leeated en a marine ¥esllel In any ef tl1e e~nmties listed Ia eubseetien 

th)(27 ef this seetioot] 

ffl7 beginning ~ -1, ~ fe-r proaueers nnd Impert8l'Sjj 

f(-2.) beginning ~er #; 20()1, feF btilk plant di~!r·ibutiefl 4'tleil:ffiest tllltij 

ft33 beg:i:tmiag J-antl!ll';' +; ;Ml()S, fa!' retail fuel dispensing 

outlets, whelesale bullE fJ\II'ehaser/eonsumer faeilitieS:, and all ethet• affeeted pet'l!el'ls.-] 

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 March 9, 2012. 

TRD-201201328 

PROPOSED RULES March 23, 2012 37 TexReg 2025 
Robert Martinez 

Director, Environmental Law Division 

Texas Commission on Environmental Quality 

Earliest possible date of adoption: Aprfl22, 2012 

For further information, please call: (512) 239·0779 

• • 

30 TAC §114.313 

(Editor's note: The text of the foil wing section proposed for repeal 

will not be published. The section !Y be examined in the offices of the 

Texas Commission on Environmen I Qualit;Y 01' in the Texas Register 

office, Room 245, James Earl Ru er Building, 1019 Brazos Street, 

Austin, Texas.) 

Statutory Autnorlty 

The repeal Is proposed under Te as Water Code (TWC), §5.1 03, 

concerning Rules, and TWC, § .105, con~rning General Policy; which authorize the commi sion to adopt rules necessary 

to carry out its powers and duti s under the TWC. The repeal 

is also proposed under Texas H alth and Safety Code (THSC), 

§382.002, concerning Policy a d Purpose, which establishes 

the commission's purpose to saf guard the state's air resources, 

consistent with the protection o public health, general welfare, 

and physical property; THSC, 382.011, concerning General 

Powers and Duties, which auth izes the commission to control 

the quality of the state's air; TH C, §382.012, concerning State 

Air Control Plan, which authori es the commission to prepare 

and develop a general, camp hensive plan for the control 

of the state's air; THSC, §382 17, concerning Rules, which 

authorizes the commission to dopt rules consistent with the 

policy and purposes of the Te s Clean Air Act; and THSC, 

§382.202, concerning Vehicle isslons Inspection and Maintenance Program, which authori es the commission to establish 

vehicle fuel content standards fter January 1, 2004, as long 

as distribution of low emission d esel (LED) as described in the 

state implementation plan is n required prior to February 1, 

2005, and authorizes the com ission to consider alternative 

emission reduction plans to com ly with LED requirements. 

The proposed repeal implemen s THSC, §§382.002, 382.011, 

382.012, 382.017, and 382.202. 

§114.313, Designated Alternative imits. 

This agency hereby certifies that he proposal has been reviewed 

by legal counsel and found to be ithin the agency's legal authority to adopt. 

Filed with the Office of the Seer ary of State on March 9, 2012. 

TRD-201201327 

Robert Martinez 

Director, Environmental Law Dlvisio 

Texas Commission on Environment Quality 

Earliest possible date of adoption: ril22, 2012 

For further Information, please call: 12) 239·0779 

• • 

CHAPTER 293. WATE DISTRICTS 

SUBCHAPTER C. SPE IAL REQUIREMENTS 

FOR GROUNDWATER ONSERVATION 

DISTRICTS 

30 TAC §§293.19, 293.20, 293. 2, 293.23 . 

37 TexReg 2026 March 23, 2012 Texas Register 

The Texas Commission on Enviro mental Quality (TCEQ or 

commission) proposes to amend §293.19, 293.20, 293.22, 

and293.23. 

Background and Summary of the Fa tual Basis for the Proposed 

Rules 

In 2011 the 82nd Legislature passed enate Bill (SB) 313 related 

to. priority groundwater manageme areas (PGMA). The legislature also passed SB 660 related o the review and functions 

of the Texas Water Development B ard (TWDB), Including the 

functions of the board and related e titles in connection with the 

process for establishing and appeal g.desired future conditions 

in a groundwater management are . 

SB 313 amended Texas Water Cod (TWC), Chapter 35, which 

relates to the creation of ground ater conservation districts 

(GCDs) in PGMAs. Specifically SB 313 amended TWC, 

§35.008, to validate and authorize he commission adoption of 

rules re.garding the creation of a G over all or part of a PGMA 

that was designated as a critical a under TWC, Chapter 35, 

as that chapter existed prior to S ptember 1, 1997, or other 

prior .law. Further amendments to C, §35.008, validate and 

authorize the adoption of rules r arding the addition of all or 

part of the land in such a PGMA a an existing GCD. 

SB 660 amended TWC, Chapter .6, which relates to GCDs. 

Specifically, SB 660 added TWC, 36.1082, which adds a definition for affected person in a gro ndwater management area 

and amends the reasons that an ffected person may petition 

the .commission for an inquiry of a CD in a groundwater management area. 

The commission proposes to am nd 30 TAC Chapter 293 to 

implement new TWC, §36.1082, and amendments to TWC, 

§35.008. 

In a corresponding rulemaking p blished in this issue of the 

Texas Register, the commission a o proposes amendments to 

30 TAC Chapter 294, Prl.ority Gro dwater Management Areas, 

to implement SB 313 and SB 660, §17 and §18. 

Section by Section Discussion 

The commission proposes to arne d §293.19, Commission-Initiated Creation of a Groundwater C nservation District in a Priority Groundwater Management Are , to clarify the responsibilities 

of the executive director when h petitions the commission for 

a GCD creation order for a PGM designated before September 1, 2001, or when he petition the commission for a recommendation order to add a PGMA eslgnated before September 

1, 2001 to an existing GCD. In § 3.19(b) the commission proposes to delete the word "report and replace it with the term 

"mailing Jist" to clarify that the e ecutive director's petition report to the commission and the ecutive director's mailing list 

of identified water stakeholders re separate items. The commission proposes to re-number§ 93.19(b)(3)- (8) to accommodate the changes proposed to t is subsection. The proposed 

amendment to re~numbered §29 .19(b)(6) clarifies that the executive director, if so directed, sh II refer the petition to the State 

Office of Administrative Hearing on behalf of the commission. 

The commission proposes this a endment to Implement TWC, 

§35.008, as amended by SB 31 , §2. 

The commission proposes to am nd §293.20, Records and Reporting, by deleting existing §293 O(c)(3), that requires GCDs to 

submit new, existing, or amende management plans to the executive director. UnderTWC, §§ 6.1071, 36.1072, and 36.1073, 

and 31 TAC Chapter 356, Subch pter A, Groundwater Manage-
TESTIMONY 
Reference Number 

W-1 

W-2 

W-3 

W-4 

W-5 

INDEX OF WRITTEN TESTIMONY 

Submitted by 

Jeffrey Trucksess, Biodiesel Coalition of Texas 

Christine Herbert, Good Company Associates 

Michael J. Nasi, Jackson Walker LLP, on behalf of 

Love's Travel Stops and Country Stores, Inc. and 

the Musket Corporation 

Shelby Neal, National Biodiesel Board 

Guy Donaldson, United States Environmental Protection Agency 
Board of Directors 

Jeff Trucksess 

Green Earth Fuels, LLC 

President 

Larry Zolezzi 

Pacific Biodiesel Texas 

Treasurer 

Mike Nasi 

Jackson Walker, LLP 

General Counsel 

April27, 2012 

Ms. Charlotte Hom 

Office of Legal Services, MC 205 

TCEQ 

P.O. Box 13087 

Austin, Texas 78711-3087 

W-1 

Re: Comments on Proposed Revisions to the Texas Low Emission 

Diesel (TxLED) Program Rules; Rule Project No. 2009-001-114-

EN 

Dear Ms. Hom: 

The Biodiesel Coalition of Texas (BCOT) submits these comments 

concerning the Texas Commission on Environmental Quality's ("TCEQ") 

proposed rulemaking regarding revisions to the TxLED rules. BCOT 

appreciates the time and effort TCEQ has spent to develop and implement 

a practical solution for biodiesel blends within the TxLED Program. 

BCOT offers the following comments. 

I. Removal of Performance Testing for Downstream Blends 

The current version of the proposed rules has removed the language 

subjecting all alternative diesel fuel formulations to the actual emissions 

performance testing. The proposed rules clarify that the Executive 

Director (ED) may revoke the approval of an additive-based alternative 

diesel fuel formulation if the ED determines that the additive has been 

altered from that which had been approved. BCOT supports the removal 

of the performance testing requirements for downstream blends. 

II. TxLED Compliance Standards for Biodiesel 

The Draft Regulatory Guidance explains that biodiesel blenders are not 

considered producers, but will only be considered as part of the diesel 

distribution chain. Therefore, the blenders are only required to comply 

with the record keeping requirements. 

According to TCEQ's new rules and guidance, biodiesel blends will be 

considered compliant with TxLED standards if: 

1) the diesel fuel used to make the blend is compliant with TxLED 

requirements; 

2) the biodiesel used meets the current active version of ASTM D6751; 

and 

3) the biodiesel used contains no more than 15 ppm sulfur. 

BCOT supports this standard. 
III. Revision to the Definition of" Additive." 

The proposed rule revises the definition of "additive" by revising the language in 30 TAC 

§ 114.6(1). We understand from discussions during the stakeholder process that, in revising the 

definition of"additive," it is TCEQ's intent to no longer regulate biodiesel as an additive. BCOT 

fully supports this interpretation as it comports with both law and common sense. 

BCOT trusts that the Draft Regulatory Guidance, which was released prior to the finalization of 

this rule package, will be revised to conform to the newly clarified definition of "additive." This 

will be necessary because the current guidance indicateS that biodiesel will be regulated as an 

"additive" when it is blended with diesel fuel. Therefore, BCOT recommends and requests that 

Draft Regulatory Guidance be updated as soon as possible upon adoption of the pending rule to 

accurately reflect TCEQ's position that biodiesel will no longer be regulated as an additive under 

the TxLED rules. 

Thank you for consideration of these comments. If you have any questions, or need additional 

information, please feel free to call me at (512) 636-7339. 

Respectfully, 

~#'d!~d~ 

Jeffrey Trucksess 

BCOT, President 
Good company email comments (2).txt From: Chris Herbert [cherbert@goodcompanyassociates.com] 

sent: Thursday, April 26, 2012 3:01 PM 

To: Morris Brown 

subject: here you go Attachments: NBB lttr of support TxLED rulechanges 4-26-12.pdf 

Morris, 

Here is your letter, as promised. 

VV-2 

Two questions I should have asked - on page 84, 114.318 (b) AERP - it seems to imply that the unified 

Model applies to "average fuel properties of all on-road diesel fuel" - but later 

requires achieved savings of NOx for both on and off-road fuels. Am I confused or what? Doesn't apply to us, but just may need 

grammatical fix. 

Also on page 34, 114.6 (14)[(15)] the TTC codes numbers that are referenced don't 

seem to be right - have 

your staff double check the numbers. 

Thanks for helping to clarify the california stuff. 

chris 

christine Herbert 

Good company Associates 

515 Congress Avenue - suite 1510 

Austin, TX 78701 

512-279-0752 

Page 1 
* )W Mike Nasi 

JACKSON WALKER L.L.P. (512) 236-2216 (Direct Dial) 

(512) 391-2194 (Direct Fax) 

Ms. Charlotte Horn 

MC205 

Office of Legal Services 

TCEQ 

P.O. Box 13087 

Austin, Texas 78711-3087 

ATTORNEYS & COUNSELORS 

April27,2012 W-3 

Re: Comments on Proposed Revisions to the Texas Low Emission Diesel (TxLED) 

Program Rules; Rule Project Number 2009-00 1-114-EN 

Dear Ms. Horn, 

On behalf of Love's Travel Stops and Country Stores, Inc. and the Musket Corporation 

(collectively referred to herein as "Love's/Musket"), we are writing to provide comment on the 

proposed revisions to the TxLED rules. We appreciate TCEQ's efforts throughout the TxLED 

Stakeholder Group process and your work on evaluating changes to the TxLED rules. 

Love's/Musket strongly supports TCEQ's efforts to work through the issues for a practical 

solution for biodiesel blends within TxLED and offers the following comments. 

I. Love's/Musket supports TCEQ's removal of performance testing for downstream 

blends. 

Section 114.315(d) of the September 2011 version of the draft rules stated: 

All alternative diesel fuel formulations ... are subject to the actual emissions 

performance of the approved alternatives diesel fuel formulation. Evidence that 

the use of an approved alternative diesel fuel formulation does not result in 

emissions that are equivalent to or less than the emissions from the use of diesel 

fuel ... may result in the revocation of this approval. 

The current version of the proposed rules has removed the language subjecting all 

alternative diesel fuel formulations to the actual emissions performance testing. The proposed 

rules clarify that the Executive Director (ED) may revoke the approval of an additive-based 

alternative diesel fuel formulation if the ED determines that the additive has been altered from 

that which had been approved. Love's/Musket supports the removal of the performance testing 

requirements for downstream blends. 

100 Congress Avenue, Suite 1100 • Austin, Texas 78701 • (512) 236-2000 • fax (512) 236-2002 

www.jw.com Austin Dallas Fort Worth Houston • San Angelo San Antonio • Member of GLOBALAW'M 

8120014v.2 
April27, 2012 

Page2 

II. Love's/Musket supports the change to the TxLED compliance standards for 

biodiesel. 

The Draft Regulatory Guidance explains that biodiesel blenders are not considered producers, 

but will only be considered as part of the diesel distribution chain. Therefore, the blenders are 

only required to comply with the record keeping requirements. 

TCEQ's decision to no longer regulate blenders as producers, in conjunction with removal of the 

performance testing requirement, provides that biodiesel blends will be considered compliant 

with TxLED standards if: 

1) the diesel fuel used to make the blend is compliant with TxLED requirements; 

2) the biodiesel used meets the current active version of ASTM D6751; and 

3) the biodiesel used contains no more than 15 ppm sulfur 

Love's/Musket supports this change. 

III. Love's/Musket supports the revision to the definition of "additive." 

While Love's/Musket does not concede that TCEQ previously had authority to regulate 

biodiesel as an additive under previous versions of the TxLED rules, Love's/Musket supports the 

removal of the language from the definition of "additive" that TCEQ had relied upon as the legal 

basis for regulating biodiesel as an additive. 

The proposed rule revises the definition of"additive" as follows: 

Any substance that is intentionally added to gasoline or diesel fuel for the purpose 

of producing a gasoline or diesel fuel in compliance with the requirements of 

Subchapter H of this chapter, including any added to a motor '<'ehicle fuel system, 

and that is not intentionally removed prior to sale or use and that is: 

(A) ~ registered additive with the United States Environmental Protection 

Agency (EPA) in accordance with 40 Code of Federal Regulations (CFR) 

Part 70 (relating to Registration of Fuels and Fuel Additives); or 

(B) added to gasoline or diesel for the purpose of reducing exhaust emissions 

from motor vehicles or non-road equipment and is exempted from the EPA 

registration requirements in accordance with 40 CFR Code of Federal 

Regulations Part 79. 

It is our understanding that by removing this language from the definition of "additive," 

TCEQ will no longer regulate biodiesel as an additive. Love's/Musket fully supports these 

revisions. 

We assume, but want to confirm that TCEQ will be updating the Draft Regulatory 

Guidance, last released in January of 2012 (before the proposed rules were published) to 

conform with the revisions being implemented in this rulemaking. We have identified at least 

one instance where the language of the guidance will need to be updated. On pages 5-6 of the 

guidance, it currently states that "biodiesel does meet the definition for "additive" as specified in 

30 T AC § 114.6 when it is blended with diesel fuel, which results in biodiesel blends being 

8120014v.2 
April27, 2012 

Page 3 

subject to the TxLED requirements for alternative diesel fuel formulations." Love's/Musket 

trusts that the Draft Regulatory Guidance will be updated to accurately reflect TCEQ's position 

that biodiesel will no longer be regulated as an additive under the TxLED rules upon finalization 

of this rule package. 

Thank you for consideration of these comments and for the long hours spent over the past 6 

years to work out a practical solution that enables biodiesel to be blended without undue 

restrictions within TxLED. If you have any questions, or need additional information, please 

feel free to call me at (512) 236-2216. 

Respectfully, 

ffi~ ,(./4~ i5l2. 

Michael J. Nasi 

Counsel for Love's/Musket 

8120014v.2 
America 's Advanced Biofuel 

April 26, 2012 

Morris R. Brown 

Texas Commission on Environmental Quality (TCEQ) 

Air Quality Planning Section 

ChiefEngineer's Office 

Mail Code: 206 

P.O. Box 13087, Austin TX 78711-3087 

Re: Proposed TxLED Rule Change 

Project No. 2009-001-114-EN 

Dear Mr. Brown: 

National Biodiesel Board 

605 Clark Ave. 

PO Box 104898 

Jefferson City, MO 65110-4898 

(800) 841-5849 phone 

(573) 635-7913 fax 

National Biodiesel Board 

1331 Pennsylvania Ave., NW 

Suite 512 

Washington, DC 20004 

(202) 737-8801 phone 

www.biodiesel.org 

W-4 

The National Biodiesel Board (NBB) is the national trade association representing the biodiesel 

industry in the United States. As a comprehensive industry association, we coordinate and 

interact with a broad range of cooperators including industry, government, and academia. NBB's 

membership is comprised of state, national, and international feedstock and feedstock processor 

organizations, biodiesel suppliers, fuel marketers and distributors, and technology providers. 

NBB appreciates the changes to the Guidelines regarding the blending ofbiodiesel with diesel 

fuel in the TxLED market. NBB supports the proposed changes to TxLED rules §§114.6, 

114.312, and 114.314- 114.319; the repeal of§ 114.313; and new§ 114.313. While many of the 

changes are specific to the diesel market, we understand that the definitions have been clarified 

to remove biodiesel from regulation under the rule. 

We have participated in the Stakeholder group and appreciate the opportunity to have open 

discussions with the various interests and industries affected by these rules. We also appreciate 

the staffs efforts to find workable solutions that support both the diesel and biodiesel markets, 

while protecting the air quality for our citizens. 

If you should have any questions about this matter, please feel free to contact me at any time at 

(800) 841-5849. 

Sincerely, 

Shelby Neal 

Director of State Governmental Affairs 

w w w. b 0 d esel.org 
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

REGION6 

April25, 2012 

Ms. Charlotte Hom 

Office of Legal Services, MC 205 

1445 ROSS AVENUE, SUITE 1200 

DALLAS, TX 75202-2733 

Texas Commission on Environmental Quality 

P.O. Box 13087 

Austin, TX 78711-3087 

Re: Rule Project Nwnber 2009-001-114-EN 

Dear Ms. Hom: 

W-5 

Thank you for the opportunity to comment on proposed changes to 30 TAC 114 regarding 

Control of Air Pollution from Motor Vehicles, specifically the Texas Low-Emission Diesel 

(TXLED) program rule. 

Overall, we support the proposed revisions to the TXLED rule. We support the removal of the 

alternative fuel formulation testing program. Not only will this save state resources, it will also 

save the EPA resources. A technical review of the documents dated March 7, 2012, pertaining to 

the TXLED Program Proposed Revision appears below. We had one question, but no objections. 

Page 65. 114.315(d). Removal of an additive previously approved. 

The only provision to remove an additive from the approved list is if the manufacturer changes 

the formulation. Please explain how this change would be determined. 

Region 6 continues to offer Texas our support during the rulemaking process. We appreciate the 

continued cooperative spirit exhibited by the TCEQ staff in development and implementation of 

the TXLED rule. Please let us know how we may be of further assistance. 

Sincerely yours, 

;1) f\, -./ 

Guy Donaldson 

Chief 

Air Planning Section 

Internet Address (URL)- http://wvm.epa.gov/earth1r6/ 

Recycled/Recyclable • Prtnted with Vegetable Otl Based Inks on Recycfed Paper (Minimum 30% Postconsumer) 
INDEX OF ORAL TESTIMONY 

NO ORAL TESTIMONY WAS RECEIVED PERTAINING TO THIS RULE REVISION. 
- 1 -

Texas Commission on Environmental Quality 

Public Hearing Registration 

April26, 2012 

1o:ooa.m. 

Rule Project No.: 2oog-oo1-114-EN 

Short Title: Revision of TxLED Rules 

Location: TCEQ complex, 12100 Park 35 Circle, Building E, Room 2018, Austin 

Concerning: Proposed amendments to 30 TAC Chapter 114, Control of Air Pollution from Motor Vehicles 

Name Representing Presenting Oral Testimony? 

(Please Print) (Circle One) 

Q[l\;rts ~(+-- ,Wf78 Yes~ 

~k Nf\-~r Lo'>k ~""~ s bp_s Yes(0 

r 

Yes No 

Yes No 

Yes No 

Yes No 

Yes No 

Yes No 
HEARING OFFICER REPORT 

I am the hearing officer assigned to conduct the public hearing regarding 

Revision ofTxLED Rules, Rule Project No. 2009-001-114-EN. 

A public hearing was scheduled in Austin, Texas on April26, 2012, at 1o:oo a.m. 

in Building E, Room 201S, at 12100 Park 35 Circle. TCEQ staff and a court 

reporter were present for the public hearing. 

At 9:30a.m. the room was opened and TCEQ staff was available to the public for 

an informal question and answer period. At 10:10 a.m. it was determined that 

those that were present did not want to make comments on the record. 

Therefore, the public hearing .was not formally opened for comment and a 

transcript was not prepared. 

Hearing Officer 

Dat signed 
EVALUATION 
Texas Commission on Environmental Quality 

Interoffice Memorandum 

To: 

Thru: 

From: 

Docket No.: 

Subject: 

Commissioners 

Bridget C. Bohac, Chief Clerk 

Zak Covar, Executive Director 

Steve Hagle, P.E., Deputy Director 

2009-2039-RUL 

Date: August 3, 2012 

Commission Approval for Rulemaking Adoption 

Chapter 114, Control of Air Pollution from Motor Vehicles 

Revision of Texas Low Emission Diesel (TxLED) Rules 

Rule Project No. 2009-001-114-EN 

Background and reason(s) for the rulemaking: 

The current state regulations for Texas low emission diesel (TxLED) under 30 Texas 

Administrative Code (TAC) Chapter 114 require that all diesel as defined under §114.6 

(concerning Low Emission Fuel Definitions) that is sold or supplied for use in a 

compression-ignition engine operating in any of the 110 central and eastern Texas counties 

listed in §114.319 (concerning Affected Counties and Compliance Dates) must comply with 

the specifications for aromatic hydrocarbons and cetane number as listed in §114.312 

(concerning Low Emission Diesel Standards) or one of the other compliance options listed 

under this section. This regulation includes all diesel used as fuel for on-road motor 

vehicles and non-road equipment. The TxLED regulations also apply to marine distillate 

fuels when these marine distillate fuels are sold or supplied for use in the 1997 HoustonGalveston-Brazoria (HGB) ozone nonattainment area counties of Brazoria, Chambers, Fort 

Bend, Galveston, Harris, Liberty, Montgomery, and Waller. Diesel producers are also 

allowed to produce TxLED in accordance with an alternative emission reduction plan as 

specified under §114.318 (concerning Alternative Emission Reduction Plan). TxLED 

producers and importers are required to register with the Texas Commission on 

Environmental Quality (TCEQ) as specified under §114.314 (concerning Registration of 

Diesel Producers and Importers) and to submit quarterly reports to the TCEQ as specified 

under §114.316 (concerning Monitoring, Recordkeeping, and Reporting Requirements). 

There are 112 producers and importers currently registered under the TxLED program. 

The total projected nitrogen oxides (NOx) emission reduction benefit from TxLED in 2018 

from all110 counties currently regulated is estimated to be approximately 5.62 tons per 

day (tpd) from on-road vehicle use and 7·54 tpd from non-road equipment use. The 

estimated NOx emission reduction benefit in 2018 from TxLED marine diesel use in the 

eight-county HGB ozone nonattainment area is approximately 0.89 tpd. 

The adopted rulemaking will address the following four issues: 

1. Alternative Diesel Formulation Approval Process 

The TCEQ has currently approved 20 alternative diesel formulations in accordance with 

the testing requirements specified under §114.315 (concerning Approved Test Methods) 

that producers and importers may use to produce TxLED with 18 of these formulations 
Commissioners 

Page 2 

August 3, 2012 

Re: Docket No. 2009-2039-RUL 

requiring the use of a diesel additive. All but one of the additive-based alternative diesel 

formulations for TxLED were approved under the testing procedures specified under 

§114.315(c). In 2011, approximately 52% of all TxLED was reported to have been produced 

using the additive-based alternative diesel formulations approved by the TCEQ. 

Approximately 30% of all TxLED in 2011 was reported to have been produced using an 

additive-based alternative diesel formulation for California diesel approved by the 

California Air Resources Board (CARB) that producers are allowed to use under 

§114.312(e) to comply with TxLED standards. 

The current TCEQ process to evaluate an alternative diesel formulation for TxLED under 

§114.315(c) includes review and approval of test protocols prior to emissions testing, 

observation of the emissions testing at the testing facilities, review of the final test reports 

from the testing facilities describing the results of the emissions testing, and determining 

whether the emissions test results satisfy the criteria specified in §114.315(c) that allows 

the TCEQ to approve the formulation. The TCEQ is also required to request the United 

States Environmental Protection Agency's (EPA) consultation when proposing to approve 

an alternative diesel formulation for TxLED. 

The TCEQ approval process specified in §114.315(c) has resulted in fiscal and staff resource 

challenges for the agency. The professional services needed to validate the emissions 

testing data and to physically observe the emissions testing being performed for approval 

purposes is costing the TCEQ approximately $20,000 per application. The adopted 

revisions to §114.315 will remove the test procedures in §114.315(c) in order to more 

efficiently utilize agency resources associated with the review, physical testing, and 

approval process. In addition, the adopted rule revisions will remove the TCEQ approval 

option currently specified in §114.315(d) allowing the testing of alternative diesel fuel 

formulations through the EPA's Environmental Technology Verification (ETV) Program, 

which the EPA has discontinued. The other TCEQ approval option currently specified 

under §114.315(d), which specifies criteria for using the Unified Model that was developed 

by the EPA specifically for the TxLED program, will remain as the only TCEQ method for 

approving alternative diesel fuel formulations. Companies will also have the option of 

seeking CARB approval. Also, revising the rules to grandfather all alternative diesel 

formulations approved prior to April1, 2012, will maintain market stability and address 

concerns from vendors with previously approved products. 

2. Designated Alternative Limits 

Section 114.312(e) allows diesel fuel produced to comply with specific California 

regulations for diesel fuel to be used for compliance with the TxLED requirements, 

including diesel fuel produced under the designated equivalent limits specified under Title 

13 California Code of Regulations (CCR) §2282(h)(1). Although this subsection was 

adopted in March 2005, it does not appear that many producers in Texas are taking 

advantage of the flexibility provided by these parameters. The adopted rule revisions 

amend §114.313 (relating to Designated Alternative Limits) to include the same fuel 

property limits specified in 13 CCR §2282(h)(1) as designated alternative limits that 

producers may use to produce TxLED and will provide further clarification of an 
Commissioners 

Page3 

August 3, 2012 

Re: Docket No. 2009-2039-RUL 

underutilized flexibility in the TxLED program while ensuring equivalent emission 

reductions. 

3. Alternative Emission Reduction Plans 

The TxLED regulations allow producers to use diesel offset credits from early gasoline 

sulfur reductions as a compliance option under the alternative emission reduction plan 

(AERP) provisions specified under §114.318. However, the ability to use diesel offset 

credits in the ozone nonattainment counties specified under §114.319(b)(1)- (3) expired 

December 31, 2008, and expired in the other 90 TxLED counties on December 31, 2010. 

The adopted rule revisions to §114.318 will remove the expired provisions pertaining to the 

use of early gasoline sulfur reduction credits as a methodology option for AERP 

compliance and will simplify this section of the rules. 

4· Administrative 

The TxLED regulations contain several administrative compliance deadlines that have 

expired and other administrative requirements relating to registration and reporting that 

are outdated or need further clarification. The adopted rule revisions to §114.6 will amend 

the definitions of final blend, further process, produce, producer, and production facility to 

clarify that only the person or company that owns or operates the production facility 

producing the final blend of diesel fuel is considered a producer and is therefore required 

to register and comply with the other TxLED requirements. The adopted revisions to 

§114.314 and §114.316 will include registration and quarterly reporting requirements for 

production facilities and will enhance TCEQ's compliance monitoring abilities and will 

provide further clarification that only the owners and operators of production facilities are 

considered producers under the TxLED program. 

Scope of the rulemaking: 

The adopted rule revision will amend Chapter 114 as follows: 

• amends §114.6 to repeal the definition of designated alternative limit as needed for 

consistency with the adopted new §114.313; repeals the definition of motor vehicle fuel; 

renumbers and revises the definitions of bulk plant, further process, import, import 

facility, importer, produce, producer, and production facility to replace the term 

"motor vehicle fuel" with the terms "gasoline" or "diesel fuel" as needed for consistency 

and clarity; and makes other clarifying changes to the definitions of additive, diesel 

fuel,final blend,further process, gasoline, low emission diesel, motor vehicle, nonroad equipment, produce, producer, production facility, and retail dispensing outlet 

as needed for consistency with other changes to this subchapter; 

• amends §114.312 to make changes needed for accuracy and consistency with the 

adopted changes to §114.313 and §114.315; removes language limiting the acceptance of 

CARE-approved alternative diesel fuel formulations to only those approved on or 

before January 18, 2005, in order to allow the use of new alternative diesel fuel 

formulations approved by CARE in the future; and cites the current effective date of the 

California diesel fuel regulations relevant to this section; 

• repeals the existing §114.313 and adopts a new §114.313 that will establish new 

designated alternative limits that have the same fuel property limits as currently 
Commissioners 

Page4 

August 3, 2012 

Re: Docket No. 2009-2039-RUL 

specified in 13 CCR §2282(h)(1) to provide additional flexibility to the TxLED program 

while ensuring equivalent emission reductions; 

• amends §114.314 to remove expired registration requirements; requires all new 

producers and importers to register by no later than 45 days after the first date that 

they begin to provide TxLED to the affected counties; requires producers and importers 

to provide information on ea,ch production facility and import facility from which 

TxLED is produced or imported; and makes other clarifying changes as needed to 

enhance and simplify the registration process; 

• amends §114.315 to remove the supplementary test methods for viscosity and flash 

point in subsection (a); removes the alternative diesel formulation test procedures in 

subsection (c) and the option for testing alternative diesel fuel formulations through the 

EPA's ETV program in subsection (d) to clarify that alternative diesel fuel formulations 

will only be approved through the provision currently specified under subsection (d) for 

using the EPA's Unified Model; specifies that the approvals of all additive-based 

alternative diesel fuel formulations approved prior to Apri11, 2012, and thereafter, will 

be subject to revocation if the composition of the additive is found to be altered; and 

adds a subsection (e) to allow all alternative diesel formulations approved by the TCEQ 

prior to Apri11, 2012, to remain in effect; 

• amends §114.316 to make clarifying changes to the reporting requirements as needed 

for accuracy and consistency with the proposed changes to §§114.313 - 114.315 and 

114.318; and specifies the sampling and analysis requirements for specific fuel 

properties for TxLED produced under §§114.312(a), (e), and (f), 114.313, and 114.318; 

• amends §114.317 to make clarifying changes as needed for accuracy and consistency 

with the adopted changes to §114.316 and §114.319; 

• amends §114.318 to remove the provisions pertaining to the calculation and use of early 

gasoline sulfur reduction credits as a methodology option for AERP compliance; 

requires AERPs that use the Unified Model to calculate compliance based on the 

average fuel properties determined each calendar quarter instead of yearly as currently 

required; and allows producers to calculate the average fuel properties used in the 

Unified Model based on the fuel properties of diesel sold or supplied for use in all 

affected counties instead of specific groups of counties as currently required; and 

• amends §114.319 to remove expired compliance schedules in subsection (c) and to add 

a new subsection (d) to clarify that if the final compliance date of any provision in the 

section is before the adoption of the current revision to the section and the compliance 

dates are not specified in the current revision, then the compliance date is past and all 

affected persons must be and remain in compliance with the provision as of the original 

compliance date; and makes other clarifying changes as needed for accuracy and 

consistency within the section. 

A.) Summary of what the rulemaking will do: 

The adopted rulemaking will revise definitions; establish new designated alternative limits 

for TxLED fuel properties; remove expired registration requirements and establish new 

registration requirements for identifying production and import facilities; revise approval 

procedures for alternative diesel fuel formulations; specify that the approvals of all 
Commissioners 

Pages 

August 3, 2012 

Re: Docket No. 2009-2039-RUL 

additive-based alternative diesel fuel formulations will be subject to revocation if the 

composition of the additive is found to be altered; allow all alternative diesel formulations 

approved by the TCEQ prior to April1, 2012, to remain in effect; revise reporting 

requirements to include production and import facility data; require alternative emission 

reduction plans using the Unified Model to determine compliance each calendar quarter; 

remove expired early gasoline sulfur reduction credits provisions; and make other 

clarifying changes as needed for accuracy and consistency. 

B.) Scope required by federal regulations or state statutes: 

None. 

C.) Additional staff recommendations that are not required by federal rule or 

state statute: 

Not applicable. 

Statutory authority: 

The revisions are adopted under Texas Water Code (TWC), §5.103, concerning Rules, and 

TWC, §5.105, concerning General Policy, which authorize the commission to adopt rules 

necessary to carry out its powers and duties under the TWC. The revisions are also 

adopted under Texas Health and Safety Code (THSC), §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; 

THSC, §382.011, concerning General Powers and Duties, which authorizes the commission 

to control the quality of the state's air; THSC, §382.012, concerning State Air Control Plan, 

which authorizes the commission to prepare and develop a general, comprehensive plan 

for the control ofthe state's air; THSC, §382.017, concerning Rules, which authorizes the 

commission to adopt rules consistent with the policy and purposes of the Texas Clean Air 

Act; and THSC, §382.202, concerning Vehicle Emissions Inspection and Maintenance 

Program, which authorizes the commission to establish vehicle fuel content standards after 

January 1, 2004, as long as distribution ofTxLED as described in the state implementation 

plan (SIP) is not required prior to February 1, 2005, and authorizes the commission to 

consider alternative emission reduction plans to comply with TxLED requirements. 

Effect on the: 

A.) Regulated community: 

The adopted rulemaking will require diesel producers and importers to register each of 

their production facilities and/ or import facilities that supply diesel fuel for use in the 

TxLED affected counties and to submit quarterly reports regarding the production and/ or 

importation of TxLED from each registered facility. In addition, the adopted rulemaking 

will require additive manufacturers to seek CARB approval for any new additive-based 

alternative diesel formulations. 

B.) Public: 

The public will benefit from improved air quality; however, the adopted regulation has the 

potential for any cost impact on the regulated community to be passed on to consumers. 
Commissioners 

Page6 

August 3, 2012 

Re: Docket No. 2009-2039-RUL 

C.) Agency programs: 

Minimal impact is anticipated on agency resources since compliance is monitored through 

reporting and record reviews. Any cost savings associated with revisions to the alternative 

diesel formulation approval procedures will be reallocated to other air compliance 

activities. 

Stakeholder meetings: 

Stakeholder meetings were held on September 1, 2011, and November 1, 2011, to discuss 

the potential revisions to the TxLED regulations; and informal comments were accepted 

for a two-week period following each of the meetings. The stakeholder meetings were open 

participation. 

The stakeholders' informal comments were considered during the development of this 

adoption; however, written responses to those comments are not included in this rule 

preamble. 

Public comment: 

The commission scheduled a public hearing for April 26, 2012, at 10:00 a.m. in Building E, 

Room 201S, at the commission's central office located at 12100 Park 35 Circle. However, 

the public hearing was not formally opened for comment and a transcript was not prepared 

because none of the persons present at the hearing location wanted to make comments on 

the record. 

The public comment period closed on April 27, 2012. The commission received comments 

from the Biodiesel Coalition of Texas (BCOT), Good Company Associates, Love's Travel 

Stops and Country Stores, Inc. and the Musket Corporation (Love's/Musket), the National 

Biodiesel Board (NBB), and the EPA. All five commenters were in support of the rule 

changes, and four of the commenters suggested minor non-substantive changes and/or 

requested additional clarification on the rule changes. 

Significant changes from proposal: 

In response to comments by BCOT, Love's/Musket, and NBB relating to biodiesel, 

additional changes were made to the definition of additive in §114.6(1)(B) to further clarify 

that only those substances that have been added to diesel fuel for the purpose of producing 

TxLED would be considered additives under the TxLED program. 

In response to comments by Good Company Associates, additional changes were made to 

the definitions of motor vehicle in §114.6(14) and non-road equipment in §114.6(15) to 

revise the relevant Texas Transportation Code (TIC) citations from TIC, §502.002 to TIC, 

§502.040 and from TIC, §502.006 to TIC, §502.140. These citation changes were needed 

in order to reflect the renumbering of the statute as directed by House Bill 2357, 82nd 

Texas Legislature, 2011. 
Commissioners 

Page7 

August 3, 2012 

Re: Docket No. 2009-2039-RUL 

Potential controversial concerns and legislative interest: 

Diesel additive companies may oppose the changes to the approval procedures for 

alternative diesel fuel formulations since any new additive-based alternative diesel 

formulations for TxLED would have to be approved by the CARE in order to be accepted by 

the TCEQ for use in the TxLED program. 

Does this rulemaking affect any current policies or require development of 

new policies? 

The adopted rulemaking affects one current TCEQ policy, i.e., requiring TCEQ observers to 

be present during the emissions testing being performed for the approval of an alternative 

diesel fuel formulation for TxLED. This policy is no longer required under the adopted 

rulemaking. 

What are the consequences if this rulemaking does not go forward? Are there 

alternatives to rulemaking? 

The consequence of not adopting the proposed rulemaking will be that the TCEQ will 

continue to implement the current TxLED regulations that will require a continued cost of 

approximately $20,000 per TxLED alternative diesel formulation approval application for 

the professional services needed to validate the emissions testing data and to physically 

observe the emissions testing being performed for approval purposes. The TCEQ has 

reviewed 32 TxLED alternative diesel formulation approval applications since the program 

began in 2005 at a cost to the state of approximately $618,954. The TCEQ approved 18 of 

the 32 reviewed applications and provided conditional approvals for two other applications 

that were later rescinded after additional testing was conducted. 

The alternatives to adopting the proposed rulemaking would be: 

• repeal the TxLED rules entirely and rely on federal diesel regulations to achieve 

emission reductions. However, as the federal rule focuses on sulfur limits and 

particulate emissions, the TCEQ would need to address potential Federal Clean Air Act 

backsliding provisions (Section no(l) demonstration) for the NOx emission reductions 

currently modeled in the SIP for the TxLED rules; and 

• maintain the status quo and continue to implement the current TxLED rules. 

Key points in the adoption rulemaking schedule: 

Texas Register proposal publication date: March 23, 2012 

Anticipated Texas Register publication date: September 7, 2012 

Anticipated effective date: September 13, 2012 

Six-month Texas Register filing deadline: September 24, 2012 

Agency contacts: 

Morris Brown, Rule Project Manager, 239-1438, Air Quality Division 

John Minter, Staff Attorney, 239-0663 

Charlotte Horn, Texas Register Coordinator, 239-0779 

Attachments 
Commissioners 

PageS 

August 3, 2012 

Re: Docket No. 2009-2039-RUL 

cc: Chief Clerk, 2 copies 

Executive Director's Office 

Susana M. Hildebrand, P.E. 

Anne Idsal 

Curtis Seaton 

Tucker Royall 

Office of General Counsel 

Morris Brown 

Charlotte Horn 
EVALUATION OF TESTIMONY 

The Texas Commission on Environmental Quality (TCEQ, agency, or commission) 

adopts the amendments to §§114.6, 114.312, and 114.314- 114.319; the repeal of 

§114.313; and new §114.313. 

Amended §114.6 is adopted with change to the proposed text as published in the March 

23, 2012, issue of the Texas Register (37 TexReg 2012). Sections 114.312, and 114.314-

114.319; the repeal of §114.313; and new §114.313 are adopted without changes to the 

proposed text and will not be republished. 

The adopted revisions will be submitted to the United States Environmental Protection 

Agency (EPA) as a revision to the state implementation plan (SIP). 

Background and Summary of the Factual Basis for the Adopted Rules 

The current state regulations for Texas low emission diesel (TxLED) under Chapter 114 

require that all diesel as defined under §114.6 that is sold or supplied for use in a 

compression-ignition engine operating in any of the 110 central and eastern Texas 

counties listed in §114.319 must comply with the specifications for aromatic 

hydrocarbons and cetane number as listed in §114.312 or one of the other compliance 

options listed under this section. This regulation includes all diesel used as fuel for onroad motor vehicles and non-road equipment. The TxLED regulations also apply to 

marine distillate fuels, i.e., Marine Distillate fuel X (DMX), Marine Distillate fuel A 

(DMA), and Marine Gas Oil (MGO), when these marine distillate fuels are used in the 

1 
1997 Houston-Galveston-Brazoria (HGB) ozone nonattainment area counties of 

Brazoria, Chambers, Fort Bend, Galveston, Harris, Liberty, Montgomery, and Waller. 

Diesel producers are also allowed to produce TxLED in accordance with an alternative 

emission reduction plan (AERP) as specified under §114.318. TxLED producers and 

importers are required to register with the TCEQ as specified under §114.314 and to 

submit quarterly reports to the TCEQ as specified under §114.316. There are 112 

producers and importers currently registered under the TxLED program. The total 

nitrogen oxides (NOx) emission reduction benefit from TxLED in 2018 from all11o 

counties currently regulated is estimated to be approximately 5.62 tons per day (tpd) 

from on-road vehicle use and 7·54 tpd from non-road equipment use. The estimated 

NOx emission reduction benefit in 2018 from TxLED marine diesel in the 1997 eightcounty HGB ozone nonattainment area is approximately 0.89 tpd. 

The adopted rulemaking will address the following issues. 

Alternative Diesel Formulations 

The TCEQ has currently approved 20 alternative diesel formulations in accordance with 

the testing requirements specified under §114.315 that producers and importers may use 

to produce TxLED, with 18 of these formulations requiring the use of a diesel additive. 

All but one of the additive-based alternative diesel formulations for TxLED were 

approved under the testing procedures specified under §114.315(c). In 2011, 

approximately 52% of all TxLED was reported to have been produced using the additivebased alternative diesel formulations approved by the TCEQ. Approximately 30% of all 

TxLED in 2011 was reported to have been produced using an additive-based alternative 

2 
diesel formulation for California diesel approved by the California Air Resources Board 

(CARB) that producers are allowed to use under §114.312(e) to produce TxLED. 

The TCEQ process to approve an alternative diesel formulation for TxLED under 

§114.315(c) includes review and approval of test protocols prior to emissions testing, 

observation of the emissions testing at the testing facilities, review of the final test 

reports from the testing facilities describing the results of the emissions testing, and 

determining whether the emissions test results satisfy the criteria specified in 

§114.315(c) that allows the TCEQ to approve the formulation. The TCEQ is also required 

to request the EPA's consultation when proposing to approve an alternative diesel 

formulation for TxLED. 

The TCEQ approval and review process specified in §114.315(c) has resulted in fiscal and 

staff resource challenges for the agency. The professional services needed to validate the 

emissions testing data and to physically observe the emissions testing being performed 

for approval purposes is costing the TCEQ approximately $2o,ooo per application. 

The adopted rulemaking will remove the alternative diesel fuel formulation test 

procedures in §114.315(c) and the option under §114.315(d) for allowing the testing of 

these formulations through the EPA's Environmental Technology Verification (ETV) 

Program, which the EPA has discontinued. The other approval option currently specified 

under §114.315(d), which specifies criteria for using the Unified Model that was 

developed by the EPA specifically for the TxLED program, will remain as the only TCEQ 

method for approving alternative diesel formulations. Acceptance of alternative diesel 

3 
formulations approved by CARB as allowed under §114.312(e) will also continue. The 

adopted rulemaking will greatly lessen the TCEQ's fiscal and staff resource needs in the 

physical testing aspects of the alternative diesel formulation approval process without 

significantly limiting TxLED compliance options. 

Designated Alternative Limits 

The current TxLED regulations specified in §114.312(e) allow diesel fuel produced to 

comply with specific California regulations for diesel fuel to be used for compliance with 

the TxLED requirements including diesel fuel produced under the designated equivalent 

limits specified under Title 13 California Code of Regulations (13 CCR) §2282(h)(1). 

Although this subsection was adopted in March 2005, it does not appear that many 

producers in Texas are taking advantage of the flexibility provided by these parameters. 

The adopted rulemaking will repeal the current rules in §114.313 and simultaneously 

adopt a new §114.313 that will establish new designated alternative limits with the same 

fuel property limits specified in 13 CCR §2282(h)(1) that producers may use to produce 

TxLED. This adopted action will provide further clarification of an underutilized 

flexibility in the TxLED program while ensuring equivalent emission reductions. 

Alternative Emission Reduction Plans 

The current TxLED regulations allow producers to use diesel offset credits from early 

gasoline sulfur reductions as a compliance option under the AERP provisions specified 

under §114.318. However, the ability to use diesel offset credits in the ozone 

nonattainment counties specified under §114.319(b)(1)- (3) expired December 31, 2008, 

and expired in the other 90 TxLED counties on December 31, 2010. The adopted 

4 
rulemaking will remove the expired provisions specified under §114.318 pertaining to 

the use of early gasoline sulfur reduction credits as a methodology option for AERP 

compliance. 

Administrative 

The current TxLED regulations contain several administrative compliance deadlines 

that have expired and other administrative requirements relating to registration and 

reporting that are outdated or need further clarification. The adopted rulemaking will 

revise definitions in §114.6 to clarify that only the person or company that owns or 

operates the production facility that is producing the final blend of diesel fuel is 

considered a producer and is therefore required to register and comply with the other 

TxLED requirements. In addition, the adopted rulemaking will revise the registration 

requirements in §114.314 to remove expired provisions and to add new requirements for 

the registration of production and import facilities. The adopted rulemaking will also 

make other clarifying changes to the administrative provisions of the rules as needed for 

accuracy and consistency. 

Section by Section Discussion 

To conform to TCEQ and Texas Register formatting requirements, non-substantive 

revisions will be made throughout the adopted amendments to correct citations, 

acronym usage, and other minor issues. 

§114.6, Low Emission Fuel Definitions 

The adoption will amend §114.6 to remove the definition of designated alternative limit 

5 
as needed for consistency with adopted new §114.313; remove the definition of motor 

vehicle fuel; renumber and revise the definitions of bulk plant, bulk 

purchaser/consumer, further process, import, import facility, importer, produce, 

producer, and production facility to replace the term, "motor vehicle fuel," with the 

terms, "gasoline" or "diesel fuel," as needed for consistency and to make other changes 

to these terms as needed to clarify that only the person or company that owns or 

operates the production facility that is producing the final blend of diesel fuel is 

considered a producer and is therefore required to register and comply with all TxLED 

requirements. The adoption will also make changes to clarify the definitions of additive, 

diesel fuel, final blend, gasoline, low emission diesel, motor vehicle, non-road 

equipment, and retail dispensing outlet. 

In response to public comment, the adoption will make additional changes to the 

definition of additive in §114.6(1)(B) to further clarify that only those substances that 

have been added to diesel fuel for the purpose of producing TxLED would be considered 

additives under the TxLED program. Also in response to public comment, the adoption 

will further amend the definitions of motor vehicle in §114.6(14) and non-road 

equipment in §114.6(15) to revise the relevant Texas Transportation Code (TIC) 

citations from TIC, §502.002 to TIC, §502.040 and from TIC, §502.006 to TIC, 

§502.140. These citation changes are needed in order to reflect the renumbering of the 

statute as directed by House Bill 2357, 82nd Texas Legislature, 2011. 

§114.312, Low Emission Diesel Standards 

The adoption will amend §114.312 to make changes needed for accuracy and consistency 

6 
with the adopted new §114.313 and the adopted revisions to §114.315. The adoption will 

amend §114.312 to remove language limiting the acceptance of CARE-approved 

alternative diesel fuel formulations to only those approved on or before January 18, 

2005, to allow the use of new alternative diesel fuel formulations approved by CARE in 

the future. The adoption will also amend §114.312 to cite the current effective date of the 

California diesel regulations relevant to this section. 

§114.313, Designated Alternative Limits 

The adoption will repeal existing §114.313 and adopt a new §114.313 that will establish 

new designated alternative limits that have the same fuel property limits as currently 

specified in California regulations (13 CCR §2282(h)(1)) to provide further clarification 

of an underutilized flexibility in the TxLED program while ensuring equivalent emission 

reductions. 

§114.314, Registration of Diesel Producers and Importers 

The adoption will amend §114.314 to remove expired registration requirements and to 

require all new producers and importers to register by no later than 45 days after the 

first date that they begin to provide TxLED to the affected counties listed in §114.319. In 

addition, the adoption will amend §114.314 to require producers and importers to 

provide information on each production facility and import facility from which TxLED is 

produced or imported. The adopted registration requirements will provide further 

clarification that only owners and operators of production facilities are considered 

producers subject to the TxLED regulations. The adoption will make other clarifying 

changes to §114.314 as needed to enhance and simplify the registration process. 

7 
§114.315, Approved Test Methods 

The adoption will amend §114.315 to remove the alternative diesel formulation test 

procedures in subsection (c) to clarify that alternative diesel fuel formulations will only 

be approved through the provisions currently specified under subsection (d). The 

adoption will also amend §114.315 to remove the option for allowing testing of an 

alternative diesel fuel formulation through the EPA's ETV Program, which the EPA has 

discontinued. The adoption will also amend §114.315 to remove the supplementary test 

methods for viscosity and flash point in subsection (a) for consistency with the changes 

to subsection (c). 

The adoption will also amend §114.315 to specify that the approvals of all additive-based 

alternative diesel fuel formulations approved prior to April1, 2012, and thereafter will 

be subject to revocation if the composition of the additive is found to be altered. 

Producers using an additive-based alternative diesel formulation will be required to 

discontinue use of the formulation within 45 days of the date of revocation. In addition, 

the adoption will amend §114.315 to add a new subsection (e) to specify that all 

alternative diesel fuel formulations approved by the executive director prior to April1, 

2012, may continue to be used for compliance. 

§114.316, Monitoring, Recordkeeping, and Reporting Requirements 

The adoption will amend §114.316 to make clarifying changes to the reporting 

requirements as needed for accuracy and consistency with the adopted changes to 

§§114.313 - 114.315, and 114.318. The adoption will also amend §114.316 to specify the 

8 
sampling and analysis requirements for the specific fuel properties for TxLED produced 

under §§114.312, 114.313, and 114.318. 

§114.317, Exemptions to Low Emission Diesel Requirements 

The adoption will amend §114.317 to make clarifying changes as needed for accuracy and 

consistency with the adopted changes to §114.316 and §114.319. 

§114.318, Alternative Emission Reduction Plan 

The adoption will amend §114.318 to remove the provisions pertaining to the calculation 

and use of early gasoline sulfur reduction credits as a methodology option for AERP 

compliance. In addition, the adoption will amend §114.318(b) to require AERPs that use 

the Unified Model to calculate compliance based on the average fuel properties 

determined each calendar quarter, instead of yearly as currently required. The adoption 

will also amend §114.318(b) to allow producers to calculate the average fuel properties 

used in the Unified Model based on the fuel properties of diesel sold or supplied for use 

in all affected counties, instead of specific groups of counties as currently required. 

§114.319, Affected Counties and Compliance Dates 

The adoption will amend §114.319 to remove expired compliance schedules in 

subsection (c) and to modify subsection (d) to clarify that if the final compliance date of 

any provision in the section is before the adoption of the current revision to the section 

and the compliance dates are not specified in the current revision, then the compliance 

date is past and all affected persons must be and remain in compliance with the 

provision as of the original compliance date. The adoption will also amend §114.319 to 

9 
make other clarifying changes as needed for accuracy and consistency within the section. 

Final Regulatory Impact Analysis Determination 

The commission reviewed the adopted rulemaking considering the regulatory analysis 

requirements of Texas Government Code, §2001.0225, and determined that the 

rulemaking does not meet the definition of a "major environmental ru,le." 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 adopted revisions to Chapter 114, Subchapter H, will remove the alternative diesel 

fuel formulation test procedures in §114.315(c) and the option for testing for approval 

through the EPA's ETV program, which the EPA has discontinued, thereby only allowing 

approval of alternative diesel formulations through the other two approval options 

currently allowed that either specify criteria for using the Unified Model that was 

developed by the EPA specifically for the TxLED program or accept alternative diesel 

formulations approved by CARB. The adoption will lessen the TCEQ's fiscal and staff 

resource needs in the physical testing aspects of the alternative diesel formulation 

approval process. 

This rulemaking action will repeal existing §114.313 and adopt a new §114.313 that will 

establish new designated alternative limits with the same fuel property limits specified 

10 
in California regulations (13 CCR §2282(h)(1)) that producers may use to produce 

TxLED. This adopted action will provide added flexibility to the TxLED program while 

ensuring equivalent emission reductions. The rulemaking will remove the expired 

provisions specified under §114.318 pertaining to the use of early gasoline sulfur 

reduction credits as a methodology option for AERP compliance. 

Finally, the current TxLED regulations contain several administrative compliance 

deadlines that have expired and other administrative requirements relating to 

registration and reporting that are outdated or need further clarification. The adopted 

rulemaking will clarify the administrative provisions of the rules necessary for accuracy 

and consistency. 

Due to the limited nature and scope of these amendments, this action will not adversely 

affect, in a material way, the economy or a sector of the economy, productivity, 

competition, or jobs. The adopted rule changes continue to provide alternatives and 

flexibility to producers of TxLED and additives in order to meet the fuel requirements. 

The amendments to the rule do not affect the NOx reductions expected from the sale 

and use of TxLED in Texas. Therefore, adverse impacts to the environment or public 

health and safety in the state will not occur. 

The TxLED rules are part of the strategy to reduce NOx emissions necessary for 

designated areas in the state to be able to demonstrate attainment and maintenance of 

the National Ambient Air Quality Standards (NAAQS) for ozone. This strategy is 

intended to protect the environment or reduce risks to human health from 

11 
environmental exposure to ozone by reducing NOx emissions that help form ozone. 

Assuming the adopted revisions constitute a major environmental rule, the action is not 

subject to the regulatory analysis provisions of Texas Government Code, §2001.0225(b), 

because the rule making does not meet any of the four applicability requirements. 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; 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. 

Specifically, this rulemaking action will make improvements to the alternative 

formulation and additive approval process. The TxLED program was developed as part 

of the control strategy to meet the NAAQS for ozone set by the EPA under Federal Clean 

Air Act (FCAA), 42 United States Code (USC), §7409, and therefore meet a federal 

requirement. The adopted rulemaking implements requirements of 42 USC, §7410, 

which requires states to adopt a SIP that provides for "implementation, maintenance, 

and enforcement" of the NAAQS in each air quality control region of the state. While 42 

USC, §7410 does not require specific programs, methods, or reductions to meet and 

maintain the standard, SIPs must include "enforceable emission limitations and other 

control measures, means or techniques (including economic incentives such as fees, 

marketable permits, and auctions of emissions rights), as well as schedules and 

timetables for compliance as may be necessary or appropriate to meet the applicable 

12 
requirements of this chapter," (meaning 42 USC, Chapter 85, Air Pollution Prevention 

and Control). It is true that the FCAA does require some specific measures for SIP 

purposes, such as the inspection and maintenance program, but those programs are the 

exception, not the rule, in the SIP structure of 42 USC, §7410. The provisions of the 

FCAA recognize that states are in the best position to determine what programs and 

controls are necessary or appropriate in order to meet and maintain the NAAQS. This 

flexibility allows states, affected industry, and the public to collaborate on the best 

methods to attain the NAAQS for the specific regions in the state. Even though the FCAA 

allows states to develop their own programs, this flexibility does not relieve a state from 

developing a program that meets the requirements of 42 USC, §7410. Thus, while 

specific measures are not generally required, the emission reductions are required. 

States are not free to ignore the requirements of 42 USC, §7410, and must develop 

programs to assure that the nonattainment areas of the state would be brought into 

attainment on schedule and to maintain the NAAQS after redesignation. The adopted 

revisions will help areas in the state attain and maintain the 1997 eight-hour ozone 

NAAQS as expeditiously as practicable. 

The requirement to provide a fiscal analysis of proposed regulations in the Texas 

Government Code was amended by Senate Bill (SB) 633 during the 75th Legislature, 

1997. The intent of SB 633 was to require agencies to conduct a regulatory impact 

analysis of extraordinary rules. These rules are identified in the statutory language as 

major environmental rules that would have a material adverse impact and would exceed 

a requirement of state law, federal law, or a delegated federal program, or are adopted 

solely under the general powers of the agency. With the understanding that this 

13 
requirement would seldom apply, the commission provided a cost estimate for SB 633 

that concluded "based on an assessment of rules adopted by the agency in the past, it is 

not anticipated that the bill would have significant fiscal implications for the agency due 

to its limited application." The commission also noted that the number of rules that 

would require assessment under the provisions of the bill was not large. This conclusion 

was based, in part, on the criteria set forth in the bill that exempted proposed rules from 

the full analysis unless the rule was a major environmental rule that exceeds a federal 

law. As discussed previously in this preamble, 42 USC, §7410 does not require specific 

programs, methods, or reductions in order to meet and maintain the NAAQS; thus, 

states must develop programs for each nonattainment area to ensure that area would 

meet the attainment deadlines. Because of the ongoing need to address nonattainment 

issues, the commission routinely proposes and adopts SIP rules. The legislature is 

presumed to understand this federal scheme. If each rule proposed for inclusion in the 

SIP was considered to be a major environmental rule that exceeds federal law, then 

every SIP rule would require the full regulatory impact analysis contemplated by SB 633. 

This conclusion is inconsistent with the conclusions reached by the commission in its 

cost estimate and by the Legislative Budget Board in its fiscal notes. Because the 

legislature is presumed to understand the fiscal impacts of the bills it passes, and that 

presumption is based on information provided by state agencies and the Legislative 

Budget Board, the commission contends that the intent of SB 633 was only to require 

the full regulatory impact analysis for rules that are extraordinary in nature. While the 

SIP rules would have a broad impact, that impact is no greater than is necessary or 

appropriate to meet the requirements of 42 USC, §7410. For these reasons, rules 

adopted for inclusion in the SIP fall under the exception in Texas Government Code, 

14 
§2001.0225(a), because they are specifically required by federal law. 

In addition, 42 USC, §7502(a)(2) requires attainment as expeditiously as practicable, 

and 42 USC, §7511(a) requires states to submit ozone attainment demonstration SIPs for 

ozone nonattainment areas, such as the HGB and the Dallas-Fort Worth 1997 eight-hour 

ozone nonattainment areas. The commission has consistently applied this construction 

to its rules since this statute was enacted in 1997. Since that time, the legislature has 

revised the Texas Government Code but left this provision substantially un-amended. 

The commission presumes that "when an agency interpretation is in effect at the time 

the legislature amends the laws without making substantial change in the statute, the 

legislature is deemed to have accepted the agency's interpretation." Central Power & 

Light Co. v. Sharp, 919 S.W.2d 485, 489 (Tex. App. Austin 1995), writ denied with per 

curiam opinion respecting another issue, 960 S.W.2d 617 (Tex. 1997); Bullock v. 

Marathon Oil Co., 798 S.W.2d 353,357 (Tex. App. Austin 1990), no writ; Cf. Humble 

Oil & Refining Co. v. Calvert, 414 S.W.2d 172 (Tex. 1967); Sharp v. House of Lloyd, Inc., 

815 S.W.2d 245 (Tex. 1991); Southwestern Life Ins. Co. v. Montemayor, 24 S.W.3d 581 

(Tex. App. Austin 2000), pet. denied; and Coastal Indust. Water Auth. v. Trinity 

Portland Cement Div., 563 S.W.2d 916 (Tex; 1978). 

As discussed previously in this preamble, this rulemaking action implements 

requirements of 42 USC, §7410. Furthermore, there is no contract or delegation 

agreement that covers the topic that is the subject of this action. Therefore, the adopted 

rulemaking does not exceed a standard set by federal law, exceed an express 

requirement of state law, or exceed a requirement of a delegation agreement. Finally, 

15 
this rulemaking action was not developed solely under the general powers of the agency, 

but is authorized by specific sections of Texas Health and Safety Code, Chapter 382 (also 

known as the Texas Clean Air Act), and the Texas Water Code, which are cited in the 

Statutory Authority section of this preamble, including Texas Health and Safety Code, 

§§382.012, 382.017, 382.019, and 382.202. Therefore, the adopted rulemaking does not 

exceed a standard set by federal law, exceed an express requirement of state law, exceed 

a requirement of a delegation agreement, nor is adopted solely under the general powers 

of the agency. 

Based on the foregoing, if this rulemaking action is assumed to be a major 

environmental rule, it is not subject to the regulatory analysis provisions of Texas 

Government Code, §2001.0225(b), because the rulemaking does not meet any of the 

four applicability requirements. 

The commission invited public comment regarding the draft regulatory impact analysis 

determination during the public comment period, but received no comments relating to 

this subject. 

Takings Impact Assessment 

The commission evaluated this adopted rulemaking and performed an analysis of 

whether these adopted revisions to rules constitute a taking under Texas Government 

Code, Chapter 2007. The specific purpose of these adopted rules is to achieve reductions 

in NOx emissions to reduce ozone formation in order to help bring nonattainment areas 

in the state into attainment with the federal NAAQS for ozone and to maintain it. The 

16 
adopted rules will advance this stated purpose by clarifying and simplifying testing 

procedures for additives and alternative fuel formulation approvals, clarifying 

designated alternative limits for TxLED, and updating and adding definitions. 

Promulgation and enforcement of these adopted rules will be neither a statutory nor a 

constitutional taking of private real property. Specifically, the subject rulemaking does 

not affect a landowner's rights in private real property, because this rulemaking does not 

burden (constitutionally); nor restrict or limit the owner's right to property and reduce 

its value by 25% or more beyond that which will otherwise exist in the absence of the 

regulations. These revisions will not place a burden on private real property, because 

this action does not require an investment in the permanent installation of new refinery 

processing equipment. Additive-based alternative fuel formulations can be developed to 

meet TxLED that do not require changes to refinery processes. Additionally, the 

alternative formulation approvals made by the executive director are not property 

rights, and the adopted changes to the rules do not foreclose other approval options to 

meet TxLED for these alternative formulations. Alternative formulations were initially 

developed as a way to provide flexibility for diesel producers and suppliers to meet 

TxLED requirements. 

Furthermore, the commission's analysis indicates that Texas Government Code, Chapter 

2007 does not apply to these adopted rules, because this is an action that is reasonably 

taken to fulfill an obligation mandated by federal law, which is exempt under Texas 

Government Code, §2007.003(b)(4). Specifically, the TxLED requirements were 

developed in order to meet the NAAQS for ozone set by the EPA under 42 USC, §7409. 

States are primarily responsible for ensuring attainment and maintenance of NAAQS 

17 
once the EPA has established them. Pursuant to 42 USC, §7410, and related provisions, 

states must submit, for approval by the EPA, SIPs that provide for the attainment and 

maintenance of NAAQS through control programs directed to sources of the pollutants 

involved. Therefore, one purpose of this rulemaking action is to provide additional 

clarification and flexibility in implementing the TxLED program necessary for the state's 

nonattainment areas to meet the air quality standards established under federal law as 

NAAQS. Attainment and maintenance of the 1997 ozone standard required substantial 

reductions in NOx emissions as well as volatile organic compounds emissions. This 

rulemaking is only one step among many necessary for attaining and maintaining the 

1997 ozone standard. 

In addition, Texas Government Code, §2007.003(b)(13), states that Chapter 2007 does 

not apply to an action that: 1) is taken in response to a real and substantial threat to 

public health and safety; 2) is designed to significantly advance the health and safety 

purpose; and 3) does not impose a greater burden than is necessary to achieve the health 

and safety purpose. Although the rules do not directly prevent a nuisance or prevent an 

immediate threat to life or property, they do prevent a real and substantial threat to 

public health and safety and significantly advance the health and safety purpose. This 

action is taken in response to areas of the state exceeding the federal NAAQS for ozone, 

which adversely affects public health, primarily through irritation of the lungs. The 

action significantly advances the health and safety purpose by improving the TxLED 

program that reduces ozone levels in the nonattainment areas and other areas of the 

state that contribute to high ozone levels in these areas. Consequently, these adopted 

rules meet the exemption in Texas Government Code, §2007.003(b)(13). This 

18 
rule making action therefore meets the requirements of Texas Government Code, 

§2007.003(b)(4) and (13). Forthese reasons, the adopted rulemaking does not 

constitute a taking under Texas Government Code, Chapter 2007. 

Consistency with the Coastal Management Program 

The commission determined the adopted 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 §sos.u(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 determined that the adopted 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. The adopted rulemaking will ensure that the amendments comply with 40 Code 

of Federal Regulations (CFR) Part 50, National Primary and Secondary Air Quality 

Standards, and 40 CFR Part 51, Requirements for Preparation, Adoption, and Submittal 

of Implementation Plans. This rulemaking action is consistent with CMP goals and 

policies, in compliance with 31 TAC §505.22(e). 

19 
The commission invited public comment regarding the consistency with the CMP during 

the public comment period, but received no comments relating to this subject. 

Public Comment 

The commission scheduled a public hearing for April 26, 2012, in Austin. However, 

since no one registered to provide comments, the public hearing was not formally 

opened. The public comment period closed on April 27, 2012. 

The commission received written comments from the Biodiesel Coalition of Texas 

(BCOT), Good Company Associates, Love's Travel Stops and Country Stores, Inc. and 

the Musket Corporation (Love's/Musket), the National Biodiesel Board (NBB), and the 

EPA. All five commenters were in support of the rule changes and four of the 

commenters suggested minor non-substantive changes and/or requested additional 

clarification on the rule changes. 

Response to Comments 

Good Company Associates commented that the references to the TIC, §502.002 and 

§502.006 as cited in §114.6 appeared to be incorrect. 

20 
The commission agrees and made changes to the definitions of motor 

vehicle in §114.6(14) and non-road equipment in §114.6(15) to revise the 

relevant TTC citations from TTC, §502.002 to TTC, §502.040 and from TTC, 

§502.006 to TTC, §502.140. These citation changes were needed in order to 

reflect the renumbering of the statute as directed by House Bill 2357, 82nd 

Texas Legislature, 2011. 

The EPA commented that the only provision to remove an additive from the approved 

list of alternative diesel fuel formulations is if the manufacturer changes the formulation 

and requested an explanation on how the TCEQ would determine that the composition 

of the additive has been changed. 

The TCEQ can periodically request the EPA provide copies of the most 

current EPA fuel additive registration letters for all of the additives used in 

the TCEQ-approved alternative diesel formations to determine if any 

changes have been made to their additive compositions. The approval 

notifications of all TCEQ-approved alternative diesel fuel formulations 

specify the EPA fuel additive registration number and additive name as 

registered with the EPA in accordance with 40 CFR Part 79 for the additive 

used in the emissions testing of the approved formulation. Any change to 

the chemical composition of a registered fuel additive requires the additive 

manufacturer to notify the EPA with the changes. If the EPA determines the 

changes are significant, the altered fuel additive will be required to have a 

new registration with the EPA, which will result in a new registration 

21 
number being issued for the altered additive. Consequently, since the 

original additive specification in the TCEQ-issued approval notification 

would no longer be valid, the TCEQ would then have justification to revoke 

the approval of the alternative diesel fuel formulation. The commission 

made no changes to the rules in response to this comment. 

Good Company Associates commented that §114.318(b) seems to imply that the Unified 

Model applies to "average fuel properties of all on-road diesel fuel" but later requires 

achieved savings of NOx for both on and off-road fuels. 

The AERP demonstration requirements specified in §114.318(b) apply to 

both the average fuel properties of on-road diesel fuel and the average fuel 

properties of non-road diesel fuel. The commission made no changes to the 

rules in response to this comment. 

BCOT, Love's/Musket, and NBB commented that they support the changes to the 

definition of additive in §114.6(1), which they understand will result in the TCEQ no 

longer regulating biodiesel as an additive subject to the requirements of the TxLED 

program. 

The commission appreciates the support and has made additional changes 

to the definition of additive in §114.6(1)(B) to further clarify that only those 

substances that have been added to diesel fuel for the purpose of producing 

TxLED would be considered additives under the TxLED program. Biodiesel 

22 
would not be considered an additive under the revised definition since 

biodiesel is generally only added to diesel fuel by diesel fuel producers to 

comply with requirements of the federal renewable fuels standards 

specified in 40 CFR Part So, Subpart M. 

BCOT and Love's/Musket requested that the TCEQ update the regulatory guidance 

document for the TxLED program as soon as possible to accurately reflect the TCEQ's 

position that biodiesel will no longer be regulated as an additive under the TxLED rules. 

Changes to regulatory guidance documents are beyond the scope of this 

rulemaking. However, the TCEQ does intend to revise its regulatory 

guidance document for the TxLED program in a timely manner to reflect all 

of the rule changes including the changes relating to alternative diesel fuel 

formulations, AERPs, and that biodiesel is no longer considered an additive 

under the TxLED program. The commission made no changes to the rules 

in response to these comments. 

23 
RECOMMENDATION 
Statutory Authority 

SUBCHAPTERA: DEFINITIONS 

§114.6 

The amendment is adopted under Texas Water Code (TWC), §5.103, concerning Rules, 

and TWC, §5.105, concerning General Policy, which authorize the commission to adopt 

rules necessary to carry out its powers and duties under the TWC. The amendment is 

also adopted under Texas Health and Safety Code (THSC), §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; THSC, §382.011, concerning General Powers and Duties, which authorizes the 

commission to control the quality of the state's air; THSC, §382.012, concerning State 

Air Control Plan, which authorizes the commission to prepare and develop a general, 

comprehensive plan for the control of the state's air; THSC, §382.017, concerning Rules, 

which authorizes the commission to adopt rules consistent with the policy and purposes 

of the Texas Clean Air Act; and THSC, §382.202, concerning Vehicle Emissions 

Inspection and Maintenance Program, which authorizes the commission to establish 

vehicle fuel content standards after January 1, 2004, as long as distribution oflow 

emission diesel (LED) as described in the state implementation plan is not required 

prior to February 1, 2005, and authorizes the commission to consider alternative 

emission reduction plans to comply with LED requirements. 

The adopted amendment implements THSC, §§382.002, 382.011, 382.012, 382.017, and 

382.202. 

1 
§114.6. Low Emission Fuel Definitions. 

Unless specifically defined in Texas Health and Safety Code, Chapter 382, also 

known as the Texas Clean Air Act (TCAA), or in the rules of the commission, the terms 

used in this subchapter have the meanings commonly ascribed to them in the field of air 

pollution control. In addition to the terms that are defined by TCAA, §3.2, and §101.1 of 

this title (relating to Definitions), the words and terms specified in this section, when 

used in Subchapter H of this chapter (relating to Low Emission Fuels), have the 

meanings as defined in this section, unless the context clearly indicates otherwise. 

(1) Additive--Any substance that is intentionally added to gasoline or 

diesel fuel for the purpose of producing a gasoline or diesel fuel in compliance with the 

requirements of Subchapter H of this chapter that is: 

(A) a registered additive with the United States Environmental 

Protection Agency (EPA) in .accordance with 40 Code of Federal Regulations ( CFR) Part 

79 (relating to Registration of Fuels and Fuel Additives); or 

(B) exempted from the EPA registration requirements in 

accordance with 40 CFR Part 79. 

(2) Barrel--A unit of measure equal to 42 United States gallons. 

2 
(3) Bulk plant--An intermediate gasoline or diesel fuel distribution facility 

where gasoline or diesel fuel is stored and then transported for delivery to a bulk 

purchaser/consumer or retail fuel dispensing facility. 

(4) Bulk purchaser/consumer--A person who purchases or otherwise 

obtains gasoline or diesel fuel in bulk and then dispenses it into the fuel tanks of motor 

vehicles owned or operated by the person. 

(5) Common carrier--A person engaged in the transportation of goods or 

products of another person for compensation and is available to the public for hire. 

(6) Diesel fuel--Any middle distillate fuel used in compression-ignition 

internal combustion engines that is commonly or commercially known, sold, or 

represented as: 

(A) Grade No. 1-D or Grade No. 2-D diesel fuel, in accordance with 

the active version of American Society for Testing and Materials (ASTM) D975 

(Standard Specification for Diesel Fuel Oils); or 

(B) Marine Distillate fuel X (DMX), Marine Distillate fuel A (DMA), 

or Marine Gas Oil (MGO) diesel fuel in accordance with the active version of the 

3 
International Organization for Standardization (ISO) 8217 Specifications of Marine 

Fuels. 

(7) Final blend--A distinct quantity of diesel fuel that is introduced into 

commerce as low emission diesel fuel (LED), without further process. 

(8) Further process--To perform any alteration to diesel fuel, including 

distillation, treating with hydrogen; blending, or addition of an additive, for the purpose 

of producing a diesel fuel in compliance with the requirements of Subchapter H, 

Division 2 of this chapter prior to the diesel fuel being introduced into commerce as 

LED. 

(9) Gasoline--Any fuel that is commonly or commercially known, sold, or 

represented as gasoline, in accordance with the active version of American Society for 

Testing and Materials (ASTM) D4814 (Standard Specification for Automotive SparkIgnition Engine Fuel). 

(10) Import--The process by which gasoline or diesel fuel is transported 

into the State of Texas by any means or method whatsoever, including transport via 

pipeline, railway, truck, motor vehicle, barge, boat, or railway tank car. 

(11) Import facility--The stationary gasoline or diesel fuel transfer point 

wherein the importer takes delivery of imported gasoline or diesel fuel and from which 

4 
imported gasoline or diesel fuel is transferred into the cargo tank truck, pipeline, or 

other delivery vessel from which the fuel will be delivered to a bulk plant, bulk 

purchaser/consumer, or retail fuel dispensing facility. 

(12) Importer--Any person, except a person acting as a common carrier, 

who imports gasoline or diesel fuel. 

(13) Low emission diesel fuel (LED)--Any diesel fuel that conforms to the 

requirements specified in §§114.312, 114.313, or 114.318 of this title (relating to Low 

Emission Diesel Standards; Designated Alternative Limits; or Alternative Emission 

Reduction Plan, respectively). 

(14) Motor vehicle--Any self-propelled device powered by a gasoline fueled 

spark-ignition internal combustion engine or a diesel fueled compression-ignition 

internal combustion engine in or by which a person or property is or may be 

transported, and is required to be registered under Texas Transportation Code, 

§502.040 , excluding vehicles registered under Texas Transportation Code, §502.140 . 

(15) Non-road equipment--Any device powered by a gasoline fueled sparkignition internal combustion engine or a diesel fueled compression-ignition internal 

combustion engine that is not required to be registered under Texas Transportation 

Code, §502.040 . 

5 
(16) Produce--Perform the process to convert liquid compounds into 

gasoline or diesel fuel or to further process diesel fuel to create a final blend of LED. 

(17) Producer--Any person who owns, leases, operates, controls, or 

supervises a production facility that produces gasoline or diesel fuel. 

(18) Production facility--Any facility where gasoline or diesel fuel is 

produced or that manufactures liquid fuels by distilling petroleum. 

(19) Retail fuel dispensing outlet--Any establishment where gasoline 

and/or diesel fuel is sold or offered for sale for use in motor vehicles and/or non-road 

equipment, and the fuel is directly dispensed into the fuel tanks of the motor vehicles 

and/or non-road equipment using the fuel. 

(20) Supply--To provide or transfer gasoline or diesel fuel to a physically 

separate facility, vehicle, or transportation system. 

6 
SUBCHAYfER H: LOW EMISSION FUELS 

DIVISION 2: LOW EMISSION DIESEL 

[§114-313] 

Statutory Authority 

The repeal is adopted under Texas Water Code (TWC), §5.103, concerning Rules, and 

TWC, §5.105, concerning General Policy, which authorize the commission to adopt rules 

necessary to carry out its powers and duties under the TWC. The repeal is also adopted 

under Texas Health and Safety Code (THSC), §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; 

THSC, §382.011, concerning General Powers and Duties, which authorizes the 

commission to control the quality of the state's air; THSC, §382.012, concerning State 

Air Control Plan, which authorizes the commission to prepare and develop a general, 

comprehensive plan for the control of the state's air; THSC, §382.017, concerning Rules, 

which authorizes the commission to adopt rules consistent with the policy and purposes 

of the Texas Clean Air Act; and THSC, §382.202, concerning Vehicle Emissions 

Inspection and Maintenance Program, which authorizes the commission to establish 

vehicle fuel content standards after January 1, 2004, as long as distribution oflow 

emission diesel (LED) as described in the state implementation plan is not required 

prior to February 1, 2005, and authorizes the commission to consider alternative 

emission reduction plans to comply with LED requirements. 

The adopted repeal implements THSC, §§382.002, 382.011, 382.012, 382.017, and 

382.202. 

7 
§114.313. Designated Alternative Limits. 

8 
SUBCHAPTER H: LOW EMISSION FUELS 

DIVISION 2: LOW EMISSION DIESEL 

§§114.312, 114.313, 114.314- 114.319 

Statutory Authority 

The amendments and new section are adopted under Texas Water Code (TWC); §5.103, 

concerning Rules, and TWC, §5.105, concerning General Policy, which authorize the 

commission to adopt rules necessary to carry out its powers and duties under the TWC. 

The amendments and new section are also adopted under Texas Health and Safety Code 

(THSC), §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; THSC, §382.011, concerning General 

Powers and Duties, which authorizes the commission to control the quality of the state's 

air; THSC, §382.012, concerning State Air Control Plan, which authorizes the 

commission to prepare and develop a general, comprehensive plan for the control of the 

state's air; THSC, §382.017, concerning Rules, which authorizes the commission to 

adopt rules consistent with the policy and purposes of the Texas Clean Air Act; and 

THSC, §382.202, concerning Vehicle Emissions Inspection and Maintenance Program, 

which authorizes the commission to establish vehicle fuel content standards after 

January 1, 2004, as long as distribution of low emission diesel (LED) as described in the 

state implementation plan is not required prior to February 1, 2005, and authorizes the 

commission to consider alternative emission reduction plans to comply with LED 

requirements. 

The adopted amendments and new section implement THSC, §§382.002, 382.011, 

9 
382.012, 382.017, and 382.202. 

§114.312. Low Emission Diesel Standards. 

· (a) No person shall sell, offer for sale, supply, or offer for supply, dispense, 

transfer, allow the transfer, place, store, or hold any diesel fuel in any stationary tank, 

reservoir, or other container in the counties listed in §114.319 of this title (relating to 

Affected Counties and Compliance Dates) that may ultimately be used to power a diesel 

fueled compression-ignition internal combustion engine in the affected counties that 

does not meet the low emission diesel fuel (LED) standards specified in paragraphs (1) 

and (2) of this subsection. 

(1) The maximum aromatic hydrocarbon content of LED is 10% by volume 

per gallon. 

(2) The minimum cetane number for LED is 48. 

(b) Subsection (a) of this section does not apply to a sale, offer for sale, or supply 

of diesel fuel to a producer where the producer further processes the diesel fuel at the 

producer's production facility prior to any subsequent sale, offer for sale, or supply of 

the final blend of LED. 

10 
(c) Diesel fuel that has been produced to comply with all specifications for a 

Certified Diesel Fuel Formulation as approved by an executive order by the California 

Air Resources Board for compliance with California diesel fuel regulations that were in 

effect as of August 4, 2005, except for those approved for small refinery compliance, or 

diesel fuel that has been produced to meet all specifications for diesel fuel under 

regulations adopted by the California Air Resources Board that were in effect as of 

August 4, 2005, except for those approved for small refinery compliance, may be used to 

satisfy the requirements of subsection (a) of this section. 

(d) Alternative diesel fuel formulations that have been approved by the executive 

director as prescribed in §114.315(c) of this title (relating to Approved Test Methods) 

may be used to satisfy the requirements of subsection (a) of this section. 

§114.313. Designated Alternative Limits. 

(a) Diesel fuel that has been produced to meet all of the designated alternative 

limits specified in subsection (b) of this section may be used to satisfy the low emission 

diesel fuel (LED) requirements specified in §114.312(a) ofthis title (relating to Low 

Emission Diesel Standards). 

(b) The designated alternative limits per gallon of LED are set forth in paragraphs 

(1)- (6) of this subsection: 

11 
(1) An aromatic hydrocarbon content of no greater than 21.0% by weight; 

(2) A polycyclic aromatic hydrocarbon content of no greater than 3.5% by 

weight; 

(3) An American Petroleum Institute gravity index of no less than 36.9; 

(4) A cetane number of no less than 53; 

(5) A nitrogen content of no greater than soo parts per million by weight 

(ppmw); and 

( 6) A sulfur content of no greater than 15 ppmw. 

(c) Compliance with the designated alternative limits specified in subsection (b) 

of this section must be determined by the test methods specified in §114.315(a) of this 

title (relating to Approved Test Methods). 

§114.314. Registration of Diesel Producers and Importers. 

(a) Each producer and importer that sells, offers for sale, supplies, offers to 

supply, dispenses, transfers, allows the transfer, places, stores, or holds any diesel fuel in 

any stationary tank, reservoir, or other container in the affected counties listed in 

12 
§114.319 of this title (relating to Affected Counties and Compliance Dates) that may 

ultimately be used to power a diesel fueled compression-ignition internal combustion 

engine in the affected counties listed in §114.319 of this title shall register with the 

executive director by no later than 45 days after the first date the diesel fuel from its 

production facility or import facility is made available for use in the affected counties 

listed in §114.319 of this title. 

(b) Registration must be submitted on forms prescribed by the executive director 

and must include, at a minimum, the information specified in paragraphs (1) - (5) of this 

subsection: 

(1) the legal business name of the producer or importer, mailing address, 

agency assigned customer reference number, and contact information for the producer 

or importer, or their authorized representative; 

(2) a statement of the estimated total number of barrels oflow emission 

diesel fuel that the producer or importer is planning to produce or import in the 12 

months following the date of registration that the producer or importer intends to sell, 

offer for sale, supply, or offer to supply from its production facility or import facility for 

use in the counties listed in §114.319 of this title; 

(3) the physical address, agency assigned regulated entity reference 

number, and contact information for each production facility or import facility that is 

13 
used to produce or import diesel fuel that may be sold, offered for sale, supplied, or 

offered for supply for use in the affected counties listed in §114.319 of this title; 

(4) any other information determined by the executive director to be 

necessary to identify the persons responsible for the adequacy of diesel supply in the 

affected counties; and 

(5) a signed statement of consent by the registrant that the executive 

director is permitted to collect samples and access documentation and records at any 

production facility or import facility used to produce or import diesel fuel that may 

ultimately be used to power a diesel fueled compression-ignition internal combustion 

engine in the counties listed in §114.319 of this title. 

(c) The executive director shall maintain a listing of all registered producers and 

importers. 

§114.315. Approved Test Methods. 

(a) Compliance with the diesel fuel content requirements of this division must be 

determined by applying the appropriate test methods and procedures specified in the 

active version of American Society for Testing and Materials (ASTM) D975 (Standard 

Specification for Diesel Fuel Oils), or by applying the supplementary test methods and 

procedures specified in paragraphs (1) - (5) of this subsection, as appropriate. 

14 
(1) The aromatic hydrocarbon content may be determined by the active 

version of ASTM Test Method D5186 (Standard Test Method for Determination of 

Aromatic Content and Polynuclear Aromatic Content of Diesel Fuels and Aviation 

Turbine Fuels by Supercritical Fluid Chromatography). The following correlation 

equation must be used to convert the supercritical fluid chromatography (SFC) results 

in mass percent to volume percent: aromatic hydrocarbons expressed in percent by 

volume = 0.916 x (aromatic hydrocarbons expressed in percent by weight) + 1.33. 

(2) The polycyclic aromatic hydrocarbon (also referred to as polynuclear 

aromatic hydrocarbons or P AH) content may be determined by the active version of 

ASTM Test Method D5186 (Standard Test Method for Determination of Aromatic 

Content and Polynuclear Aromatic Content of Diesel Fuels and Aviation Turbine Fuels 

by Supercritical Fluid Chromatography). The correlation equation specified in 

paragraph (1) of this subsection must be used to convert the SFC results in mass percent 

to volume percent. 

(3) The nitrogen content may be determined by the active version of ASTM 

Test Method D4629 (Standard Test Method for Trace Nitrogen in Liquid Petroleum 

Hydrocarbons by Syringe/Inlet Oxidative Combustion and Chemiluminescence 

Detection). 

15 
(4) The American Petroleum Institute (API) gravity index may be 

determined by the active version of ASTM Test Method D287 (Standard Test Method for 

API Gravity of Crude Petroleum and Petroleum Products (Hydrometer Method)). 

(5) The distillation temperatures may be determined by the active version 

of ASTM Test Method D86 (Standard Test Method for Distillation of Petroleum 

Products at Atmospheric Pressure). 

(b) Modifications to the testing methods and procedures in this section may be 

approved by the executive director after consultation with and agreement by the United 

States Environmental Protection Agency (EPA). 

(c) The executive director, upon application, may approve alternative diesel fuel 

formulations as prescribed under §114.312( d) of this title (relating to Low Emission 

Diesel Standards) that may be used to satisfy the low emission diesel fuel (LED) 

requirements specified in §114.312(a) of this title if the applicant has demonstrated to 

the satisfaction of the executive director and the EPA in accordance with the procedures 

specified in paragraph (1) of this subsection that the alternative diesel fuel formulation 

will achieve equivalent or better reductions in emissions of nitrogen oxides (NOx). 

(1) The applicant shall submit documentation demonstrating that the 

applicable fuel properties of the alternative diesel fuel formulation demonstrate at least 

a s.s% reduction in NOx emissions from on-road diesel fuel for the year 2007, and at 

16 
least a 6.2% reduction in NOx emissions from non-road diesel fuel, using the Unified 

Model as described in the EPA staff discussion document, Strategies and Issues in 

Correlating Diesel Fuel Properties with Emissions, Publication Number EPA420-P-01-

001, published July 2001. 

(2) For alternative diesel fuel formulations that achieve emission 

reductions as demonstrated in accordance with the criteria specified in paragraph (1) of 

this subsection, the applicant shall provide documentation to the executive director 

upon application that includes the cetane number, aromatic hydrocarbon content, 

specific gravity, and the temperature corresponding to the so% point on the distillation 

curve in degrees Fahrenheit (Tso) of the alternative diesel fuel formulation for which 

the applicant is requesting approval as determined in accordance with the test methods 

and procedures specified in subsection (a) of this section. 

(3) If the alternative diesel fuel formulation has been demonstrated to the 

satisfaction of the executive director and the EPA to achieve comparable or better 

reductions in emissions of NOx in accordance with paragraph (1) of this subsection, then 

the executive director may issue a notice of approval indicating that the alternative 

diesel fuel formulation may be used to satisfy the LED requirements of §114.312(a) of 

this title. 

(A) The approval notification must identify the specifications of the 

alternative diesel fuel formulation as approved under this subsection by listing the 

17 
cetane number, aromatic hydrocarbon content, specific gravity, and the temperature 

corresponding to the so% point on the distillation curve in degrees Fahrenheit (Tso) of 

the alternative diesel fuel formulation as documented in paragraph (2) of this 

subsection. 

(B) The approval notification must assign an identification number 

to the specific approved alternative diesel fuel formulation. 

(d) Approval of any additive-based alternative diesel fuel formulation as 

prescribed under this section prior to April1, 2012, and thereafter, is subject to 

revocation if the executive director determines that the composition of the additive 

component of the approved alternative diesel fuel formulation has been altered so that it 

no longer matches the composition of the additive as originally approved. If the 

executive director revokes the approval of an additive-based alternative diesel 

formulation, producers using the alternative diesel formulation to satisfy the LED 

requirements of §114.312(a) of this title must discontinue all use of the alternative diesel 

formulation within 45 days of the date of revocation. 

(e) All alternative diesel fuel formulations approved by the executive director as 

prescribed under this section prior to April1, 2012, may continue to be used to comply 

with the provisions specified in this division. 

§114.316. Monitoring, Recordkeeping, and Reporting Requirements. 

18 
(a) Every producer or importer that has elected to sell, offer for sale, supply, or 

offer for supply low emission diesel fuel (LED) produced at its production facility or 

imported from its import facility in compliance with the requirements specified in 

§§114.312, 114.313, or 114,318 of this title (relating to Low Emission Diesel Standards; 

Designated Alternative Limits; Alternative Emission Reduction Plan, respectively) that 

may ultimately be used in counties listed in §114.319 of this title (relating to Affected 

Counties and Compliance Dates) is subject to the applicable requirements of this 

section. 

(b) Each producer or importer of LED must keep records that declare or 

demonstrate that each final blend of LED conforms to the basic LED standards as 

specified in §114.312(a) of this title, to the designated alternative limits as specified in 

§114.313 of this title, to the specifications of a Certified Diesel Fuel Formulation or a 

diesel fuel as accepted under §114.312(c) of this title, to an alternative diesel fuel 

formulation as approved under §114.312( d) of this title, or to an alternative emission 

reduction plan as approved under §114.318 of this title. 

(c) Each producer or importer of LED shall collect and analyze a representative 

sample of each final blend of LED produced at its production facility or imported from 

its import facility for the fuel properties specified in paragraphs (1) - (5) of this 

subsection. 

19 
(1) The aromatic hydrocarbon content and cetane number must be 

analyzed for LED produced or imported in accordance with §114.312(a) of this title using 

the test methods specified in §114.315(a) of this title (relating to Approved Test 

Methods). 

(2) The aromatic hydrocarbon content, cetane number, and/or any other 

appropriate components specified in the applicable California diesel fuel regulations or 

the executive order issued by the California Air Resources Board (CARB) must be 

analyzed for LED produced or imported in accordance with §114.312(c) ofthis title using 

the test methods specified in §114.315(a) of this title and if appropriate, the test methods 

as listed in the executive order issued by CARB. 

(3) The appropriate components of the alternative diesel fuel formulation 

as listed in the approval notification issued by the executive director under §114.315 of 

this title must be analyzed for LED produced or imported in accordance with §114.312(d) 

of this title using the methodologies specified in §114.315(a) of this title and if 

appropriate, the test methods as listed in the approval notification. 

(4) The aromatic hydrocarbon content, polycyclic aromatic hydrocarbon 

content, American Petroleum Institute (API) gravity index, cetane number, nitrogen 

content, and sulfur content must be analyzed for LED produced or imported in 

accordance with §114.313 of this title using the test methods specified in §114.315(a) of 

this title. 

20 
(5) The aromatic hydrocarbon content, cetane number, specific gravity, 

and the temperature corresponding to the so% point on the distillation curve in degrees 

Fahrenheit (Tso) must be analyzed for LED produced in accordance with §114.318(b)(1) 

of this title using the test methods specified in §114.315(a) of this title. 

(6) If the final blend of LED required to be analyzed in paragraphs (2) and 

(3) of this subsection is produced at a production facility with the use of an additive as it 

is being loaded directly to tanks, pipelines, tank ships, railway tank cars, tank trailers, or 

fuel delivery trucks, the producer or importer may satisfy the sampling requirements of 

this subsection by recording the volume of additive and the volume of diesel additized in 

each final blend of LED as it is produced at the production facility. The analysis of the 

volumetric record must demonstrate that sufficient additive was added to the final blend 

of LED to maintain the appropriate additive concentration per gallon as listed in the 

approval notification issued by the executive director or in the executive order issued by 

the CARB. 

(7) The producer or importer shall maintain records showing the sample 

date, identity of the final blend sampled, identity of the container or other vessel 

sampled, volume of the final blend sampled, and the fuel properties of each sample as 

analyzed in accordance with paragraphs (1)- (6) of this subsection as appropriate, for 

two years from the date each sample was collected. 

21 
(8) All LED produced by the producer at its production facilities or 

imported by the importer from its import facilities and not tested by the producer or 

importer as required by this subsection will be deemed to exceed the standards specified 

in §114.312 of this title, unless the producer or importer demonstrates that the LED 

meets those standards and limits. 

(d) A producer or importer subject to the requirements of this division shall 

provide to the executive director any records required to be maintained by the producer 

or importer in accordance with this section within 15 days of a written request from the 

executive director, if the request is received before expiration of the period during which 

the records are required to be maintained. Whenever a producer or importer fails to 

provide records regarding a final blend of LED in accordance with the requirements of 

this section, the final blend of LED will be presumed to have been sold by the producer 

or importer in violation of the standards specified in §114.312 of this title, to which the 

producer or importer has elected to be subject. 

(e) All parties in the distribution chain (i.e., producers, importers, bulk plants, 

common carriers, and retail fuel dispensing outlets) that supply diesel fuel subject to the 

requirements specified in §114.312 of this title that may ultimately be used in counties 

listed in §114.319 of this title shall maintain copies or records of product transfer 

documents for a minimum of two years and shall upon request, make such copies or 

records available to representatives of the commission, United States Environmental 

Protection Agency, or local air pollution agency having jurisdiction in the area. The 

22 
product transfer documents must contain, at a minimum, the information specified in 

paragraphs (1)- (7) of this subsection: 

(1) the date of transfer; 

(2) the name and address of the transferor; 

(3) the name and address of the transferee; 

(4) in the case of transferors or transferees who are producers or 

importers, the registration number of those persons as assigned by the commission 

under §114.314 of this title (relating to Registration of Diesel Producers and Importers); 

(5) the volume of diesel fuel being transferred; 

(6) the location of the diesel fuel at the time of transfer; and 

(7) one of the certification statements specified in subparagraphs (A), (B), 

or (C) of this paragraph, as appropriate: 

(A) "This product is Texas low emission diesel and may be used as 

fuel for diesel engines in any Texas county requiring the use of low emission diesel 

fuel."; or 

23 
(B) "This product may not be used as fuel for diesel engines in any 

Texas county requiring the use of low emission diesel fuel without further processing."; 

or 

(C) "This product has been produced under a TCEQ approved 

alternative emission reduction plan and may be used as fuel for diesel engines in any 

Texas county requiring the use of low emission diesel fuel." 

(f) Each producer or importer of LED subject to subsection (a) of this section 

shall provide a quarterly summation report to the executive director no later than the 

45th day following the end of each calendar quarter and must maintain a record of the 

information submitted in the quarterly report for two years from the date of each report. 

The quarterly report must be submitted on forms prescribed by the executive director 

and must include, at a minimum, the information specified in paragraphs (1) - (3) of this 

subsection for each of the producer's production facilities or for each of the importer's 

import facilities: 

(1) the total volume of LED produced or imported during the calendar 

quarter that is subject to the requirements of this section, and if the volume of LED 

required to be reported in this paragraph was produced with the use of an additive, the 

total volume of additive used to produce the LED must also be included in the quarterly 

report; 

24 
(2) a reconciliation of the records required in subsection (c)(7) of this 

section for each sample collected and analyzed during the calendar quarter; and 

(3) any other information determined by the executive director to be 

necessary to demonstrate that the producer or importer has produced or imported LED 

that has satisfied the requirements specified in §§114.312, 114.313, or 114.318 of this title. 

(g) Each producer or importer electing to sell, offer for sale, supply, or offer to 

supply LED in accordance with §114.312(c) of this title shall provide to the executive 

director, as applicable, a copy of the executive order issued by the CARB for the Certified 

Diesel Fuel Formulation used to produce the LED or documentation demonstrating that 

the LED has been produced to meet all specifications for diesel fuel under regulations 

adopted by the CARB, except for those approved for small refinery compliance, that 

were in effect as of August 4, 2005. 

§114.317. Exemptions to Low Emission Diesel Requirements. 

(a) Any diesel fuel subject to the low emission diesel (LED) requirements 

specified in §114.312 of this title (relating to Low Emission Diesel Standards) that is 

either in a research, development, or test status; or is sold to petroleum, automobile, 

engine, or component manufacturers for research, development, or test purposes; or any 

diesel fuel to be used by, or under the control of, petroleum, additive, automobile, 

25 
engine, or component manufacturers for research, development, or test purposes, is 

exempted from the provisions of this division (relating to Low Emission Diesel), 

provided that: 

(1) the diesel fuel is kept segregated from non-exempt product, and the 

person possessing the product maintains documentation identifying the product as 

research, development, or testing fuel, as applicable, and stating that it is to be used only 

for research, development, or testing purposes; and 

(2) the diesel fuel is not sold, dispensed, or transferred, or offered for sale, 

dispensing, or transfer from a retail fuel dispensing facility. It shall also not be sold, 

dispensed, or transferred, or offered for sale, dispensing, or transfer from a wholesale 

purchaser-consumer facility, unless such facility is associated with fuel, automotive, or 

engine research, development, or testing. 

(b) Any diesel fuel subject to the LED requirements specified in §114.312 of this 

title that is refined, sold, dispensed, transferred, or offered for sale, dispensing, or 

transfer as competition racing fuel is exempted from the provisions of this division, 

provided that: 

(1) the fuel is kept segregated from non-exempt fuel, and the party 

possessing the fuel for the purposes of refining, selling, dispensing, transferring, or 

offering for sale, dispensing, or transfer as competition racing fuel maintains 

26 
documentation identifying the product as racing fuel, restricted for non-highway use in 

competition racing motor vehicles or engines; 

(2) each pump stand at a regulated facility, from which the fuel is 

dispensed, is labeled with the applicable fuel identification and use restrictions 

described in paragraph (1) of this subsection; and 

(3) the fuel is not sold, dispensed, transferred, or offered for sale, 

dispensing, or transfer for highway use in a motor vehicle. 

(c) The owner or operator of a retail fuel dispensing outlet is exempt from all 

requirements of §114.316 of this title (relating to Monitoring, Recordkeeping, and 

Reporting Requirements) except §114.316(e) of this title. 

(d) Diesel fuel that does not meet the LED requirements of §114.312 of this title is 

not prohibited from being transferred, placed, stored, and/ or held within the affected 

counties so long as it is not ultimately used to power a diesel fueled compressionignition internal combustion engine operating in a motor vehicle or in non-road 

equipment in the counties listed in §114.319 of this title (relating to Affected Counties 

and Compliance Dates), except for that used in conjunction with purposes stated in 

subsections (a) and (b) of this section. 

§114.318. Alternative Emission Reduction Plan. 

27 
(a) Diesel fuel that is sold, offered for sale, supplied, or offered for supply by a 

producer who submits an alternative emission reduction plan in accordance with 

subsection (b) of this section that is approved by the executive director will be 

considered in compliance with the low emission diesel (LED) requirements of 

§114.312(a) of this title (relating to Low Emission Diesel Standards). 

(b) The alternative emission reduction plan must demonstrate, using the Unified 

Model as described in the United States Environmental Protection Agency (EPA) staff 

discussion document, Strategies and Issues in Correlating Diesel Fuel Properties with 

Emissions, Publication Number EPA420-P-ol-001, published July 2001, that the 

average fuel properties of all on-road diesel fuel produced in any given calendar quarter 

that is sold, offered for sale, supplied, or offered for supply by the producer for use in the 

affected counties listed in §114.319 of this title (relating to Affected Counties and 

Compliance Dates) achieve at least a s.s% reduction in nitrogen oxides (NOx) emissions 

for the year 2007; and the average fuel properties of all non-road diesel produced in any 

given calendar quarter that is sold, offered for sale, supplied, or offered for supply by the 

producer for use in the affected counties listed in §114.319 of this title achieve at least a 

6.2% reduction in NOx emissions. 

(c) An alternative emission reduction plan must be approved by the executive 

director prior to the use of that plan for compliance with the requirements of this 

section. 

28 
(d) The executive director shall approve or disapprove alternative emission 

reduction plans that have been submitted by producers in accordance with subsection 

(b) of this section within 45 days of submittal. 

(e) Alternative emission reduction plans submitted to the executive director in 

accordance with subsection (b) of this section must contain sufficient documentation to 

validate the average diesel fuel properties used to satisfy the requirements specified in 

subsection (b) of this section. 

§114.319. Affected Counties and Compliance Dates. 

(a) All affected persons in the counties listed in subsection (b) of this section shall 

continue to comply with §§114.312 - 114.317 of this title (relating to Low Emission Diesel 

Standards; Designated Alternate Limits; Registration of Diesel Producers and 

Importers; Approved Test Methods; Monitoring, Recordkeeping, and Reporting 

Requirements; and Exemptions to Low Emission Diesel Requirements) as required by 

subsection (d) of this section, as applicable, for any diesel fuel as defined in §114.6(6)(A) 

of this title (relating to Low Emission Fuel Definitions) that may ultimately be used to 

power a diesel-fueled compression-ignition internal combustion engine in a motor 

vehicle or in non-road equipment in any of the counties listed in subsection (b) of this 

section. 

29 
(b) The counties specified in paragraphs (1)- (4) of this subsection are subject to 

subsection (a) of this section: 

(1) Collin, Dallas, Denton, Ellis, Johnson, Kaufman, Parker, Rockwall, and 

Tarrant; 

(2) Brazoria, Chambers, Fort Bend, Galveston, Harris, Liberty, 

Montgomery, and Waller; 

(3) Hardin, Jefferson, and Orange; and 

(4) Anderson, Angelina, Aransas, Atascosa, Austin, Bastrop, Bee, Bell, 

Bexar, Bosque, Bowie, Brazos, Burleson, Caldwell, Calhoun, Camp, Cass, Cherokee, 

Colorado, Comal, Cooke, Coryell, De Witt, Delta, Falls, Fannin, Fayette, Franklin, 

Freestone, Goliad, Gonzales, Grayson, Gregg, Grimes, Guadalupe, Harrison, Hays, 

Henderson, Hill, Hood, Hopkins, Houston, Hunt, Jackson, Jasper, Karnes, Lamar, 

Lavaca, Lee, Leon, Limestone, Live Oak, Madison, Marion, Matagorda, McLennan, 

Milam, Morris, Nacogdoches, Navarro, Newton, Nueces, Panola, Polk, Rains, Red River, 

Refugio, Robertson, Rusk, Sabine, San Jacinto, San Patricio, San Augustine, Shelby, 

Smith, Somervell, Titus, Travis, Trinity, Tyler, Upshur, VanZandt, Victoria, Walker, 

Washington, Wharton, Williamson, Wilson, Wise, and Wood. 

30 
(c) All affected persons in the counties listed in subsection (b) of this section shall 

continue to comply with §§114.312- 114.317 of this title as required by subsection (d) of 

this section, as applicable, for any diesel fuel as defined in §114.6(6)(B) of this title that 

may ultimately be used to power a diesel-fueled compression-ignition internal 

combustion engine located on a marine vessel in any of the counties listed in subsection 

(b)(2) of this section. 

(d) For all counties affected by this section, the final compliance dates for control 

requirements are given within the subsections relating to counties and compliance 

schedules for provisions specified in this division if the final compliance date of any 

provision is after the date of adoption of the current revision to this division. If the 

compliance dates are not specified for any provision, the compliance date is past and all 

affected persons must be and remain in compliance with the provision as of the original 

compliance date. 

31 
THE STATE OE TEXAS 

TEXAS COMMISSION ON ENVIRO!lOO~~t ~ALITY C';E 0 

I hereby certify that this is a true and correct copy of a 

o;.~ ~' ?· Texas CommiSSion on Env~ronmental Quality document, 

(

:;; ~ Which IS filed 1n the permanent records of the Commission. 

:;: 2; Given under my hand and the seal of office on 

Bn~:Clh'a~~rk AUG 2 9 2012 

Texas Commission on Environmental Quality 

ORDER ADOPTING NEW, AMENDED, AND REPEALED RULES AND 

REVISIONS TO THE STATE IMPLEMENTATION PLAN 

Docket No. 2009-2039-RUL 

On August 22, 2012, the Texas Commission on Environmental Quality (Commission), 

during a public meeting, considered adoption of amendments to§§ 114.6, 114.312, and 

114.314- 114.319, the repeal of§ 114.313 and new§ 114.313. The Commission adopts these 

new, amended and repealed rules in 30 TAC Chapter 114, Control of Air Pollution from Motor 

Vehicles; and corresponding revisions to the state implementation plan (SIP). The adoption 

revises definitions; establishes new designated-alternative limits; removes expired 

registration requirements and establishes new registration requirements; revises approval 

procedures for alternative diesel fuel formulations; specifies that approvals of all additivebased alternative diesel fuel formulations will be subject to revocation if the composition of 

the additive is found to be altered; allows all alternative diesel formulations approved by the 

Commission prior to April1, 2012, to remain in effect; revises reporting requirements; 

requires quarterly compliance determinations for alternative emission reduction plans using 

the Unified Model; and removes expired early gasoline sulfur reduction credits provisions. 

Under Tex. Health & Safety Code Ann. §§ 382.011, 382.012, and 382.023 (Vernon 2011), the 

Commission has the authority to control the quality of the state's air and to issue orders 

consistent with the policies and purposes of the Texas Clean Air Act, Chapter 382 of the Tex. 

Health & Safety Code. The proposed rules were published for comment in the March 23, 

2012 issue of the Texas Register (37 TexReg 2009). 

Pursuant to Tex. Health &.Safety Code Ann.§ 382.017 (Vernon 2001), Tex. Gov't Code 

Chapter 2001 (Vern on 2008), and 40 Code of Federal Regulations § 51.102, and after proper 

notice, the Commission conducted a public hearing to consider the new, amended and 

repealed rules and revisions to the SIP. Proper notice included prominent advertisement in 

the areas affected at least 30 days prior to the date of the hearing. A public hearing was held 

in Austin, Texas on April 26, 2012. 

The Commission circulated hearing notices of its intended action to the public, 

including interested persons, the Regional Administrator of the EPA, and all applicable local 

air pollution control agencies. The public was invited to submit data, views, and 

recommendations on the proposed new, amended and repealed rules and SIP revisions, 

either orally or in writing, at the hearing or during the comment period. Prior to the 

scheduled hearing, copies of the proposed new, amended and repealed rules and SIP 
revisions were available for public inspection at the Commission's central office and on the 

Commission's Web site. 

Data, views, and recommendations of interested persons regarding the proposed new, 

amended and repealed rules and SIP revisions were submitted to the Commission during the 

comment period, and were considered by the Commission as reflected in the analysis of 

testimony incorporated by reference to this Order. The Commission finds that the analysis of 

testimony includes the names of all interested groups or associations offering comment on 

the proposed new, amended and repealed rules and the SIP revisions and their position 

concerning the same. 

IT IS THEREFORE ORDERED BY THE COMMISSION that the new, amended and 

repealed rule and revisions to the SIP incorporated by reference to this Order are hereby 

adopted. The Commission further authorizes staff to make any non-substantive revisions to 

the rules necessary to comply with Texas Register requirements. The adopted rules and the 

preamble to the adopted rules and the revisions to the SIP are incorporated by reference in 

this Order as if set forth at length verbatim in this Order. 

IT IS FURTHER ORDERED BY THE COMMISSION that on behalf of the 

Commission, the Chairman should transmit a copy of this Order, together with the adopted 

rules and revisions to the SIP, to the Regional Administrator of EPA as a proposed revision to 

the Texas SIP pursuant to the Federal Clean Air Act, codified at 42 U.S. Code Ann. §§ 7401-

7671q, as amended. 

This Order constitutes the Order of the Commission required by the Administrative 

Procedure Act, Tex. Gov't Code,§ 2001.033 (Vernon 2008). 

If any portion of this Order is for any reason held to be invalid by a court of competent 

jurisdiction, the invalidity of any portion shall not affect the validity of the remaining 

portions. 

Issued date: AUG 2 8 2012 

TEXAS COMMISSION ON 

ENVIRONMENTAL QUALITY 

. Shaw, Ph.D., Chairman 
oftwo years under Texas Occ ations Code §1102.205 when such accreditation program is develop d by the commission; 

(18) a fee of$50 pi s $10 per classroom hour approved by 

the commission for each ICE c urse for a period of two years; 

(19) a fee of$50 fo the filing of an application for approval 

as an instructor for a two-year eriod for core or ICE courses, or both; 

(20) a fee of$30 fo processing a check or other equivalent 

instrument returned by a bank r depository as dishonored for insufficient funds; 

(21) a fee of $100 or deposit in the real estate inspection 

recovery fund upon an applic t's successful completion of an examination; and 

(22) fee of $20 for ling any application, renewal, change 

request, or other record on pap r that a person may otherwise file with 

the commission electronically y accessing the commission's website, 

entering the required informat on online, and paying the appropriate 

fee. 

(b) Fees established b this section which are paid when an 

application is filed are not refu dable once an application has been accepted for filing. 

This agency hereby certifies hat the adoption has been reviewed 

by legal counsel and found t be a valid exercise of the agency's 

legal authority. 

Filed with the Office of the S retary of State on August 20, 2012. 

TRD-201204413 

Loretta R. DeHay 

General Counsel 

Texas Real Estate Commission 

Effective date: January 1, 201 

Proposal publication date: Jun 1, 2012 

For further information, please all: (512) 936-3092 

• • • ~l'f~:F>~j)l, '''":.··,''9~fi!AL QU~rtX: 

.;].:}3x.As~~coMM!ssioN~ON; j;Q;{JALIT¥ . .., 

.. C?~T~9~.;pF AIIt\ ...... .. OMAMO!I'OR VEHICLES ''"'' w~<,v,, 'v' v~,'~ ,/~,,,,,.',' ,, .. ,,,, ' ' 

The Texas Commission on Environmental Quality (TCEQ, 

agency, or commission) adopts the amendments to §§114.6, 

114.312, and 114.314- 114.319; the repeal of §114.313; and 

new §114.313. 

Amended §114.6 is adopted with change to the proposed text 

as published in the March 23, 2012, issue of the Texas Register 

(37 TexReg 2009). Sections 114.312, and 114.314- 114.319; 

the repeal of §114.313; and new §114.313 are adopted without 

changes to the proposed text and will not be republished. 

The adopted revisions will be submitted to the United States Environmental Protection Agency (EPA) as a revision to the state 

implementation plan (SIP). 

Background and Summary of the Factual Basis for the Adopted 

Rules 

The current state regulations for Texas low emission diesel 

(TxLED) under Chapter 114 require that all diesel as defined 

under §114.6 that is sold or supplied for use in a compression-ignition engine operating in any of the 110 central and 

eastern Texas counties listed in §114.319 must comply with the 

specifications for aromatic hydrocarbons and cetane number 

as listed in §114.312 or one of the other compliance options 

listed under this section. This regulation includes all diesel used 

as fuel for on-road motor vehicles and non-road equipment. 

The TxLED regulations also apply to marine distillate fuels, i.e., 

Marine Distillate fuel X (DMX), Marine Distillate fuel A (DMA), 

and Marine Gas Oil (MGO), when these marine distillate fuels 

are used in the 1997 Houston-Galveston-Brazoria (HGB) ozone 

nonattainment area counties of Brazoria, Chambers, Fort Bend, 

Galveston, Harris, Liberty, Montgomery, and Waller. Diesel 

producers are also allowed to produce TxLED in accordance 

with an alternative emission reduction plan (AERP) as specified 

under §114.318. TxLED producers and importers are required 

to register with the TCEQ as specified under §114.314 and 

to submit quarterly reports to the TCEQ as specified under 

§114.316. There are 112 producers and importers currently 

registered under the TxLED program. The total nitrogen oxides 

(NOx) emission reduction benefit from TxLED in 2018 from all 

110 counties currently regulated is estimated to be approximately 5.62 tons per day (tpd) from on-road vehicle use and 

7.54 tpd from non-road equipment use. The estimated NOx 

emission reduction benefit in 2018 from TxLED marine diesel 

in the 1997 eight-county HGB ozone nonattainment area is 

approximately 0.89 tpd. 

The adopted rulemaking will address the following issues. 

Alternative Diesel Formulations 

The TCEQ has currently approved 20 alternative diesel formulations in accordance with the testing requirements specified under §114.315 that producers and importers may use to produce 

TxLED, with 18 of these formulations requiring the use of a diesel 

additive. All but one of the additive-based alternative diesel formulations for TxLED were approved under the testing procedures specified under §114.315(c). In 2011, approximately 52% 

of all TxLED was reported to have been produced using the 

additive-based alternative diesel formulations approved by the 

TCEQ. Approximately 30% of all TxLED in 2011 was reported to 

have been produced using an additive-based alternative diesel 

formulation for California diesel approved by the California Air 

Resources Board (GARB) that producers are allowed to use under §114.312(e) to produce TxLED . 

The TCEQ process to approve an alternative diesel formulation 

for TxLED under §114.315(c) includes review and approval of 

test protocols prior to emissions testing, observation of the emissions testing at the testing facilities, review of the final test reports 

from the testing facilities describing the results of the emissions 

testing, and determining whether the emissions test results satisfy the criteria specified in §114.315(c) that allows the TCEQ to 

approve the formulation. The TCEQ is also required to request 

the EPA's consultation when proposing to approve an alternative 

diesel formulation for TxLED. 

The TCEQ approval and review process specified in §114.315(c) 

has resulted in fiscal and staff resource challenges for the 

agency. The professional services needed to validate the 

emissions testing data and to physically observe the emissions 

testing being performed for approval purposes is costing the 

TCEQ approximately $20,000 per application. 

ADOPTED RULES September 7, 2012 37 TexReg 7181 
The adopted rulemaking will remove the alternative diesel fuel 

formulation test procedures in §114.315(c) and the option under §114.315(d) for allowing the testing of these formulations 

through the EPA's Environmental Technology Verification (ETV) 

Program, which the EPA has discontinued. The other approval 

option currently specified under §114.315(d), which specifies criteria for using the Unified Model that was developed by the EPA 

specifically for the TxLED program, will remain as the only TCEQ 

method for approving alternative diesel formulations. Acceptance of alternative diesel formulations approved by CARB as 

allowed under §114.312(e) will also continue. The adopted rulemaking will greatly lessen the TCEQ's fiscal and staff resource 

needs in the physical testing aspects of the alternative diesel formulation approval process without significantly limiting TxLED 

compliance options. 

Designated Alternative Limits 

The current TxLED regulations specified in §114.312(e) allow 

diesel fuel produced to comply with specific California regulations for diesel fuel to be used for compliance with the TxLED requirements including diesel fuel produced under the designated 

equivalent limits specified under Title 13 California Code of Regulations (13 CCR) §2282(h)(1). Although this subsection was 

adopted in March 2005, it does not appear that many producers in Texas are taking advantage of the flexibility provided by 

these parameters. The adopted rulemaking will repeal the current rules in §114.313 and simultaneously adopt a new §114.313 

that will establish new designated alternative limits with the same 

fuel property limits specified in 13 CCR §2282(h)(1) that producers may use to produce TxLED. This adopted action will provide 

further clarification of an underutilized flexibility in the TxLED program while ensuring equivalent emission reductions. 

Alternative Emission Reduction Plans 

The current TxLED regulations allow producers to use diesel offset credits from early gasoline sulfur reductions as a compliance 

option under the AERP provisions specified under §114.318. 

However, the ability to use diesel offset credits in the ozone 

nonattainment counties specified under §114.319(b)(1) - (3) 

expired December 31, 2008, and expired in the other 90 TxLED 

counties on December 31, 2010. The adopted rulemaking 

will remove the expired provisions specified under §114.318 

pertaining to the use of early gasoline sulfur reduction credits as 

a methodology option for AERP compliance. 

Administrative 

The current TxLED regulations contain several administrative 

compliance deadlines that have expired and other administrative requirements relating to registration and reporting that are 

outdated or need further clarification. The adopted rulemaking 

will revise definitions in §114.6 to clarify that only the person or 

company that owns or operates the production facility that is producing the final blend of diesel fuel is considered a producer and 

is therefore required to register and comply with the other TxLED 

requirements. In addition, the adopted rulemaking will revise the 

registration requirements in §114.314 to remove expired provisions and to add new requirements for the registration of production and import facilities. The adopted rulemaking will also make 

other clarifying changes to the administrative provisions of the 

rules as needed for accuracy and consistency. 

Section by Section Discussion 

To conform to TCEQ and Texas Register formatting requirements, non-substantive revisions will be made throughout the 

37 TexReg 7182 September 7, 2012 Texas Register 

adopted amendments to correct citations, acronym usage, and 

other minor issues. 

§114.6, Low Emission Fuel Definitions 

The adoption will amend §114.6 to remove the definition of 

designated alternative limit as needed for consistency with 

adopted new §114.313; remove the definition of motor vehicle 

fuel; renumber and revise the definitions of bulk plant, bulk 

purchaser/consumer, further process, import, import facility, 

importer, produce, producer, and production facility to replace 

the term, "motor vehicle fuel," with the terms, "gasoline" or 

"diesel fuel," as needed for consistency and to make other 

changes to these terms as needed to clarify that only the person 

or company that owns or operates the production facility that is 

producing the final blend of diesel fuel is considered a producer 

and is therefore required to register and comply with all TxLED 

requirements. The adoption will also make changes to clarify 

the definitions of additive, diesel fuel, final blend, gasoline, low 

emission diesel, motor vehicle, non-road equipment, and retail 

dispensing outlet. 

In response to public comment, the adoption will make additional 

changes to the definition of additive in §114.6(1)(B) to further 

clarify that only those substances that have been added to diesel 

fuel for the purpose of producing TxLED would be considered 

additives under the TxLED program. Also in response to public 

comment, the adoption will further amend the definitions of motor 

vehicle in §114.6(14) and non-road equipment in §114.6(15) to 

revise the relevant Texas Transportation Code (TTC) citations 

from TTC, §502.002 to TTC, §502.040 and from TTC, §502.006 

to TTC, §502.140. These citation changes are needed in order 

to reflect the renumbering of the statute as directed by House 

Bill 2357, 82nd Texas Legislature, 2011. 

§114.312, Low Emission Diesel Standards 

The adoption will amend §114.312 to make changes needed for 

accuracy and consistency with the adopted new §114.313 and 

the adopted revisions to §114.315. The adoption will amend 

§114.312 to remove language limiting the acceptance of GARBapproved alternative diesel fuel formulations to only those approved on or before January 18, 2005, to allow the use of new 

alternative diesel fuel formulations approved by CARB in the future. The adoption will also amend §114.312 to cite the current 

effective date of the California diesel regulations relevant to this 

section. 

§114.313, Designated Alternative Limits 

The adoption will repeal existing §114.313 and adopt a new 

§114.313 that will establish new designated alternative limits 

that have the same fuel property limits as currently specified in 

California regulations (13 CCR §2282(h)(1)) to provide further 

clarification of an underutilized flexibility in the TxLED program 

while ensuring equivalent emission reductions. 

§114.314, Registration of Diesel Producers and Importers 

The adoption will amend §114.314 to remove expired registration 

requirements and to require all new producers and importers to 

register by no later than 45 days after the first date that they begin to provide TxLED to the affected counties listed in §114.319. 

In addition, the adoption will amend §114.314 to require producers and importers to provide information on each production facility and import facility from which TxLED is produced or imported. The adopted registration requirements will provide further clarification that only owners and operators of production 

facilities are considered producers subject to the TxLED reg-
ulations. The adoption will make other clarifying changes to 

§114.314 as needed to enhance and simplify the registration 

process. 

§114.315, Approved Test Methods 

The adoption will amend §114.315 to remove the alternative 

diesel formulation test procedures in subsection (c) to clarify 

that alternative diesel fuel formulations will only be approved 

through the provisions currently specified under subsection (d). 

The adoption will also amend §114.315 to remove the option for 

allowing testing of an alternative diesel fuel formulation through 

the EPA's ETV Program, which the EPA has discontinued. The 

adoption will also amend §114.315 to remove the supplementary test methods for viscosity and flash point in subsection (a) 

for consistency with the changes to subsection (c). 

The adoption will also amend §114.315 to specify that the approvals of all additive-based alternative diesel fuel formulations 

approved prior to April 1, 2012, and thereafter will be subject to 

revocation if the composition of the additive is found to be altered. Producers using an additive-based alternative diesel formulation will be required to discontinue use of the formulation 

within 45 days of the date of revocation. In addition, the adoption will amend §114.315 to add a new subsection (e) to specify 

that all alternative diesel fuel formulations approved by the executive director prior to April 1, 2012, may continue to be used 

for compliance. 

§114.316, Monitoring, Recordkeeping, and Reporting Requirements 

The adoption will amend §114.316 to make clarifying changes 

to the reporting requirements as needed for accuracy and 

consistency with the adopted changes to §§114.313- 114.315, 

and 114.318. The adoption will also amend §114.316 to specify 

the sampling and analysis requirements for the specific fuel 

properties for TxLED produced under §§114.312, 114.313, and 

114.318. 

§114.317, Exemptions to Low Emission Diesel Requirements 

The adoption will amend §114.317 to make clarifying changes as 

needed for accuracy and consistency with the adopted changes 

to §114.316 and §114.319. 

§114.318, Alternative Emission Reduction Plan 

The adoption will amend §114.318 to remove the provisions pertaining to the calculation and use of early gasoline sulfur reduction credits as a methodology option for AERP compliance. In 

addition, the adoption will amend §114.318(b) to require AERPs 

that use the Unified Model to calculate compliance based on 

the average fuel properties determined each calendar quarter, 

instead of yearly as currently required. The adoption will also 

amend §114.318(b) to allow producers to calculate the average 

fuel properties used in the Unified Model based on the fuel properties of diesel sold or supplied for use in all affected counties, 

instead of specific groups of counties as currently required. 

§114.319, Affected Counties and Compliance Dates 

The adoption will amend §114.319 to remove expired compliance schedules in subsection (c) and to modify subsection (d) 

to clarify that if the final compliance date of any provision in the 

section is before the adoption of the current revision to the section and the compliance dates are not specified in the current 

revision, then the compliance date is past and all affected persons must be and remain in compliance with the provision as 

of the original compliance date. The adoption will also amend 

§114.319 to make other clarifying changes as needed for accuracy and consistency within the section. 

Final Regulatory Impact Analysis Determination 

The commission reviewed the adopted rulemaking considering 

the regulatory analysis requirements of Texas Government 

Code, §2001.0225, and determined that the rulemaking does 

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 adopted revisions to Chapter 114, Subchapter H, will remove the alternative diesel fuel formulation test procedures in 

§114.315(c) and the option for testing for approval through the 

EPA's ETV program, which the EPA has discontinued, thereby 

only allowing approval of alternative diesel formulations through 

the other two approval options currently allowed that either specify criteria for using the Unified Model that was developed by 

the EPA specifically for the TxLED program or accept alternative 

diesel formulations approved by GARB. The adoption will lessen 

the TCEQ's fiscal and staff resource needs in the physical testing 

aspects of the alternative diesel formulation approval process. 

This rulemaking action will repeal existing §114.313 and adopt a 

new § 114.313 that will establish new designated alternative limits with the same fuel property limits specified in California regulations (13 CCR §2282(h)(1)) that producers may use to produce 

TxLED. This adopted action will provide added flexibility to the 

TxLED program while ensuring equivalent emission reductions. 

The rulemaking will remove the expired provisions specified under §114.318 pertaining to the use of early gasoline sulfur reduction credits as a methodology option for AERP compliance. 

Finally, the current TxLED regulations contain several administrative compliance deadlines that have expired and other administrative requirements relating to registration and reporting that 

are outdated or need further clarification. The adopted rulemaking will clarify the administrative provisions of the rules necessary 

for accuracy and consistency. 

Due to the limited nature and scope of these amendments, this 

action will not adversely affect, in a material way, the economy 

or a sector of the economy, productivity, competition, or jobs. 

The adopted rule changes continue to provide alternatives and 

flexibility to producers of TxLED and additives in order to meet 

the fuel requirements. The amendments to the rule do not affect 

the NOx reductions expected from the sale and use of TxLED in 

Texas. Therefore, adverse impacts to the environment or public 

health and safety in the state will not occur. 

The TxLED rules are part of the strategy to reduce NOx emissions necessary for designated areas in the state to be able to 

demonstrate attainment and maintenance of the National Ambient Air Quality Standards (NAAQS) for ozone. This strategy 

is intended to protect the environment or reduce risks to human 

health from environmental exposure to ozone by reducing NOx 

emissions that help form ozone. 

Assuming the adopted revisions constitute a major environmental rule, the action is not subject to the regulatory analysis provisions of Texas Government Code, §2001.0225(b), because the 

rulemaking does not meet any of the four applicability requirements. Texas Government Code, §2001.0225 only applies to a 

ADOPTED RULES September 7, 2012 37 TexReg 7183 
major environmental rule, the result of which is to: 1) exceed a 

standard set by federal 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. 

Specifically, this rulemaking action will make improvements to 

the alternative formulation and additive approval process. The 

TxLED program was developed as part of the control strategy to 

meet the NAAQS for ozone set by the EPA under Federal Clean 

Air Act (FCAA), 42 United States Code (USC), §7 409, and therefore meet a federal requirement. The adopted rulemaking implements requirements of 42 USC, §7 410, which requires states to 

adopt a SIP that provides for "implementation, maintenance, and 

enforcement" of the NAAQS in each air quality control region of 

the state. While 42 USC, §7410 does not require specific programs, methods, or reductions to meet and maintain the standard, SIPs must include "enforceable emission limitations and 

other control measures, means or techniques (including economic incentives such as fees, marketable permits, and auctions 

of emissions rights), as well as schedules and timetables for 

compliance as may be necessary or appropriate to meet the applicable requirements of this chapter," (meaning 42 USC, Chapter 85, Air Pollution Prevention and Control). It is true that the 

FCAA does require some specific measures for SIP purposes, 

such as the inspection and maintenance program, but those programs are the exception, not the rule, in the SIP structure of 42 

USC, §7 410. The provisions of the FCAA recognize that states 

are in the best position to determine what programs and controls 

are necessary or appropriate in order to meet and maintain the 

NAAQS. This flexibility allows states, affected industry, and the 

public to collaborate on the best methods to attain the NAAQS for 

the specific regions in the state. Even though the FCAA allows 

states to develop their own programs, this flexibility does not relieve a state from developing a program that meets the requirements of 42 USC, §7 410. Thus, while specific measures are not 

generally required, the emission reductions are required. States 

are not free to ignore the requirements of 42 USC, §7 410, and 

must develop programs to assure that the nonattainment areas 

of the state would be brought into attainment on schedule and 

to maintain the NAAQS after redesignation. The adopted revisions will help areas in the state attain and maintain the 1997 

eight-hour ozone NAAQS as expeditiously as practicable. 

The requirement to provide a fiscal analysis of proposed regulations in the Texas Government Code was amended by Senate Bill (SB) 633 during the 75th Legislature, 1997. The intent 

of SB 633 was to require agencies to conduct a regulatory impact analysis of extraordinary rules. These rules are identified in 

the statutory language as major environmental rules that would 

have a material adverse impact and would exceed a requirement 

of state law, federal law, or a delegated federal program, or are 

adopted solely under the general powers of the agency. With 

the understanding that this requirement would seldom apply, the 

commission provided a cost estimate for SB 633 that concluded 

"based on an assessment of rules adopted by the agency in the 

past, it is not anticipated that the bill would have significant fiscal implications for the agency due to its limited application." The 

commission also noted that the number of rules that would require assessment under the provisions of the bill was not large. 

This conclusion was based, in part, on the criteria set forth in the 

bill that exempted proposed rules from the full analysis unless 

37 TexReg 7184 September 7, 2012 Texas Register 

the rule was a major environmental rule that exceeds a federal 

law. As discussed previously in this preamble, 42 USC, §7410 

does not require specific programs, methods, or reductions in 

order to meet and maintain the NAAQS; thus, states must develop programs for each non attainment area to ensure that area 

would meet the attainment deadlines. Because of the ongoing 

need to address nonattainment issues, the commission routinely 

proposes and adopts SIP rules. The legislature is presumed to 

understand this federal scheme. If each rule proposed for inclusion in the SIP was considered to be a major environmental rule 

that exceeds federal law, then every SIP rule would require the 

full regulatory impact analysis contemplated by SB 633. This 

conclusion is inconsistent with the conclusions reached by the 

commission in its cost estimate and by the Legislative Budget 

Board in its fiscal notes. Because the legislature is presumed 

to understand the fiscal impacts of the bills it passes, and that 

presumption is based on information provided by state agencies 

and the Legislative Budget Board, the commission contends that 

the intent of SB 633 was only to require the full regulatory impact analysis for rules that are extraordinary in nature. While the 

SIP rules would have a broad impact, that impact is no greater 

than is necessary or appropriate to meet the requirements of 

42 USC, §7410. For these reasons, rules adopted for inclusion 

in the SIP fall under the exception in Texas Government Code, 

§2001.0225(a), because they are specifically required by federal 

law. 

In addition, 42 USC, §7502(a)(2) requires attainment as expeditiously as practicable, and 42 USC, §7511(a) requires states to 

submit ozone attainment demonstration SIPs for ozone nonattainment areas, such as the HGB and the Dallas-Fort Worth 

1997 eight-hour ozone nonattainment areas. The commission 

has consistently applied this construction to its rules since this 

statute was enacted in 1997. Since that time, the legislature 

has revised the Texas Government Code but left this provision 

substantially un-amended. The commission presumes that 

"when an agency interpretation is in effect at the time the 

legislature amends the laws without making substantial change 

in the statute, the legislature is deemed to have accepted the 

agency's interpretation." Central Power & Light Co. v. Sharp, 

919 S.W.2d 485, 489 (Tex. App. Austin 1995), writ denied with 

per curiam opinion respecting another issue, 960 S.W.2d 617 

(Tex. 1997); Bullock v. Marathon Oil Co., 798 S.W.2d 353, 357 

(Tex. App. Austin 1990), no writ; Cf. Humble Oil & Refining 

Co. v. Calvert, 414 S.W.2d 172 (Tex. 1967); Sharp v. House of 

Lloyd, Inc., 815 S.W.2d 245 (Tex. 1991); Southwestern Life Ins. 

Co. v. Montemayor, 24 S.W.3d 581 (Tex. App. Austin 2000), 

pet. denied; and Coastallndust. Water Auth. v. Trinity Portland 

Cement Div., 563 S.W.2d 916 (Tex. 1978). 

As discussed previously in this preamble, this rulemaking action 

implements requirements of 42 USC, §7 410. Furthermore, there 

is no contract or delegation agreement that covers the topic that 

is the subject of this action. Therefore, the adopted rulemaking does not exceed a standard set by federal law, exceed an 

express requirement of state law, or exceed a requirement of a 

delegation agreement. Finally, this rulemaking action was not 

developed solely under the general powers of the agency, but 

is authorized by specific sections of Texas Health and Safety 

Code, Chapter 382 (also known as the Texas Clean Air Act), and 

the Texas Water Code, which are cited in the Statutory Authority section of this preamble, including Texas Health and Safety 

Code, §§382.012, 382.017, 382.019, and 382.202. Therefore, 

the adopted rulemaking does not exceed a standard set by federal law, exceed an express requirement of state law, exceed 
a requirement of a delegation agreement, nor is adopted solely 

under the general powers of the agency. 

Based on the foregoing, if this rulemaking action is assumed to 

be a major environmental rule, it is not subject to the regulatory 

analysis provisions ofTexas Government Code, §2001.0225(b), 

because the rulemaking does not meet any of the four applicability requirements. 

The commission invited public comment regarding the draft regulatory impact analysis determination during the public comment 

period, but received no comments relating to this subject. 

Takings Impact Assessment 

The commission evaluated this adopted rulemaking and performed an analysis of whether these adopted revisions to rules 

constitute a taking under Texas Government Code, Chapter 

2007. The specific purpose of these adopted rules is to achieve 

reductions in NOx emissions to reduce ozone formation in order 

to help bring nonattainment areas in the state into attainment 

with the federal NAAQS for ozone and to maintain it. The 

adopted rules will advance this stated purpose by clarifying and 

simplifying testing procedures for additives and alternative fuel 

formulation approvals, clarifying designated alternative limits for 

TxLED, and updating and adding definitions. Promulgation and 

enforcement of these adopted rules will be neither a statutory 

nor a constitutional taking of private real property. Specifically, 

the subject rulemaking does not affect a landowner's rights in 

private real property, because this rulemaking does not burden 

(constitutionally); nor restrict or limit the owner's right to property 

and reduce its value by 25% or more beyond that which will 

otherwise exist in the absence of the regulations. These revisions will not place a burden on private real property, because 

this action does not require an investment in the permanent installation of new refinery processing equipment. Additive-based 

alternative fuel formulations can be developed to meet TxLED 

that do not require changes to refinery processes. Additionally, 

the alternative formulation approvals made by the executive 

director are not property rights. and the adopted changes to the 

rules do not foreclose other approval options to meet TxLED 

for these alternative formulations. Alternative formulations 

were initially developed as a way to provide flexibility for diesel 

producers and suppliers to meet TxLED requirements. 

Furthermore. the commission's analysis indicates that Texas 

Government Code, Chapter 2007 does not apply to these 

adopted rules, because this is an action that is reasonably taken 

to fulfill an obligation mandated by federal law, which is exempt 

under Texas Government Code, §2007.003(b)(4). Specifically, 

the TxLED requirements were developed in order to meet the 

NAAQS for ozone set by the EPA under 42 USC, §7 409. States 

are primarily responsible for ensuring attainment and maintenance of NAAQS once the EPA has established them. Pursuant 

to 42 USC, §7410, and related provisions, states must submit, 

for approval by the EPA, SIPs that provide for the attainment 

and maintenance of NAAQS through control programs directed 

to sources of the pollutants involved. Therefore. one purpose of 

this rulemaking action is to provide additional clarification and 

flexibility in implementing the TxLED program necessary for the 

state's nonattainment areas to meet the air quality standards 

established under federal law as NAAQS. Attainment and 

maintenance of the 1997 ozone standard required substantial 

reductions in NOx emissions as well as volatile organic compounds emissions. This rulemaking is only one step among 

many necessary for attaining and maintaining the 1997 ozone 

standard. 

In addition, Texas Government Code, §2007.003(b)(13), states 

that Chapter 2007 does not apply to an action that: 1) is taken in 

response to a real and substantial threat to public health and 

safety; 2) is designed to significantly advance the health and 

safety purpose; and 3) does not impose a greater burden than is 

necessary to achieve the health and safety purpose. Although 

the rules do not directly prevent a nuisance or prevent an immediate threat to life or property, they do prevent a real and substantial threat to public health and safety and significantly advance the health and safety purpose. This action is taken in 

response to areas of the state exceeding the federal NAAQS for 

ozone. which adversely affects public health, primarily through irritation of the lungs. The action significantly advances the health 

and safety purpose by improving the TxLED program that reduces ozone levels in the nonattainment areas and other areas 

of the state that contribute to high ozone levels in these areas. 

Consequently, these adopted rules meet the exemption in Texas 

Government Code, §2007.003(b)(13). This rulemaking action 

therefore meets the requirements of Texas Government Code, 

§2007.003(b)(4) and (13). For these reasons, the adopted rulemaking does not constitute a taking under Texas Government 

Code, Chapter 2007. 

Consistency with the Coastal Management Program 

The commission determined the adopted 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 determined that the adopted 

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. The adopted rulemaking 

will ensure that the amendments comply with 40 Code of Federal Regulations (CFR) Part 50, National Primary and Secondary 

Air Quality Standards, and 40 CFR Part 51, Requirements for 

Preparation, Adoption, and Submittal of Implementation Plans. 

This rulemaking action is consistent with CMP goals and policies, in compliance with 31 TAC §505.22(e). 

The commission invited public comment regarding the consistency with the CMP during the public comment period, but received no comments relating to this subject. 

Public Comment 

The commission scheduled a public hearing for April26, 2012, in 

Austin. However, since no one registered to provide comments, 

the public hearing was not formally opened. The public comment 

period closed on April 27, 2012. 

The commission received written comments from the Biodiesel 

Coalition of Texas (BCOT), Good Company Associates, Love's 

Travel Stops and Country Stores. Inc. and the Musket Corporation (Love's/Musket), the National Biodiesel Board (NBB). 

and the EPA. All five commenters were in support of the rule 

changes and four of the commenters suggested minor non-subADOPTED RULES September 7, 2012 37 TexReg 7185 
stantive changes and/or requested additional clarification on the 

rule changes. 

Response to Comments 

Good Company Associates commented that the references to 

the TTC, §502.002 and §502.006 as cited in §114.6 appeared to 

be incorrect. 

The commission agrees and made changes to the definitions 

of motor vehicle in §114.6(14) and non-road equipment in 

§114.6(15) to revise the relevant TTC citations from TTC, 

§502.002 to TTC, §502.040 and from TTC, §502.006 to TTC, 

§502.140. These citation changes were needed in order to 

reflect the renumbering of the statute as directed by House Bill 

2357, 82nd Texas Legislature, 2011. 

The EPA commented that the only provision to remove an additive from the approved list of alternative diesel fuel formulations 

is if the manufacturer changes the formulation and requested an 

explanation on how the TCEQ would determine that the composition of the additive has been changed. 

The TCEQ can periodically request the EPA provide copies of the 

most current EPA fuel additive registration letters for all of the additives used in the TCEQ-approved alternative diesel formations 

to determine if any changes have been made to their additive 

compositions. The approval notifications of all TCEQ-approved 

alternative diesel fuel formulations specify the EPA fuel additive 

registration number and additive name as registered with the 

EPA in accordance with 40 CFR Part 79 for the additive used in 

the emissions testing of the approved formulation. Any change 

to the chemical composition of a registered fuel additive requires 

the additive manufacturer to notify the EPA with the changes. If 

the EPA determines the changes are significant, the altered fuel 

additive will be required to have a new registration with the EPA, 

which will result in a new registration number being issued for 

the altered additive. Consequently, since the original additive 

specification in the TCEQ-issued approval notification would no 

longer be valid, the TCEQ would then have justification to revoke the approval of the alternative diesel fuel formulation. The 

commission made no changes to the rules in response to this 

comment. 

Good Company Associates commented that§ 114.318(b) seems 

to imply that the Unified Model applies to "average fuel properties 

of all on-road diesel fuel" but later requires achieved savings of 

NOx for both on and off-road fuels. 

The AERP demonstration requirements specified in § 114.318(b) 

apply to both the average fuel properties of on-road diesel fuel 

and the average fuel properties of non-road diesel fuel. The commission made no changes to the rules in response to this comment. 

BCOT, Love's/Musket, and NBB commented that they support 

the changes to the definition of additive in §114.6(1 ), which they 

understand will result in the TCEQ no longer regulating biodiesel 

as an additive subject to the requirements ofthe TxLED program. 

The commission appreciates the support and has made additional changes to the definition of additive in §114.6(1)(8) to further clarify that only those substances that have been added to 

diesel fuel for the purpose of producing TxLED would be considered additives under the TxLED program. Biodiesel would 

not be considered an additive under the revised definition since 

biodiesel is generally only added to diesel fuel by diesel fuel producers to comply with requirements of the federal renewable fuels standards specified in 40 CFR Part 80, Subpart M. 

37 TexReg 7186 September 7, 2012 Texas Register 

BCOT and Love's/Musket requested that the TCEQ update 

the regulatory guidance document for the TxLED program as 

soon as possible to accurately reflect the TCEQ's position that 

biodiesel will no longer be regulated as an additive under the 

TxLED rules. 

Changes to regulatory guidance documents are beyond the 

scope of this rulemaking. However, the TCEQ does intend to 

revise its regulatory guidance document for the TxLED program 

in a timely manner to reflect all of the rule changes including the 

changes relating to alternative diesel fuel formulations, AERPs, 

and that biodiesel is no longer considered an additive under 

the TxLED program. The commission made no changes to the 

rules in response to these comments. 

SUBCHAPTER A. DEFINITIONS 

30 TAC §114.6 

Statutory Authority 

The amendment is adopted under Texas Water Code (TWC), 

§5.1 03, concerning Rules, and TWC, §5.1 05, concerning 

General Policy, which authorize the commission to adopt rules 

necessary to carry out its powers and duties under the TWC. 

The amendment is also adopted under Texas Health and Safety 

Code (THSC), §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; THSC, §382.011, 

concerning General Powers and Duties, which authorizes the 

commission to control the quality of the state's air; THSC, 

§382.012, concerning State Air Control Plan, which authorizes 

the commission to prepare and develop a general, comprehensive plan for the control of the state's air; THSC, §382.017, 

concerning Rules, which authorizes the commission to adopt 

rules consistent with the policy and purposes of the Texas Clean 

Air Act; and THSC, §382.202, concerning Vehicle Emissions 

Inspection and Maintenance Program, which authorizes the 

commission to establish vehicle fuel content standards after 

January 1, 2004, as long as distribution of low emission diesel 

(LED) as described in the state implementation plan is not required prior to February 1, 2005, and authorizes the commission 

to consider alternative emission reduction plans to comply with 

LED requirements. 

The adopted amendment implements THSC, §§382.002, 

382.011, 382.012, 382.017, and 382.202. 

§ 114. 6. Low Emission Fuel Definitions. 

Unless specifically defined in Texas Health and Safety Code, Chapter 

382, also known as the Texas Clean Air Act (TCAA), or in the rules of 

the commission, the terms used in this subchapter have the meanings 

commonly ascribed to them in the field of air pollution control. In 

addition to the terms that are defined by TCAA, §3.2, and §101.1 of 

this title (relating to Definitions), the words and terms specified in this 

section, when used in Subchapter H of this chapter (relating to Low 

Emission Fuels), have the meanings as defined in this section, unless 

the context clearly indicates otherwise. 

(1) Additive--Any substance that is intentionally added to 

gasoline or diesel fuel for the purpose of producing a gasoline or diesel 

fuel in compliance with the requirements of Subchapter H of this chapter that is: 

(A) a registered additive with the United States Environmental Protection Agency (EPA) in accordance with 40 Code of 

Federal Regulations (CFR) Part 79 (relating to Registration of Fuels 

and Fuel Additives); or 
(B) exempted from the EPA registration requirements 

in accordance with 40 CFR Part 79. 

(2) Barrel--A unit of measure equal to 42 United States galIons. 

(3) Bulk plant--An intermediate gasoline or diesel fuel distribution facility where gasoline or diesel fuel is stored and then transported for delivery to a bulk purchaser/consumer or retail fuel dispensing facility. 

( 4) Bulk purchaser/consumer--A person who purchases or 

otherwise obtains gasoline or diesel fuel in bulk and then dispenses it 

into the fuel tanks of motor vehicles owned or operated by the person. 

(5) Common carrier--A person engaged in the transportation of goods or products of another person for compensation and is 

available to the public for hire. 

(6) Diesel fuel--Any middle distillate fuel used in compression-ignition internal combustion engines that is commonly or commercially known, sold, or represented as: 

(A) Grade No. 1-D or Grade No. 2-D diesel fuel, in 

accordance with the active version of American Society for Testing 

and Materials (ASTM) D975 (Standard Specification for Diesel Fuel 

Oils); or 

(B) Marine Distillate fuel X (DMX), Marine Distillate 

fuel A (DMA), or Marine Gas Oil (MGO) diesel fuel in accordance with 

the active version of the International Organization for Standardization 

(ISO) 8217 Specifications ofMarine Fuels. 

(7) Final blend--A distinct quantity of diesel fuel that is introduced into commerce as low emission diesel fuel (LED), without 

further process. 

(8) Further process--To perform any alteration to diesel 

fuel, including distillation, treating with hydrogen, blending, or 

addition of an additive, for the purpose of producing a diesel fuel in 

compliance with the requirements of Subchapter H, Division 2 of this 

chapter prior to the diesel fuel being introduced into commerce as 

LED. 

(9) Gasoline--Any fuel that is commonly or commercially 

known, sold, or represented as gasoline, in accordance with the active 

version of American Society for Testing and Materials (ASTM) D4814 

(Standard Specification for Automotive Spark-Ignition Engine Fuel). 

(10) Import--The process by which gasoline or diesel fuel 

is transported into the State of Texas by any means or method whatsoever, including transport via pipeline, railway, truck, motor vehicle, 

barge, boat, or railway tank car. 

(11) Import facility--The stationary gasoline or diesel fuel 

transfer point wherein the importer takes delivery of imported gasoline 

or diesel fuel and from which imported gasoline or diesel fuel is transferred into the cargo tank truck, pipeline, or other delivery vessel from 

which the fuel will be delivered to a bulk plant, bulk purchaser/consumer, or retail fuel dispensing facility. 

(12) Importer--Any person, except a person acting as a 

common carrier, who imports gasoline or diesel fuel. 

(13) Low emission diesel fuel (LED)--Any diesel fuel 

that conforms to the requirements specified in §§114.312, 114.313, 

or 114.318 of this title (relating to Low Emission Diesel Standards; 

Designated Alternative Limits; or Alternative Emission Reduction 

Plan, respectively). 

(14) Motor vehicle--Any self-propelled device powered by 

a gasoline fueled spark-ignition internal combustion engine or a diesel 

fueled compression-ignition internal combustion engine in or by which 

a person or property is or may be transported, and is required to be registered under Texas Transportation Code, §502.040, excluding vehicles 

registered under Texas Transportation Code, §502.140. 

(15) Non-road equipment--Any device powered by a gasoline fueled spark-ignition internal combustion engine or a diesel fueled 

compression-ignition internal combustion engine that is not required to 

be registered under Texas Transportation Code, §502.040. 

(16) Produce--Perform the process to convert liquid compounds into gasoline or diesel fuel or to further process diesel fuel to 

create a final blend of LED. 

(17) Producer--Any person who owns, leases, operates, 

controls, or supervises a production facility that produces gasoline or 

diesel fuel. 

(18) Production facility--Any facility where gasoline or 

diesel fuel is produced or that manufactures liquid fuels by distilling 

petroleum. 

(19) Retail fuel dispensing outlet--Any establishment 

where gasoline and/or diesel fuel is sold or offered for sale for use 

in motor vehicles and/or non-road equipment, and the fuel is directly 

dispensed into the fuel tanks of the motor vehicles and/or non-road 

equipment using the fuel. 

(20) Supply--To provide or transfer gasoline or diesel fuel 

to a physically separate facility, vehicle, or transportation system. 

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 August 24, 2012. 

TRD-201204502 

Robert Martinez 

Director, Environmental Law Division 

Texas Commission on Environmental Quality 

Effective date: September 13, 2012 

Proposal publication date: March 23, 2012 

For further information, please call: (512) 239-0779 

• • • 

SUBCHAPTER H. LOW EMISSION FUELS 

DIVISION 2. LOW EMISSION DIESEL 

30 TAC §§114.312- 114.319 

Statutory Authority 

The amendments and new section are adopted under Texas Water Code (TWC), §5.1 03, concerning Rules, and TWC, §5.1 05, 

concerning General Policy, which authorize the commission to 

adopt rules necessary to carry out its powers and duties under 

the TWC. The amendments and new section are also adopted 

under Texas Health and Safety Code (THSC), §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; THSC, §382.011, concerning General Powers and Duties, which authorizes the commission to control the quality of 

the state's air; THSC, §382.012, concerning State Air Control 

Plan, which authorizes the commission to prepare and develop 

a general, comprehensive plan for the control of the state's air; 

THSC, §382.017, concerning Rules, which authorizes the comADOPTED RULES September 7, 2012 37 TexReg 7187 
mission to adopt rules consistent with the policy and purposes 

of the Texas Clean Air Act; and THSC, §382.202, concerning 

Vehicl~ Emissions Inspection and Maintenance Program, which 

authonzes the commission to establish vehicle fuel content standards after January 1, 2004, as long as distribution of low emis-

~ion diese! (LED~ as described in the state implementation plan 

IS not requ1red pnor to February 1, 2005, and authorizes the commission to consider alternative emission reduction plans to comply with LED requirements. 

The adopted amendments and new section implement THSC, 

§§382.002, 382.011, 382.012, 382.017, and 382.202. 

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 August24, 2012. 

TRD-201204504 

Robert Martinez 

Director, Environmental Law Division 

Texas Commission on Environmental Quality 

Effective date: September 13, 2012 

Proposal publication date: March 23, 2012 

For further information, please call: (512) 239-0779 

30 TAC §114.313 

Statutory Authority 

• • • 

The repeal is adopted under Texas Water Code (TWC), §5.1 03, 

concerning Rules, and TWC, §5.1 05, concerning General Policy, which authorize the commission to adopt rules necessary 

to carry out its powers and duties under the TWC. The repeal 

is also adopted under Texas Health and Safety Code (THSC), 

§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; THSC, §382.011, concerning General 

Powers and Duties, which authorizes the commission to control 

the quality of the state's air; THSC, §382.012, concerning State 

Air Control Plan, which authorizes the commission to prepare 

and develop a general, comprehensive plan for the control 

of the. state's air; THSC, §382.017, concerning Rules, which 

authonzes the commission to adopt rules consistent with the 

policy and purposes of the Texas Clean Air Act; and THSC, 

§382.202, concerning Vehicle Emissions Inspection and Maintenance Program, which authorizes the commission to establish 

vehicle fuel content standards after January 1, 2004, as long 

as distribution of low emission diesel (LED) as described in the 

state implementation plan is not required prior to February 1, 

2005, and authorizes the commission to consider alternative 

emission reduction plans to comply with LED requirements. 

The adopted repeal implements THSC, §§382.002, 382.011, 

382.012, 382.017, and 382.202. 

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 ofthe Secretary of State on August 24, 2012. 

37 TexReg 7188 September 7, 2012 Texas Register 

TRD-201204503 

Robert Martinez 

Director, Environmental Law Division 

Texas Commission on Environmental Quality 

Effective date: September 13, 2012 

Proposal publication date: March 23, 2012 

For further information, please call: (512) 239-0779 

• 

TITLE 37. PU 

TIONS 

• • 

LIC SAFETY AND CORRECPART 1. TE S DEPARTMENT OF 

PUBLIC SAF TY 

CHAPTER 1. RGANIZATION AND 

ADMINISTRATI N 

SUBCHAPTER INSCRIPTION ON 

VEHICLES 

37 TAC §1.151 

The Texas Departme of Public Safety (the department) adopts 

a~endm~nt~ to §1.1 1, concerning Exemption of Inscription . 

Th1s sect1on IS adopte without changes to the proposed text as 

published in the July 3, 2012, issue of the Texas Register (37 

TexReg 5226) and wil not be republished. 

Texas Transportation ode, Chapter 721 requires state agency 

vehicles to have insc ptions printed on each side of the vehicle identifying the age cy that has custody of the vehicle. Section 721.003 provides hat the governing bodies of certain state 

agencies,_ including th Department of Public Safety, may exempt vehicles from th inscription requirement by rule. Transportation Code, §721. 3(c) provides that a rule exempting vehicles must specify the p rpose served by not printing the required 

inscription and the pri ary use of the motor vehicle. Adoption 

of amendments to § 1. 51 are necessary to clarify the existing 

grounds for exemption and also add an additional basis for exemption for situations here department vehicles may need to 

be operated in areas here identification as a department vehicle may create risks o the safety of department personnel as 

determined by the dire tor. 

No comments were r eived regarding the adoption of these 

amendments. 

These amendments ar adopted pursuant to Texas Government 

~ode, §411.004(3), whi h authorizes the Public Safety CommisSion to adopt rules co sidered necessary for carrying out the 

de~artment's work; an Texas Transportation Code, §721.003, 

wh1ch allows the gover ing body by rule to exempt the department from the require ents of §721.002. 

This agency hereby ce fies that the adoption has been reviewed 

by legal counsel and fo nd to be a valid exercise of the agency's 

legal authority. 

Filed with the Office oft Secretary of State on August21, 2012. 

TRD-201204424