Kathleen Hartnett White, Chairman 

Larry R Soward, Commissioner 

Glenn Shankle, Executive Director 

RECEIVED ·- 6POI 

AIR PLANNING SE·(~ 

07 JUL 30 PH 4: 52 

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY 

Protecting Texas by Reducing and Preventing Pollution 

July 25, 2007 

Richard E. Greene, Regional Administrator 

U.S. Environmental Protection Agency- Region 6 

1445 Ross Avenue 

Dallas, Texas 75202-2733 

Dear Mayor Greene: 

Docket No. 2006-2162-RUL 

On June 27, 2007, the Texas Commission on Environmental Quality (Commission) adopted revisions to the 

State Implementation Plan (SIP). 

The Commissron adopted amendments to§§ 114.1 and 114.270 and the repeal of§§ 114.4, 114.201, 114.202 

and 114.618 in 30 TAC Chapter 114, Cont.rol of Air Pollution from Motor Vehicles; and corresponding 

revisions to the SIP. Th'is rule making aligns certain transportation-air quality rules and definitions with state 

and federal statutes by repealing the following rules: the Mobile Emission Reduction Credit (MERC) 

program and associated fund and definitions, the Light-Duty Motor Vehicle Purchase or Lease Incentive 

Program Vehicle Emissions Information Brochure, and the Transportation Control Measures (TCM) 

Substitution Process. 

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, 

/(;!.~01~ Chairman 

KHW/lm 

Enclosures 

cc: The Honorable Rick Perry, Governor of Texas 

Mr. Zak Covar, Office of Budget, Planning and Policy, Office of the Governor 

Mr. Glenn Shankle, Executive Director, Texas Commission on Environmental Quality 

P.O. Box 13087 • Austin. Texas 78711-3087 • 512/239-1000 • Internet address: www.tceq.state.tx.us 
TEXAS COMMISSION ON ENVIRONMENTAL QUALITY 

THE STATE OF TEXAS 

COUNTY OF TRAVIS 

This is to certify that the attached are true and correct copies of documents for revisions to the Texas 

State Implementation Plan, adopted on June 27, 2007, pursuant to 40 Code of Federal Regulations (C.P.R.)§ 

51.104. I am the records administrator for the Air Quality Division of the Texas Commission on 

Environmental Quality (Commission). 

~.J=L.~ Susana M. Hildebrand, P.E., Director 

Air Quality Division 

Texas Commission on Environmental Quality 
Texas Commission on Environmental Quality 

Public Hearing 

April 3, 2007 

Concerning Revisions to 30 TAC Chapter 114 

Control of Air Pollution from Motor Vehicles 

Transportation - Air Quality Revisions 

Rule Project No. 2006-050-114-EN 
INTRODUCTION 

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

April 3, 2007, to receive testimony regarding revisions to 30 TAC Chapter 114, Control of Air 

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

The comment period closed on April 7, 2007. All testimony and comments have been reviewed and 

seriously considered. This hearing record contains a complete record of the public hearing 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 (including Order and Texas Register publication) 

Additional copies of this hearing record are maintained in the TCEQ central office at 12100 Park 35 

Circle, Austin, Texas 78753. For further information, please contact Santos Olivarez, Air Quality 

Division, at (512) 239-4718. 
PUBLIC

NOTIFICATION AND

PROPOSAL
PUBLIC NOTIFICATION 

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

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

Austin American-Statesman: February 27, 2007 

Fort Worth Star-Telegram: February 26, 2007 

Houston Chronicle: February 26, 2007 

2. Publication of the proposed rules in the March 9, 2007, issue of the Texas Register 

(32 T ex Reg 1197). · 

3. Publication of the Notice of Public Hearing in the March 9, 2007, issue of the Texas Register (32 

TexReg 1396). 

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 Victoria Planning Department 

Dallas Department of Environmental and Health Services 

Dallas Department of Aviation 

East Texas Council of Governments 

El Paso City-County Health and Environmental District 

El Paso Metropolitan Planning Organization 

Federal Highway Administration 
Fort Worth Environmental Management Department 

Galveston County Health District 

Houston Department of Health and Human Services 

Harris County Pollution Control Department 

North Central Texas Council of Governments 

Houston-Galveston Area Council 

South East Texas Regional Planning Commission 

Texas Department of Transportation 

Texas Transportation Institute 

Arkansas Department of Pollution Control and Ecology 

Louisiana Department of Environmental Quality 

New Mexico Environmental Department 

Oklahoma Department of Environmental Quality 

U. S. Environmental Protection Agency 
Example of Newspaper Classified Ad 

For1 Wor1h Star-Telegram, February 26, 2007 

~..lTIC.t: Ur- t-"U~LIL.. 

iiEARJNG BY THE TEXAS COMMISSION ON ENVIRONMENTAL QUALITY-· ON PROPOSED REVISIONS TO 30 T AC CHAPTER 114 

TO TH~NfTATE IMPLEMENTATION PLAN Th.e Texas Commis- SIOn on Environmental O.uality· {commiSSIOn) Will conduct a public hea,rmg to ·receive test1monJ regarding 

goopt~;a;ev~d~;~;~~ 

g~~~~er ~~~~ cbTn~gj of Air Pollution from Motor Vehicles, and to the state Imple- mentation plan (SIP) 

~ne~~~ o/~:xa~1,~~~r~ and Saiety _9ode, ~382.017; · 1 exas 

c~~~r~::n~'go"1, cs&~~ 

~~~~er ~; aFne~e~ Regulat1o,s ~51;1 02 of !he. Uuiteo States EnvJronmr3ntaJ", Pro-

;~gt~.;'ti~~:i'n%~~~r~! .. .inq ~~.P~- >.·:.- -· .. :.-..... 

Th8 proposed rule- making would revtse: certam transportation 

~~~ air qu~~Wni~~~~~: through the repeal of certam Texas Clean. Fiset program. ele- ments, specJfJcaJiy ·. mobile source emis- sions credits; the re--

fat~n ~fo~~~~ ~ae~fu r~ substitution process, which was supersed- ed by federal re- quirements; and the repeal of a require- ment that vehicle manufacturers p~:Jblish a brochure list1ng eligible new light-duty motor vehicles on an, annual ·basis. i 

A public hearing on this 1 proposal will be held 1n Austin~ Texas, on, April 3, 2007, at 1 0:00, a.m., in Building B, Room 20i A; at the Texas Commission on Environmental Duality 

~~'J16'6 ~arl~§~t~1rcl~: The hearing will be structured tor the re- ceipt of oral or written comments by inter- ested persons. Re_g- . istration will begin 3'0 i minutes prior fo the . hearing:·· Individuals i 

~:femf~fssent ·w~~~ : 

called upon ir] order''[ of registration. There will pe :no open dis~ r 

g~~~i~~~;·. aug~aeJ~;, \ ~o!'"...::"121.:'.:='_ion, st?ff! 

Will DE: 

available to discuss the proposal 30 min- utes. pnor to ti1E:l heanng 

Persons ~Janning to 

~r~~~d h~v~ ~~~r~~a9 comrr1unicat1on or other accommodat1on needs should contact 

~fYC:g~F:Sec~jc~~:~~~ (512) 239-5017. Re- ouests ·should be rilade as tar in ad- vance as oossib"le. Comments · may be submitted to Jovce Spencer, I\IIC :Z05, Texas Register Team, Office of Legal Ser- vices, Texas Com- mission on Environg',;';'ta\ ~~~.1ity AJsi[;;: Texas 78711-3087 or tax&d to (5i 2) 239- 4808. Electronic comments may be submitted at http:/ /www5. tceq. state.rx.us/ rules/ ecomments. The comment , period closes April 7, 2007. All comments should 

~"!t N~';;6er~'6 6'6-~~'(j: 114-EN,. , The pro- posed rule may be viewed on the com- mission'.s Web. site at http://www.tceq. 

state.tx.us /nav/rulss/: propose adopt.htmi.- For furtFier informa- tion_ or. questions. concernirig this pro-; posal, please contact Santos Olivarez, Air 

~~~~l~3~!l7~i~~::. al 

Issued rn Austin, Tex- as. on February ;;'1, 2007. ) 
1\athleen Hartnett Whtte. Chairman 

Larry H. Soward, Commissioner 

Martin A. Hubert. Commzssioner 

Glenn Shankle, Executive Director 

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY 

Protecting Texas by Reducing and Preventing Pollution 

NOTICE OF PUBLIC HEARING BY THE 

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY 

ON PROPOSED REVISIONS TO 30 TAC CHAPTER 114 AND 

TO THE STATE IMPLEMENTATION PLAN 

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

testimony regarding proposed revisions to 30 Texas Administrative Code (TAC) Chapter 114, Control of Air 

Pollution from Motor Vehicles, and 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 §51.1 02 of the United States Environmental Protection Agency (EPA) regulations 

concerning SIPs. 

The proposed rulemaking would revise certain transportation and air quality rules and definitions through the 

repeal of certain Texas Clean Fleet program elements, specifically mobile source emissions credits; the repeal 

of the transportation control measure substitution process, which was superseded by federal requirements; and 

the repeal of a requirement that vehicle manufacturers publish a brochure listing eligible new light-duty motor 

vehicles on an annual basis. 

A public hearing on this proposal will be held in Austin, Texas, on April 3, 2007, at 10:00 a.m., in Building B, 

Room 201A, at the Texas Commission on Environmental Quality complex located at 12100 Park 35 Circle. 

The hearing will be structured for the receipt of oral or written comments by interested persons. Registration 

will begin 30 minutes prior to the hearing. Individuals may present oral statements when called upon in order 

of registration. There will be no open discussion during the hearing; however, commission staff members will 

be available to discuss the proposal30 minutes prior to the hearing. 

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

contact Joyce Spencer, Office of Legal Services, at (512) 239-5017. Requests should be made as far in 

advance as possible. 

Comments may be submitted to Joyce Spencer, MC 205, Texas Register Team, 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.state. tx. uslrules/ecomments. The 

comment period closes April 7, 2007. All comments should reference Rule Project Number 2006-050-114-

EN. The proposed rule may be viewed on the commission's Web site at 

http://www. tceq.state. tx. uslnav/ruleslpropose _adopt. html. For fmther information or questions concerning this 

proposal, please contact Santos Olivarez, Air Quality Division, at (512) 239-4 718. 

Issued in Austin, Texas, on Februmy 21, 2007. 

P.O. Box 13087 • Austin, Texas 78711-3087 • 512/2::l9-l000 • Internet address: www.tceq.state.tx.us 
30 TAC §115.242(3)(A), and THSC, §382.085(b), by failing to maintain the Stage II vapor recovery system in proper operating condition

and free of defects that would impair the effectiveness of the system;

30 TAC §334.49(c)(4), and Texas Water Code (TWC), §26.3475(d),

by failing to have the cathodic protection systems inspected and

tested for operability and adequacy of protection at a frequency of at

least once every three years; 30 TAC §334.50(b)(1)(A), and TWC,

§26.3475(c), by failing to monitor underground storage tanks (USTs)

for a release at a frequency of at least once every month, not to exceed

35 days between each monitoring; 30 TAC §334.50(b)(2), and TWC,

§26.3475(a), by failing to monitor USTs for a release at a frequency

of at least once every month, not to exceed 35 days between each

monitoring; 30 TAC §334.50(b)(2)(A)(i)(III), and TWC, §26.3475(a),

by failing to monitor USTs for a release at a frequency of at least

once every month, not to exceed 35 days between each monitoring;

and 30 TAC §334.48(c), by failing to conduct effective manual or

automatic inventory control procedures for all USTs; PENALTY:

$14,700; STAFF ATTORNEY: Robert Mosley, Litigation Division,

MC 175, (512) 239-0627; REGIONAL OFFICE: Dallas-Fort Worth

Regional Ofce, 2309 Gravel Drive, Fort Worth, Texas 76118-6951,

(817) 588-5800.

(2) COMPANY: Friend Enterprises, Inc. dba Friendly Mart; DOCKET

NUMBER: 2003-1045-PST-E; TCEQ ID NUMBER: RN100825090;

LOCATION: 7200 Manchaca, Austin, Travis County, Texas; TYPE

OF FACILITY: convenience store with retail sales of gasoline; RULES

VIOLATED: 30 TAC §334.50(b)(1)(A), and TWC, §26.3475(c)(1), by

failing to monitor the USTs for releases at a frequency of at least once

per month; 30 TAC §334.48(c), by failing to conduct inventory control

and reconciliation for a UST system at the retail facility; and 30 TAC

§334.50(b)(2)(A)(i)(III) and (b)(2)(A)(ii), and TWC,§26.3475(a), by

failing to test or monitor the piping in the UST system for releases;

PENALTY: $18,000; STAFF ATTORNEY: Robert Mosley, Litigation

Division, MC 175, (512) 239-0627; REGIONAL OFFICE: Austin Regional Ofce, 1921 Cedar Bend Drive, Suite 150, Austin, Texas 78758-

5336, (512) 339-2929.

TRD-200700774

Mary Risner

Director, Litigation Division

Texas Commission on Environmental Quality

Filed: February 27, 2007

Notice of Public Hearing on Proposed Revisions to 30 TAC

Chapter 114 and to the State Implementation Plan

The Texas Commission on Environmental Quality (commission) will

conduct a public hearing to receive testimony regarding proposed revisions to 30 Texas Administrative Code (TAC) Chapter 114, Control

of Air Pollution from Motor Vehicles, and 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 certain transportation and air

quality rules and denitions through the repeal of certain Texas Clean

Fleet program elements, specically mobile source emissions credits;

the repeal of the transportation control measure substitution process,

which was superseded by federal requirements; and the repeal of a requirement that vehicle manufacturers publish a brochure listing eligible

new light-duty motor vehicles on an annual basis.

A public hearing on this proposal will be held in Austin, Texas, on

April 3, 2007, at 10:00 a.m., in Building B, Room 201A, at the Texas

Commission on Environmental Quality complex located at 12100 Park

35 Circle. The hearing will be structured for the receipt of oral or written comments by interested persons. Registration will begin 30 minutes prior to the hearing. Individuals may present oral statements when

called upon in order of registration. There will be no open discussion

during the hearing; however, commission staff members will be available to discuss the proposal 30 minutes prior to the hearing.

Persons planning to attend the hearing who have special communication or other accommodation needs should contact Joyce Spencer, Of-

ce of Legal Services, at (512) 239-5017. Requests should be made as

far in advance as possible.

Comments may be submitted to Joyce Spencer, MC 205, Texas

Register Team, Ofce 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.state.tx.us/rules/ecomments. File size

restrictions may apply to comments being submitted via the eComments system. The comment period closes April 7, 2007. All

comments should reference Rule Project Number 2006-050-114-EN.

The proposed rule may be viewed on the commission’s Web site at

http://www.tceq.state.tx.us/nav/rules/propose_adopt.html. For further

information or questions concerning this proposal, please contact

Santos Olivarez, Air Quality Division, at (512) 239-4718.

TRD-200700711

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Filed: February 23, 2007

Notice of Request for Public Comment and Notice of a Public

Meeting for Seventeen Total Maximum Daily Loads

The Texas Commission on Environmental Quality (TCEQ or commission) has made available for public comment seventeen draft total maximum daily loads (TMDLs) for bacteria, dissolved oxygen, and pH

in Adams Bayou and Cow Bayou (Segments 0508, 0508A, 0508B,

0508C, 0511, 0511A, 0511B, 0511C, and 0511E) of the Sabine River

Basin, located in Orange County. The TCEQ will conduct a public

meeting to receive comments on the draft TMDLs. This announcement also constitutes notice that the TMDLs will become part of the

State Water Quality Management Plan upon approval by the United

States Environmental Protection Agency (EPA).

Texas is required to develop TMDLs for impaired water bodies included in the state of Texas Clean Water Act, §303(d) list of impaired

water bodies. A TMDL is a detailed water quality assessment that provides the scientic foundation to allocate pollutant loads in a certain

body of water in order to restore and maintain designated uses.

The TCEQ will conduct a public meeting on the draft TMDLs for bacteria, dissolved oxygen, and pH in Adams Bayou, Cow Bayou, and

their tributaries (Segments 0508, 0508A, 0508B, 0508C, 0511, 0511A,

0511B, 0511C, and 0511E). The purpose of the public meeting is to provide the public an opportunity to comment on the draft TMDLs. The

commission requests comment on each of the six major components of

the TMDL: problem denition, endpoint identication, source analysis, linkage between sources and receiving waters, margin of safety, and

pollutant loading allocation. After the public comment period, TCEQ

staff may revise the TMDLs, if appropriate. The nal TMDLs will

then be considered by the commission for adoption. Upon adoption of

the TMDLs by the commission, the nal TMDLs and a response to all

comments will be made available on the TCEQ Web site referenced

below. The TMDLs will then be submitted to EPA Region 6 for ap32 TexReg 1396 March 9, 2007 Texas Register
(B) - (I) (No change.)

(2) - (3) (No change.)

(b) - (c) (No change.)

This agency hereby certies that the proposal has been reviewed

by legal counsel and found to be within the agency’s legal authority to adopt.

Filed with the Ofce of the Secretary of State on February 16,

2007.

TRD-200700596

Julie A. Barker

Executive Assistant

Texas Board of Veterinary Medical Examiners

Proposed date of adoption: June 14, 2007

For further information, please call: (512) 305-7555

CHAPTER 577. GENERAL ADMINISTRATIVE

DUTIES

SUBCHAPTER A. BOARD MEMBERS AND

MEETINGS--DUTIES

22 TAC §577.1

The Texas Board of Veterinary Medical Examiners ("Board") proposes amendments to §577.1, concerning Ofcers. The section reects an amendment by the 79th Legislature to the Veterinary Licensing Act (Chapter 801, Occupations Code), which

provides that the Governor shall appoint the presiding ofcer of

the Board. Previously, the Board elected its president, along with

the secretary and vice-president. The amended section reects

this change in the law.

Dewey Helmcamp, Executive Director, has determined that for

the rst ve-year period the amended section is in effect there

will be no scal implications for state or local government as a

result of enforcing or administering the section.

Mr. Helmcamp has also determined that for each year of the

rst ve years the amendments are in effect the public bene-

t anticipated as a result of enforcing the amended section will

be to attain compliance with the recent changes to the statute,

and inform the public of the manner in which Board ofcers are

appointed or elected. There will be no effect on small or micro

businesses. There will be no economic cost to any persons required to comply with the amended section as proposed.

Comments on the proposed amendments may be submitted

in writing to Lee Mathews, Texas Board of Veterinary Medical Examiners, 333 Guadalupe, Suite 3-810, Austin, Texas

78701, phone (512) 305-7555, fax (512) 305-7556, e-mail

vet.board@tbvme.state.tx.us and will be accepted for 30 days

following publication of the proposal in the Texas Register.

The amendments are proposed under the authority of the Veterinary Licensing Act, Texas Occupations Code, §801.151(a) which

states that the Board may adopt rules necessary to administer

the chapter.

The amendments affect the Texas Occupations Code, §801.055,

relating to ofcers of the Board.

§577.1. Ofcers.

[(a)] The ofcers of the Board [board] shall be a president, a

vice-president, and a secretary. The president is appointed by the Governor. The vice-president and secretary are elected by the Board members at the rst meeting of each scal year; take ofce immediately after

the close of such meeting; serve for one year; and may be re-elected.

[, elected for one year, and each may be reelected. Ofcers shall be

elected during the rst meeting of the scal year and shall take ofce

immediately after the close of such meeting.]

[(b) Each ofcer and board member shall perform the duties

incumbent upon his ofce and membership and such other duties as are

assigned to him by vote of the board. Between meetings, the president

of the board may assign specic duties to a member.]

This agency hereby certies that the proposal has been reviewed

by legal counsel and found to be within the agency’s legal authority to adopt.

Filed with the Ofce of the Secretary of State on February 16,

2007.

TRD-200700597

Julie A. Barker

Executive Assistant

Texas Board of Veterinary Medical Examiners

Proposed date of adoption: June 14, 2007

For further information, please call: (512) 305-7555

TITLE 30. ENVIRONMENTAL QUALITY

PART 1. TEXAS COMMISSION ON

ENVIRONMENTAL QUALITY

CHAPTER 114. CONTROL OF AIR

POLLUTION FROM MOTOR VEHICLES

The Texas Commission on Environmental Quality (commission)

proposes amendments to 30 TAC §114.1 and §114.270, and the

repeal of §§114.4, 114.201, 114.202, and 114.618. If adopted,

the revisions would 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 PROPOSED RULES

This rulemaking would align certain transportation-air quality

rules and denitions with state and federal statutes by repealing

the following rules: the Mobile Emission Reduction Credit

(MERC) program and associated fund and denitions, the

Light-Duty Motor Vehicle Purchase or Lease Incentive Program

Vehicle Emissions Information Brochure, and the Transportation

Control Measures (TCM) Substitution Process. These provisions were either repealed by state statute or superseded by

federal statute.

The Federal Clean Air Act Amendments of 1990 (FCAA),

§182(c)(4), required states to either adopt the Federal Clean

Fuel Fleet (FCFF) program outlined in FCAA, §246, or implement a program that demonstrates long-term reductions

in ozone-producing and toxic air emissions equal to those

achieved under the FCFF program. The FCFF program requires federal, state, and local governments, and private eets

to purchase low-emission vehicles (LEVs) in areas classied by

PROPOSED RULES March 9, 2007 32 TexReg 1197
the EPA as being in serious, severe, or extreme nonattainment

of the national ambient air quality standards (NAAQS) for ozone

and carbon monoxide (CO).

The State of Texas, in a committal SIP revision submitted to the

EPA on November 15, 1992, opted out of the FCFF program in

order to implement a eet emission control program designed

by the state. In 1994 the commission submitted the state’s optout program in a SIP revision to the EPA and adopted rules to

implement the Texas Alternative Fuel Fleet (TAFF) program as a

substitute to the FCFF program in the areas of Texas classied

by EPA as being in serious, severe, or extreme nonattainment

of the NAAQS for ozone or CO.

In 1995 the 74th Texas Legislature modied the state’s alternative fuels program (Texas Health and Safety Code, Chapter

382, Subchapter F) through the passage of Senate Bill 200 (SB

200). The legislature facilitated fuel neutrality through the incorporation of the federal low emission vehicle (LEV) standards

regardless of fuel type for certain affected eets. The legislation required the commission to adopt regulations to implement

the revised program. The commission adopted regulations that

established the Texas Clean Fleet (TCF) program. In 1997 the

75th Texas Legislature further modied the state’s alternative fuels program through the passage of Senate Bill 681 (SB 681).

SB 681 removed the commission’s authority to require the program in moderate nonattainment areas, limited the commission’s

authority to the serious and above ozone nonattainment areas,

and modied the state’s alternative fuels program. The basic

requirement of LEV purchases was retained, but the implementation schedule was modied. This legislation required the commission to adopt regulations to implement the program.

MERCs are part of the commission’s TCF economic incentive

program to help reduce vehicle emissions of volatile organic

compounds (VOC) and nitrogen oxides (NOx

). The program is

intended to provide additional exibility for business, develop

innovative strategies to control mobile source emissions, and

reduce the cost of compliance with the FCAA. MERCs are

enforceable, permanent, and quantiable emission reductions

generated by a mobile source through the TCF program.

Emission reductions that remain after an entity satises their

requirements may be banked as credits.

In 2005 the 79th Texas Legislature passed Senate Bill 1032 (SB

1032), which repealed TCF in its entirety. This action also repealed the MERC program, MERC fund, and corresponding definitions. On April 26, 2006, the commission adopted the repeal

of the TCF program as directed by SB 1032. This rulemaking

proposes the repeal of the remaining program elements.

In 2001 the 77th Texas Legislature (2001) passed Senate Bill 5

(SB 5) establishing the Texas Emission Reduction Plan (TERP),

which provided nancial incentives for reducing emissions of

on-road and non-road motor vehicles and equipment, grants for

the development of new emission control technology, new building energy efciency standards, and research and development

programs. SB 5 programs were estimated to achieve reductions

in excess of the reductions expected from the rules that were being repealed. In accordance with SB 5, the state implementation

plan (SIP) was revised to replace certain rules with TERP. The

adopted TERP rules established a state-wide incentive program

for the purchase of new on-road diesel vehicles and light-duty

motor vehicles that met emission standards more stringent than

those required by federal requirements.

As a result of these new rules, a new §114.618 was adopted in

August 2001, which required vehicle manufacturers to publish a

brochure of eligible incentive vehicles by September 1 of each

year. This brochure is also required to be submitted to the executive director, or his designee, by the same date.

House Bill 1365 (HB 1365) by the 78th Legislature (2003) repealed the requirement for vehicle manufacturers to publish and

distribute a brochure annually. The rulemaking proposes the repeal of the rule implementing this requirement.

The federal surface transportation reauthorization act, the Safe,

Accountable, Flexible, Efcient Transportation Equity Act: A

Legacy for Users (SAFETEA-LU), established a transportation

control measure substitution process, eliminating the requirement for an EPA-approved state process as found in 30 TAC

§114.270(f), relating to the TCM Substitution Process. The

SAFETEA-LU provisions supersede the state process. The

rulemaking would repeal the state section because it is no

longer necessary.

SECTION BY SECTION DISCUSSION

The proposal would amend §114.1 in Subchapter A and

§114.270 in Subchapter G; and would repeal §114.4 in Subchapter A; §114.201 and §114.202 in Subchapter F; and

§114.618 in Subchapter K.

Subchapter A. Denitions

§114.1(13) and §114.4

The proposal would amend §114.1 by repealing the denition

of MERC in §114.1(13) and repeal the MERC denitions found

in §114.4. These sections were elements of the TCF program,

which was repealed by the commission on April 26, 2006, in

accordance with SB 1032 following a repeal by the legislature

in 2005, SB 1032. The legislative repeal made these program

denitions no longer necessary. Current denitions in §114.1(14)

- (18) will be renumbered (13) - (17).

Subchapter F. Vehicle Retirement and Mobile Emission Reduction Credits

Division 1. Mobile Emission Reduction Credits

§114.201 and §114.202

The proposal would repeal the MERC program found in

§114.201 and the MERC fund found in §114.202. Both of these

sections were program elements of the TCF program, which

was repealed by the commission on April 26, 2006, following enactment of SB 1032 in 2005, which repealed the TCF program.

The legislative repeal made this program no longer necessary.

Subchapter G. Transportation Planning

§114.270. Transportation Control Measures

The proposal would amend §114.270 by deleting §114.270(f),

the TCM substitution process. The re-authorization of the

SAFETEA-LU eliminated the requirement for an EPA-approved

state process for approving TCM substitutions. The provisions

of the SAFETEA-LU establish that if there is a conict between

an approved state process and the approval process contained

in the SAFETEA-LU, the state must follow the requirements

found in the SAFETEA-LU.

Subchapter K. Mobile Source Incentive Programs

Division 2. Light-Duty Motor Vehicle Purchase or Lease Incentive Program

32 TexReg 1198 March 9, 2007 Texas Register
§114.618. Vehicle Emissions Information Brochure

The proposed rulemaking would repeal the requirement of

§114.618 that requires automobile manufacturers to publish a

brochure annually and submit it to the TCEQ by September 1st

of every year. The proposal would repeal this requirement at

the directive of HB 1365, 78th Legislature (2003).

FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT

Jeff Horvath, Analyst, Strategic Planning and Assessment Section, has determined that for the rst ve-year period the proposed rules are in effect, no scal implications are anticipated

for the agency or other units of state or local governments as a

result of administration or enforcement of the proposed rule.

The proposed rule would clarify certain transportation and air

quality rules through: 1) the repeal of certain TCF program elements, specically, MERCs; 2) the repeal of a TCM substitution

process, which was superseded by federal requirements; and 3)

the repeal of a requirement that vehicle manufacturers publish a

brochure listing eligible new light-duty motor vehicles on an annual basis.

Senate Bill 1032, 70th Legislature, 1987, repealed the TCF program. The TCF program was repealed because there was no

longer an air quality benet that could be achieved from the

program, as federal emission standards exceeded the emission

standards for low emission vehicles established under the TCF

program. Mobile emission reduction credits (MERCS) were enforceable, permanent, and quantiable emission reductions generated by a mobile source through the TCF program and could

be banked as credits. However, due to the fact that the federal

standards exceeded the TCF standards, there were no MERCS

assigned through the Texas Mobile Emission Credit Fund. No

scal implications are expected for affected entities.

Under current rule, TCMs address the roles and responsibilities

of the metropolitan planning organizations (MPOs) and implementing transportation agencies in nonattainment and maintenance areas and provide a method for the substitution of TCMs

without a state implementation plan (SIP) revision. The re-authorization of the federal surface transportation programs, the

SAFETEA-LU eliminated this section, which required an EPAapproved state process for approval of substitute TCMs. The

provisions of the SAFETEA-LU establish that if there is a conict

between an approved state process and the approval process

contained in the SAFETEA-LU, the area must follow the requirements found in the SAFETEA-LU. Removal of the state-required

section is expected to reduce the number of steps in the approval

process for substitute TCMs but is not expected to result in any

signicant scal implications for affected entities.

The proposed repeal of the requirement for automobile manufacturers to publish a brochure annually and submit it to the agency

by September 1st of every year is a result of HB 1365, 78th Legislature (2003). As this requirement was repealed in 2003, manufacturers have not been required to submit the brochures, and

repeal of the rule is not expected to result in any signicant scal

implications for the manufacturers.

PUBLIC BENEFITS AND COSTS

Mr. Horvath also determined that for each year of the rst ve

years the proposed rules are in effect, the public benet anticipated from the changes seen in the proposed rules will be compliance with state and federal law, clear and concise rules for

affected entities, and continued protection of public health and

the environment.

No signicant scal implications are anticipated for businesses

or individuals as a result of the implementation of the proposed

rule.

SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT

No adverse scal implications are anticipated for small or microbusinesses as a result of the proposed rule.

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 rst ve years that the

proposed rules are in effect.

DRAFT REGULATORY IMPACT ANALYSIS DETERMINATION

The commission reviewed the proposed rulemaking in light of the

regulatory analysis requirements of Texas Government Code,

§2001.0225, and determined the rules do not meet the denition

of a "major environmental rule." Under Texas Government Code,

§2001.0225, "major environmental rule" means a rule the specic 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. Furthermore, it does not meet any of the four applicability requirements listed in §2001.0225(a). Section 2001.0225 applies only

to a major environmental rule which 1) exceeds a standard set by

federal law, unless the rule is specically required by state law;

2) exceeds an express requirement of state law, unless the rule

is specically required by federal law; 3) exceeds 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) adopts a rule solely under the

general powers of the agency instead of under a specic state

law. The proposed rulemaking would remove various outdated

requirements and align state rules with federal and state statutes

as described in the BACKGROUND AND SUMMARY OF THE

FACTUAL BASIS FOR THE PROPOSED RULES and SECTION

BY SECTION DISCUSSION sections above. Because the proposed rules are not specically intended to protect the environment or reduce risks to human health from environmental exposure but to remove outdated rules making state rules consistent

with state and federal statutes, this rulemaking is not a major environmental rule and does not meet any of the four applicability

requirements. Because these rules remove requirements, they

do not result in any new requirements and should not adversely

affect in a material way the economy, a sector of the economy,

productivity, competition, or jobs. The commission invites public

comment regarding this draft regulatory impact analysis determination.

TAKINGS IMPACT ASSESSMENT

The commission evaluated these proposed rules and performed

a preliminary assessment of whether Texas Government Code,

Chapter 2007 is applicable. The commission’s preliminary

assessment indicates Texas Government Code, Chapter 2007

does not apply to these proposed amendments because this

action discontinues requirements as described in the BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR

THE PROPOSED RULES and SECTION BY SECTION DISPROPOSED RULES March 9, 2007 32 TexReg 1199
CUSSION sections of this preamble. Also, the proposed rules

would remove various outdated requirements and align state

rules with federal and state statutes. Promulgation and enforcement of these proposed amendments would be neither a

statutory or constitutional taking of private real property. Specifically, the proposed amendments do not affect a landowner’s

rights in private real property, because this rulemaking action

does not burden, restrict, nor limit the owner’s rights to property or reduce its value by 25% or more beyond which would

otherwise exist in the absence of the proposed regulations.

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM

The commission reviewed the proposed rulemaking and found

the proposal is a rulemaking identied in the Coastal Coordination Act Implementation Rules, 31 TAC §505.11(b)(4), concerning rules subject to the Texas Coastal Management Program (CMP), and will, therefore, require that goals and policies

of the CMP be considered during the rulemaking process. The

commission reviewed this rulemaking for consistency with the

CMP goals and policies in accordance with the regulations of

the Coastal Coordination Council and determined that the rulemaking is editorial and procedural in nature and will have no substantive effect on commission actions subject to the CMP and is,

therefore, consistent with CMP goals and policies. 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

A public hearing on this proposal will be held in Austin on April 3,

2007, at 10:00 a.m. at the Texas Commission on Environmental Quality complex located at 12100 Park 35 Circle in Building

B, Room 201A. The hearing will be structured for the receipt of

oral or written comments by interested persons. Individuals may

present oral statements when called upon in order of registration.

There will be no open discussion during the hearing; however,

an agency staff member 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

Joyce Spencer, Ofce of Legal Services, at (512) 239-5017. Requests should be made as far in advance as possible.

SUBMITTAL OF COMMENTS

Written comments may be submitted to Joyce Spencer, MC

205, Ofce of Legal Services, P.O. Box 13087, Austin, Texas

78711-3087, or faxed to (512) 239-4808. Electronic comments

may be submitted at http://www5.tceq.state.tx.us/rules/ecomments/. File size restrictions may apply to comments being

submitted via the eComments system. All comments should

reference Rule Project Number 2006-050-114-EN. The comment period closes April 9, 2007. Copies of the proposed

rule can be obtained from the commission’s Web site at

http://www.tceq.state.tx.us/nav/rules/propose_adopt.html. For

further information, please contact Santos Olivarez, Air Quality

Division, (512) 239-4718.

SUBCHAPTER A. DEFINITIONS

30 TAC §114.1

STATUTORY AUTHORITY

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

§5.102, concerning General Powers; §5.103, which authorizes

the commission to adopt rules necessary to carry out its powers

and duties under the TWC; and under Texas Health and Safety

Code, Texas Clean Air Act (TCAA), §382.017, concerning Rules,

which authorizes the commission to adopt rules consistent with

the policy and purposes of the TCAA; §382.011, which provides

for general powers and duties under the TCAA. The amendment

is proposed under 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; §382.012, which

authorizes the commission to develop a general, comprehensive

plan for the proper control of the state’s air; and §382.019 which

authorizes the commission to adopt rules to control and reduce

emissions from engines used to propel land vehicles.

The proposed amendment implements THSC, §§382.002,

382.011, 382.012, and 382.019.

§114.1. Denitions.

Unless specically dened 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 by the commission have the meanings commonly ascribed to them in the eld of air pollution control.

In addition to the terms which are dened by the TCAA, the following

words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise.

(1) - (12) (No change.)

[(13) Mobile emission reduction credit (MERC)--A credit

representing the amount of emission reductions from a mobile source

program. These emission reductions are voluntary and must be in addition to compliance with requirements of state and federal regulations.

MERCs are any enforceable, permanent, and quantiable emission reduction (exhaust and/or evaporative) generated by a mobile source,

which has been banked in accordance with the rules of the commission.

MERCs can be banked, purchased, traded, and sold to meet clean air

mandates for specied air programs, which can be applied to the emission reduction obligations of another air quality source or to air quality

attainment goals.]

(13) [(14)] Reformulated gasoline--Gasoline that has been

certied as a reformulated gasoline under the federal certication regulations adopted in accordance with 42 United States Code, §7545(k).

(14) [(15)] Texas Inspection and Maintenance State Implementation Plan--The portion of the Texas state implementation plan

that includes the procedures and requirements of the vehicle emissions

inspection and maintenance program as adopted by the commission

May 29, 1996, in accordance with 40 Code of Federal Regulations

Part 51, Subpart S, issued November 5, 1992; the United States Environmental Protection Agency exibility amendments dated September

18, 1995; and the National Highway Systems Designation Act of 1995.

A copy of the Texas Inspection and Maintenance State Implementation

Plan is available at the Texas Commission on Environmental Quality,

12100 Park 35 Circle, Austin, Texas, 78753; mailing address: P.O. Box

13087, MC 166, Austin, Texas 78711-3087.

(15) [(16)] Tier I federal emission standards--The standards are dened in 42 United States Code, §7521, and in 40 Code of

Federal Regulations, Part 86. The phase-in of these standards began

in model year 1994.

(16) [(17)] Ultra low emission vehicle--A vehicle as de-

ned by 40 Code of Federal Regulations, Part 88.

(17) [(18)] Zero emission vehicle--A vehicle as dened by

40 Code of Federal Regulations, Part 88.

32 TexReg 1200 March 9, 2007 Texas Register
This agency hereby certies that the proposal has been reviewed

by legal counsel and found to be within the agency’s legal authority to adopt.

Filed with the Ofce of the Secretary of State on February 23,

2007.

TRD-200700712

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Earliest possible date of adoption: April 8, 2007

For further information, please call: (512) 239-5017

30 TAC §114.4

(Editor’s note: The text of the following section proposed for repeal

will not be published. The section may be examined in the ofces of the

Texas Commission on Environmental Quality or in the Texas Register

ofce, Room 245, James Earl Rudder Building, 1019 Brazos Street,

Austin.)

STATUTORY AUTHORITY

The repeal is proposed under Texas Water Code (TWC), §5.102,

concerning General Powers; §5.103, which authorizes the commission to adopt rules necessary to carry out its powers and duties under the TWC; and under Texas Health and Safety Code,

Texas Clean Air Act (TCAA), §382.017, concerning Rules, which

authorizes the commission to adopt rules consistent with the policy and purposes of the TCAA; §382.011, which provides for general powers and duties under the TCAA. The repeal is proposed

under THSC, §382.002, concerning Policy and Purpose, which

establishes the commission purpose to safeguard the state’s air

resources, consistent with the protection of public health, general welfare, and physical property; §382.012, which authorizes

the commission to develop a general, comprehensive plan for

the proper control of the state’s air; and §382.019 which authorizes the commission to adopt rules to control and reduce emissions from engines used to propel land vehicles.

The proposed repeal implements THSC, §§382.002, 382.011,

382.012, and 382.019.

§114.4. Mobile Emission Reduction Credit Denitions.

This agency hereby certies that the proposal has been reviewed

by legal counsel and found to be within the agency’s legal authority to adopt.

Filed with the Ofce of the Secretary of State on February 23,

2007.

TRD-200700713

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Earliest possible date of adoption: April 8, 2007

For further information, please call: (512) 239-5017

SUBCHAPTER F. VEHICLE RETIREMENT

AND MOBILE EMISSION REDUCTION

CREDITS

DIVISION 1. MOBILE EMISSION

REDUCTION CREDITS

30 TAC §114.201, §114.202

(Editor’s note: The text of the following sections proposed for repeal

will not be published. The sections may be examined in the ofces of the

Texas Commission on Environmental Quality or in the Texas Register

ofce, Room 245, James Earl Rudder Building, 1019 Brazos Street,

Austin.)

STATUTORY AUTHORITY

The repeals are proposed under Texas Water Code (TWC),

§5.102, concerning General Powers; §5.103, which authorizes

the commission to adopt rules necessary to carry out its powers

and duties under the TWC; and under Texas Health and Safety

Code, Texas Clean Air Act (TCAA), §382.017, concerning Rules,

which authorizes the commission to adopt rules consistent with

the policy and purposes of the TCAA; §382.011, which provides

for general powers and duties under the TCAA. The repeals are

proposed under 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; §382.012, which

authorizes the commission to develop a general, comprehensive plan for the proper control of the state’s air; and §382.019

which authorizes the commission to adopt rules to control and

reduce emissions from engines used to propel land vehicles.

The proposed repeals implement THSC, §§382.002, 382.011,

382.012, and 382.019.

§114.201. Mobile Emission Reduction Credit Program.

§114.202. Texas Mobile Emission Reduction Credit Fund.

This agency hereby certies that the proposal has been reviewed

by legal counsel and found to be within the agency’s legal authority to adopt.

Filed with the Ofce of the Secretary of State on February 23,

2007.

TRD-200700714

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Earliest possible date of adoption: April 8, 2007

For further information, please call: (512) 239-5017

SUBCHAPTER G. TRANSPORTATION

PLANNING

30 TAC §114.270

STATUTORY AUTHORITY

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

§5.103, which authorizes the commission to adopt rules necessary to carry out its powers and duties under the TWC; and

under Texas Health and Safety Code, Texas Clean Air Act

(TCAA), §382.017, concerning Rules, which authorizes the

commission to adopt rules consistent with the policy and purposes of the TCAA; §382.002 concerning Policy and Purpose,

which establishes the commission’s purpose to safeguard the

state’s air resources, consistent with the protection of public health, general welfare, and physical property; §382.011,

PROPOSED RULES March 9, 2007 32 TexReg 1201
which provides for general powers and duties under the TCAA;

§382.012, which authorizes the commission to develop a general, comprehensive plan for the proper control of the state’s

air; and §382.208, which authorizes the commission to work

with federal, state, and local transportation planning agencies

to develop and implement transportation programs and other

measures necessary to demonstrate and maintain attainment of

national ambient air quality standards. The amendment is also

proposed under the statutory requirement for transportation

conformity found in §176(c) of the 1990 Federal Clean Air Act

Amendments. In addition, 40 Code of Federal Regulations

(CFR) Part 51, Subpart T and Part 93, Subpart A established

criteria and procedures for determining whether transportation

plans, programs, and projects in nonattainment and maintenance areas conform with the state implementation plan.

The proposed amendment implements THSC, §§382.002,

382.011, 382.012, 382.017, and 382.019.

§114.270. Transportation Control Measures.

(a) - (e) (No change.)

[(f) TCM substitution process. If a TCM cannot be implemented by the implementation date specied in the SIP, the parties

in the interagency consultation process established under §114.260 of

this title shall determine whether the TCM continues to be appropriate.

When the MPO and the commission concur that a TCM identied in the

SIP is no longer appropriate for any reason, the agencies may initiate

the following process to identify and approve a substitute TCM. This

process is the only way in which a TCM may be substituted. Approval

of substitute TCMs shall not constitute a SIP revision for the purpose

of transportation conformity when this process is followed.]

[(1) A substitute TCM must provide for:]

[(A) equivalent or greater emissions reductionsthan the

TCM to be replaced;]

[(B) implementation in the time frame established for

the TCM in the SIP. If the implementation date has already passed,

measures that require funding must be included in the rst year of the

next transportation improvement program and metropolitan transportation plan adopted by the MPO;]

[(C) full implementation not later than two years from

the scheduled implementation date of the original TCM in order to meet

timely TCM implementation criteria under §114.260 of this title;]

[(D) evidence of adequate personnel, funding, and authority under state or local law to implement, monitor, and enforce the

measures in order for the commission to approve the substitute TCM;

and]

[(E) evidence of commitments to implement the substitute TCM must be made by the agency with legal authority for implementation.]

[(2) The analysis of substitute TCMs must be consistent

with the methodology used for evaluating TCMs in the SIP. If emissions models and/or transportation models have changed since measures in the SIP were evaluated, both the TCM to be replaced and the

substitute TCM shall be evaluated using the latest modeling techniques

to demonstrate that equivalent or greater emissions reductions will be

achieved through implementation of the substitute TCM. Key methodologies and assumptions that must be consistent are:]

[(A) EPA approved regional and hot-spot (for carbon

monoxide and particulate matter) emission models;]

[(B) the area transportation model; and]

[(C) population and employment growth projections.]

[(3) To identify and evaluate possible substitute TCMs, the

MPO shall convene a committee or working group which shall consult

with EPA Region 6. Consultation may be accomplished by sending

copies of all draft and nal documents, agendas, and reports to EPA

Region 6. The committee or working group shall include:]

[(A) members from all affected jurisdictions, including

local air agencies;]

[(B) the commission; and]

[(C) state and local transportation agencies.]

[(4) The MPO, the commission, and the EPA Region 6

must concur with the appropriateness and equivalency of the substitute

TCM. All agreed upon substitute TCMs must be adopted by the

commission following the public comment period and the EPA 14-day

concurrence period.]

[(5) Before the commission approves a substitute measure,

the substitute TCM(s) must have been subject to a public hearing and

comment process conducted by the commission. The TCM substitution process parallels the rulemaking and SIP processes for the purpose

of public participation; however, commission approval of a substitute

TCM shall not constitute a SIP revision for the purpose of transportation conformity. There must be at least one public hearing on the substitution. The hearing can only be held after reasonable public notice,

which will be considered to be a minimum of 30 days prior to the hearing. The public notice shall include:]

[(A) prominent advertising in the affected area announcing the date, time, and place of the hearing; and]

[(B) availability of each proposed substitute TCM for

public inspection in at least one location in the affected area.]

[(6) The public notice shall include a description of the

substitute TCM and supporting analysis, including assumptions and

methodology.]

[(7) Following the close of the public comment period, the

commission shall respond to all commentsreceived, and submit to EPA

Region 6 a summary of comments received during the public comment

period along with the commission responses to all comments. EPA

shall notify the commission within 14 days of receipt of the summary

of comments and responses if its concurrence with the substitute TCM

has changed as a result of the public comments. If EPA fails to notify

the commission within 14 days, EPA is deemed to concur.]

[(8) The TCM being replaced shall stay in effect until the

substitute TCM has been approved. By approving a substitute TCM,

the commission formally rescinds the previously applicable TCM.]

[(9) The commission shall maintain documentation of approved TCM substitutions. The documentation shall consist of a description of the substitute and replaced TCMs, including the requirements and schedules; a description of the substitution process, including a list of the committee or working group members; the public

hearing and comment process; EPA concurrence; and commission approval. The documentation shall be submitted to EPA following the

approval of the substitute measure by the commission and made available to the public as an attachment to the SIP.]

This agency hereby certies that the proposal has been reviewed

by legal counsel and found to be within the agency’s legal authority to adopt.

32 TexReg 1202 March 9, 2007 Texas Register
Filed with the Ofce of the Secretary of State on February 23,

2007.

TRD-200700715

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Earliest possible date of adoption: April 8, 2007

For further information, please call: (512) 239-5017

SUBCHAPTER K. MOBILE SOURCE

INCENTIVE PROGRAMS

DIVISION 2. LIGHT-DUTY MOTOR VEHICLE

PURCHASE OR LEASE INCENTIVE PROGRAM

30 TAC §114.618

(Editor’s note: The text of the following section proposed for repeal

will not be published. The section may be examined in the ofces of the

Texas Commission on Environmental Quality or in the Texas Register

ofce, Room 245, James Earl Rudder Building, 1019 Brazos Street,

Austin.)

STATUTORY AUTHORITY

The repeal is proposed under Texas Water Code (TWC), §5.102,

concerning General Powers; §5.103, which authorizes the commission to adopt rules necessary to carry out its powers and duties under the TWC; and under Texas Health and Safety Code,

Texas Clean Air Act (TCAA), §382.017, concerning Rules, which

authorizes the commission to adopt rules consistent with the policy and purposes of the TCAA; §382.011, which provides for general powers and duties under the TCAA. The repeal is proposed

under 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; §382.012, which authorizes

the commission to develop a general, comprehensive plan for

the proper control of the state’s air; and §382.019 which authorizes the commission to adopt rules to control and reduce emissions from engines used to propel land vehicles.

The proposed repeal implements THSC, §§382.002, 382.011,

382.012, and 382.019.

§114.618. Vehicle Emissions Information Brochure.

This agency hereby certies that the proposal has been reviewed

by legal counsel and found to be within the agency’s legal authority to adopt.

Filed with the Ofce of the Secretary of State on February 23,

2007.

TRD-200700716

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Earliest possible date of adoption: April 8, 2007

For further information, please call: (512) 239-5017

CHAPTER 305. CONSOLIDATED PERMITS

The Texas Commission on Environmental Quality (TCEQ or

commission) proposes amendments to §§305.69, 305.175,

305.571, and 305.572.

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS

FOR THE PROPOSED RULES

The federal hazardous waste program is authorized under

Section 3006 of the Resource Conservation and Recovery

Act (RCRA) of 1976. States may obtain authorization from

the United States Environmental Protection Agency (EPA) to

administer the hazardous waste program at the state level.

State authorization is a rulemaking process through which EPA

delegates the primary responsibility of implementing the RCRA

hazardous waste program to individual states in lieu of EPA.

This process ensures national consistency and minimum standards while providing exibility to states in implementing rules.

State RCRA programs must always be at least as stringent as

the federal requirements.

Since the beginning of the federal hazardous waste program,

the State of Texas has continuously exercised its prerogative to

participate in the EPA’s authorization program. Texas received

authorization of its hazardous waste "base program" under the

RCRA on December 26, 1984. Texas received authorization for

revisions to its base hazardous waste program for Clusters I and

II on February 17, 1987. Texas submitted further revisions to

its hazardous waste program and received nal authorization of

Clusters III through X on March 15, 1990, July 23, 1990, October 21, 1991, December 4, 1992, June 27, 1994, November

26, 1997, October 18, 1999, September 11, 2000, and June 14,

2005.

To maintain authorization, the commission must adopt regulations that meet the minimum standards of federal programs

administered by EPA. Because the federal regulations undergo

regular revision, the commission adopts new regulations to meet

the changing federal regulations. The commission must adopt

rule amendments that implement certain mandatory revisions

to the federal hazardous waste program, which were made

by EPA after May 14, 2001. In order for the State of Texas to

maintain its RCRA authorization and continue to receive federal

funding for the program, the mandatory federal rule changes in

RCRA Rule Clusters XI, XII, XIII, and XV must be incorporated

into state rules.

This rulemaking includes the mandatory parts of RCRA Rule

Clusters XI, XII, XIII, and XV. Establishing equivalency with federal regulations will enable the State of Texas to increase its

level of authorization to operate aspects of the federal hazardous

waste program in lieu of the EPA. Additionally, the timely adoption of these federal rules allows the commission to continue

receiving special project funding through the EPA Performance

Partnership Grant.

The Hazardous Waste Combustion Maximum Achievable

Control Technology (MACT) regulations are multi-media at the

federal and state level, affecting both air quality and hazardous

waste management. The TCEQ has already adopted certain

parts of Title 40 Code of Federal Regulations (CFR) Part 63,

Subpart EEE (i.e., the Hazardous Waste Combustion MACT

rules) prior to this rulemaking under air quality regulations at

Title 30 Texas Administrative Code (TAC) Chapter 113. This

rulemaking includes other parts of the federal combustion

MACT program, which are encoded at 40 CFR Parts 264, 265,

266, and 270. The proposed changes related to air quality

PROPOSED RULES March 9, 2007 32 TexReg 1203
WRITTEN AND 

ORAL TESTIMONY 
Reference Number 

W-1 

INDEX OF WRITTEN TESTIMONY 

Submitted by 

United States Environmental Protection Agency 
Ms. Joyce Spencer 

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

REGION 6 

1445 ROSS AVENUE, SUITE 1200 

DALlAS, TX 75202-2733 

April 5, 2007 

Office of Legal Services, MC 205 

Texas Conunission on Environmental Quality 

P.O. Box 13087 

Austin, TX 78711-3087 

Re: Rule Project Number 2006-050-114-EN 

Dear Ms. Spencer: 

We received from your office on February 27,2007, a package containing proposed 

revisions to the State Implementation Plan (SIP) for mobile source requirements. These 

proposed revisions would repeal certain elements of the SIP in response to implementation of 

federal and state legislation, as follows: 

1. The 2005 Safe, Accountable, Flexible, Efficient, Transportation Equity Act- a 

Legacy for Users (SAFETEA-LU), included provisions for the substitution of 

Transportation Control :Measures (TCM). The statutory language now in the 

Clean Air Act as a result of SAFETEA-LU renders the state's TCM substitution 

rule obsolete. We support the repeal of30 TAC 114.270(f). 

2. In 2005, the 79111 Texas Legislature enacted Senate Bill 1032, which repealed the . 

Mobile Emission Reduction Credit (MERC) program. This SIP proposal serves 

to repeal the remaining elements of the Texas Clean Fleet program, whlch was 

itself previously repealed by state statute. We do not oppose the repeal of 30 T AC 

114.1(13), 30 TAC 114.4, 30 TAC 114.201, or 30 TAC 114.202. 

3. hl2003, the 781

h Texas Legislature enacted House Bill 1365, thus removing the 

requirement that automobile manufacturers publish annually a brochure listing 

eligible vehicles for the Texas Clean Fleet. This proposal eliminates this 

requirement from the SIP. We do not oppose repeal of30 TAC 114.618. 

Thank you for the opportunity to comment on these SIP revisions. Please contact me or 

Ms. Peggy Wade of my staff at 214-665-7247 if we may be off further assistance. 

Sincerely yours, ~ , 

~ti~\0€ 

Thomas H. Diggs 

Chief 

Air Planning Section 

Rocycled/Recyclable • Printed with Vegetable Oil Based inks on 100% Reqcied Paper (40% Postconsumer) 
INDEX OF ORAL TESTIMONY 

No oral testimony was received pertaining to this proposal. 
EVALUATION OF 

TESTIMONY 
To: Commissioners Date: June 8, 2007 

Thru: LaDonna Castafiuela, Chief Clerk 

Glenn Shankle, Executive Director 

From: David C. Schanbacher, P.E., Chief Engineer \JC) 

Chief Engineer's Office 

Docket No.: 2006-2162-RUL 

Subject: Commission Approval for Rulemaking Adoption 

Chapter 114, Control of Air Pollution from Motor Vehicles 

Transportation - Air Quality Revisions 

Rule Project No. 2006-050-114-EN 

Reasons for the rule package: 

This rulemaking aligns certain transportation-related air quality rules and definitions in 30 T AC Chapter 114 

with recent state and federal statutory changes by repealing or amending the following provisions. 

• Mobile emission reduction credit program and fund. Senate Bill 103 2 by the 79th Legislature, 

2005: (1) repealed the mobile emission reduction credit program and fund, i.e., 30 TAC §114.201 

and § 114.202, (2) amended 30 T AC § 114.1 by repealing the definition of mobile emission reduction 

credit, and (3) repealed 30 T AC § 114.4, mobile emission reduction credit definitions. The adoption 

of this rulemaking repeals these sections. (Note: Repeal of these rules will not impact the Mobile 

Discrete Emissions Reduction Credit Program, implemented per 30 TAC § 10 1.374.) 

• Transportation Control Measures (TCM) substitution. The federal surface transportation 

reauthorization act, the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy 

for Users (SAFETEA-LU), established a transportation control measure substitution process, 

eliminating the need for a United States Environmental Protection Agency-approved state process, 

i.e., 30 T AC § 114.270(f). SAFETEA-LU states that if there is a conflict between an approved state 

mechanism and the provisions contained in SAFETEA-LU, the area must follow the requirement 

contained in SAFETEA-LU. 

• Vehicle emission information brochure. House Bill 1365 by the 78th Legislature, 2003, repealed 

tl1e requirement for vehicle manufacturers to publish and distribute a brochure annually, i.e., 30 TAC 

§ 114.618. The adoption of this rulemaking repeals this section. 

Under what authority are we adopting these changes? The rules are adopted under Texas 

Water Code (TWC), §5.103, which authorizes the commission to adopt rules necessary to carry 

out its powers and duties under the TWC; and under Texas Health and Safety Code, Texas Clean 

Air Act (TCAA), §382.017, concerning Rules, which authorizes the commission to adopt rules 

consistent with the policy and purposes of the TCAA; §382.011, which provides for general 
Commissioners 

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June 8, 2007 

Re: Docket No. 2006-2162-RUL 

powers and duties under the TCAA; §382. 012, which authorizes the commission to develop a 

general, comprehensive plan for the proper control of the state's air; §382.208, which authorizes 

the commission to work with federal, state, and local transportation planning agencies to develop 

and implement transportation programs and other measures necessary to demonstrate and maintain 

attainment of national ambient air quality standards. The rules are also adopted under the statutory 

requirement for transportation conformity found in §176(c) of the 1990 Federal Clean Air Act 

Amendments. In addition, 40 Code of Federal Regulations (CFR) Part 51, Subpart T and Part 93, 

Subpart A established criteria and procedures for determining whether transportation plans, 

programs, and projects in nonattainment and maintenance areas conform with the state 

implementation plan. 

Is this rulemaking required by federal rule or state statute? Which ones? No. 

Are there any legal deadlines by which these rules must be adopted or effective? No. 

What issue(s) or problem(s) are we trying to solve? The adopted rulemaking aligns certain 

transportation-related air quality rules and definitions with state and federal statutes. 

Why is it important that we do this rule package? The adopted rulemaking clarifies 

requirements by aligning certain transportation-related air quality rules and definitions with recent 

changes to state and federal statutes that have made these requirements no longer necessary. 

Other important background or historical information. None. 

Scope of the rulemaking: 

This adopted rulemaking aligns certain transportation air quality-related rules and definitions in 30 

TAC Chapter 114 with state and federal statutes by repealing or amending the following provisions 

and associated definitions: mobile emissions reduction credit program and fund, TCM substitution, 

and the vehicle emission information brochure. 

Changes required by federal rule: None. 

Changes required by state statute: None. 

Staff recommendations that are not expressly required by federal rule or state statute: None. 

Impact on the regulated community: 

Who will be affected? No one. 

Does it create a group of affected persons who were not affected previously? How? No new 

group or persons are affected because the revisions are already a matter of Ia w. 
Commissioners 

Page 3 

June 8, 2007 

Re: Docket No. 2006-2162-RUL 

Will there be a fiscal impact? If so, estimate. No. 

Impact on the public: 

Who will be affected? No one. 

Does it create a group of affected persons who were not affected previously? How? No. 

Will there be a fiscal impact? If so, estimate. None. 

Impact on agency programs: No impact because the revisions are already a matter of law. 

Stakeholder meetings: 

Have any stakeholder meetings been held? No. 

With whom? Not applicable. 

What were the general sentiments? Not applicable. 

Were any changes made in response to stakeholder concerns? Not applicable. 

Policy issues: 

What policy issues are affected? None. 

Are any policies that are not currently based on rule being made into a rule? No. 

What are the consequences if this rulemaking is not approved to go forward? None. 

Are there alternatives? The commission could choose not to adopt these revisions. 

Potentially controversial matters: 

Staff is unaware of any controversial issues regarding these revisions. 

Key points in adoption rulemaking schedule: 

Texas Register proposal publication date: March 9, 2007 

Anticipated effective date: July 19, 2007 

Six-month Texas Register filing deadline: September 10, 2007 
Commissioners 

Page 4 

June 8, 2007 

Re: Docket No. 2006-2162-RUL 

Public comment: 

No oral comments were received during the public hearing which was held on April 3, 2007. 

Written comments were received from the Environmental Protection Agency (EPA). EPA 

supported the commission's proposed actions in implementing state and federal statutes. 

Significant changes from proposal: 

No significant changes from proposal have been included in this adoption. 

Agency contacts: 

Santos Olivarez, Rule Project Manager, 239-4718, Air Quality Division 

John Minter, Staff Attorney, 239-0663 

Lisa Martin, Texas Register Coordinator, 239-1966 

Attachments 

cc: Chief Clerk, 5 copies 

Executive Director's Office 

David C. Schanbacher, P.E. 

Jason Skaggs 

Ashley K. Wadick 

Becky Walker 

Office of General Counsel 

Susana M. Hildebrand, P.E. 

Santos Olivarez 

Lisa Martin 

cc (without attachments): 

John Minter, Staff Attorney 

Kerry Howard, Program Office Liaison 

Theresa Pella, Division Liaison 

Booker Harrison, OLS Liaison 

Russ Kimble, OLS 

Margie McAllister, Team Leader 
EVALUATION OF TESTIMONY 

The Texas Commission on Environmental Quality (commission) adopts amendments to 30 TAC 

§114.1 and §114.270, and the repeal of§§114.4, 114.201, 114.202, and 114.618. Section 

114.270 is adopted with changes to the text as published in the March 9, 2007, issue of the 

Texas Register (32 TexReg 1197). Sections 114.1, 114.4, 114.201, 114.202 and 114.618 are 

adopted without changes to the proposed text and, therefore, 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 

This rulemaking aligns certain transportation-air quality rules and definitions with state and 

federal statutes by repealing the following rules: the Mobile Emission Reduction Credit (MERC) 

program and associated fund and definitions, the Light-Duty Motor Vehicle Purchase or Lease 

Incentive Program Vehicle Emissions Information Brochure, and the Transportation Control 

Measures (TCM) Substitution Process. These provisions were either repealed by state statute 

or superseded by federal statute. 

The 1990 Federal Clean Air Act (FCAA) Amendments, §182(c)(4), required states to either 

adopt the Federal Clean Fuel Fleet (FCFF) program outlined in FCAA, §246, or implement a 

program that demonstrates long-term reductions in ozone-producing and toxic air emissions 

equal to those achieved under the FCFF program. The FCFF program requires federal, state, 

and local governments, and private fleets to purchase low-emission vehicles (LEVs) in areas 

classified by the EPA as being in serious, severe, or extreme nonattainment of the national 

ambient air quality standards (NAAQS) for ozone and carbon monoxide (CO). 

The State of Texas, in a committal Sl P revision submitted to the EPA on November 15, 1992, 

opted out of the FCFF program in order to implement a fleet emission control program designed 
by the state. In 1994 the commission submitted the state's opt-out program in a SIP revision to 

the EPA and adopted rules to implement the Texas Alternative Fuel Fleet (TAFF) program as a 

substitute to the FCFF program in the areas of Texas classified by EPA as being in serious, 

severe, or extreme nonattainment of the NAAQS for ozone or CO. 

In 1995 the 74th Texas Legislature modified the state's alternative fuels program (Texas Health 

and Safety Code, Chapter 382, Subchapter F) through the passage of Senate Bill 200 (SB 200). 

The legislature facilitated fuel neutrality through the incorporation of the federal low emission 

vehicle (LEV) standards regardless of fuel type for certain affected fleets. The legislation 

required the commission to adopt regulations to implement the revised program. The 

commission adopted regulations that established the Texas Clean Fleet (TCF) program. In 

1997 the 75th Texas Legislature further modified the state's alternative fuels program through 

the passage of Senate Bill681 (SB 681). SB 681 removed the commission's authority to 

require the program in moderate nonattainment areas, limited the commission's authority to the 

seriolfs and above ozone nonattainment areas, and modified the state's alternative fuels 

program. The basic requirement of LEV purchases was retained, but the implementation 

schedule was modified. SB 681 required the commission to adopt regulations to implement the 

program as modified by the legislation. 

MERCs were part of the commission's TCF economic incentive program to help reduce vehicle 

emissions of volatile organic compounds (VOC) and nitrogen oxides (NOx). The program was 

intended to provide additional flexibility for business, develop innovative strategies to control 

mobile source emissions, and reduce the cost of compliance with the FCAA. MERCs were 

enforceable, permanent, and quantifiable emission reductions generated by a mobile source 

through the TCF program. Emission reductions that remain after an entity satisfied their 

requirements could be banked as credits. 

2 
In 2005 the 79th Texas Legislature passed Senate Bill 1032 (SB 1 032), which repealed TCF in 

its entirety. This action also repealed the MERC program, MERC fund, and corresponding 

definitions. On April 26, 2006, the commission adopted the repeal of the TCF program as 

directed by SB 1032. This rulemaking repeals the remaining program elements, including the 

MERC program. 

In 2001 the 77th Texas Legislature (2001) passed Senate Bill 5 (SB 5) establishing the Texas 

Emission Reduction Plan (TERP), which provided financial incentives for reducing emissions of 

on-road and non-road motor vehicles and equipment, grants for the development of new 

emission control technology, new building energy efficiency standards, and research and 

development programs. SB 5 programs were estimated to achieve reductions in excess of the 

reductions expected from the rules that were being repealed. In accordance with SB 5, the 

state implementation plan (SIP) was revised to replace certain rules with TERP. The adopted 

TERP rules established a state-wide incentive program for the purchase of new on-road diesel 

vehicles and light-duty motor vehicles that met emission standards more stringent than those 

required by federal requirements. 

As a result of these new rules, a new §114.618 was adopted in August 2001, which required 

vehicle manufacturers to publish a brochure of eligible incentive vehicles by September 1 of 

each year. This brochure is also required to be submitted to the executive director, or his 

designee, by the same date. 

House Bill 1365 (HB 1365) by the 78th Legislature (2003) repealed the requirement for vehicle 

manufacturers to publish and distribute a brochure annually. This adopted rulemaking repeals 

the rule implementing this requirement. 

The federal surface transportation reauthorization act, the Safe, Accountable, Flexible, Efficient 

Transportation Equity Act: A Legacy for Users (SAFETEA-LU), established a transportation 

3 
control measure substitution process, eliminating the requirement for an EPA-approved state 

process as found in 30 TAC §114.270(f), relating to the TCM Substitution Process. The federal 

SAFETEA-LU transportation control measure substitution process replaces and supersedes the 

state process. This adoption repeals the state section because it is no longer necessary. 

Because the federal process is largely based on the Texas process, no change is expected to 

occur in the state as a result of this revision. 

SECTION BY SECTION DISCUSSION 

The adoption amends, without changes from proposal, §114.1 in Subchapter A and §114.270 in 

Subchapter G; and repeals §114.4 in Subchapter A; §114.201 and §114.202 in Subchapter F; 

and §114.618 in Subchapter K. 

§114. 1 (13) and § 114. 4. Subchapter A, Definitions. 

The adoption amends §114.1 by repealing the definition of MERC in §114.1 (13) and repeals the 

MERC definitions found in §114.4. These sections were elements of the TCF program, which 

was repealed by the commission on April 26, 2006, in accordance with SB 1032 following a 

repeal by the legislature in 2005, SB 1 032. The legislative repeal made these program 

definitions no longer necessary. Current definitions in §114.1 (14) through (18) will be 

renumbered (13) through (17). 

§114.201 and §114.202. Subchapter F, Division 1, Mobile Emission Reduction Credit Program. 

The adoption repeals the MERC program found in §114.201 and the MERC fund found in 

§114.202. Both of these sections were program elements of the TCF program, which was 

repealed by the commission on April 26, 2006, following enactment of SB 1 032 in 2005, which 

repealed the TCF program. The legislative repeal made this program no longer necessary. 

§114.270. Subchapter G, Transportation Control Measures. 

4 
The adoption amends §114.270 by deleting §114.270(f), the TCM substitution process. Thereauthorization of the SAFETEA-LU eliminated the requirement for an EPA-approved state 

process for approving TCM substitutions. The provisions of the SAFETEA-LU establish that if 

there is a conflict between an approved state process and the approval process contained in the 

SAFETEA-LU, the state must follow the requirements found in the SAFETEA-LU. This adoption 

also strikes language in subsection (a). Subsequent to the close of the public comment period, 

the commission determined that language in subsection (a), referring to the now-deleted TCM 

substitution process in subsection (f), should be stricken in order to provide consistency in the 

rule and avoid confusion. 

§114.618. SubchapterK, Vehicle Emissions Information Brochure. 

The adopted rulemaking repeals the requirement of §114.618 that requires automobile 

manufacturers to publish a brochure annually and submit it to the TCEQ by September 1st of 

every year. The adoption repeals this requirement at the directive of HB 1365, 78th Legislature 

(2003). 

FINAL REGULATORY IMPACT ANALYSIS DETERMINATION 

The commission reviewed the rulemaking in light of the regulatory analysis requirements of 

Texas Government Code, §2001.0225, and determined the rules do not meet the definition of a 

"major environmental rule." Under Texas Government Code, §2001.0225, "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. Furthermore, it does not meet any 

of the four applicability requirements listed in §2001.0225(a). Section 2001.0225 applies only to 

a major environmental rule which 1) exceeds a standard set by federal law, unless the rule is 

specifically required by state law; 2) exceeds an express requirement of state law, unless the 

rule is specifically required by federal law; 3) exceeds a requirement of a delegation agreement 

5 
or contract between the state and an agency or representative of the federal government to 

implement a state and federal program; or 4) adopts a rule solely under the general powers of 

the agency instead of under a specific state law. The adopted rulemaking removes various 

outdated requirements and aligns state rules with federal and state statutes as described in the 

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULES and 

SECTION BY SECTION DISCUSSION sections above. Because the adopted rules are not 

specifically intended to protect the environment or reduce risks to human health from 

environmental exposure but to remove outdated rules making state rules consistent with state 

and federal statutes, this adopted rulemaking is not a major environmental rule and does not 

meet any of the four applicability requirements. Because these adopted rules remove 

requirements, they do not result in any new requirements and should not adversely affect in a 

material way the economy, a sector of the economy, productivity, competition, or jobs. The 

commission solicited public comment regarding this draft regulatory impact analysis 

determination. No comments were received on the draft regulatory impact analysis 

determination. 

TAKINGS IMPACT ASSESSMENT 

The commission evaluated these rules and performed an assessment of whether Texas 

Government Code, Chapter 2007 is applicable. The commission's assessment indicates Texas 

Government Code, Chapter 2007 does not apply to these adopted amendments because this 

action discontinues requirements as described in the BACKGROUND AND SUMMARY OF THE 

FACTUAL BASIS FOR THE ADOPTED RULES and SECTION BY SECTION DISCUSSION 

sections of this preamble. Also, the adopted rules remove various outdated requirements and 

align state rules with federal and state statutes. Promulgation and enforcement of these 

amendments will be neither a statutory or constitutional taking of private real property. 

Specifically, the adopted amendments do not affect a landowner's rights in private real property, 

because this rulemaking action does not burden, restrict, nor limit the owner's rights to property 

6 
or reduce its value by 25% or more beyond which would otherwise exist in the absence of the 

adopted regulations. 

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM 

The commission reviewed the adopted rulemaking and found the adoption is a rulemaking 

identified in the Coastal Coordination Act Implementation Rules, 31 TAC §505.11 (b)(4), 

concerning rules subject to the Texas Coastal Management Program (CMP), and , therefore, 

required that goals and policies of the CMP be considered during the rulemaking process. The 

commission reviewed this rulemaking for consistency with the CMP goals and policies in 

accordance with the regulations of the Coastal Coordination Council and determined that the 

rulemaking is editorial and procedural in nature and will have no substantive effect on 

commission actions subject to the CMP and is, therefore, consistent with CMP goals and 

policies. The commission invited public comment regarding the consistency of the rules with 

the CMP. No comments were received regarding the consistency of the rules with the CMP. 

PUBLIC COMMENT 

The proposal was published in the March 9, 2007, issue of the Texas Register (32 TexReg 

1197). The commission held a public hearing on April 3, 2007, in Austin. The comment period 

closed on April 9, 2007. The commission received comments from only the Environmental 

Protection Agency (EPA). 

RESPONSE TO COMMENTS 

EPA supported the commission's proposed repeals in response to implementation of federal 

and state legislation. EPA commented that statutory language now in the Clean Air Act as a 

result of SAFETEA-LU rendered the commission's TCM rule obsolete and therefore, supported 

the repeal of 30 TAC §114.270(f). EPA commented that they did not oppose the repeal of the 

MERCs program or the requirement that automobile manufacturers publish annually a brochure 

listing vehicles' emissions standards since both actions were implementation of state legislation. 

7 
The commission did not make any changes to the rule in response to this comment. The 

rulemaking aligns certain transportation-air quality requirements with federal and state 

legislation and statutes. The commission appreciates EPA's support in this action. 

8 
STAFF 

RECOMMENDATIONS
STATUTORY AUTHORITY 

SUBCHAPTER A: DEFINITIONS 

§114.1 

The amendment is adopted under Texas Water Code (TWC), §5.1 02, concerning General Powers; 

§5.1 03, which authorizes the commission to adopt rules necessary to carry out its powers and duties 

under the TWC; and under Texas Health and Safety Code, Texas Clean Air Act (TCAA), §382.017, 

concerning Rules, which authorizes the commission to adopt rules consistent with the policy and 

purposes of the TCAA; §382.011, which provides for general powers and duties under the TCAA. The 

amendment is adopted under 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; §382.012, which authorizes the commission to develop a 

general, comprehensive plan for the proper control of the state's air; and §382.019 which authorizes the 

commission to adopt rules to control and reduce emissions from engines used to propel land vehicles. 

The adopted amendment implements THSC, §§382.002, 382.011,382.012, and 382.019. 

§114.1. 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 by the commission have 

the meanings commonly ascribed to them in the field of air pollution control. In addition to the terms 

which are defined by the TCAA, the following words and terms, when used in this chapter, have the 

following meanings, unless the context clearly indicates otherwise. 

(1) Dual-fuel vehicle--Any motor vehicle or motor vehicle engine engineered and 

designed to be operated on two different fuels, but not a mixture of the two. 
(2) Emergency vehicle--A vehicle defined as an authorized emergency vehicle 

according to Texas Transportation Code, §541.201 (1 ). 

(3) Emissions--The emissions of oxides of nitrogen, volatile organic compounds, carbon 

monoxide, particulate, or any combination of these substances. 

(4) First safety inspection certificate--Initial Texas Department of Public Safety (DPS) 

certificates issued through DPS certified inspection stations for every new vehicle found to be in 

compliance with the rules and regulations governing safety inspections. 

(5) Gross vehicle weight rating--The value specified by the manufacturer as the 

maximum design loaded weight of a vehicle. This is the weight as expressed on the vehicle's registration, 

and includes the weight the vehicle can carry or draw. 

(6) Heavy-duty vehicle--Any passenger vehicle or truck capable of transporting people, 

equipment, or cargo, that has a gross vehicle weight rating (G\NVR) greater than 8,500 pounds, and is 

required to be registered under Texas Transportation Code, §502.002. For purposes of the mobile 

emission reduction credit trading program the heavy-duty class is divided into the following subclasses: 

(A) Light heavy-duty vehicle--Any passenger vehicle or truck capable of 

transporting people, equipment, or cargo that has a G\NVR greater than 8,500 pounds, but less than or 

equal to 10,000 pounds. 

(B) Medium heavy-duty vehicle--Any passenger vehicle or truck capable of 

transporting people, equipment, or cargo that has a G\NVR greater than 10,000 pounds, but less than or 

equal to 19,500 pounds. 

2 
(C) Heavy heavy-duty vehicle--Any passenger vehicle or truck capable of 

transporting people, equipment, or cargo that has a GVWR greater than 19,500 pounds. 

(7) Inherently low emission vehicle--A vehicle as defined by 40 Code of Federal 

Regulations, Part 88. 

(8) Law enforcement vehicle--Any vehicle controlled by a local government and 

primarily operated by a civilian or military police officer or sheriff, or by state highway patrols, or other 

similar law enforcement agencies, and which is used for the purpose of law enforcement activities 

including, but not limited to, chase, apprehension, surveillance, or patrol of people engaged in or 

potentially engaged in unlawful activities. 

(9) Light-duty vehicle--Any passenger vehicle or truck capable of transporting people, 

equipment, or cargo, that has a gross vehicle weight rating (GVWR) less than or equal to 8,500 pounds, 

and registered or required to be registered under Texas Transportation Code, §502.002. For purposes of 

the mobile emission reduction credit trading program the light-duty class is divided into the following 

subclasses: 

(A) Light-duty vehicle--Any passenger vehicle capable of seating 12 or fewer 

passengers that has a GVWR less than or equal to 6,000 pounds. 

(B) Light-duty truck 1--Any passenger truck capable of transporting people, 

equipment, or cargo, that has a GVWR less than or equal to 6,000 pounds. 

(C) Light-duty truck 2--Any passenger truck capable of transporting people, 

equipment, or cargo, that has a GVWR greater than 6,000 pounds, but less than or equal to 8,500 

pounds. 

3 
( 1 0) Loaded mode inspection and maintenance test--A measurement of the tailpipe 

exhaust emissions of a vehicle while the drive wheel rotates on a dynamometer, which simulates the full 

weight of the vehicle driving down a level roadway. Loaded test equipment specifications shall meet 

United States Environmental Protection Agency requirements for acceleration simulation mode 

equipment. 

( 11) Low emission vehicle (LEV)--A vehicle in a class or category of vehicles that has 

been certified by the United States Environmental Protection Agency for any model year to meet: 

(A) the LEV standards applicable under 42 United States Code, Part C, 

Subchapter II, §§7581 et seq.; or 

(B) emission limits at least as stringent as the applicable LEV standards for the 

Federal Clean Fuel Fleet program under 40 Code of Federal Regulations §§88.104-94, 88.105-94, and 

88.311-93, as published in the Federal Register on September 30, 1994 (59 FR 50042). 

(12) Mass transit authority--A transportation or transit authority or department 

established under Chapter 141, 63rd Legislature (1973), as defined in Texas Transportation Code, 

Chapters 451- 453 (relating to Metropolitan Rapid Transit Authorities, Regional Transportation 

Authorities, and Municipal Transit Departments), that operates a mass transit system under any of those 

laws. 

( 13) Reformulated gasoline--Gasoline that has been certified as a reformulated 

gasoline under the federal certification regulations adopted in accordance with 42 United States Code, 

§7545(k). 

(14) Texas Inspection and Maintenance State Implementation Plan--The portion of 

the Texas state implementation plan that includes the procedures and requirements of the vehicle 

4 
emissions inspection and maintenance program as adopted by the commission May 29, 1996, in 

accordance with 40 Code of Federal Regulations Part 51, Subpart S, issued November 5, 1992; the 

United States Environmental Protection Agency flexibility amendments dated September 18, 1995; and 

the National Highway Systems Designation Act of 1995. A copy of the Texas Inspection and 

Maintenance State Implementation Plan is available at the Texas Commission on Environmental Quality, 

12100 Park 35 Circle, Austin, Texas, 78753; mailing address: P.O. Box 13087, MC 166, Austin, Texas 

78711-3087. 

(15) Tier I federal emission standards--The standards are defined in 42 United States 

Code, §7521, and in 40 Code of Federal Regulations, Part 86. The phase-in of these standards began in 

model year 1994. 

(16) Ultra low emission vehicle--A vehicle as defined by 40 Code of Federal 

Regulations, Part 88. 

(17) Zero emission vehicle--A vehicle as defined by 40 Code of Federal Regulations, 

Part 88. 

5 
STATUTORY AUTHORITY 

SUBCHAPTER A: DEFINITIONS 

§114.4 

The repeal is adopted under Texas Water Code (TWC), §5.1 02, concerning General Powers; §5.1 03, 

which authorizes the commission to adopt rules necessary to carry out its powers and duties under the 

TWC; and under Texas Health and Safety Code, Texas Clean Air Act (TCAA), §382.017, concerning 

Rules, which authorizes the commission to adopt rules consistent with the policy and purposes of the 

TCAA; §382.011, which provides for general powers and duties under the TCAA. The repeal is adopted 

under THSC, §382.002, concerning Policy and Purpose, which establishes the commission purpose to 

safeguard the state's air resources, consistent with the protection of public health, general welfare, and 

physical property; §382.012, which authorizes the commission to develop a general, comprehensive plan 

for the proper control of the state's air; and §382.019 which authorizes the commission to adopt rules to 

control and reduce emissions from engines used to propel land vehicles. 

The adopted repeal implements THSC, §§382.002, 382.011, 382.012, and 382.019. 

§114.4. Mobile Emission Reduction Credit Definitions. 

6 
SUBCHAPTER F: VEHICLE RETIREMENT AND MOBILE 

EMISSION REDUCTION CREDITS 

DIVISION 1: MOBILE EMISSION REDUCTION CREDITS 

§114.201' §114.202 

STATUTORY AUTHORITY 

The repeals are adopted under Texas Water Code (TWC), §5.1 02, concerning General Powers; §5.1 03, 

which authorizes the commission to adopt rules necessary to carry out its powers and duties under the 

TWC; and under Texas Health and Safety Code, Texas Clean Air Act (TCAA), §382.017, concerning 

Rules, which authorizes the commission to adopt rules consistent with the policy and purposes of the 

TCAA; §382.011, which provides for general powers and duties under the TCAA. The repeals are 

adopted under 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; §382.012, which authorizes the commission to develop a general, 

comprehensive plan for the proper control of the state's air; and §382.019 which authorizes the 

commission to adopt rules to control and reduce emissions from engines used to propel land vehicles. 

The adopted repeals implement THSC, §§382.002, 382.011, 382.012, and 382.019. 

§114.201. Mobile Emission Reduction Credit Program. 

§114.202. Texas Mobile Emission Reduction Credit Fund. 

7 
SUBCHAPTER G: TRANSPORTATION PLANNING 

§114.270 

STATUTORY AUTHORITY 

The amendment is adopted under Texas Water Code (TWC}, §5.1 03, which authorizes the commission to 

adopt rules necessary to carry out its powers and duties under the TWC; and under Texas Health and 

Safety Code, Texas Clean Air Act (TCAA), §382.017, concerning Rules, which authorizes the commission 

to adopt rules consistent with the policy and purposes of the TCAA; §382.002 concerning Policy and 

Purpose, which establishes the commission's purpose to safeguard the state's air resources, consistent 

with the protection of public health, general welfare, and physical property; §382.011, which provides for 

general powers and duties under the TCAA; §382.012, which authorizes the commission to develop a 

general, comprehensive plan for the proper control of the state's air; and §382.208, which authorizes the 

commission to work with federal, state, and local transportation planning agencies to develop and 

implement transportation programs and other measures necessary to demonstrate and maintain 

attainment of national ambient air quality standards. The amendment is also adopted under the statutory 

requirement for transportation conformity found in §176( c) of the 1990 Federal Clean Air Act 

Amendments. In addition, 40 Code of Federal Regulations (CFR) Part 51, Subpart T and Part 93, 

Subpart A established criteria and procedures for determining whether transportation plans, programs, 

and projects in nonattainment and maintenance areas conform with the state implementation plan. 

The adopted amendment implements THSC, §§382.002, 382.011,382.012,382.017, and 382.019. 

§114.270. Transportation Control Measures. 

(a) Purpose. The purpose of this section is to implement requirements relating to transportation 

control measures (TCMs). These requirements address the roles and responsibilities of the metropolitan 

planning organizations (MPOs) an~ implementing transportation agencies in nonattainment and 

maintenance areas. 

8 
(b) Applicability. This section applies to MPOs and agencies that implement TCMs in designated 

nonattainment or maintenance areas. The affected nonattainment and maintenance areas are listed in 

§101.1 of this title (relating to Definitions). 

(c) General. All TCMs shall be developed, coordinated, funded, approved, implemented, 

tracked, evaluated, and monitored in accordance with §114.260 of this title (relating to Transportation 

Conformity); Title 40 Code of Federal Regulations, Part 93 (Conformity to State or Federal 

Implementation Plans of Transportation Plans, Programs and Projects Developed, Funded or Approved 

Under Title 23 USC or the Federal Transit Laws, as amended); the Federal Clean Air Act, 42 United 

States Code, 1970, as amended; and the EPA TCM SIP approval criteria listed in the EPA guidance 

document "Transportation Control Measures: State Implementation Plan Guidance," EPA 450/2-89- 020, 

September 1990. 

(d) MPO responsibilities. The 1\/IPO shall: 

(1) ensure that all responsibilities required by subsection (c) of this section are fulfilled; 

(2) maintain, on a rolling basis, complete and accurate records of all TCMs for at least 

five years. TCM records shall be sufficient to accurately reflect the effectiveness of the TCM program and 

shall include the following: 

(A) the annual status of the implementation of the TCM, including quantification 

of progress; 

(B) an annual estimate of the funding and other resources expended toward 

implementing the TCM, and a comparison of the actual and projected expenditures; 

9 
(C) an annual estimate of the emission reductions achieved from implementation 

of the TCM, and a comparison of the actual and projected reductions; and 

(D) any modifications to the TCM since the last annual report and/or projected 

modifications for the next reporting period to compensate for a shortfall in the implementation of the TCM 

. or in the associated emissions reductions; and 

(3) make such records available to representatives of the commission, the EPA, the 

Federal Highway Administration, the Federal Transit Administration, the Texas Department of 

Transportation, local air pollution agencies having jurisdiction in the area, and the public, upon request; 

(e) Implementing agency responsibilities. The implementing agency shall have the responsibility 

to: 

(1) ensure that all responsibilities required by subsection (c) of this section are fulfilled; 

and 

(2) provide to the MPO upon request: 

(A) a complete description of the TCMs and their associated estimated emission 

reduction benefits; 

(B) evidence that the TCMs were properly adopted by a jurisdiction with legal 

authority to commit to and execute the program; 

(C) evidence that funding has been, or will be, obligated to implement the TCMs; 

and 

10 
(D) a description of the monitoring program to assess the TCM effectiveness. 

11 
SUBCHAPTER K: MOBILE SOURCE INCENTIVE PROGRAMS 

DIVISION 2: LIGHT -DUTY MOTOR VEHICLE PURCHASE 

OR LEASE INCENTIVE PROGRAM 

§114.618 

STATUTORY AUTHORITY 

The repeal is adopted under Texas Water Code (TWC), §5.1 02, concerning General Powers; §5.1 03, 

which authorizes the commission to adopt rules necessary to carry out its powers and duties under the 

TWC; and under Texas Health and Safety Code, Texas Clean Air Act (TCAA), §382.017, concerning 

Rules, which authorizes the commission to adopt rules consistent with the policy and purposes of the 

TCAA; §382.011, which provides for general powers and duties under the TCAA. The repeal is adopted 

under 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; §382.012, which authorizes the commission to develop a general, comprehensive plan 

for the proper control of the state's air; and §382.019 which authorizes the commission to adopt rules to 

control and reduce emissions from engines used to propel land vehicles. 

The adopted repeal implements THSC, §§382.002, 382.011, 382.012, and 382.019. 

§114.618. Vehicle Emissions Information Brochure. 

12 
TExAs CoMMISSION ON ENVIRONMENTAL QuALITY 

t~~PfR~s 1 hereby certify that this i;; a true ano corr~ copy of a 

Texas Commission on Environmental Quality docull18fl!. 

which is filed in the permanent records of the CommissiOn. 

Given un er my hand and the seal of office on 

d:zfi/,J(/UA/.(iJI/t&iiJP-~.....,A......:7._.._: ,200 7 

ORDER ADOPTING AMENDED AND REPEALED RULES AND 

REVISIONS TO THE STATE IMPLEMENTATION PLAN 

Docket No. 2006-216:2rRUL 

On June 27, 2007, the Texas Commission on Environmental Quality (Commission), during a public 

meeting, considered adoption of amendments to§§ 114.1 and 114.270 and the repeal of§§ 114.4, 114.201, 

114.202 and 114.618. The Commission adopts these amendments and repeals, in Chapter 114, Control of 

Air Pollution from Motor Vehicles; and corresponding revisions to the state implementation plan (SIP). This 

rulemaking aligns certain transportation-air quality rules and definitions with state and federal statutes by 

repealing the following rules: the Mobile Emission Reduction Credit (MERC) program and associated fund 

and definitions, the Light-Duty Motor Vehicle Purchase or Lease Incentive Program Vehicle Emissions 

Information Brochure, and the Transportation Control Measures (TCM) Substitution Process. Under Tex. 

Health & Safety Code Ann. §§ 382.011, 382.012, and 382.023 (Vernon 2001), 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 9, 2007 issue of the Texas Register (32 TexReg 1197). 

Pursuant to Tex. Health & Safety Code Ann. § 382.017 (Vernon 2001), Tex. Gov't Code Chapter 

2001 (Vernon 2000 & Vernon Supp. 2005), and 40 Code of Federal Regulations § 51.102, and after proper 

notice, the Commission conducted a public hearing to consider the 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 3, 2007. 

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 recmmnendations on the proposed 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 amended and repealed rules and SIP revisions were available for 

public inspection at the Conunission's central office and on the Commission's Web site. 

Data, views, and recommendations of interested persons regarding the proposed amended and 

repealed rules and SIP revisions were submitted to the Cmmnission 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 amended and repealed rules and the SIP revisions and their 

position concerning the same. 

. IT IS THEREFORE ORDERED BY THE COMMISSION that the amended and repealed rules and 

: reyisfo.~s 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, § 110, 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 2000 & Vernon Supp. 2005). 

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. 

Date issued: JUL 13 2007 TEXAS COMMISSION ON 

EN IRONMENTAL QUALITY 

u· 
PUBLIC COMMENT

No comments were received.

STATUTORY AUTHORITY

The amendment is adopted under Texas Water Code, §5.013,

concerning General Jurisdiction of the commission, which establishes the commission’s general authority to carry out its jurisdiction; §5.102, concerning the commission’s General Powers, including calling and holding hearings and issuing orders; §5.103,

concerning Rules, which requires the commission to adopt rules

when amending any agency statement of general applicability

that describes the procedures or practice requirements of an

agency; and §5.105, concerning General Policy, which authorize the commission to adopt rules necessary to carry out its

powers and duties under the Texas Water Code; and §5.228,

which establishes the executive director’s authority to participate in contested case hearings. Additionally, the amendment is

adopted under Texas Government Code, §2001.004, concerning Requirement to Adopt Rules of Practice and Index Rules,

Orders and Decisions, which requires state agencies to adopt

rules of practice and procedure.

The amendment implements Texas Water Code, §5.228.

This agency hereby certies 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 Ofce of the Secretary of State on June 29, 2007.

TRD-200702755

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: July 19, 2007

Proposal publication date: February 23, 2007

For further information, please call: (512) 239-6087

CHAPTER 114. CONTROL OF AIR

POLLUTION FROM MOTOR VEHICLES

The Texas Commission on Environmental Quality (commission)

adopts amendments to 30 TAC §114.1 and §114.270, and the

repeal of §§114.4, 114.201, 114.202, and 114.618. Section

114.270 is adopted with changes to the text as published in

the March 9, 2007, issue of the Texas Register (32 TexReg

1197). Sections 114.1, 114.4, 114.201, 114.202 and 114.618

are adopted without changes to the proposal and, therefore, 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

This rulemaking aligns certain transportation-air quality rules and

denitions with state and federal statutes by repealing the following rules: the Mobile Emission Reduction Credit (MERC) program and associated fund and denitions, the Light-Duty Motor

Vehicle Purchase or Lease Incentive Program Vehicle Emissions

Information Brochure, and the Transportation Control Measures

(TCM) Substitution Process. These provisions were either repealed by state statute or superseded by federal statute.

The 1990 Federal Clean Air Act (FCAA) Amendments,

§182(c)(4), required states to either adopt the Federal Clean

Fuel Fleet (FCFF) program outlined in FCAA, §246, or implement a program that demonstrates long-term reductions

in ozone-producing and toxic air emissions equal to those

achieved under the FCFF program. The FCFF program requires

federal, state, and local governments, and private eets to

purchase low-emission vehicles (LEVs) in areas classied by

the EPA as being in serious, severe, or extreme nonattainment

of the national ambient air quality standards (NAAQS) for ozone

and carbon monoxide (CO).

The State of Texas, in a committal SIP revision submitted to the

EPA on November 15, 1992, opted out of the FCFF program in

order to implement a eet emission control program designed

by the state. In 1994 the commission submitted the state’s optout program in a SIP revision to the EPA and adopted rules to

implement the Texas Alternative Fuel Fleet (TAFF) program as a

substitute to the FCFF program in the areas of Texas classied

by EPA as being in serious, severe, or extreme nonattainment

of the NAAQS for ozone or CO.

In 1995 the 74th Texas Legislature modied the state’s alternative fuels program (Texas Health and Safety Code, Chapter

382, Subchapter F) through the passage of Senate Bill 200 (SB

200). The legislature facilitated fuel neutrality through the incorporation of the federal low emission vehicle (LEV) standards

regardless of fuel type for certain affected eets. The legislation required the commission to adopt regulations to implement

the revised program. The commission adopted regulations that

established the Texas Clean Fleet (TCF) program. In 1997 the

75th Texas Legislature further modied the state’s alternative fuels program through the passage of Senate Bill 681 (SB 681).

SB 681 removed the commission’s authority to require the program in moderate nonattainment areas, limited the commission’s

authority to the serious and above ozone nonattainment areas,

and modied the state’s alternative fuels program. The basic

requirement of LEV purchases was retained, but the implementation schedule was modied. SB 681 required the commission

to adopt regulations to implement the program as modied by

the legislation.

MERCs were part of the commission’s TCF economic incentive program to help reduce vehicle emissions of volatile organic

compounds (VOC) and nitrogen oxides (NOx

). The program was

intended to provide additional exibility for business, develop innovative strategies to control mobile source emissions, and reduce the cost of compliance with the FCAA. MERCs were enforceable, permanent, and quantiable emission reductions generated by a mobile source through the TCF program. Emission

reductions that remain after an entity satised their requirements

could be banked as credits.

In 2005 the 79th Texas Legislature passed Senate Bill 1032 (SB

1032), which repealed TCF in its entirety. This action also repealed the MERC program, MERC fund, and corresponding definitions. On April 26, 2006, the commission adopted the repeal

of the TCF program as directed by SB 1032. This rulemaking

repeals the remaining program elements, including the MERC

program.

In 2001 the 77th Texas Legislature (2001) passed Senate Bill 5

(SB 5) establishing the Texas Emission Reduction Plan (TERP),

which provided nancial incentives for reducing emissions of

on-road and non-road motor vehicles and equipment, grants for

the development of new emission control technology, new building energy efciency standards, and research and development

32 TexReg 4400 July 13, 2007 Texas Register
programs. SB 5 programs were estimated to achieve reductions

in excess of the reductions expected from the rules that were being repealed. In accordance with SB 5, the state implementation

plan (SIP) was revised to replace certain rules with TERP. The

adopted TERP rules established a state-wide incentive program

for the purchase of new on-road diesel vehicles and light-duty

motor vehicles that met emission standards more stringent than

those required by federal requirements.

As a result of these new rules, a new §114.618 was adopted in

August 2001, which required vehicle manufacturers to publish a

brochure of eligible incentive vehicles by September 1 of each

year. This brochure is also required to be submitted to the executive director, or his designee, by the same date.

House Bill 1365 (HB 1365) by the 78th Legislature (2003) repealed the requirement for vehicle manufacturers to publish and

distribute a brochure annually. This adopted rulemaking repeals

the rule implementing this requirement.

The federal surface transportation reauthorization act, the Safe,

Accountable, Flexible, Efcient Transportation Equity Act: A

Legacy for Users (SAFETEA-LU), established a transportation

control measure substitution process, eliminating the requirement for an EPA-approved state process as found in 30 TAC

§114.270(f), relating to the TCM Substitution Process. The

federal SAFETEA-LU transportation control measure substitution process replaces and supersedes the state process.

This adoption repeals the state section because it is no longer

necessary. Because the federal process is largely based on the

Texas process, no change is expected to occur in the state as a

result of this revision.

SECTION BY SECTION DISCUSSION

The adoption amends, without changes from proposal, §114.1

in Subchapter A; and repeals §114.4 in Subchapter A; §114.201

and §114.202 in Subchapter F; and §114.618 in Subchapter K.

Subchapter A. Denitions

§114.1(13) and §114.4

The adoption amends §114.1 by repealing the denition of

MERC in §114.1(13) and repeals the MERC denitions found

in §114.4. These sections were elements of the TCF program,

which was repealed by the commission on April 26, 2006, in

accordance with SB 1032 following a repeal by the legislature in

2005, SB 1032. The legislative repeal made these program definitions no longer necessary. Current denitions in §114.1(14) -

(18) will be renumbered (13) - (17).

Subchapter F. Vehicle Retirement and Mobile Emission Reduction Credits

Division 1. Mobile Emission Reduction Credit Program

§114.201 and §114.202

The adoption repeals the MERC program found in §114.201 and

the MERC fund found in §114.202. Both of these sections were

program elements of the TCF program, which was repealed by

the commission on April 26, 2006, following enactment of SB

1032 in 2005, which repealed the TCF program. The legislative

repeal made this program no longer necessary.

Subchapter G. Transportation Planning

§114.270

The adoption amends §114.270 by deleting §114.270(f),

the TCM substitution process. The re-authorization of the

SAFETEA-LU eliminated the requirement for an EPA-approved

state process for approving TCM substitutions. The provisions

of the SAFETEA-LU establish that if there is a conict between

an approved state process and the approval process contained

in the SAFETEA-LU, the state must follow the requirements

found in the SAFETEA-LU. This adoption also strikes language in subsection (a). Subsequent to the close of the public

comment period, the commission determined that language in

subsection (a), referring to the now-deleted TCM substitution

process in subsection (f), should be stricken in order to provide

consistency in the rule and avoid confusion.

Subchapter K. Mobile Source Incentive Programs

Division 2. Light-Duty Motor Vehicle Purchase or Lease Incentive Program

§114.618

The adopted rulemaking repeals the requirement of §114.618

that requires automobile manufacturers to publish a brochure

annually and submit it to the commission by September 1st of

every year. The adoption repeals this requirement at the directive of HB 1365, 78th Legislature (2003).

FINAL REGULATORY IMPACT ANALYSIS DETERMINATION

The commission reviewed the rulemaking in light of the regulatory analysis requirements of Texas Government Code,

§2001.0225, and determined the rules do not meet the denition

of a "major environmental rule." Under Texas Government

Code, §2001.0225, "major environmental rule" means a rule

the specic 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. Furthermore, it does not meet any of the

four applicability requirements listed in §2001.0225(a). Section

2001.0225 applies only to a major environmental rule which 1)

exceeds a standard set by federal law, unless the rule is specifically required by state law; 2) exceeds an express requirement

of state law, unless the rule is specically required by federal

law; 3) exceeds 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) adopts a rule solely under the general powers of

the agency instead of under a specic state law. The adopted

rulemaking removes various outdated requirements and aligns

state rules with federal and state statutes as described in the

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS

FOR THE ADOPTED RULES and SECTION BY SECTION

DISCUSSION sections above. Because the adopted rules are

not specically intended to protect the environment or reduce

risks to human health from environmental exposure but to

remove outdated rules making state rules consistent with state

and federal statutes, this adopted rulemaking is not a major

environmental rule and does not meet any of the four applicability requirements. Because these adopted rules remove

requirements, they do not result in any new requirements and

should not adversely affect in a material way the economy,

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

The commission solicited public comment regarding this draft

regulatory impact analysis determination. No comments were

received on the draft regulatory impact analysis determination.

TAKINGS IMPACT ASSESSMENT

ADOPTED RULES July 13, 2007 32 TexReg 4401
The commission evaluated these rules and performed an assessment of whether Texas Government Code, Chapter 2007 is

applicable. The commission’s assessment indicates Texas Government Code, Chapter 2007 does not apply to these adopted

amendments because this action discontinues requirements

as described in the BACKGROUND AND SUMMARY OF THE

FACTUAL BASIS FOR THE ADOPTED RULES and SECTION

BY SECTION DISCUSSION sections of this preamble. Also, the

adopted rules remove various outdated requirements and align

state rules with federal and state statutes. Promulgation and

enforcement of these amendments will be neither a statutory

or constitutional taking of private real property. Specically,

the adopted amendments do not affect a landowner’s rights in

private real property, because this rulemaking action does not

burden, restrict, nor limit the owner’s rights to property or reduce

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

in the absence of the adopted regulations.

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM

The commission reviewed the adopted rulemaking and found the

adoption is a rulemaking identied in the Coastal Coordination

Act Implementation Rules, 31 TAC §505.11(b)(4), concerning

rules subject to the Texas Coastal Management Program (CMP),

and , therefore, required that goals and policies of the CMP be

considered during the rulemaking process. The commission reviewed this rulemaking for consistency with the CMP goals and

policies in accordance with the regulations of the Coastal Coordination Council and determined that the rulemaking is editorial

and procedural in nature and will have no substantive effect on

commission actions subject to the CMP and is, therefore, consistent with CMP goals and policies. The commission invited

public comment regarding the consistency of the rules with the

CMP. No comments were received regarding the consistency of

the rules with the CMP.

PUBLIC COMMENT

The proposal was published in the March 9, 2007, issue of the

Texas Register (32 TexReg 1197). The commission held a public

hearing on April 3, 2007, in Austin. The comment period closed

on April 9, 2007. The commission received comments from only

the Environmental Protection Agency (EPA).

RESPONSE TO COMMENTS

EPA supported the commission’s proposed repeals in response

to implementation of federal and state legislation. EPA commented that statutory language now in the Clean Air Act as

a result of SAFETEA-LU rendered the commission’s TCM

rule obsolete and therefore, supported the repeal of 30 TAC

§114.270(f). EPA commented that they did not oppose the

repeal of the MERCs program or the requirement that automobile manufacturers publish annually a brochure listing vehicles’

emissions standards since both actions were implementation of

state legislation.

The commission did not make any changes to the rule in response to this comment. The rulemaking aligns certain transportation-air quality requirements with federal and state legislation and statutes. The commission appreciates EPA’s support in

this action.

SUBCHAPTER A. DEFINITIONS

30 TAC §114.1

STATUTORY AUTHORITY

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

§5.102, concerning General Powers; §5.103, which authorizes

the commission to adopt rules necessary to carry out its powers

and duties under the TWC; and under Texas Health and Safety

Code, Texas Clean Air Act (TCAA), §382.017, concerning Rules,

which authorizes the commission to adopt rules consistent with

the policy and purposes of the TCAA; §382.011, which provides

for general powers and duties under the TCAA. The amendment

is adopted under 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; §382.012, which

authorizes the commission to develop a general, comprehensive

plan for the proper control of the state’s air; and §382.019 which

authorizes the commission to adopt rules to control and reduce

emissions from engines used to propel land vehicles.

The adopted amendment implements THSC, §§382.002,

382.011, 382.012, and 382.019.

This agency hereby certies 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 Ofce of the Secretary of State on June 29, 2007.

TRD-200702749

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: July 19, 2007

Proposal publication date: March 9, 2007

For further information, please call: (512) 239-2461

30 TAC §114.4

STATUTORY AUTHORITY

The repeal is adopted under Texas Water Code (TWC), §5.102,

concerning General Powers; §5.103, which authorizes the commission to adopt rules necessary to carry out its powers and duties under the TWC; and under Texas Health and Safety Code,

Texas Clean Air Act (TCAA), §382.017, concerning Rules, which

authorizes the commission to adopt rules consistent with the policy and purposes of the TCAA; §382.011, which provides for general powers and duties under the TCAA. The repeal is adopted

under THSC, §382.002, concerning Policy and Purpose, which

establishes the commission purpose to safeguard the state’s air

resources, consistent with the protection of public health, general welfare, and physical property; §382.012, which authorizes

the commission to develop a general, comprehensive plan for

the proper control of the state’s air; and §382.019 which authorizes the commission to adopt rules to control and reduce emissions from engines used to propel land vehicles.

The adopted repeal implements THSC, §§382.002, 382.011,

382.012, and 382.019.

This agency hereby certies 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 Ofce of the Secretary of State on June 29, 2007.

TRD-200702750

32 TexReg 4402 July 13, 2007 Texas Register
Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: July 19, 2007

Proposal publication date: March 9, 2007

For further information, please call: (512) 239-2461

SUBCHAPTER F. VEHICLE RETIREMENT

AND MOBILE EMISSION REDUCTION

CREDITS

DIVISION 1. MOBILE EMISSION

REDUCTION CREDITS

30 TAC §114.201, §114.202

STATUTORY AUTHORITY

The repeals are adopted under Texas Water Code (TWC),

§5.102, concerning General Powers; §5.103, which authorizes

the commission to adopt rules necessary to carry out its powers

and duties under the TWC; and under Texas Health and Safety

Code, Texas Clean Air Act (TCAA), §382.017, concerning Rules,

which authorizes the commission to adopt rules consistent with

the policy and purposes of the TCAA; §382.011, which provides

for general powers and duties under the TCAA. The repeals are

adopted under 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; §382.012, which

authorizes the commission to develop a general, comprehensive plan for the proper control of the state’s air; and §382.019

which authorizes the commission to adopt rules to control and

reduce emissions from engines used to propel land vehicles.

The adopted repeals implement THSC, §§382.002, 382.011,

382.012, and 382.019.

This agency hereby certies 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 Ofce of the Secretary of State on June 29, 2007.

TRD-200702751

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: July 19, 2007

Proposal publication date: March 9, 2007

For further information, please call: (512) 239-2461

SUBCHAPTER G. TRANSPORTATION

PLANNING

30 TAC §114.270

STATUTORY AUTHORITY

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

§5.103, which authorizes the commission to adopt rules necessary to carry out its powers and duties under the TWC; and

under Texas Health and Safety Code, Texas Clean Air Act

(TCAA), §382.017, concerning Rules, which authorizes the

commission to adopt rules consistent with the policy and purposes of the TCAA; §382.002 concerning Policy and Purpose,

which establishes the commission’s purpose to safeguard the

state’s air resources, consistent with the protection of public health, general welfare, and physical property; §382.011,

which provides for general powers and duties under the TCAA;

§382.012, which authorizes the commission to develop a general, comprehensive plan for the proper control of the state’s

air; and §382.208, which authorizes the commission to work

with federal, state, and local transportation planning agencies

to develop and implement transportation programs and other

measures necessary to demonstrate and maintain attainment

of national ambient air quality standards. The amendment is

also adopted under the statutory requirement for transportation

conformity found in §176(c) of the 1990 Federal Clean Air Act

Amendments. In addition, 40 Code of Federal Regulations

(CFR) Part 51, Subpart T and Part 93, Subpart A established

criteria and procedures for determining whether transportation

plans, programs, and projects in nonattainment and maintenance areas conform with the state implementation plan.

The adopted amendment implements THSC, §§382.002,

382.011, 382.012, 382.017, and 382.019.

§114.270. Transportation Control Measures.

(a) Purpose. The purpose of this section is to implement requirements relating to transportation control measures (TCMs). These

requirements address the roles and responsibilities of the metropolitan

planning organizations (MPOs) and implementing transportation agencies in nonattainment and maintenance areas.

(b) Applicability. This section applies to MPOs and agencies

that implement TCMs in designated nonattainment or maintenance areas. The affected nonattainment and maintenance areas are listed in

§101.1 of this title (relating to Denitions).

(c) General. All TCMs shall be developed, coordinated,

funded, approved, implemented, tracked, evaluated, and monitored

in accordance with §114.260 of this title (relating to Transportation

Conformity); Title 40 Code of Federal Regulations, Part 93 (Conformity to State or Federal Implementation Plans of Transportation Plans,

Programs and Projects Developed, Funded or Approved Under Title

23 USC or the Federal Transit Laws, as amended); the Federal Clean

Air Act, 42 United States Code, 1970, as amended; and the EPA TCM

SIP approval criteria listed in the EPA guidance document "Transportation Control Measures: State Implementation Plan Guidance,"

EPA 450/2-89-020, September 1990.

(d) MPO responsibilities. The MPO shall:

(1) ensure that all responsibilities required by subsection

(c) of this section are fullled;

(2) maintain, on a rolling basis, complete and accurate

records of all TCMs for at least ve years. TCM records shall be

sufcient to accurately reect the effectiveness of the TCM program

and shall include the following:

(A) the annual status of the implementation of the TCM,

including quantication of progress;

(B) an annual estimate of the funding and other resources expended toward implementing the TCM, and a comparison

of the actual and projected expenditures;

(C) an annual estimate of the emission reductions

achieved from implementation of the TCM, and a comparison of the

actual and projected reductions; and

ADOPTED RULES July 13, 2007 32 TexReg 4403
(D) any modications to the TCM since the last annual

report and/or projected modications for the next reporting period to

compensate for a shortfall in the implementation of the TCM or in the

associated emissions reductions; and

(3) make such records available to representatives of the

commission, the EPA, the Federal Highway Administration, the Federal Transit Administration, the Texas Department of Transportation,

local air pollution agencies having jurisdiction in the area, and the public, upon request;

(e) Implementing agency responsibilities. The implementing

agency shall have the responsibility to:

(1) ensure that all responsibilities required by subsection

(c) of this section are fullled; and

(2) provide to the MPO upon request:

(A) a complete description of the TCMs and their associated estimated emission reduction benets;

(B) evidence that the TCMs were properly adopted by a

jurisdiction with legal authority to commit to and execute the program;

(C) evidence that funding has been, or will be, obligated

to implement the TCMs; and

(D) a description of the monitoring program to assess

the TCM effectiveness.

This agency hereby certies 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 Ofce of the Secretary of State on June 29, 2007.

TRD-200702753

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: July 19, 2007

Proposal publication date: March 9, 2007

For further information, please call: (512) 239-2461

SUBCHAPTER K. MOBILE SOURCE

INCENTIVE PROGRAMS

DIVISION 2. LIGHT-DUTY MOTOR VEHICLE

PURCHASE OR LEASE INCENTIVE PROGRAM

30 TAC §114.618

STATUTORY AUTHORITY

The repeal is adopted under Texas Water Code (TWC), §5.102,

concerning General Powers; §5.103, which authorizes the commission to adopt rules necessary to carry out its powers and duties under the TWC; and under Texas Health and Safety Code,

Texas Clean Air Act (TCAA), §382.017, concerning Rules, which

authorizes the commission to adopt rules consistent with the policy and purposes of the TCAA; §382.011, which provides for general powers and duties under the TCAA. The repeal is adopted

under 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; §382.012, which authorizes

the commission to develop a general, comprehensive plan for

the proper control of the state’s air; and §382.019 which authorizes the commission to adopt rules to control and reduce emissions from engines used to propel land vehicles.

The adopted repeal implements THSC, §§382.002, 382.011,

382.012, and 382.019.

This agency hereby certies 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 Ofce of the Secretary of State on June 29, 2007.

TRD-200702754

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: July 19, 2007

Proposal publication date: March 9, 2007

For further information, please call: (512) 239-2461

SUBCHAPTER G. TRANSPORTATION

PLANNING

30 TAC §114.260

The Texas Commission on Environmental Quality (commission)

adopts an amendment to §114.260 and corresponding revisions

to the Transportation Conformity State Implementation Plan

(SIP). Section 114.260 is adopted with changes to the proposed

text as published in the February 9, 2007, issue of the Texas

Register (32 TexReg 499).

The adopted revisions will be submitted to the United States Environmental Protection Agency (EPA) as a revision to the SIP.

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS

FOR THE ADOPTED RULES

The Federal Clean Air Act (FCAA) Amendments of 1990 as

codied in 42 United States Code (USC), §§7401 et seq. required each state to submit a revision to its SIP by November

25, 1994, establishing enforceable criteria and procedures for

making conformity determinations for metropolitan transportation plans, transportation improvement programs, and projects

funded by the Federal Highway Administration (FHWA) or the

Federal Transit Administration (FTA). Final rules regarding

conformity requirements were published by EPA on November

24, 1993. The Texas SIP revision that incorporated conformity

requirements was adopted October 19, 1994, and approved

by EPA November 8, 1995. EPA has amended the federal

transportation conformity rule eight times: August 7, 1995;

November 14, 1995; August 15, 1997; April 10, 2000; August

6, 2002; July 1, 2004; May 6, 2005; and March 10, 2006. The

commission previously incorporated the federal changes up to,

and including, the 2004 amendments. The commission is now

updating its SIP and rule to incorporate the May 6, 2005, and

March 10, 2006, federal amendments. In addition to the 2005

and 2006 federal amendments, changes to the transportation

conformity federal rule were enacted with passage of the Safe,

Accountable, Flexible, Efcient Transportation Equity Act: A

Legacy for Users (SAFETEA-LU), which was signed into law

August 10, 2005. Furthermore, EPA issued guidance in May

1999, that a state should include in its SIP when a regionally signicant, non-federal project is considered adopted or approved

by a non-federal entity. The addition of these changes to the

32 TexReg 4404 July 13, 2007 Texas Register