### Bryan W. Shaw, Ph.D., P.E., 

### Chairman Toby Baker, Commissioner Zak Covar, Commissioner Richard A. 

### Hyde, P.E., 

### Executive Director 

# 15JUN 

# 15 PM 6:**I~** 

# TEXAS COMMISSION ON ENVIRONMENTAL QUALI1Y Protecting Texas by Reducing andPreventing Pollution


# June 11, 2015



## Ron Curry Regional Administrator U.S. Environmental Protection Agency- Region 6 1445 Ross Avenue Dallas, Texas 75202-2733
Dear Mr. Curry: 

## DocketNo. 2014-0953-RUL Rule ProjectNo. 2014-027-114-AI

On April29, 2015, the TexasCommission on Environmental Quality (Commission) adoptedrevisions to the State Implementation Plan (SIP).
The Commission adopted amendments to§§ 114.2, 114.7, 114.53, 114.60, 114.62, 114.64, 114.70, and 114.87 in 30Texas Administrative Code Chapter 114, Control ofAir Pollution from Motor Vehicles, SubchaptersA, Definitions, and C, Vehicle Inspection and Maintenance: Low-IncomeVehicle Repair Assistance, Retrofit, andAccelerated Vehicle Retirement Program; and Early Action Compact Counties and corresponding revisions to the SIP. Sections 114.2, 114.53, and 114.87 are revisions to the state implementation plan SIP, while the other sections are not revisions to the SIP. The Commission. adopted revisions to incorporate a procedure for counties to opt out ofthe Low Income Vehicle Repair Assistance, Retrofit, andAcceleratedVehicle Retirement Pr'ogram (LIRAP) andto be releasedfrom program obligations, including remittance ofthe fee to fund the LIRAP. The Commission also adopted language that differentiates between a LIRAP participating county and a non-participating county.
Enclosed are the proposed revisions to the SIP, a public hearing certification, a complete record ofthe public hearing, and the accompanying order. I look forward to your expeditious approval ofthese SIP revisions. Sincerely,

# 1?»11~~**~ry~.** Shaw, Ph.D., P.E. Chairman BWSjts


## Enclosures cc: The Honorable Greg Abbott, Governor ofTexas Mr. Steven Albright, Office ofBudget, Planning and Policy, Office ofthe Governor Mr. Richard 

## A Hyde, P.E., Executive Director, Texas Commission on Environmental Quality

P.O. Box 13087 • 

### Austin, Texas 78711-3087 • 512,239-1000 • 

### tceq.texas.gov How is our customer service? tceq.texas.gov/customersurvey
pnnted on recycled paper using vegetable-based ink

# TEXAS CoMMISSION oN ENVIRONMENTAL QuALITY

THE STATE OF TEXAS
COUN'IY OF TRAVIS 

## DocketNo. 2014-0953-RUL Rule ProjectNo. 2014-027-114-AI

This is to certifythat the attached electronicfile is included andthat the electronic file is a true and

correct copy ofdocuments for a revision totheTexas State Implementation Plan, adopted onApril 29,

2015, 

## pursuantto 40 

## Code ofFederal Regulations § 51.104. 

## I am the records administratorfor the Air Quality Division oftheTexas Commission on Environmental Quality (Commission).

### Texas Commission on Environmental Quality Public Hearing January 6, 2015 Concerning Revisions to 30 TAC Chapter 114

Control of Air Pollution from Motor Vehicles LIRAP Rule Revisions Project No. 2014-027-114-AI

## INTRODUCTION

The Texas Commission on Environmental Quality (TCEQ or commission) scheduled a public hearing in Austin on January 6, 2015, 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 rulemaking allows a county participating in the Low Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program (LIRAP) to opt out of the LIRAP.

The comment period closed on January 9, 2015. 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/Order

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 Jamie Zech at (512)
239-3935.

# NOTICE 

# & 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: 

## November 21, 2014 Dallas Morning News: 

## November 21, 2014 Houston Chronicle: 

## November 21, 2014

2. Publication ofthe proposed rules in the December 5, 2014, issue of the Texas Register

## (39 TexReg 9468).

3. Publication of the Notice of Public Hearing in the December 5, 2014, issue of the Texas Register 

## (39 TexReg 9623).

4. Correspondence forwarding the notice of public hearings to the following officials and agencies: Speaker of the House
Lieutenant Governor
Alamo Area Council of Governments Capital Area Planning Council City of Austin, Mayor's Office City of Dallas, Department of Environmental Quality City of Dallas, Department of Aviation City of El Paso, Environmental Services City of Fort Worth, Environmental Management Department City of Houston, Department of Health and Human Services

## East Texas Council of Governments
El Paso Metropolitan Planning Organization
Federal Highway Administration
Galveston County Health District
Harris County Pollution Control Services Department
Harris County Public Health and Environmental Services
Houston-Galveston Area Council
North Central Texas Council of Governments
South East Texas Regional Planning Commission
Texas Department ofTransportation
Travis County Judge
Victoria Metropolitan Planning Organization
Arkansas Department of Pollution Control and Ecology
Louisiana Department of Environmental Quality
New Mexico Environmental Department
Oklahoma Department of Environmental Quality
United States Environmental Protection Agency

## Example of Newspaper Classified Ad
Austin American-Statesman, November 21, 2014

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**re~arding** pro- ' posed .revisions to 30 Texas Administrative Code (TAC) Chapter 114, Control of Air Pollution from Motor Vehicles, §§114.2, 114.7, 114.53, 114.60, 114.62, 114.64, 114.70, and 114.87, and corre- sponding revisions to the state implementa- tion 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 Regu- lations §51.102 of the United States Environmental Protection Agency (EPA) concern- ing SIPs. ·This proposed rulemaking would allow a county participating in the Low Income ve- hicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program (LIRAP) to opt out of the LIRAP. The commission will hold a public hearing on this proposal in Austin on January 6, 2015, at 2:00 p.m. in Building E, Room 201S, •at the commission's :central office located 'at 12100 Park 35 Circle. The hearing is structured for the receipt of oral or written com- ments by interested persons. Individuals may present oral state-' ments when called upon in order of regis- tration. Open discussion will not be permit- ted during the hearing; however, commission staff members will be available to discuss the proposal 30 minutes prior to the hearing. Persons who have spe- cial communication. or other accommodatiOn needs who are plan- ning to attend the hearing should contact Sandy Wong, Office of Legal Services at (512) 239-1802. Requests should be made as far in advance as possible. Written comments may be submitted to Kris Hogan, MC 205, Office of Legal Services, Texas Commission _on Environmental QualitY. P.O. Box 13087, Austm, Texas 78711-3087, or faxed to (512) 239-4808. Electronic comments may be submitted at: http:/ /wwws. tceq.texas.gov/rules/ ecomments/. File size restrictions may apply to comments bemg submitted via the ecomments system. All comments should reference Rule Project Number 2014-027-114· AI. The comment pe- riod closes January 9, 2015. Copies ofthe pro- posed rulemaking can be obtained from the commission's website at http:/ /www.tceq. texas.gov Inav/rules/ propose adopt.html. For furtfier Information, please. contact Jamie Zech, A1r Quality Planning Section, (512) 239-3935.ing A, 3rd Floor, Austin, Texas 78 53, (512) 239-3400 and at the applicable regional office listed as fol ows. Written comments about the DO should be sent to the attorney esignated for the DO at the commission's central office at P.O. Bo 13087, MC 175, Austin, Texas 78711-3087 and must be received 5:00p.m. on January 12,2015. Comments may also be sent by fa simile machine to the attorney at (512) 239-3434. The commission' attorneys are available to discuss the DOs and/or the comment proc dure at the listed phone numbers; however, TWC, §7.075 provides t at comments on the DOs shall be submitted to the commission in wr ting. (1) COMPANY: Amirali Makan jia d/b/a Doc's Country Store; DOCKET NUMBER: 2013-164 -PST-E; TCEQ ID NUMBER: RNI04990957; LOCATION: 18 18 Highway 290 East, Elgin, Travis County; TYPE OF FACI ITY: underground storage tank (UST) system; RULES VIOLATE : TWC, §26.3467(a) and 30 TAC §334.8(c)(5)(A)(i), by failing to m ke available to a common carrier a valid, current TCEQ delivery ce ificate before accepting delivery of a regulated substance into the U Ts; 30 TAC §334.8(c)(4)(A)(vii) and (5)(B)(ii), by failing to renew previously issued UST delivery certificate by submitting a proper! completed UST registration and self-certification form at least 30 d ys before the expiration date; and 30 TAC §334.602(a), by failing to esignate, train, and certify at least one named individual for each class ofoperator: Class A, Class B, and Class C; PENALTY: $4,537: STAF ATTORNEY: J. Amber Ahmed, Litigation Division, MC 175, (512) 239-1204; REGIONAL OFFICE: Austin Regional Office, 12100 Par 35 Circle, Building A, 3rd Floor, Austin, Texas 78753, (512) 239-34 0. (2) COMPANY: Chad Stanley; OCKET NUMBER: 2014-0582- MSW-E; TCEQ ID NUMBER: 106829427; LOCATION: 716 Grapevine Trail, Lockhart, Caldw I County; TYPE OF FACILITY: municipal solid waste (MSW) disp sal site; RULES VIOLATED: 30 TAC §330.15(c) and §330.7(a), by ailing to prevent the unauthorized dumping, collection, storage, trans ortation, processing, or disposal of MSW; PENALTY: $1,312; ST FF ATTORNEY: Laura Evans, Litigation Division, MC 175, (512) 239-3693; REGIONAL OFFICE: Austin Regional Office, 12100 Par 35 Circle, Building A, 3rd Floor, Austin, Texas 78753, (512) 239-34 0. TRD-201405527 Kathleen C. Decker Director, Litigation Division Texas Commission on Environment Filed: November 20, 2014 

# + + Notice ofPublic Hearing on Pr osed Revisions to 30 TAC Chapters 37 and 336 The Texas Commission on Environ ental Quality (commission) will conduct a public hearing to recei e testimony regarding proposed revisions to 30 TAC Chapter 37, F ancial Assurance, §37.9045 and §37.9050 and 30 TAC Chapter 3 , Radioactive Substance Rules, §§336.2, 336.105, 336.1111, and 3 .1127; and new §336.739, under the requirements ofTexas Govemm nt Code, Chapter 2001, Subchapter B. The proposed rulemaking would i plement Senate Bill 347, 83rd Texas Legislature, 2013, by amen ing 30 TAC Chapter 37, which would reference the new Environm ntal Perpetual Care Account and by amending 30 TAC Chapter 336, provide for volume reduction of low-level radioactive waste. The commission will hold a public I earing on this proposal in Austin, Texas on January 13, 2015, at 10:0 a.m. in Building E, Room 201S, at the commission's central office lo ated at 12100 Park 35 Circle. The hearing is structure for the receipt oforal or written comments by interested persons. In ividuals may present oral statements when called upon in order ofre istration. Open discussion will not be permitted during the hearing; owever, commission staffmembers will be available to discuss the p oposal 30 minutes prior to the hearing. Persons who have pecial communication or other accommodation needs who are plan ing to attend the hearing should contact Sandy Wong, Office ofLe a! Services, at (512) 239-1802. Requests should be made as far in ad ance as possible. Written comments may be submitted to Kris Hogan, MC 205, Office of Legal rvices, Texas Commission on Environmental Quality, P.O. B x 13087, Austin, Texas 78711-3087 or faxed to (512) 239-4808. Electronic comments may be submitted at: http://www5.tceq.te. s.govlrules/ecommentsl. File size restrictions may apply to comments being submitted via the eComments system. All com ents should reference Rule Project Number 2013-056-037-WS. The comment period closes on January 20, 2015. Copies ofth proposed rulemaking can be obtained from the commission's web 'te at http://www.tceq.texas.gov/navlrules/propose

_adopt.html. or further information, please contact Bobby Janecka, Radioactiv Material Licensing Section, (512) 239-6415. TRD-201405579 Robert Martinez Director, Environme al Law Division Texas Commission o Environmental Quality Filed: November 21, 2014 

# + + 

# + Notice ofPublic Hearing on Proposed Revisions to 30 TAC Chapter 114**~md** 

### 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 TAC Chapter 114, Control of Air Pollution from Motor Vehicles, §§114.2, 114.7, 114.53, 114.60, 114.62, 114.64, 114.70, and 114.87, and corresponding revisions to the state implementation plan (SIP) under the requirements of Texas Health and Safety Code, §382.0 17; Texas Goverrunent Code, Chapter 2001, Subchapter B; and 40 Code ofFederal Regulations §51.102 ofthe United States Environmental Protection Agency concerning SIPs. This proposed rulemaking would allow a county participating in the Low Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program (LIRAP) to opt out ofthe LIRAP. The commission will hold a public hearing on this proposal in Austin on January 6, 2015, at 2:00p.m. in Building E, Room 201S, at the commission's central office located at 12100 Park 35 Circle. The hearing is structured for the receipt oforal or written comments by interested persons. Individuals may present oral statements when called upon in order ofregistration. Open discussion will not be permitted during the hearing; however, commission staffmembers will be available to discuss the proposal 30 minutes prior to the hearing. Persons who have special communication or other accommodation needs who are planning to attend the hearing should contact Sandy Wong, Office ofLegal Services, at (512) 239-1802. Requests should be made as far in advance as possible. Written comments may be submitted to Kris Hogan, MC 205, Office of Legal Services, Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 78711-3087 or faxed to (512) 239-4808. Electronic comments may be submitted at: http://www5.tceq.texas.gov/ruleslecomments/. File size restrictions may apply to comments being submitted via the eComments



## INADDITION December 5, 2014 39 TexReg 9623

### system. All comments should reference Rule Project Number 20 14-027-114-AI. The comment period closes January 9, 2015. Copies of the proposed rulemaking can be obtained from the commission's website at http://www.tceq.texas.gov/navlruleslpropose

_adopt.html. 

### For further information, please contact Jamie Zech, Air Quality Planning Section, (512) 239-3935. TRD-201405591 Robert Martinez Director, Environmental Law Division Texas Commission on Environmental Quality Filed: November 21, 2014



### Notice ofPublic Heari on Proposed Revisions to the State Implementation Plan The Texas Commission o Environmental Quality (commission) will conduct a public hearing o receive testimony regarding proposed revisions to the state imple entation plan (SIP) under the requirements ofTexas Health and Safe ·Code, §382.017; Texas Government Code, Chapter 2001, Subchapt r B; and 40 Code of Federal Regulations §51.102 ofthe United Sta es Environmental Protection Agency (EPA) concerning SIPs. The proposed SIP revisio would satisfY the anti-backsliding obligations for the revoked on hour ozone National Ambient Air Quality Standard (NAAQS) and e sure that the substance ofthe redesignation requirements is met

### fort~ Houston-Galveston-Brazoria (HGB) area. This redesignation substi te would take the place of a redesignation request and maintenance Ian, which the EPA normally requires under a standard that has not be n revoked. The commission will hold a public hearing on this proposal in Houston on January 6, 2015 at 2: p.m. in the Auditorium at the Texas Department ofTransportatio District Office, 7600 Washington Avenue. The hearing is structured or the receipt oforal or written comments by interested persons. In ividuals may present oral statements when called upon in order ofre istration. Open discussion will not be permitted during the hearing; owever, commission staffmembers will be available to discuss the pr posal 30 minutes prior to the hearing. Persons who have speci communication or other accommodation needs who are planning o attend the hearing should contact Joyce Spencer-Nelson, Air Qua ity Division, at (512) 239-5017. Requests should be made as far in vance as possible. Written comments may e submitted to Melanie Rousseau, MC 206, Air Quality Divis' n, Texas Commission on Environmental Quality, P.O. Box 1 87, Austin, Texas 78711-3087 or faxed to (512) 239-6188. El ctronic comments may be submitted at: http://www5.tceq.texas.go lrules/ecomments/. 

### File size restrictions may apply to comments ing submitted via the eComments 

### system. All comments pertaining o the proposed HGB Area Redesignation Substitute for the One-Ho r Ozone NAAQS SIP revision should reference Project Number 201 -011-SIP-NR The comment period closes January 9, 2015. Copies the proposed SIP revision can be obtained from the commission's W b site at http:/lwww.tceq.texas.gov/airquality/sip/criteria-po!lutants/. ip-ozone. 

### For further information, p ase contact Melanie Rousseau, Air Quality Division, (512) 239-0707. TRD-201405532



## 39 TexReg 9624 December 5, 2014 Texas Register Robert Martin z Director, Envi onmental Law Division Texas Commi sion on Environmental Quality Filed: Novem er 20, 2014



## Texas Et ics Commission
List ofLate ilers Listed below re the names offilers from the Texas Ethics Commission who did not e reports or failed to pay penalty fines for late reports in reference to t e listed filing deadline. Ifyou have any questions, you may contact obbie Douglas at (512) 463-5800. Deadline: L bby Activities Report due September 10, 2014 Luke Bellsny er, 809 

### W. 12th St., Ste. E, Austin, Texas 78701 Jennifer E. S llers, 700 Mandarin Flyway #203, Cedar Park, Texas 78613 TRD-201405 3 Natalia Luna shley Executive Dir ctor Texas Ethics ommission Filed: Novem er 21, 2014 

# • • Texas Fa ilities Commission Request for roposals 

### #303-6-20478 

# •

The Texas Fa 'lities Commission (TFC), onbehalfofthe Texas Department ofCrim nal Justice (TDCJ), announces the issuance ofRequest for Proposals (RFP) #303-6-20478. TFC seeks a five (5) or ten (10) year lease of pproximately 10,639 square feet ofoffice space in Lubbock, Lubboc County, Texas. The deadline or questions is January 13, 2015 and the deadline for proposals is J nuary 21,2015 at 3:00p.m. The award date is February 18, 2015. TF reserves the right to accept or reject any or all proposals submitted. T is under no legal or other obligation to execute a lease on the basis this notice or the distribution of an RFP. Neither this notice nor the P commits TFC to pay for any costs incurred prior to the award of Parties interes ed in submitting a proposal may obtain information by contacting the Program Specialist, Evelyn Esquivel at (512) 463-6494. A copy ofthe P may be downloaded from the Electronic State Business Daily 

### at ttp://esbdcpa.state.t"".uslbid_show.cfm?bidid=ll4699. TRD-2014055 8 Kay Molina General Coun el Texas Facilitie Commission Filed: Novem er 20, 2014 

# • • Texas He lth and Human Services Commission
Public Notic The Texas He lth and Human Services Commission announces its intent to submit transmittal number 14-046 to the Texas State Plan for Medical Assis ance. under Title XIX ofthe Social Security Act. The purpose f this amendment is to exempt participating Medicare Advantage PI ns from ce1iain Nursing Facility cost sharing obligations. The pr posed amendment is effective March 1, 2015.

### BryanW. Shaw, Ph.D., P.E., 

### Chairman Toby Baker, 

### Commissioner Zak Covar, 

### Commissioner Richard A. 

### Hyde, P.E., 

### Executive Director



## TEXAS COMMISSION ON ENVIRONMENTAL QUALITY Protecting Texas by

### Reducing andPreventing Pollution



## NOTICE OF PUBLIC HEARING ON PROPOSED REVISIONS TO 30TAC CHAPTER 114AND 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 ofAir Pollution from Motor Vehicles, §§114.2, 114.7, 114.53, 114.60, 114.62, 114.64, 114.70, and 114.87, and corresponding revisions to the state implementation plan (SIP) under the requirements ofTexas Health and Safety Code, §382.017; Texas Government Code, Chapter 2001, Subchapter B; and40 Code of Federal Regulations §51.102 ofthe United States Environmental ProtectionAgency (EPA) concerning SIPs.
This proposed rulemaking would allow a county participating in the Low Income Vehicle Repair Assistance, Retrofit, andAcceleratedVehicle Retirement Program (LIRAP) to opt out ofthe LIRAP.
The commission will hold a public hearing on this proposal in Austin onJanuary 6, 2015, at 2:00 p.m. in Building E, Room 201S, at the commission's central office located at 12100 Park 35 Circle. The hearing is structuredfor the receipt oforal or written commentsbyinterested persons. Individuals may present oral statements when called upon in order ofregistration. Open discussion will notbe permitted during the hearing; however, commission staffmembers will be available to discuss the proposal30 minutes prior to the hearing.
Persons who have special communication or other accommodation needs who are planning to attendthe hearing should contact SandyWong, Office ofLegal Services at (512) 239-1802. Requests should be made as far in advance as possible.
Written comments may be submitted to Kris Hogan, MC 205, Office ofLegal Services, Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 78711- 3087, or faxed to (512) 239-4808. Electronic comments maybe submitted at: 

## http:/ /wwws.tceq.texas.govjrulesjecommentsj. File size restrictions may apply to commentsbeing submittedvia the 

## eComments system. All comments should reference Rule Project Number 2014-027-114-AI. The comment period closes January 9, 2015. Copies ofthe proposed rulemaking can be obtained from the commission's website at 

## http:

# I jwww.tceq.texas.gov jnav jrulesjpropose_adopt.html. Forfurther information, please contact Jamie Zech, Air Quality Planning Section, (512) 239-3935.

P.O. Box 13087 • Austin, Texas 78711-3087 • 512-239-1000 • tceq.texas.gov How is ourcustomer service? tceq.texas.gov

## Igoto

## Icustomersurvey printed on recycled paper

### under §37.9045(a)(6) ofthis title [ the€l'etfueftheperpetuale-area€- eetlffi]. 

### (g) This subsection applies only to owner oroperators required to provide financial assurance unde Chapter 336, Subchapter M ofthis title (relating to Licensing ofRadi active Substances Processing and Storage Facilities). Owners or ope ators required to provide financial assurance under Chapter 336, Sub hapter M ofthis title may satisfy the requirements offinancial assur nee by demonstrating that it passes a financial test as provided in §37.2 I ofthis title (relating to Financial Test), except the owner or operator which has issued rated bonds must also meet the criteria of [eF] parag phs (I) and (3) ofthis subsection, or the owner or open!tor which ha not issued rated bonds must also meet the criteria ofparagraphs (2) nd (3) ofthis subsection. (I) The owner or oper or must have: (A) tangible net wo h ofat least ten times the total current cost estimate (or the current ount required if a certification is used) for all closure activities; (B) assets located ii the United States amounting to at least 90% oftotal assets or at leas ten times the total current cost estimate (or the current amount requ ed ifa certification is used) for all closure activities; (C) a current rating or its most recent bond issuance of AAA, AA, or A as issued by Stan ard and Poor's, or 

### AAA AA, A as issued by Moody's; and (D) 

### at least one cia ofequity securities registered under the Securities Exchange Act o I934. (2) The owner or oper or must have: (A) tangible net w rth greater than $10 million, or of at least ten times the total current st estimate (or the current amount required ifa certification is used) or all closure activities, whichever is greater; (B) assets located i the United States amounting to at least 90% oftotal assets or at leas ten times the total current cost estimate (or the current amount requ red ifa certification is used) for all closure activities; (C) 

### a ratio of cas! flow divided by total liabilities greater than 0.15; and (D) 

### a ratio oftotal iabilities divided by net worth less than 1.5. (3) To demonstrate th t the owner or operator meets the test, it must submit the following i ems to the executive director: (A) a letter signed by the owner's or operator's chief financial officer and worded iden ically to the wording specified in §37.9025(a) ofthis title (relating o Wording ofFinancial Assurance Mechanisms); and (B) a written guara tee, hereafter referred to as "self:. guarantee," signed by an authori d representative which meets the requirements specified in §37.261 of this title (relating to Corporate Guarantee). The wording ofthe s If-guarantee shall be acceptable to the executive director and must in Jude the following: (i) 

### the owner or perator will fund and carry out the required closure or post closure ac vities, or upon issuance ofan order by the executive director, the own r or operator will set up and fund a trust, as specified in §37.201 oft s title [frelatffig te +Fust 

## Ftffid1] in the name ofthe owner or operato , in the amount ofthe current cost estimates; and



## 39 TexReg 9468 December 5, 

## 2014 Texas Register (ii) 

### if, at any t me, the owner's or operator's most recent bond issuance ceases to be ated in any category of"A" or above by either Standard and Poor's or oody's, the owner or operator will provide notice in writing of such fact to the executive director within 20 days after publication ofthe hange by the rating service. If the owner's or operator's most recent bond issuance ceases to be rated in any category of"A" orabove by b th Standard and Poor's and Moody's, the owner or operator no longer eets the requirements ofparagraph (I) ofthis subsection. (h) This subsection only applies to owners or operators required to provide financial assur ce under Chapter 336, Subchapter M ofthis title. A parent compan controlling a majority ofthe voting stock ofthe owner or operator rna satisfy the requirements offinancial assurance by demonstrating that i passes a financial test as specified in §37.251 ofthis title, and by mee ing the requirements of a corporate guarantee as specified in §37.261 fthis title. The guarantor shall also comply with the requirements id tified in this subsection. (1) The wording oft §37.361 of this title (relating to elude: corporate guarantee as specified in orporate Guarantee) shall also in-
(A) the signatures ftwo officers ofthe owner or operator and two officers ofthe guar ntor who are authorized to bind the respective entities; and (B) the corporate eals. (2) The guarantor sha 1also certifY and submit to the executive director that the guarantor l as: (A) majority cont I ofthe owner or operator; (B) full authority under the laws of the state under which it is incorporated and its a icles ofincorporation and bylaws to enter into this corporate guarante ; (C) full approval om its board ofdirectors to enter into this corporate guarantee; and (D) 

### authorization f each signatory. (i) 

### A parent company gu rantee may not be used in combination with other financial assuran mechanisms to satisfY the requirements ofthis subchapter. Afinan ial test by the owner or operatormay not be used in combination with ny other financial assurance mechanisms to satisfy the requirements fthis subchapter or in any situation where the owner or operator has a parent company holding majority control ofthe voting stock ofthe company. The agency certifies that leg I counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
Filed with the Office of theSe retary of State on November 21, 2014. TRD-201405574 Robert Martinez Director, Environmental Law Divi on Texas Commission on Environme tal Quality Earliest possible date of adoption January 4, 2015 For further information, please cal : (512) 239-6812 

# + • + CHAPTER 114. CONTROL OF AIR POLLUTION FROM MOTOR VEHICLESThe Texas Commission on Environmental Quality (TCEQ, agency, commission) proposes amendments to §§114.2, 114.7, 114.53, 114.60, 114.62, 114.64, 114.70, and 114.87. If adopted, §§114.2, 114.53, and 114.87 will be submitted to the United States Environmental Protection Agency (EPA) as a revision to the state implementation plan (SIP). Background and Summary ofthe Factual Basis for the Proposed Rules The commission proposes revisions to incorporate a procedure for counties to opt out of the Low Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program (LIRAP) and to be released from program obligations, including remittance of the fee to fund the LIRAP. The commission also proposes to add language that differentiates between a LIRAP participating county and non-participating county. The LIRAP was established to enhance the objectives of the Vehicle Inspection and Maintenance (1/M) Program. The 77th Texas Legislature, 2001, enacted House Bill (HB) 2134 to assist low income individuals with repairs, retrofits, or retirement of vehicles that fail emissions inspections. HB 2134 required the commission and the Texas Department of Public Safety (DPS), by rule, to provide the minimum guidelines by which eligible counties may implement the LIRAP. The commission, in coordination with DPS, adopted rules implementing HB 2134. The LIRAP is a voluntary program, and only those counties that have implemented vehicle emissions 1/M programs are eligible to participate in the LIRAP. 1/M program counties include Brazoria, Fort Bend, Galveston, Harris, and Montgomery Counties in the Houston-Galveston-Brazoria (HGB) area; Collin, Dallas, Denton, Ellis, Johnson, Kaufman, Parker, Rockwall, and Tarrant Counties in the Dallas-Fort Worth (DFW) area; Travis and Williamson Counties in the Austin-Round Rock (ARR) area; and El Paso County. To participate, an eligible county must submit a written request to the TCEQ from the county's commissioners court to implement the LIRAP. The TCEQ executive director and the participating county then enter into a grant contract for implementation of the LIRAP. Under the program, monetary or other compensatory assistance is provided for emission-related repairs directly related to bringing the vehicle into compliance or for replacement assistance for a vehicle that has failed the required emissions test and for which emission-related repairs would not be economical. In addition, appropriated funds are granted to participating counties for use in approved local initiative projects (LIP). The LIRAP is funded through a fee (LIRAP fee) that is charged to vehicle owners in participating counties. The LIRAP fee is $6.00 in participating DFWand HGB-area counties, and it is charged to vehicle owners who receive on-board diagnostics (OBD) emissions inspection tests. The LIRAP fee is $2.00 in participating ARR-area counties, and it is charged to vehicle owners for any emissions inspection test performed. The LIRAP fee is remitted at authorized inspection stations during annual vehicle safety and emissions inspections, but as of March 1, 2015 the LIRAP fee will be paid at the Texas Department ofMotorVehicles (DMV) or county tax assessor-collector during vehicle registration. This change is a result ofa 2014 revision to Chapter 114, Subchapters A, B, and C (Rule Project Number 2013-035-114-AI), transitioning the state to a single sticker system for vehicle inspection and registration and implementing HB 2305, 83rd Texas Legislature, 2013. The 2002 rules adopted to implement the LIRAP established minimum and maximum assistance amounts for emission-related repairs and retrofits, minimum and maximum assistance amounts toward purchase of replacement vehicles, and criteria for determining eligibility. The 2002 rulemaking required that emission-related repairs covered by the program be carried out at recognized emissions repair facilities and allowed participating counties to administer the program themselves or contract with private entities or other participating counties to administer the program. The 2002 rulemaking allowed the commissioners court of a participating county to appoint one or more local advisory panels consisting of individuals representing automobile dealerships, the automotive repair industry, safety inspection stations, local affected governments, and local nonprofit organizations to advise the commissioners court on the operation of the LIRAP. Additionally, the rulemaking required the commission to authorize the assignment of emissions reduction credits to private, commercial, or business entities that purchase qualified vehicles for accelerated retirement under the LIRAP. Retired vehicles had to be destroyed, recycled, dismantled with remaining parts sold, or placed in storage and subsequently retired, repaired, or used as replacement vehicles. The rulemaking to implement the LIRAP was adopted on March 27, 2002, as published in the April 12, 2002, issue of the Texas Register (27 TexReg 3194). The 79th Texas Legislature, 2005, enacted HB 1611, which revised elements of the LIRAP. HB 1611 allowed for the LIRAP to be administered by participating counties in accordance with Texas Government Code, Chapter 783 (relating to Uniform Grant and Contract Management). It also allowed LIRAP funds to cover programmatic costs such as call-center management, application oversight, invoice analysis, education, outreach, and advertising. In 2005, legislation revised vehicle registration eligibility requirements. The commission adopted rule revisions (Rule Project Number 2005-073-114-EN) implementing HB 1611 on April 12, 2006, as published in the April 28, 2006, issue of the Texas Register (31 TexReg 3575). On April 28, 2014, the commission received Court Order No. 2014-221-04-21 from the Collin County Commissioners Court withdrawing the county from participation in the LIRAP. The court order was sent with a letter requesting that the commission release Collin County from program requirements, including collection of the LIRAP fee. At the time the URAP was established, the rules did not specify a procedure to allow participating counties to opt out of the program or to be released from the LIRAP fee requirement This proposed rulemaking would provide Collin County or any participating county with a procedure for opting out of the LIRAP, which includes being released from collection of the LIRAP fee and ending of the contract between the county and the TCEQ executive director. The proposed rulemaking would amend Subchapter A to revise the definitions for the LIRAP to account for counties opting out of the program and to add four new definitions to further clarify program elements and differentiate between counties participating in the LIRAP and non-participating counties. This proposed rulemaking would also amend Subchapter C, Divisions 1, 2, and 3. Division 1 would be amended to revise the liM fees in a participating nonattainment county that elects to opt out of the LIRAP. Division 2 would be amended to provide a mechanism for participating nonattainment counties to opt out of the LIRAP, and Division 3 would be amended to provide a mechanism for early action compact (EAC) counties to



## PROPOSED RULES December 5, 2014 39 TexReg 9469opt out ofthe LIRAP and accordingly, revise the 1/M fee requirements in §114.87. Section by Section Discussion In addition to the proposed amendments associated with providing a mechanism for counties to opt out of the LIRAP, various stylistic, non-substantive changes are included to update rule language to current Texas Register style and format requirements. Such changes include appropriate and consistent use of acronyms, section references, rule structure, and certain terminology. These changes are non-substantive and generally are not specifically discussed in this preamble. §114.2, Inspection and Maintenance Definitions The commission proposes to replace the acronym for the Low Income Vehicle RepairAssistance, Retrofit, and Accelerated Vehicle Retirement Program with the full program title to be consistent with the title of the referenced subchapter and Texas Register requirements. §114.7, Low Income Vehicle Repair Assistance, Retrofits, and Accelerated Vehicle Retirement Program Definitions The commission proposes to correct the title of §114.7 by amending the term "retrofit" to be singular. In addition, the commission proposes to add four new definitions to §114.7 to clarify program requirements and differentiate between participating counties and non-participating counties. "LIRAP fee" is proposed to be added as paragraph (13) to define the fee that vehicle owners in participating LIRAP counties pay when their vehicles receive certain emissions tests, OBD tests in DFW and HGB-area counties, and any emissions test in El Paso, Travis, and Williamson Counties. El Paso is currently a non-participating county. Assessment ofthe LIRAP fee is authorized by Texas Health and Safety Code (THSC), §382.202. "LIRAP fee termination date" is proposed to be added as paragraph (14) to define the effective date upon which a county opting out ofthe LIRAP would no longer pay the LIRAP fee. "LIRAP opt-out effective date" is proposed to be added as paragraph (15) to define the date upon which a county that was participating in the LIRAP becomes a non-participating county. Withdrawal from the program is effective on the date that both ofthe following requirements have been met: 1) the county is no longer subject to the LIRAP fee; and 2) the grant contract between the county and the TCEQ executive director that established participation in the program is ended. The grant contract cannot be ended before the LIRAP fee termination effective date. "Non-participating county" is proposed to be added as paragraph (18) to differentiate between counties that are eligible to participate in the LIRAP but choose not to and eligible counties that participate in the LIRAP. The definition for "Participating county" is proposed to be amended to clarify that a county that is in the process ofopting out ofthe LIRAP would be considered a participating county until the LIRAP opt-out effective date. The definition for "Recognized emissions repair facility" would be amended to replace the reference to 37 Texas Administrative Code (TAC) §23.93 with 37 TAC §23.51 as it replaced the former as of March 13, 2013. The remaining definitions in §114.7 would be renumbered to accommodate the added definitions. §114.53, Inspection and Maintenance Fees The commission proposes to amend §114.53(d)(1), (2), and (3) to more fully describe the LIRAP fee as it relates to the vehicle 1/M programs in El Paso County and the DFW and HGB-area



## 39 TexReg 9470 December 5, 2014 Texas Register counties. Subparagraphs would be added to §114.53(d)(1), (2), and (3) to explain remittance of 1/M fees, including the LIRAP fee, in a county participating in the LIRAP, a participating county that is in the process of opting out of the LIRAP, and a county that is not participating in the LIRAP and not subject to the LIRAP fee. The commission proposes to reorganize §114.53(d)(1) to allow the proposed subparagraphs to be consistent among the paragraphs of §114.53(d). The proposed description of the state fees vehicle owners would pay during vehicle registration in participating counties, subparagraph (A) for each paragraph in §114.53(d), would include the LIRAP fee. The proposed description ofthe state fees vehicle owners would pay during vehicle registration in participating counties that are in the process of opting out ofthe LIRAP, subparagraph (B) for each paragraph in §114.53(d), would include the LIRAP fee until the effective LIRAP fee termination date, after which state fees would not include the LIRAP fee. The proposed description of the state fees vehicle owners would pay during vehicle registration in non-participating counties, subparagraph (C) for each paragraph in §114.53(d), would not include the LIRAP fee. §114.60, Applicability for LIRAP The commission proposes to add §114.60(c)(7) specifying that LIRAP requirements are not applicable to vehicles registered in counties that do not participate in the program. This addition would clarify that vehicles in non-participating counties are not subject to LIRAP requirements. §114.62, LIRAP Funding The commission proposes to amend§114.62(a) to clarify thatthe LIRAP is funded through money collected only in participating counties, and the term, "participating" would replace "affected" in §114.62(c) for consistency in describing counties that participate in the program. §114.64, LIRAP Requirements The counties that are eligible to participate in the LIRAP are limited to those that are included in 1/M program areas, but no county is required to participate in the LIRAP. The original rule to implement the program included a procedure to allow counties to opt into the LIRAP, but it did not include a procedure to allow counties to opt out. The proposed amendment to §114.64 would establish a procedure for opting out of the LIRAP. The commission proposes to amend §114.64(a), concerning implementation of the LIRAP, to indicate that participation in the program is voluntary. The commission proposes to amend §114.64(b)(3) to clarify that vehicle repair and retrofit assistance through the AirCheckTexas Drive a Clean Machine (DACM) Program is only available for vehicles registered in participating LIRAP counties. The commission proposes to add §114.64(g) to establish the procedure for opting out of the LIRAP. Proposed §114.64(g)(1) would require a county wishing to opt out of the program to submit a written request from the county commissioners court to the TCEQ executive director, which is consistent with the process for opting into the URAP. The written request would include one of two possible LIRAP opt-out effective dates, either the LIRAP fee termination effective date or the last day of the legislative biennium in which the LIRAP fee termination effective date occurred. The first option would completely withdraw the opt-out county from the program on the same date that the county was no longer subject to the LIRAP fee. The second option would extend the opt-out county's program participation past the LIRAPfee termination effective date to allow the county time to spend any remaining funds that had been allocated by the commission. The commission requests comment on the two program opt-out options proposed. Participation in the LIRAP makes grant funds available to counties for program-related projects and to qualified vehicle owners, and the LIRAP is funded through fees collected from county vehicle owners. Due to the program's reliance on public support, the commission is requesting public comment on the method and process by which counties wishing to opt into or out of the LIRAP would do so, including any associated public notice requirements. Proposed §114.64(g)(2) describes the procedure the commission would follow to release a county from LIRAP requirements upon receiving a written request from the county to opt out. Release from LIRAP requirements includes removing the LIRAP fee from the state fees charged to vehicle owners during vehicle registration, which requires the commission to coordinate with the DMV and DPS and to contact the Legislative Budget Board of Texas (LBB). This proposal includes a period oftime for the 

### LIRAP fee to be removed in counties that have requested to opt out of the program. The extended time frame is proposed because it allows the DMV to cycle through vehicle registrations for which notices that include the LIRAP fee have already been issued. The DMV prints and distributes vehicle registration notices more than 90 days prior to registration expiration dates. For example, if the TCEQ executive director received a written request to withdraw from the program on August 1st, then the effective LIRAP fee termination date would be on or after December 1st because December would be the first month for which registration notices that did not include the LIRAP fee would be printed. The DMV prints registration notices mid-month, so a written request to withdraw that was received by the TCEQ executive director in mid-August would likely not result in the LIRAP fee being effectively terminated for the submitting county until, at the earliest, January 1st. The commission requests comment concerning this element of proposed §114.64(g)(2). The proposed effective LIRAP fee termination date would be the first day of the month for the month that the DMV issues registration notices that do not include the LIRAP fee in the opt-out county. Until the LIRAP fee termination effective date, a county in the process of opting out ofthe LIRAP is still considered a participating county because the LIRAP fee cannot be assessed in a non-participating county. Depending upon the LIRAP opt-out effective date included in a county's written request to opt out of the program, the county could be completely withdrawn from the LIRAP on the LIRAP fee termination effective date, ending the contract between the county and the TCEQ executive director simultaneous with removal ofthe LIRAP fee, or the county could continue to participate in LIRAP activities without being subject to the LIRAP fee until the end ofthe legislative biennium in which the fee termination date occurs. The first option could end the county's participation in the LIRAP before all grant funds allocated to the county have been spent. The second option would allow a county the opportunity to continue LIRAP activities and spend previously allocated LIRAP grant funds until the end of the biennium in which the LIRAP fee termination date occurred for that county. Proposed §114.64(g)(3) describes the LIRAP opt-out effective date, which is upon which a participating county is no longer subject to the LIRAP fee and the grant contract between the county and the TCEQ executive director is ended. On this date, the county becomes a non-participating county. Because the commission proposes to allow a county wishing to opt out of the LIRAP two options in determining when the program is ended for that county, there are two possible effective dates upon which a participating county would become a non-participating county, either simultaneous with the LIRAP fee termination effective date or the last day of the legislative biennium in which the LIRAP fee termination effective date occurred. Upon a county's LIRAP opt-out effective date, any remaining grant balances would be returned to the commission. §114JO, Records, Audits, and Enforcement The commission proposes to amend §114.70(c) and (d) to incorporate recordkeeping and inspection requirements for counties that opt out of the LIRAP. Proposed §114.70(c) would require program participants in counties opting out of the LIRAP to maintain program records concerning the opt-out county for three years after the effective LIRAP opt-outdate for the county. Program participants include the county, its designated entity, participating recognized emissions repair facilities, and participating vehicle retirement facilities. Proposed §114.70(d) would require that in the three-year period during which records must be kept after a county's LIRAP opt-out effective date, the TCEQ executive director must be allowed to conduct audits and inspections ofthe records kept concerning the opted out county by program participants. §114.87, Inspection and Maintenance Fees The commission proposes to amend §114.87 to apply the changes proposed in §114.53 to counties with early action compact programs that participate in the vehicle emissions 1/M program. Proposed §114.87(d)(1)- (3) would explain remittance of 1/M fees, including the LIRAP fee, in a county participating in the LIRAP, a participating county that is in the process of opting out of the LIRAP, and a county that is not participating in the LIRAP and not subject to the LIRAP fee. The proposed description of the state fees vehicle owners would pay during vehicle registration in participating EAC counties, paragraph (1 ), would include the LIRAP fee. The proposed description of the state fees vehicle owners would pay during vehicle registration in participating EAC counties that are in the process of opting out of the LIRAP, paragraph (2), would include the LIRAP fee until the effective LIRAP fee termination date, after which state fees would not include the LIRAP fee. The proposed description of the state fees vehicle owners would pay during vehicle registration in non-participating EAC counties, paragraph (3), would not include the LIRAP fee. Fiscal Note: Costs to State and Local Government Jeff Horvath, Analyst in the Chief Financial Officer's Division, has determined that for the first five-year period the proposed rules are in effect, no fiscal implications are anticipated for the agency or for other units of state or local government as a result of administration or enforcement ofthe proposed rules. The proposed rules provide a mechanism for a county to withdraw from the 

### LIRAP, which is a voluntary program. The proposed rulemaking would establish a procedure to allow a participating county to opt out ofthe LIRAP. In March 2002, the agency adopted rules to implement the LIRAP, which was authorized in THSC, §382.209. The rules established a fee under the vehicle emissions 1/M program to be paid by vehicle owners in participating counties, to fund the LIRAP. Pursuant to the passage of HB 2305, 83rd Texas Legislature, under the new single sticker system for vehicle inspection and registration, the vehi

## PROPOSED 

## RULES December 5, 2014 39 TexReg 9471

### cle emissions 1/M fees will now be collected when vehicle owners register their vehicles. Only counties that participate in the vehicle emissions liM program are eligible to participate in the LIRAP. Those counties include the nonattainment and planning counties of Brazoria, Fort Bend, Galveston, Harris, and Montgomery Counties in the HGB area; Collin, Dallas, Denton, Ellis, Johnson, Kaufman, Parker, Rockwall, and Tarrant Counties in the DFW area; Travis and Williamson Counties in the ARR area, and El Paso County. When the rules were first adopted, a procedure was established to allow counties to opt into the LIRAP as part of an effort to reduce vehicle emissions. All eligible counties but El Paso County opted in. However, no mechanism was established to allow a participating county to opt out ofthe LIRAP and have the LIRAP-funding fee removed from vehicle emissions inspection fees in that county. The Auto Emissions Inspection OBD, or LIRAP, fee revenue funds the LIRAP for those counties that have opted into the program. Vehicle owners in Travis and Williamson Counties pay $2.00 in annual LIRAP fees, and vehicle owners in DFWand HGB-area counties pay $6.00 in annual LIRAP fees. These fees are added to the base emissions inspection fee. The LIRAP fees from each participating county are deposited into the agency's Clean Air Account 151, and a portion ofthat account's balance is used to fund both the DACM and LIP grant programs in participating counties. If a county opted out of the LIRAP program, the OBD fees that fund the program would no longer be collected from vehicle owners in that county. Because this fee is used to fund the DACM and LIP programs, opting out would mean the county would not receive additional LIRAP funding to support clean air efforts and to fund repairs and replacements for low income vehicle owners who fail the motor vehicle emissions inspection. There is no direct fiscal impact to the agency or to other units of state or local government from the proposed rulemaking as the proposed rules only provide a mechanism for a county to withdraw from the LIRAP, which is a voluntary program. Of the 17 eligible counties, 16 are currently participating in the program. Ifa county chose to withdraw from the LIRAP, there may be fiscal impacts, but they would be a result of voluntarily opting out, not a result of the proposed rulemaking. The amount of LIRAP funding available to counties depends upon how much the legislature decides to appropriate for that purpose. The 83rd Texas Legislature, 2013, appropriated $7,664,640 annually to fund the LIRAP for Fiscal Years 2014 and 2015. The estimated amount of Fiscal Year 2014 LIRAP-related revenue was $42,847,650. The portion of the LIRAP fee that is not legislatively appropriated to fund the program in participating counties remains in the Clean Air Account 151 as part of the available fund balance. Collin County submitted a resolution from the county commissioners court to opt out of the program. Actual fiscal impacts for a county that opts out would be unique to that county due to varying funding amounts and program-related spending. LIRAP grants are split between funding for local projects through the LIP and funding through the DACM program, which provides financial assistance for vehicle owners to repair, retrofit, or replace vehicles that fail annual emissions inspections. Eligible LIP include expansion and enhancement of the AirCheckTexas Repair and Replacement Assistance Program, development and implementation of remote emissions-sensing systems, enhancement of trans

## 39 TexReg 9472 December 5, 2014 Texas Register portation system improvements, and coordination with local law enforcement to reduce counterfeit inspection stickers. Upon Collin County's URAP opt-out effective date, future funding for both DACM and LIP would stop for Collin County. Collin County DACM and LIP allocations for 2008 through 2015 are listed in Table 1: OACM and LIP Allocations for Collin County No allocations have been made beyond Fiscal Year 2015. Figure 1: 30 TAC Chapter 114--Preamble If a participating county elects to opt out of the LIRAP, then staff would be required to coordinate between the county, the DMV, and the DPS to release the county from its LIRAP fee obligation. For example, TCEQ staff would inform DPS and DMV of Collin County's intention to withdraw from the LIRAP upon adoption of this proposed rulemaking. The proposed rulemaking would allow the DMV time to cycle through its pre-printed vehicle registration forms that include the LIRAP fee. This would prevent the DMV from having to reissue vehicle registration notices, which are printed and distributed to vehicle owners more than 90 days in advance of when they are due. Vehicle owners in Collin County with the LIRAP fee included on their registration notices would pay the LIRAP fee, but those notices would cycle out as the DMV issued notices that did not include the fee. Any DACM or LIP funds that were not spent by Collin County before its LIRAP opt-out effective date (either upon the effective LIRAP fee termination date or upon the last day of the legislative biennium in which the LIRAP fee termination becomes effective, as decided by the county) would be returned to the commission. The proposed rules establish a procedure for opting out of the LIRAP, but the procedure would not impose a fiscal burden on a county wishing to withdraw from the program. The proposed rules require records to be kept for three years following a county's withdrawal from the LIRAP. This requirement would not have a fiscal impact beyond the records retention requirement imposed while the county was participating in the program. There are participating counties that have used LIRAP grant funds for LIP-related salaries. If a county opted out of the LIRAP, those funds would no longer be available for that purpose upon the LIRAP opt-out effective date. Public Benefits and Costs Mr. Horvath has also determined that for each year of the first five years the proposed rules are in effect, there is no direct public benefit anticipated from the changes seen in the proposed rules. However, counties in nonattainment and planning areas that participate in the LIRAP program will have the ability to opt out of the program if they so choose. The proposed rules are not expected to have fiscal implications for individuals or businesses as the proposed rules only provide a mechanism for a county to withdraw from the LIRAP, which is a voluntary program. The residents in a county that voluntarily opted out of the LIRAP program would be affected. The DACM program provides assistance to vehicle owners, and by doing so, may help generate business for participating emissions repair facilities, dealers, and vehicle salvage facilities. For example, upon Collin County's LIRAP opt-out effective date, eligible, low-income individuals in that county with vehicles that fail emissions inspection tests would not have access to repair or replacement grant funds to assist with bringing their vehicles into compliance or replacing old vehicles. However, there may be little impact on affected businesses as drivers with vehicles that fail emissionsinspections would still be obligated to remediate the failure, and vouchers from vehicle owners in other participating counties can still be used in Collin County. Vehicle owners in Collin County, or any county opting out, would no longer be assessed the annual LIRAP fee upon the effective LIRAP fee termination date. Table 2: Estimated Annual Revenue from LIRAPFee in Collin County lists the estimated LIRAP fees by year collected from inspection stickers issued in Collin County. There are 21 participating recognized emissions repair facilities that perform repair work through the program in Collin County, and there are 27 participating dealerships that sell vehicles to eligible participants through the program in Collin County. Since the beginning of DACM in 2007, Collin County residents have repaired 1,308 vehicles and retired and replaced 2,710 vehicles at an overall cost of $8,896,641. Figure 2: 30 TAC Chapter 114--Preamble Small Business and Micro-Business Assessment No adverse fiscal implications are anticipated for small or micro-businesses as a result ofthe proposed rules as the proposed rules only provide a mechanism for a county to withdraw from the LIRAP, which is a voluntary program. If a small business owns or operates an emissions repair facility or a vehicle salvage operation that does business through the LIRAP program, or owns or operates a participating dealership that sells vehicles to eligible participants through the program, they could be negatively impacted if the county in which they operate decides to opt out of the LIRAP program. However, drivers in Collin County with vehicles that fail emissions inspections would still be obligated to remediate the reason for the failure of the vehicle to pass the emissions test and vouchers from vehicle owners in other participating counties can still be used in Collin County, so the impact to businesses in counties that may opt out ofthe LIRAP program may be minimal. Small Business Regulatory Flexibility Analysis The commission has reviewed this proposed rulemaking and determined that a small business regulatory flexibility analysis is not required because the proposed rules do not adversely affect a small or micro-business in a material way for the first five years that the proposed rules are in effect. Local Employment Impact Statement The commission has reviewed this proposed rulemaking and determined that a local employment impact statement is not required because the proposed rules do not adversely affect a local economy in a material way for the first five years that the proposed rules are in effect. Draft Regulatory Impact Analysis Determination The commission reviewed this proposed rulemaking in light of the regulatory impact analysis requirements of Texas Government Code, §2001.0225 and determined that it does not meet the definition of a "major environmental rule" as defined in that statute. A "major environmental rule" means "a rule, the specific intent ofwhich 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 ofthe state or a sector ofthe state." Additionally, this proposed rulemaking does not meet any of the four applicability criteria for requiring a regulatory impact analysis for a major environmental rule, which are listed in Texas Government Code, §2001.0225(a). Texas Government Code, §2001.0225 applies only to a major environmental rule, the result of which is to: 1) exceed a standard set by federal law, unless the rule is specifically required by state law; 2) exceed an express requirement of state law, unless the rule is specifically required by federal law; 3) exceed a requirement of a delegation agreement or contract between the state and an agency or representative of the federal government to implement a state and federal program; or 4) adopt a rule solely under the general powers of the agency instead of under a specific state law. The amendments to Chapter 114 are proposed in accordance with HB 2134, which authorized the LIRAP found in THSC, Chapter 382. HB 2134 was enacted to enhance the objective of the vehicle emissions 1/M program. The LIRAP provides financial assistance to low-income individuals for repair, retrofit, or retirement of vehicles that fail an emissions inspection. The proposed rulemaking is not expected to adversely affect in a material way the economy, a sector ofthe economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. The proposed rulemaking implements requirements of42 United States Code (USC), §7410, which requires states to adopt a SIP that provides for the implementation, maintenance, and enforcement of the National Ambient Air Quality Standards (NAAQS) in each air quality control region of the state. The LIRAP was designed to enhance the objectives of the 1/M program, and the commission previously submitted the 1/M rules to the EPA as a revision to the Texas SIP, which the EPA approved effective July 25, 2014. While 42 USC, §7410 generally does notrequire specific programs, methods, or reductions in order to meet the standard, the SIP must include enforceable emission limitations and other control measures, means, or techniques (including economic incentives such as fees, marketable permits, and auctions of emissions rights), as well as schedules and timetables for compliance as may be necessary or appropriate to meet the applicable requirements of this chapter (42 USC, Chapter 85). The provisions of the Federal Clean Air Act (FCAA) recognize that states are in the best position to determine what programs and controls are necessary or appropriate in orderto meet the NAAQS. This flexibility allows states, affected industry, and the public to collaborate on the best methods for attaining the NAAQS for the specific regions in the state. Even though the FCAA allows states to develop their own programs, this flexibility does not relieve a state from developing a program that meets the requirements of42 USC, §7410. States are not free to ignore the requirements of42 USC, §7410 and must develop programs to assure that their contributions to nonattainment areas are reduced so that these areas can be brought into attainment on schedule. The requirement to provide a fiscal analysis of adopted regulations in the Texas Government Code was amended by Senate Bill (SB) 633 during the 75th Texas Legislature, 1997. The intent of SB 633 was to require agencies to conduct a regulatory impact analysis ofextraordinary rules. These rules are identified in the statutory language as major environmental rules that will have a material adverse impact and will exceed a requirement of state law, federal law, or a delegated federal program, or are adopted solely under the general powers of the agency. With the understanding that this requirement would seldom apply, the commission provided a cost estimate for SB 633 concluding that "based on an assessment of rules adopted by the agency in the past, it is not anticipated that the bill will have significant fiscal implications for the agency due to its limited application." The



## PROPOSED RULES December 5, 2014 39 TexReg 9473commission also noted that the number of rules that would require assessment under the provisions of the bill was not large. This conclusion was based, in part, on the criteria set forth in the bill that exempted the adopted rules from the full analysis unless the rule was a major environmental rule that exceeds a federal law As discussed earlier in this preamble, the FCAA does not always require specific programs. methods, or reductions in order to meet the NAAQS; thus, states must develop programs for each area contributing to nonattainment to help ensure that those areas will meet the attainment deadlines. Because of the ongoing need to address nonattainment issues and to meet the requirements of 42 USC, §7410, the commission routinely proposes and adopts SIP rules. The legislature is presumed to understand this federal scheme. If each rule adopted for inclusion in the SIP was considered to be a major environmental rule that exceeds federal law, then every SIP rule would require the full regulatory impact analysis contemplated by SB 633. This conclusion is inconsistentwith the conclusions reached by the commission in its cost estimate and by the LBB in its fiscal notes. Since the legislature is presumed to understand the fiscal impacts ofthe bills it passes and that presumption is based on information provided by state agencies and the LBB, the commission believes thatthe intent of SB 633 was only to require the full regulatory impact analysis for rules that are extraordinary in nature. While the SIP rules will have a broad impact, the impact is no greater than is necessary or appropriate to meetthe requirements ofthe FCAA. For these reasons. rules adopted for inclusion in the SIP fall under the exception in Texas Government Code, §2001.0225(a) because they are required by federal law. The commission has consistently applied this construction to its rules since this statute was enacted in 1997. Since that time, the legislature has revised the Texas Government Code but left this provision substantially un-amended. It is presumed that "when an agency interpretation is in effect atthe time the legislature amends the laws without making substantial change in the statute, the legislature is deemed to have accepted the agency's interpretation." Central Power& Light Co. v. Sharp, 919 S.W.2d 485, 489 (Tex. App. Austin 1995), writ denied with per curiam opinion respecting anotherissue, 960 S.W.2d 617 (Tex. 1997); Bullock 

### v. Marathon Oil Co., 798 S.W.2d 353, 357 (Tex. App. Austin 1990, no writ). Cf. Humble Oil & Refining Co. v. Calvert, 414 S.W.2d 172 (Tex. 1967); Dudney v. State Farm Mut. Auto Ins. Co., 9 S.W.3d 884, 893 (Tex. App. Austin 2000); Southwestern Life Ins. Co. 

### v. Montemayor, 24 S.W.3d 581 (Tex. App. Austin 2000, pet. denied); and Coastallndust. WaterAuth. 

### v. Trinity Portland Cement Div., 563 S.W.2d 916 (Tex. 1978). The commission's interpretation of the regulatory impact analysis requirements is also supported by a change made to the Texas Administrative Procedure Act (APA) by the legislature in 1999. In an attempt to limit the number of rule challenges based upon APA requirements. the legislature clarified that state agencies are required to meet these sections of the APA against the standard of "substantial compliance." The legislature specifically identified Texas Government Code, §2001.0225, as falling under this standard. The commission has substantially complied with the requirements of Texas Government Code, §2001.0225. The specific intent of these proposed rules is to amend sections ofthe TAC, which would allow any participating county to opt out of the LIRAP, including the collection of the URAP fee collected at the time of vehicle registration, without a future rulemaking. By providing a mechanism for participating counties to opt out of



## 39 TexReg 9474 December 5, 2014 Texas Register the LIRAP, this proposed rulemaking creates a more comprehensive program in accordance with the TCEQ's statutory obligation to create and implement the LIRAP. Additionally, even ifthe proposed rulemaking was a major environmental rule, itdoes not exceed a standard set by federal law or exceed an express requirement of state law. No contract or delegation agreement covers the topic that is the subject of this proposed rulemaking. Therefore, this proposed rulemaking is not subject to the regulatory analysis provisions of Texas Government Code, §2001.0225(b) because it does not meet the definition of a "major environmental rule," nor does it meet any of the four applicability criteria for a major environmental rule. Written comments on the draft regulatory impact analysis determination may be submitted to the contact person listed underthe Submittal of Comments section of this preamble. Takings Impact Assessment The commission evaluated the proposed rulemaking and performed an assessment of whether Texas Government Code, Chapter 2007 is applicable. The specific intent of these proposed rules is to amend sections of the TAC, which would allow any participating county to opt out of the LIRAP, including the collection of program-related LIRAP fee, without a future rulemaking. The proposed rules would substantially advance this stated purpose by amending sections in Chapter 114, Subchapters A and C to include revisions of the definitions and fees and to provide a mechanism for participating counties to opt out ofthe LIRAP. By providing a mechanism for participating counties to opt out of the LIRAP, this proposed rulemaking creates a more comprehensive program in accord with the TCEQ's statutory obligation to create and implement the LIRAP. Texas Government Code, §2007.003(b)(4) provides that Texas Government Code, Chapter 2007 does not apply to this proposed rulemaking because it is an action reasonably taken to fulfill an obligation mandated by state law. THSC, Chapter 382 requires the commission to establish and authorize the commissioners court of a participating county to implement a LIRAP subject to agency oversight that may include reasonable, periodic commission audits. Consequently, the proposed rulemaking meets the exemption criteria in Texas Government Code, §2007.003(b)(4). Nevertheless. the commission further evaluated these proposed rules and performed an assessment of whether these proposed rules constitute a "taking" under Texas Government Code, Chapter 2007. Promulgation and enforcement of these proposed rules would be neither a statutory nor a constitutional taking of private real property. Specifically, the subject proposed regulations do not affect a landowner's rights in private real property because this rulemaking would not burden (constitutionally), nor restrict or limit the owner's right to property and reduce its value by 25% or more beyond that which would otherwise exist in the absence of the regulations. These proposed rules create a voluntary program for counties in the state to participate in and opt out ofthe LIRAP. In addition, because the subject proposed regulations do not provide more stringent requirements they do not burden, restrict, or limit an owner's right to property and reduce its value by 25% or more beyond that which would otherwise exist in the absence of the regulations. Therefore, these proposed rules would not constitute a taking under the Texas Government Code, Chapter 2007. For these reasons, Texas Government Code, Chapter 2007 does not apply to this proposed rulemaking. Consistency with the Coastal Management ProgramThe commission reviewed the proposed rulemaking and found the proposal is a rulemaking identified in the Coastal Coordination Act Implementation Rules, 31 TAC §505.11(b)(4) relating to rules subjectto the Texas Coastal Management Program (CMP), and will, therefore, require that goals and policies ofthe 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 ofthe Coastal Coordination Advisory Committee 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 therefore, is consistent with CMP goals and policies. Written comments on the consistency ofthis rulemaking may be submitted to the contact person at the address listed under the Submittal of Comments section of this preamble. Announcement of Hearing The commission will hold a public hearing on this proposal in Austin on January 6, 2015, at 2:00p.m. in Building E, Room 201S, at the commission's central office located at 12100 Park 35 Circle. The hearing is structured for the receipt of oral or written comments by interested persons. Individuals may present oral statements when called upon in order of registration. Open discussion will not be permitted during the hearing; however, commission staff members will be available to discuss the proposal 30 minutes prior to the hearing. Persons who have special communication or other accommodation needs who are planning to attend the hearing should contact Sandy Wong, Office of Legal Services, at (512) 239-1802. Requests should be made as far in advance as possible. Submittal of Comments Written comments may be submitted to Kris Hogan, MC 205, Office of Legal Services, Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 78711-3087, or faxed to (512) 239-4808. Electronic comments may be submitted at: http://www5. tceq. texas.govlruleslecomments! File size restrictions may apply to comments being submitted via the eComments system. All comments should reference Rule Project Number 2014-027-114-AI. The comment period closes on January 9, 2015. Copies of the proposed rulemaking can be obtained from the commission's Web site at http:llwww.tceq.texas.gov/nav!ru/es/propose_adopt.html. For further information, please contact Jamie Zech, Air Quality Planning Section, (512) 239-3935. 

## SUBCHAPTER 

## A. DEFINITIONS 30 TAC §114.2, §114.7 Statutory Authority The amendments are proposed underTexas Water Code (TWC), §5.1 02, concerning General Powers, that provides the commission with the general powers to carry out its duties under the TWC; TWC, §5.1 03, concerning Rules, that authorizes the commission to adopt rules necessary to carry out its powers and duties under the TWC; TWC, §5.1 05, concerning General Policy, that authorizes the commission by rule to establish and approve all general policy of the commission; and under Texas Health and Safety Code (THSC), §382.017, concerning Rules, that authorizes the commission to adopt rules consistent with the policy and purposes of the Texas Clean Air Act. The amendments are also proposed under THSC, §382.002, concerning Policy and Purpose, that establishes the commission's purpose to safeguard the state's air resources, consistent with the protection of public health, general welfare, and physical property; THSC, §382.011, concerning General Powers and Duties, that authorizes the commission to control the quality of the state's air; and THSC, §382.012, concerning the State Air Control Plan, that authorizes the commission to prepare and develop a general, comprehensive plan for the proper control ofthe state's air. Additionally, the amendments are proposed under THSC, §382.209, concerning the Low Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program (LIRAP), that authorizes the commission and the Public Safety Commission to adopt rules implementing the LIRAP; and THSC, §382.210, concerning Implementation Guidelines and Requirements for the LIRAP, that authorizes the commission to adopt rules creating guidelines to assist participating counties in implementing the LIRAP. The proposed amendments implement THSC, §§382.002, 382.011, 382.012, 382.017, 382.209, and 382.210. 

### §114.2. Inspection andMaintenance 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 ascribedto them in the field ofair pollution control. In additionto the terms that are defined by the TCAA, the following words and terms, when used in Subchapter C ofthis chapter (relating to Vehicle Inspection and Maintenance; Low Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program [ ±JRAI!.]; and Early Action Compact Counties), have the following meanings, unless the context clearly indicates otherwise. (1) Acceleration simulation mode (ASM-2) test--An emissions test using a dynamometer (a set ofrollers on which atestvehicle's tires rest) that applies an increasing load or resistance to the drive train ofa vehicle, thereby simulating actual tailpipe emissions ofa vehicle
as it is moving and accelerating. The ASM-2 vehicle emissions test is comprised oftwo phases: (A) the 50115 mode--in which the vehicle is tested for 90 seconds upon reaching and maintaining a constant speed of 15 miles per hour (mph) on a dynamometer that simulates acceleration at a rate of 3.3 mph per second by using 50% ofthe vehicle available horsepower; and (B) the 25/25 mode--in which the vehicle is tested for 90 seconds upon reaching and maintaining a constant speed of25 mph
on a dynamometer that simulates acceleration at a rate of3.3 mph per second by using 25% ofthe vehicle available horsepower. (2) Consumer price index--The consumer price index for any calendar year is the average ofthe consumer price index for allurban consumers published by the United States Department ofLabor,
as of the close of the 12-month period ending on August 31 of the calendar year. (3) Controller area network (CAN)--A vehicle manufacturer's communications protocol that connects to the various electronic modules in a vehicle. CAN provides one protocol that collects information from the vehicle's electronic systems including the on-board diagnostics (OBD) emissions testing system. The United States Environmental Protection Agency requires the CAN protocol to be installed in OBD-compliant vehicles beginning with some model year 2003 vehicles and phasing in to all OBD-compliant vehicles by the 2008 model year.



## PROPOSED RULES December 5, 2014 39 TexReg 9475(4) Low-volume emissions inspection station--A vehicle emissions inspection station that meets all criteria for obtaining a low-volume waiver from the Texas Department ofPublic Safety. (5) Motorist--A person or other entity responsible for the inspection, repair, and maintenance ofa motor vehicle, which may include, but is not limited to, owners and lessees. (6) On-board diagnostic (OBD) system--The computer system installed in a vehicle by the manufacturer that monitors the performance ofthe vehicle emissions control equipment, fuel metering system, and ignition system for the purpose of detecting malfunction
or deterioration in performance that would be expected to cause the vehicle not to meet emissions standards. All references to OBD should be interpreted to mean the second generation ofthis equipment, sometimes referred to as OBD II. (7) On-road test--Utilization ofremote sensing technology to identify vehicles operating within the inspection and maintenance program areas that have a high probability ofbeing high-emitters. (8) Out-of-cycle test--Required emissions test not associated with vehicle safety inspection testing cycle. (9) Primarily operated--Use ofa motor vehicle greaterthan 60 calendar days pertesting cycle in an affected county. Motorists shall comply with emissions requirements for such counties. It is presumed that a vehicle is primarily operated in the county in which it is registered. (10) Program area--County or counties in which the Texas Department ofPublic Safety, in coordination with the commission, administers the vehicle emissions inspection and maintenance program contained in the Texas Inspection and Maintenance State Implementation Plan. These program areas include: (A) the Dallas-Fort Worth program area, consisting of the following counties: Collin, Dallas, Denton, and Tarrant; (B) the El Paso program area, consisting of El Paso County; (C) the Houston-Galveston-Brazoria program area, consisting ofBrazoria, Fort Bend, Galveston, Harris, and Montgomery Counties; and (D) the extended Dallas-Fort Worth program area, consisting of Ellis, Johnson, Kaufman, Parker, and Rockwall Counties. These counties became part ofthe program area as ofMay 1, 2003. (11) Retests--Successive vehicle emissions inspections following the failing ofan initial test by a vehicle during a single testing cycle. (12) Testing cycle--Before the single stickertransition date
as defined in §114.1 ofthis title (relating 

### [rel-atetl] to Definitions), the annual cycle commencing with the first safety inspection certificate expiration date for which a motor vehicle is subject to a vehicle emissions inspection or beginning onthe single sticker transition date, the annual cycle commencing with the first vehicle registration expiration date for which a motor vehicle is subject to a vehicle emissions inspection. (13) Two-speed idle (TSI) inspection and maintenance test--A measurement of the tailpipe exhaust emissions of a vehicle while the vehicle idles, first at a lower speed and then again at a higher speed. (14) Uncommon part--A part that takes more than 30 days for expected delivery and installation where a motorist can prove that a reasonable attempt made to locate necessary emission control parts by



## 39 TexReg 9476 December 5, 2014 Texas Register retail or wholesale part suppliers will exceed the remaining time prior to expiration of: (A) the vehicle safety inspection certificate prior to the single sticker transition date as defined in §114.1 ofthis title (relating to Definitions); (B) the vehicle registration beginning on the single sticker transition date as defined in §114.1 ofthis title; or (C) the 30-day period following an out-of-cycle inspection. 

### §114.7. Low Income Vehicle Repair Assistance,**Retrofit[~],** 

### andAccelerated Vehicle Retirement Program Definitions. Unless specifically defined inthe Texas Clean AirAct (TCAA) orin the rules ofthe commission, the terms used in this chapter 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, §§3.2, 101.1, and 114.1 ofthis title (relating to Definitions), the following words and terms, when used in Subchapter C, Division 2[-,] ofthis chapter (relating to Low Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program) have the following meanings, unless the context clearly indicates otherwise. (1) Affected county--A county with a motor vehicle emissions inspection and maintenance program established under Texas Transportation Code, §548.30 1. (2) Automobile dealership--A business that regularly and actively buys, sells, orexchanges vehicles at an established and permanent location as defined under Texas Transportation Code, §503.301. The term includes a franchised motor vehicle dealer and an independent motor vehicle dealer. (3) Car--A motor vehicle, other than a golf cart, truck or bus, designed or used primarily for the transportation of persons. A passenger van or sports utility vehicle may be considered a car under this section. (4) Commercial vehicle--A vehicle that is owned or leased in the regular course ofbusiness ofa commercial or business entity. (5) Destroyed--Crushed, shredded, scrapped, or otherwise dismantled to render a vehicle, vehicle's engine, or emission control components permanently and irreversibly incapable offunctioning as originally intended. (6) Dismantled--Extraction of parts, components, and accessories for use in the Low Income Vehicle Repair Assistance, Retrofit. and Accelerated Vehicle Retirement Program [-lew .ffiwme 

### -vehle!e -fej3frif assistance, retfeH.t, 

### ftflEi accelerated 

### -vehle!e retirement pregram] or sold as used parts. (7) Electric vehicle--Amotor vehicle that draws propulsion energy only from a rechargeable energy storage system. (8) Emissions control equipment--Relating to a motor vehicle that is subject to§ 114.50(a) ofthis title (relating to Vehicle Emissions Inspection Requirements). If the vehicle is so equipped, these include: exhaust gas recirculation system, power control module, catalytic converter, oxygen sensors, evaporative purge canister, positive crankcase ventilation valve, and gas cap. (9) Engine--The fuel-based power source ofa motor vehicle that is subject to §114.50(a) ofthis title (relating to Vehicle Emissions Inspection Requirements). ( 10) Fleet vehicle--A motor vehicle operated as one of a group that consists ofmore than ten motor vehicles and that is ownedand operated by a public or commercial entity or by a private entity other than a single household. (II) Hybrid vehicle--A motor vehicle that draws propulsion energy from both gasoline or conventional diesel fuel and a rechargeable energy storage system. (12) LIRAP--Low Income Vehicle Repair Assistance, Retrofit. and Accelerated Vehicle Retirement Program 

### [bew ffioome ¥eftiele fej7ll-ir assistance, retfefrt, ant! accelerated ¥eftiele retirement pregram].(13) LIRAP fee--The portion ofthe vehicle emissions inspection fee that is required to be remitted to the state at the time of annual vehicle registration, as authorized by Texas Health and Safety Code, §382.202, in counties participating in the Low Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program. (14) LIRAP fee termination date--The first day of the month for the month that the Texas Department of Motor Vehicles issues registration notices without the Low Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program (LIRAP) fee, as defined in this section, in a participating county opting out ofthe LIRAP. (15) LIRAP opt-out effective date--The date upon which a county that was participating in the LowIncome Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program (LIRAP) becomes a non-participating county, which occurs when the grant contract between the county and the executive director, established in 

### §114.64(a) of this title (relating to LIRAP Requirements), is ended, but no earlier than the LIRAP fee termination effective date. Q.§l**[~]** Motor vehicle--A fully self-propelled vehicle having four wheels that has as its primary purpose the transport of a person, persons, or property on a public highway. 

### 012 [fMJ] Natural gas vehicle--A motor vehicle that uses only compressed natural gas or liquefied natural gas as fuel. (18) Non-participating county--An affectedcounty thathas either: (A) not opted into the Low Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program (LIRAP) authorized by Texas Health and Safety Code, §382.209; or (B) opted out ofthe LIRAP according to the procedures specified in §114.64(g) ofthis title (relating to LIRAP Requirements) and has been released from all programrequirements. including assessment ofthe LIRAP fee as defined in this section and participation in LIRAP grant programs. 

## f122**[~]** Participating county--An affected county in which the commissioners court by resolution has chosen to implement
a Low Income Vehicle Repair Assistance, Retrofit. and Accelerated Vehicle Retirement Program (LIRAP) [lew ffioome ¥eftiele fej7ll-ir assistance, retfefrt, and accelerated ¥eftiele retirement pregram] authorized by Texas Health and Safety Code, §382.209. An affected county that is in the process ofopting out ofthe LIRAP is considered a participating county until the LIRAP opt-out effective date as defined in this section. 

### GQ2 [(-l-Bj] Proofofsale--A notice ofsale or transfer filed with the Texas Department ofTransportation as required under Texas Transportation Code, §503.005, or ifunavailable, an affidavit from the selling dealer or documents approved by the commission. @ 

### [fl-+t] Proofoftransfer--A TCEQ form that identifies the vehicle to be destroyed and tracks the transfer ofthe vehicle to the recycler from the participating county, automobile dealer, and dismantler. (22) [fl&j] Qualifying motorvehicle--A motorvehicle that meets the requirements for replacement in§114.64 ofthis title (relating to LIRAP Requirements). (23) 

### [f!-91] Recognized emissions repair facility--An automotiverepair facility as provided in 37 Texas Administrative Code §23.51 (relating to Vehicle Emissions Inspection Requirements)**[~relating** te -Ve-hicle Emissions Inspection Requiren1ents]. 

### Q:!2**[~]Recycled--Conversion** ofmetal or other material into raw material products that have prepared grades; an existing
or potential economic value; and using these raw material products in the production ofnew products. @ 

### [P--1-:)] Replacement vehicle--A vehicle that is in a class orcategory ofvehicles that has been certified to meet federal Tier 2, Bin 5 or cleaner Bin certification under 40 Code ofFederal Regulations §86.1811-04, as published inthe February 10,2000,FederalRegister: has a gross vehicle weightrating oflessthan 10,000pounds; have
an odometer reading ofnot more than 70,000 miles; the total cost does not exceed $35,000 and up to $45,000 for hybrid, electric, or natural gas vehicles, or vehicles certified as Tier 2 Bin 3 or cleaner Bin certificationunder40 Code ofFederalRegulations §86.1811-04, as published in the February 10, 2000, issue ofthe Federal Register (65 FR 6698); has passed a Texas Department ofPublic Safety motor vehicle safety inspection or safety and emissions inspection within the IS-month period before the application is submitted. Q§2**[~]Retrofit--To** equip, or the equipping of, an engine or an exhaust or fuel system with new, emissions-reducing parts or equipment designed to reduce air emissions and improve air quality, after the manufacture ofthe original engine or exhaust or fuel system, so long as the parts or equipment allow the vehicle to meet or exceed state and federal air emissions reduction standards. @**[~]** Retrofit equipment--Emissions-reducing equipment designed to reduce air emissions and improve air quality that is approved by the United States Environmental Protection Agency and is installed after the manufacture ofthe original engine, exhaust, or fuel system. (28) [fMj] Total cost--The total amount Qfmoney paid or to be paid for the purchase ofa motor vehicle as set forth as the sales price in the form entitled "Application for Texas Certificate of Title" promulgated by the Texas Department of Transportation. In a transaction that does not involve the use ofthat form, the term means an amount ofmoney that is equivalent, or substantially equivalent, to the amountthat would appear as the sales price onthe application for Texas Certificate ofTitle ifthat form were used. (29)**[~]** Truck--A motor vehicle having a gross vehicle weight rating ofless than 10,000 pounds and designed primarily for the transport ofpersons and cargo. 

### .QQ2**[~]Vehicle--A** motorvehicle subjectto §114.50(a) ofthis title (relating to Vehicle Emissions Inspection Requirements). (31)**[~]** Vehicle owner--For the purposes ofrepair assistance or retrofit, the person who holds the Certificate ofTitle for the vehicle and/or the operator who is granted possession and is authorized to make repairs under a lease or purchase agreement; and for the purposes ofaccelerated retirement, the person who holds the Certificate of Title for the vehicle. iB}**[~]Vehicle** retirement facility--A facility that, at a minimum, is licensed, certified, or otherwise authorized by the Texas



## PROPOSED 

## RULES December 5, 2014 39 TexReg 9477Department ofTransportation to destroy, recycle, or dismantle vehicles. The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on November 21, 2014. TRD-201405584 Robert Martinez Director, Environmental Law Division Texas Commission on Environmental Quality Earliest possible date of adoption: January 4, 2015 For further information, please call: (512) 239-6812 

# • • • SUBCHAPTER C. VEHICLE INSPECTION AND MAINTENANCE; LOW INCOME VEHICLE REPAIR ASSISTANCE, RETROFIT, AND ACCELERATED VEHICLE RETIREMENT PROGRAM; AND EARLY ACTION COMPACT COUNTIES DIVISION 1. VEHICLE INSPECTION AND MAINTENANCE 30 TAC §114.53 Statutory Authority The amendment is proposed under Texas Water Code (TWC), §5.1 02, concerning General Powers, that provides the commission with the general powers to carry out its duties under the TWC; TWC, §5.1 03, concerning Rules, that authorizes the commission to adopt rules necessary to carry out its powers and duties under the TWC; TWC, §5.1 05, concerning General Policy, that authorizes the commission by rule to establish and approve all general policy of the commission; and under Texas Health and Safety Code (THSC), §382.017, concerning Rules, that authorizes the commission to adopt rules consistent with the policy and purposes ofthe Texas Clean Air Act. The amendment is also proposed underTHSC, §382.002, concerning Policy and Purpose, that establishes the commission's purpose to safeguard the state's air resources, consistent with the protection of public health, general welfare, and physical property; THSC, §382.011, concerning General Powers and Duties, that authorizes the commission to control the quality of the state's air; and THSC, §382.012, concerning the State Air Control Plan, that authorizes the commission to prepare and develop a general, comprehensive plan for the proper control ofthe state's air. Additionally, the amendment is proposed under THSC, §382.209, concerning the Low Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program (LIRAP), that authorizes the commission and the Public Safety Commission to adopt rules implementing the LIRAP; and THSC, §382.210, concerning Implementation Guidelines and Requirements for the LIRAP, that authorizes the commission to adopt rules creating guidelines to assist participating counties in implementing the LIRAP. The proposed amendment implements THSC, §§382.002, 382.011, 382.012, 382.017, 382.209, and 382.210.



## 39 TexReg 9478 December 5, 2014 Texas Register §114.53. Inspection and ""Vlaintenance Fees. (a) The following fees must be paid for an emissions inspection ofa vehicle at an inspection station. This fee must include one free retest should the vehicle fail the emissions inspection provided that the motorist has the retest perfonned at the same station where the vehicle originally failed and submits, prior to the retest, a properly completed vehicle repair form showing that emissions-related repairs were performed and the retest is conducted within 15 days ofthe initial emissions test.(I) In El Paso County beginning May I, 2002 and ending
on the day before the single sticker transition date as defined in §114.1 ofthis title (relating to Definitions). any emissions inspection station required to conduct an emissions test in accordance with §114.50(a)(4)(A), (B), or (C) ofthis title (relating to Vehicle Emissions Inspection Requirements) must collect a fee of$14 and remit $2.50 to the Texas Department ofPublic Safety (DPS). Ifthe El Paso County Commissioners Court adopts a resolution that is approved by the commission to participate in the Low Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program (LIRAP), the emissions inspection station in El Paso County must collect a fee of $16 and remit to the DPS $4.50 beginning upon the date specified by the commission and ending on the day before the single sticker transition date. Beginning on the single sticker transition date, any emissions inspection station in El Paso County required to conduct an emissions test in accordance with §114.50(a)(4)(A), (B), or (C) ofthis title must collect a fee not to exceed $11.50. (2) In the Dallas-Fort Worth program area beginning May 1, 2002 and ending on the day before the single stickertransition date as defined in §114.1 ofthis title, any emissions inspection station required to conduct an emissions test in accordance with §114.50(a)(1)(A) or (B) ofthis title and in the extended Dallas-F01i Worth program area beginning May 1, 2003 and ending on the day before the single sticker transition date, any emissions inspection station required to conduct an emissions test in accordance with §114.50(a)(2)(A) or (B) ofthis title must collect a fee not to exceed $27. Beginning May 1, 2002 and ending on the day before the single sticker transition date in the Dallas-Fort Worth and the extended Dallas-Fort Worth program areas, the emissions inspection station must remit to the DPS $2.50 for each acceleration simulation mode (ASM-2) test and $8.50 for each on-board diagnostics (OBD) test. Beginning on the single sticker transition date in the Dallas-Fort Worth and the extended Dallas-Fort Worth program areas, any emissions inspection station required to conduct an emissions test in accordance with §114.50(a)(I)(A) or (B) and (2)(A) or (B) ofthis title must collect a fee not to exceed $24.50 for each ASM-2 test and $18.50 for each OBD test. (3) In the Houston-Galveston-Brazoria program area beginning May 1, 2002 and ending on the day before the single sticker transition date as defined in §114.1 ofthis title, any emissions inspection station in Harris Countyrequiredto conduct an emissions test in accordance with §114.50(a)(3)(A) or (B) ofthis title and beginning May I, 2003 and ending on the day before the single sticker transition date, any emissions inspection station in Brazoria, FortBend, Galveston, and Montgomery Counties required to conduct an emissions test in accordance with §114.50(a)(3)(D) or (E) ofthis title must collect a fee not to exceed $27. Beginning May I, 2002 and ending on the day before the single stickertransition date in Brazoria, Fort Bend, Galveston, Harris, and Montgomery Counties. the emissions inspection station mustremit to the DPS $2.50 for each ASM-2 test and $8.50 for each OBD test. Beginning on the single sticker transition date in Brazoria, Fort Bend, Galveston, Harris, and Montgomery Counties, any emissions inspection station required to conduct an emissions test in accordance with §114.50(a)(3)(A), (B), (D), or (E) ofthis title must collect a fee not to exceed $24.50 for each ASM-2 test and $18.50 for each OBD test.(b) The per-vehicle fee and the amount the inspection station remits to the DPS for a challenge test at an inspection station designated by the DPS, must be the same as the amounts set forth in subsection (a) ofthis section. The challenge fee must not be charged ifthe vehicle is retested within 15 days ofthe initial test. (c) Inspection stations perfcnming out-of-cycle vehicle emissions inspections for the state's remote sensing element must charge a motorist for an out-of-cycle emissions inspection in the amount specified in subsection (a) ofthis section resulting from written notification that subject vehicle failed on-road testing. Ifthe vehicle passes the vehicle emissions inspection, the vehicle owner may request reimbursement from the DPS. (d) Beginning on the single stickertransition date as defined in § 114.1 ofthis title, vehicle owners shall remit as pmi ofthe annual vehicle registration fee collected by the Texas Department ofMotorVehicles (DMV) or county tax assessor-collector the amount ofthe vehicle emissions inspection fee that is required to be remitted to the statej,.as spe€#ied

## ey the follov.ing requirements:] (1) In El Paso County, the following requirements apply. [¥efti€.le ewners shall remit**~** fur me-tor ¥efti€.lessul7je€t

### re ¥eftieie emissions inspections 

### re the DMV eF 00\ill-ty til* assessor eollec 

## rer at the time efthe annual ¥efti€.le registration as part efthe ¥efti€.le emissions inspection 

### tee. Ifthe 

### ill Paso Getmty Commissioners Getut aOOpts a resolution that is approved 

## ey the commission 

### re participate ffi the bew Inoome¥ehlele Repair Assistance, RetreiH, and Awelerated¥ehlele Retirement Program, ¥efti€.leewners shall remit $+.Wfur me-tor**~ ~**  

## re ¥efti€.lesemissions inspections 

## re the DMV eF

### €ffilfttJ'til* assessor collector atthetime efthe annual¥efti€.leregistratioft as part efthe ¥efti€.le emissions inspection fee beginning tlf*ffl the date specified 

## ey the commission.] (A) Ifpmiicipating in the LIRAP, vehicle owners shall remit $4.50 for motor vehicles subject to vehicle emissions inspections to the DMV orcounty tax assessor-collector atthe time ofannual vehicle registration as part ofthe vehicle emissions inspection fee. Ofthe $4.50 remitted, $2.00 constitutes the LIRAP fee as defined in 9114.7 of this title (relating to Low Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program Definitions). (B) Ifparticipating in the LIRAP and in the process of opting out. vehicle owners shall remit $4.50 for motor vehicles subject to vehicle emissions inspections to the DMV or county tax assessor-collector at the time of annual vehicle registration as part of the vehicle emissions inspection fee until the LIRAP fee termination effective date as defined in**~114.7** ofthis title. Ofthe $4.50 remitted. $2.00 constitutes the LIRAP fee as defined in §114.7 ofthis title. Upon the LIRAP fee termination effective date, vehicle owners shall remit $2.50 for motor vehicles subjectto vehicle emissions inspections to the DMV
or county tax-assessor-collector at the time ofannual vehicle registration as part ofthe vehicle emissions inspection fee. (C) If not participating in the LIRAP, vehicle owners shall remit $2.50 for motor vehicles subject to vehicle emissions inspections to the DMV or county tax-assessor-collector at the time of annual vehicle registration as part ofthe vehicle emissions inspection fee. (2) In the Dallas-Fort Worth and the extended Dallas-Fort Worth program areas, the following requirements apply. [vec!Heleewners shall remit**~** fur me-tor ¥efti€.les**~** 

### re**~** tests and**~** fur me-tor¥efti€.lessul7je€t

## re GIID tests 

## re the 

### DM¥ eF 00\ill-ty til* assessor collector at the time efthe annual ¥efti€.le registration as part efthe 

### ¥e-fti€.leemissions**~** 

### tee.] (A) Vehicle owners in counties participating in the LIRAP shall remit $2.50 for motor vehicles subject to ASM-2 tests and $8.50 for motor vehicles subject to OBD tests to the DMV or county tax assessor-collector at the time ofannual vehicle registration as pm1 ofthe vehicle emissions inspection fee. Ofthe $8.50 remitted for OBD tests, $6.00 constitutes the LIRAP fee as defined in §114.7 ofthis title. (B) Vehicle owners in counties participating in the LIRAP that are in the process ofopting out shall remit $2.50 for motor vehicles subject to ASM-2 tests and $8.50 for motor vehicles subject to OBD tests to the DMV or county tax assessor-collector at the time ofannual vehicle registration as part ofthe vehicle emissions inspection fee until the LIRAP fee termination effective date as defined in §114.7 ofthis title. Ofthe $8.50 remitted for OBD tests, $6.00 constitutes the LIRAP fee as defined in §114.7 ofthis title. Upon the LIRAP fee termination effective date, vehicle owners in paliicipating counties that are in the process ofopting out ofthe LIRAP shall remit $2.50 for motor vehicles subject to vehicle emissions inspections to the DMV or county tax-assessor-collector at the time ofannual vehicle registration
as part ofthe vehicle emissions inspection fee. (C) Vehicle owners in counties not participating in the LIRAP shall remit $2.50 for motor vehicles subject to vehicle emissions inspections to the DMV or county tax-assessor-collector at the time ofannual vehicle registration as pali ofthe vehicle emissions inspection fee. (3) In the Houston-Galveston-Brazoria program area, the following requirements apply. 

### [¥e-fti€.le ewners shall**remit~** fur me-tor**~ ~**  

### re**~** tests anti**~** .fof me-tor ¥efti€.les**~**

## re GOOteststethe DM¥ eF

### €ffilfttJ'til* assessor collector

### atthe time efthe ilf1fHiftl ¥efti€.le registration as part efthe ¥effiele emissions inspection 

### tee.] (A) Vehicle owners in counties participating in the LIRAP shall remit $2.50 for motor vehicles subject to ASM-2 tests and $8.50 for motor vehicles subject to OBD tests to the DMV or county tax assessor-collector at the time ofannual vehicle registration as part ofthe vehicle emissions inspection fee. Ofthe $8.50 remitted for OBD tests, $6.00 constitutes the LIRAP fee as defined in §114.7 ofthis title. (B) Vehicle owners in counties participating in the LIRAP that are in the process ofopting out shall remit $2.50 for motor vehicles subject to ASM-2 tests and $8.50 for motor vehicles subject to OBD tests to the DMV or county tax assessor-collector at the time of annual vehicle registration as part ofthe vehicle emissions inspection fee until the LIRAP fee termination effective date as defined in 9114.7 ofthis title. Ofthe $8.50 remitted for OBD tests, $6.00 constitutes the LIRAP fee as defined in §114.7 ofthis title. Upon the LIRAP fee termination effective date, vehicle owners in paliicipating counties that are in the process ofopting out ofthe LIRAP shall remit $2.50 for motor vehicles subject to vehicle emissions inspections to the DMV or county tax-assessor-collector at the time ofannual vehicle registration
as pm1 ofthe vehicle emissions inspection fee. (C) Vehicle owners in counties not participating in the LIRAP shall remit $2.50 for motor vehicles subject to vehicle emissions inspections to the DMV or county tax-assessor-collector at the time ofannual vehicle registration as part ofthe vehicle emissions inspection fee. The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on November 21, 2014.



## PROPOSED RULES December 5, 2014 39 TexReg 9479TRD-201405586 Robert Martinez Director, Environmental Law Division Texas Commission on Environmental Quality Earliest possible date of adoption: January 4, 2015 For further information, please call: (512) 239-6812



## DIVISION2. LOW INCOME VEHICLE REPAIR ASSISTANCE, RETROFIT, AND ACCELERATED VEHICLE RETIREMENT PROGRAM 30 TAC §§114.60, 114.62, 114.64, 114.70 Statutory Authority The amendments are proposed underTexas Water Code (TWC), §5.1 02, concerning General Powers, that provides the commission with the general powers to carry out its duties under the TWC; TWC, §5.103, concerning Rules, that authorizes the commission to adopt rules necessary to carry out its powers and duties under the TWC; TWC, §5.105, concerning General Policy, that authorizes the commission by rule to establish and approve all general policy of the commission; and under Texas Health and Safety Code (THSC), §382.017, concerning Rules, that authorizes the commission to adopt rules consistent with the policy and purposes of the Texas Clean Air Act (TCAA). The amendments are also proposed under THSC, §382.002, concerning Policy and Purpose, that establishes the commission's purpose to safeguard the state's air resources, consistent with the protection of public health, general welfare, and physical property; THSC, §382.011, concerning General Powers and Duties, that authorizes the commission to control the quality ofthe state's air; and THSC, §382.012, concerning the State Air Control Plan, that authorizes the commission to prepare and develop a general, comprehensive plan for the proper control ofthe state's air. Additionally, the amendments are proposed under THSC, §382.209, concerning the Low Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program (LIRAP), that authorizes the commission and the Public Safety Commission to adopt rules implementing the LIRAP; and THSC, §382.21 0, concerning Implementation Guidelines and Requirements for the LIRAP, that authorizes the commission to adopt rules creating guidelines to assist participating counties in implementing the LIRAP. The proposed amendments implement THSC, §§382.002, 382.011, 382.012, 382.017, 382.209, and 382.210. 

### §IJ4.60. Applicability for LIRAP (a) The provisions of §114.7 ofthis title (relating to Low Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program Definitions) and Division 2 ofthis subchapter (relating to Low Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program) provide the minimum requirements for county implementation ofaLowIncome Vehicle RepairAssistance, Retrofit, and Accelerated Vehicle Retirement Program (LIRAP) and apply to counties that implement a vehicle emissions inspection program and have elected to implement LIRAP provisions. (b) To be eligible for assistance under this division, vehicles must be subject to§ll4.50(a)ofthis title (relating to Vehicle Emissions Inspection Requirements). (c) LIRAP does not apply to a vehicle that is a:



## 39 TexReg 9480 December 5, 2014 Texas Register (I) fleet vehicle; (2) commercial vehicle; (3) vehicle owned or leased by a governmental entity; (4) vehicle registered as a classic motor vehicle as defined by Texas Transportation Code, §502.274; (5) vehicle registered as an exhibition vehicle, including antique or military vehicles, as defined by Texas Transpoiiation Code, §502.275; [Bf] (6) vehicle not regularly used for transportation during the normal course ofdaily activities; orH (7) vehicle subject to §114.50(a) ofthis title that is registered in a non-participating county. (d) A participating county must ensure that owners ofvehicles under subsection (c) ofthis section do not receive monetary or compensatory assistance under LIRAP. 

### §114.62. LIRAP Funding. (a) The executive director shall provide funding for the Low Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program (LIRAP) with available funds from fees collected under §114.53 of this title (relating to Inspection and Maintenance Fees) or other designated and available funds from participating counties. (b) The program shall be administered in accordance with Texas Government Code, Chapter 783. Programmatic costs may include call-center management, application oversight, invoice analysis, education, outreach, and advertising. (c) A participating county shall receive, to the extent practicable, funds appropriated for the program [.f!mtlffig] in reasonable proportion to the amount in fees collected in the participating**[~]** county or area from emissions testing fees designated by the commission. (d) In a county with a vehicle emissions inspection and maintenance program under Texas Health and Safety Code, §382.202 or §382.302, not more than 10 percent ofthe money provided for LIRAP may be used for administration ofthe program. 

### §114.64. LIRAP Requirements. (a) Implementation. Participation in the Low Income Vehicle Repair Assistance. Retrofit, and Accelerated Vehicle Retirement Program (LIRAP) is voluntary. An affected county may choose to participate in the program at its discretion. Upon receiving a written request to participate in the LIRAP [implement a bewInoome -Vehicle Repair Assistance, Retreflt,

## ana Accelerated -Vehicle Retirement Fregram

### fblRAI!j] by a county commissioners court, the executive director shall authorize the implementation ofa LIRAP in the requesting county. The executive director and county shall enter into a grant contract for the implementation ofthe LIRAP. (l) The grant contract must provide conditions, requirements, and projected funding allowances for the implementation ofthe LIRAP. (2) A participating county may contract with an entity approved by the executive director for services necessary to implement the LIRAP. A participating county or its designated entity shall demonstrate to the executive director that, at a minimum, the county or its designated entity has provided for appropriate measures for determining applicant eligibility and repair effectiveness and ensuring against fraud.(3) The participating county shallremain the contractedentity even ifthe county contracts with another county or another entity approved by the executive director to administer the LIRAP. (b) Repair and retrofit assistance. A LIRAP must provide for monetary or other compensatory assistance to eligible vehicle owners for repairs directly related to bringing ceiiain vehicles that have failed a required emissions test into compliance with emissions requirements or for installing retrofit equipment on vehicles that have failed a required emissions test, if practically and economically feasible, in lieu of or in combination with repairs performed to bring a vehicle into compliance with emissions requirements. Vehicles under the LIRAP must be repaired or retrofitted at a recognized emissions repair facility. To determine eligibility, the participating county orits designated entity shall make applications available for LIRAP paiiicipants. The application, at a minimum, must require the vehicle owner to demonstrate that: (1) the vehicle has failed a vehicle emissions test within 30 days ofapplication submittal; (2) the vehicle can be driven under its O\m power to the emissions inspection station or vehicle retirement facility; (3) the vehicle is currently registered in and has been registered in the participating program county for at least 12 of the 15 months immediately preceding the application for assistance; (4) the vehicle has passed the safety portion ofthe Texas Department ofPublic Safety (DPS) motor vehicle safety and emissions inspection as recorded in the Vehicle Inspection Report (VIR), or provide assurance that actions will be taken to bring the vehicle into compliance with safety requirements; (5) the vehicle owner's net family income is at or below 300% ofthe federal poverty level; and (6) any other requirements of the participating county or the executive director are met. (c) Accelerated vehicle retirement. A LIRAP must provide monetary or other compensatory assistance to eligible vehicle 0\mers to be used toward the purchase ofa replacement vehicle. (1) To determine eligibility, the participating county or its designated entity shall make applications available for LIRAP pmiicipants. The application, at a minimum, must require the vehicle owner to demonstrate that: (A) the vehicle meets the requirements under subsection (b)( 1)

- (3) and (5) ofthis section; (B) the vehicle has passed a DPS motor vehicle safety or safety and emissions inspection within 15 months prior to application submittal; and (C) any other requirements ofthe participating county or the executive director are met. (2) Eligible vehicle owners of pre-1996 model year vehicles that pass the required United States Environmental Protection Agency (EPA) Start-Up Acceleration Simulation Mode (ASM) standards emissions test, but would have failed the EPA Final ASM standards emissions test, or some other criteria determined by the commission, may be eligible for accelerated vehicle retirement and replacement compensation under this section. (3) Notwithstanding the vehicle requirement provided under subsection (b)(1) ofthis section, an eligible vehicle owner ofavehicle that is gasoline powered and is at least 10 years old as determined from the current calendar year (i.e., 2010 minus 10 years equals 2000) and meets the requirements under subsection (b)(2), (3), and (5) ofthis section, may be eligible for accelerated vehicle retirement and compensation.(4) Replacement vehicles must: (A) be in a class or category ofvehicles that has been certified to meet federal Tier 2, Bin 5or cleaner Bin certification under 40 Code ofFederal Regulations §86.1811-04, as published in the February 10, 2000, Federal Register (65 FR 6698); (B) have a gross vehicle weight rating of less than 10,000 pounds; (C) have an odometer reading ofnot more than 70,000 miles; (D) be a vehicle, the total cost ofwhich does not exceed $35,000 and up to $45,000 for hybrid, electric, or natural gas vehicles, or vehicles certified as Tier 2 Bin 3 orcleaner Bin certification under 40 Code ofFederalRegulations §86.1811-04, as published in the February 10, 2000, issue ofthe Federal Register (65 FR 6698); and (E) have passed a DPS motor vehicle safety inspection or safety and emissions inspection within the 15-month period before the application is submitted. (d) Compensation. The paiiicipating county shall determine eligibility and approve or deny the application promptly. If the requirements ofsubsection (b) or (c) ofthis section are met and based on available fi.mding, the county shall authorize monetary or other compensations to the eligible vehicle owner. (1) Compensations must be: (A) no more than $600 and no less than $30 per vehicle to be used for emission-related repairs or retrofits performed at recognized emissions repair facilities, including diagnostics tests perfmmed on the vehicle; or (B) based on vehicle type and model year ofa replacement vehicle for the accelerated retirement ofa vehicle meeting the requirements under this subsection. Only one retirement compensation can be used toward one replacement vehicle annually per applicant. The maximum amount toward a replacement vehicle must not exceed: (i) $3,000 for a replacement car ofthe current model year or previous three model years, except as provided by clause (iii) ofthis subparagraph; (ii) $3,000 for a replacement truck of the current model year or the previous two model years, except as provided by clause (iii) ofthis subparagraph; (iii) $3,500 for a replacement hybrid, electric, natural gas, and federal Tier 2 Bin 3 or cleaner Bin certification under 40 Code ofFederal Regulations §86.1811-04, as published in the February 10,2000, issue ofthe FederalRegister (65 FR 6698) vehicle ofthe current model year or the three previous model years. (2) Vehicle owners shall be responsible for paying the first $30 ofemission-related repairs or retrofit costs that may include diagnostics tests performed on the vehicle. (3) For accelerated vehicle retirement, provided that the compensation levels in paragraph (1)(B) ofthis subsection are met and minimum eligibility requirements under subsection (c) ofthis section are met, a participating county may set a specific level ofcompensation or implement a level ofcompensation schedule that allows flexibility. The following criteria may be used for determining the amount offinancial assistance: (A) model year ofthe vehicle;



## PROPOSED RULES December 5, 

## 2014 39 TexReg 9481(B) miles registered on the vehicle's odometer; (C) fair market value ofthe vehicle; (D) estimated cost of emission-related repairs necessary to bring the vehicle into compliance with emission standards; (E) amount of money the vehicle owner has already spent to bring the vehicle into compliance, excluding the cost ofthe vehicle emissions inspection; and (F) vehicle owner's income. (e) Reimbursement for repairs and retrofits. A participating county shall reimburse the appropriate recognized emissions repair facility for approved repairs and retrofits within 30 calendar days ofreceiving an invoice that meets the requirements ofthe county or designated entity. Repaired or retrofitted vehicles must pass a DPS safety and emissions inspection before the recognized emissions repair facility is reimbursed. In the event that the vehicle does not pass the emissions retest after diagnosed repairs are performed, the participating county has the discretion, on a case-by-case basis, to make payment for diagnosed emissions repair work performed. (f) Reimbursements for replacements. A participating county shall ensure that funds are transferred to a participating automobile dealership no laterthan 10 business days afterthe county receives proof ofthe sale, proofoftransferto a dismantler, and any administrative documents that meet the requirements ofthe county or designated entity. A list of all administrative documents must be included in the agreements that are entered into by the county or designated entity and the participating automobile dealerships. (I) A participating county shall provide an electronic
means for distributing replacement funds to a participating automobile dealership once all program criteria have been met. The replacement funds may be used as a down payment toward the purchase of a replacement vehicle. Participating automobile dealers shall be located in the State of Texas. Participation in the LIRAP by an automobile dealer is voluntary. (2) Participating counties shall develop a document for confirming a person's eligibility for purchasing a replacement vehicle and for tracking such purchase. (A) The document must include at a minimum, the full
name ofapplicant, the vehicle identification number ofthe retired vehicle, expiration date ofthe document, the program administrator's contact information, andthe amountofmoney available to the participating vehicle owner, (B) The document must be presented to a participating dealer by the person seeking to purchase a replacement vehicle before entering into negotiations for a replacement vehicle. (C) A participating dealer vvho relies on the document issued by the participating county has no duty to confirm the eligibility ofthe person purchasing a replacement vehicle in the manner provided by this section. (g) Opting out ofthe LIRAP. Participation in the LIRAP is voluntmy. A participating county may opt out ofthe program. Procedures to release a participating county from the LIRAP shall be initiated upon the receipt ofa written request to the executive director by the county commissioners court in a participating county. (1) A written request to opt out ofthe LIRAP shall request release from the LIRAP fee as defined in §114.7 ofthis title (relating to Low Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program Definitions) and the grant contract established in subsection (a) ofthis section. The written request shall include



## 39 TexReg 9482 December 5, 

## 2014 Texas Register one ofthe following possible LIRAP opt-out effective dates as defined in §114.7 ofthis title: (A) the LIRAP fee termination effective date as defined in §114.7 ofthis title: or (B) the last day ofthe legislative biennium in which the LIRAP fee termination etrective date as defined in**~114.7** ofthis title occurred. (2) Upon receipt of a written request to be released from pmiicipation in the LIRAP, the executive director shall notify, in writing, with a copy sent to the requesting county, the Texas Depmiment ofMotor Vehicles (DMV), DPS, and the Legislative Budget Board of Texas that the LIRAP fee should no longer be collected for vehicles undergoing inspection and registration in the affected county. (3) A county opting out ofthe LIRAP remains a participating county until the LIRAP opt-out effective date as defined in §114.7 ofthis title, on which date the county is no longer subject to the LIRAP fee, and the grant contract established in subsection (a) ofthis section is ended. On the LIRAP opt-out effective date, any unspent balance of allocated funds shall be returned to the commission. 

### §114.70. Records, Audits, andEnforcement. (a) A participating county shall submit quarterly audit reports to ensure that the funds provided to implement the Low Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program (LIRAP) have been used in accordance with requirements of this division. The qumierly reports (September -November, December- February, March- May, June- August) must be transmitted to the executive director in paper copies or in an electronic database format to be determined by mutual agreement between the state and the participating county no later than 30 days after the end ofthe quarter. (b) At a minimum, the quarterly reports must include the following: (1) name ofthe county department or entity implementing the program and their mailing address; (2) name ofthe official representative ofthe county department or entity; (3) amount offunds received during the repmiing period; (4) amount distributed for repair assistm1ce, retrofitting, accelerated retirement, and administrative costs; (5) information regarding the recognized emissions repair facilities and vehicle retirement facilities participating in the LIRAP, including the number ofapproved assistance transactions, the mnount ofeach transaction, and the total amounts paid to each facility; (6) pending amount offunds that must be paid out; (7) information for each vehicle participating in program, including: (A) vehicle identification number (VIN); (B) vehicle license plate number; (C) name and business address ofthe Texas Department ofPublic Safety recognized emissions repair facility or vehicle retirement facility; and (D) date ofvehicle repair, retrofit, or retirement; [il!TEI] (8) information for each replacement vehicle including: (A) VIN [¥clticle**identification~** 

### t¥JNj]; (B) make ofvehicle:(C) model year; (D) odometer reading; (E) name and business address ofseller; and (9) any other information requested by the executive director. (c) Records onLIRAP must be maintained for a minimum period of three years by a participating county, its designated entity, a participating recognized emissions repair facility, and a participating vehicle retirement facility. Upon the LIRAP opt out effective date as defined in §114.7 ofthis title (relating to Low Income Vehicle Repair Assistance, Retrofit. andAcceleratedVehicle Retirement Program Definitions), the non-participating county, its designated entity, a participating recognized emissions repair facility, and a participating vehicle retirement facility must maintain program records for the non-participating county for a period ofthree years. Such records must be available upon request by the executive director for auditing purposes. (d) A participating county, its designated entity, a participating recognized emissions repair facility. and a participating vehicle retirement facility shall allow the executive director to conduct audits and inspections. For a period ofthree years after the LIRAP opt-out effective date as defined in§ 114.7 of this title, a non-participating county, its designated entity, a participating recognized emissions repair facility, and a participating vehicle retirement facility shall allow the executive director to conduct audits and inspections ofrecords from the non-participating county. (e) A person who, with intent to defraud, sells a vehicle in
an accelerated vehicle retirement program under LIRAP commits an offense that is classified as a third degree felony. (f) A person who causes, suffers, allows, orpermits a violation of §114.66(c) and (d) of this title (relating to Disposition of Retired Vehicle) is subject to a civil penalty under Texas Water Code, Chapter 

### 1. Subchapter D, [Gfla.ptef +,] for each violation. A separate violation
occurs with each fraudulent certification or prohibited resale. The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on November 21, 2014. TRD-201405587 Robert Martinez Director, Environmental Law Division Texas Commission on Environmental Quality Earliest possible date of adoption: January 4, 2015 For further information, please call: (512) 239-6812



## DIVISION 3. COUNTIES 30 TAC §114.87 Statutory Authority

# • • • EARLY ACTION COMPACT

The amendment is proposed under Texas Water Code (TWC), §5.1 02, concerning General Powers, that provides the commission with the general powers to carry out its duties under the TWC; TWC, §5.103, concerning Rules, that authorizes the commission to adopt rules necessary to carry out its powers and duties under the TWC; TWC, §5.1 05, concerning General Policy, that authorizes the commission by rule to establish and approve all general policy of the commission; and under Texas Health and Safety Code (THSC) §382.017, concerning Rules, that authorizes the commission to adopt rules consistent with the policy and purposes ofthe Texas Clean Air Act. The amendment is also proposed underTHSC, §382.002, concerning Policy and Purpose, that establishes the commission's purpose to safeguard the state's air resources, consistent with the protection of public health, general welfare, and physical property; THSC, §382.011, concerning General Powers and Duties, that authorizes the commission to control the quality ofthe state's air; and THSC, §382.012, concerning the State Air Control Plan, that authorizes the commission to prepare and develop a general, comprehensive plan for the proper control ofthe state's air. Additionally, the amendment is proposed under THSC, §382.209, concerning the Low Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program (LIRAP), that authorizes the commission and the Public Safety Commission to adopt rules implementing the LIRAP; and THSC, §382.210, concerning Implementation Guidelines and Requirements for the LIRAP, that authorizes the commission to adopt rules creating guidelines to assist participating counties in implementing the LIRAP. The proposed amendment implements THSC, §§382.002, 382.011, 382.012, 382.017, 382.209, and 382.210. 

### §114.87. Inspection andMaintenance Fees. (a) The following fees must be paid for an emissions inspection ofa vehicle at aninspection station in an affected early action compact program county. This fee mustinclude one free retest ifthe vehicle fails the emissions inspection, provided that the motorist has the retest performed at the same station where the vehicle originally failed; the motorist submits, priorto the retest, a properly completedvehicle repair form showing that emissions-related repairs were performed; and the retest is conducted within 15 days ofthe initial emissions test. In Travis and Williamson Counties beginning September 1, 2005 and ending on the day before the single sticker transition date as defined in §114.1 of this title (relating to Definitions), any emissions inspection station required to conduct an emissions test in accordance with §114.80 ofthis title (relating to Applicability) must collect a tee not to exceed $16 and remit $4.50 to the Texas Department ofPublic Safety (DPS) for each on-board diagnostic and two-speed idle test. In Travis and Williamson Counties beginning on the single sticker transition date, any emissions inspection station required to conduct an emissions test in accordance with §114.80 ofthis title must collect a fee not to exceed $11.50 for each on-board diagnostic and two-speed idle test. (b) The per-vehicle fee and the amount the inspection station remitsto the DPS for a challenge test at an inspection station designated by the DPS must be the same as the amounts specified in subsection (a) ofthis section. The challenge fee must not be charged ifthe vehicle is retested within 15 days ofthe initial test. (c) Inspection stations performing out-of-cycle vehicle emissions inspections resulting from written notification that the subject vehicle failed on-road testing (remote sensing) must charge a motorist for
an out-of-cycle emissions inspection in the amount specified in subsection (a) ofthis section. Ifthe vehicle passes the vehicle emissions inspection, the vehicle owner may request reimbursement from the DPS. (d) Beginning [Effective] on the single sticker transition date
as defined in §114.1 ofthis title in Travis and Williamson Counties, the following requirements apply. 

### [-veffi€.leewoors -shall**remit~** fuF mffief -veffi€.les**~** te 

### -veffi€.le emissions 

### ffisj3e-etie-as te 

### the 

### :re-s Department BfMeter Vehieles Bf oounty tH* assessor collector at the



## PROPOSED 

## RULES December 5, 

## 2014 39 TexReg 9483time 

### efthe 

### llfifitla! -vehlele registration a5 part

### efthe 

### -vehlele emissions inspection 

### fue.c] (1) Vehicle owners in counties participating in LowIncome Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program (LIRAP) shall remit $4.50 for motor vehicles subject to vehicle emissions inspections to the Texas Department ofMotor Vehicles (DMV) or county tax assessor-collector atthe time ofannual vehicle registration as part ofthe vehicle emissions inspection fee. Ofthe $4.50 remitted, $2.00 constitutes the LIRAP fee as defined**in~** 114.7 of this title (relating to Low Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program Definitions). (2) Vehicle owners in counties participating in the LIRAP and in the process ofopting out shall remit $4.50 for motor vehicles subject to emissions inspection to the DMV or county tax assessor-collector at the time of annual vehicle registration as part ofthe vehicle emissions inspection fee until the LIRAP fee termination effective date
as defined in §114.7 ofthis title. Ofthe $4.50 remitted, $2.00 constitutes the LIRAP fee as defined in §114.7 ofthis title. Upon the LIRAP fee termination effective date, vehicle owners in participating counties that are in the process ofopting out ofthe LIRAP shall remit $2.50 for motor vehicles subject to vehicle emissions inspections to the DMV or county tax-assessor-collector at the time ofannual vehicle registration as part ofthe vehicle emissions inspection fee. (3) Vehicle owners in counties not participating in the LIRAP shall remit $2.50 for motor vehicles subject to vehicle emissions inspection to the DMV or county tax-assessor-collector at the time of annual vehicle registration as part ofthe vehicle emissions inspection fee. 

### The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on November 21, 2014. TRD-201405589 Robert Martinez Director, Environmental Law Division Texas Commission on Environmental Quality Earliest possible date of adoption: January 4, 2015 For further information, please call: (512) 239-6812 

# • CHAPTER 336. RULES 

# • • IOACTIVE SUBSTANCE

The Texas Commission n Environmental Quality (TCEQ, agency, or commission) reposes amendments to §§336.2, 336.105,336.1111, and 33 .1127; and new §336.739. Background and Summary f the Factual Basis for the Proposed Rules The purpose of this rulema ing is to implement Senate Bill (SB) 347, 83rd Texas Legislatur 2013, and its amendments to Texas Health and Safety Code ( HSC), Chapter 401 (also known as the Texas Radiation Contr I Act (TRCA)) and to add non-substantive changes to rules t ensure the commission's continued compatibility with the Unit d States Nuclear Regulatory Commission (NRC). This propo ed rulemaking also creates new provisions in Chapter 336 for the compact waste disposal facility



## 39 TexReg 9484 December 5, 2014 Texas Register license holder who may accept onparty compact waste for disposal at the facility only if it has been volume reduced. Corresponding rulemaking is p lished in this issue ofthe Texas Register

### concerning 30 TAG C apter 37, Financial Assurance. Section by Section Discussion §336.2, Definitions 

### The commission proposes to a end §336.2 to revise the definitions of "Perpetual care accou " and "Radiation and Perpetual Care Account" to reflect the ne name ofthe dedicated general revenue account created by S 347. The definitions have been reorganized to keep them in alp abetical order and renumbered accordingly. The commission reposes to amend §336.2(139) to make a non-substantive revi ion to the definition of 'Total effective dose equivalent (TEDE " to conform to updated federal regulations by adding two sets f parentheses. §336. 105, Schedule ofFees fo Other Licenses 

### The commission proposes to mend §336.1 05(h)(1) to reflect the new name ofthe dedicated eneral revenue account created by SB 347. §336. 739, Volume Reduction 

### The commission proposes ne §336.739 to establish new restrictions on the disposal of low level radioactive waste in Texas, that was generated outside of xas or Vermont. Those restrictions require that any such wa e to be disposed in Texas must have been volume reduced to certain degree. §336.1111, Special Requireme ts for a License Application for Source Material Recoveryand y-product Material Disposal Facilities 

### The commission proposes to a end §336.1111 (1 )(H) regarding the application requirements fo a new license for source material recovery (i.e., uranium min ng) and by-product disposal facilities. Under the current rule, an applicant is required to submit a signed certification from t e landowners on which radioactive substances are recovered, to red, processed or disposed to reflect the landowner's consen to that activity and to acknowledge that decommissioning oft e licensed site is required even if the licensee fails to perform the required decommissioning. The purpose of this provision as to assure that landowners are fully informed of both on-g ing licensed activities involving radioactive substances on the property and future closure requirements. The landowner ac owledgementwas not intended to provide landowner approval power of a proposed project or disrupt the ability of an applic nt to prepare a complete application. In addition, changes in land ownership can complicate and delay an applicant's need f rtimely application development and processing. Arrangement between landowners and uranium miners regarding use of he property should be made in private agreements and not b made part of the commission's license application processing. Instead of requiring landowners' signatures and consent, the p posed amendment will require the applicant to provide notifica ion to the landowners. The notification is in addition to any req ired public notice under 30 TAG Chapter 39 of the commission' rules. The proposed revisions to §336.1111 (1 )(H) require an a plicant to submit proof ofthe effort to provide the landowners ith notification by certified and regular United States mail that radioactive materials will be recovered, stored, processed or isposed on the property and that the decommissioning of the pr perty may be required and performed on the licensed site eve ifthe licensee is unable to per-

# TESTIMONY

## Reference Number
W-1

W-2 

## INDEX OF WRITTEN TESTIMONY

Submitted by
Chris Klaus, North Central Texas Council ofGovernments

Jon A. 

## White, Travis County, Transportation and Natural Resources Department

# ··. 0'

•'. 

# W-1

North Central Texas Council

# OtGovernments··

,· ' ,.



## ·Januaty 

# e,2o1s .· .

. - . .


## Ms. Kris Hogan Office of Legal Services .Texas Commission.on**EnyironmemtaiQuali~y.** 

# PO Box**.~3087,** 

## M,C205.

. . Austin, TX ,7.8711'-3087 Subject.: ·Public Comment on Proposed Low Income

## Vehicl~ Repair. Assistance, Retrofit, and**Accelerat~d** 

## Vehicle Retirement Program·**(URAf>).R~visionsto** 

## 30 

# texas Adn'iinistrative Code

.. · . . . ·

0 

## Ohapter 114

## ~ Control of Air Pollution from Motor Vehibles; Rule Project Number 

# 2Q14- .·. : 027**-114~AI** 

### · . . · . . · . . ·· . . . . · ··. · . . · . . . ·



## · DearMs

.. Hogan:·



## . . 

## The North

# ce~tral**T~xas** Council of Governhlemts (NCTCOG) is the region,al administrator for

. Ll Rf;\P in the**Dailas~Fort** 

## Worth area ahd**a:ppreci.:~tes**

## the opportunity to comment on the Texa·s 'Commission .on Environmental Quality's (TCEQ) proposed revisions to·3o Texas Administrative

·. Code.(TAC) Chapter 114, 

## Control of Air. Pollution From (Vlotor Vehicles. ·NCT.COG would like to

pro'vide the fqllciwing comments onthe proposed revisions

# to help optimize the program. ·. · · · r · • • • · · • • · l

.. · 

## Dis.tributiqn of

# Un~pe~t**Airoccit~d F~nds**  upon URAP Opt-Out.Effective Date

....



## . The Conimissiorj requested.**commentsJ~onceming** 

## th'e program opt-out options proposed.. ·.

·· NCTCOG believes counties should**h~ve** 

## the ability to**d~cide·wheh** 

## to opt out of the · ·

program, and the options**provid~d** 

## will give counties additional flexibility to spend previously

·.**alloc~tec;l** 

## funds. However, In subseetioh 114.84(g)(3), the TCEQ' proposes thatfunds .· .

allocated 

# to a qounty optihg out of URAP that 

## have notbeeo spent upon the county'sURAP Opt-Out Effective**Oat~** 

## shall be returned tothe TCEQ. This arrangement may'prove · .

.**~omplicated** 

## sin9e <;ill participating counti$5 in the Dallas-F:ort WOrth (DFW) area agreed to

share fl.lnding and have NGTCOG reglonally·administerthe program. An Infer-County

. Cooperative Agreement between participating: counties ln. DFW. allows funds to be combined

. and shared between them. If**fund~** 

## from a county that has opted out of LiRAP have been previously used' by othercc;>unties within the region, 

## it may riot be possible to-return them': NCTCOG recommends the proposed rules be.amended to address this situation and allow funds thatwere allocated; 

# but unspent by a county upon its LIRAP Opt-Out E:ffective· Date to · . be**wse~** 

## by !)ther participating counties in the same region withoutrequlring the funds to be· · 

## returned to the TCEQ

.. · . NCTCOG.

# ~Iso

# reccm'lme~ds thaHhe.TCEQ develop a process for the distribution of fun.ds previously collected from a county·but not yet appropriated if that county qhooses to opt out ofLIRAP; Since FiscalYear 2012, URAP 

## fees collected have accrued 

# at a much faster·rate

. thari what has been appropriated creating a large surplus offurids. ·Counties choosing to · opt out of URAP fee coliection should have the opportunity to qtilize all previouslycollected

616.Six Flags Drive;**Cent~rpointTwo** . 

### P. 0. Bqx 5888, Ai'lingtcin, Texas76005-5888 (817) 640-3300 FAX: 817"640-7806 ®recycled 

### paper Www.nctcog.org

. . ·: .'. 

# Ms. Kris Hogan PageTwo ·.

- . .

### . ' 

## January '6, 2015 ·


## :fu.nds after 

## the 

# uRAP Opt.;Out Effecfiye pate until all funds .have been

# exhau~ted~:**A~** 'the

.

.**84 111** 

### .Texa~ 

## .Legislative Sessiqn_ begins 

## ,this. month, possible p,rogram-modifications. may: occur

. .·that provide counties greater· flexibility on ways to wtilize surplus fu.nds. NCTCOG also

·· .tecommends that the t¢EQ promptly alert all counties of any program modificationsres.ulting·from legislative**a~tian·.** 

## . · ·. ·· Recordkeeping and 

## Audi\ing

# Requirem~nts for Non-Participadng-Coi.mtie·s·



## ·.·**Relab~ci** 

## to subsection 114.70{c) ·and. (d), NCTCOG ·supports tlie requirement that program-

. related records should be maintained for three years'after the· 

## LIRAP 'Opt-Out Effective Date and that the non-participating county; itsdeslgnated.entity, Recognized Emissions Repair ' Facilities, arid ·participating vehicle**retfrem~n~** 

## faeilitles shall-allow-the :TCEQ

# to audit and ·· inspect records. However, ·NCTCOG recommends that automobile dealerships also .be' ,added 

# to the list ofpartiesthatm_ust**ke~p** 

## records and be subject to audits, ' ' '
LIRAP Fee

# TerminaiionEff~~tive**Oat~·:.** .· . . . , . . . . . 

## The Gommission requested<comments related to the element of.subsection 114.64(g)(2) · ·**tha~** 

## req'uires Se\{eral mo!1ths**betw.~en** 

## thejime a county notifies the**tc~q** 

# thattheyWiSh to.: opt 

# out of.LIRAP and the.actual LIRAP fee termination effective date. NCTCOG pelieves

. this is reasonable based on 'the jxocess 

# the TCEQ and other:relevant state agencies must ·

.· · undertake otice

# an**opt~c;mt** 

## notice is.receivedfrohl a.**partiGipatin~** 

## county. · .

# .Than~ youAor

# thi~**opp~rtunity 't~** **com~enf.** :while NCTCOG

# ~ppre(;iates that 

# the .TCEQ Is holding 

# a pubiic hearing 

# to receive comments 6n the$e' proposed ruies 

# iii .Au$tin on January 

## 6, 

## 2015; NCTCOG would have hoped thatth.e. 

## TCEQ would also hold a·publichearing inttie

. ' · bf:l!las-Fort Worth area since Cqllin C6linty's·desire to. opt out of 

## LIRAP was the catalyst that

.. initiated this rulemaklng.

. - · . ' 

# . We look· forward

# to acoptinued.partnershipwiththe TCEQ as 

## we Work'togethertowards the··. comm.on goal ofc!eaner-air. Jf youhave any questions, 'please**fe~l** 

## free

# to ·contactShannon Stevenson, Prograni Manager, at(817) 608..:2304**ofsstev~nson@nctcog.org**

## .. · . · ·



# ..•(/{;{#

..

# Chris~ '•.



## Senior Pro{:jram Manager · SD:mg

cc:. The

# H~lio,r'.able KeithSelf, 

# Judge, Collin County ·.· Ricl)ard 

## A Hyde, 

## P.E., Executive Director, TCEQ

.



## . David Brymt?r, 

## Air Qua.lity'Division Director, TCEQ '·Michael Morri$, P.E., pirect()r 

# of Transportation, NCTCOG .. !



# I 

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### TRANSPORTATION AND NATURAL RESOURCES STEVEN M. MANILLA, P.E., COUNTY EXECUTIVE

700 Lavaca Street-5 1h Floor Travis County Administration Building 

### P.O. Box 1748 Austin, Texas 78767 Phone: (512)**854~9383** Fax: (512)**854~697**



## January 5, 2015

Kris Hogan Office ofLegal Services, MC 205 Texas Commission on Environmental Quality PO Box 13087 Austin, Texas 78711-3087

Re: LIRAP Rule Revision, Rule Project No. 2014-027-114-AL

Dear Ms. Hogan: 

# W-2

Travis County, TNR appreciates this opportunity to comment on the proposed rule changes to Chapter 114, Control ofAir Pollution from Motor Vehicles, LIRAP Rule Revision.

As a participating county in the both the LIRAP and LIP programs, Travis County, TNR fully supports the proposed mle changes. This mle change will benefit participating counties by establishing fonnal procedures for opting out ofthe program and having the LIRAP funding fee removed. Without this rule change, counties that no longer want to participate in the program would be required to assess the fee on local residents even ifthey no longer participated in the program nor received any benefits.
Ifyou have any questions, I can be contacted at 512 854 7212 or by e-mail at jon.white@.traviscountytx.gov.

# ~~lftt:: Natural Resources & 

## Environmental Quality Division Transportation & 

## Natural Resources Department

## INDEX OF ORAL TESTIMONY



## NO ORAL TESTIMONYWAS RECEIVED PERTAININGTO THIS RULE REVISION.**·---~-~-· --···~--~-~--------'"--------~------------------------·-~----------~-----**  ---·---- ·- --- 

### --**---~** 

### --------------- 

### ------



# - 1 - 

# Texas Commission onEnvironmental Quality Public Hearing Registration
January 

## 6, 2015 2:oop.m. 

## Rule ProjectNo.: 2014-027-114-AI 

## ShortTitle: IJRAP Rule Revision Location: 12100 

## Park35 

## Circle, Austin, Texas 78753 

## Concerning: 30

## TAC Chapter 114

Name Representing Presenting OralTestimony? (Please Print) (Circle One) 

# J0Art M·6'CA,./**T~-r (Q}{_,~1-tv~~~~s:**  ·"'-

# Yes~- f 

# a;-,-

/" 

## ! 

# F/fltJt/J·!_, 

# &u <:.t? 

# 7cv-tl"e:v 

# I**~ -~** **she/?fi~** 

# 1Jt:L**Yes~** I ./ 

# I -...., 

# <)

# huvy'\ (J

# '}'\h1(\t:> 

# NC\C06t**Yes~**

-r

# f¥J~ 

# Nc-r CJ)&-, Yes 

# @ .--..4ctSrW
,; 

### Yes 

### No

Yes 

### No

Yes 

### No

Yes 

### No

## HEARING OFFICERREPORT


## I am the hearing officer assigned to conduct the public hearing regarding LIRAP 

## RuleRevision, Rule ProjectNo. 2014-027-114-AI. 

## A public hearing was scheduled in Austin on January 6, 2015, 

## at 2:00 

## p.m. hi Building E, Room 2018, 

## at the Texas Commission on Environmental Quality's (TCEQ's) central office located at 12100 

## Park 35 

## Circle. TCEQ staff and a court reporter were presentfor the public hearing.
At 1:30 

## p.m. the room was opened and TCEQ staffwas available to the public for an informal question and answer period. At 2:10 

## p.m. it was determined that those thatwere present did not want to make comments on the record. Therefore, thepublic hearing was notformally openedfor comment and a transcript was not prepared.



# rn. Hearing Officer

Date signed

# EVALUATION

# Texas Commission on Environmental Quality

To:
Thru:

From: 

# Interoffice Memorandum
Commissioners Bridget C. Bohac, ChiefClerk Richard A. Hyde, P.E., Executive Director
Steve Hagle, P.E., Deputy Director Office ofAir
Docket No.: 2014-0953-RUL Subject: Commission Approval for Rulemaking AdoptionDate: April10, 2015

Chapter 114, Control ofAir Pollution from Motor Vehicles LIRAP Rule Revision Rule Project No. 2014-027-114-AI Background and reason(s) for the rulemaking: In March 2002, the Texas Commission on Environmental Quality (TCEQ) adopted rules to implement the Low IncomeVehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program (LIRAP), which was authorized in Texas Health and Safety Code (THSC), §382.209. The rules established a fee to be paidby vehicle owners in participating counties to fund the LIRAP. The LIRAP fee is paidbyvehicle owners as a portion ofthe fees assessed under theVehicle Inspection and Maintenance (I/M) Program. Only counties that participate in the I/M program are eligible to participate inthe LIRAP. Those counties include: Brazoria, Fort Bend, Galveston, Harris, and Montgomery Counties in the Houston-Galveston-Brazoria (HGB) area; Collin, Dallas, Denton, Ellis, Johnson, Kaufman, Parker, Rockwall, and Tarrant Counties in the Dallas-Fort Worth (DFW) area; Travis and Williamson Counties in the Austin-Round Rock (ARR) area; and El Paso County.
When the rules were first adopted, a procedure was established to allow counties to opt into the LIRAP, and all eligible counties but El Paso County opted in. No procedure was established to allow a participating countyto opt out ofthe LIRAP andhave the LIRAPfunding fee removed. On April28, 2014, the TCEQ received Court Order No. 2014-221-04- 21 from the Collin County Commissioners Court requesting withdrawal ofthe countyfrom participation inthe LIRAP, which requires amending the rules to include an opt-out procedure. This rulemaking establishes a formal procedure to allow Collin County or any participating county to opt out ofthe LIRAP and have LIRAP fee collection be discontinued and the contractbetween the county and the TCEQ executive director ended. Removing the LIRAP fee in opt-out counties requires coordination with the Texas Department ofPublic Safety (DPS) and the Texas Department ofMotor Vehicles (DMV). Scope ofthe rulemaking: A.) Summary ofwhat the rulemakingwill do: The adopted revisions amend Chapter 114, SubchapterAto incorporate a non-substantive change to §114.2 and the following substantive changes to §114.7.
• Section 114.7 is amended to add four new definitions and revise two existing definitions. The amendment clarifies the fee element ofthe LIRAP, defines the date upon which an opt-out county is no longer subject to the LIRAP fee, defines the date

## Commissioners Page 2 April10, 2015
Re: Docket No. 2014-0953-RUL

upon which a county is completely withdrawn from participation inthe LIRAP, and differentiates between eligible counties that participate in the LIRAP and those that do not. This rulemaking revises the numbering for §114.7 to incorporate the added definitions.
The adopted revisions also amend Chapter 114, Subchapter Cto incorporate the following changes.
• Division 1, §114.53 is revised to address the difference in vehicle emissions I/M fees between a nonattainment county that participates in the LIRAP, a non-attainment county that is in the process ofopting out ofthe LIRAP, and a non-participating, nonattainment county. • Division 2, §114.60 is revised to clarify that LIRAP requirements apply only to participating counties.
• Division 2, §114.62 is revised to clarify that the LIRAP is funded byfees collected only in participating counties.
• Division 2, §114.64 is revised to incorporate a process bywhich a participating county may opt out ofthe LIRAP that includes a written request bythe affected county commissioners court requesting removal ofthe LIRAP fee and ending ofthe grant contracts between the county and the TCEQ executive director. The LIRAP opt-out effective date for a countywill be either the LIRAP fee termination effective date

- the date upon which the county is no longer subject to the LIRAP fee

- or the last day ofthe legislative biennium in which the LIRAP fee termination effective date occurs. Removal ofthe LIRAP fee 

## vvill take at least 90 days but maybe more to take effect, which is the earliest a participating county may be completely withdrawn from the program. • Division 2, §114.70 is revised to specify that the recordkeeping requirements and audit provisions will continue to apply to affected entities in a county that opts out ofthe LIRAP for three years after the LIRAP opt-out effective date.
• Division 3, §114.87 is revised to address the difference invehicle emissions I/M fees between an early action compact countythat participates in the LIRAP, an early action compact countythat is in the process ofopting out ofthe LIRAP, and a nonparticipating early action compact county.
In addition to the adopted changes to allow counties to opt out ofthe LIRAP, the rule revisions also include various non-substantive revisions to conform with 

## Texas Register style and formatting requirements. 

## B.) Scope requiredbyfederal regulations or state statutes: None. 

## C.) Additional staffrecommendations that are not requiredbyfederal rule or state statute: None.

## Commissioners Page3 April10, 2015
Re: Docket No. 2014-0953-RUL



## Statutory authority: This rulemaking is adopted under Texas Water Code (TWC), §5.102, which provides the commission with the general powers to carry out its duties under the TWC, TWC §5.103, which authorizes the commission to adopt any rules necessary to carry out the powers and duties under the provisions ofthe TWC, and otherlaws ofthis state; and TWC, §5.105, which authorizes the commission by rule to establish and approve all general policy ofthe commission. This rulemaking is also adopted under THSC, §382.017, which authorizes the commission to adopt rules consistent \vith the policy and purposes ofthe Texas Clean Air Act; and THSC, §382.011, which authorizes the commission to establish the level ofquality to be maintained in the state's air and to control the quality ofthe state's air. Finally, this rulemaking is adopted under THSC, §382.003, amending definitions for the low-income vehicle repair assistance, retrofit, and accelerated vehicle retirement program authorized under THSC, §382.209.


## Effect on the: A.) Regulated community: This rulemaking is not expected to have a direct impact on the regulated community. The LIRAP is a voluntary program in which eligible counties may choose to participate or from which they may choose to withdraw. 

## B.) Public: While this rulemaking 

## will not directly impact the public, there are possible implications if a participating county opts out ofthe LIRAP. Vehicle mvners in non-participating counties are not subject to the LIRAP fee, which is $6.oo inthe participating HGB and DFW counties and $2.00 in participatingARR counties. However, non-participating counties and the vehicle owners registered in those counties are not eligible for the Drive a Clean Machine (DACM) and Local Initiative Project (LIP) grant programs. With no DACM grant funds available to qualifying vehicle owners for repair or replacement ofvehicles that fail emissions inspections, it is possible that program-relatedbusiness at participating recognized emissions repair facilities and auto dealers in a non-participating county may be affected. 

## C.) Agencyprograms: This rulemaking \vill not directly impact agency programs. If

## a county opts out ofthe LIRAP, then the TCEQ 

## mllbe required to coordinate with the DMV and the DPS to remove the LIRAP fee in that county. The TCEQ 

## mll also contact the Legislative Budget Board when the LIRAP fee is no longerbeing collected and when the county has completely opted out ofthe program. 

## Stakeholder meetings: No stakeholder meetings were held for this rulemaking. TCEQ staffcoordinated with the DMVand DPS on developing a method for adding and removing the LIRAP fee in eligible counties.

## Commissioners Page4 April10, 2015
Re: Docket No. 2014-0953-RUL



## Public comment: The commend period was from December 5, 2014 through January 9, 2015. The commission offered a public hearing on January 6, 2015, but it was not openedbecause no one registered to provide oral testimony. The commission received comments from the North Central Texas Council ofGovernments (NCTCOG) and the Transportation and Natural Resources Department ofTravis County (Travis County). In general, both commenters supported this rulemaking; however, NCTCOG recommended changes related to the distribution offunds and recordkeeping and auditing requirements. Significant public comments are summarizedbelow.

e 

## NCTCOG commentedthat returning unspent LIRAP funds to the commission upon an opt-out county's LIRAP opt-out effective date would be complicated for participating DFW-area counties because they have agreed through an inter-county elective agreement to share LIRAP funds allocated for the DACM program. NCTCOG acts as the regional administrator for that programin the DFW area. NCTCOG recommended that the TCEQ amendits proposal to allow the redistribution ofan opt-out county's unspent allocations to other participating counties within the region. 

## In response to this comment, the commission has amendedproposed §114.64(g)(3) to specify that unspent allocations will be returned to the commission unless there is an official intercounty elective agreement that the opt-outcounty shares allocatedLIRAP funds with otherparticipating counties in the same region. If an inter-county elective agreement exists, then theportion of LIRAP allocations that is shared and unspentas ofthe LIRAP opt-out effective date will be redistributed among the remainingparticipating counties that arepartof the agreement.

e 

## NCTCOG commented that LIRAP fees are currentlybeing collected in participating counties at a higher rate than what is appropriatedby the legislature and that there is a large surplus ofunappropriated funds. NCTCOG recommended that the TCEQ develop a process to allow opt-out counties to spend all collected funds, appropriated and otherwise. 

## The commission made no change to the rulemaking in response to this comment. The opt-outprocess established in this rulemaking offers an opt-outcounty the choice of extendingparticipation in theprogram beyond the date upon which the LIRAP fee is no longer collected, the LIRAP fee termination date. This allows the county to spendLIRAPgrant funds thathave been appropriated by the legislature andallocated by the commission.Any future appropriations are unknown and are dependent upon the legislature, which appropriates fundingfor the LIRAP to the commission during each biennial sessionfrom CleanAirAccount 151. 

## CleanAir Account 151 

## is used to safeguard the air resources of the state, andLIRAP feesfrom vehicle owners in eachparticipating county are deposited into the account aspartof a county'sparticipation in theprogram. LIRAPappropriations from CleanAirAccount 151 

## are not identified by revenue source and county, and as such, itwould notbe possible to identify future LIRAP appropriations as corresponding to a county that has opted outof theprogram withoutadditional statutory or appropriations direction.

## Commissioners Pages April10, 2015
Re: Docket No. 2014-0953-RUL

e 

## NCTCOG recommended that the TCEQ alert all counties ofany modifications to the LIRAP resulting from legislative action. 

## The LIRAPhas been modified by legislative action four times since the 77th Texas Legislature enactedHB 2134 

## in 2001. 

## The commission has and will continue to notify counties of changes to the LIRAP that result from legislative action.

• NCTCOG supported amendments to §114.70(c) and (d) that will maintain programrelated recordkeeping and auditing requirements related to an opt-out county after that county's opt-out effective date. NCTCOG recommended that the TCEQ add automobile dealerships to the list ofentities that must comply ·with these requirements. 

## The commission made no change to the rulemaking in response to this comment. The proposed rulemaking did notaddress imposing recordkeeping and auditing requirements on any new entities, and adding automobile dealerships would impose new requirements that were notmade available forpublic review and comment.At this time, the commission does notconsider itnecessary to include automobile dealerships in the list of entities with LIRAP-related recordkeeping and auditing requirements, which already includesparticipating dismantlers andprogram administrators.Aparticipating automobile dealership facilitates thepurchase of replacement vehicles by eligible applicants -forwhich it is reimbursed by the program administrator

- and transfers those applicants' retired vehicles to participating dismantlers. Significant changes from proposal: Section 114.64(g) was revised from proposalbased on a commentfrom NCTCOG concerning the return ofunspent LIRAP allocations after a county's LIRAP opt-out effective date. The proposed language indicated that any LIRAP funds remaining after a county has completely opted out ofthe program

## Vlrill be returned to the commission. NCTCOG commentedthat participating counties in the DFW area have agreed through an inter-county elective agreement to share DACM funds. Because the funds are combined and shared, it would be difficult for an opt-out county to return unspent allocations to the commission. To address this issue, the commission revised §114.64(g)(3) to specify that the unspent balance ofallocated LIRAP funds for an opt-out countywill be returned to the commission not more than 90 days after the county's chosen opt-out effective date unless the county opting out is part ofan official inter-county elective agreement with other participating counties in the same region to share allocated LIRAP funds. If

## the county opting out has entered into an official inter-county elective agreement with other participating counties in the same region to share allocated LIRAP funds, then the portion ofLIRAP allocations that is shared and unspent as ofthe LIRAP opt-out effective date will be redistributed among the remaining participating counties that are part ofthat agreement. Redistribution offunds will occur not more than 90 days after the opt-out county's chosen opt-out effective date.

## Commissioners Page 6 April10, 2015
Re: Docket No. 2014-0953-RUL



## Potential controversial concerns andlegislative interest: The adopted rule revisions include a waiting period for LIRAP fee removal. This rulemaking does not set a specific time period for removal ofthe LIRAP fee because it is dependent on when registration forms that do not include the LIRAP fee are available from the DMV. The DMV prints and distributes its vehicle registration notices more than 90 days prior to a vehicle's registration expiration, so renewal notices that exclude the LIRAP fee for an opt-out county V\ill be printed for registrations due more than 90 days after a county submits its request to opt out ofthe LIRAP. During the fee-removal time frame, vehicle owners will still pay the LIRAP fee, and the countywill still be considered a participating county.
When a county participates in the LIRAP, vehicle owners remit the LIRAP fee, which funds the program. The LIRAP fees for each participating county are deposited in the state's Clean Air Fund 151, and a portion ofthat fund is appropriated to the commission for allocation to participating counties as annual grants for DACM and LIP. Vehicle owners in ARR counties pay $2.00 in annual LIRAP fees, and vehicle owners in DFW and HGB-area counties pay $6.oo in annual LIRAP fees. Once a county is effectively opted out ofthe LIRAP, the LIRAP fee for that county will no longer be collected and deposited in the state treasury's Clean Air Fund.


## Does this rulemaking affect anycurrentpolicies orrequire development of newpolicies? This rulemaking is not expected to directly affect any current policies or require the development ofnew policies.


## What are the consequences ifthis rule making does not go forward? Are there alternatives to rulemaking? The LIRAP is a voluntary program, and participating counties may opt out at their discretion. This rulemaking establishes a formal procedure to allow any participating LIRAP county to opt out ofthe program, which includes no longer paying the LIRAP fee. This rulemaking offers any county opting out ofthe LIRAP a choice between becoming a non-participating county upon the LIRAP fee termination effective date or continuing to participate in the grant program using allocated funds until the end ofthebiennium in which the LIRAP fee was terminated. If

## this rulemaking does not go forward, then affected counties would be required to pay the LIRAP fee even ifthey no longer wanted to participate in the program. One alternative to this rulemaking would be to conduct a separate rulemaking for every countythat decided to V\ithdraw from the LIRAP. 

## Keypoints in the adoption rulemaking schedule: Texas Registerproposalpublication date: December 5, 2014 

## Anticipated Texas Register adoptionpublication date: May 15, 2015 

## Anticipated effective date: May 21, 2015 

## Six-month Texas Registerfiling deadline: June 5, 2015

## Commissioners Page 7 April10, 2015
Re: Docket No. 2014-0953-RUL



## Agency contacts: Jamie Zech, Rule Project Manager, (512) 239-3935, Air Quality Division Sierra Redding, StaffAttorney, (512) 239-2496 Kris Hogan, Texas Register Coordinator, (512) 239-6812 

## Attachments: None

cc: ChiefClerk, 2 copies Executive Director's Office Marshall Coover Pattie Burnett Stephen Tatum Office ofGeneral Counsel Jamie Zech Kris Hogan

## Texas Commission on Environmental Quality Page 1 Chapter 114 - Control of Air Pollution from Motor Vehicles Rule Project No. 2014

-027 -114-AI

The Texas Commission on Environmental Quality (TCEQ, agency, or commission) adopts amendments to §§114.2, 114.7, 114.53, 114.60, 114.62, 114.64, 114.70, and 114.87.

Section 114.64 is adopted with change to the proposed text as published in the December 5, 2014, issue of the Texas Register(39 TexReg 9468 ). Sections 114.2, 114.7, 114.53, 114.60, 114.62, 114.70, and 114.87are adopted without changes to the proposed text and, therefore, will not be republished.

Sections 114.2, 114.53, and 114.87 will be submitted to the United States Environmental Protection Agency (EPA) as a revision to the state implementation plan (SIP).

Background and Summary of the Factual Basis for the Adopted Rules The commission adopts revisions to incorporate a procedure for counties to opt out of the Low Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program (LIRAP) and to be released from program obligations, including remittanc e of
the fee to fund the LIRAP. The commission also adopts language that differentiates between a LIRAP participating county and a non

-participating county.

The LIRAP was established to enhance the objectives of the Vehicle Inspection and Maintenance (I/M) Program. The 77th Texas Legislature, 2001, enacted House Bill (HB) 2134 to assist low income individuals with repairs, retrofits, or retirement of vehicles

## Texas Commission on Environmental Quality Page 2 Chapter 114 - Control of Air Pollution from Motor Vehicles Rule Project No. 2014

-027 -114-AI
that fail emissions inspections. HB 2134 required the commission and the Texas Department of Public Safety (DPS), by rule, to provide the minimum guidelines by which eligible counties may implement the LIRAP. The commission, in coordination with DPS, adopted rules implementing HB 2134.

The LIRAP is a voluntary program, and only those counties that have implemented vehicle emissions I/M programs are eligible to participate in the LIRAP. I/M program counties include Brazoria, Fort Bend, Galveston, Harris, a nd Montgomery Counties in
the Houston

-Galveston

-Brazoria (HGB) area; Collin, Dallas, Denton, Ellis, Johnson, Kaufman, Parker, Rockwall, and Tarrant Counties in the Dallas

-Fort Worth (DFW) area;
Travis and Williamson Counties in the Austin

-Round Rock (ARR) area; and El Paso County. To participate, an eligible county must submit a written request to the TCEQ from the county 's commissioners court to implement the LIRAP. The TCEQ e xecutive
director and the participating county then enter into a grant contract f or implementation of the program

. The LIRAP is se parated into two grant programs - Drive a Clean Machine (DACM) and local initiative projects (LIP). DACM funds provide monetary assistance to qualifying vehicle owners in participating counties for emission

related vehicle repair, retrofit, and replacement. LIP funds are granted to participating counties for use in approved projects focused on improving air quality in the program

area.

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The LIRAP is funded through a fee (LIRAP fee) that is charged to vehicle owners in participating counties. The LIRAP fee is $6.00 in participating DFW and HGB

-area counties, and it is charged to vehicle owners who receive on

-board diagnostics (OBD) emissions inspection tests. The LIRAP fee is $2.00 in participating ARR

-area counties, and it is charged to vehicle owners for any emissions inspection test performed. The
LIRAP fee was remitted at authorized inspection stations during annual vehicle safety and emissions inspections until March 1, 2015 . As of that date, the LIRAP fee is paid to the Texas Department of Motor Vehicles (DMV) or county tax assessor

-collector during vehicle registration. This change is a result of a 2014 revision to Chapter 114, Subchapters A, B, and C (Rule Project Number 2013

-035 -114-AI), transitioning th e state to a single sticker system for vehicle inspection and registration and implementing HB 2305, 83rd Texas Legislature, 2013.

On April 28, 2014, the commission received Court Order No. 2014

-221

-04

-21 from the Collin County Commissioners Court withdra wing the county from participation in the LIRAP. The court order was sent with a letter requesting that the commission release Collin County from program requirements, including collection of the LIRAP fee. At the time the LIRAP was established, the rules did not specify a procedure to allow participating counties to opt out of the program or to be released from the LIRAP fee requirement. This rulemaking provide s Collin County or any participating county with a procedure for opting out of the LIRAP, which includes being released from collection of

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the LIRAP fee and ending of the contract between the county and the TCEQ e xecutive
director. Th is rulemaking amends Subchapter A to revise the definitions for the LIRAP to account for counties opting out of the pro gram and add s four new definitions to further clarify program elements and differentiate between counties participating in the
LIRAP and non

-participating counties. This rulemaking also amends Subchapter C, Divisions 1, 2, and 3. Division 1 is amended to specifythe I/M fees that applyin a participating nonattainment county , a county that is in the process of opting out of the LIRAP, and a non

-participating nonattainment county . Division 2 is amended to provide a mechanism for participating nonattainment c ounties to opt out of the LIRAP,
and Division 3 is amended to provide a mechanism for early action compact (EAC) counties to opt out of the LIRAP and accordingly, revise the I/M fee requirements in §114.87.

Section by Section Discussion
In addition to the adopted amendments associated with providing a mechanism for counties to opt out of the LIRAP, various stylistic, non

-substantive changes are included to update rule language to current Texas Register style and format requirements. Such changes include appropriate and consistent use of acronyms, section references, rule structure, and certain terminology. These changes are non

-substantive and generally are not specifically discussed in this preamble.

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§114.2, Inspection and Maintenance De finitions
The acronym for the Low Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program is replaced with the full program title to be consistent with the title of the referenced subchapter and Texas Register requirements.

§114.7, Low Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program Definitions The title of §114.7is corrected by amending the term "retrofit" to be singular. In addition, four definitions are added to §114.7 to clarify pro gram requirements and differentiate between participating counties and non

-participating counties. "LIRAP fee" is added as paragraph (13) to define the fee that vehicle owners in participating LIRAP counties pay when their vehicles receive certain emission s tests, OBD tests in DFW and
HGB

-area counties, and any emissions test in El Paso, Travis, and Williamson Counties. El Paso is currently a non

-participating county. Assessment of the LIRAP fee is authorized by Texas Health and Safety Code (THSC), §382.202

.

"LIRAP fee termination date" is added as paragraph (14) to define the effective date upon which a county opting out of the LIRAP would no longer pay the LIRAP fee.

"LIRAP opt

-out effective date" is added as paragraph (15) to define the date upon which a county that was participating in the LIRAP becomes a non

-participating county. Withdrawal from the program is effective on the date that both of the following

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requirements have been met: 1) the county is no longer subject to the LIRAP fee; and 2) the gra nt contract between the county and the TCEQ e xecutive director that established participation in the program is ended. The grant contract cannot be ended before the
LIRAP fee termination effective date.

"Non

-participating county " is added as paragraph (18 ) to differentiate between counties that are eligible to participate in the LIRAP but choose not to and eligible counties that participate in the LIRAP. The definition for "Participating county " is amended to clarify that a county that is in the process ofopting out of the LIRAP w ill be considered a participating county until the LIRAP opt

-out effective date. The definition for

"Recognized emissions repair facility " is amended to replace the reference to 37 Texas Administrative Code (TAC) §23.93 with 37 TAC §23.51 as it replaced the former as of March 13, 2013. The remaining definitions in §114.7are renumbered to accommodate
the added definitions.

§114.53, Inspection and Maintenance Fees
Section 114.53(d)(1), (2), and (3) is amended to more fully describe the LIRAP fee as it relates to the vehicle I/M programs in El Paso County and the DFW and HGB

-area counties. Subparagraphs are added to §114.53(d)(1), (2), and (3) to explain remittance of I/M fees, including the LIRAP fee, in a county participating in the LIRAP, a participating county that is in the process of opting out of the LIRAP, and a county that

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is not participating in the LIRAP and not subject to the LIRAP fee. Section 114.53(d)(1) is reorganized to allow the adopted subparagraphs to be consistent amongthe paragraphs of§114.53(d). The state fees vehicle owners pay during vehicle registration in participating counties, subparagraph (A) for each paragraph in §114.53(d), include s the LIRAP fee. The state fees vehicle owners pay during vehicle registration in participating counties that are in the process of opting out of the LIRAP, subparagraph (B) for each paragraph in §114.53(d), include s the LIRAP fee until the effective LIRAP fee termination date, after which state fees w ill not include the LIRAP fee. The state fees vehicle owners pay during vehicle registration in non

-participating counties, subparagraph (C) for each paragraph in §114.53(d), does not include the LIRAP fee.

§114.60, Applicability for LIRAP
Section 114.60(c) (7) is added to specifythat LIRAP requirements are not applicable to vehicles registered in counties that do not participate in the program. This addition
clarif ies that vehicles in non

-participating counties are not subject to LIRAP requirements.

§114.62, LIRAP Funding
Section 114.62(a) is amended to clarify that the LIRAP is funded through money collected only in participating counties, and the term "participating" replace s "affected" in §114.62(c) for consistency in describing counties that par ticipate in the program.

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§114.64, LIRAP Requirements The counties that are eligible to participate in the LIRAP are limited to those that are included in I/M program areas, but no county is required to participate in the LIRAP. The original rule to impleme nt the program included a procedure to allow counties to opt into the LIRAP, but it did not include a procedure to allow counties to opt out. The adopted amendment s to §114.64 establish a procedure for opting out of the LIRAP.

The commission amend s §114.64(a), concerning implementation of the LIRAP, to indicate that participation in the program is voluntary. The commission amend s §114.64(b)(3) to clarify that vehicle repair and retrofit assistance through the DACM Program is only available for vehicles registered in participating LIRAP counties.

The commission adds §114.64(g) to establish the procedure for opting out of the LIRAP.
Section 114.64(g)(1) require s a county wishing to opt out of the program to submit a written request from the county commissioners court to the TCEQ e xecutive director, which is consistent with the process for opting into the LIRAP. The written request
should include one of two possible LIRAP opt

-out effective dates, either the LIRAP fee termination effective date or the last day of the legislative biennium in which the LIRAP
fee termination effective date occur s. The first option completely withdraw s the opt

-out county from the progra m on the same date that the countyis no longer subject to the LIRAP fee. The second option extends the opt

-out county 's program participation past

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the LIRAP fee termination effective date to allow the county time to spend any remaining funds that have bee n allocated by the commission.

Participation in the LIRAP makes grant funds available to counties for program

-related projects and to qualified vehicle owners, and the LIRAP is funded through appropriations made by the legislature from Clean Air Account 151, into which LIRAP fees collected from county vehicle owners are deposited

. Due to the program's reliance on public support, the commission requested public comment on the method and process by which counties wishing to opt into or out of the LIRAP would do so, including any associated public notice requirements.

Adopted §114.64(g)(2) describes the procedure the commission will follow to release a

co unty from LIRAP requirements upon receiving a written request from the county to opt out. Release from LIRAP requirements includes removing the LIRAP fee from the state fees charged to vehicle owners during vehicle registration, which requires the
commission to coordinate with the DMV and DPS and to contact the Legislative Budget
Board of Texas (LBB)

. The process to remove the LIRAP fee will be initiated upon receipt by the TCEQ executive director of a request from a county to opt out of the program. The DMV vehicle registration notices list charges for state inspection fees, which include the LIRAP fee in counties participating in the program. These fees are paid by vehicle owners when they register their vehicles. The DMV prints and

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distributes vehicle registration notices at least 90 days prior to registration expiration
dates, so registration notices that include the LIRAP fee will be in circulation in an opt

out county for at least 90 days after the TCEQ initiates the fee removal process. The LIRAP fee will be effectively removed for an opt

-out county once it is no longer included in the state fee charges that appear on vehicle registration notices in the affected county. For example, if the TCEQ e xecutive director received a written request to withdraw f rom the program on August 1st, then the effective LIRAP fee termination date would be on or after December 1st because December would be the first month for which registration notices that did not include the LIRAP fee would be printed. The DMV prints registration notices mid

-month, so a written request to withdraw that was received by the TCEQ e xecutive director in mid

-August would likely not result in the LIRAP fee being effectively terminated for the submitting county until, at the earliest, January 1st.

The effective LIRAP fee termination date for a county opting out of the LIRAP is the first day of the month for the month that the DMV issues registration notices that do not include the LIRAP fee. Until the LIRAP fee termination effective date, a countyin the process of opting out of the LIRAP is still considered a participating county because the
LIRAP fee cannot be assessed in a non

-participating county. Depending upon the LIRAP opt

-out effective date included in a county 's written request to opt out of the program, the county could be completely withdrawn from the LIRAP on the LIRAP fee termination effective date, ending the contract between the county and the TCEQ

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e

xecutive director simultaneous with removal of the LIRAP fee. The countymayinstead

c

hoose to continue to participate in LIRAP activities without being subject to the LIRAP fee until the end of the legislative biennium in which the fee termination date occurs. Choosing the first option could end the county 's participation in the LIRAP befo re all grant funds allocated to the county have been spent. The second option would allow a county the opportunity to continue LIRAP activities and spend previously allocated LIRAP grant funds until the end of the biennium in which the LIRAP fee terminatio n date occurred for that county.

Adopted §114.64(g)(3) describes the LIRAP opt

-out effective date, which is the date upon which a participating county is no longer subject to the LIRAP fee and the grant contract between the county and the TCEQ e xecutive director is ended. On this date, the county becomes a non

-participating county. The commission will allowa county wishing to opt out of the LIRAP a choice oftwo options in determining when the program is ended for that county, so there are two possible effective dates upon which a participating county become s a non

-participating county . The first occurs simultaneous
with the LIRAP fee termination effective date, and the second occurs on the last day of the legislative biennium in which the LIRAP fee termination effective date occurs

. The commission revises proposed §114.64(g)(3) in response to a comment received, which is discussed in the Response to Comments section of this preamble. Revised §114.64(g)(3)
indicate s that not more than 90 days after a c ounty 's LIRAP opt

-out effective date, the

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unspent balance of allocated LIRAP funds for the opt

-out county will be returned to the
commission unless th e county has entered into an official inter

-county elective agreement with other participating counties in the same region to share allocated LIRAP
funds. Ifan inter

-county elective agreement exists, then the portion of LIRAP allocations that is shared and unspent as of the LIRAP opt

-out effective date will be redistributed among the remaining participating c ounties that are part of that agreement. The redistribution of a county 's allocated and unspent LIRAP funds will occur not more than 90 days after the county's LIRAP opt

-out effective date.

§114.70, Records, Audits, and Enforcement
The commission amend s §114.70(c) and (d) to incorporate recordkeeping and inspection requirements for counties that opt out of the LIRAP. Adopted §114.70(c) requires program participants in counties opting out of the LIRAP to maintain program records concerning the opt

-out count y for three years after the effective LIRAP opt

-out date for the county. Program participants include the county, its designated entity, participating recognized emissions repair facilities, and participating vehicle retirement
facilities. Adopted §114.70(d) require s that in the three

-year period during which records must be kept after a county 's LIRAP opt

-out effective date, the TCEQ e xecutive
director must be allowed to conduct audits and inspections of the records kept concerning the opted out county byprogram participants.

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§114.87, Inspection and Maintenance Fees
The commission amend s §114.87 to apply the changes adopted in §114.53 to counties with early action compact programs that participate in the vehicle emissions I/M
program. Adopted §114.87(d) (1) - (3) explain s remittance of I/M fees, including the LIRAP fee, in a county participating in the LIRAP, a participating county that is in the process of opting out of the LIRAP, and a county that is not participating in the LIRAP and not subject to the LIRAP fee. The description of the state fees vehicle owners pay during vehicle registration in participating EAC counties, paragraph ( 1 ), include s the LIRAP fee. The description of the state fees vehicle owners pay during vehicle registration in participating EAC counties that are in the process of opting out of the LIRAP, paragraph (2 ), include s the LIRAP fee until the effective LIRAP fee termination date, after which state fees do not include the LIRAP fee. The description of the state fees vehicle owners pay during vehicle registration in non

-participating EAC counties, paragraph (3 ), does not include the LIRAP fee.

Final Regulatory Impact Determination The commission reviewed this rulemaking in light of the regulatory impact analysis requirements of Texas Government Code, §2001.0225 and determined that it does not
meet the definition of a "major environmental rule" as defined in that statute. A "major

en vironmental 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

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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." Additionally, this rulemaking does not meet any of the four applicability criteria for requiring a regulatory impact analysis for a major
environmental rule, which are listed in Texas Government Code, §2001.0225(a). Texas Government Code, §2001.0225 applies only to a major environmental rule, the result of which is to: 1) exceed a standard set by federal law, unless the rule is specifically required by state law; 2) exceed an express requirement of state law, unless the rule is specifically required by federal law; 3) exceed a requirement of a delegation agreement or contract between the state and an agency or representative of the federal government
to im plement a state and federal program; or 4) adopt a rule solely under the general powers of the agency instead of under a specific state law.

The amendments to Chapter 114 are adopted in accordance with HB 2134, which authorized the LIRAP found in THSC, Ch apter 382. HB 2134 was enacted to enhance the objective of the vehicle emissions I/M program. The LIRAP provides financial
assistance to low

-income individuals for repair, retrofit, or retirement of vehicles that fail an emissions inspection. The rulemaking is not expected to 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.

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The rulemaking implements requirements o f 42 United States Code (USC), §7410, which requires states to adopt a SIP that provides for the implementation, maintenance, and enforcement of the National Ambient Air Quality Standards (NAAQS) in each air quality control region of the state. The LIRAP was designed to enhance the objectives of the I/M program, and the commission previously submitted the I/M rules to the EPA as a revision to the Texas SIP, which the EPA approved effective July 25, 2014. While 42 USC, §7410 generally does not require specif ic programs, methods, or reductions in order to meet the standard, the SIP must include enforceable emission limitations and other control measures, means, or techniques (including economic incentives such as fees, marketable permits, and auctions of emissions rights), as well as schedules and timetables for compliance as may be necessary or appropriate to meet the applicable requirements of this chapter (42 USC, Chapter 85). The provisions of the Federal Clean Air Act (FCAA) recognize that states are in th e best position to determine what programs and controls are necessary or appropriate in order to meet the NAAQS. This flexibility allows states, affected industry, and the public to collaborate on the best methods for attaining the NAAQS for the specific regions in the state. Even though the FCAA allows states to develop their own programs, this flexibility does not relieve a state from developing a program that meets the requirements of 42 USC, §7410. States are not free to ignore the requirements of 42 USC, §7410 and must develop programs to
assure that their contributions to nonattainment areas are reduced so that these areas can be brought into attainment on schedule.

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The requirement to provide a fiscal analysis of adopted regulations in the Texas
Government Code was amended by Senate Bill (SB) 633 during the 75th Texas Legislature, 1997. The intent of SB 633 was to require agencies to conduct a regulatory impact analysis of extraordinary rules. These rules are identified in the statutory language as major environmental rules that will have a material adverse impact and will exceed a requirement of state law, federal law, or a delegated federal program, or are adopted solely under the general powers of the agency. With the understanding that this requireme nt would seldom apply, the commission provided a cost estimate for SB 633 concluding that "based on an assessment of rules adopted by the agency in the past, it is not anticipated that the bill will have significant fiscal implications for the agency due to its limited application. " The commission also noted that the number of rules that would require assessment under the provisions of the bill was not large. This conclusion was based, in part, on the criteria set forth in the bill that exempted the adopted rules from the full analysis unless the rule was a major environmental rule that exceeds a federal
law.

As discussed earlier in this preamble, the FCAA does not always require specific programs, methods, or reductions in order to meet the NAAQS; thus, s tates must develop programs for each area contributing to nonattainment to help ensure that those areas will meet the attainment deadlines. Because of the ongoing need to address nonattainment issues and to meet the requirements of 42 USC, §7410, the commission

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routinely proposes and adopts SIP rules. The legislature is presumed to understand this federal scheme. If each rule adopted for inclusion in the SIP was considered to be a major environmental rule that exceeds federal law, then every SIP rule would require the full regulatory impact analysis contemplated by SB 633. This conclusion is inconsistent with the conclusions reached by the commission in its cost estimate and by the LBB in its fiscal notes. Since the legislature is presumed to understand the fiscal impacts of the bills it passes and that presumption is based on information provided by state agencies and the LBB, the commission believes that the intent of SB 633 was only to require the full regulatory impact analysis for rules that are extraordinary in nature. While the SIP rules will have a broad impact, the impact is no greater than is necessary or appropriate to meet the requirements of the FCAA. For these reasons, rules adopted for inclusion in the SIP fall under the exception in Texas Government Code, §2001.0225(a) because they are required by federal law.

The commission has consistently applied this construction to its rules since this statute was enacted in 1997. Since that time, the legislature has revised the Texas Government Code but left this provision substantially un

-amended. It is presumed that "whe n an agency interpretation is in effect at the time the legislature amends the laws without making substantial change in the statute, the legislature is deemed to have accepted the
agency 's interpretation." Central Power & Light Co. v. Sharp, 919 S.W.2d 485, 489 (Tex. App. Austin 1995), writ denied with per curiam opinion respecting another issue ,

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960 S.W.2d 617 (Tex. 1997); Bullock v. Marathon Oil Co., 798 S.W.2d 353, 357 (Tex. App. Austin 1990, no writ ). Cf. Humble Oil & Refining Co. v. Calvert, 414 S.W.2 d 172 (Tex. 1967); Dudney v. State Farm Mut. Auto Ins. Co., 9 S.W.3d 884, 893 (Tex. App. Austin 2000); Southwestern Life Ins. Co. v. Montemayor, 24 S.W.3d 581 (Tex. App. Austin 2000, pet. denied ); and Coastal Indust. Water Auth. v. Trinity Portland Cement
Div., 563 S.W.2d 916 (Tex. 1978).

The commission's interpretation of the regulatory impact analysis requirements is also supported by a change made to the Texas Administrative Procedure Act (APA) by the legislature in 1999. In an attempt to limit the num ber of rule challenges based upon APA requirements, the legislature clarified that state agencies are required to meet these sections of the APA against the standard of "substantial compliance. " The legislature specifically identified Texas Government Code, §2001.0225, as falling under this standard. The commission has substantially complied with the requirements of Texas Government Code, §2001.0225.

The specific intent of these adopted rules is to amend sections of the TAC, which would allow any participating county to opt out of the LIRAP, including the collection of the LIRAP fee collected at the time of vehicle registration, without a future rulemaking. By providing a mechanism for participating counties to opt out of the LIRAP, this rulemaking creates a more comprehensive program in accordance with the TCEQ's

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statutory obligation to create and implement the LIRAP. Additionally, even if the adopted rulemaking was a major environmental rule, it does not exceed a standard set by federal law or exceed an e xpress requirement of state law. No contract or delegation agreement covers the topic that is the subject of this rulemaking. Therefore, this rulemaking is not subject to the regulatory analysis provisions of Texas Government Code, §2001.0225(b) because it does not meet the definition of a "major environmental rule," nor does it meet any of the four applicability criteria for a major environmental
rule.

The commission invited public comment regarding the draft regulatory impact analysis
determination during the public comment period, and none were received

.

TakingsImpactAssessment The commission evaluated the adopted rulemaking and performed an assessment of whether Texas Government Code, Chapter 2007 is applicable. The specific intent of
these rule s is to amend sections of the TAC, which will allow any participating county to opt out of the LIRAP, including the collection of program

-related LIRAP fee, without a future rulemaking. The rules will substantially advance this stated purpose by amending

sections in Chapter 114, Subchapters A and C to include revisions of the definitions and fees and to provide a mechanism for participating counties to opt out of the LIRAP. By providing a mechanism for participating counties to opt out of the LIRAP, this

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rulemaking creates a more comprehensive program in accord with the TCEQ's statutory obligation to create and implement the LIRAP.

Texas Government Code, §2007.003(b)(4) provides that Texas Government Code, Chapter 2007 does not apply to this rulemaking beca use it is an action reasonably taken to fulfill an obligation mandated by state law. THSC, Chapter 382 requires the
commission to establish and authorize the commissioners court of a participating county to implement a LIRAP subject to agency oversight tha t may include reasonable, periodic commission audits. Consequently, th is rulemaking meets the exemption criteria in Texas Government Code, §2007.003(b)(4).

Nevertheless, the commission further evaluated these adopted rules and performed an
assessment of w hether these rules constitute a "taking" under Texas Government Code, Chapter 2007. Promulgation and enforcement of these rules would be neither a statutory nor a constitutional taking of private real property. Specifically, the subject regulations do not affect a landowner's rights in private real property because this rulemaking does not burden (constitutionally), nor restrict or limit the owner's right to property and reduce its value by 25% or more beyond that which would otherwise exist
in the absence of the regulations. These adopted rules create a voluntary program for counties in the state to participate in and opt out of the LIRAP.

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In addition, because the subject regulations do not provide more stringent requirements they do not burden, restrict, or limit an owner's right to property and reduce its value by 25% or more beyond that which would otherwise exist in the absence of the regulations. Therefore, these adopted rules do not constitute a taking under the Texas Government Code, Chapter 2007. For these reasons, Texas Government Code, Chapter 2007 does not apply to this rulemaking.

Consistency with the Coastal ManagementProgram The commission reviewed this rulemaking and found that it is identified in the Coastal Coordination Act Implementation Rules, 31 TAC §505.11(b)(4) relating to 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 Advisory Committee 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 therefore, is consistent with CMP goals and policies.

The commission invited public comment regarding the consistency with the CMP during the public comment period, and none were received.

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Public Comment The comment period was from December 5, 2014 through January 9, 2015. The commission offered a public hearing on January 6, 2015, but it was not opened because no one signed up to provide oral testimony. The commission received written comments from the North Central Texas Council of Governments (NCTCOG) and the Transportation and Natural Resources Department of Travis County (Travis County). In general, both commenters supported this rulemaking; however, NCTCOG recommended changes related to the distribution of funds and recordkeeping and auditing requirements.

Response to Comments
Comment Travis County supported the proposed rulemaking and added that it will benefit participating counties to have a formal procedure for opting out of the LIRAP that includes removing the LIRAP fee.

Response The commission appreciates Travis County's support of this rulemaking and agrees that having a formal procedure to opt out of the LIRAP will benefit the counties that participate in the program.

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Comment NCTCOG agreed that counties opting out of the LIRAP should have options and
commented that those provided in this rulemaking provide flexibility when it comes to spending allocated funds.

Response The commission appreciates NCTCOG 's comment and agrees that a county opting out of the program should have options with regard to the use of
allocated LIRAP funds. The commission's staff will work closely with each opt

-out county to help the county spend allocated LIRAP funds by the chosen LIRAP opt

-out effective date.

Comment NCTCOG commented that due to an agreement among the participating DFWcounties to share LIRAP funds, which is facilitated by NCTCOG, it would be complicated to require an opt

-out county to return unspent allocations to the TCEQ upon a county 's LIRAP opt

-out effective date. NCTCOG recommended that the TCEQ amend its proposal to allow the redistribution of an opt

-out county 's unspent allocations to other participating counties within the region.

Response

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The commission has amended proposed §114.64(g)(3) to specify that unspent allocations will be returned to the commission not more than 90 days after a county's LIRAP opt

-out effective date unless there is an official
inter

-county elective agreement that the opt

-out county shares allocated LIRAP funds with other participating counties in the same region. If there
is an inter

-county elective agreement, then not more than 90 days after a county's LIRAP opt

-out effective date, the portion of LIRAP allocations that is shared and unspent as of the LIRAP opt

-out effective date will be redistributed among the remaining participating counties that are part of the agreement.

Comment NCTCOG recommended that the TCEQ develop a process to allow opt

-out counties to spend all collected funds, appropriated and otherwise. NCTCOG commented that LIRAP fees are currently being collected in participating counties at a higher rate than what is appropriated by the legislature and that there is a large surplus of unappropriated funds. NCTCOG added that opt

-out counties should be able to exhaust all collected funds, even after the LIRAP opt

-out effective date.

Response The commission has not made the suggested change to the rule. The LIRAP

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is a voluntary program, and a participating county may choose to opt out at its discretion. The opt

-out process established in this rulemaking offers an opt-out county the choice of extending participation in the program beyond the date upon which the LIRAP fee is no longer collected, the LIRAP fee termination date. This allows the county to spend LIRAP grant funds that have been appropriated by the legislature and allocated by the commission. The commission only has the authority to allocate funds appropriated by the legislature to participating counties or an area specified by the legislature. Any future appropriations are unknown and are dependent upon the legislature, which appropriates funding for the LIRAP to the
commission during each biennial session from Clean Air Account 151. Clean Air Account 151 is used to safeguard the air resources of the state, and
LIRAP fees from vehicle owners in each participating county are deposited
into the account as part of a county's participation in the program. LIRAP appropriations from Clean Air Account 151 are not identified by revenue source and county, and as such, it would not be possible to identify future LIRAP appropriations as corresponding to a county that has opted out of the program without additional statutory or appropriations direction.

Comment NCTCOG recommended that the TCEQ alert all counties of any modifications to the

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LIRAP resulting from legislative action.

Response The LIRAP has been modified by legislative action four times since the 77th Texas Legislature enacted HB 2134 in 2001. The commission has and will continue to notify counties of changes to the LIRAP that result from legislative action.

Comment NCTCOG supported the amendment to §114.70(c) and (d) that will maintain program

related recordkeeping and auditing requirements related to an opt

-out county after that county 's opt

-out effective date. NCTCOG recommended that the TCEQ add automobile dealerships to the list of entities that must comply with these requirements.

Response The commission appreciates NCTCOG 's support of the amendment to §114.70(c) and (d). However, the commission has not made the suggested change. The commission did not propose to revise §114.70 to require automobile dealerships to comply with program

-related recordkeeping and auditing requirements. Adding automobile dealerships would impose new requirements that were not made available for public review and comment.

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Furthermore, the commission does not consider it necessary at this time to make automobile dealerships subject to LIRAP

-related recordkeeping and auditing requirements. One of the LIRAP's main objectives is to repair or remove older, polluting vehicles from roadways in counties where vehicle emissions inspections are conducted. Participating automobile dealerships facilitate the purchase of replacement vehicles by eligible applicants in exchange for those applicants' retired vehicles. Under the program, replacement vehicles are partially paid for with vouchers representing DACM grant funds. Dealerships transfer retired vehicles to participating
dismantlers and return the vouchers and retired vehicle information to the program administrator for reimbursement. Participating dismantlers and program administrators are subject to §114.70 requirements. Dismantlers provide proof that retired vehicles have been destroyed, and program administrators maintain records for the entire DACM process.

Comment NCTCOG agreed that the opt

-out time frame was reasonable based on the various processes that must be undertaken by the TCEQ, DMV, and DPS.

Response

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The commission appreciates NCTCOG 's assessment that the LIRAP fee termination process, including the time frame, is reasonable

.

Comment NCTCOG was disappointed that the TCEQ did not hold a public hearing in the DFW region since the rulemaking was initiated by Collin County 's request to opt out of
LIRAP.

Response While the commission appreciates that Collin County made the original request for opt

-out that prompted this rulemaking, the commission must also balance both resource availability and the necessity for holding public hearings in various areas of the state. For rules that apply statewide, the
commission has regularly held public hearings in Austin or in Austin and other parts of the state

.

# RECOMMENDATION

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SUBCHAPTER A: DEFINITIONS §114.2, §114.7

Statutory Authority
The amendments are adopted under Texas Water Code (TWC), §5.102, concerning General Powers, that provides the commission with the general powers to carry out its duties under the TWC; TWC, §5.103, concerning Rules, that authorizes the commission to adopt rules necessary to carry ou t its powers and duties under the TWC; TWC, §5.105, concerning General Policy, that authorizes the commission by rule to establish and approve all general policy of the commission; and under Texas Health and Safety Code (THSC), §382.017, concerning Rules, that authorizes the commission to adopt rules consistent with the policy and purposes of the Texas Clean Air Act. The amendments are also adopted under THSC, §382.002, concerning Policy and Purpose, that establishes
the commission's purpose to safeguard th e state's air resources, consistent with the protection of public health, general welfare, and physical property; THSC, §382.011, concerning General Powers and Duties, that authorizes the commission to control the quality of the state's air; and THSC, §382.012, concerning the State Air Control Plan, that authorizes the commission to prepare and develop a general, comprehensive plan for the proper control of the state's air. Additionally, the amendments are adopted under THSC, §382.209, concerning the Low Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program (LIRAP), that authorizes the commission and

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the Public Safety Commission to adopt rules implementing the LIRAP; and THSC, §382.210, concerning Implementation Guidelines and Requirements for the LIRAP, that authorizes the commission to adopt rules creating guidelines to assist participating counties in implementing the LIRAP.

The adopted amendments implement THSC, §§382.002, 382.011, 382.012, 382.017, 382.209, and 382.210.

§114.2. Inspection and Maintenance 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 that are defined by the TCAA, the following words and terms, when used in Subchapter C of this chapter (relating to Vehicle Inspection and Maintenance; Low Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program [LIRAP]; and Early Action Compact Counties), have the following meanings, unless the context clearly indicates otherwise.

(1) Acceleration simulation mode (ASM

-2) test

--An emissions test using a dynamometer (a set of rollers on which a test vehicle's tires rest) that applies an

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increasing load or resistance to the drive train of a vehicle, thereby simulating actual tailpipe emissions of a vehicle as it is moving and accelerating. The ASM

-2 vehicle emissions test is comprised of two phases:

(A) the 50/15 mode

--in which the vehicle is tested for 90 seconds upon reaching and maintaining a constant speed of 15 miles per hour (mph) on a dynamometer that simulates acceleration at a rate of 3.3 mph per second by using 50% of the vehicle available horsepower; and

(B) the 25/25 mode

--in which the vehicle is tested for 90 seconds upon reaching and maintaining a constant speed of 25 mph on a dynamometer that
simulates acceleration at a rate of 3.3 mph per second by using 25% of the vehicle available horsepower.

(2) Consumer price index

--The consumer price index for any calendar year is the average of the consumer price index for all

-urban consumers published by the United States Department of Labor, as of the close of the 12

-month period ending on August 31 of th e calendar year.

(3) Controller area network (CAN)

--A vehicle manufacturer's communications protocol that connects to the various electronic modules in a vehicle.

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CAN provides one protocol that collects information from the vehicle's electronic systems including the on

-board diagnostics (OBD) emissions testing system. The United States Environmental Protection Agency requires the CAN protocol to be installed in
OBD

-compliant vehicles beginning with some model year 2003 vehicles and phasing in
to all OBD-c ompliant vehicles by the 2008 model year.

(4) Low

-volume emissions inspection station

--A vehicle emissions inspection station that meets all criteria for obtaining a low

-volume waiver from the Texas Department of Public Safety.

(5) Motorist

--A person o r other entity responsible for the inspection, repair, and maintenance of a motor vehicle, which may include, but is not limited to,
owners and lessees.

(6) On

-board diagnostic (OBD) system

--The computer system installed in a vehicle by the manufacturer that monitors the performance of the vehicle emissions control equipment, fuel metering system, and ignition system for the purpose of detecting malfunction or deterioration in performance that would be expected to cause
the vehicle not to meet emissions s tandards. All references to OBD should be interpreted to mean the second generation of this equipment, sometimes referred to as
OBD II.

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(7) On

-road test

--Utilization of remote sensing technology to identify vehicles operating within the inspection and ma intenance program areas that have a high probability of being high

-emitters.

(8) Out

-of

-cycle test

--Required emissions test not associated with vehicle safety inspection testing cycle.

(9) Primarily operated

--Use of a motor vehicle greater than 60 cale ndar days per testing cycle in an affected county. Motorists shall comply with emissions requirements for such counties. It is presumed that a vehicle is primarily operated in the county in which it is registered.

(10) Program area

--County or counties in which the Texas Department of Public Safety, in coordination with the commission, administers the vehicle emissions inspection and maintenance program contained in the Texas Inspection and Maintenance State Implementation Plan. These program areas include:

(A) the Dallas

-Fort Worth program area, consisting of the following counties: Collin, Dallas, Denton, and Tarrant;

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(B) the El Paso program area, consisting of El Paso County;

(C) the Houston

-Galveston

-Brazoria program area, consisting of Brazoria, Fort Bend, Galveston, Harris, and Montgomery Counties; and

(D) the extended Dallas

-Fort Worth program area, consisting of Ellis, Johnson, Kaufman, Parker, and Rockwall Counties. These counties became part of the program area as of May 1, 2003.

(11) Retests

--Successive vehicle emissions inspections following the failing of an initial test by a vehicle during a single testing cycle.

(12) Testing cycle

--Before the single sticker transition date as defined in §114.1 of this title (relating [relate d] to Definitions), the annual cycle commencing with the first safety inspection certificate expiration date for which a motor vehicle is subject to a vehicle emissions inspection or beginning on the single sticker transition date, the annual cycle commenc ing with the first vehicle registration expiration date for which a motor vehicle is subject to a vehicle emissions inspection.

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(13) Two

-speed idle (TSI) inspection and maintenance test

--A measurement of the tailpipe exhaust emissions of a vehicle while the vehicle idles, first at a lower speed and then again at a higher speed.

(14) Uncommon part

--A part that takes more than 30 days for expected delivery and installation where a motorist can prove that a reasonable attempt made to locate necessary emission control parts by retail or wholesale part suppliers will exceed the remaining time prior to expiration of:

(A) the vehicle safety inspection certificate prior to the single sticker transition date as defined in §114.1 of this title (relating to Definitions);

(B) the vehicle registration beginning on the single sticker transition date as defined in §114.1 of this title; or

(C) the 30

-day period following an out

-of

-cycle inspection.

§114.7. Low Income Vehicle Repair Assistance, Retrofit [Retrofits] , and Accelerated Vehicle Retirement Program Definitions.

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Unless specifically defined in the Texas Clean Air Act (TCAA) or in the rules of the commission, the terms used in this chapter 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, §§3.2, 101.1, and 114.1 of this title (relating to Definitions), the following words and terms, when used in Subchapter C, Division 2[,] of this chapter (relating to Low Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program) have the following meanings, unless the context clearly indicates otherwise.

(1) Affected county

--A county with a motor vehicle emissions inspection and maintenance program established under Texas Transportation Code, §548.301.

(2) Automobile dealership

--A business that regularly and actively buys, sells, or exchanges vehicles at an established and permanent location as defined
under Texas Transportation Code, §503.301. The term includes a franchised motor
vehicle dealer and an independent motor vehicle dealer.

(3) Car

--A motor vehicle, other than a golf cart, truck or bus, designed or used primarily for the transportation of persons. A passenger van or sports utility vehicle may be considered a car under this section.

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(4) Comme rcial vehicle

--A vehicle that is owned or leased in the regular course of business of a commercial or business entity.

(5) Destroyed

--Crushed, shredded, scrapped, or otherwise dismantled to render a vehicle, vehicle's engine, or emission control components permanently and irreversibly incapable of functioning as originally intended.

(6) Dismantled

--Extraction of parts, components, and accessories for use
in the Low Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program [lowincome vehicle repair assistance, retrofit, and accelerated vehicle retirement program] or sold as used parts.

(7) Electric vehicle

--A motor vehicle that draws propulsion energy only from a rechargeable energy storage system.

(8) Emissions control equipment

--Relating to a motor vehicle that is subject to §114.50(a) of this title (relating to Vehicle Emissions Inspection Requirements). If the vehicle is so equipped, these include: exhaust gas recirculation system, power control module, catalytic converter, oxygen sensors, evaporative purge canister, positive crankcase ventilation valve, and gas cap.

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(9) Engine

--The fuel

-based power source of a motor vehicle that is subject to §114.50(a) of this title (relating to Vehicle Emissions Inspection Requirements)

.

(10) Fleet vehicle

--A motor vehicle operated as one of a group that consists of more than ten motor vehicles and that is owned and operated by a public or commercial entity or by a private entity other than a single household.

(11) Hybrid vehicle

--A mo tor vehicle that draws propulsion energy from both gasoline or conventional diesel fuel and a rechargeable energy storage system.

(12) LIRAP

--Low Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program [Low income vehicle re pair assistance, retrofit, and accelerated vehicle retirement program].

(13) LIRAP fee

--The portion of the vehicle emissions inspection fee that is required to be remitted to the state at the time of annual vehicle registration, as authorized by Texas Hea lth and Safety Code, §382.202, in counties participating in the Low Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program.

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(14) LIRAP fee termination date

--The first day of the month for the month
that the Texas Department of Motor Vehicles issues registration notices without the Low Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program (LIRAP) fee, as defined in this section, in a participating county opting out of
the LIRAP.

(15 ) LIRAP opt

-out effective date

--The date upon which a county that was participating in the Low Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program (LIRAP) becomes a non

-participating county, which occurs when the grant co ntract between the county and the executive director, established in §114.64(a) of this title (relating to LIRAP Requirements), is ended, but no earlier than
the LIRAP fee termination effective date.

(16) [(13)] Motor vehicle

--A fully self

-propelled vehicle having four wheels that has as its primary purpose the transport of a person, persons, or property on a public highway.

(17) [(14)] Natural gas vehicle

--A motor vehicle that uses only compressed natural gas or liquefied natural gas as fuel.

( 18) Non-participating county

--An affected county that has either:

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(A) not opted into the Low Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program (LIRAP) authorized by Texas Health and Safety Code, §382.209; or

(B) opted out of the LIRAP according to the procedures specified in §114.64(g) of this title (relating to LIRAP Requirements) and has been released from all program requirements, including assessment of the LIRAP fee as defined in this section and participation in LIRAP gra nt programs.

(19) [(15)] Participating county

--An affected county in which the commissioners court by resolution has chosen to implement a Low Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program (LIRAP) [low income vehicle repair assistance, retrofit, and accelerated vehicle retirement program] authorized by Texas Health and Safety Code, §382.209. An affected county that is in the process of opting out of the LIRAP is considered a participating county until the LIRAP opt

-out effective date as defined in this section.

(20) [(16)] Proof of sale

--A notice of sale or transfer filed with the Texas Department of Transportation as required under Texas Transportation Code, §503.005,

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or if unavailable, an affidavit from the selling dealer or documents approved by the
commission.

(21) [(17)] Proof of transfer

--A TCEQ form that identifies the vehicle to be destroyed and tracks the transfer of the vehicle to the recycler from the participating county, automobile dealer, and dismantle r.

(22) [(18)] Qualifying motor vehicle

--A motor vehicle that meets the requirements for replacement in §114.64 of this title (relating to LIRAP Requirements).

(23) [(19)] Recognized emissions repair facility

--An automotive repair facility as provided in 37 Texas Administrative Code §23.51 (relating to Vehicle Emissions Inspection Requirements) [§23.93, relating to Vehicle Emissions Inspection Requirements].

(24) [(20)] Recycled

--Conversion of metal or other material into raw material products that have prepared grades; an existing or potential economic value; and using these raw material products in the production of new products.

(25) [(21)] Replacement vehicle

--A vehicle that is in a class or category of vehicles that has been certified to meet federal Tier 2, Bin 5 or cleaner Bin certification

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under 40 Code of Federal Regulations §86.1811

-04, as published in the February 10, 2000, Federal Register; has a gross vehicle weight rating of less than 10,000 pounds; have an odometer reading of not more than 70,000 miles; the total cost does not exceed $35,000 and up to $45,000 for hybrid, electric, or natural gas vehicles, or vehicles

certified as Tier 2 Bin 3 or cleaner Bin certification under 40 Code of Federal Regulations §86.1811

-04, as published in the February 10, 2000, issue of the Federal Register (65 FR 6698); has passed aTexas Department of Public Safety motor vehicle safety inspection or safety and emissions inspection within the 15

-month period before the application is submitted.

(26) [(22)] Retrofit

--To equip, or the equipping of, an engine or an exhaust or fuel system with new, emissions

-reducing parts or equipment designed to reduce air emissions and improve air quality, after the manufacture of the original engine or exhaust or fuel system, so long as the parts or equipment allow the vehicle to meet or
exceed state and federal air emissions reduction standards.

(27) [(23)] Retrofit equipment

--Emissions

-reducing equipment designed to reduce air emissions and improve air quality that is approved by the United States Environmental Protection Agency and is installed after the manufacture of the original engine, exhaust, or fuel system.

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(28) [(24)] Total cost

--The total amount ofmoney paid or to be paid for the purchase of a motor vehicle as set forth as the sales price in the form entitled

"Application for Texas Certificate of Title" promulgated by the Texas Department of
Tran sportation. In a transaction that does not involve the use of that form, the term means an amount of money that is equivalent, or substantially equivalent, to the amount that would appear as the sales price on the application for Texas Certificate of
Title if that form were used.

(29) [(25)] Truck

--A motor vehicle having a gross vehicle weight rating of less than 10,000 pounds and designed primarily for the transport of persons and cargo.

(30) [(26)] Vehicle

--A motor vehicle subject to §114.50(a) of this title (relating to Vehicle Emissions Inspection Requirements).

(31) [(27)] Vehicle owner

--For the purposes of repair assistance or retrofit, the person who holds the Certificate of Title for the vehicle and/or the operator who is granted possession and is authorized to make repairs under a lease or purchase agreement; and for the purposes of accelerated retirement, the person who holds the
Certificate of Title for the vehicle.

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(32) [(28)] Vehicle retirement facility

--A facility that, at a minimum, is
lice nsed, certified, or otherwise authorized by the Texas Department of Transportation to destroy, recycle, or dismantle vehicles.

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SUBCHAPTER C: VEHICLE INSPECTION AND MAINTENANCE; LOW INCOME VEHICLE REPAIR ASSISTANCE, RETROFIT, AND ACCELERATED VEHICLE RETIREMENT PROGRAM; AND EARLY ACTION COMPACT
COUNTIES
DIVISION 1: VEHICLE INSPECTION AND MAINTENANCE §114.53

Statutory Authority
The amendment is adopted under Texas Water Code (TWC), §5.102, concerning General Powers, that provides the commission with the ge neral powers to carry out its duties under the TWC; TWC, §5.103, concerning Rules, that authorizes the commission to adopt rules necessary to carry out its powers and duties under the TWC; TWC, §5.105, concerning General Policy, that authorizes the commission by rule to establish and approve all general policy of the commission; and under Texas Health and Safety Code (THSC), §382.017, concerning Rules, that authorizes the commission to adopt rules consistent with the policy and purposes of the Texas Clean Air Act. The amendment is also adopted under THSC, §382.002, concerning Policy and Purpose, that establishes
the commission's purpose to safeguard the state's air resources, consistent with the protection of public health, general welfare, and physical property; THSC, §382.011, concerning General Powers and Duties, that authorizes the commission to control the quality of the state's air; and THSC, §382.012, concerning the State Air Control Plan,

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that authorizes the commission to prepare and develop a general, comprehensive plan for the proper control of the state's air. Additionally, the amendment is adopted under THSC, §382.209, concerning the Low Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program (LIRAP), that authorizes the commission and the Public Safety Commission to adopt rules implementing the LIRAP; and THSC, §382.210, concerning Implementation Guidelines and Requirements for the LIRAP, that authorizes the commission to adopt rules creating guidelines to assist participating counties in implementing the LIRAP.

The adopted amendment implements THSC, §§382.002, 382.011, 382.012, 382.017, 382.209, and 382.210.

§114.53. Inspection and Maintenance Fees.

(a) The following fees must be paid for an emissions inspection of a vehicle at an inspection station. This fee must include one free retest should the vehicle fail the emissions inspection provided that the motorist has the retest performed at the same

station where the vehicle originally failed and submits, prior to the retest, a properly completed vehicle repair form showing that emissions

-related repairs were performed and the retest is conducted within 15 days of the initial emissions test.

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(1) In El Paso County beginning May 1, 2002 and ending on the day before the single sticker transition date as defined in §114.1 of this title (relating to Definitions), any emissions inspection station required to conduct an emissions test in accordance with §114.50(a)(4)(A), (B), or (C) of this title (relating to Vehicle Emissions Inspection Requirements) must collect a fee of $14 and remit $2.50 to the Texas Department of Public Safety (DPS). If the El Paso County Commissioners Court adopts a resolution that is approved by the commission to participate in the Low Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program (LIRAP), the emissions inspection station in El Paso County must collect a fee of $16 and remit to the DPS $4.50 beginning upon the date specified by the commission and ending on the day before the single sticker transition date. Beginning on the single sticker transition date, any emissions inspection station in El Paso County required to conduct an emissions
test in ac cordance with §114.50(a)(4)(A), (B), or (C) of this title must collect a fee not to exceed $11.50.

(2) In the Dallas

-Fort Worth program area beginning May 1, 2002 and ending on the day before the single sticker transition date as defined in §114.1 of this title, any emissions inspection station required to conduct an emissions test in accordance with §114.50(a)(1)(A) or (B) of this title and in the extended Dallas

-Fort Worth program area beginning May 1, 2003 and ending on the day before the single
sticke r transition date, any emissions inspection station required to conduct an

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emissions test in accordance with §114.50(a)(2)(A) or (B) of this title must collect a fee not to exceed $27. Beginning May 1, 2002 and ending on the day before the single
sticker transition date in the Dallas

-Fort Worth and the extended Dallas

-Fort Worth program areas, the emissions inspection station must remit to the DPS $2.50 for each acceleration simulation mode (ASM

-2) test and $8.50 for each on

-board diagnostics (OBD) test. Be ginning on the single sticker transition date in the Dallas

-Fort Worth and
the extended Dallas

-Fort Worth program areas, any emissions inspection station required to conduct an emissions test in accordance with §114.50(a)(1)(A) or (B) and (2)(A) or (B) of this title must collect a fee not to exceed $24.50 for each ASM

-2 test and $18.50 for each OBD test.

(3) In the Houston

-Galveston

-Brazoria program area beginning May 1, 2002 and ending on the day before the single sticker transition date as defined in §114.1 of this title, any emissions inspection station in Harris County required to conduct an emissions test in accordance with §114.50(a)(3)(A) or (B) of this title and beginning May 1, 2003 and ending on the day before the single sticker transition date, any emissions inspection station in Brazoria, Fort Bend, Galveston, and Montgomery Counties required to conduct an emissions test in accordance with §114.50(a)(3)(D) or (E) of this title must collect a fee not to exceed $27. Beginning May 1, 2002 and ending on the day before the single sticker transition date in Brazoria, Fort Bend, Galveston, Harris, and Montgomery Counties, the emissions inspection station must remit to the DPS $2.50 for

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each ASM

-2 test and $8.50 for each OBD test. Beginning on the single sticker transition date in Brazoria, Fort Bend, Galveston, Harris, and Montgomery Counties, any emissions inspection station required to conduct an emissions test in accordance with §114.50(a)(3)(A), (B), (D), or (E) of this title must collect a fee not to exceed $24.50 for
each ASM

-2 test and $18.50 for each OBD test.

(b) The per

-vehicle fee and the amount the inspection station remits to the DPS for a challenge test at an inspection station designated by the DPS, must be the same as the amounts set forth in subsection (a) of this section. The challenge fee must not be charged if the vehicle is retested within 15 days of the initial test.

(c) Inspection stations performing out

-of

-cycle vehicle emissions inspections for
the state's remote sensing elemen t must charge a motorist for an out

-of

-cycle emissions inspection in the amount specified in subsection (a) of this section resulting from written notification that subject vehicle failed on

-road testing. If the vehicle passes the vehicle emissions inspection, the vehicle owner may request reimbursement from the
DPS.

(d) Beginning on the single sticker transition date as defined in §114.1 of this title, vehicle owners shall remit as part of the annual vehicle registration fee collected by the Texas Department of Motor Vehicles (DMV) or county tax assessor

-collector the amount

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of the vehicle emissions inspection fee that is required to be remitted to the state

. [, as specified by the following requirements:]

(1) In El Paso County, the following requirement s apply. [vehicle owners shall remit $2.50 for motor vehicles subject to vehicle emissions inspections to the DMV or county tax assessor

-collector at the time of the annual vehicle registration as part of the vehicle emissions inspection fee. If the El Paso County Commissioners Court adopts a resolution that is approved by the commission to participate in the Low Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program, vehicle owners shall remit $4.50 for motor vehicles subject to vehicles emissions inspections to the DMV or county tax assessor

-collector at the time of the annual vehicle registration as part of the vehicle emissions inspection fee beginning upon the date specified by the commission.]

(A) If participating in the LIRAP, vehicle owners shall remit $4.50 for motor vehicles subject to vehicle emissions inspections to the DMV or county tax

assessor

-collector at the time of annual vehicle registration as part of the vehicle emissions inspection fee. Of the $4.50 remitted, $2.00 constitutes the LIRAP fee as defined in §114.7 of this title (relating to Low Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program Definitions).

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(B) If participating in the LIRAP and in the process of opting out, vehicle owners shall remit $4.50 for motor vehicles subject to vehicle emissions inspections to the DMV or county tax assessor

-collector at the time of annual vehicle registration as part of the vehicle emissions inspection fee until the LIRAP fee

termination effective date as defined in §114.7 of this title. Of the $4.50 remitted, $2.00 constitutes the LIRAP fee as defined in §114.7 of this title. Upon the LIRAP fee termination effective date, vehicle owners shall remit $2.50 for motor vehicles subjec t to vehicle emissions inspections to the DMV or county tax

-assessor

-collector at the time of annual vehicle registration as part of the vehicle emissions inspection fee.

(C) If not participating in the LIRAP, vehicle owners shall remit $2.50 for motor ve hicles subject to vehicle emissions inspections to the DMV or county

tax

-assessor

-collector at the time of annual vehicle registration as part of the vehicle emissions inspection fee.

(2) In the Dallas

-Fort Worth and the extended Dallas

-Fort Worth progra m

areas, the following requirements apply. [vehicle owners shall remit $2.50 for motor vehicles subject to ASM

-2 tests and $8.50 for motor vehicles subject to OBD tests to the DMV or county tax assessor

-collector at the time of the annual vehicle registration as part of the vehicle emissions inspection fee.]

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(A) Vehicle owners in counties participating in the LIRAP shall remit $2.50 for motor vehicles subject to ASM

-2 tests and $8.50 for motor vehicles subject to OBD tests to the DMV or county tax assessor

-collector at the time of annual vehicle registration as part of the vehicle emissions inspection fee. Of the $8.50 remitted for OBD tests, $6.00 constitutes the LIRAP fee as defined in §114.7 of this title.

(B) Vehicle owners in counties participating in the LIRAP that are in the process of opting out shall remit $2.50 for motor vehicles subject to ASM

-2 tests and $8.50 for motor vehicles subject to OBD tests to the DMV or county tax assessor

collector at the time of annual vehicle registration as part ofthe vehicle emissions inspection fee until the LIRAP fee termination effective date as defined in §114.7 of this title. Of the $8.50 remitted for OBD tests, $6.00 constitutes the LIRAP fee as defined in §114.7 of this title. Upon the LIRAP fee termination effective date, vehicle owners in participating counties that are in the process of opting out of the LIRAP shall remit $2.50 for motor vehicles subject to vehicle emissions inspections to the DMV or county

tax

-assessor

-collector at the time of annual veh icle registration as part of the vehicle emissions inspection fee.

(C) Vehicle owners in counties not participating in the LIRAP shall remit $2.50 for motor vehicles subject to vehicle emissions inspections to the DMV or

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county tax

-assessor

-collector at the time of annual vehicle registration as part of the vehicle emissions inspection fee.

(3) In the Houston

-Galveston

-Brazoria program area, the following requirements apply. [vehicle owners shall remit $2.50 for motor vehicles subject to
ASM

-2 tests and $8.50 for motor vehicles subject to OBD tests to the DMV or county tax

assessor

-collector at the time of the annual vehicle registration as part of the vehicle emissions inspection fee.]

(A) Vehicle owners in counties participating in the LIRAP shall
remit $2.50 for motor vehicles subject to ASM

-2 tests and $8.50 for motor vehicles subject to OBD tests to the DMV or county tax assessor

-collector at the time of annual vehicle registration as part of the vehicle emissions inspection fee. Of the $8.50 remitte d for OBD tests, $6.00 constitutes the LIRAP fee as defined in §114.7 of this title.

(B) Vehicle owners in counties participating in the LIRAP that are in the process of opting out shall remit $2.50 for motor vehicles subject to ASM

-2 tests and $8.50 for motor vehicles subject to OBD tests to the DMV or county tax assessor

collector at the time of annual vehicle registration as part of the vehicle emissions inspection fee until the LIRAP fee termination effective date as defined in §114.7 of this
title. Ofthe $8.50 remitted for OBD tests, $6.00 constitutes the LIRAP fee as defined in

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§114.7 of this title. Upon the LIRAP fee termination effective date, vehicle owners in participating counties that are in the process of opting out of the LIRAP shall remit $2.50 for motor vehicles subject to vehicle emissions inspections to the DMV or county

tax

-assessor

-collector at the time of annual vehicle registration as part of the vehicle emissions inspection fee.

(C) Vehicle owners in counties not participating in the LIRAP shall remit $2.50 for motor vehicles subject to vehicle emissions inspections to the DMV or county tax

-assessor

-collector at the time of annual vehicle registration as part of the vehicle emissions inspection fee.

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SUBCHAPTER C: VEHICLE INSPECTION AND MAINTENANCE; LOW INCOME VEHICLE REPAIR ASSISTANCE, RETROFIT, AND ACCELERATED VEHICLE RETIREMENT PROGRAM; AND EARLY ACTION COMPACT
COUNTIES DIVISION 2: LOW INCOME VEHICLE REPAIR ASSISTANCE, RETROFIT,
AND ACCELERATED VEHICLE RETIREMENT PROGRAM §§114.60, 114.62, 114.64, 114.70

Statutory Authority
The amendments are adopted under Texas Water Code (TWC), §5.102, concerning General Powers, that provides the commission with the general powers to carry out its duties under the TWC; TWC, §5.103, concerning Rules, that authorizes the commission to adopt rules necessary to carry out its powers and duties under the TWC; TWC, §5.105, concerning General Policy, that authorizes the commission by rule to establish and approve all general policy of the commission; and under Texas Health and Safety Code (THSC), §382.017, concerning Rules, that authorizes the commission to adopt rules consistent with the policy and purposes of the Texas Clean Air Act (TCAA). The
amendments are also adopted under THSC, §382.002, concerning Policy and Purpose,
that establishes the commission's purpose to safeguard the state's air resources, consistent with the protection of public health, general welfare, and physical property; THSC, §382.011, concerning General Powers and Duties, that authorizes the

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commission to control the quality of the state's air; and THSC, §382.012, concerning the State Air Control Plan, that authorizes the commission to prepare and develop a general, comprehensive plan for the proper control of the state's air. Additionally, the
amendments are adopted under THSC, §382.209, concerning the Low Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program (LIRAP), that authorizes the commission and the Public Safety Commission to adopt rules implementing the LIRAP; and THSC, §382.210, concerning Implementation Guidelines and Requirements for the LIRAP, that authorizes the commission to adopt rules creating guidelines to assist participating counties in implementing the LIRAP.

The adopted amendments implement THSC, §§382.002, 382.011, 382.012, 382.017, 382.209, and 382.210.

§114.60. Applicability for LIRAP.

(a) The provisions of §114.7 of this title (relating to Low Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program Definitions) and Division 2 of this subchapter (relating to Low Income Vehicle Repair Assistance, Retrofit, a nd Accelerated Vehicle Retirement Program) provide the minimum requirements for county implementation of a Low Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program (LIRAP) and apply to counties

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that implement a vehicle emissions inspection program and have elected to implement LIRAP provisions.

(b) To be eligible for assistance under this division, vehicles must be subject to §114.50(a) of this title (relating to Vehicle Emissions Inspection Requirements).

(c) LIRAP does not apply to a vehicle that is a:

(1) fleet vehicle;

(2) commercial vehicle;

(3) vehicle owned or leased by a governmental entity;

(4) vehicle registered as a classic motor vehicle as defined byTexas Transportation Code, §502.274;

(5) vehicle registered as an exhibition vehicle, including antique or military vehicles, as defined byTexas Transportation Code, §502.275; [or]

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(6) vehicle not regularly used for transportation during the normal course of daily activities; or[.]

(7) vehicle subje ct to §114.50(a) of this title that is registered in a non

participating county.

(d) A participating county must ensure that owners of vehicles under subsection (c) of this section do not receive monetary or compensatory assistance under LIRAP.

§114.62. LIRAP Funding.

(a) The executive director shall provide funding for the Low Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program (LIRAP) with available funds from fees collected under §114.53 of this title (relating to Inspection and Maintenance Fees) or other designated and available funds from participating counties

.

(b) The program shall be administered in accordance with Texas Government Code, Chapter 783. Programmatic costs may include call

-center management, application oversight, invoice analysis, education, outreach, and advertising.

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(c) A participating county shall receive, to the extent practicable, funds appropriated for the program [funding] in reasonable proportion to the amount in fees
collected in the pa rticipating [affected] county or area from emissions testing fees designated by the commission.

(d) In a county with a vehicle emissions inspection and maintenance program under Texas Health and Safety Code, §382.202 or §382.302, not more than 10 percent of the money provided for LIRAP may be used for administration of the program.

§114.64. LIRAP Requirements.

(a) Implementation. Participation in the Low Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program (LIRAP) is v oluntary. An affected county may choose to participate in the program at its discretion. Upon receiving a written request to participate in the LIRAP [implement a Low Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program (LIRAP)] by a county commissioners court, the executive director shall authorize the implementation of a LIRAP in the requesting county. The executive director and county shall enter into a grant contract for the implementation of the LIRAP.

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(1) The grant contract must provide conditions, requirements, and projected funding allowances for the implementation of the LIRAP.

(2) A participating county may contract with an entity approved by the executive director for services necessary to implement the LIRAP. A participating county or its designated entity shall demonstrate to the executive director that, at a minimum, the county or its designated entity has provided for appropriate measures for determining applicant eligibility and repair effectiveness and ens uring against fraud.

(3) The participating county shall remain the contracted entity even if the county contracts with another county or another entity approved by the executive
director to administer the LIRAP.

(b) Repair and retrofit assistance. A LIRAP must provide for monetary or other compensatory assistance to eligible vehicle owners for repairs directly related to bringing certain vehicles that have failed a required emissions test into compliance with emissions requirements or for installing retrofit equipment on vehicles that have failed a required emissions test, if practically and economically feasible, in lieu of or in combination with repairs performed to bring a vehicle into compliance with emissions requirements. Vehicles under the LIRAP must be repaired or retrofitted at a recognized emissions repair facility. To determine eligibility, the participating county or its

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designated entity shall make applications available for LIRAP participants. The application, at a minimum, must require the vehicle owner to demonstrate that:

(1) the vehicle has failed a vehicle emissions test within 30 days of application submittal;

(2) the vehicle can be driven under its own power to the emissions inspection station or vehicle retirement facility;

(3) the v ehicle is currently registered in and has been registered in
the participating program county for at least 12 of the 15 months immediately preceding the application for assistance;

(4) the vehicle has passed the safety portion of the Texas Department of
Public Safety (DPS) motor vehicle safety and emissions inspection as recorded in the Vehicle Inspection Report (VIR), or provide assurance that actions will be taken to bring the vehicle into compliance with safety requirements;

(5) the vehicle owner's net family income is at or below 300% of the federal poverty level; and

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(6) any other requirements of the participating county or the executive
director are met.

(c) Accelerated vehicle retirement. A LIRAP must provide monetary or other compensatory assista nce to eligible vehicle owners to be used toward the purchase of a replacement vehicle.

(1) To determine eligibility, the participating county or its designated entity shall make applications available for LIRAP participants. The application, at a
minimum, must require the vehicle owner to demonstrate that:

(A) the vehicle meets the requirements under subsection (b)(1) - (3) and (5) of this section;

(B) the vehicle has passed a DPS motor vehicle safety or safety and emissions inspection within 15 months prior to application submittal; and

(C) any other requirements of the participating county or the
executive director are met.

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(2) Eligible vehicle owners o f pre

- 1996 model year vehicles that pass the required United States Environmental Protection Agency (EPA) Start

-Up Acceleration Simulation Mode (ASM) standards emissions test, but would have failed the EPA Final ASM standards emissions test, or some other criteria determined by the commission, may be eligible for accelerated vehicle retirement and replacement compensation under
this section.

(3) Notwithstanding the vehicle requirement provided under subsection (b)(1) of this section, an eligible vehicle owner of a vehicle that is gasoline powered and is at least 10 years old as determined from the current calendar year (i.e., 2010 minus 10 years equals 2000) and meets the requirements under subsection (b)(2), (3), and (5) of this section, may be eligible fo r accelerated vehicle retirement and compensation.

(4) Replacement vehicles must:

(A) be in a class or category of vehicles that has been certified to meet federal Tier 2, Bin 5 or cleaner Bin certification under 40 Code of Federal Regulations §86.1811-04, as published in the February 10, 2000, issue of the Federal Register (65 FR 6698);

(B) have a gross vehicle weight rating of less than 10,000 pounds;

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(C) have an odometer reading of not more than 70,000 miles;

(D) be a vehicle, the total cost of whic h does not exceed $35,000 and up to $45,000 for hybrid, electric, or natural gas vehicles, or vehicles certified as Tier 2 Bin 3 or cleaner Bin certification under 40 Code of Federal Regulations §86.1811

- 04, as published in the February 10, 2000, issue ofthe Federal Register (65 FR 6698);
and

(E) have passed a DPS motor vehicle safety inspection or safety and emissions inspection within the 15

-month period before the application is submitted.

(d) Compensation. The participating county shall determine eligibility and approve or deny the application promptly. If the requirements of subsection (b) or (c) of this section are met and based on available funding, the county shall authorize monetary or other compensations to the eligible vehicle owner.

(1) Compe nsations must be:

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(A) no more than $600 and no less than $30 per vehicle to be used
for emission

-related repairs or retrofits performed at recognized emissions repair facilities, including diagnostics tests performed on the vehicle; or

(B) based on vehicle type and model year of a replacement vehicle for the accelerated retirement of a vehicle meeting the requirements under this subsection. Only one retirement compensation can be used toward one replacement vehicle annually per applicant. The maximum amount toward a replacement vehicle
must not exceed:

(i) $3,000 for a replacement car of the current model year or previous three model years, except as provided by clause (iii) of this subparagraph;

(ii) $3,000 for a replacement truck of the curren t model year or the previous two model years, except as provided by clause (iii) of this subparagraph;

(iii) $3,500 for a replacement hybrid, electric, natural gas,
and federal Tier 2 Bin 3 or cleaner Bin certification under 40 Code of Federal Regulations §86.1811-04, as published in the February 10, 2000, issue of the Federal Register (65 FR 6698) vehicle of the current model year or the three previous model
years.

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(2) Vehicle owners shall be responsible for paying the first $30 of
emission

-related repairs or retrofit costs that may include diagnostics tests performed
on the vehicle.

(3) For accelerated vehicle retirement, provided that the compensation levels in paragraph (1)(B) of this subsection are met and minimum eligibility requirements under subse ction (c) of this section are met, a participating county may set a specific level of compensation or implement a level of compensation schedule that allows flexibility. The following criteria may be used for determining the amount of
financial assistance:

(A) model year of the vehicle;

(B) miles registered on the vehicle's odometer;

(C) fair market value of the vehicle;

(D) estimated cost of emission

-related repairs necessary to bring the vehicle into compliance with emission standards;

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(E) amount ofmoney the vehicle owner has already spent to bring the vehicle into compliance, excluding the cost of the vehicle emissions inspection; and

(F) vehicle owner's income.

(e) Reimbursement for repairs and retrofits. A participating county shall
reimburse the appropriate recognized emissions repair facility for approved repairs and retrofits within 30 calendar days of receiving an invoice that meets the requirements of the county or designated entity. Repaired or retrofitted vehicles must pass a DPS safety and emissions inspection before the recognized emissions repair facility is reimbursed. In the event that the vehicle does not pass the emissions retest after diagnosed repairs are performed, the participating county has the discretion, on a case-by-case basis, to make payment for diagnosed emissions repair work performed.

(f) Reimbursements for replacements. A participating county shall ensure that funds are transferred to a participating automobile dealership no later than 10 business days after the coun ty receives proof of the sale, proof of transfer to a dismantler, and any administrative documents that meet the requirements of the county or designated entity. A list of all administrative documents must be included in the agreements that are entered into by the county or designated entity and the participating automobile dealerships.

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(1) A participating county shall provide an electronic means for distributing replacement funds to a participating automobile dealership once all program criteria have been met. The replacement funds may be used as a down payment toward the purchase of a replacement vehicle. Participating automobile dealers shall be located in the State of Texas. Participation in the LIRAP by an automobile dealer is voluntary.

(2) Participa ting counties shall develop a document for confirming a
person's eligibility for purchasing a replacement vehicle and for tracking such purchase.

(A) The document must include at a minimum, the full name of applicant, the vehicle identification number of the retired vehicle, expiration date of the document, the program administrator's contact information, and the amount of money available to the participating vehicle owner.

(B) The document must be presented to a participating dealer by the person seekingto purchase a replacement vehicle before entering into negotiations for a replacement vehicle.

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(C) A participating dealer who relies on the document issued by the participating county has no duty to confirm the eligibility of the person purchasing a replacement vehicle in the manner provided by this section.

(g) Opting out of the LIRAP. Participation in the LIRAP is voluntary. A participating county may opt out of the program. Procedures to release a participating county from the LIRAP shall be initiated upon the receipt of a written request to the executive director by the county commissioners court in a participating county.

(1) A written request to opt out of the LIRAP shall request release from the LIRAP fee as defined in §114.7 of this title (relating to Low Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program Definitions) and the grant contract established in subsection (a) of this section. The written request shall include one of the following possible LIRAP opt

-ou t effective dates as defined in §114.7
of this title:

(A) the LIRAP fee termination effective date as defined in §114.7 of this title; or

(B) the last day of the legislative biennium in which the LIRAP fee termination effective date as defined in §114.7of this title occurred.

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(2) Upon receipt of a written request to be released from participation in the LIRAP, the executive director shall notify, in writing, with a copy sent to the requesting county, the Texas Department of Motor Vehicles (DMV), DPS, and the Legislative Budget Board of Texas that the LIRAP fee should no longer be collected for vehicles undergoing inspection and registration in the affected county.

(3) A county opting out of the LIRAP remains a participating county until the LIRAP opt

-out effective date as defined in §114.7 of this title, on which date the county is no longer subject to the LIRAP fee, and the grant contract established in subsection (a) of this section is ended. Not more than 90 days after a county 's LIRAP opt

-out effective date, the unspent balance of allocated LIRAP funds for that county will be returned to the commission unless the county opting out has entered into an official
inter

-county elective agreement with other participating counties in the same region to
sha re allocated LIRAP funds. If the county opting out has entered into an official inter

county elective agreement with other participating counties in the same region to share allocated LIRAP funds, then the portion of LIRAP allocations that is shared and un spent as of the LIRAP opt

-out effective date will be redistributed among the remaining participating counties that are part of that agreement. This redistribution of funds will

occur not more than 90 days after a county 's LIRAP opt

-out effective date. On the

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LIRAP opt

-out effective date, any unspent balance of allocated funds shall be returned
to the commission.

§114.70. Records, Audits, and Enforcement.

(a) A participating county shall submit quarterly audit reports to ensure that the funds provided to implement the Low Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program (LIRAP) have been used in accordance with requirements of this division. The quarterly reports (September - November, December

- February, March - May, June - August) must be transmitted to the executive director in paper copies or in an electronic database format to be determined by mutual agreement between the state and the participating county no later than 30 days after the end of the quarter.

(b) At a minimum, the quarterly reports must include the following:

(1) name of the county department or entity implementing the program and their mailing address;

(2) name of the official representative of the county department or entity;

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(3) amount offunds received during the reporting period;

(4) amount distributed for repair assistance, retrofitting, accelerated retirement, and administrative costs;

(5) information regarding the recognized emissions repair facilities and vehicle retirement facilities participating in the LIRAP, including the number of approved assistance transactions, the amount of each transaction, and the total amounts paid to each facility;

(6) pending amount of funds that must be paid out;

(7) information for each vehicle participating in program, including:

(A) vehicle identification number (VIN);

(B) vehicle license plate number;

(C) name and business address of the Texas Department of Public Safety recognized emissions repair facility or vehicle retirement facility; and

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(D) date of vehicle repair, retrofit, or retirement; [and]

(8) information for each replacement vehicle including:

(A) VIN [vehicle identification number (VIN)];

(B) make of vehicle;

(C) model year;

(D) odometer reading;

(E) name and business address of seller; and

(9) any other information requested by the executive director.

(c) Records on LIRAP must be maintained for a minimum period of three years by a participating county, its designated entity, a participating recognized emissions repair facility, and a participating vehicle retirement facility. Upon the LIRAP opt out effective date as defined in §114.7 of this title (relating to Low Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program Definitions), the non

-

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participating county, its designated entity, a participating recognized emissions repair facility, and a participating vehicle retirement facility must maintain program records
for the non

-participating county for a period of three years. Such records must be available upon request by the executive director for auditing purposes.

(d) A participating county, its designated entity, a participating recognized emissions repair facility, and a participating vehicle retirement facility shall allow the executive director to conduct audits and inspections. For a period of three years after the LIRAP opt

-out effective date a s defined in §114.7 of this title, a non

-participating county, its designated entity, a participating recognized emissions repair facility, and a participating vehicle retirement facility shall allow the executive director to conduct audits and inspections of records from the non

-participating county.

(e) A person who, with intent to defraud, sells a vehicle in an accelerated vehicle retirement program under LIRAP commits an offense that is classified as a third degree felony.

(f) A person who causes, suffers, allows, or permits a violation of §114.66(c) and (d) of this title (relating to Disposition of Retired Vehicle) is subject to a civil penalty under Texas Water Code, Chapter 7, Subchapter D, [Chapter 7,] for each violation. A separate violation occurs with each fraudulent certification or prohibited resale.

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SUBCHAPTER C: VEHICLE INSPECTION AND MAINTENANCE; LOW INCOME VEHICLE REPAIR ASSISTANCE, RETROFIT, AND ACCELERATED VEHICLE RETIREMENT PROGRAM; AND EARLY ACTION COMPACT
COUNTIES
DIVISION 3: EARLY ACTION COMPACT COUNTIES §114.87

Statutory Authority
The amendment is adopted under Texas Water Code (TWC), §5.102, concerning General Powers, that provides the commission with the general powers to carry out its duties under the TWC; TWC, §5.103, concerning Rules, that authorizes the commission to adopt rules necessary to carry ou t its powers and duties under the TWC; TWC, §5.105, concerning General Policy, that authorizes the commission by rule to establish and approve all general policy of the commission; and under Texas Health and Safety Code (THSC), §382.017, concerning Rules, that authorizes the commission to adopt rules consistent with the policy and purposes of the Texas Clean Air Act. The amendment is also adopted under THSC, §382.002, concerning Policy and Purpose, that establishes
the commission's purpose to safeguard the state's air resources, consistent with the protection of public health, general welfare, and physical property; THSC, §382.011, concerning General Powers and Duties, that authorizes the commission to control the quality of the state's air; and THSC, §382.012, concerning the State Air Control Plan,

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that authorizes the commission to prepare and develop a general, comprehensive plan for the proper control of the state's air. Additionally, the amendment is adopted under THSC, §382.209, concerning the Low Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program (LIRAP), that authorizes the commission and the Public Safety Commission to adopt rules implementing the LIRAP; and THSC, §382.210, concerning Implementation Guidelines and Re quirements for the LIRAP, that authorizes the commission to adopt rules creating guidelines to assist participating counties in implementing the LIRAP.

The adopted amendment implements THSC, §§382.002, 382.011, 382.012, 382.017, 382.209, and 382.210.

§114.87. Inspection and Maintenance Fees.

(a) The following fees must be paid for an emissions inspection of a vehicle at an inspection station in an affected early action compact program county. This fee must include one free retest if the vehicle fails the emissions inspection, provided that the motorist has the retest performed at the same station where the vehicle originally failed; the motorist submits, prior to the retest, a properly completed vehicle repair form showing that emissions

-related repairs were performed; and the retest is conducted within 15 days of the initial emissions test. In Travis and Williamson Counties beginning

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September 1, 2005 and ending on the day before the single sticker transition date as defined in §114.1 of this title (relating to Definitions), any emissions inspection station required to conduct an emissions test in accordance with §114.80 of this title (relating to Applicability) must collect a fee not to exceed $16 and remit $4.50 to the Texas Department of Public Safety (DPS) for each on

-board diagnostic and two

-speed idle test. In Travis and Williamson Counties beginning on the single sticker transition date, any emissions inspection station required to conduct an emissions test in accordance with §114.80 of this title must collect a fee not to exceed $11.50 for each on

-board diagnostic
and two

-speed idle test.

(b) The per

-vehicle fee and the amount the inspection station remits to the DPS for a challenge test at an inspection station designated by the DPS must be the same as the amounts specified in subsection (a) of this section. The challenge fee must not be charged if the vehicle is retested within 15 days of the initial test.

(c) Inspection stations performing out

-of

-cycle vehicle emissions inspections resulting from written notification that the subject vehicle failed on

-road testing (remote sensing) must charge a motorist for an out

-of

-cycle emissions inspection in the amount specified in subsection (a) of this section. If the vehicle passes the vehicle emissions inspection, the vehicle owner may request reimbursement from the DPS.

## Texas Commission on Environmental Quality Page 78 Chapter 114 - Control of Air Pollution from Motor Vehicles Rule Project No. 2014

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(d) Beginning [Effective] on the single sticker transition date as defined in §114.1 of this title in Travis and Williamson Counties, the following requirements apply. [vehicle owners shall remit $4.50 for motor vehicles subject to vehicle emissions inspections to the Texas Department of Motor Vehicles or county tax assessor

-collector at the time of the annual vehicle registration as part of the vehicle emissions inspection fee.]

(1) Vehicle owners in counties participating in Low Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program (LIRAP) shall remit $4.50 for motor vehicles subject to vehicle emissions inspections to the Texas Department of Motor Ve hicles (DMV) or county tax assessor

-collector at the time of annual vehicle registration as part of the vehicle emissions inspection fee. Of the $4.50 remitted, $2.00 constitutes the LIRAP fee as defined in §114.7 of this title (relating to Low Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program Definitions).

(2) Vehicle owners in counties participating in the LIRAP and in the process of opting out shall remit $4.50 for motor vehicles subject to emissions inspection to th e DMV or county tax assessor

-collector at the time of annual vehicle registration as part of the vehicle emissions inspection fee until the LIRAP fee termination effective date as defined in §114.7 of this title. Of the $4.50 remitted, $2.00

## Texas Commission on Environmental Quality Page 79 Chapter 114 - Control of Air Pollution from Motor Vehicles Rule Project No. 2014

-027 -114-AI

constitutes th e LIRAP fee as defined in §114.7 of this title. Upon the LIRAP fee termination effective date, vehicle owners in participating counties that are in the process of opting out of the LIRAP shall remit $2.50 for motor vehicles subject to
vehicle emissions inspections to the DMV or county tax

-assessor

-collector at the time of annual vehicle registration as part of the vehicle emissions inspection fee.

(3) Vehicle owners in counties not participating in the LIRAP shall remit $2.50 for motor vehicles subject to vehicle emissions inspection to the DMV or county

tax

-assessor

-collector at the time of annual vehicle registration as part of the vehicle emissions inspection fee.THE STATE OF TEXAS 

# TEXAS COMMISSION ON ENVIRONMENTAL

# QutAE~lYEM~H~~s?s~Tiui~~~~RREc·cOPv

__ _ __ _ _ _ _ _ _ _ _ OOOCF ATEXAS COMMiSSION ON E&VIRONMHHAl**Q~Al!TY** h'\: E Op UMENT. l'lf!ICH ISFilEO IN THE PERMANENTRECORDS "o ' 

# "' 

# t\ MAY 06 2015

OF THE COMMISSION. GIVEN UNDER MY HA.ND AND THE SEAl OF OFFICE ON 

# 6 ,./

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# TEXAS**C~~~~~iJN y;r:~~~~~~~i~~;:~:** **~U;::;;-** 

## 0RDERAD0PTINGAl\fENDED RULES AND REVISIONS TO THE STATE IMPLEMENTATION PLAN
Docket No. 2014-0953-RUL Rule ProjectNo. 2014-027-114-AI


## On April29, 2015, the Texas Commission on Environmental Quality (Commission), during a public meeting, considered adoption ofamended§§ 114.2, 114.7, 114.53, 114.60, 114.62, 114.64, 114.70, and 114.87. The Commission adopted these amendments in 30 Texas Administrative Code Chapter 114, Control ofAir Pollution from Motor Vehicles, Subchapters A, Definitions, and C, Vehicle Inspection and Maintenance: Low-Income Vehicle RepairAssistance, Retrofit, andAccelerated Vehicle Retirement Program; and Early Action Compact Counties, and corresponding revisions to the state implementation plan (SIP). Sections 114.2, 114.53, and 114.87 are revisions to the state implementation plan SIP. The Commission adopted revisions to incorporate a procedure for counties to opt out ofthe Low Income Vehicle Repair Assistance, Retrofit, andAccelerated Vehicle Retirement Program (LIRAP) and to be released from program obligations, including remittance ofthe fee to fund the LIRAP. The Commission also adopted language that differentiates betv:een a LIRAP participating county and a non-participating county. UnderTex. Health &

## Safety Code Ann.§§ 382.011, 382.012, and 382.023 (West 2010), the Commission has the authority to control the quality ofthe state's air and to issue orders consistent vvith the policies and purposes ofthe Texas Clean Air Act, Chapter 382 ofthe Tex. Health &

## Safety Code. The proposed rules were published for comment in the December 5, 2014, issue ofthe Texas Register (39 TexReg 9468).
Pursuant to Tex. Health & 

## Safety Code Ann.§ 382.017 (West 2010), Tex. Gov't Code Ann. Chapter 2001 (West 2008), and 40 Code ofFederal Regulations§ 51.102, and after proper notice, the Commission offered a public hearing to consider the amended rules and revisions to the SIP; however the hearing was not openedbecause no one signed in to provide oral testimony. Proper notice included prominent advertisement in the areas affected atleast 30 days prior to the date ofthe hearing. A public hearing was noticed to be held inAustin, Texas onJanuary 5, 2015.
The Commission circulated hearing notices ofits intended action to the public, including interested persons, the Regional Administrator ofthe EPA, and all applicable local air pollution control agencies. The public was invited to submit data, views, and recommendations on the proposed amended rules and SIP revisions, either orally or in writing, at the hearing or during the comment period. Prior to the scheduled hearing, copies ofthe proposed amended rules and SIP re-visions were available for public inspection at the Commission's central office and on the Commission's website. Data, views, and recommendations ofinterested persons regarding the proposed amended rules and SIP re-visions were submitted to the Commission during the comment period, and were considered by the Commission as reflected in the analysis oftestimony incorporatedby reference to this Order. The Commission finds that the analysis oftestimony includes the names ofall interested groups or associations offering comment on the proposed amended rules and the SIP revisions and their position concerning the same.

## ··ITISTHEREFORE ORDERED BYTHE COMMISSIONthatthe amended rules andrevisions to the SIP incorporatedby reference to this Order are hereby adopted. The Commission further authorizes staffto make any non-substantive revisions to the rules necessary to comply-vvi.th 

## Texas Register**requirem~·nts.** 

## The adopted rules and the preambleto the adopted rules and the revisions to the SIP are incorporatedby reference in this Order as ifsetforth atlength verbatim in this Order

.



# . \ 

## IT IS FURTHER ORDERED BY THE COMMISSION that onbehalfofthe Commission, the Chairman should transmit a copy ofthis Order, together with the adopted rules and revisions to the SIP, to the Regional Administrator ofEPA C:lS 

## a proposed revision to the Texas SIP pursuantto the Federal CleanAir Act, codified at 42 U.S. Code Ann. §§ 

## 7401- 7671q, as amended.
This Order constitutes the Order ofthe Commission requiredby Tex. Gov't Code Ann., Chapter 2001 (\Nest 2008). If

## any portion ofthis Order is for any reason held to beinvalidby a court ofcompetent jurisdiction,the invalidity ofany portion shall not affect the validity ofthe remaining portions.

Issued date: 

# HAY 04 

# 2015

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY

### 22 TAC §663.19 The Texas Board of Professiona Land Surveying (Board) adopts an amendment to §663.19, c ncerning survey drawings/written/description/reports, without hanges to the proposed text as published in the December 5, 2 14, issue ofthe Texas Register (39 TexReg 9462). The amendment removed vag ness created by the phrase "if appropriate" formerly found in ubsection 

### (f). It was believed that land surveyors interpreted t e phrase as not having to show adjoiners on the survey report. he Board believes showing adjoiners on the survey report is a indication thatthe land surveyor has done his/her research on t e property being surveyed. No comments were received re arding adoption of the amendment. The rule amendment is adopted under Texas Occupations Code §1071.151 and Government C de §2001.004. The agency certifies that legal ounsel has reviewed the adoption and found it to be a valid e ercise of the agency's legal authority.
Filed with the Office of the Seer tary of State on April 30, 2015. TRD-201501523 Tony Estrada Executive Director Texas Board of Professional Land urveying Effective date: May 20, 2015 Proposal publication date: Decemb r 5, 2014 For further information, please call: (512) 239-5263 

# • • 

# • 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 (TCEQ, agency, or commission) adopts amendments to §§114.2, 114.7, 114.53, 114.60, 114.62, 114.64, 114.70, and 114.87. Section 114.64 is adopted with change to the proposed text as published in the December 5, 2014, issue of the Texas Register (39 TexReg 9468). Sections 114.2, 114.7, 114.53, 114.60, 114.62, 114.70, and 114.87 are adopted without changes to the proposed text and, therefore, will not be republished. Sections 114.2, 114.53, and 114.87 will be submitted to the United States Environmental Protection Agency (EPA) as a revision to the state implementation plan (SIP). Background and Summary of the Factual Basis for the Adopted Rules The commission adopts revisions to incorporate a procedure for counties to opt out of the Low Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program (LIRAP) and to be released from program obligations, including remittance of the fee to fund the LIRAP. The commission also



## 40 TexReg 2670 May 

## 15, 2015 Texas Register adopts language that differentiates between a LIRAP participating county and a non-participating county. The LIRAP was established to enhance the objectives of the Vehicle Inspection and Maintenance (1/M) Program. The 77th Texas Legislature, 2001, enacted House Bill (HB) 2134 to assist low income individuals with repairs, retrofits, or retirement of vehicles that fail emissions inspections. HB 2134 required the commission and the Texas Department of Public Safety (DPS), by rule, to provide the minimum guidelines by which eligible counties may implement the LIRAP. The commission, in coordination with DPS, adopted rules implementing HB 2134. The LIRAP is a voluntary program, and only those counties that have implemented vehicle emissions 1/M programs are eligible to participate in the LIRAP. 1/M program counties include Brazoria, Fort Bend, Galveston, Harris, and Montgomery Counties in the Houston-Galveston-Brazoria (HGB) area; Collin, Dallas, Denton, Ellis, Johnson, Kaufman, Parker, Rockwall, and Tarrant Counties in the Dallas-Fort Worth (DFW) area; Travis and Williamson Counties in the Austin-Round Rock (ARR) area; and El Paso County. To participate, an eligible county must submit a written request to the TCEQ from the county's commissioners court to implement the LIRAP. The TCEQ executive director and the participating county then enter into a grant contract for implementation of the program. The LIRAP is separated into two grant programs - Drive a Clean Machine (DACM) and local initiative projects (LIP). DACM funds provide monetary assistance to qualifying vehicle owners in participating counties for emission-related vehicle repair, retrofit, and replacement. LIP funds are granted to participating counties for use in approved projects focused on improving air quality in the program area. The LIRAP is funded through a fee (LIRAP fee) that is charged to vehicle owners in participating counties. The LIRAP fee is $6.00 in participating DFW and HGB-area counties, and it is charged to vehicle owners who receive on-board diagnostics (OBD) emissions inspection tests. The LIRAP fee is $2.00 in participating ARR-area counties, and it is charged to vehicle owners for any emissions inspection test performed. The LIRAP fee was remitted at authorized inspection stations during annual vehicle safety and emissions inspections until March 1, 2015. As of that date, the LIRAP fee is paid to the Texas Department of Motor Vehicles (DMV) or county tax assessor-collector during vehicle registration. This change is a result of a 2014 revision to Chapter 114, Subchapters A, B, and C (Rule Project Number 2013-035-114-AI), transitioning the state to a single sticker system for vehicle inspection and registration and implementing HB 2305, 83rd Texas Legislature, 2013. On April 28, 2014, the commission received Court Order No. 2014-221-04-21 from the Collin County Commissioners Court withdrawing the county from participation in the LIRAP. The court order was sent with a letter requesting that the commission release Collin County from program requirements, including collection of the LIRAP fee. At the time the LIRAP was established, the rules did not specify a procedure to allow participating counties to opt out of the program or to be released from the LIRAP fee requirement. This rulemaking provides Collin County or any participating county with a procedure for opting out ofthe LIRAP, which includes being released from collection of the LIRAP fee and ending of the contract between the county and the TCEQ executive director. This rulemaking amends Subchapter A to revise the definitions for the LIRAP to account for counties opting out ofthe program and adds four new definitions to further clarify program elements and differentiate between counties participat-ing in the LIRAP and non-participating counties. This rulemaking also amends Subchapter C, Divisions 1, 2, and 3. Division 1 is amended to specify the 1/M fees that apply in a participating nonattainment county, a county that is in the process of opting out of the LIRAP, and a non-participating nonattainment county. Division 2 is amended to provide a mechanism for participating nonattainment counties to opt out of the LIRAP, and Division 3 is amended to provide a mechanism for early action compact (EAC) counties to opt out of the LIRAP and accordingly, revise the 1/M fee requirements in §114.87. Section by Section Discussion In addition to the adopted amendments associated with providing a mechanism for counties to opt out of the LIRAP, various stylistic, non-substantive changes are included to update rule language to current Texas Register style and format requirements. Such changes include appropriate and consistent use of acronyms, section references, rule structure, and certain terminology. These changes are non-substantive and generally are not specifically discussed in this preamble. §114.2, Inspection and Maintenance Definitions The acronym for the Low Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program is replaced with the full program title to be consistent with the title of the referenced subchapter and Texas Register requirements. §114.7, Low Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program Definitions The title of §114.7 is corrected by amending the term "retrofit" to be singular. In addition, four definitions are added to §114.7 to clarify program requirements and differentiate between participating counties and non-participating counties. "LIRAP fee" is added as paragraph (13) to define the fee that vehicle owners in participating LIRAP counties pay when their vehicles receive certain emissions tests, OBD tests in DFW and HGB-area counties, and any emissions test in El Paso, Travis, and Williamson Counties. El Paso is currently a non-participating county. Assessment of the LIRAP fee is authorized by Texas Health and Safety Code (THSC), §382.202. "LIRAP fee termination date" is added as paragraph (14) to define the effective date upon which a county opting out of the LIRAP would no longer pay the LIRAP fee. "LIRAP opt-out effective date" is added as paragraph (15) to define the date upon which a county that was participating in the LIRAP becomes a non-participating county. Withdrawal from the program is effective on the date that both ofthe following requirements have been met: 1) the county is no longer subject to the LIRAP fee; and 2) the grant contract between the county and the TCEQ executive director that established participation in the program is ended. The grant contract cannot be ended before the LIRAP fee termination effective date. "Non-participating county" is added as paragraph (18) to differentiate between counties that are eligible to participate in the LIRAP but choose not to and eligible counties that participate in the LIRAP. The definition for "Participating county" is amended to clarify that a county that is in the process of opting out of the LIRAP will be considered a participating county until the LIRAP opt-out effective date. The definition for "Recognized emissions repair facility" is amended to replace the reference to 37 Texas Administrative Code (TAC) §23.93 with 37 TAC §23.51 as it replaced the former as of March 13, 2013. The remaining definitions in §114.7 are renumbered to accommodate the added definitions. §114.53, Inspection and Maintenance Fees Section 114.53(d)(1 ), (2), and (3) is amended to more fully describe the LIRAP fee as it relates to the vehicle 1/M programs in El Paso County and the DFW and HGB-area counties. Subparagraphs are added to §114.53(d)(1), (2), and (3) to explain remittance of 1/M fees, including the LIRAP fee, in a county participating in the LIRAP, a participating county that is in the process of opting out of the LIRAP, and a county that is not participating in the LIRAP and not subject to the LIRAP fee. Section 114.53(d)(1) is reorganized to allow the adopted subparagraphs to be consistent among the paragraphs of §114.53(d). The state fees vehicle owners pay during vehicle registration in participating counties, subparagraph (A) for each paragraph in §114.53(d), includes the LIRAP fee. The state fees vehicle owners pay during vehicle registration in participating counties that are in the process of opting out of the LIRAP, subparagraph (B) for each paragraph in §114.53(d), includes the LIRAP fee until the effective LIRAP fee termination date, after which state fees will not include the LIRAP fee. The state fees vehicle owners pay during vehicle registration in non-participating counties, subparagraph (C) for each paragraph in §114.53(d), does not include the LIRAP fee. §114.60, Applicability for LIRAP Section 114.60(c)(7) is added to specify that LIRAP requirements are not applicable to vehicles registered in counties that do not participate in the program. This addition clarifies that vehicles in non-participating counties are not subject to LIRAP requirements. §114.62, LIRAP Funding Section 114.62(a) is amended to clarify that the LIRAP is funded through money collected only in participating counties, and the term "participating" replaces "affected" in §114.62(c) for consistency in describing counties that participate in the program. §114.64, LIRAP Requirements The counties that are eligible to participate in the LIRAP are limited to those that are included in 1/M program areas, but no county is required to participate in the LIRAP. The original rule to implement the program included a procedure to allow counties to opt into the LIRAP, but it did not include a procedure to allow counties to opt out The adopted amendments to §114.64 establish a procedure for opting out of the LIRAP. The commission amends §114.64(a), concerning implementation of the LIRAP, to indicate that participation in the program is voluntary. The commission amends §114.64(b)(3) to clarify that vehicle repair and retrofit assistance through the DACM Program is only available for vehicles registered in participating LIRAP counties. The commission adds §114.64(g) to establish the procedure for opting out of the LIRAP. Section 114.64(g)(1) requires a county wishing to opt out ofthe program to submit awritten request from the county commissioners court to the TCEQ executive director, which is consistent with the process for opting into the LIRAP. The written request should include one of two possible LIRAP opt-out effective dates, either the LIRAP fee termination effective date orthe last day ofthe legislative biennium in which the LIRAP fee termination effective date occurs. The first option completely withdraws the opt-out county from the program on the same date



## ADOPTED RULES May 

## 15,2015 40 TexReg 2671that the county is no longer subject to the LIRAP fee. The second option extends the opt-out county's program participation past the LIRAP fee termination effective date to allow the county time to spend any remaining funds that have been allocated by the commission. Participation in the LIRAP makes grant funds available to counties for program-related projects and to qualified vehicle owners, and the LIRAP is funded through appropriations made by the legislature from Clean Air Account 151, into which LIRAP fees collected from county vehicle owners are deposited. Due to the program's reliance on public support, the commission requested public comment on the method and process by which counties wishing to opt into or out ofthe LIRAP would do so, including any associated public notice requirements. Adopted §114.64(g)(2) describes the procedure the commission will follow to release a county from LIRAP requirements upon receiving a written request from the county to opt out. Release from LIRAP requirements includes removing the LIRAP fee from the state fees charged to vehicle owners during vehicle registration, which requires the commission to coordinate with the DMV and DPS and to contact the Legislative Budget Board of Texas (LBB). The process to remove the LIRAP fee will be initiated upon receipt by the TCEQ executive director of a request from a county to opt out of the program. The DMV vehicle registration notices list charges for state inspection fees, which include the LIRAP fee in counties participating in the program. These fees are paid by vehicle owners when they register their vehicles. The DMV prints and distributes vehicle registration notices at least 90 days prior to registration expiration dates, so registration notices that include the LIRAP fee will be in circulation in an opt-out county for at least 90 days after the TCEQ initiates the fee removal process. The LIRAP fee will be effectively removed for an opt-out county once it is no longer included in the state fee charges that appear on vehicle registration notices in the affected county. For example, if the TCEQ executive director received a written request to withdraw from the program on August 1st, then the effective LIRAP fee termination date would be on or after December 1st because December would be the first month for which registration notices that did not include the LIRAP fee would be printed. The DMV prints registration notices mid-month, so a written request to withdraw that was received by the TCEQ executive director in mid-August would likely not result in the LIRAP fee being effectively terminated for the submitting county until, at the earliest, January 1st. The effective LIRAP fee termination date for a county opting out of the Ll RAP is the first day of the month for the month that the DMV issues registration notices that do not include the LIRAP fee. Until the LIRAP fee termination effective date, a county in the process of opting out of the LIRAP is still considered a participating county because the LIRAP fee cannot be assessed in a non-participating county. Depending upon the LIRAP opt-out effective date included in a county's written request to opt out of the program, the county could be completely withdrawn from the LIRAP on the LIRAP fee termination effective date, ending the contract between the county and the TCEQ executive director simultaneous with removal ofthe LIRAP fee. The county may instead choose to continue to participate in LIRAP activities without being subject to the LIRAP fee until the end of the legislative biennium in which the fee termination date occurs. Choosing the first option could end the county's participation in the LIRAP before all grant funds allocated to the county have been spent. The second option would allow a county the opportunity to continue LIRAP activities and spend previously allocated Ll

## 40 TexReg 2672 May 15, 2015 Texas Register RAP grant funds until the end ofthe biennium in which the LIRAP fee termination date occurred for that county. Adopted §114.64(g)(3) describes the LIRAP opt-out effective date, which is the date upon which a participating county is no longer subject to the LIRAP fee and the grant contract between the county and the TCEQ executive director is ended. On this date, the county becomes a non-participating county. The commission will allow a county wishing to opt out of the LIRAP a choice of two options in determining when the program is ended for that county, so there are two possible effective dates upon which a participating county becomes a non-participating county. The first occurs simultaneous with the LIRAP fee termination effective date, and the second occurs on the last day of the legislative biennium in which the LIRAP fee termination effective date occurs. The commission revises proposed §114.64(g)(3) in response to a comment received, which is discussed in the Response to Comments section of this preamble. Revised §114.64(g)(3) indicates that not more than 90 days after a county's LIRAP opt-out effective date, the unspent balance of allocated LIRAP funds for the opt-out county will be returned to the commission unless the county has entered into an official inter-county elective agreement with other participating counties in the same region to share allocated LIRAP funds. If an inter-county elective agreement exists, then the portion of LIRAP allocations that is shared and unspent as of the LIRAP opt-out effective date will be redistributed among the remaining participating counties that are part ofthat agreement. The redistribution of a county's allocated and unspent LIRAP funds will occur not more than 90 days after the county's LIRAP opt-out effective date. §114.70, Records, Audits, and Enforcement The commission amends §114.70(c) and (d) to incorporate recordkeeping and inspection requirements for counties that opt out of the LIRAP. Adopted §114.70(c) requires program participants in counties opting out of the LIRAP to maintain program records concerning the opt-out county for three years after the effective LIRAP opt-out date for the county. Program participants include the county, its designated entity, participating recognized emissions repair facilities, and participating vehicle retirement facilities. Adopted §114.70(d) requires that in the three-year period during which records must be kept after a county's LIRAP opt-out effective date, the TCEQ executive director must be allowed to conduct audits and inspections of the records kept concerning the opted out county by program participants. §114.87, Inspection and Maintenance Fees The commission amends §114.87 to apply the changes adopted in §114.53 to counties with early action compact programs that participate in the vehicle emissions 1/M program. Adopted §114.87(d)(1)- (3) explains remittance of liM fees, including the URAP fee, in a county participating in the LIRAP, a participating county that is in the process of opting out of the LIRAP, and a county that is not participating in the LIRAP and not subject to the LIRAP fee. The description of the state fees vehicle owners pay during vehicle registration in participating EAC counties, paragraph (1 ), includes the LIRAP fee. The description of the state fees vehicle owners pay during vehicle registration in participating EAC counties that are in the process of opting out of the LIRAP, paragraph (2), includes the LIRAP fee until the effective LIRAP fee termination date, after which state fees do not include the LIRAP fee. The description of the state fees vehicleowners pay during vehicle registration in non-participating EAC counties, paragraph (3), does not include the LIRAP fee. Final Regulatory Impact Determination The commission reviewed this rulemaking in light of the regulatory 1mpact analysis requirements of Texas Government Code §2001.0225 and determined that it does not meet the definition of a "major environmental rule" as defined in that statute. A "major environmental rule" means "a rule, the specific intent ofwhich is to protect the environment or reduce risks to human health from environmental exposure and that may adversely affect in a matenal_way the economy, a sector ofthe economy, productivity, competition, JObs, the environment, or the public health and safety of the state or a sector of the state." Additionally, this rulemaking does not meet any ofthe four applicability criteria for requiring a regulatory 1mpact analysis for a major environmental rule which are listed in Texas Government Code, §2001.0225(a). 'Texas Government Code, §2001.0225 applies only to a major environmental rule, the result ofwhich is to: _1) exceed a standard set by federal law, unless the rule IS spec1f1cally required by state law; 2) exceed an express requirement of state law, unless the rule is specifically required by federal law; 3) exceed a requirement of a delegation agreement or contract between the state and an agency or representative ofthe federal government to implement a state and federal program; or 4) adopt a rule solely under the general powers of the agency instead of under a specific state law. The amendments to Chapter 114 are adopted in accordance with HB 2134, which authorized the LIRAP found in THSC, Chapter 382. HB 2134 was enacted to enhance the objective ofthe vehicle emissions 

### liM program. The LIRAP provides financial assistance to low-income individuals for repair, retrofit, or retirement of vehicles that fail an emissions inspection. The rulemaking is not expected to adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the enVIronment, or the public health and safety ofthe state or a sector of the state. The rulemaking implements requirements of 42 United States Code (USC), §7410, which requires states to adopt a SIP that provides for the implementation, maintenance, and enforcement of the National Ambient Air Quality Standards (NAAQS) in each a1r quality control region of the state. The LIRAP was designed to enhance the objectives of the 1/M program, and the commission previously submitted the 1/M rules to the EPA as a revision to the Texas SIP, which the EPA approved effective July 25, 2014. While 42 USC, §7410 generally does not require specific programs, methods, or reductions in order to meet the standard the SIP must include enforceable emission limitations and

### othe~ control measures, means, or techniques (including economic incentives such as fees, marketable permits, and auctions ofemissions rights), as well as schedules and timetables for compliance asmay be necessary or appropriate to meet the applicable requirements ofth1s chapter (42 USC, Chapter 85). The provisions of the Federal Clean Air Act (FCAA) recognize that states are in the best position to determine what programs and controls are necessary or appropriate in order to meet the NAAQS. This flexibility allows states, affected industry, and the public to collaborate on the best methods for attaining the NAAQS for the specific regions in the state. Even though the FCAA allows states to develop their own programs, this flexibility does not relieve a state from developing a program that meets the requirements of 42 USC, §7410. States are not free to ignore the requirements of 42 USC, §7410 and must develop programs to assure that their contributions to nonattainment areas are reduced so that these areas can be brought into attainment on schedule. The requirement to provide a fiscal analysis of adopted regulations in the Texas Government Code was amended by Senate 8111 (SB) 633 dunng the 75th Texas Legislature, 1997. The intent of SB 633 was to require agencies to conduct a regulatory 1mpact analys1s ofextraordinary rules. These rules are identified in the statutory language as major environmental rules that will have a material adverse impact and will exceed a requirement of state law, federal law, or a delegated federal program, or are adopted solely under the general powers of the agency. With the understanding that this requirement would seldom apply, the**~om**miSSIOn prov1ded a cost estimate for SB 633 concluding that based ?n an assessment of rules adopted by the agency in the past: 1t IS not ant1c1pated that the bill will have significant fiscal Implications for the agency due to its limited application." The commiSSIOn also noted that the number of rules that would require assessment under the provisions of the bill was not large. Th1s conclus1on was based, in part, on the criteria set forth in the bill that exempted the adopted rules from the full analysis unless the rule was a major environmental rule that exceeds a federal law. As discussed earlier in this preamble, the FCAA does not always requ1re spec1f1c programs, methods, or reductions in order to meet the NAAQS; thus, states must develop programs for each area contributing to nonattainment to help ensure that those areas will meet the attainment deadlines. Because of the ongoing need to address nonattainment issues and to meet the requirements of 42 USC, §7410, the commission routinely proposes and adopts SIP rules. The legislature is presumed to understand this federal scheme. Ifeach rule adopted for inclusion in the Sl P was considered to be a major environmental rule that exceeds federal law, then every SIP rule would require the full regulatory Impact analysiS contemplated by SB 633. This conclusion is inconsistent with the conclusions reached by the commission in its cost estimate and by the LBB in its fiscal notes. Since the legislature IS presumed to understand the fiscal impacts of the bills it passes and that presumption is based on information provided by state agencies and the LBB, the commission believes that the intent of SB 633 was only to require the full regulatory impact analys1s for rules that are extraordinary in nature. While the SIP rules will have a broad impact, the impact is no greater than is necessary or appropriate to meet the requirements ofthe FCAA. For these reasons, rules adopted for inclusion in the SIP fall under the exception in Texas Government Code, §2001.0225(a) because they are required by federal law. The commission has consistently applied this construction to its rules since this statute was enacted in 1997. Since that time the legislature has revised the Texas Government Code but left this provision substantially un-amended. It is presumed that "when an agency interpretation is in effect at the time the legislature amends the laws without making substantial change in the statute, the legislature is deemed to have accepted the agency's Interpretation." Central Power& Light Co. v. Sharp, 919 S.W.2d 485,.489 (Tex. App. Austin 1995), writ denied with per curiam opm10n respecting anotherissue, 960 S.W2d 617 (Tex. 1997)· Bullock v. Marathon Oil Co., 798 S.W2d 353, 357 (Tex. App: Aust1n 1990, no wnt); Cf Humble Oil 

### & Refining Co. v. Calvert, 414 S.W2d 172 (Tex. 1967); Dudney v. State Farm Mut. Auto Ins. Co., 9 S.W.3d 884, 893 (Tex. App. Austin 2000); Southwestern Ltfe Ins. Co. 

### v. Montemayor, 24 S.W3d 581 (Tex. App. Austin 2000, pet. denied); and Coastallndust. Water Auth. v. Trinity Portland Cement Div., 563 S.W.2d 916 (Tex. 1978).



## ADOPTED RULES May 

## 15,2015 40 TexReg 2673The commission's interpretation of the regulatory impact analysis requirements is also supported by a change made to the Texas Administrative Procedure Act (APA) by the legislature in 1999. In an attempt to limit the number of rule challenges based upon APA requirements, the legislature clarified that state agencies are required to meet these sections of the APA against the standard of "substantial compliance." The legislature specifically identified Texas Government Code, §2001.0225, as falling under this standard. The commission has substantially complied with the requirements of Texas Government Code, §2001.0225. The specific intent of these adopted rules is to amend sections of the TAC, which would allow any participating county to opt out of the LIRAP, including the collection of the LIRAP fee collected at the time of vehicle registration, without a future rulemaking. By providing a mechanism for participating counties to opt out of the LIRAP, this rulemaking creates a more comprehensive program in accordance with the TCEQ's statutory obligation to create and implement the LIRAP. Additionally, even if the adopted rulemaking was a major environmental rule, it does not exceed a standard set by federal law or exceed an express requirement of state law. No contract or delegation agreement covers the topic that is the subject of this rulemaking. Therefore, this rulemaking is not subject to the regulatory analysis provisions of Texas Government Code, §2001.0225(b) because it does not meet the definition of a "major environmental rule," nor does it meet any of the four applicability criteria for a major environmental rule. The commission invited public comment regarding the draft regulatory impact analysis determination during the public comment period, and none were received. Takings Impact Assessment The commission evaluated the adopted rulemaking and performed an assessment of whether Texas Government Code, Chapter 2007 is applicable. The specific intent of these rules is to amend sections of the TAC, which will allow any participating county to opt out of the LIRAP, including the collection of program-related LIRAP fee, without a future rulemaking. The rules will substantially advance this stated purpose by amending sections in Chapter 114, Subchapters A and C to include revisions of the definitions and fees and to provide a mechanism for participating counties to opt out of the LIRAP. By providing a mechanism for participating counties to opt out of the LIRAP, this rulemaking creates a more comprehensive program in accord with the TCEQ's statutory obligation to create and implement the LIRAP. Texas Government Code, §2007.003(b)(4) provides that Texas Government Code, Chapter 2007 does not apply to this rulemaking because it is an action reasonably taken to fulfill an obligation mandated by state law. THSC, Chapter 382 requires the commission to establish and authorize the commissioners court of a participating county to implement a LIRAP subject to agency oversight that may include reasonable, periodic commission audits. Consequently, this rulemaking meets the exemption criteria in Texas Government Code, §2007.003(b)(4). Nevertheless, the commission further evaluated these adopted rules and performed an assessment of whether these rules constitute a "taking" under Texas Government Code, Chapter 2007. Promulgation and enforcement of these rules would be neither a statutory nor a constitutional taking of private real property. Specifically, the subject regulations do not affect a landowner's rights in private real property because this rulemaking does not burden (constitutionally), nor restrict or limit the owner's right to



## 40 TexReg 2674 May 15, 2015 Texas Register property and reduce its value by 25% or more beyond that which would otherwise exist in the absence of the regulations. These adopted rules create a voluntary program for counties in the state to participate in and opt out of the LIRAP. In addition, because the subject regulations do not provide more stringent requirements they do not burden, restrict, or limit an owner's right to property and reduce its value by 25% or more beyond that which would otherwise exist in the absence of the regulations. Therefore, these adopted rules do not constitute a taking under the Texas Government Code, Chapter 2007. For these reasons, Texas Government Code, Chapter 2007 does not apply to this rulemaking. Consistency with the Coastal Management Program The commission reviewed this rulemaking and found that it is identified in the Coastal Coordination Act Implementation Rules, 31 TAC §505.11(b)(4) relating to 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 ofthe Coastal Coordination Advisory Committee 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 therefore, is consistent with CMP goals and policies. The commission invited public comment regarding the consistency with the CMP during the public comment period, and none were received. Public Comment The comment period was from December 5, 2014 through January 9, 2015. The commission offered a public hearing on January 6, 2015, but it was not opened because no one signed up to provide oral testimony. The commission received written comments from the North Central Texas Council of Governments (NCTCOG) and the Transportation and Natural Resources Department ofTravis County (Travis County). In general, both commenters supported this rulemaking; however, NCTCOG recommended changes related to the distribution of funds and recordkeeping and auditing requirements. Response to Comments Comment Travis County supported the proposed rulemaking and added that it will benefit participating counties to have a formal procedure for opting out of the LIRAP that includes removing the LIRAP fee. Response The commission appreciates Travis County's support ofthis rulemaking and agrees that having a formal procedure to opt out of the LIRAP will benefit the counties that participate in the program. Comment NCTCOG agreed that counties opting out of the LIRAP should have options and commented that those provided in this rulemaking provide flexibility when it comes to spending allocated funds. ResponseThe commission appreciates NCTCOG's comment and agrees that a county opting out ofthe program should have options with regard to the use of allocated LIRAP funds. The commission's staffwill work closely with each opt-out county to help the county spend allocated LIRAP funds by the chosen LIRAP opt-out effective date. Comment NCTCOG commented that due to an agreement among the participating DFW counties to share LIRAP funds, which is facilitated by NCTCOG, it would be complicated to require an opt-out county to return unspent allocations to the TCEQ upon a county's LIRAP opt-out effective date. NCTCOG recommended that the TCEQ amend its proposal to allow the redistribution ofan opt-out county's unspent allocations to other participating counties within the region. Response The commission has amended proposed §114.64(g)(3) to specify that unspent allocations will be returned to the commission not more than 90 days after a county's LIRAP opt-out effective date unless there is an official inter-county elective agreement that the opt-out county shares allocated LIRAP funds with other participating counties in the same region. Ifthere is an inter-county elective agreement, then not more than 90 days after a county's LIRAP opt-out effective date, the portion of LIRAP allocations that is shared and unspent as ofthe LIRAP opt-out effective date will be redistributed among the remaining participating counties that are part of the agreement. Comment NCTCOG recommended that the TCEQ develop a process to allow opt-out counties to spend all collected funds, appropriated and otherwise. NCTCOG commented that LIRAP fees are currently being collected in participating counties at a higher rate than what is appropriated by the legislature and that there is a large surplus of unappropriated funds. NCTCOG added that opt-out counties should be able to exhaust all collected funds, even after the LIRAP opt-out effective date. Response The commission has not made the suggested change to the rule. The LIRAP is a voluntary program, and a participating county may choose to opt out at its discretion. The opt-out process established in this rulemaking offers an opt-out county the choice of extending participation in the program beyond the date upon which the LIRAP fee is no longer collected, the LIRAP fee termination date. This allows the county to spend LIRAP grant funds that have been appropriated by the legislature and allocated by the commission. The commission only has the authority to allocate funds appropriated by the legislature to participating counties or an area specified by the legislature. Any future appropriations are unknown and are dependent upon the legislature, which appropriates funding for the LIRAP to the commission during each biennial session from Clean Air Account 151. Clean Air Account 151 is used to safeguard the air resources of the state, and LIRAP fees from vehicle owners in each participating county are deposited into the account as part of a county's participation in the program. LIRAP appropriations from Clean Air Account 151 are not identified by revenue source and county, and as such, it would not be possible to identify future LIRAP appropriations as corresponding to a county that has opted out of the program without additional statutory or appropriations direction. Comment NCTCOG recommended that the TCEQ alert all counties of any modifications to the LIRAP resulting from legislative action. Response The LIRAP has been modified by legislative action four times since the 77th Texas Legislature enacted HB 2134 in 2001. The commission has and will continue to notify counties of changes to the LIRAP that result from legislative action. Comment NCTCOG supported the amendment to §114.70(c) and (d) that will maintain program-related recordkeeping and auditing requirements related to an opt-out county after that county's opt-out effective date. NCTCOG recommended that the TCEQ add automobile dealerships to the list of entities that must comply with these requirements. Response The commission appreciates NCTCOG's support of the amendment to §114.70(c) and (d). However, the commission has not made the suggested change. The commission did not propose to revise §114.70 to require automobile dealerships to comply with program-related recordkeeping and auditing requirements. Adding automobile dealerships would impose new requirements that were not made available for public review and comment. Furthermore, the commission does not consider it necessary at this time to make automobile dealerships subject to LIRAP-related recordkeeping and auditing requirements. One of the LIRAP's main objectives is to repair or remove older, polluting vehicles from roadways in counties where vehicle emissions inspections are conducted. Participating automobile dealerships facilitate the purchase of replacement vehicles by eligible applicants in exchange for those applicants' retired vehicles. Under the program, replacement vehicles are partially paid for with vouchers representing DACM grant funds. Dealerships transfer retired vehicles to participating dismantlers and return the vouchers and retired vehicle information to the program administrator for reimbursement. Participating dismantlers and program administrators are subject to §114.70 requirements. Dismantlers provide proof that retired vehicles have been destroyed, and program administrators maintain records for the entire DACM process. Comment NCTCOG agreed that the opt-out time frame was reasonable based on the various processes that must be undertaken by the TCEQ, DMV, and DPS. Response The commission appreciates NCTCOG's assessment that the LIRAP fee termination process, including the time frame, is reasonable. Comment NCTCOG was disappointed that the TCEQ did not hold a public hearing in the DFW region since the rulemaking was initiated by Collin County's request to opt out of LIRAP. Response While the commission appreciates that Collin County made the original request for opt-out that prompted this rulemaking, the commission must also balance both resource availability and the necessity for holding public hearings in various areas of the



## ADOPTED RULES May 

## 15, 2015 40 TexReg 2675state. For rules that apply statewide, the commission has regularly held public hearings in Austin or in Austin and other parts of the state. 

## SUBCHAPTER A. DEFINITIONS 30 TAC §114.2, §114.7 Statutory Authority The amendments are adopted under Texas Water Code (TWC), §5.1 02, concerning General Powers, that provides the commission with the general powers to carry out its duties under the TWC; TWC, §5.1 03, concerning Rules, that authorizes the commission to adopt rules necessary to carry out its powers and duties under the TWC; TWC, §5.1 05, concerning General Policy, that authorizes the commission by rule to establish and approve all general policy of the commission; and under Texas Health and Safety Code (THSC), §382.017, concerning Rules, that authorizes the commission to adopt rules consistent with the policy and purposes of the Texas Clean Air Act. The amendments are also adopted under THSC, §382.002, concerning Policy and Purpose, that establishes the commission's purpose to safeguard the state's air resources, consistent with the protection of public health, general welfare, and physical property; THSC, §382.011, concerning General Powers and Duties, that authorizes the commission to control the quality of the state's air; and THSC, §382.012, concerning the State Air Control Plan, that authorizes the commission to prepare and develop a general, comprehensive plan for the proper control of the state's air. Additionally, the amendments are adopted under THSC, §382.209, concerning the Low Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program (LIRAP), that authorizes the commission and the Public Safety Commission to adopt rules implementing the LIRAP; and THSC, §382.210, concerning Implementation Guidelines and Requirements for the LIRAP, that authorizes the commission to adopt rules creating guidelines to assist participating counties in implementing the LIRAP. The adopted amendments implement THSC, §§382.002, 382.011, 382.012, 382.017, 382.209, and 382.210. The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority. · Filed with the Office of the Secretary of State on May 1, 2015. TRD-201501527 Robert Martinez Director, Environmental Law Division Texas Commission on Environmental Quality Effective date: May 21, 2015 Proposal publication date: December 5, 2014 For further information, please call: (512) 239-6812 

## t t t SUBCHAPTER C. VEHICLE INSPECTION AND MAINTENANCE; LOW INCOME VEHICLE REPAIR ASSISTANCE, RETROFIT, AND ACCELERATED VEHICLE RETIREMENT PROGRAM; AND EARLY ACTION COMPACT COUNTIES



## 40 TexReg 2676 May 15, 2015 Texas Register DIVISION 1. VEHICLE INSPECTION AND MAINTENANCE 30 TAC §114.53 Statutory Authority The amendment is adopted under Texas Water Code (TWC), §5.1 02, concerning General Powers, that provides the commission with the general powers to carry out its duties under the TWC; TWC, §5.1 03, concerning Rules, that authorizes the commission to adopt rules necessary to carry out its powers and duties under the TWC; TWC, §5.1 05, concerning General Policy, that authorizes the commission by rule to establish and approve all general policy of the commission; and under Texas Health and Safety Code (THSC), §382.017, concerning Rules, that authorizes the commission to adopt rules consistent with the policy and purposes ofthe Texas Clean Air Act. The amendment is also adopted under THSC, §382.002, concerning Policy and Purpose, that establishes the commission's purpose to safeguard the state's air resources, consistent with the protection of public health, general welfare, and physical property; THSC, §382.011, concerning General Powers and Duties, that authorizes the commission to control the quality of the state's air; and THSC, §382.012, concerning the State Air Control Plan, that authorizes the commission to prepare and develop a general, comprehensive plan for the proper control of the state's air. Additionally, the amendment is adopted under THSC, §382.209, concerning the Low Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program (LIRAP), that authorizes the commission and the Public Safety Commission to adopt rules implementing the LIRAP; and THSC, §382.210, concerning Implementation Guidelines and Requirements for the Ll RAP, that authorizes the commission to adopt rules creating guidelines to assist participating counties in implementing the LIRAP. The adopted amendment implements THSC, §§382.002, 382.011, 382.012, 382.017, 382.209, and 382.210. The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on May 1, 2015. TRD-201501528 Robert Martinez Director, Environmental Law Division Texas Commission on Environmental Quality Effective date: May 21, 2015 Proposal publication date: December 5, 2014 For further information, please call: (512) 239-6812



## DIVISION 2. LOW INCOME VEHICLE REPAIR ASSISTANCE, RETROFIT, AND ACCELERATED VEHICLE RETIREMENT PROGRAM 30 TAC §§114.60, 114.62, 114.64, 114.70 Statutory Authority The amendments are adopted under Texas Water Code (TWC), §5.1 02, concerning General Powers, that provides the commission with the general powers to carry out its duties under the TWC; TWC, §5.1 03, concerning Rules, that authorizes the com-mission to adopt rules necessary to carry out its powers and duties under the TWC; TWC, §5.1 05, concerning General Policy, that authorizes the commission by rule to establish and approve all general policy of the commission; and under Texas Health and Safety Code (THSC), §382.017, concerning Rules, that authorizes the commission to adopt rules consistent with the policy and purposes of the Texas Clean Air Act (TCAA). The amendments are also adopted underTHSC, §382.002, concerning Policy and Purpose, that establishes the commission's purpose to safeguard the state's air resources, consistent with the protection of public health, general welfare, and physical property; THSC, §382.011, concerning General Powers and Duties, that authorizes the commission to control the quality of the state's air; and THSC, §382.012, concerning the State Air Control Plan, that authorizes the commission to prepare and develop a general, comprehensive plan for the proper control of the state's air. Additionally, the amendments are adopted under THSC, §382.209, concerning the Low Income Vehicle RepairAssistance, Retrofit, and Accelerated Vehicle Retirement Program (LIRAP), that authorizes the commission and the Public Safety Commission to adopt rules implementing the LIRAP; and THSC, §382.210, concerning Implementation Guidelines and Requirements for the LIRAP, that authorizes the commission to adopt rules creating guidelines to assist participating counties in implementing the LIRAP. The adopted amendments implement THSC, §§382.002, 382.011, 382.012, 382.017, 382.209, and 382.210. §11-4.64. LIRAP Requirements. (a) Implementation. Pmiicipation in the Low Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program (LIRAP) is voluntary. An aflected county may choose to participate in the program at its discretion. Upon receiving a written request to pmiicipate in the LIRAP by a county commissioners court, the executive director shall authorize the implementation ofa LIRAP in the requesting county. The executive director and county shall enter into a grant contract for the implementation ofthe LIRAP. (I) The grant contract must provide conditions, requirements, and projected funding allowances for the implementation ofthe LIRAP. (2) A participating county may contract with an entity approved by the executive director for services necessary to implement the LIRAP. A pmiicipating county or its designated entity shall demonstrate to the executive director that, at a minimum, the county or its designated entity has provided for appropriate measures for determining applicant eligibility and repair effectiveness and ensuring against fraud. (3) The participating county shall remainthe contractedentity even ifthe county contracts with another county or another entity approved by the executive director to administer the L!RAP. (b) Repair and retrofit assistance. A LIRAP must provide for monetary or other compensatory assistance to eligible vehicle owners for repairs directly related to bringing certain vehicles that have failed a required emissions test into compliance with emissions requirements or for installing retrofit equipment on vehicles that have failed a required emissions test, if practically and economically feasible, in lieu of or in combination with repairs performed to bring a vehicle into compliance with emissions requirements. Vehicles under the LIRAP must be repaired or retrofitted at a recognized emissions repair facility. To determine eligibility, the participating county or its designated entity shall make applications available for LIRAP participants. The application, at a minimum, must require the vehicle ownerto demonstrate that: (I) the vehicle has failed a vehicle emissions test within 30 clays ofapplication submittal; (2) the v-ehicle can be driven under its own power to the emissions inspection station or vehicle retirement facility; (3) the vehicle is currently registered in and has been registered in the participating program county for at least 12 of the 15 months immediately preceding the application for assistance; (4) the vehicle has passed the safety portion of the Texas Department ofPublic Safety (DPS) motor vehicle safety and emissions inspection as recorded in the Vehicle Inspection RepOii (VIR), or provide assurance that actions will be taken to bring the vehicle into compliance \Vith safety requirements; (5) the vehicle owner's net family income is at or below 300% ofthe federal poverty level; and (6) any other requirements of the participating county or the executive director are met. (c) Accelerated Yehicle retirement. A LlR.i'I.P must provide monetary or other compensatory assistance to eligible vehicle owners to be used toward the purchase ofa replacement vehicle. (I) To determine eligibility, the participating county or its designated entit} shall make applications available for LIRAP participants. The application, at a minimum, must require the vehicle owner to demonstrate that: (A) the vehicle meets the requirements under subsection (b)(!)- (3) and (5) ofthis section; (B) the vehicle has passed a DPS motor vehicle safety
or safety and emissions inspection within 15 months prior to application submittal: and (C) any other requirements ofthe pmiicipating county or the executive director are met. (2) Eligible vehicle owners of pre-1996 model year vehicles that pass the required Unitecl States Environmental Protection Agency (EPA) Stmi-Up Acceleration Simulation Mode (ASM) standards emissions test. but would have failed the EPA Final ASM standards emissions test, or some other criteria determined by the commission, may be eligible for accelerated vehicle retirement and replacement compensation under this section. (3) Notwithstanding the vehicle requirement provided under subsection (b)( I) ofthis section, an eligible vehicle owner ofavehicle that is gasoline powered and is at least I0 years old as determined from the current calendar year (i.e., 2010 minus 10 years equals 2000) and meets the requirements under subsection (b)(2), (3). and (5) ofthis section, may be eligible for accelerated vehicle retirement and compensation.(4) Replacement vehicles must: (A) be in a class or category ofvehicles that has been certified to meet federal Tier 2, Bin 5 or cleaner Bin certification under 40 Code ofFecleral Regulations §86.1811-04, as published in the February I0, 2000, issue ofthe Federal Register (65 FR 6698); (B) have a gross vehicle weight rating of less than 10,000 pounds; (C) have an odometer reading ofnot more than 70,000 miles; (D) be a vehicle, the total cost ofwhich does not exceed $35,000 and up to $45,000 for hybrid, electric, or natural gas vehicles,
or vehicles certified as Tier 2 Bin 3 or cleaner Bin certification under 40



## ADOPTED RULES May 

## 15, 2015 40 TexReg 2677Code ofFederal Regulations §86.1811-04, as published in the February 10, 2000, issue ofthe Federal Register (65 FR 6698); and (E) have passed a DPS motor vehicle safety inspection
or safety and emissions inspection within the IS-month period before the application is submitted. (d) Compensation. The participating county shall determine eligibility and approve or deny the application promptly. If the requirements ofsubsection (b) or (c) ofthis section are met and based on available funding, the county shall authorize monetary or other compensations to the eligible vehicle owner. (I) Compensations must be: (A) no more than $600 and no less than $30 per whicle to be used for emission-related repairs or retrofits performed at recognized emissions repair facilities, including diagnostics tests performed
on the vehicle; or (B) based on \ehicle type and model year ofa replacement vehicle tor the accelerated retirement ofa vehicle meeting therequirements under this subsection. Only one retirement compensation
can be used toward one replacement vehicle annually per applicant. The maximum amount toward a replacement vehicle must not exceed: (i) $3,000 for a replacement car ofthe cmTent model year or previous three model years, except as provided by clause (iii) ofthis subparagraph; (ii) $3,000 for a replacement truck of the current model year or the previous two model years, except as proYided by clause (iii) ofthis subparagraph; (iii) $3,500 for a replacement hybrid, electric, natural gas, and federal Tier 2 Bin 3 or cleaner Bin certification under 40 Code ofFederal Regulations §86.1811-04. as published in the February 10,2000, issue ofthe Federal Register (65 FR 6698) vehicle ofthe current model year or the three previous model years. (2) Vehicle ovmers shall be responsible tor paying the first $30 ofemission-related repairs or retrofit costs that may include diagnostics tests performed on the vehicle. (3) For accelerated vehicle retirement, provided that the compensation levels in paragraph (I)(B) ofthis subsection are met and minimum eligibility requirements under subsection (c) ofthis section
are met, a participating county may set a specific level ofcompensation
or implement a level ofcompensation schedule that allows flexibility. The following criteria may be used tor determining the amount offinancial assistance: (A) model year ofthe Yehicle; (B) miles registered on the vehicle's odometer; (C) fair market value ofthe vehicle: (D) estimated cost of emission-related repairs necessary to bring the vehicle into compliance with emission standards; (E) amount of money the vehicle owner has already spent to bring the vehicle into compliance, excluding the cost ofthe vehicle emissions inspection; and (F) vehicle ov.ner's income. (e) Reimbursement tor repairs and retrofits. A participating county shall reimburse the appropriate recognized emissions repair facility for approved repairs and retrofits within 30 calendar days ofreceiving an invoice that meets the requirements ofthe county or designated entity. Repaired or retrofitted vehicles must pass a DPS safety



## 40 TexReg 2678 May 

## 15, 2015 Texas Register and emissions inspection before the recognized emissions repair facility is reimbursed. In the event that the vehicle does not pass the emissions retest after diagnosed repairs are perfonned. the participating county has the discretion, on a case-by-case basis, to make payment for diagnosed emissions repair work performed. (t) Reimbursements tor replacements. A participating county shall ensure that funds are transfened to a participating automobile dealership no laterthan I0 business days afterthe county receives proof ofthe sale, proofoftransferto a dismantler, and any administrative documents that meet the requirements ofthe county or designated entity. A list of all administrative documents must be included in the agreements that are entered into by the county or designated entity and the pmiicipating automobile dealerships. (I) A participating county shall provide an electronic
means for distributing replacement funds to a participating automobile dealership once all program criteria have been met. The replacement funds may be used as a down payment to\Yard the purchase of a replacement vehicle. Participating automobile dealers shall be located in the State of Texas. Participation in the LIRAP by an automobile dealer is Yoluntary. (2) Participating counties shall develop a document for confirming a person's eligibility tor purchasing a replacement vehicle and for tracking such purchase. (A) The document must include at a minimum, the flill
name ofapplicant, the vehicle identification numberofthe retired vehicle, expiration date ofthe document, the program administrator's contact information, and the amountofmoney availableto the participating vehicle owner. (B) The document must be presented to a participating dealer by the person seeking to purchase a replacement vehicle before entering into negotiations for a replacement vehicle. (C) A participating dealer \\ho relies on the document issued by the participating county has no duty to confirm the eligibility ofthe person purchasing a replacement vehicle in the manner provided by this section. (g) Opting out ofthe LIRAP. Participation in the LIRAP is voluntary. A participating county may opt out ofthe program. Procedures to release a pmiicipating county from the LIRAP shall be initiated upon the receipt of a written request to the executive director by the county commissioners cou1i in a participating county. (I) A written request to opt out ofthe LIRAP shall request release from the LIRAP fee as defined in §114.7 ofthis title (relating to Low Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program Definitions) and the grant contract established in subsection (a) ofthis section. The written request shall include
one ofthe following possible LIRAP opt-out effective dates as defined in §114.7 ofthis title: (A) the LIR.AP fee termination etlective date as defined in §114.7 ofthis title; or (B) the last day ofthe legislatiw biennium in \vhich the LIRAP fee termination effective date as defined in§ 114.7 ofthis title occurred. (2) Upon receipt of a written request to be released from pmiicipation in the LIRAP, the executive director shall notify, in writing, with a copy sent to the requesting county, the Texas Depmiment ofMotor Vehicles (DMV), DPS, and the Legislative Budget Board of Texas that the LIRAP fee should no longer be collected for vehicles undergoing inspection and registration in the affected county.(3) A county opting out ofthe LIRAP remains a participating county until the LIRAP opt-out effective date as defined in §114.7 ofthis title, on which date the county is no longer subject to the LIRAP fee, and the grant contract established in subsection (a) ofthis section is ended. Not more than 90 days after a county's LIRAP opt-out effective date, the unspent balance ofallocated LIRAP funds for that county will be returned to the commission unless the county opting out has entered into an official inter-county elective agreement with other participating counties in the same region to share allocated LIRAP fhnds. If the county opting out has entered into an official inter-county elective agreement with other participating counties in the same region to share allocated LIRAP funds, then the portion ofLIRAP allocations that is shared and unspent as ofthe LIRAP opt-out efiective date will be redistributed among the remaining participating counties that are part of that agreement. This redistribution offunds will occur not more than 90 days after a county's LIRAP opt-out effective date. The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on May 1, 2015. TRD-201501529 Robert Martinez Director, Environmental Law Division Texas Commission on Environmental Quality Effective date: May 21, 2015 Proposal publication date: December 5, 2014 For further information, please call: (512) 239-6812



## DIVISION 3. COUNTIES 30 TAC §114.87 Statutory Authority

# • 

# • • EARLY ACTION COMPACT

The amendment is adopted under Texas Water Code (TWC), §5.1 02, concerning General Powers, that provides the commission with the general powers to carry out its duties under the TWC; TWC, §5.1 03, concerning Rules, that authorizes the commission to adopt rules necessary to carry out its powers and duties under the TWC; TWC, §5.1 05, concerning General Policy, that authorizes the commission by rule to establish and approve all general policy of the commission; and under Texas Health and Safety Code (THSC), §382.017, concerning Rules, that authorizes the commission to adopt rules consistent with the policy and purposes of the Texas Clean AirAct. The amendment is also adopted under THSC, §382.002, concerning Policy and Purpose, that establishes the commission's purpose to safeguard the state's air resources, consistent with the protection of public health, general welfare, and physical property; THSC, §382. 011, concerning General Powers and Duties, that authorizes the commission to control the quality of the state's air; and THSC, §382.012, concerning the State Air Control Plan, that authorizes the commission to prepare and develop a general, comprehensive plan for the proper control of the state's air. Additionally, the amendment is adopted under THSC, §382.209, concerning the Low Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program (LIRAP), that authorizes the commission and the Public Safety Commission to adopt rules implementing the LIRAP; and THSC, §382.21 0, concerning Implementation Guidelines and Requirements for the LIRAP, that authorizes the commission to adopt rules creating guidelines to assist participating counties in implementing the LIRAP. The adopted amendment implements THSC, §§382.002, 382.011, 382.012, 382.017, 382.209, and 382.210. The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on May 1, 2015. TRD-201501530 Robert Martinez Director, Environmental Law Division Texas Commission on Environmental Quality Effective date: May 21, 2015 Proposal publication date: December 5, 2014 For further information, please call: (512) 239-6812 

# • + TITLE 40. TANCE 

# + SOCIAL RVICES AND ASSIS
# PART 2. DEPART NT OF ASSISTIVE AND REHABILITAT VE SERVICES CHAPTER 109. FOR DEAF AND HARD OF HEARING S RVICES SUBCHAPTER C. IALIZED TELECOMMUNICATIO S ASSISTANCE PROGRAM 40 TAC §§109.501, 109.503, 09.505, 109.507, 109.509, 109.511, 109.513, 109.515, 10 .517, 109.521, 109.523, 109.525, 109.527, 109.529, 10 .531, 109.533 The Texas Health and Human Services Commission (HHSC), on behalf of the Texas Depart ent of Assistive and Rehabilitative Services (OARS), adopts mendments to Subchapter C, Specialized Telecommunicatio s Assistance Program "STAP", §109.501, concerning Purpos ; §1 09.503, concerning Legal Authority; §1 09.505, concernin Definitions; §1 09.507, concerning Determination of Basic S ecialized Telecommunications Equipment or Service; §109.5 9, concerning Preliminary and Comprehensive Assessment; 109.511, concerning Voucher Recipient Eligibility; §109.513, oncerning Persons Authorized to Certify Disability; §1 09.51 , concerning Vouchers; and §1 09.517, concerning Determin tion of Voucher Category Value and Eligibility Criteria for aVo cher; and new rules §109.521, concerning Determination of A proved Equipment or Services; §109.523, concerning Reimbu ement Amounts for Approved Equipment or Services; §109. 25, concerning STAP Vendor Eligibility Requirements; §109. 27. concerning STAP Vendor Duties and Responsibilities; 109.529, concerning Voucher Reimbursement; §109.531, co cerning Suspension or Loss of STAP Vendor Eligibility; and § 09.533, concerning Reinstatement of STAP Vendors. Sect ons 109.513 and 109.529 are adopted with changes to the p posed text as published in the November 21, 2014, issue of he Texas Register (39 TexReg 9183) and will be republished Sections 109.501, 109.503, 109.505, 109.507, 109.509, 109.511, 109.515, 109.517, 109.521, 109.523, 109.525, 10 .527, 109.531, and 109.533 are



## ADOPTED RULES May 

## 15,2015 40 TexReg 2679