Proposed Rules Title 37

TITLE 37. PUBLIC SAFETY AND CORRECTIONS

PART 1. TEXAS DEPARTMENT OF PUBLIC SAFETY

SUBCHAPTER E. VEHICLE EMISSIONS INSPECTION AND MAINTENANCE PROGRAM

The Texas Department of Public Safety (the department) proposes amendments to §23.55, concerning Certified Emissions Inspection Station and Inspector Requirements, by adding language which makes clear that emissions testing equipment must stay at the department-approved location and requiring that certified emissions inspection stations obtain and maintain a single static Internet Protocol (IP) address for purposes of the submission of vehicle emissions inspection results to the Texas Information Management System (TIMS) vehicle identification database. Requiring the use of a single static IP address will provide greater security and stability, decrease the potential for the interruption of service, reduce the potential for fraud, and enhance the department's oversight of the emissions inspection program.

Suzy Whittenton, Chief Financial Officer, has determined that for each year of the first five-year period this rule is in effect there will be no fiscal implications for state or local government or local economies. There is no anticipated negative impact on local employment.

Ms. Whittenton has determined that the proposed amendments may result in additional costs for small business and micro-business emission testing stations required to comply with the section as proposed, but there will be no adverse economic effect on rural communities.

The estimated number of licensed emissions inspection stations as of January 22, 2024, is 5,205. There are at least 109 inspection stations with more than 20 licensed vehicle inspectors; the remaining 5,096 stations have fewer than 20 inspectors. It is not possible, however, to provide a definite number of employees as this number does not reflect the number of unregulated employees in addition to the licensed inspectors. The department has no data on the annual gross receipts of these businesses. Therefore, it is assumed that the majority of licensed emissions inspection stations are micro-businesses rather than small businesses, with 109 small businesses and 5,096 micro-businesses likely subject to the new rule. The department has tried to minimize costs to licensed emissions inspection stations businesses. The new proposed requirements are designed to be the minimum standard that will provide greater security and stability, decrease the potential for the interruption of service, reduce the potential for fraud, and protect the public health, safety, and environmental welfare of the state. The estimated economic impact for a single static IP address as an add-on to an existing internet service provider contract is $15-$20 per month. Assuming $20 per month, the two year fiscal impact would be $480 per inspection station.

Under Government Code §2006.002, the department must perform a regulatory flexibility analysis. The department considered alternatives such as not adopting amendments, gradually phasing in the requirement, or creating exceptions for smaller stations such as single owner/operator inspection stations. However, the department has rejected these three options for the following reasons. First, requiring a single, static IP address for the inspection stations prevents one method by which certain emissions inspection stations engage in fraudulent vehicle emissions inspections. Second, any delay in implementing this change enables the continuation of fraudulent activity, interferes with the administration of the emissions inspection program, and negatively affects air quality and public health. Finally, the inspection stations found to be committing fraudulent emissions inspections are disproportionately small, single owner stations with very few employees. The department, therefore, does not believe it is feasible to waive or limit the requirements of the proposed amendments for small or micro-business emission inspection stations. The economic impact of $15-20 per month to the small and micro-businesses is negligible in comparison to the benefit of the program and public health. In addition, Government Code §2006.002(c-1) does not require the department to consider alternatives that might minimize possible adverse impacts on small businesses, micro-businesses, or rural communities if the alternatives would not be protective of the health, safety, and environmental welfare of the state.

Ms. Whittenton has determined that for each year of the first five-year period the rule is in effect the public benefit anticipated as a result of this rule will be enhanced administrative enforcement against vehicle inspectors and inspection station owners responsible for fraudulent vehicle emissions inspections and improved public health and safety, all while carefully considering potential costs to emission inspection stations consistent with department responsibilities.

The department has determined this proposal is not a "major environmental rule" as defined by Texas Government Code, §2001.0225. "Major environmental rule" means a rule the specific intent of which is to protect the environment or reduce risks to human health from environmental exposure and that may adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. This proposal is not specifically intended to protect the environment or reduce risks to human health from environmental exposure.

The department has determined that Chapter 2007 of the Texas Government Code does not apply to this proposal. Accordingly, the department is not required to complete a takings impact assessment regarding this proposal.

The department prepared a Government Growth Impact Statement assessment for this proposed rulemaking. The proposed rulemaking does not create or eliminate a government program; will not require the creation of new employee positions nor eliminate current employee positions; will not require an increase or decrease in future legislative appropriations to the agency; nor will it require an increase or decrease in fees paid to the agency. The proposed rulemaking does not create a new regulation. The proposed rulemaking does expand an existing regulation. The proposed rulemaking does not increase or decrease the number of individuals subject to its applicability. During the first five years the proposed rule is in effect, the proposed rule should not impact positively or negatively the state's economy.

Comments on this proposal may be submitted to Steve Moninger, Regulatory Services Division, Texas Department of Public Safety, P.O Box 4087, MSC 0240, Austin, Texas 78773-0240, or by email to RSD.Rule.Comments@dps.texas.gov. Email submission only is preferred. Comments must be received no later than thirty (30) days from the date of publication of this proposal.

This proposal is made pursuant to Texas Government Code, §411.004(3), which authorizes the Public Safety Commission to adopt rules considered necessary for carrying out the department's work; Texas Transportation Code, §548.002, which authorizes the Department of Public Safety to adopt rules to enforce Chapter 548; and Texas Transportation Code, §548.258, which authorizes the Department of Public Safety to adopt rules to require an inspection station to use the state electronic Internet portal.

Texas Government Code, §411.004(3), and Texas Transportation Code §548.002, §548.003, §548.258, §548.301, §548.303, and §548.304 are affected by this proposal.

§23.55.Certified Emissions Inspection Station and Inspector Requirements.

(a) To be certified by the department as an emissions inspection station for purposes of the emissions inspection and maintenance (I/M) program, the station must:

(1) be certified by the department as an official vehicle inspection station;

(2) comply with this chapter, the DPS Training and Operations Manual for Vehicle Inspection Stations and Certified Inspectors, Texas Transportation Code, Chapter 547 and Chapter 548, and regulations of the department;

(3) complete all applicable forms and reports as required by the department;

(4) purchase or lease emissions testing equipment currently certified by the Texas Commission on Environmental Quality (TCEQ) to emissions test vehicles and maintain existing emissions testing equipment to meet the certification requirements of the TCEQ at the department-approved location unless otherwise authorized by the department;

(5) obtain and maintain in working order a secure internet connection with a single static Internet Protocol (IP) address to be used by all vehicle emissions analyzers at each department-approved location, connected to the Texas Information Management System (TIMS) vehicle identification database at all times for the purposes of performing [~~have a dedicated data transmission line for each vehicle emissions analyzer to be used to perform~~] vehicle emissions tests; and

(6) enter into and maintain a business arrangement with the TIMS [~~Texas Information Management System~~] contractor to obtain a telecommunications link to the TIMS [~~Texas Information Management System~~] vehicle identification database for each vehicle emissions analyzer to be used to inspect vehicles as described in the Texas I/M State Implementation Plan (SIP).

(b) All public certified emissions inspection stations in affected counties shall offer the onboard diagnostic (OBD) test.

(c) The fee for an emissions test must provide for one free retest for each failed initial emissions inspection, provided that the motorist has the retest performed at the same vehicle inspection station where the vehicle originally failed and the retest is conducted within 15 calendar days of the initial emissions test, not including the date of the initial emissions test.

(d) To qualify as a certified emissions inspector, an applicant must:

(1) be certified by the department as an official vehicle inspector;

(2) complete the training required for the vehicle emissions inspection program and receive the department's certification for such training;

(3) comply with the DPS Training and Operations Manual for Official Vehicle Inspection Stations and Certified Inspectors, this chapter, and other applicable rules, regulations and notices of the department; and

(4) complete all applicable forms and reports as required by the department.

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 April 12, 2024.

TRD-202401497

D. Phillip Adkins

General Counsel

Texas Department of Public Safety

Earliest possible date of adoption: May 26, 2024

For further information, please call: (512) 424-5848

SUBCHAPTER F. VIOLATIONS AND ADMINISTRATIVE PENALTIES

37 TAC §23.62

The Texas Department of Public Safety (the department) proposes an amendment to §23.62, concerning Violations and Penalty Schedule. The proposed rule amendment adds a violation to the administrative penalty schedule to conform with the proposed changes to §23.55, concerning Certified Emissions Inspection Station and Inspector Requirements.

Ms. Whittenton has also determined that there will be no adverse economic effect on small businesses, micro-businesses, or rural communities required to comply with the section as proposed. There is no anticipated economic cost to individuals who are required to comply with the rule as proposed. There is no anticipated negative impact on local employment.

Ms. Whittenton has determined that for each year of the first five-year period the rule is in effect the public benefit anticipated as a result of this rule will be the enhancement of administrative enforcement against the vehicle inspectors and inspection station owners responsible for fraudulent vehicle emissions inspections.

This proposal is made pursuant to Texas Government Code, §411.004(3), which authorizes the Public Safety Commission to adopt rules considered necessary for carrying out the department's work; Texas Transportation Code, §548.002, which authorizes the Department of Public Safety to adopt rules to enforce Chapter 548; and Texas Transportation Code, §548.405, which authorizes the Public Safety Commission to deny, revoke, or suspend a license.

Texas Government Code, §411.004(3), and Texas Transportation Code §548.002, §548.003, §548.301, §548.303, §548.304, and §548.405 are affected by this proposal.

§23.62.Violations and Penalty Schedule.

(a) - (b) (No change.)

(1) - (2) (No change.)

(3) Category C.

(A) - (M) (No change.)

(N) Failing to maintain compliance with the requirements of §23.55 of this title (relating to Certified Emissions Inspection Station and Inspector Requirements) at all times.

(4) - (5) (No change.)

(d) - (j) (No change.)