ACG C.S.H.B. 3463 75(R) BILL ANALYSIS ENVIRONMENTAL REGULATION C.S.H.B. 3463 By: Chisum 4-3-97 Committee Report (Substituted) BACKGROUND The 74th Texas Legislature passed Senate Bill 178 which charged the governor with establishing a revised vehicle emissions testing program after negotiation with the United States Environmental Protection Agency (EPA). Governor Bush endorsed the Texas Motorist's Choice Program in Executive Order GWB 96-1 in February 1996. The program began July 1, 1996 in Dallas and Tarrant counties and January 1, 1997 in Harris and El Paso counties. The motorists in these four counties can receive their vehicle safety inspection and emissions test in one stop and can choose from 1,978 inspection stations that offer emissions testing. The EPA proposed conditional interim approval of the Texas Motorist's Choice Program as described in the Texas state implementation plan (SIP) because the state lacks the legislative authority to accomplish certain components of the program. PURPOSE To address the need for legislative authority to fully implement the state implementation plan by providing for remote sensing and enhancing program enforcement, including a re-registration denial component. RULEMAKING AUTHORITY It is the committee's opinion that though SECTION 2 of the bill does not expressly grant rulemaking authority to the Department of Transportation, the Department of Public Safety, or the Texas Natural Resource Conservation Commission, it does require them to enter into an agreement for implementation (Sec. 502.009 (d), Transportation Code). It is the committee's opinion that although SECTION 5 of the bill does not expressly grant rulemaking authority to the Public Safety Commission, rulemaking authority of the agency is clarified (Sec. 548.301, Transportation Code) It is the committee's opinion that though SECTION 6 of the bill does not expressly grant rulemaking authority to the Public Safety Commission, it does modify the agency's authority to adopt standards and requirements (Sec. 548.302, Transportation Code). It is the committee's opinion that SECTION 8 of the bill does not expressly grant rulemaking authority to the Department of Public Safety, but it does transfer authority from the Texas Natural Resource Conservation Commission to the Department of Public Safety to certify inspection stations as necessary (Sec. 548.304, Transportation Code). It is the committee's opinion that SECTION 9 of the bill grants rulemaking authority to the Department of Public Safety (Sec. 548.306 (a)(1) and (b), Transportation Code). It is the committee's opinion that SECTION 12 of the bill modifies rulemaking authority of the Department of Public Safety (aka the Public Safety Commission) (Sec. 548.505, Transportation Code). SECTION BY SECTION ANALYSIS SECTION 1. Amends Sec. 382.037(d) to make a conforming change in order that the language added by the remainder of the bill will be properly applied. SECTION 2. Amends Subchapter A, Chapter 502, Transportation Code by adding Sec. 502.009 as follows: (a) The department must ensure compliance with the emissions program through a stickerbased enforcement system unless the state fails to demonstrate to the EPA that sticker-based enforcement is more effective than registration based enforcement. (b) Prohibits the TxDOT from registering a vehicle if the vehicle has not passed an emissions inspection if one is required. (c) Prohibits a county tax assessor-collector from registering a vehicle denied registration without proof of compliance. (d) Requires the agencies involved to agree regarding the responsibilities for implementing this law. (e) Relieves the tax assessor-collector from liability for refusal to register a vehicle pursuant to the section. SECTION 3. Amends Sec. 548.001, Transportation Code by modifying the definition of "Commercial motor vehicle," adding the definition of "Department," and adding the definition of "nonattainment area." SECTION 4. Amends Sec. 548.251, Transportation Code to make a conforming change. SECTION 5: Amends Sec. 548.301, Transportation Code as follows: (a) Clarifies that the commission is to establish an emissions inspection program consistent with certain standards. (b) Allows the establishment of a program as specified by the commission. (c) Prohibits a program under (b) from being registration based unless a county requests it. (d) Allows a facility to conduct emissions inspections as well as safety inspections if all applicable requirements are met. SECTION 6. Amends Sec. 548.302, Transportation Code to require the Public Safety Commission to prohibit the issuance of an inspection sticker unless the vehicle has passed an emissions inspection, if applicable. SECTION 7. Amends Sec. 548.303, Transportation Code as follows: (a) Requires the Public Safety Commission to administer the emissions inspection program. SECTION 8. Amends Sec. 548.304, Transportation Code as follows: (a) removes references to reinspection and the TNRCC. (b) Removes references to the centralized program and the TNRCC regarding inspection certificates. (c) Deletes language relating to reinspection requirements. SECTION 9. Amends Subchapter F, Chapter 548, Transportation Code, by adding Sec. 548.306 as follows: (a) Applies section to motor vehicles in certain counties either designated by agency rule or named specifically. (b) Creates an offense if a vehicle emits more than established levels of certain pollutants. (c) Provides for notice of a violation of air emission standards. (d) Creates an offense for failure to respond to a violation detected by remote sensing. (e) Establishes penalties as a misdemeanor for the offense and fines between $1 and $350 for the first violation and $200 to $1,000 for repeat violations. (f) Creates affirmative defenses for the offense if the vehicle is repaired and passes an emissions test and has otherwise complied with agency rules. (g) Allows for a private party to contract with the department to implement the program component. (h) Provides for the denial of registration if a notice has been received that a vehicle is in noncompliance. SECTION 10. Amends Sec. 548.405, Transportation Code, as follows: (a) Provides the Department of Public Safety the ability to deny a persons application for a certificate, or place a certificate holder on probation, or reprimand a person who holds a certificate in addition to existing authority; adds certain infractions for which a certificate holder may be disciplined. (b) Defines "conviction" for purposes of (a)(7). (c) Provides for minimum time limits for certificate suspensions. (d) Prohibits an inspector or inspection station owner whose certificate is suspended or revoked from any involvement in an inspection operation; deletes existing disciplinary guidelines. SECTION 11. Amends Sec. 548.407, Transportation Code as follows: (a) and (b) Modifies the requirements under which notice must be given to an inspector or inspection station owner before denial, revocation or suspension of a certificate. (c) Requires notice by personal delivery or mail to the last known address. (d) Provides for certificate revocation or suspension effective upon receipt of notice under circumstances listed which present a threat to public health, safety, or welfare. (e) Defines "conviction" for purposes of (d)(10). (f) Clarifies requirements for requesting an administrative hearing for denial, suspension, or revocation of a certificate. (g) Adds special provisions for certificate revocation. (h) Expands the ability of the agency to discipline a holder of a certificate for violations of certification standards. (i) Provides for an exception to normal hearing procedures. (j) and (k) are renumbered to reflect changes. (l) Provides that an administrative law judge may include in the proposal for decision a finding for cost, fees, and expenses incurred by the state and allows the DPS director to adopt the finding. Provides that any proceeds go to the General Revenue Fund. SECTION 12. Amends Sec. 548.505, Transportation Code by modifying rulemaking authority regarding fees of the Department of Public Safety / Public Safety Commission (Sec. 548.505, Transportation Code). SECTION 13. Amends Sec. 548.601, Transportation Code as follows: (a) Sets forth offenses in which a person commits an offense involving the program. (b) An offense under the chapter is a Class C misdemeanor. (c) Allows the designated representatives of the Department of Public Safety to issue a notice of an offense or notice to appear; deletes current language exempting vehicles from another state. SECTION 14. Amends Sec. 548.602 (a), Transportation Code to clarify that an inspection certificate displayed on a vehicle must be current. SECTION 15. Amends Sec. 548.603, Transportation Code to further stipulate what constitutes an offense, their classifications, and defines terms involving fictitious or counterfeit inspection certificates. SECTION 16. Amends Subchapter C, Chapter 552, Government code by adding Sec.552.127 to except certain vehicle emissions inspection data from the Open Records Act. SECTION 17. Conforming language. SECTION 18. Repealer language. SECTION 19: Effective dates. SECTION 20. Emergency clause. COMPARISON OF ORIGINAL TO SUBSTITUTE SECTION 1 of the substitute deletes an inappropriate citation in the filed version to "Subchapter E" of Chapter 548, Transportation Code. SECTION 2 of the substitute includes a requirement not in the filed version that the department ensure compliance with the emissions program through a sticker-based enforcement system unless the state fails to demonstrate to the EPA that sticker-based enforcement is more effective than registration based enforcement. The filed version includes language not in the substitute requiring the agencies involved to adopt a memorandum of understanding to implement the program; in lieu, the substitute requires the agencies to enter agreements regarding costs. SECTION 5 of the substitute modifies the language in the filed version regarding the commission's authority to establish an emissions program. For voluntary emissions programs, the substitute allows for re-registration based enforcement if requested by a county. SECTION 7 of the filed version includes language not in the substitute which allowed for the governor and the agency to discontinue or re-establish the emissions program. SECTION 9 of the substitute modifies language not in the filed version from "in amounts that are" to "in an amount that is" and provides that the DPS by rule may set standards for excessive emissions. The substitute also modifies the language in the filed version regarding necessary repairs and adds language to create an offense for failure to comply with applicable notice. SECTION 10 of the substitute more clearly defines the terms and procedures for inspector and inspection station supervision than the filed version. SECTION 11 of the substitute more clearly defines the offenses listed, states the contents of notice, and clarifies the contents for the proposal for decision by the State Office of Administrative Hearings. SECTION 12 of the substitute adds a reference to Section 548.502 which was not included in the filed version. SECTION 13 of the substitute changes a word "The" to "A" to authorize more than one individual to carry out the statute and more clearly defines the offenses listed. SECTION 15 of the substitute includes language not in the filed version which includes presenting counterfeit insurance as an offense, raises the required mental state to knowing violations, and includes presenting false documents purportedly from an other country as an offense. The substitute also maintains current law allowing a vehicle to be impounded for displaying a false sticker, and the filed version deletes the provision. SECTION 16 of the substitute is not in the filed version. SECTION 17 of the substitute corresponds to SECTION 16 of the filed version. SECTION 18 of the substitute corresponds to SECTION 17 of the filed version and modifies the order sections of law which are repealed and adds certain sections to be repealed. The substitute does not contain language requiring rules to be adopted by certain dates and required to apply in certain circumstances though such language is found in the filed version.