TITLE 4. AGRICULTURE

PART 1. TEXAS DEPARTMENT OF AGRICULTURE

CHAPTER 5. FUEL QUALITY

The Texas Department of Agriculture (Department) adopts the repeal of Title 4, Part 1, §5.1 and §5.5; new §5.1, related to Definitions, and §5.5, related to Inspections; and amendments to §5.4, related to Records for the Fuel Quality Program. The adoption of the repeal is made without changes to the proposal published in the November 10, 2017, issue of the Texas Register (42 TexReg 6266); the new and amended rules (§§5.1, §5.4, 5.5) are adopted with changes to the proposal. The rules are adopted to comply with House Bill 2174, enacted during the 85th Regular Legislative Session, which amended §17.072 and §17.073 of the Texas Agriculture Code (Code) related to motor fuel quality and testing.

The adopted rules define procedures for fuel quality inspections and complaints, including the Department's role, procedures, recordkeeping, and penalties.

A copy of the proposal was provided to industry stakeholders, specifically the Texas Food and Fuel Association. Mr. Scott Fisher, Senior Vice President of Policy and Public Affairs, submitted the following comments on behalf of the Texas Food & Fuel Association. While the Department appreciates Mr. Fisher's commentary, and will take it under consideration, several of his comments were unrelated to the proposal and will not be specifically addressed in this adoption.

Regarding §5.4, Mr. Fisher noted that the requirement for recordkeeping appeared ambiguous, and required clarification to ensure that Licensed Service Companies (LSC) would not be subject to maintaining fuel samples. Accordingly, the Department has amended §5.4(c) and (d) to clarify that LSCs do not have to retain fuel samples, only fuel sample analysis reports.

For clarification, §5.5(a) has been amended to include terminology to specifically refer to LSCs and licensed service technicians.

Mr. Fisher has pointed out that it would be convenient and more cost effective for a facility to pull its own routine fuel sample, rather than a LSC. However, the Department notes that §17.072 of the Code prescribes that the LSC is the representative required to draw all fuel quality samples. Additionally, by having a third party draw and perform fuel quality samples and testing, a higher level of transparency and consumer confidence and protection can be maintained.

Section 5.5(a)(2) refers to a "Department Approved Laboratory." Mr. Fisher notes that the Department's current laboratory is out of state and wants the discretion to choose any lab for fuel sample analysis. In choosing approved laboratories, the Department must follow state purchasing guides and rules set forth by the Texas Comptroller of Public accounts. Laboratories procured through state purchasing guidelines will result in cost benefits, including lower processing costs per sample. By determining which laboratories shall be approved to conduct testing, the Department can maintain oversight of fuel quality testing facilities and standards to ensure transparency, chain of custody, and quality assurance. All laboratories must meet prescribed criteria before being approved. The Department anticipates that additional laboratories will be added to the approved list in the future.

Mr. Fisher has noted that following Hurricane Harvey, which occurred the last week of August 2017, a significant backlog of lab testing resulted. While Mr. Fisher is correct that a portion of the backlog is a direct result of the increased number of fuel complaints from Hurricane Harvey, the backlog is also due to the mandatory testing required by HB 2174. Section 17.073, which was amendment by HB 2174, requires that all laboratory testing, including sediment and water contamination, be verified at a laboratory. Prior to the legislative amendment, field inspections were performed by TDA inspectors according to ASTM standards.

Section 5.5(d)(1) prescribes that a facility owner may only use the services of a non-affiliated company to draw fuel quality samples in response to complaints. This requirement is set forth by the Department to avoid conflicts of interest, ensure program oversight and integrity, and protect consumers.

4 TAC §5.1, §5.5

The repeal is adopted under Agriculture Code, §17.071 authorizes the Department to adopt rules fuel quality and testing standards for motor fuel that is sold or offered for sale in this state.

The code affected by the adoption is Chapter 17 of the Texas Agriculture Code.

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 December 14, 2017.

TRD-201705143

Jessica Escobar

Assistant General Counsel

Texas Department of Agriculture

Effective date: January 3, 2018

Proposal publication date: November 10, 2017

For further information, please call: (512) 463-4075


4 TAC §§5.1, 5.4, 5.5

The adoption is made pursuant to Agriculture Code, §17.071, which authorizes the Department to adopt rules fuel quality and testing standards for motor fuel that is sold or offered for sale in this state.

The code affected by the adoption is Chapter 17 of the Texas Agriculture Code.

§5.1.Definitions.

In addition to the definitions set out in Texas Agriculture Code, Chapter 17, and the standards set by the American Society for Testing and Materials (ASTM), the following words and terms shall have the following meanings, unless the context clearly indicates otherwise.

(1) ASTM--The American Society for Testing and Materials; the national voluntary consensus standards organization formed for the development of standards on characteristics and performance of materials, products, systems and services and the promotion of related knowledge.

(2) Audit--An official TDA administrative review completed by a Representative of the Commissioner of fuel quality samples and device inspections, tests and calibrations records and/or related documentation.

(3) Department--Texas Department of Agriculture.

(4) Gasoline--That term as defined in Texas Tax Code, Chapter 162.

(5) NIST--The National Institute of Standards and Technology.

(6) Representative of the Commissioner--An individual employed by the Department, authorized to perform one or more of the following: audits, reviews, inspections, and/or service observations under specified chapters of the Texas Agriculture Code.

(7) Representative of the Department--A licensed service company and/or licensed technician acting on behalf of the Department to complete fuel quality sample collections, inspections, tests, and calibrations, on motor fuel metering devices as per Texas Agriculture Code, Chapter 13, Subchapter I.

§5.4.Records.

(a) Records or other documents specified in this section must be maintained in accordance with Texas Agriculture Code, Chapter 17, and shall be submitted to the Department in the manner and time period as specified in a notice provided by a Representative of the Commissioner.

(b) Motor fuel dealers, distributors, suppliers, wholesalers, and jobbers shall maintain the following records and documents for a period of four years:

(1) invoices, receipts, or other transmittal documents or records, including electronically stored information, showing or describing the purchase, sale, delivery, or distribution of motor fuel;

(2) invoices, receipts, work orders, reports, or other documents, including electronically stored information, showing or describing the installation, maintenance, or repair of motor fuel dispensing devices and any equipment used in connection with motor fuel dispensing devices to record, display, or produce receipts or audit trails concerning the purchase, sale, delivery, or distribution of motor fuel; and

(3) any record or other document related to the sampling and testing of motor fuel purchased, sold, delivered, or distributed by the dealer, distributor, supplier, wholesaler, or jobber must be maintained.

(c) Complaint inspection and sampling. All documentation related to complaint inspections and fuel sample analysis reports must be maintained for a period of four years by a Licensed Service Company and submitted to the Department upon request.

(d) Routine inspection and sampling. All documentation related to routine inspections and all fuel sample analysis reports must be maintained by a Licensed Service Company for a period of four years and submitted to the Department upon request.

§5.5.Inspections.

(a) Fuel sample collection shall be performed by a licensed service company or a licensed service technician, currently licensed by the Department under Chapter 13, Subchapter I of the Texas Agriculture Code.

(1) Routine fuel sample collection: Beginning the day after notification by the Department that a routine fuel quality sample is required, within ten (10) calendar days, a facility must have a sample drawn by a LSC and shipped to a Department approved contracted laboratory.

(2) Complaint fuel sample collection: Beginning the day after notification by the Department that a fuel quality sample must be drawn due to a complaint, within five (5) calendar days a facility must have a LSC draw and ship the sample to a Department approved contracted laboratory.

(3) It is a violation to fail or refuse to allow fuel quality testing as prescribed by the Department.

(4) It is a violation to fail to or improperly ship a fuel quality sample as prescribed by the Department.

(b) A Representative of the Commissioner shall conduct labeling inspections to ensure compliance with posting requirements set forth in §17.051 of the Texas Agriculture Code, and 16 CFR Part 306, in accordance with procedures adopted by the Department.

(c) Routine fuel sampling inspections, labeling inspections, and complaint inspections shall occur upon a schedule determined by the Department.

(d) All complaints received by the Department will result in an inspection of the facility and/or fuel blend inspection sampling of the motor fuel(s) identified in the complaint.

(1) Facilities are prohibited from utilizing a LSC with which it shares ownership interests, operations, or an affiliation having power to control the other, to conduct a fuel quality complaint inspection and/or draw fuel quality complaint inspection sample(s) for the facility.

(2) After a facility receives notice from the Department of a fuel quality complaint, the facility is prohibited from adding fuel to the fuel tank(s) holding the fuel blend(s) which is the subject of the complaint(s) prior to collection of the fuel quality sample.

(3) After notification of a fuel quality complaint, and prior to the fuel sample collection, the facility is required to retain an adequate amount of fuel in the fuel tank(s) holding the fuel blend(s) which are the subject of the complaint(s) to assure that the LSC can draw a sufficient fuel quality inspection sample(s).

(4) It is a violation by the facility and the LSC to hinder, fail, or refuse to conduct fuel quality complaint testing and sample shipping as prescribed by the Department.

(e) The fill pipe box cover for any automotive fuel storage tank or vessel supplying gasoline or diesel fuel shall be permanently, plainly, and visibly marked in such a manner as to identify what type of gasoline or diesel fuel each storage tank delivers to a particular motor fuel dispenser. For example, the markings may include the words, or abbreviation of the words, regular unleaded, unleaded plus, super unleaded, or a related color code scheme, such as white, blue and red. If the fill pipe box covers are marked by means of a color code scheme, a color code legend shall be conspicuously displayed at the place of business.

(f) Failure to comply with the requirements of this section may result in the imposition of an administrative penalty, license sanction and/or civil or criminal penalties in accordance with Texas Agriculture Code, Chapters 12 and 17.

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 December 14, 2017.

TRD-201705144

Jessica Escobar

Assistant General Counsel

Texas Department of Agriculture

Effective date: January 3, 2018

Proposal publication date: November 10, 2017

For further information, please call: (512) 463-4075


CHAPTER 12. WEIGHTS AND MEASURES

SUBCHAPTER D. METROLOGY

The Texas Department of Agriculture (Department) adopts the repeal of Title 4, Part 1, Chapter 12, Subchapter D, §12.30, and new §12.30, concerning metrology services. The adoption is made without changes to the proposal as published in the November 10, 2017, issue of the Texas Register (42 TexReg 6289). The changes are adopted to align the Department's metrology rules with international traceability components and standards.

The Department's compliance with NIST Handbook 143, and the weights and measures program handbook applicable to the calibration of devices and standards by state laboratories, afford the requisite international traceability recognition; accordingly, NIST Handbook 143 is adopted by reference in the new rule.

There were no comments received on the adoption.

4 TAC §12.30

The adoption of the repeal is made under Texas Agriculture Code, §13.002, which designates the Department as the agency responsible for weights and measures and metrology regulation, and §13.115 which requires the Department to charge a fee for each weights and measure device to be registered.

The code affected by the adoption is Texas Agriculture Code, Chapter 13.

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 December 11, 2017.

TRD-201705069

Jessica Escobar

Assistant General Counsel

Texas Department of Agriculture

Effective date: December 31, 2017

Proposal publication date: November 10, 2017

For further information, please call: (512) 463-4075


4 TAC §12.30

The adoption is made under Texas Agriculture Code, §13.002, which designates the Department as the agency responsible for weights and measures and metrology regulation, and §13.115, which requires the Department to charge a fee for each weights and measure device to be registered.

The code affected by the adoption is Texas Agriculture Code, Chapter 13.

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 December 11, 2017.

TRD-201705070

Jessica Escobar

Assistant General Counsel

Texas Department of Agriculture

Effective date: December 31, 2017

Proposal publication date: November 10, 2017

For further information, please call: (512) 463-4075


CHAPTER 21. CITRUS

SUBCHAPTER B. CITRUS QUALITY

4 TAC §21.21

The Texas Department of Agriculture (the Department) adopts amendments to Title 4, Part 1, Chapter 21, Subchapter B, §21.21, related to citrus quality standards, without changes to the proposal published in the November 10, 2017 issue of the Texas Register (42 TexReg 6290). The amendments are adopted to update requirements and restrictions for citrus fruit and standards for marketable citrus.

No comments were received on the proposal.

The adoption is made pursuant to Chapters 19 and 71 of the Texas Agriculture Code, which authorize the Department to adopt rules necessary to protect agricultural and horticultural interests and administer citrus programs.

Chapters 19 and 71 of the Texas Agriculture Code are affected by the adoption.

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 December 14, 2017.

TRD-201705166

Jessica Escobar

Assistant General Counsel

Texas Department of Agriculture

Effective date: January 3, 2018

Proposal publication date: November 10, 2017

For further information, please call: (512) 463-4075