(a) Every producer or importer that has elected to sell, offer for sale, supply, or offer for supply low emission diesel fuel (LED) produced at its production facility or imported from its import facility in compliance with the requirements specified in §§114.312, 114.313, or 114.318 of this title (relating to Low Emission Diesel Standards; Designated Alternative Limits; Alternative Emission Reduction Plan, respectively) that may ultimately be used in counties listed in §114.319 of this title (relating to Affected Counties and Compliance Dates) is subject to the applicable requirements of this section.
(b) Each producer or importer of LED must keep records that declare or demonstrate that each final blend of LED conforms to the basic LED standards as specified in §114.312(a) of this title, to the designated alternative limits as specified in §114.313 of this title, to the specifications of a Certified Diesel Fuel Formulation or a diesel fuel as accepted under §114.312(c) of this title, to an alternative diesel fuel formulation as approved under §114.312(d) of this title, or to an alternative emission reduction plan as approved under §114.318 of this title.
(c) Each producer or importer of LED shall collect and analyze a representative sample of each final blend of LED produced at its production facility or imported from its import facility for the fuel properties specified in paragraphs (1) - (5) of this subsection.
  (1) The aromatic hydrocarbon content and cetane number must be analyzed for LED produced or imported in accordance with §114.312(a) of this title using the test methods specified in §114.315(a) of this title (relating to Approved Test Methods).
  (2) The aromatic hydrocarbon content, cetane number, and/or any other appropriate components specified in the applicable California diesel fuel regulations or the executive order issued by the California Air Resources Board (CARB) must be analyzed for LED produced or imported in accordance with §114.312(c) of this title using the test methods specified in §114.315(a) of this title and if appropriate, the test methods as listed in the executive order issued by CARB.
  (3) The appropriate components of the alternative diesel fuel formulation as listed in the approval notification issued by the executive director under §114.315 of this title must be analyzed for LED produced or imported in accordance with §114.312(d) of this title using the methodologies specified in §114.315(a) of this title and if appropriate, the test methods as listed in the approval notification.
  (4) The aromatic hydrocarbon content, polycyclic aromatic hydrocarbon content, American Petroleum Institute (API) gravity index, cetane number, nitrogen content, and sulfur content must be analyzed for LED produced or imported in accordance with §114.313 of this title using the test methods specified in §114.315(a) of this title.
  (5) The aromatic hydrocarbon content, cetane number, specific gravity, and the temperature corresponding to the 50% point on the distillation curve in degrees Fahrenheit (T50) must be analyzed for LED produced in accordance with §114.318(b)(1) of this title using the test methods specified in §114.315(a) of this title.
  (6) If the final blend of LED required to be analyzed in paragraphs (2) and (3) of this subsection is produced at a production facility with the use of an additive as it is being loaded directly to tanks, pipelines, tank ships, railway tank cars, tank trailers, or fuel delivery trucks, the producer or importer may satisfy the sampling requirements of this subsection by recording the volume of additive and the volume of diesel additized in each final blend of LED as it is produced at the production facility. The analysis of the volumetric record must demonstrate that sufficient additive was added to the final blend of LED to maintain the appropriate additive concentration per gallon as listed in the approval notification issued by the executive director or in the executive order issued by the CARB.
  (7) The producer or importer shall maintain records showing the sample date, identity of the final blend sampled, identity of the container or other vessel sampled, volume of the final blend sampled, and the fuel properties of each sample as analyzed in accordance with paragraphs (1) - (6) of this subsection as appropriate, for two years from the date each sample was collected.
  (8) All LED produced by the producer at its production facilities or imported by the importer from its import facilities and not tested by the producer or importer as required by this subsection will be deemed to exceed the standards specified in §114.312 of this title, unless the producer or importer demonstrates that the LED meets those standards and limits.
(d) A producer or importer subject to the requirements of this division shall provide to the executive director any records required to be maintained by the producer or importer in accordance with this section within 15 days of a written request from the executive director, if the request is received before expiration of the period during which the records are required to be maintained. Whenever a producer or importer fails to provide records regarding a final blend of LED in accordance with the requirements of this section, the final blend of LED will be presumed to have been sold by the producer or importer in violation of the standards specified in §114.312 of this title, to which the producer or importer has elected to be subject.
(e) All parties in the distribution chain (i.e., producers, importers, bulk plants, common carriers, and retail fuel dispensing outlets) that supply diesel fuel subject to the requirements specified in §114.312 of this title that may ultimately be used in counties listed in §114.319 of this title shall maintain copies or records of product transfer documents for a minimum of two years and shall upon request, make such copies or records available to representatives of the commission, United States Environmental Protection Agency, or local air pollution agency having jurisdiction in the area. The product transfer documents must contain, at a minimum, the information specified in paragraphs (1) - (7) of this subsection:
  (1) the date of transfer;
  (2) the name and address of the transferor;
  (3) the name and address of the transferee;
  (4) in the case of transferors or transferees who are producers or importers, the registration number of those persons as assigned by the commission under §114.314 of this title (relating to Registration of Diesel Producers and Importers);
  (5) the volume of diesel fuel being transferred;
  (6) the location of the diesel fuel at the time of transfer; and
  (7) one of the certification statements specified in subparagraphs (A), (B), or (C) of this paragraph, as appropriate:
    (A) "This product is Texas low emission diesel and may be used as fuel for diesel engines in any Texas county requiring the use of low emission diesel fuel."; or
    (B) "This product may not be used as fuel for diesel engines in any Texas county requiring the use of low emission diesel fuel without further processing."; or
    (C) "This product has been produced under a TCEQ approved alternative emission reduction plan and may be used as fuel for diesel engines in any Texas county requiring the use of low emission diesel fuel."
(f) Each producer or importer of LED subject to subsection (a) of this section shall provide a quarterly summation report to the executive director no later than the 45th day following the end of each calendar quarter and must maintain a record of the information submitted in the quarterly report for two years from the date of each report. The quarterly report must be submitted on forms prescribed by the executive director and must include, at a minimum, the information specified in paragraphs (1) - (3) of this subsection for each of the producer's production facilities or for each of the importer's import facilities:
  (1) the total volume of LED produced or imported during the calendar quarter that is subject to the requirements of this section, and if the volume of LED required to be reported in this paragraph was produced with the use of an additive, the total volume of additive used to produce the LED must also be included in the quarterly report;
  (2) a reconciliation of the records required in subsection (c)(7) of this section for each sample collected and analyzed during the calendar quarter; and
  (3) any other information determined by the executive director to be necessary to demonstrate that the producer or importer has produced or imported LED that has satisfied the requirements specified in §§114.312, 114.313, or 114.318 of this title.
(g) Each producer or importer electing to sell, offer for sale, supply, or offer to supply LED in accordance with §114.312(c) of this title shall provide to the executive director, as applicable, a copy of the executive order issued by the CARB for the Certified Diesel Fuel Formulation used to produce the LED or documentation demonstrating that the LED has been produced to meet all specifications for diesel fuel under regulations adopted by the CARB, except for those approved for small refinery compliance, that were in effect as of August 4, 2005.

Source Note: The provisions of this §114.316 adopted to be effective May 11, 2000, 25 TexReg 4030; amended to be effective January 18, 2001, 26 TexReg 328; amended to be effective March 31, 2005, 30 TexReg 1773; amended to be effective May 17, 2006, 31 TexReg 3881; amended to be effective September 13, 2012, 37 TexReg 7181