The California Air Resources Board Expands the Burden on Motor Carriers to Verify if Hired Fleets Comply with Air Quality Regulation

A broker, motor carrier, contractor, public agency, dispatcher, or developer (collectively “Operator”) that operates, or directs the operation, of any vehicle subject to the California Air Resources Board’s (“ARB”) California Regulations to Reduce Emissions of Diesel Particulate Matter, Oxides of Nitrogen and Other Criteria Pollutants from In-Use Heavy-Duty Diesel-Fueled Vehicles (Section 2025 of the California Code of Regulations, Title 13, Article 4.5, Chapter 1) (“Truck and Bus regulation”) must verify that its vehicles are in compliance with the ARB’s regulations. The U.S. EPA has sent letters to Operators requiring them to provide information, and documents, that prove that the vehicles they operate are in compliance with the ARB’s Regulations. Ambiguity did exist as to whether motor carriers were required to provide proof of certification, not only for their own fleets, but those of third-party companies it hires whose vehicles enter, leave, or make interim stops within the State of California.

On August 24, 2015, the ARB issued the guidance document “Truck and Bus Regulation How to Verify if Hired Fleets Comply” that provides clarification on this important issue. An Operator that “hires,” “dispatches,” or directs the operation, of any vehicle subject to the Truck and Bus regulation, needs to verify that each hired company is either in compliance with the regulation or has reported compliance to the Air Resources Board (“ARB”). If an Operator hires many third-party companies to transport its customer’s goods, the burden of responding to a Request for Information with all the necessary information for each hired company can be enormous—and challenging to obtain within the time frame required to respond to an EPA Request.

The ARB’s guidance document also sheds light on how Operators can determine whether a third-party fleet owner has reported to the ARB, or is otherwise in compliance with the regulations. Fleet owners that report to the ARB using “flexible compliance options” must report information about all of the heavier vehicles in their fleet that operate in California. Fleet owners who use this reporting method can print a certificate that confirms they have reported to the ARB.

Fleets owners that comply by using the “engine model year schedule” are not required to report to the ARB. They have the option to report company and vehicle information, and to print a certificate, that states they are complying with the “engine model year schedule.” Either certificate can be used by an Operator as evidence the hired fleet has reported compliance with the regulation. Operators must obtain copies of the certificate, or other proof of compliance, annually. The ARB also posts the names and motor carrier numbers of the fleets that have reported compliance which can be viewed by clicking here.

If fleet owners do not report to the ARB because they are complying with the “engine model year schedules,” the fleet owner must provide other documentation, annually, to demonstrate that their fleet complies with the regulation. In order to prove a fleet owner’s compliance with the “engine model year schedule,” Operators may obtain a dated, written statement, from the owner, that verifies the owner is aware of the Truck and Bus regulation (Title 13, California Code of Regulations, Section 2025), the engine model, year, and PM filter information for vehicles in the owner’s fleet.

If a fleet owner has not reported to the ARB, it has until January 31 of each compliance year to update its information. It is not necessary for Operators to obtain a certificate to verify compliance from January 1 to January 31 of each compliance year. However, the Operator responsible for hiring the owner’s fleet should obtain a written statement from the owner that verifies that its fleet is in compliance with the Truck and Bus regulation during the month of January in lieu of a certificate. The Operator responsible for hiring the owner’s fleet must perform due diligence by confirming that compliance statements, as reflected in the contract, are factually correct. If an Operator becomes aware that one or more vehicles in an owner’s fleet do not comply, the Operator cannot continue to use the services of the owner’s fleet.

An Operator must also verify compliance if it hires services that require specific trucks or buses like dump trucks, concrete pumps, cranes or charter buses. For example, a contractor that directly hires a dump truck company to move debris from the roadside, or hires a crane to lift a load, must verify compliance.

For brokers, the contractual arrangement with the third-party company determines who is responsible for hiring each truck and verifying compliance with the regulation. If an owner contracts with a broker to get more trucks to a job, but the fleet owner ultimately deals directly with the sub-haulers, and pays them for their services, then the fleet owner needs to verify compliance. Conversely, if a fleet owner has an arrangement with a broker where the broker hires and pays the sub-haulers, then the broker is responsible to verify compliance of the sub-haulers that it selects and hires.

Operators who are not requiring the collection of this information should begin to do so, so that when or if they are the subject of a Request for Information they can more easily respond and document their compliance.

This document is intended to provide you with information about transportation law related developments. The contents of this document are not intended to provide specific legal advice. This communication may be considered advertising in some jurisdictions.

February 9, 2016