State of California California Environmental Protection Agency

AIR RESOURCES BOARD

PUBLIC HEARING TO CONSIDER REQUIREMENTS TO REDUCE I DLING EMISSIONS FROM NEW AND IN-USE TRUCKS, BEGINNING IN 2008

FINAL STATEMENT OF REASONS

August 2006- 2 - State of California

AIR RESOURCES BOARD

Final Statement of Reasons for Rulemaking, Including Summary of Comments and Agency Response

PUBLIC HEARING TO CONSIDER REQUIREMENTS TO REDUCE I DLING EMISSIONS FROM NEW AND IN-USE TRUCKS, BEGINNING IN 2008

Public Hearing Date: October 20, 2005

Agenda Item No.: 05-10-3

I. General

The Staff Report: Initial Statement of Reasons for Rulemaking (“Staff Report”), entitled “Notice of Public Hearing to Consider Requ irements to Reduce Idling Emissions from New and In-use Trucks, Beginning in 2008,” released September 1, 2005 is incorporated by reference herein.

This rulemaking by the Air Resources Board (ARB or Board) consists of the three major components:

The first component primarily requires manufacturer s of new California certified 2008 and subsequent model-year diesel eng ines installed in trucks with a gross vehicle weight rating greater than 14, 000 pounds to either incorporate a system that automatically shuts the e ngine down after five minutes of continuous idling or to certify the engi nes to an oxides of nitrogen (NOx) idling emission standard of 30 grams per hour . This component of the rulemaking is hereinafter referred to as the “new e ngine requirements” of this rulemaking.

The second component primarily eliminates an existi ng exemption for sleeper berth equipped trucks (and therefore requires that they must comply with) the anti-idling requirements of title 13, California Co de of Regulations (CCR) section 2485. This component of the rulemaking is hereinafter referred to as the “in-use requirements” of this rulemaking.

The third component of this rulemaking establishes emissions performance requirements for devices that truck operators may e lect to utilize to provide power for climate control, engine heating, or elect rical power purposes that would otherwise be supplied by idling the vehicle’s main engine. This component applies to both the new engine and the in -use requirements

On September 2, 2005, ARB published a notice for an October 20, 2005 public hearing to consider the proposed amendments. A Sta ff Report: Initial Statement of Reasons (the Staff Report) was also made available for public review and comment- 3 -

beginning September 2, 2005. The Staff Report prov ides the rationale for the proposed amendments. The text of the proposed amen dments to title 13, California Code of Regulations (CCR) sections 1956.8, 2404, 24 24, 2425 and 2485 and the test procedure incorporated by reference therein, “ California Exhaust Emission Standards and Test Procedures for 2004 and Subseque nt Model Heavy-Duty Diesel Engines and Vehicles” was included as an Appendix t o the Staff Report. These documents were also posted on the ARB’s Internet si te for the rulemaking at: http://www.arb.ca.gov/regact/hdvidle/hdvidle.htm

On October 20, 2005 the Air Resources Board (the “B oard” or the “ARB”) conducted the public hearing and received oral and written co mments. At the conclusion of the hearing, the Board adopted Resolution 05-55, in whi ch it approved the proposed amendments with the following significant modificat ions:

(1) modifying the provision (in Title 13, CCR secti on 1956.8) allowing the new engine shutdown system to be overridden during powe r take off-mode operations so that the override switch is not requi red to fail in the “off” position to accommodate safety concerns.

(2) clarify that manufacturers using battery powere d auxiliary power systems (APSs), a power inverter/charger for on-shore power , or an electric infrastructure or comparably clean technology need not seek and obtain advance Executive Officer approval before using suc h systems.

These modifications had been suggested by staff in a two-page document entitled “Staff’s Suggested Modifications to Original Propos al” that was distributed at the hearing and was Attachment C to Resolution 05-55. Attachment C showed excerpts of the originally proposed amendments to the regula tions and incorporated documents, with the text of all suggested modificat ions clearly identified. Other modifications were suggested by commenters and appr oved by the Board during the hearing: (1) technologies utilizing electrical sho re power or comparably clean emission technologies would be allowed as options t o comply with the in-use idling regulations set forth in section 2485 of title 13, California Code of Regulations, (2) military tactical vehicles would be exempted from t he proposed amendments to sections 1956.8, 2404, 2424, 2425 of title 13, Cali fornia Code of Regulations, and (3) the current exemption applicable to military ta ctical vehicles in section 2485 of title 13, California Code of Regulations would be c larified to also exempt operational modes such as training, testing, and deployment.

In accordance with section 11346.8 of the Governmen t Code, the Resolution directed the Executive Officer to incorporate the m odifications into the proposed regulatory text, with such other conforming modific ations and technical amendments as may be appropriate, and to make the modified tex t available for a supplemental comment period of at least 15 days. She was then d irected either to adopt the

amendments with such additional modifications as ma y be appropriate in light of the comments received, or to present the regulations to the Board for further consideration if warranted in light of the comments . The Resolution and its- 4 -

Attachment C are available at ARB’s Internet web pa ge for this rulemaking: http://www.arb.ca.gov/regact/hdvidle/hdvidle.htm

Subsequent to the hearing, staff identified a numbe r of additional, primarily technical modifications that are appropriate to make the amen ded regulations work as effectively as possible. The most significant of t hese post-hearing modifications were: (1) allowing the engine shutdown system to b e overridden during exhaust emission control device regeneration or maintenance periods, or if servicing or maintenance of the engine requires extended idling, (2) clarifying that the engine shutdown system requirements do not apply to emerge ncy vehicles or to medium-duty vehicles, (3) clarifying in the test pr ocedures portion of the rulemaking that for compliance with the optional NOx idling st andard, the average NOx emissions of each mode of the supplemental NOx idli ng test procedure should not exceed the optional NOx standard, and (4) modifying the definition of auxiliary power system (APS) in the ATCM portion of the rulemaking to extend the availability of compliant APSs as a compliance alternative to buses and other non-truck commercial vehicles. These post-hearing modificati ons were incorporated into the text of the proposed regulations and incorporated d ocuments, along with the modifications approved by the Board at the hearing.

The text of all the modifications to the originally proposed amendments to the regulations and incorporated documents was made ava ilable for a supplemental 15-day comment period by issuance of a “Notice of P ublic Availability of Modified Text.” This Notice, a copy of the Resolution 05-55 , and the Attachment C document entitled “Staff’s Suggested Modifications to Origin al Proposal,” were mailed on June 28, 2006 to all parties identified in section 44(a) , title 1, CCR, and to other persons generally interested in the ARB’s rulemaking concer ning requirements applicable to heavy-duty diesel engines/vehicles, small off-road engines, and cab comfort devices. The “Notice of Public Availability of Mod ified Text” listed the ARB internet site from which interested parties could obtain the complete text of the incorporated documents that would be affected by the modificatio ns to the original proposal, with all of the modifications clearly indicated. These documents were also published on ARB’s Internet web page for this rulemaking http://www.arb.ca.gov/regact/hdvidle/hdvidle.htm on June 27, 2006. Five written comments were received during the 15-day comment pe riod.

After considering the comments received during the 15-day comment period, the Executive Officer issued Executive Order R-06-003, adopting the amendments to Title 13, CCR and to the incorporated documents.

This Final Statement of Reasons (FSOR) updates the Staff Report by identifying and providing the rationale for the modifications made to the originally proposed regulatory texts, including nonsubstantial modifica tions and clarifications made after the close of the 15-day comment period. The FSOR a lso contains a summary of the comments received by the Board on the proposed regu latory amendments and ARB’s responses to those comments

.- 5 -

Incorporation of Test Procedures and Federal Regula tions. The amended test procedures are incorporated by reference in Title 1 3, CCR sections 1956.8 and 2485. The test procedures in turn incorporate cert ification test procedures adopted by United States Environmental Protection Agency (U .S. EPA) and are contained in Title 40, Code of Federal Regulations (CFR), Part 8 6.

Title 13, CCR sections 1956.8 and 2485 identify the incorporated ARB documents by title and date. The ARB documents are readily a vailable from the ARB upon request and were made available in the context of t his rulemaking in the manner specified in Government Code Section 11346.5(b). T he CFR is published by the Office of the Federal Register, National Archives a nd Records Administration, and is therefore reasonably available to the affected publ ic from a commonly known

source.

The test procedures are incorporated by reference b ecause it would be impractical to print them in the CCR. Existing ARB administrat ive practice has been to have the test procedures incorporated by reference rather th an printed in the CCR because these procedures are highly technical and complex. They include the “nuts and bolts” engineering protocols and laboratory practic es required for certification of regulated engines and equipment, and have a very li mited audience. Because ARB has never printed complete test procedures in the C CR, the affected public is accustomed to the incorporation format utilized the rein. The ARB’s test procedures

as a whole are extensive and it would be both cumbe rsome and expensive to print these lengthy, technically complex procedures with a limited audience in the CCR. Printing portions of the ARB’s test procedures that are incorporated by reference would be unnecessarily confusing to the affected pu blic.

The test procedures incorporate portions of the CFR because the ARB requirements are substantially based on the federal regulations. Manufacturers typically certify vehicles and engines to a version of the federal em ission standards and test procedures that have been modified by state require ments. Incorporation of the federal regulations by reference makes it easier fo r manufacturers to know when the two sets of requirements are identical and when the y differ. Each of the incorporated CFR provisions is identified by date i n ARB’s test procedure

documents.

Fiscal Impacts. The Board has determined that this regulatory actio n will not create create costs or savings, as defined in Government C ode section 11346.5(a)(6), to any state agency or in federal funding to the state , costs or mandate to any local agency or school district whether or not reimbursab le by the state pursuant to part 7 (commencing with section 17500), Division 4, title 2 of the Government Code, or other nondiscretionary costs or savings to state or local agencies.

Consideration of Alternatives. The amendments and new regulatory language proposed in this rulemaking were the result of exte nsive discussions and meetings involving staff and the affected engine, truck, and cab comfort device manufacturers, trucking business associations, and others. In the Staff Report, released and made- 6 -

available to the public on September 2, 2005, staff evaluated and ultimately rejected four potential alternatives which included: (1) sol ely relying on educational and incentive programs to encourage sleeper truck owner s and operators to voluntarily reduce idling and use cab comfort devices, (2) in lieu of engine shutdown systems, require engine manufacturers to either certify engi nes to a low NOx idle emission standard (30 g/bhp-hr) or to install a compliant AP S on all sleeper berth equipped trucks sold in California, and also eliminate the s leeper truck exemption from the in-use idling restriction requirement, (3) require engine shutdown systems and only allow alternative cab comfort devices using zero em itting technologies such as battery electric APSs, fuel cell APSs, thermal stor age systems, truck stop electrification, or any other zero emitting technol ogy, and also eliminate the sleeper truck exemption from the in-use idling restriction requirement, and (4) pursue requirements that only regulate new 2008 and subseq uent model-year trucks and do not modify the existing exemption for sleeper truck s in the in-use idling restriction requirement.

After the Staff Report was released, the Engine Man ufacturers Association (EMA) transmitted a proposal to staff, that new engines i n all 50 states would be equipped with a password protected, programmable engine shut down system that would activate after the engine idled five minutes, but t hat could also be deactivated by the truck owner or owner-operator. In addition, all sl eeper trucks would continue to be exempted from the in-use idling restriction require ment. EMA also suggested that if ARB did not accept the proposal to maintain the exe mption of sleeper trucks, ARB should provide another option that phased out that exemption according to date of manufacture, or by using a percentage-of-fleet appr oach, with continued exemption of 2010 and newer model year trucks. ARB rejected this proposal because it would not be as effective in reducing emissions and in en forcing the idling restriction requirements as the proposed adopted amendments.

For the reasons set forth in the Staff Report, and based on staff’s comments and responses at the hearing and in this FSOR, the Boar d has determined that no alternative considered by the agency or brought to the attention of the agency would be more effective in carrying out the purpose for w hich the regulatory action was proposed or would be as effective and less burdenso me to affected private persons than the action taken by the Board.

II. MODIFICATIONS TO THE ORIGINAL PROPOSAL

A. MODIFICATIONS APPROVED BY THE BOARD AT THE PUBL IC HEARING

AND THAT WERE IDENTIFIED IN THE 15-DAY PUBLIC COMME NT PERIOD

As previously discussed, during the October 20, 200 5 public hearing, the Board approved the adoption of the originally proposed am endments with several modifications. The modifications approved by the B oard and those identified subsequent to the Board hearing were explained in d etail in the Notice of Public Availability of Modified Text that was issued for a 15-day public comment period that- 7 -

began on June 28, 2006, and ended on July 13, 2006. In order to provide a complete FSOR for this rulemaking, these modificati ons and clarifications are also described below by section number.

1. Modifications to Title 13, CCR, Section 1956.8

Override Switch Setting During Power Take Off Mode

The provision allowing the engine shutdown system t o be overridden during power take-off operation was modified to remove the requi rement that the override switch be designed to fail in the “off” setting. This cha nge was made to accommodate safety concerns. (Section 1956.8(a)(6)(A)2.a)

Exempting Military Tactical Vehicles, Authorized Em ergency Vehicles, and Medium-Duty Vehicles from the Engine Shutdown Syste m Requirement

Paragraph (a)(6)(B) was modified to explicitly exem pt military tactical vehicles, authorized emergency vehicles, and medium-duty vehi cles from the engine shutdown system requirement. The modifications sim ply clarify the applicability of the requirement since Title 13, CCR, Section 1905, and California Vehicle Code Section 27156.2 already exempt military tactical ve hicles and authorized emergency vehicles, respectively, from any motor vehicle emis sion control device requirements.

With respect to medium-duty vehicles, staff clearly stated in its presentation to the Board that this requirement only applied to heavy-d uty diesel engines installed in vehicles with a gross vehicle weight rating greater than 14,000 pounds. However, this was not explicitly stated in the original prop osed regulatory text. The modifications remedy this oversight.

Shutdown System Override for Exhaust Emission Contr ol Device Regeneration

Section 1956.8(a)(6)(A)2.c adds a new provision tha t allows the engine shutdown system to be overridden during periods when the veh icle’s exhaust emission control device (e.g., diesel particulate matter trap) requi res regeneration during periods of engine idling and the override is needed to prevent aftertreatment or engine damage. The engine shutdown system may be overridd en for no longer than 30 minutes during regeneration periods. Regeneration events requiring longer than 30 minutes are subject to advance Executive Officer ap proval. This modification also requires that any override system incorporate a lig ht on the vehicle’s dashboard to

indicate that the exhaust emission control device i s regenerating during idling

conditions.- 8 -

Shutdown System Override for Engine Servicing, Main tenance or Diagnosis

Section 1956.8(a)(6)(A)2.d includes a provision all owing the engine shutdown system to be overriden for up to 60 minutes if requ ired for engine servicing, maintenance, or diagnostic routines that require id ling the truck engine for more than 5 minutes. This provision requires the engine shut down system be temporarily deactivated only with the use of a diagnostic scan tool to prevent unauthorized overrides of the shutdown system.

Engine Emissions when Certifying to the Optional Id ling Standard 1

Paragraph (a)(6)(C) was modified to clarify how a m anufacturer may determine whether or not emissions of carbon monoxide (CO), n on-methane hydrocarbons (NMHC), and particulate matter (PM) are adversely a ffected when certifying an engine to the optional oxides of nitrogen (NOx) idl ing standard. The modification states that a manufacturer certifying an engine to the optional NOx standard may compare emissions of CO, NMHC, and PM from the supp lemental NOx idling test procedure to corresponding emissions from the idle mode of the supplemental steady state cycle (European Stationary Cycle) and/ or idle portions of the transient test cycle (the Federal Test Procedure). With appr oval from the Executive Officer, a manufacturer may also use other methods of ensuring emissions are not adversely affected in meeting the optional NOx standard. In addition, to avoid confusion with the term “supplemental steady state test cycle” (wh ich refers to the European Stationary Cycle), the term “supplemental steady st ate test procedure” (which referred to the optional NOx standard certification test cycle) has been changed to “supplemental NOx idling test procedure.”

Incorporate Revisions into Applicable Test Procedur e Section

Paragraph (b) specifies by reference the proposed r evised test procedures applicable to heavy-duty diesel engines and vehicle s. This paragraph was inadvertently left out from the original proposed t ext of the regulation. The modification remedies this oversight.

Correction of Minor Oversight

Subsequent to the hearing, staff realized it had in advertently omitted the phrase “reference in subsection (b)” to subparagraph (a)(6 )(C) of section 1956.8, which specifies vehicle label specifications incorporated by reference into the engine shutdown system requirements. The modification cor rects this oversight.

1 This modification has itself been revised by nonsu bstantive changes subsequent to the close of the 15 -day public comment period. The specific nonsubstantive changes are described in detail below in section I I.B of this FSOR, but for purposes of this footnote, the m ost pertinent change is that the 15-day notice refe rred to reactive organic gas (ROG) emissions but ARB’s exha ust emission standards applicable to heavy-duty die sel engines only specify non-methane hydrocarbon (NMHC) levels, so this modification has been revised accordingly.- 9 -

2. Modifications to the “California Exhaust Emissio n Standards and Test Procedures for 2004 and Subsequent Model Heavy-Duty Diesel Engines”

Label Location and Attachment Requirement

Paragraph 35.B.4.3.1 of Part I, Subpart A, was modi fied to clarify that the vehicle label for an engine certified to the optional NOx i dling emission standard or equipped

with a certified/verified APS should be affixed on the designated location on the

exterior area of the hood.

Label Application

Paragraph 35.B.4.5 of Part I, Subpart A, was modifi ed to add truck manufacturers as possible installers of labels for engines certified to the optional NOx idling standard or for compliant diesel-fueled auxiliary power syst ems (APS). Originally, the text included only dealers and distributors as potential installers of labels.

Compliance with the Optional NOx Idling Emission St andard

This modification clarifies that to demonstrate com pliance with the optional NOx idling emission standard, the calculated average NO x emissions of each mode of the supplemental NOx idling test procedure may not exce ed the optional NOx idling standard of 30 grams per hour. (Part II Test Proce dures, Subpart N, 86.1360-2007, subsection B.4.2.3)

3. Modifications to Title 13, CCR Section 2485

Exempting Military Tactical Vehicles from In-Use Id ling Requirement

Paragraph (d)(2)(K) was modified to clarify that th e current exemption of military tactical vehicles from the in-use idling requiremen t also encompasses operational modes including training, testing, and deployment.

Use of On-Shore Electrical Power or Equivalent Tech nologies

Paragraph (c)(3)(C) was modified to clarify that te chnologies utilizing on-shore electrical power or comparably clean emission techn ologies will be allowed as options to comply with the in-use idling regulation s.- 10 -

Battery Powered APS and Electric Infrastructure Pro visions

Paragraph (c)(3)(C) was modified to clarify that a manufacturer using a battery powered APS, fuel cell APS, power inverter/charger for on-shore electrical power, or an electric infrastructure or comparably clean tech nology is not required to seek and receive advance Executive Officer approval before u sing such alternative technology. Attachment C to Resolution 05-55 does not explicitly mention fuel cell APSs as an equivalently clean technology, but subse quent to the hearing, staff determined that fuel cell APSs are within the categ ory of comparably clean technologies that should also not require advance E xecutive Officer approval.

Coordinating Exemption for Aftertreatment System Re generation or Maintenance Provision with Title 13 CCR Section 1956.8(a)(6)(A) 2.c

Paragraph (d)(2)(G) was modified to clarify that id ling occurring during the override provisions in Title 13, CCR, Section 1956.8(a)(6)(A )2.c for exhaust aftertreatment system regeneration or maintenance, as indicated by the required dashboard indicator light, is also exempted from the 5 minute in-use idling restriction. This clarification is needed to maintain consistency bet ween the new engine and in-use components of the regulation.

Expanding Definition of APS to Other Classes of Veh icles

The definition for APS was expanded to include vehi cles other than sleeper berth equipped trucks that might wish to utilize a compli ant APS as an alternative to idling their main engines. The definition of an APS (Sect ion 2485(h)) was therefore amended to allow non-truck commercial vehicles (e.g ., buses) to utilize compliant

APSs.

B. MODIFICATIONS MADE SUBSEQUENT TO THE 15-DAY PUBL IC

COMMENT PERIOD

During the 15-day public comment period, the Engine Manufacturers Association (EMA) submitted comments that specified inadvertent mistakes by staff, and that requested clarification of issues related to the te st procedures for the optional NOx idling emission standard. Staff has reviewed and a grees with these comments, and has made changes to accommodate them. Staff has al so discovered an oversight in the test procedures for the optional NOx idling emi ssion standard and has modified them to correct the oversight. Each of these modif ications constitutes a nonsubstantial change to the regulatory text becaus e, as described in greater detail below, each modification clarifies the requirements or conditions as set forth in the original text (or in the original text as modified in the Notice of Public Availability of Modified Text) and does not materially alter those requirements or conditions.- 11 -

1. Substitute NMHC for ROG in Optional NOx Idling Emis sion Standard Regulation and Test Procedures

EMA points out that the regulatory text and test pr ocedures relating to the optional NOx idling emission standard use the term reactive organic gases (ROG), but that the regulated species for heavy-duty engines is non -methane hydrocarbons (NMHC). Staff agrees. ARB’s heavy-duty diesel eng ine exhaust emission standards for hydrocarbon emissions only specify no n-methane hydrocarbon (NMHC) levels, and this is widely known by the regu lated community. The staff has therefore accordingly modified the regulation and t est procedures.

a. Title 13, CCR Section 1956.8(a)(6)(C) Each of the three citations to ROG has been replace d by the term NMHC.

b. California Exhaust Emission Standards and Test Procedures for 2004 and Subsequent Model Heavy-Duty Diesel Engines and Vehicles

Part I.A.11.B.6.3 Each of the three prior citations to ROG has been r eplaced by the term

NMHC.

2. Substitute “or” for “and/or” in the Optional NOx Id ling Emission Standard Regulation and Test Procedures

EMA states that the regulation and test procedure r equires manufacturers certifying engines to the optional NOx idling emission standar d to compare emissions generated during the supplemental NOx idling test p rocedure to emissions generated during the idle mode of the supplemental steady-state test “and/or” during the idle portions of the transient test cycle. EMA states the usage of the “and/or” term is ambiguous since it can be interpreted eithe r as a conjunctive or a disjunctive term, or both.

Staff’s intent in drafting this provision was to al low a manufacturer to choose which test cycle it wanted to use for comparison to the s upplemental NOx idling test procedure- either the idle mode of the supplemental steady-state test, the idle portion of the transient test cycle, or another tes t procedure, subject to advance Executive Officer approval. Staff’s understanding is that the term “and/or” is interpreted as a disjunctive term, but is amending the regulation and test procedure by substituting “or” for “and/or” to eliminate any possibility of confusion.

a. Title 13, CCR Section 1956.8(a)(6)(C)

The term “and/or” in the fourth sentence has been r eplaced by the term “or”.

b. California Exhaust Emission Standards and Test Procedures for 2004 and Subsequent Model Heavy-Duty Diesel Engines and Vehicles

Part I.A.11.B.6.3

The term “and/or” in the fourth sentence has been r eplaced by the term “or”.- 12 -

3. Clarify Engine Torque Tolerances Specified by t he Supplemental NOx Idling

Test Procedure

EMA states that the supplemental NOx idling test pr ocedure requires a manufacturer to maintain the test engine’s torque within +/- 2% of the target load level, that this specification is infeasible at the loads represente d by the test modes, and recommends instead that the torque tolerance be set at +/- 2% of the maximum torque of the engine.

Staff intended to specify a torque tolerance consis tent with that specified in the U.S. EPA’s heavy-duty diesel engine test procedures, whi ch requires that torque be maintained within +/- 2% of maximum torque of the e ngine at that test speed. Staff has accordingly modified the test procedure to expr essly reflect its intent.

a. California Exhaust Emission Standards and Test Procedures for 2004 and Subsequent Model Heavy-Duty Diesel Engines and Vehicles

Part II.N.86.1360-2007.B.4.2.2

The last sentence in this section is amended by ins erting “of the maximum torque at the test speed.” to clarify staff’s inten t that the torque tolerance is fully consistent that specified in the U.S. EPA’s h eavy-duty diesel engine test procedures.

4. Clarification that Temperature Stability for Su pplemental NOx Idling Test Procedure is Determined by Engine Coolant Temperatu re

The supplemental NOx idling test procedure specifie s that engine emissions must be measured only after temperature stability is attain ed. The procedure defines temperature stability “as the point at which the en gine coolant is within 2% of its mean value for at least 2 minutes.” Although it is apparent that it is in fact the temperature of the engine coolant that must be meas ured to determine temperature stability, the term “temperature” was inadvertently omitted from the test requirements section of the supplemental NOx idling test procedu re. Staff is therefore modifying the test procedure to expressly clarify that the en gine coolant temperature is the parameter that determines temperature stability, an d that the reference to thermostat is to the engine’s thermostat.

a. California Exhaust Emission Standards and Test Procedures for 2004 and Subsequent Model Heavy-Duty Diesel Engines and Vehicles

(i)Part II.N.86.1360-2007.B.4.2.1(a), Part II.N.86. 1360-2007.B.4.2.2

Insert the term “temperature” immediately following the term “engine coolant”

in the third sentence of Part II.N.86.1360-2007.B.4 .2.1.(a), and in the third

and sixth sentences of Part II.N.86.1360-2007.B.4.2 .2.- 13 -

(ii) Part II.N.86.1360-2007.B.4.2.1(b)

Insert the term “engine” immediately prior to the term “thermostat.”

III. SUMMARY OF COMMENTS AND AGENCY RESPONSE

The ARB received written and oral comments during t he 45-day comment period in response to the September 2, 2005 public hearing no tice. Written comments were also received during the 15-day comment period in r esponse to the notice of proposed modified text made available for comment o n June 28, 2006. Listed below are persons and organizations that submitted commen ts.

During the 45-day comment period, the Board receive d written comments from:

Name and Affiliation (If Any) Written Comment

Date Received

1 John Goodrich 2 9/16/2005

2 Larry Green, Sacramento Metropolitan Air Quality Management District (SMAQMD) 9/16/2005

3 John W. Duerr, Detroit Diesel Corporation (DDC) 10/14/2005

4 J. R. Mandel and Timothy French, Engine Manufacturers Association (EMA) 10/14/2005

5 David L. Modisette, California Electric Transportation Coalition (CalETC) 10/14/2005

6 Schuyler Kennedy 10/5/2005

7 Irvin Dawid 10/14/2005

8 Karla Capers 10/7/2005

9 Stan and Jeanie Haye 10/17/2005

10 Arthur Unger 10/17/2005

11 Rex Greer, Pony Pack, Inc. 10/19/2005

12 David A. Piech, International Truck & Engines Corporation (International) 10/19/2005

13 California Trucking Association (CTA) 10/19/2005

2 Mr. Goodrich’s comment was not specifically direct ed at the proposed amendments or to the procedures used by ARB in proposing or adopting the proposed amendm ents. Specifically, Mr. Goodrich’s comment was directed at new diesel passenger cars operating on clean diesel fuel. Because this rulemaking only ap plies to new and in-use heavy-duty diesel vehicles, the comm ent is beyond the scope of the rulemaking.- 14 -

14 Frank Love, Love’s Travel Stops & Country Stores (Love’s Travel Stops)) 10/19/2005

15 Lisa Mullings, NATSO, Inc. (NATSO) [National Trade Association representing truckstops and travel plazas] 10/19/2005

16 Jack P. Broadbent, Bay Area Air Quality Management District (BAAQMD) 10/19/2005

17 David Everhart IdleAire Technologies Corporation (IdleAire) 10/19/2005

18 Rich Wagner & Bob Jorgensen, Cummins, Inc. (Cummins) 10/19/2005

19 Lola Ungar 10/19/2005

20 Marcie Brown 10/19/2005

21 Allen Lilleberg 10/19/2005

22 One written comment was submitted on behalf of the following organizations and public citizens: 10/19/2006

Don Anair, Union of Concerned Scientists

Kathryn Phillips, California Clean Air for Life Campaign Environmental Defense

David Lighthall, Ph.D.

Relational Culture Institute

Karen G. Pierce, Bayview Hunters Point Community Advocates

Diane Bailey, Natural Resources Defense

Council

Bonnie Holmes-Gen, American Lung

Association of California

Bill Magavern, Sierra Club California

Brian Beveridge, West Oakland Environmental Indicators Project

David Schonbrunn, Transportation Solutions

Defense and Education Fund

Teri Shore, Bluewater Network,

A division of Friends of the Earth

Todd Campbell,

Coalition for Clean Air

Tiffany Schauer, Our Children’s Earth

Foundation

Anne Kelsey Lamb, Regional Asthma Management & Prevention (RAMP) Initiative- 15 - Joseph K. Lyou, Ph.D., California Environmental Rights Alliance

Martha Dina Arguello, Physicians for Social Responsibility – Los Angeles

Luis Cabrales, Residents of Pico Rivera for

Environmental Justice

Melissa Guerrero

South Gate Resident

Lynn Devine, (American Lung Association of California) Craig Jones, MD, (University of Southern California Medical Center, Division of Allergy and Immunology),

California Asthma Partners Linda Weiner, Bay Area Clean Air Task Force (BACATF)

Susan Frank, Kirsch Foundation

Harold J. Farber, MD, FAAP, FCCP, Vallejo,

CA

Carolina Simunovic Fresno Metro Ministry

Alise Cappel, Environmental Law Foundation (ELF)

Rosenda Mataka, Grayson Neighborhood Council

V. John White, Center for Energy Efficiency and Renewable Technologies

23 Sue Chiang 10/20/2005

At the October 20, 2005, Board meeting, the ARB rec eived the following written or

oral comments:

Name and Affiliation (If Any) Written

Comment (Date Received) Oral

Testimony

1 Dawn Friest Engine Manufacturers Association (EMA) 10/14/2005 (#4 above) YES

2 Will Schaefer, Robert M. Clarke Truck Manufacturers Association (TMA) 10/20/2005 YES- 16 -

3 Mike Tunnell American Trucking Association (ATA) 10/20/2005 YES

4 Staci Heaton California Trucking Association (CTA) 10/19/2005 (#13 above) YES

5 Randal Friedman U.S. Department of Defense (U.S. DOD) NO YES

6 Jason Vega

California Council for Environmental and Economic Balance (CCEEB) NO YES

7 Rolf Lichtner, Webasto Product, North America, Inc NO YES

8 David Everhart IdleAire Technologies Corporation (IdleAire) NO YES

9 John Fahrenbach IdleAire Technologies Corporation (IdleAire) NO YES

10 David Modisette, California Electric Transportation Coalition (CalETC) 10/14/2005 (#5 above) YES

11 Warner Harris, Coval H2 Partners. LLC 10/20/200 5 YES

12 Rex Greer, Pony Pack, Inc. 10/19/2005 (#11 above) YES

13 Peter Rooney, Pony Pack, Inc. NO YES

14 Andrea Samulon, Pacific Institute NO YES

15 Diane Bailey, NRDC 10/19/2005 (#22 above) YES

16 Karen G. Pierce Ditching Dirty Diesel Collaborative NO YES

17 Bonnie Holmes-Gen, American Lung

Association of California 10/19/2005 (#22 above) YES

18 Don Anair, Union of Concerned Scientists 10/19/2 005 (#22 above) YES

19 Wayne Lorentzen, California National Guard (CNG) 10/20/2005 YES

20 Bill Magavern, Sierra Club of California NO YES- 17 -

During the 15-day comment period, the ARB received the following written

comments:

Name and Affiliation (If Any) Written Comment

Date Received

1 Theresa Acerro 3 06/28/2006

2 Gerald Orcholski 4 07/06/2006

3 Vinu Arumugham 07/09/2006

4 Dawn Friest Engine Manufacturers Association (EMA) 07/13/2006

5 Robert Clarke Truck Manufacturers Association (TMA) 5 07/13/2006

Set forth below is a summary of each objection or r ecommendation made regarding the specific regulatory action proposed, together w ith an explanation of how the proposed action was changed to accommodate each obj ection or recommendation, or the reasons for making no change. The comments have been grouped by topic whenever possible. Comments not involving objectio ns or recommendations specifically directed toward the rulemaking or to t he procedures followed by the ARB in this rulemaking are not included.

Numerous organizations and individual public citize ns submitted comments in support of the adoption of the rulemaking, includin g: the SMAQMD, CalETC, BAAQMD, Union of Concerned Scientists, Environmenta l Defense, Relational Cultural Institute, Bayview Hunters Point Community Advocates, NRDC, American Lung Association of California , Sierra Club of Cal ifornia , West Oakland Environmental Indicators Project, Transportation So lutions Defense and Education Fund, Bluewater Network, Coalition for Clean Air, O ur Children’s Earth Foundation, Regional Asthma Management and Prevention Initiativ e, California Environmental Rights Alliance, Physicians for Social Responsibili ty – Los Angeles, Residents of

3 Ms. Acerro’s comments were not specifically direct ed to the modifications described in the Notice of Public Availability of Modified Text issued for a 15-day p ublic comment period beginning on June 28, 2006. Specifically, her comments stated that buses and re creational vehicles should not be exempted from the new engine idle shutdown requirement. Because these co mments are not directed to a modification within th e scope of the 15-day notice, they are not addressed in thi s FSOR.

4 Mr. Orcholski’s comment expressed general support for the rulemaking but was not specifically directe d to the

modifications described in the Notice of Public Ava ilability of Modified Text issued for a 15-day publ ic comment period beginning on June 28, 2006. Because this comment is not directed to a modification wit hin the scope of the 15-day notice, it is not addressed in this FSOR.

5 TMA’s comments were not specifically directed to t he modifications described in the Notice of Public Availability of Modified Text issued for a 15-day p ublic comment period beginning on June 28, 2006. Specifically, these comments were: (1) The ARB sho uld reconsider TMA’s comments relating to the propo sed labeling requirements, (2) the leadtime requirement s for the new engine idle shutdown and the in-use i dling portion of the rulemaking are inadequate, (3) the d efinition of “tamper-resistant and nonprogrammable” in 13 CCR section 1956.8(a)(6)(A)(1) is unclear, and (4) the new engine shutdown timer portion of the rulema king conflict with federal hours of service regulation. Because these comments are not directed to a modif ication within the scope of the 15-day notice, they are not addressed in this FSOR.- 18 -

Pico Rivera for Environmental Justice, Melissa Guer rero, a South Gate Resident, California Asthma Partners, Bay Area Clean Air Task Force, Kirsch Foundation, Harold J. Farber, MD, Fresno Metro Ministry, Enviro nmental Law Foundation, Grayson Neighborhood Council, Center for Energy Eff iciency and Renewable Technologies, Schuyler Kennedy, Irwin David, Karla Capers, Stan and Jeanie Haye, Arthur Unger, Lola Ungar, Marcie Brown, Ditching Di rty Diesel Collaborative, COVAL Partners, Webasto, Theresa Acerro, Gerald Orcholski , and Vinu Arumugham

,. The comments by CalETC supported the regulation with so me recommendations. Comments in support of the proposed regulatory acti ons are not summarized below, unless they are relevant to another comment or resp onse.

The comments summarized below are divided into 12 s ubsections: (A) General Comments, (B) New Engine Shutdown System Requiremen ts, (C) Optional NOx Idling Emission Standard and Test Procedures, (D) A uxiliary Power System Requirements, (E) Electrical Power Based Alternativ e Technologies, (F) Compliance Cost, (G) Labeling Requirements, (H) Removal of Sle eper Truck Exemption, (I) Air Quality Benefits, (J) Leadtime and Stability Requir ements, (K) Federal Hours-ofService Requirements, and (L) Commerce Clause Comme nts

A. GENERAL COMMENTS

1. Comment : NATSO opposes the proposed elimination of the ex emption for sleeper berth equipped trucks from the anti-idling requirements of title 13, California Code of Regulations (CCR) section 2485. The proposal notes that new technologies are entering the market place, but adopting and implementing these new technologies will require more time than the time frame specified in the rulemaking. Although ARB may wish to accelerat e the market adoption of idle reduction technologies through a regulatory in itiative, it should allow the marketplace more time to incorporate the new idle r eduction technologies to ensure that the economic investments by the truckin g and travel plaza industries are protected. (NATSO)

Agency Response : ARB disagrees that the time frame for eliminatin g the sleeper berth exemption is too short, because a num ber of proven and costeffective idle reduction technologies is currently available. For example, APSs and truck stop electrification have been available in the market for many years, although their penetration into the market has curr ently been very limited, despite the fact that some of these devices can pay for themselves through fuel savings in one to two and half years. Also, the re gulation will encourage the deployment of truck stop electrification at travel plazas, resulting in economic benefits for truck stop operators because more truc k drivers will rest at electrified truck stops, especially those without o n-board cab comfort devices. Staff does not believe that providing more time for market forces to respond will benefit trucking businesses or truck stop operators , since the attitude of the trucking industry towards these technologies may re main unchanged in the- 19 -

absence of a regulation. Furthermore, California h as severe air quality problems that preclude it from delaying the impleme ntation of this rulemaking.

2. Comment : ARB should acknowledge the significant national efforts already underway to develop a national model idling law, an d should work with U.S. EPA and industry workgroups to develop U.S. EPA’s m odel idling law, to ensure that truck stops within its borders are able to operate on a level playing

field. (NATSO)

Agency Response : U.S. EPA’s model state idling law was developed to serve as a guideline for states or local governments that are considering the adoption of idling restrictions in their jurisdiction. U.S. EPA has expressly stated that it is not promulgating any type of regulation regarding v ehicle idling, and that the model law should only be considered informational i n nature in the model rule (“Model State Idling Law”, EPA420-S-06-001, April 2 006, Transportation and Regional Programs Division, Office of Transportatio n and Air Quality). U.S. EPA’s Model State Idling “Law” therefore does not r equire states to adopt an idling rule or to ensure that their idling restrict ions are consistent with the model

rule. Staff does not understand how the model law will ensure a level playing field for truck stop operators in California, espec ially since other states are not obligated to implement it. However, to the extent that the comment is directed to requesting that this rulemaking be consistent wi th U.S. EPA’s model law, this rulemaking is largely consistent with the model law . (See also the Agency Response to Comment 3).

3. Comment : More than 30 different idling regulations curren tly exist in various states, counties, and cities, and these contain dif ferent limits and exceptions, making it impossible for drivers to know what restr ictions are in place and whether a particular jurisdiction even has a regula tion. ATA has been working with U.S. EPA in a national effort to bring consist ency to idling regulations. Unfortunately, California’s idling regulation is in consistent with existing idling regulations in other states as well as U.S. EPA’s e fforts to achieve national uniformity through a model law. National efforts a re underway to encourage the use of alternatives to idling. However, Califo rnia’s compliance options to the idling regulation – 30 gram per hour NOx engine and APSs with PM traps – simply do not exist. Thus, California’s technology -forcing strategy is

inconsistent with national and state efforts to red uce idling. (ATA)

Agency Response : The Agency Response to Comment 2 is incorporated herein. This rulemaking consists of requirements a pplicable to both new and in-use engines. A comparison of this rulemaking’s in-use idling requirements with the requirements in U.S. EPA’s Model State Idl ing Law shows that both are largely consistent with each other. For example, b oth laws restrict idling of diesel trucks to 5 minutes and both contain mostly identical exemptions. The requirements regarding diesel-fueled APSs installed on 2006 and older trucks are also the same. Although the U.S. EPA model law does not provide any specific recommendation for APSs installed on 2007 and newer model year- 20 -

trucks, it also takes no position against this rule making’s requirement for a Level 3 verified PM control device. In fact, the m odel law discusses California’s requirement for an APS with a Level 3 PM control de vice as an example of a compliance option for APSs applicable for 2007 truc ks. Furthermore, as stated in the Staff Report, PM filter manufacturers are de veloping devices for APSs and staff expects them to be verified in time such that fully packaged APS systems will become available in 2008. Trucking bu sinesses can also utilize other currently available, cost-effective technolog y options (e.g., battery-based APSs, thermal energy storage systems, truck stop el ectrification, etc.) to provide power for climate control, engine heating, or electrical power purposes that would otherwise be supplied by idling the vehi cle’s main engine.

The U.S. EPA model law for states does not contain recommendations regarding idling emission controls for new engines, and therefore can not be compared to California’s new engine requirements. This option was included to accommodate engine manufacturers’ requests for an o ption to certify engines to a NOx idling emission standard instead of comply ing with the engine shutdown system requirement. See the Agency Respon se to Comment 11 for a discussion on the technical feasibility of the op tional NOx idling standard. Also, manufacturers would not have requested this a lternative compliance option if they believed it is infeasible for 2008. Although, as stated in the Staff Report, staff did not anticipate that manufacturers would be able to comply with this optional compliance option by the 2008 model y ear, several engine manufacturers have already informed staff that they intend to introduce engines that comply with the optional NOx idling standard b y the 2008 model-year. Also, staff expects other states to modify their id ling rules to allow trucks that comply with the optional NOx idling requirements to operate within their state.

4. Comment : The in-use idling rule presently exempts military tactical vehicles during training. This exemption should be clarifie d to specify that it also encompasses operational modes including training, t esting, and deployment. (U.S. DOD, CNG)

Agency Response : During the public hearing, staff informed the Bo ard that its intent in developing the in-use portion of the rule making was consistent with this comment. As directed by the Board, staff has accordingly modified the in-use portion of the rulemaking to clarify that t hat the current exemption of military tactical vehicles from the in-use idling r equirement also encompasses operational modes including training, testing, and deployment.

5. Comment : [Received during the 15-day public comment period ]. Military vehicles should be exempted from idling limits only during combat. Since military vehicles are operated for a vast majority of their lifetimes in non-combat environments, there is no reason to exempt them fro m the idling limit. (Vinu Arumugham)- 21 -

Agency Response : No change was made in response to this comment. Military personnel must necessarily operate tactica l vehicles during training exercises as well as during actual wartime or emerg ency situations. Requiring training exercises to be significantly different fr om actual combat operations would impair the military’s combat readiness. Ther efore, military vehicles are excluded from compliance with the idling requiremen ts during non-combat operations such as training, deployment, or testing

.

6. Comment : The ARB should forbid idling and send a $100 chec k to long-haul truck drivers to pay for half of the trucker’s bill for a modest hotel/motel near the truck’s route. Paying the trucker’s bills requires a big bureaucracy, but such cost is much less than paying for health care for t hose injured by the PM2.5 emissions from diesel engines. (Arthur Unger)

Agency Response : ARB appreciates the comment to the extent that it supports restricting the extended idling of sleeper berth equipped trucks. However, this rulemaking does not include any provi sion to reimburse truck drivers for lodging costs, and ARB believes such re imbursement is unnecessary, since truck drivers can instead choose to use any of the commercially available cost-effective cab comfort d evices to provide for cab comfort. Truck operators can quickly recover the c ost of such cab comfort devices through fuel and maintenance savings.

7. Comment : We support a rule that does not allow trucks to i dle all night, but the rule should also apply to buses, which sometimes si t for hours on end idling. (Stan and Jeanie Haye)

Agency Response : As discussed in section IV.A.i. of the Staff Repo rt, the ARB is exempting buses from the new engine requirements of this rulemaking because they have large volumes and window areas th at require operating the vehicle’s main engine to power air conditioning sys tems with a high heating and/or cooling capacity.

B. ENGINE SHUTDOWN SYSTEM REQUIREMENTS

8

. Comment : The statement on page 27 of the Staff Report tha t the key requirement of the new engine idle shutdown timer p roposal can be accomplished with only minor modifications in progr amming the electronic control module (ECM) software to prevent adjustment and tampering is

incorrect. That assessment and the lack of a feasi bility analysis appears to trivialize the engineering resources required to ad dress this proposal because requiring the engine shutdown system to be non-prog rammable and tamperproof will potentially require hardware changes to the ECM, software changes to the engine calibration, and changes to the elect ronic service tools used to service the heavy-duty engine. This proposal would seriously overburden the engineering resources dedicated to meeting the 2007 and 2010 heavy-duty- 22 -

engine emission standards as well as the new challe nges of the heavy-duty On-Board Diagnostic regulation recently adopted by ARB. (Cummins)

Agency Response : As stated in the Staff Report, the automatic eng ine shutdown system already exists as a programmable fe ature in most electronically controlled heavy-duty diesel engines . Requiring the engine shutdown system to be non-programmable and tamper p roof may require some software changes to the ECM, but the software chang es will not require ECM hardware changes, since most of the software change s will result in the removal of programmable features programmed into th e ECM. Staff does not believe that the requirements will require changes to the electronic service tools used to service heavy-duty engines, as existing ele ctronic service tools will still continue to perform all of their designed functions except that the feature allowing the ability to reprogram the engine shutdo wn system for more than 5

minutes will be removed. Staff therefore believes that the automatic engine shutdown requirement will result in negligible cost s and minimal additional

workload.

9

. Comment : [Received during the 15-day public comment perio d]. EMA supports staff’s proposal to provide an idle shutdo wn override to allow for particulate filter regeneration, but the 30 minute allowance proposed is inadequate. The time required to safely complete re generation is somewhat

indeterminate due to variations in filter soot load ing and ambient conditions, but will exceed 30 minutes in most cases. In general, up to 35 minutes may represent minimum in-service regeneration time unde r ideal conditions (ambient, soot loading, etc.) EMA recognizes that staff’s proposal includes an allowance to use regeneration events that are longe r than 30 minutes, but this will require special advance approval by the Execut ive Officer. EMA appreciates this allowance, but believes it is inap propriate to rely on a special approval process to provide flexibility needed for the majority of cases. This simply places an extra and unnecessary administrati ve burden on engine

manufacturers and on ARB certification staff. Acco rdingly, EMA recommends that staff change the maximum regeneration time fro m 30 minutes to 60

minutes. (EMA)

Agency Response : No change was made in response to this comment. The ARB surveyed engine manufacturers regarding the len gth of time their systems required to complete stationary regeneration before it specified the engine shutdown override allowance for particulate filter regeneration. Engine manufacturers’ responses ranged from 15 minutes to 35 minutes, as the length of time needed to safely complete most stationary r egeneration events. Based on this information, staff set the engine shutdown override allowance for stationary regeneration to 30 minutes, which means the engine shutdown system is enabled at the end of the 30 minute perio d and shuts off the engine after 5 minutes, resulting in a total engine operat ing period of 35 minutes. However, staff recognizes that some engine designs may require additional regeneration, and the rulemaking therefore allows m anufacturers, subject to- 23 -

advance approval by the Executive Officer, to overr ide the engine shutdown system for longer periods of time. Allowing an eng ine shutdown override time longer than 30 minutes to accommodate only rare eve nts may allow unnecessary idling and emissions, which reduces the emissions benefit of the rulemaking.

10

. Comment : We would like to seek clarification that the autom atic shut off device would not apply to military tactical vehicles opera ting in California. (U.S. DOD, CNG)

Agency Response : During the public hearing, staff informed the Bo ard that its intent in developing the new engine portion of the rulemaking was consistent with this comment. As directed by the Board, staff has accordingly modified the new engine portion of the rulemaking to clarify tha t military tactical vehicles are exempted from the engine shutdown system requiremen t.

C. OPTIONAL NOX IDLING EMISSION STANDARD AND TEST P ROCEDURES

11. Comment : The alternative NOx idling emission standard (30 g/hr) is not technically feasible because NOx aftertreatment dev ices are not anticipated to be feasible until 2010, as conceded in the Staff Re port (pages 13 and 28). (EMA, Cummins, DDC) . This lack of feasibility violates the mandates o f Health and Safety Code sections 43013, 43018, 43101 , and 42 U.S.C. § 7521(a)(3)(A). [Section 202(a)(2) of the federal C lean Air Act (DDC) .] Furthermore, this is not a voluntary or optional s tandard since it is simply an alternative route to compliance “with an emissions control mandate.” (EMA)

Agency Response : As explained in the Staff Report, staff proposed the alternative NOx idling emission standard and test p rocedure to accommodate engine manufacturers’ requests for an alternative c ompliance option to the idling shutdown timer requirement. ARB disagrees t hat the NOx standard is a mandatory requirement. “Optional” is defined as “i nvolving an option: not compulsory,” and “option” is defined as “the power or right to choose” [2a] or “something that may be chosen: as an alternative co urse of action.” [3a] (Webster’s 10 th Collegiate Dictionary (1995)). This rulemaking wi ll require manufacturers to equip their 2008 and subsequent mo del-year diesel engines with idle shutdown timers unless they choose to cer tify those engines to the subject optional NOx idling emission standard. This also explains why ARB disagrees with the commenters’ characterization of the optional NOx idling alternative as a “standard”, as this option is only an alternative to the installation of a technically feasible automatic idle shutdown d evice (see Agency Response to Comment 8).

The commenters correctly note that the Staff Report states this option is not anticipated to be widely available until 2010 becau se “NOx aftertreatment devices are not anticipated to be employed and othe r engine idling controls/strategies have not been fully demonstrate d” (Staff Report, p. 13) and- 24 -

because it is unlikely that engine manufacturers wi ll equip their engines with NOx aftertreatment devices that are capable of comp lying with the NOx emission standard before the 2010 model-year (id. a t 28). However, ARB disagrees that the NOx idling emission standard is not technically feasible. As discussed in section IV.A.iii. of the staff report (p. 11), several engine manufacturers have indicated that existing NOx afte rtreatment devices (such as NOx adsorbers) demonstrate the potential to reduce NOx emissions during idling. Manufacturers have also suggested that oth er strategies, such as advanced combustion processes, exhaust gas recircul ation, operational controls such as cylinder deactivation and/or other idling emission control strategies may be used to meet the optional NOx idl ing emission standard. The optional NOx idling standard may also be met with e ngines equipped with NOx catalysts. (Section V.B. of the staff report, p. 2 7). However, this may require a supplemental heat source to raise the exhaust tempe ratures to a level that would enable the catalyst to sufficiently reduce NO x emissions, since exhaust temperatures during extended idling are generally l ower than the catalyst’s light-off temperatures. Furthermore, engine manufa cturers would not have requested this option if they believed it is infeas ible. In fact, some engine manufacturers have informed staff that they plan to introduce 2008 model-year engines that comply with the optional NOx idling em ission standard.

Furthermore, this standard does not violate the cit ed statues. Health and Safety Code sections 43013 and 43018 authorize ARB to adopt standards and regulations applicable to new and in-use heavy-duty motor vehicles, and section 43101 specifically authorizes ARB to adopt emission standards for new motor vehicles and new motor vehicle engines. The NOx idling emission standard was developed pursuant to the authority of these and other statutory provisions. Section 202(a)(3)(A) of the federal Cl ean Air Act [42 U.S.C. § 7521(a)(3)] provides that regulations prescribed by the Administrator of the U.S.

EPA applicable to emissions of oxides of nitrogen “...fr om classes or categories of heavy-duty vehicles or engines ... shall contain s tandards which reflect the greatest degree of emission reduction achievable th rough the application of technology which the Administrator determines will be available for the model year in which standards apply, giving appropriate c onsideration to cost, energy, and safety factors associated with the application of such technology.” Section 202(a)(2) of the federal CAA provides that any regu lation prescribed by the

Administrator of the U.S. EPA under section 202(a)(1) of the federal CAA shall take effect “after such period as the Administrator finds necessary to permit the development and application of the requisite techno logy, giving appropriate consideration to the cost of compliance within such period.” These provisions are not directly applicable to the NOx idling emiss ion standard because ARB, not the U.S. EPA, is promulgating the NOx idling em ission standard. To the extent that the comments imply the rulemaking is in consistent with section 202(a) of the federal CAA, the Board directed staff that to the extent it is necessary, to either request a waiver or a confirma tion that the regulations are within the scope of an existing waiver of federal p reemption pursuant to section 209(b) of the CAA.- 25 -

12

. Comment : DDC opposes discontinuing the sleeper truck exce ption, but fully supports the availability of an optional NOx idling standard as an alternative to the mandatory 5 minute idle shutdown requirement an d the use of APS and/ or

fuel-fired heaters. (DDC)

.

Agency Response : ARB appreciates DDC’s support for the proposed o ptional NOx idling standard. For a response to the sleeper truck exemption issue, see the Agency Responses to Comments 58 through 60 and 73 and 74.

13. Comment : Under the proposal, an APS would be qualified for use if it complies

with California off-road and/or federal nonroad emi ssion standards and procedures for its power category and is equipped w ith a verified Level 3 (85% reduction) strategy for particulate matter (PM) con trol or has its exhaust routed directly to the vehicle's exhaust system upstream o f the particulate filter.

California and federal emission off-road / nonroad emission standards for engines in the below 19 kW category are 7.5 g/kWh f or NOx+NMHC and 0.80 g/kWh for PM. When equipped with an 85% effective Level 3 PM control, assuming such a control were available, a Californi a compliant off-road engine could emit 7.5 g/kWh of NOx+NMHC and 0.12 g/kWh of PM. Using ARB's assumption of 5 kW of peak power demand, this APS w ould emit approximately 37.5 g/hr of NOx+NMHC 2 and 0.60 g/hr of PM when operating in-use to provi de cab climate control and electrical needs during dri ver rest periods.

2008 and later heavy-duty engines certified for on- highway use will be equipped with PM filters and will have PM emissions that are near zero and will certainly have idle PM emissions that are well belo w 0.60 g/hr. Similarly, the NMHC emissions of these engines will be essentially zero. Given the substantial PM and NMHC advantages that the main en gines are likely to have relative to qualified APSs, DDC believes that the o bjective of environmental equivalence between main engine idling and APS usag e suggests that the optional NOx idle limit be set no lower than 40 g/h r rather than 30 g/hr as ARB has proposed. 3 4 ( DDC )

Agency Response : First, staff would like to clarify that the requi red APS Level 3 PM control or 85 percent PM reduction is relative to the Tier 4 off-road PM standard which is 0.4 gram per horsepower-hour and not 0.8 grams per horsepower-hour as DDC suggests. Second, the APS d oes not operate at the peak power load of 5 kilowatt at all times, and the refore multiplying the APS standards by 5 kilowatt to determine the gram per h our emission rates grossly overestimates the APS emission rates. A more appro priate load would be to use the annual average power demand of 2.7 kilowatt , as specified in the Staff Report (page 45). Finally, staff does not agree th at idling truck engines will have substantial PM and NMHC advantages than qualif ied APSs. This is because staff estimate that a PM trap equipped on-h ighway engine to emit 0.16 grams per hour PM (Staff Report page 44) and this i s comparable to an APS emission rate of 0.16 grams per hour (estimated ass uming an APS with a Level- 26 -

3 PM control device emitting at the standard of 0.4 grams per horsepower-hour and the average load of 2.7 kilowatt). Staff also believes that the truck engine does not have a significant advantage relative to a qualified APS in terms of

NMHC emissions. Staff estimates a 2007 and later e ngine to emit 8.3 grams per hour of HC while a qualified APS emits approxim ately 1.0 grams per hour (estimated assuming a 7.5 grams per horsepower-hour NOx+NMHC, a 2.7 kilowatt load, and the NMHC to be 5 percent of the total NOx+NMHC).

13a

. Comment : ( Footnote 2 of comment 13 ) DDC is aware that ARB has estimated the NMHC+NOX emission rate at 15.1 g/hr (ISOR page 46). For several reasons, we believe this estimated value is inappro priate as a basis for establishing the optional NOx idling standard. Fir st, this estimate is based on a survey of certified emission levels for off-road en gines in the 5-19 kW rated power range. ARB indicates that the average NOx+NM HC emissions from this survey is 5.6 g/kW-h. The certification standard i s 7.5 g/kWh for engines in this power category and under 2485 (c)(3)(A) use of an A PS emitting at the level of the off-road standard would be permitted. As such, it is the emission standard and not the average emissions of certified engines that should be the basis of the idle emission standard. ( DDC )

Agency Response : DDC’s statement that ARB used a NOx+NMHC emission rate of 15.1 gram per hour to determine the NOx idl ing emission standard is incorrect. ARB intends to set the optional NOx idl e standard at a level equivalent to real-world, in-use APS NOx emissions, as opposed to the APS

NOx certification standard. In the absence of actu al in-use emissions test data for APSs, staff analyzed off-road engine certificat ion data for engines in the less than 19 kilowatt power category to estimate the in- use emissions from these engines. Staff’s analysis yielded an average in-us e APS emission rate of 5.6 grams per kilowatt-hour for NOx+NMHC emissions. As suming a 5 kilowatt of peak power demand, the APS NOx+NMHC emissions would be 28 grams per hour. Assuming the NOx portion to be 95 percent of the total NOx+NMHC emissions, the APS NOx emissions would be 26 grams per kilowatt hour. However, considering the relative size of the truck engine, staff rounded this number up and set the NOx idling standard at 30 gra ms per hour. The commenter’s use of the APS engine standard to set a n equivalent NOx idle standard for the truck engine does not reflect the real-world emissions from APSs. Furthermore, only the NOx component of the e missions should be considered in setting the NOx idling standard, rath er than the total emissions of NOx+NMHC, which the commenter used in calculating i ts proposed NOx idling standard of 37.5 grams per hour.

13b. Comment : ( Footnote 2 of comment 13 ) Secondly, It is recognized that the certification emission levels used in this analysis are values that are weighted over the certification test cycle. The brake speci fic emission levels at particular speed and load operating modes can be considerably different than the weighted cycle values. In fact, for load condition s that are below 40% of the rated engine power, the brake specific emissions in crease rapidly and may be- 27 -

50 or 100% greater than the weighted cycle emission s. ARB estimates that inuse the APS power demand would be about 2.7 kW, wel l below the 5-19 kW power ratings of the engines in the survey. In all probability the brake specific NOx emission of these APS engines under the conditi ons they are expected to operate in the field will be considerably higher th an the 5.6 g/kWh value that ARB used in their analysis. Finally, the 15.1 g/hr NOx emission rate was generated by multiplying the presumed brake specifi c NOx emission rate of 5.6 g/kWh by the average applied loading of 2.7 kW. As ARB has acknowledged and to be consistent with the way the idle NOx emis sions are being quantified for purposes of assessing compliance, the brake spe cific emissions should be multiplied by the maximum loading of 5 kW and not t he average loading of 2.7

kW. While DDC's estimated APS NOx emission rate of 37.5 g/kWh lacks rigor

and shares some of the same deficiencies as the ARB analysis, we believe it is a more accurate, though still somewhat conservative assessment of expected in-use emissions of APS engines. ( DDC )

Agency Response : Staff agrees that brake specific emission levels at particular speed and load operating modes can be di fferent than the weighted cycle values. However, staff is not sure whether l oads below 40% of the rated engine power produce emissions levels that are 50 o r 100 percent greater than weighted cycle emissions, since DDC did not provide any data or reference to substantiate this claim. Nevertheless, in determin ing the brake-specific emission levels during engine certification testing , emissions obtained at load operating modes of 50 percent of maximum test torqu e and lower are weighted more than emissions for load operating modes above 50 percent 6 . DDC may also be correct that a 2.7 kilowatt power demand ma y produce emissions that are higher than the certification data average emis sion rate estimate of 5.6 grams per kilowatt hour. However, contrary to DDC’ s suggestions, staff did not use the 2.7 kilowatt power or the 15.1 grams per ho ur emission rate to establish the NOx idling emission standard. As explained in the Staff Report (page 45), the APS average power demand for winter conditions is 2.3 kilowatt and for

summer conditions 3.1 kilowatt. Staff determined a n annual average power demand of 2.7 kilowatt for purposes of estimating e mission reductions and not for establishing the optional NOx idling standard. Consistent with what DDC requested, staff used the maximum loading of 5 kilo watt power to establish the optional NOx idling standard. Contrary to what DDC believes, staff believes this is the appropriate analysis to establish the o ptional NOx idling standard.

13c. Comment : ( Footnote 3 of comment 13 ) DDC believes that if, as ARB suggests, the intent is to set an optional idle NOx standard that is equivalent to APS NOx emissions, the surest and fairest way to achieve th is objective is to require both APSs and main engines to meet a common grams per ho ur NOx standard when tested under conditions that simulate the expe cted in-use operation when

6 For example, the loading (percent of the maximum t est load) and the weighting factors (WF) for the 5- modes of the D2 test procedure are: Mode 1 - 100% of test load and the WF is 0.05; Mode 2 - 75% of test load and the
WF is 0.25; Mode 3 - 50% of test load and the WF is 0.30; Mode 4 - 25% of test load and the WF is 0.30 ; and

Mode 5 - 10% of the test load and WF is 0.10.- 28 -

providing power for cab climate control and electri cal loads. This standard should be set after a thorough review of the techni cal capabilities of the two types of engines. ( DDC )

Agency Response : In determining the optional NOx idling standard, staff used the best available data on APS power requirements f or providing cab comfort. This data included average and peak power demands f or both winter and

summer conditions. Staff believes that these data together with certification test data are good enough to establish the equivale nt optional NOx idling

standard.

13d. Comment : ( Footnote 4 of comment 13 ) As proposed I956.8(a)(6)(C) indicates that in order to become certified to the optional N Ox idling standard, the NOx standard must be met without increasing the emissio ns of CO, PM, or ROG. It is not clear how the "baseline" levels of CO, PM an d ROG are to be determined when assessing compliance with this provision. More importantly though,

because of the well known emission trade-offs that exist for diesel engines, it will be practically impossible to affect a reductio n in NOx emissions without negatively impacting the emissions of CO, PM or ROG to some degree. DDC believes that this troublesome provision relating t o CO, PM and ROG emissions needs to be removed if the NOx idling standard is t o be a credible option. ( DDC )

Agency Response : Staff agrees that controlling emissions of one po llutant might affect emissions of other pollutants. Howeve r, the purpose of this requirement is to prevent manufacturers from using strategies that may significantly increase emissions of PM, CO, and HC, while controlling NOx emissions in order to meet the standard. One way o f ensuring that this does not happen is to compare emissions test results of PM, CO, and HC from the NOx idling test procedure with corresponding emissi ons from the idle mode of the supplemental emission test or idle portions of the transient test procedure.

14. Comment : [Received during the 15-day public comment period ]. Section 1956.8(a)(6)(C) specifies that a manufacturer certi fying to the optional NOx idling standard must not also increase emissions of CO, PM and reactive organic gases (ROG). However, the regulated specie s for heavy-duty diesel engines is non-methane hydrocarbons (NMHC). ( EMA )

Agency Response : Staff agrees. ARB’s heavy-duty diesel engine ex haust emission standards for hydrocarbon emissions only s pecify non-methane hydrocarbon (NMHC) levels, and this is widely known by the regulated community. The staff has therefore accordingly mod ified the regulation and test procedures by substituting NMHC for ROG.

15. Comment : [Received during the 15-day public comment period ]. The regulation and test procedure requires manufacturers certifyin g engines to the optional NOx idling emission standard to compare emissions g enerated during the- 29 -

supplemental NOx idling test procedure to emissions generated during the idle mode of the supplemental steady-state test “and/or” during the idle portions of the transient test cycle. The usage of the “and/or ” term is confusing and ambiguous since it can be interpreted either as a c onjunctive or a disjunctive term, or both. (EMA)

Agency Response: Staff’s intent in drafting this provision was to allow a manufacturer to choose which test cycle it wanted t o use for comparison to the supplemental NOx idling test procedure- either the idle mode of the supplemental steady-state test, the idle portion of the transient test cycle, or another test procedure, subject to advance Executiv e Officer approval. Staff’s understanding is that the term “and/or” is interpre ted as a disjunctive term, but is amending the regulation and test procedure by su bstituting “or” for “and/or” to eliminate any possibility of confusion.

16. Comment : [Received during the 15-day public comment period ]. The steady state and transient tests are designed to provide e mission results for gaseous emissions and PM that are weighted over the prescri bed test cycle. These tests do not yield emission results that are specif ic to the idle portions of these tests and therefore the bases for comparison that A RB requires to be used simply do not exist. (EMA)

Agency Response : The Agency Response to Comment 15 is incorporate d herein. ARB has identified the steady state and th e transient certification tests as two tests that manufacturers may elect to utiliz e to compare emissions generated during these tests against emissions gene rated during the supplemental NOx idling test, in order to determine that these emissions are not adversely affected. If a manufacturer does not want to measure emissions using the idle portions of either of the specified two certification test procedures, it can use other procedures, subject to advance Exe cutive Officer approval.

17. Comment : [Received during the 15-day public comment period ]. When an engine is operating on the idle portions of the ste ady-state and transient certification tests, it is operating at its normal curb idle speed with no external load applied. The supplemental NOx idling test pro cedure requires the engine to be operated at two specified modes involving the application of external loads, and the second mode requires the engine to b e operated at elevated speed. The higher loads and speed of the supplemen tal NOx idling modes will result in increased grams/hour emissions of CO, HC, and PM and will make it virtually impossible to comply with the “no increas e” requirement.

Also, there is no meaningful baseline that can be used to compare with the CO, NMHC and PM emissions from the two modes of the sup plemental NOx idling test procedure. As a result ARB must either develo p specific grams per hour

standards for these constituents over the NOx idlin g test or remove entirely requirements for these emission constituents. EMA recommends that ARB

follow the latter course. (EMA)- 30 -

Agency Response : The Agency Response to Comment 16 is incorporated herein. The “no increase” requirement serves as a stop-gap measure to prevent manufacturers from adversely affecting emis sions of CO, NMHC, and PM in order to comply with the optional NOx idling standard. Staff agrees that the higher load and engine speeds of the supplement al NOx idling modes may result in higher gram per hour emissions of NMHC, C O, and PM than those

from tests conducted at curb idle and at no load co nditions. However, to check if emissions have been adversely affected or to mak e emissions from the various tests comparable, manufacturers may compare brake-specific emissions (i.e., normalize the gram per hour high l oad-high speed emissions by the horsepower load and compare them with gram per horsepower-hour emissions of the idle mode of the supplemental stea dy state test or the transient test). Manufacturers can also use other acceptable methods to demonstrate that CO, NMHC, and PM emissions are not adversely affected in complying with the optional NOx standard.

18. Comment : The proposed supplemental NOX idling test proced ure is overly

burdensome and does not account for differences bet ween sleeper and nonsleeper trucks. An engine manufacturer must determ ine needed engine loads for all the numerous truck and engine configuration s. A manufacturer can estimate a worst case scenario of engine load, but this would require emission reductions, and therefore an emission level lower t han that required to meet the optional standard.

Also, the optional standard requires averaging of Mode 1, a “loaded” curb idle, and Mode 2, ramped sleeper mode. However, as speci fically noted by ARB, Mode 2 is primarily used for sleeper berth trucks a nd not the non-sleeper trucks (e.g. medium duty delivery trucks). Therefore, req uiring non-sleeper trucks to be tested and meet sleeper truck requirements is ar bitrary and overly

burdensome. (International)

Agency Response : When a manufacturer certifies heavy-duty engines , it does not know what application the engines will be placed in, or whether they will be installed in a sleeper berth equipped truck or not. Some new trucks are being engineered to allow easy conversion into a va riety of body styles. For example, day cabs can easily be converted into slee per trucks and vice versa. For these reasons, all engines are required to meet the same emission standards irrespective of the truck’s initial body design or the application that they are going to be installed in.

Staff also wishes to clarify that the regulation d oes not require averaging of Mode 1 and Mode 2 emissions. As clarified during t he 15-day notice, compliance with the optional NOx idling standard, o nly requires that the average NOx idling emissions of each mode shall not exceed the optional NOx standard of 30 grams per hour.- 31 -

19. Comment : ARB staff has not provided reasonable justificat ion for the proposed idle emission test procedure. The staff’s comment that truck operators elevate idle speed to provide more power for cab comfort and accessory devices may be true, but ARB did not prov ide statistical data/justification to determine if the specified sp eeds and loads are indicative of in-use extended idle operation. A manufacturer sho uld be allowed to determine the appropriate idle test procedure, which would be indicative of expected speeds and loads for the different heavy-duty diese l engine platforms and applications, and which would result in a more accu rate test procedure for evaluating idle emissions. (Cummins)

20. Comment : The specified test procedure is unnecessarily co mplex and may not accurately quantify NOx idle emissions during actua l extended idle operations. First, the two modes specified in the supplemental NOx idling test procedure may not represent the conditions that a particular engine will operate in during periods of extended idle in actual use. Manufactur ers should be permitted, with Executive Officer approval, to specify an alternati ve mode or set of speed/load modes with appropriate weighting factors which will represent how the engine is expected to operate in-use during extended rest per iods. This flexibility will permit a more accurate appraisal of the actual in-u se emissions. (DDC)

Agency Response to Comments 19 and 20 : The Agency Response to Comment 16 is incorporated herein. Based on staff’ s knowledge and experience, most truck operators do elevate idle sp eeds during overlay periods to provide more power to operate cab comfort device s and to reduce vibration of the cab. In determining the test speed for mode 2, staff referred to two survey studies that described operator practices of elevating engine speeds during extended rest periods 7 and to engine manufacturers’ practice of setting engine electronics in the automatic stop-start syst em to operate the engine at higher engine speeds during extended idling. In ge neral, the results from the two survey studies indicated that most truck operat ors idle their engines at 850 rpm or higher. In particular, the study by Irck et al, notes that nearly 50 percent of the drivers operated their engines at 1000 rpm o r higher, with 40 percent reporting between 1000 and 1100 rpm. These studies therefore suggest that idling engines within this speed range is a common practice by a substantial proportion of drivers. Engine manufacturers that e quip their engines with automatic engine stop-start systems, some of which include the commenters referenced above, also program the engine’s electro nics to raise the engine speed to 1100 rpm when the system is in the engine run or start mode. Thus, staff’s decision to set the test speed for mode 2 b e 1100 rpm is based on best available published data and on manufacturers’ own practice of programming engine electronics to elevate engine speeds to 1100 rpm during extended idling

7 (1) Brodrick, Christie-Joy, N. P. Lutsey, Q. A. Ke en, D. I. Rubins, J. P. Wallace and H. A. Dwyer, an d S. W. Gouse, III. Truck Idling Trends: Results of a Pilot Survey in Northern California , SAE 2001-01-2828 (2) Irck, David and B. Wilson. NOx Emissions and Fuel Consumption of HDDVs during Extended Idle

. Presented to the Coordinating Research Council’s 12 th Annual On-Road Vehicle Emissions Workshop, San Diego, CA, April 15-17, 2002.- 32 -

operation. Furthermore, the test procedure does pr ovide manufacturers with the flexibility to use alternative test procedures with prior approval from the

Executive Officer.

21. Comment : The specified test cycle is unnecessarily compli cated by requiring the specified torque to be held within +/- 2 percen t. In the idle mode test for the supplemental emission test certification testing, t he idle torque requirement cannot exceed 5 percent of the peak torque at peak torque speed. That specification is more appropriate than the proposed requirement by the ARB. First, it is assumed that the ARB staff is specifyi ng +/- 2 percent of the engine idle load, and secondly, 2 percent of a light load or near-zero load as will be the case for curb-idle speed mode, is not only impracti cal but also not achievable as a test specification. (Cummins)

22. Comment : The test cycle requires torque to be held within 2 percent throughout each test mode. Holding torque within 2 percent of the torque at the specified test modes (40 N-m/ 30ft-lb at mode 2 and approximately zero at mode 1) is beyond the capabilities of laboratory te st systems. This specification should be revised to provide an absol ute tolerance of 20 N-m/ 15

ft-lb. (DDC)

23. Comment : [Received during the 15-day public comment period ]. The requirement that the specified torque for the NOx i dle test modes must be held within +/- 2% of the target load value is unreasona ble and infeasible at the loads represented by these test modes. The torque tolerance specification

should be modified to allow for a tolerance of +/- 2% of the maximum torque of the engine. (EMA)

Agency Response to Comments 21 through 23 : Although it is not clearly stated in the test procedure, staff’s intent is tha t the torque must be held within

± 2 percent of the maximum torque at that test speed. This tolerance is consistent with other similar test requirements suc h as the one specified in U.S. EPA’s heavy-duty diesel engine test procedures (CFR , Part 86, Subpart N, section 86.1360-2007). Staff has accordingly modif ied Section 86.1360- 2007.B.4.2.2 of the test procedures to clarify this requirement.

24. Comment : The engine coolant, oil, and fuel pumps are integ ral to operation of the engine and need not be separately accounted for in setting loading requirements at each of the test modes. The air co mpressor does not typically operate during extended idling and therefore should not be accounted for in the test modes. Similarly, the alternator need not be accounted for other than the electrical load specified in mode 2. Since the NOx emissions limit is established by reference to emissions of an APS cer tified using off-road certification test procedures, and since these proc edures do not account for cooling fan load, cooling fan load should also not be accounted for in this testing. In short, the maximum air conditioning co mpressor load and the- 33 -

simulated 2 kilowatt electrical load should be the only external loads applied during this testing. (DDC)

Agency Response : No change was made in response to this comment. The test procedure requires the engine manufacturer to determine the appropriate test load for the two test speeds, i.e., curb idle speed and 1100 rpm, and also identifies several engine accessories that may oper ate during engine idling and therefore need to be accounted for in determining t he test load. If an accessory is integral to operation of the main engine, the te st procedure does not require it to be separately accounted for in determining the t est load. However, the total load or power requirement reported to the ARB durin g engine certification must include the loads contributed by engine accessories that are also integral to the operation of the engine.

Staff does not agree with the statement that the ai r compressor does not operate during engine idling. The air compressor i s connected to the engine through gears or belts. Therefore, whether it is p umping air or not, the air compressor will be driven by the engine at all time s, exerting load on the engine. If the air pressure in the reservoir falls below a certain set pressure (approximately 100 psi), then the air compressor is activated and starts pumping pressurized air to the reservoir, exerting a much higher load on the engine. Similarly, the alternator is also connecte d to the engine through a belt drive. Whether the alternator is charging the batt ery or not, it also will exert load on the engine as long as the engine is operati ng. Therefore, the load required to drive the alternator also needs to be a ccounted for in determining the test load unless it is accounted for in the eng ine’s certification testing.

Furthermore, the test procedure is designed to meas ure emissions by simulating engine loads and speeds that typically o ccur during extended idling of a truck, not to mimic the off-road certification test procedure. Extended idle tests of heavy-duty trucks have shown that the cool ing fan cycles on and off during idling, increasing NOx emissions substantial ly when the cooling fan is operating. Therefore, staff does not agree with th e suggestion that the cooling fan load should not be accounted for as part of the test load.

25. Comment : First, specifying a percentage temperature toler ance without also specifying the temperature scale is ambiguous. The testing requirements specify that the engine must run for 10 minutes and reach temperature stability (defined as the point at which the engine coolant t emperature is within 2 percent of its mean value for at least 2 minutes) b efore emission sampling can begin. The form of this specification is confusing and may be very difficult to comply with. If the “mean value” referenced is int ended to be the mean value of the coolant temperature over the prior 2 minutes of running, then the mean value will be continuously changing value. By the time the test operator can determine if the coolant temperature has been withi n tolerance over the 2 minute period, a new two minute period, mean value and range of coolant temperatures will be underway. Finally, requiring both a 10 minute running time- 34 -

and a coolant temperature stability requirement is unnecessary. The conditions for entry into emissions sampling at a test mode sh ould be revised to either 10 minutes of operation at the specified engine speed and load or a showing that the engine coolant temperature did not vary by more than 5 degrees C over the sampling period. Test operators choosing the secon d option could start emissions sampling upon reaching the specified engi ne speed and load conditions and terminate sampling after an 1800 sec ond sampling period in which the temperature stability conditions are met. (DDC)

Agency Response : The method for determining engine coolant temper ature stability specified in the proposed test procedure was adopted from the engine testing procedures in Title 40, Code of Federal Reg ulations, section 1065.530. Staff proposed this method of determining temperatu re stability to ensure it was consistent with industry-wide, accepted standardize d test procedures that manufacturers must utilize when performing engine t ests for emission certification purposes. It is also clear from the proposed language that the term

“mean value” is intended to refer to the mean value of the coolant temperature measured during the prior 2 minutes of engine opera tion. If the coolant temperature is stabilized and remains within tolera nce over the prior 2 minutes, it is highly likely that the coolant temperature wi ll also remain within tolerance in any consecutive 2 minute periods; otherwise the coo lant temperature is not stabilized. Furthermore, the requirement to operat e the engine for at least 10 minutes before taking emissions measurements is nee ded to avoid measuring emissions immediately after a preconditioning run w hen the NOx aftertreatment device is still hot and will help ensure that emiss ions are measured under conditions that are approximately similar to those experienced during an extended idle operation mode. Also, the specified percentage temperature tolerance applies to the CFR specified temperature scale used during certification testing. For example, section 1065.2 0(a)(3) of the CFR specifies degree Celsius ( ° C) as the unit of measure for temperatures. A manu facturer may also use degree Fahrenheit ( ° F) as the unit of measure which would result in a temperature tolerance that is slightly greater than that calculated if the unit of measure was in degree Celsius.

26

. Comment : Paragraph 4.2.3 of 86.1360-2007(B) requires that the average modal emissions in grams per hour be calculated for each regulated pollutant. Requiring the measurement of each regulated polluta nt increases the testing burden and serves no useful purpose, given that onl y NOx limits are being established. This paragraph should be modified to make it clear that only NOx measurements are required. (DDC)

Agency Response : The regulation requires that manufacturers electi ng to certify to the optional NOx idling standard must de monstrate their engines will not also adversely affect emissions of CO, NMHC, an d PM. The emissions of each pollutant are therefore required to demonstrat e that CO, HC, and PM emissions are not adversely affected.- 35 -

D. AUXILIARY POWER SYSTEM REQUIREMENTS

27. Comment : The proposed requirement [Title 13, CCR section 2485(c)(3)(A)(1)(i)] that diesel-fueled APSs must b e equipped with a verified Level 3 in-use strategy for particulate matter cont rol is an emission standard that is not technically feasible, in violation of s tate and federal law. (California Health and Safety Code sections 43013, 43018, and 4 3101, and the federal Clean Air Act sections 213(a) and 209(e)(2)). (EMA)

Agency Response : This requirement is not a standard that regulates new motor vehicles or new motor vehicle engines, but ra ther constitutes a control on existing, in-use nonroad or off-road engines. APSs are classified as nonroad engines because they do not supply power to propel on-road vehicles; instead, they are mounted on trucks and produce the power fo r heating or air conditioning that would otherwise be supplied by th e vehicle’s primary engine. To the extent it is necessary, ARB will be filing a request for authorization for this requirement with the Administrator of U.S. EPA pursuant to Clean Air Act section 209(e)(2).

ARB disagrees that this requirement is not technica lly feasible. During the time that the Tier 4 off-road regulation was being devel oped, no aftertreatment technology was commercially available for diesel en gines in this category. Thus in the staff report, staff could not specifica lly elaborate on the feasibility of using aftertreatment on these smaller engines. How ever, there is no inherent PM emission characteristic that would prevent the u se of a PM filter system, similar to what will be used on larger diesel engin es. The only characteristic of a small diesel engine that is different than a larg er engine is the exhaust temperature, which is typically lower in a small en gine, requiring the use of an active regeneration strategy of the PM filter for t he system to work. It is well understood that the aftertreatment being developed for 2007 on-road heavyduty diesel engines will also employ this type of s trategy to prevent the possibility of PM filter failure under certain low exhaust temperature operation. Thus, the development of on-road diesel PM filters that will be deployed on all trucks beginning in 2007 is similar to the technolo gy needed for small off-road diesel engines, except the size and active regenera tion strategies may need some modifications to fit the application.

Moreover, the APS requirement is consistent with an d does not violate the cited statues. Health and Safety Code sections 43013 and 43018 authorize ARB to adopt standards and regulations applicable to new a nd in-use off-road or nonvehicle engine categories, and the APS requireme nts at issue were developed in part under the authority of these two provisions. Section 43101 authorizes ARB to adopt emission standards for new motor vehicles , and is therefore not applicable to this in-use control of existing nonroad engines.

Section 213(a) of the federal Clean Air Act [42 U.S .C. § 7547(a)] is similarly inapplicable to this requirement because it directs the Administrator of the U.S.- 36 -

EPA to perform specific actions pertaining to promulga ting regulations applicable to new

nonroad engines and vehicles. As previously state d, ARB may request an authorization for the APS requiremen t with the U.S. EPA. Section 209(e)(2) [42 U.S.C. § 7543(e)(2)] specifie s the criteria the

Administrator of U.S. EPA will utilize in determini ng whether to grant ARB an authorization; namely, if there is any basis for fi nding ARB acted arbitrarily and capriciously in determining the APS requirements ar e at least as stringent as applicable federal standards, whether California do es not need its own standards to meet compelling and extraordinary cond itions, and whether

California’s standards are consistent with section 209 of the CAA. The U.S. EPA will therefore be making each of these findings in responding to ARB’s request for authorization under CAA section 209(e).

28. Comment : To guard against any unintended increase in aggre gate emissions from the expected increase in the installation and use of APSs, ARB is proposing a new series of emission standards for th e small diesel-fueled offroad engines that power APSs. The off-road engines used in APSs are already subject to a set of extremely stringent Tier 4 emis sion standards both as adopted by U.S. EPA and then the ARB. ARB’s propos al to establish new and

different standards for APSs is a breach of faith a nd contrary to the agreedupon commitment by ARB to EMA to fully align and ha rmonize its off-road standards with those adopted by U.S. EPA . (EMA)

29. Comment : The proposed regulation is flawed in that U.S. EP A and ARB have already laid out the Tier 4 path as the best feasib le technology for the immediate future. If adopted as proposed, this reg ulation reneges on that agreement to harmonize the development and use of T ier 4 engines. (Pony Pack)

Agency Response to Comments 28 and 29 : The ARB has adopted regulations that harmonize emission standards on a national basis for most on-road and off-road diesel engines. This regulati on does not change the Tier 4 off-road emissions standards nor does it require engine manufacturers to install particulate filters on these engines. Ther efore, the statements that this rulemaking breaches ARB’s agreements in adopting th e Tier 4 off-road emission standards are simply not accurate. Cather ine Witherspoon, ARB’s Executive Officer, explained at the public hearing that before the Board adopted the Tier 4 standards, it adopted a Diesel Risk Redu ction Program to reduce diesel particulates from in-use vehicles, and durin g the same time the Board was considering the Tier 4 off-road standards, it a dopted the current idling regulation (in Title 13 CCR section 2485) and split it in two parts. The Board adopted a five-minute limit for general idling and directed staff to return this year with a proposal regulating sleeper cab idling emissions. Therefore, the idea that the Tier 4 rulemaking somehow prevented A RB from regulating all those other activities is simply just accurate. Wh ile it was adopting the Tier 4 off-road standards the Board had multiple regulator y efforts underway.- 37 -

This rulemaking specifies that if an operator of a 2007 or later model year truck wants to operate a diesel-fueled APS in California, he or she must then control the PM emissions from the APS either by using a Lev el 3 verified PM control strategy or by routing the APS’s exhaust into the e xhaust system of the main engine. This requirement is designed to prevent ex cess emissions when a diesel APS is used instead of idling the truck engi ne, and specifically allows diesel APSs to be used as a compliance option, inst ead of flatly prohibiting their

use. Particulate filter manufacturers are currentl y developing filters for APSs and staff expects a fully compliant APS to become a vailable in 2008. Finally, see the Agency Response to Comment 27 for a discuss ion regarding the feasibility of a PM trap for APS applications.

30

. Comment : A Level 3 verified particulate filter for a dies el APS using a Tier 4 engine is not yet commercially available. We curre ntly know of no such device for this application. A better course of action wo uld be to require the use of an automatic shut-down/restart cycling system of the s mall engine when used in

an APS. (Pony Pack).

Agency Response : The Agency Response to Comment 27 is incorporate d herein. The regulation contains a provision allowi ng a manufacturer to use an alternative compliance strategy for APSs, subject t o advance approval from the Executive Officer (see Section 2485(c)(3)(A)(2)). For example, Pony Pack may develop a compliance strategy that uses an automati c shut-down/restart cycling system in combination with other strategies, to dem onstrate compliance with the diesel APS requirements.

31. Comment : The ARB should delay the aftertreatment requirem ents of small engines to a future time, such as 2011, when the Ti er 4 rule requires the next category of engines (above 25 hp) meet exceedingly low PM levels. (Pony Pack)

32

. Comment : It is not clear whether diesel APS manufacturers will be able to introduce products that meet the required Level 3 P M control, and it may therefore be prudent to revisit the implementation date issue at a later date. (CCEEB).

33

. Comment : APS manufacturers might not be able to meet the p roposed requirements (develop a Level 3 verified PM control for APSs). (ATA, TMA)

Agency Response to Comments 31 through 33 : The Agency Response to Comment 27 is incorporated herein. As stated above , staff believes that particulate filters for APSs will become available before the 2008 implementation date, and therefore disagrees that t he implementation date of the APS requirements should be extended. However, in the event that no Level 3 technology is available in 2008, truck oper ators will have other available cab comfort technologies to choose from that alread y meet the requirements of- 38 -

this regulation, such as battery electric APS and t hermal energy storage
systems.

34. Comment : Even if a Level 3 PM trap for the small engines p owering APSs becomes available, there is not enough time to inte grate the device into this application and then conduct enough field testing a nd design refinement to ensure the APS will perform satisfactorily and reli ably. Also, the cost for such systems may increase beyond the $5,000 to $10,000 r ange, making them that much less attractive to truck buyers and operators. (TMA)

Agency Response : It should be noted that the rulemaking requires that a diesel powered APS be equipped with a verified Leve l 3 in-use strategy for particulate matter. The PM trap must therefore fir st be verified under ARB’s verification procedures. ARB’s verification proced ures involve a thorough evaluation of the emission reduction capability of a trap and of its durability. The verification process ensures that the emission reductions achieved by the trap are both real and durable, and that production units in the field are achieving emission reductions that are consistent w ith the verification. It also requires the trap manufacturer to warrant its produ ct that the verified PM trap is free from defects in design, materials, workmanship , and operation of the trap

achieves the emission reduction levels it was verif ied to. Thus, although the commenter is concerned regarding the time needed to conduct field testing and design refinement, most, if not all, of these effor ts will have already been conducted by the trap manufacturer.

As stated in the Agency Response to Comments 31thro ugh 33, this rulemaking does not mandate usage of a diesel APS. The cost o f diesel APSs equipped

with Level 3 verified PM devices reflect staff’s be st estimates, and the bases for staff’s cost estimates are fully set forth in secti ons V and VII of the Staff Report.

35. Comment : Allowing the exhaust from diesel-fueled auxiliary power supplies (APSs) to be routed into a truck’s diesel particula te matter aftertreatment device might jeopardize “engine warranties, which can be n ullified if the engine is modified. It remains to be seen whether engine man ufacturers would consider this to be a form of tampering.” (CTA)

36. Comment : Routing the exhaust from a diesel APS into a truc k’s diesel particulate matter aftertreatment device requires t he heavy-duty diesel engine manufacturer’s guidance and approval. ( Cummins)

Agency Response to Comments 35 and 36 : Existing statutory and regulatory provisions regarding warranty requiremen ts for medium and heavyduty vehicles and engines, and on-road aftermarket parts, ensure that routing a diesel-fueled APS’s exhaust into a truck’s particul ate matter aftertreatment device will not jeopardize the truck’s engine warra nty.- 39 -

Staff anticipates that two primary scenarios will o ccur with regards to the integration of APS and truck exhaust systems; an en gine or truck manufacturer certifies a fully integrated APS and vehicle exhaus t system, or a third party (aftermarket installer) routes the APS exhaust into a previously certified engine exhaust system configuration. Under the first scen ario, the certifying entity (engine or truck manufacturer) must warrant the int egrated exhaust system pursuant to applicable warranty provisions (Health and Safety Code sections 43205 “Warranty requirements for light and medium d uty motor vehicles) or section 43205.5 “Warranty for motor vehicles other than light and medium duty” and title 13, CCR section 2035 et seq.), and is therefore responsible for covering the entire integrated system under its war ranty.

Under the second scenario, an entity other than the engine manufacturer routes the APS’s exhaust stream into the vehicle’s particu late matter aftertreatment device. This modification must comply with the pro visions of ARB’s on-road aftermarket parts regulation (Title 13, CCR section 2220 to 2225), which requires the entity to demonstrate that the modific ations will not increase emissions compared to the baseline configuration, a dversely affect the durability of the vehicle’s emission control system , or affect the proper operation of the vehicle’s on-board diagnostic syst em. If ARB exempts the modification from the prohibitions of Vehicle Code section 27156 and 38391, that modification cannot jeopardize the engine’s wa rranty. Title 13 CCR section 2036(d)(10) [applicable to 1979 and subsequent heav y-duty vehicles and engines] and section 2037(d)(10) [applicable to 199 0 and subsequent mediumduty vehicles and engines] provide:

“Any add-on or modified part exempted by the Air Re sources Board from the prohibitions of Vehicle Code section 27156 may be used on a vehicle or engine. Such use, in and of itself, sha ll not be grounds for disallowing a warranty claim made in accordance wit h this article. The vehicle or engine manufacturer shall not be liable under this article to warrant failures of warranted parts caused by the u se of an add-on or modified part.”

This modification does not require the vehicle engi ne manufacturer’s guidance and approval, because such guidance or approval is not a criterion in ARB’s determination whether to issue an aftermarket part applicant an exemption from

Vehicle Code sections 27156 and 38391.

37

. Comment : It is not clear how internal combustion APSs will perform in the real world, and if they will be able to maintain their c ertified emissions level in the future. ARB should establish an in-use testing and inspection program (i.e., “smog check”) for such APSs after the implementatio n date of this regulation

and should conduct bench tests and collect real-wor ld data on APSs and main engine idling, including emissions, fuel usage, mai ntenance costs, and driver

comfort. (CalETC)- 40 -

Agency Response : Diesel-fueled APSs are equipped with small off-roa d engines and are therefore subject to ARB’s off-road engine certification process which verifies that the engine complies with the em ission standards over its useful life. Also, diesel-fueled APSs, like other diesel off-road engines, will be subject to any future in-use compliance requirement s that may be developed to ensure emission standards are complied with in-use. Staff does not believe it is currently necessary to collect other in-use test da ta or implement a complex smog check program for APSs to ensure proper in-use emissions performance.

38

. Comment : Both trucking businesses and equipment manufactu rers need adequate time to test and evaluate compliance techn ologies. Ideally, fleets would like two years lead time to test and evaluate new equipment. Since APS manufacturers will have just over two years to deve lop compliant equipment (if feasible), fleets will not have adequate time to te st and prove the reliability of 2007+ trap-equipped APSs in over-the-road applicat ion. As a result, fleets are likely to hold onto their existing equipment longer in order to use the current APS technologies they are familiar with. (ATA)

Agency Response : The Agency Response to Comment 34 is incorporate d herein. Staff does not agree with the commenter’s statement that fleets will keep their pre-2007 trucks in order to use the curr ent APS technology because other factors, such as engine mileage, warranty cov erage, and operating costs are more likely to influence business decisions whe ther to retain or replace trucks. As stated in the Agency Response to Commen ts 31 through 33, this rulemaking does not require the use of a diesel APS , and a truck operator can choose to use any of the many alternative technolog ies available in the market. If the owner/operator does not want to spend money on these devices, he or she can adjust his schedule and find a truck stop t hat provides off-board climate control such as that provided by IdleAire T echnology.

39

. Comment : The Board should direct staff to work with engin e and emission control manufacturers to develop electronic fuel co ntrol and turbocharger systems for the under 25 hp diesel engines used in APSs. (Pony Pack).

Agency Response : ARB staff will continue to perform their duties i n developing air pollution control programs to protec t the public health, and will participate in other activities as directed by the Board. This request to assist manufacturers in developing improved emissions cont rol technologies is beyond the scope of ARB’s specified duties.

40

. Comment : The Board should fund Carl Moyer projects to assi st in the development, testing, and eventual certification of aftertreatment technologies for small diesel engines. (Pony Pack)

Agency Response : The Carl Moyer Program funds the incremental cost of cleaner-than-required engines, equipment, and other sources of air pollution,

but does not provide funds for developing, testing, or certification of emission- 41 -

control technologies. However, Pony Pack may consi der requesting funds through the Innovative Clean Air Technologies Progr am (ICAT), an ARB program that co-funds the demonstration of innovati ve technologies that can reduce air pollution. ICAT’s purpose is to advance such technologies toward commercial application, thereby reducing emissions and helping the economy

of California.

E. ELECTRICAL POWER BASED ALTERNATIVE TECHNOLOGIES

41

. Comment : Parts of the Staff Report imply that truckers wi ll (or must) decide to use onboard systems (primarily APSs) in response to the sleeper idling prohibition. We request clarification that the rul e does not favor APSs or onboard systems over other technologies. Further, to avoid possible confusion, the rule should also clarify that it does not compe l the installation of APSs or other onboard systems on heavy-duty trucks. We als o request that the rule explicitly provide that on-shore electrical power i s an acceptable alternative to idling. (IdleAire)

Agency Response : The rule clearly does not compel the installatio n of any device on heavy trucks. The primary compliance opt ion of this rulemaking is for a trucker to simply manually shut down the truc k engine after 5 minutes of idling, but the rulemaking also sets performance re quirements for technologies that may be used as alternatives to engine idling. Any technology that meets those requirements can be used, including off-board technologies. Notwithstanding this, staff has modified the regula tion to clarify that technologies utilizing on-shore electrical power or comparably clean emission technologies will be allowed as options to comply w ith the in-use idling regulations.

42. Comment : Advance Executive Officer approval should not be required for battery powered APSs, power inverter chargers for o n-shore electrical power, and on-shore electrical power, and other zero-emiss ion technologies. (IdleAire, CalETC)

Agency Response : As directed by the Board, staff has modified sect ion 2485(c)(3)(C) to clarify that a manufacturer using a battery powered APS, power inverter/charger for on-shore electrical powe r, or an electric infrastructure or comparably clean technology is no t required to seek and receive advance Executive Officer approval before u sing such alternative technology. Subsequent to the hearing, staff deter mined that fuel cell APSs are also within the category of comparably clean te chnologies that should not require advance Executive Officer approval.

43. Comment : The rule should encourage the installation and u se of electrification equipment where it is available. After the rule’s effective date, if electrified parking spaces are available, trucks (including die sel APS equipped trucks and- 42 -

trucks certified to the proposed optional NOx idlin g standard) should be required to shutdown and use the electric infrastru cture. (IdleAire).

Agency Response : No change was made in response to this comment. The rulemaking requires a truck operator to shut down t he truck’s engine after 5 minutes of idling, but allows engines certified to the optional NOx idling standard and trucks equipped with compliant APSs to continue idling. The rule does not otherwise restrict where trucks complying with the proposed requirements can or can not idle, except that idlin g is prohibited within 100 feet

of a restricted area. The decision to shut down a truck and use an electrified parking space in lieu of the other compliance optio ns specified in the rulemaking must be made by truck stop operators and fleet owners, not ARB.

44

. Comment : The effective date of the sleeper portion of the rule [in-use portion of the rulemaking] should be deferred until 2009. This would be consistent with an informal consensus reached last year regarding t he need for a sufficient amount of time for truck stop electrification to be more widely deployed and for APSs to be more widely available. (IdleAire)

45

. Comment : Implementation of the sleeper truck provisions i n January 2008 would force truck owners to purchase diesel APSs, r ather than encouraging cleaner and less-costly on-shore electrical power t echnology. The proposed implementation date does not provide sufficient tim e for on-shore electrical power to become widely deployed. We therefore reco mmend that the sleeper truck portion of the rule be deferred until Septemb er 2009. (CalETC).

Agency Response to Comments 44 and 45 : No change was made in response to these comments. Staff is opposed to po stponing the in-use portion of this rulemaking until 2009. Staff is also not a ware of any informal consensus reached in 2004 regarding the need for a sufficient amount of time for truck stop electrification to be more widely deployed and for APSs to be more widely available. Staff believes that the best way for Id leAire and truck stop

electrification businesses to increase their market share is to introduce their product early and to deploy it widely. Even if tru ck stop electrification businesses install their products early, staff beli eves there will still be a high dependence on on-board cab comfort devices from tru ckers who park in areas where IdleAire’s product or electrified parking spa ces are not available. Therefore, there is a definite limit on how much of the market truck stop electrification may be able to capture. Staff beli eves that the rulemaking’s 2008 implementation date will further encourage the depl oyment of truck stop electrification and will help expedite the installa tion of those facilities.

46

. Comment : The proposal appears to allow battery-based and stop-start systems but the method and requirements for obtaini ng ARB approval are not clear. We assume that truck OEMs and autonomous sy stem suppliers will be able to seek this approval. (TMA)- 43 -

Agency Response : The Agency Response to Comments 35 and 36 is incorporated herein. The in-use component of this rulemaking allows battery-based and stop-start systems as alternative s to main engine idling. Title 13, CCR section 2485(c)(3)(C), as modified du ring the 15-day comment period, clearly provides that battery-based systems can be used without obtaining the Executive Officer’s prior approval. The same section also applies to automatic stop-start systems, which allows the u se of other technologies subject to advance Executive Officer approval, and provided those other technologies are at least as effective in reducing idling emissions as a diesel APS equipped with a Level 3 verified PM device or t he optional NOx idling standard. The entity seeking approval depends on w hether the systems are installed on a vehicle before the legal or equitabl e title to the vehicle has been transferred to an ultimate purchaser (truck OEM) or whether they are installed after legal or equitable title has transferred (aft ermarket installers).

47

. Comment : The ARB should seamlessly integrate its regulator y rulemakings with incentive programs (such as Carl Moyer incenti ve program) so that the Board, industry and other stakeholders can fully un derstand how they interact. A critical part of this is to clearly define the em issions baselines created by particular regulations so that surplus emissions of NOx, ROG, PM and green house gases (GHG) can be determined and clear for i ncentive programs. ARB

staff should establish a clear and consistent basel ine for emissions from truck idling reduction both prior to the implementation d ate of the proposed regulation, and after. (CalETC, IdleAire)

Agency Response : The ARB typically does not integrate two entirely different programs into one rulemaking. The Carl Moyer Progr am has a much larger scope than this idling rule. Following the adoptio n of this regulation, the Carl Moyer funding guidelines were modified to define th e new emission baselines and what constitutes surplus emissions to reflect t he idling regulation. Assuming that there will be a high use of compliant diesel APSs for sleeper trucks, the guidelines establish the emission facto rs of the diesel APSs with Level 3 verified PM traps as baseline emissions. T his means devices such as electric batteries that are cleaner than a complian t diesel APS will be eligible for Carl Moyer funding.

48. Comment : ARB should convene a “working group” as soon as p ossible for interested stakeholders, and other state, federal, and local agencies to discuss how to encourage and facilitate truck stop electrif ication and other zeroemission idling reduction technologies and infrastr ucture. (CalETC)

Agency Response : The ARB generally sets performance-based standard s and therefore does not prefer one technology over a nother, as long as both technologies can meet the standards. By the same t oken, ARB cannot convene a “working group” selectively for one techn ology group in preference over other equally compliant technologies. However , if ARB is invited to join such working groups, it may certainly decide to par ticipate in such groups.- 44 -

F. COMPLIANCE COSTS

49

. Comment : The proposed idling requirements are cost prohibi tive and will cause financial hardships for businesses forced to comply. The ARB should provide financial assistance for affected businesse s to cover the capital costs of compliance with the idling requirements. (CTA)

50

. Comment : The capital cost needed to comply with the idling regulation will create economic hardships for many trucking busines ses, especially small business. Financial assistance is needed to help t rucking businesses better absorb the added operating costs and to minimize th ese hardships. (ATA)

51

. Comment : CCEEB fully supports the idea that incentive prog rams such as Carl Moyer is integrated into rules and other regulation s that are adopted. (CCEEB)

52. Comment: Truck OEMs are offering (or will offer in the nea r future) auxiliary systems integrated into sleeper berth trucks. This should be incentivized, as California and other state and local governments ar e doing. (ATA)

Agency Response to Comments 49 through 52 : The Agency Response to Comment 47 is incorporated herein. The ARB, throug h its Carl Moyer Program, currently provides financial incentives fo r the installation of idle reduction devices on long haul trucks, and has rece ntly updated the Carl Moyer Program funding guidelines to reflect the requireme nts of this rulemaking. It should also be noted that in most cases, the initia l capital costs of a compliant APS will be recouped in 2.5 or less years, due to t he fuel savings resulting from reduced idling. Also see the Agency Response to Co mments 53 and 54.

Another program under development that may provide assistance to comply with the regulation is California Assembly Bill 190 1. This bill would establish, until January 1, 2012, the Truck Retrofit Revolving Loan Program in the Energy Resources Conservation and Development Commission t o help finance the retrofitting of trucks with the U.S. EPA SmartWay U pgrade Kits, including idle reduction technologies, that would be required to h ave specified emission control devices and may have other specified equipm ent. The bill has been passed by Assembly Committee on Transportation and by the Assembly Committee on Jobs, Economic Development and the Eco nomy, and is currently before the Appropriations Committee.

53

. Comment : Many trucking businesses will not be able to affo rd the added capital costs of alternative idle reduction technol ogies to comply with the requirements. (ATA)

54

. Comment : Although the number of trucks stops that equip th eir parking spaces with auxiliary means of providing power to sleeper berth equipped trucks has- 45 -

been increasing, it should be recognized that there will never be enough of these parking spaces – especially in all the locati ons where trucks stop. As a result, this rule will effectively require sleeper berth trucks to be equipped with a fully autonomous cab comfort systems. Costs for su ch systems range from $5,000 to $10,000. This is a significant investmen t for truck owners, and will closely follow the introduction of 2007 emissions-c ompliant engines and their

own associated costs. Some truck owners will not h ave the financial capability to purchase fully autonomous systems. (TMA)

Agency Response to Comments 53 and 54 : Because of the growing demand for cab comfort devices due to idling restrictions and increasing fuel prices, staff

now believes that the cost of an APS will be lower than the $5,000 to $10,000 cost estimated in the Staff Report. This means tha t the pay back period would be much less than the 2.5 year pay back period prev iously estimated in the Staff Report. Furthermore, there are a number of i ncentive programs that trucking businesses can use to alleviate the financ ial burden imposed by this requirement. For incentive programs in California, see the Agency Response to comments 49 through 52. A number of other state s also currently provide low interest loan programs or grants for the purcha se of idle reduction devices. Refer to the U.S. EPA document “Model State Idling Law” 8 for a summary of federal and state financial assistance programs. S taff believes these financial assistance programs and the expected short pay-back periods will motivate trucking businesses to equip their trucks with on-b oard cab comfort devices, or utilize truck stops with electrified parking spaces or IdleAire products rather than trying to sleep in their cab under unfavorable conditions. Thus, any safety issues related to sleeping in an uncomfortable envi ronment can be avoided.

G. LABELING REQUIREMENTS

55

. Comment : The proposed labeling requirements are too much r estrictive in terms of detailed design and size of the labels and their proposed location on the vehicle. If labeling becomes necessary, much s maller labels located under and/or behind the driver’s side door are more accep table. (TMA)

Agency Response : No change was made in response to this comment. The labels are intended to aid enforcement personnel in clearly and easily identifying diesel engines certified to the optiona l NOx idling standard and diesel trucks equipped with compliant PM trap equip ped APSs. Thus, the labels must be applied to a highly visible location of the truck, and their size and color must allow the label to be readily visible fr om a distance of 10 to 15 feet. The commenter’s proposal that the label be smaller in size and be located

under or behind the driver’s side door will hinder effective enforcement and reduce the effectiveness of the regulation.

8 U.S. EPA “Model State Idling Law”, EPA420-S-06-001 . April 2006.
( http://www.epa.gov/smartway/documents/420s06001.pdf )- 46 -

56

. Comment : The labeling provisions in the ATCM portion of th e rulemaking appear to conflict with “Section 4306 of the recent ly enacted federal highway bill” (H.R. 3, now P.L. 109-59), which bars states from requiring any form of identification to be displayed in or on a commercia l motor vehicle, apart from several enumerated exceptions, none of which apply to the [proposed]

emissions label.” (ATA)

Agency Response : As demonstrated below, the cited provision of the federal highway bill only pertains to state labeling requir ements directly related to the registration of trucks and does not preempt the pro posed labeling provisions in the ATCM portion of the rulemaking.

Section 4306 (Title 49, U.S.C. section 14506) was e nacted as a component of the “Unified Carrier Registration Act of 2005” set forth in Subtitle C of the Safe, Accountable, Flexible, Efficient Transportation Equ ity Act: A Legacy for Users' or `SAFETEA-LU', (Pub. L. No. 109-59 (August 10, 20 05) 119 Stat. 1144).

See sections 4301 to 4308, (Pub. L. No. 109-59 (August 10, 2005) 119 Stat. 1144). The Unified Carrier Registration Act replac ed the prior federal statutory scheme applicable to commercial motor vehicle regis tration, the “Single State Registration System” (SSRS), Mid-Con Freight Systems, Inc. v. Michigan

Public Service Com’n

(2005) 125 S.Ct. 2427, 2430, Section 4305, Pub. L. No. 109-59 (August 10, 2005) 119 Stat. 1144).

In a case involving a preemption clause within the SSRS, the United States Supreme Court held the clause did not preempt a sta te law imposing a fee on

trucks. Mid-Con Freight Systems (2005) 125 S.Ct. 2427, 2346. The Court rejected arguments that the clause should be interp reted broadly to preempt all individualized state registration requirements affe cting a carrier, or state registration requirements imposed on carriers becau se of their operation in interstate commerce, and instead found that the cla use (49 U.S.C. § 14504(b)) only preempted state requirements concerning the sp ecific subject matter regulated by the federal statute - SSRS registratio n. Id. at 2432. The Court
reasoned that neither the text, the statute’s basic purposes or its historical context required reading the clause broadly to impl iedly pre-empt other nonSSRS related state rules. Id. at 2434.

Shortly after the Mid-Con Freight Systems case was decided, the Unified Carrier Registration Act of 2005 was enacted to sup ersede the SSRS (section 4304, Pub. L. No. 109-59 (August 10, 2005) 119 Stat . 1144) and to serve as a “comprehensive foundation for registration, insuran ce and safety information.” 65 Fed. Reg. 35287, 35288 (June 2, 200). It is rea dily apparent from the text and purpose of the current Act that its scope is st ill strictly limited to motor vehicle registration requirements and its provision s regarding labeling only preempt inconsistent state laws concerning the spec ific subject matter regulated by the federal statute – vehicle registra tion.- 47 -

First, the text of section 4306 (Title 49, U.S.C. s ection 14506) of the “SAFETEA-LU”, (Pub.L.No. 109-59 (August 10, 2005) 1 19 Stat. 1144), itself indicates that its preemptive scope is limited.

Sec. 14506. Identification of vehicles

`(a) Restriction on Requirements- No State, politic al subdivision of a State, interstate agency, or other political agency of 2 o r more States may enact or enforce any law, rule, regulation standard, or o ther provision having the force and effect of law that requires a motor carri er, motor private carrier, freight forwarder, or leasing company to display an y form of identification on or in a commercial motor vehicle (as defined in section 14504a), other than forms of identification required by the Secret ary of Transportation under section 390.21 of title 49, Code of Federal R egulations. `(b) Exception- Notwithstanding subsection (a), a S tate may continue to require display of credentials that are required-- `(1) under the International Registration Plan unde r section 31704; `(2) under the International Fuel Tax Agreement und er section
31705; `(3) under a State law regarding motor vehicle lice nse plates or other displays that the Secretary determines are ap propriate; `(4) in connection with Federal requirements for ha zardous materials transportation under section 5103; or `(5) in connection with the Federal vehicle inspect ion standards

under section 31136.'.

(b) Clerical Amendment- The analysis for such chapt er is amended by inserting after the item relating to section 14505 the following:

Section 4305 is entitled “Registration of Motor Car riers by States,” and itself contains a preemption clause (Title 49, U.S.C. § 14 504a(c)) that lists the same subject areas at issue in the Mid-Con Freight Systems case: state registration, registration of proof of financial re sponsibility, registration of an agent for service of process, registration of proof of insurance.

Second, section 4302 of the same legislation (set o ut in a note to Title 49, U.S.C. section 13902) also limits the preemptive sc ope of the Unified Carrier Registration Act:

SEC. 4302. RELATIONSHIP TO OTHER LAWS.

Except as provided in section 14504 of title 49, Un ited States Code, and sections 14504a and 14506 of Title 49, United S tates Code, as added by this subtitle, this subtitle is not intend ed to prohibit any State or any political subdivision of any State from enac ting, imposing, or enforcing any law or regulation with respect to a m otor carrier, motor private carrier, broker, freight forwarder, or leas ing company that is not otherwise prohibited by law.- 48 -

While sections 4302, 4305 and section 4306(b) do no t explicitly exempt state health and safety laws from section 4306(a), neithe r do they explicitly include them within the preemptive reach of 4306(a). This is also true of Title 49 U.S.C. § 14504(b) and (c) at issue in the Mid-Con Freight Systems case. In that case, the U.S. Supreme court stated, “[s]imila rly, we see no language elsewhere in the statute suggesting that the term ‘ State registration requirement’ refers to any kind of State Registration whatsoever that might

affect interstate carriers. And even the Governmen t concedes that certain registration obligations- those in ‘traditional are as of state regulation’ –are beyond the pre-emptive reach of the statute.” Mid-Con Freight Systems at 2433. As discussed in section of this FSOR (agency responses to comments 73 through 75), preventing air pollution is and has been a traditional local safety

concern, Huron Portland Cement Co. v. Detroit (1960) 362 U.S. 440, 445-446, and the U.S. Supreme Court also recognizes that the Federal Motor Carrier Safety Administration has no statutory authority “t o impose or enforce

emissions controls or to establish environmental re quirements unrelated to motor carrier safety.” Dept. of Transp. v. Public Citizen (2004) 541 U.S. 752,

759.

Finally, the forms of identification required by the Secreta ry of Transportation under section 390.21 of Title 49, Code of Federal R egulations only specify the “legal name or single trade name of the motor carri er,” 49 CFR 390.21(b)(1), a “motor carrier identification number,” 49 CFR 390.2 1(b)(2), and the name of the operating carrier, 49 CFR 390.21(b)(3). 49 CFR 390.21(b)(4) states “Other identifying information may be displayed on the veh icle if it is not inconsistent with the information required by this paragraph.” See also discussion in 65 Fed. Reg. 35827, 35290-291 (June 2 , 2000). “Concerning the questions raised by the NYSMTA about a local jurisd iction's requirement for listing a full street address, and the Missouri DMC SR's question about a State's requirement for the display of a GVW or GVWR on int rastate-only CMVs, any other identifying information may continue to be di splayed, as long as it is not inconsistent with other § 390.21 requirements.”

All of the above mentioned considerations support t he ARB’s determination that the labeling provisions of the ATCM portion of the rulemaking are not preempted by Title 49, U.S.C. section 14506.

H. REMOVAL OF SLEEPER TRUCK EXEMPTION

57

. Comment : There are areas of the United States where it is h azardous to shut down the engine during winter, where temperatures c an sharply drop in minutes, and a trucker cannot start the engine, whi ch requires a specialist to heat the fuel tanks and engine block at the trucker ’s expense over 12 to 36 hours before the engine can start. A policy of lim ited idle time must be tempered with common sense. (Allen Lilleberg)- 49 -

Agency Response : Recognizing the health and safety issues facing drivers during severe weather conditions, ARB has included in the rulemaking an exemption to allow the main engine to idle continuo usly during extreme weather conditions. For engines equipped with an engine sh utdown system, the engine shutdown system can also be overridden to warm up t he engine if the engine coolant temperature is below 60 ° F. Also, a truck operator may equip his truck with an on-board device that will provide cab comfo rt and engine heating during

extreme weather conditions.

58

. Comment : Truck stops and travel plazas contribute signific antly to California’s economy. ARB’s idling restriction proposal on slee per berth trucks will place these important businesses at a competitive disadva ntage with truck stop operators in neighboring states that exempt sleeper berth equipped trucks from idling restrictions. The ARB’s actions to limit id ling to 5 minutes will force truck operators to limit their time in California in orde r to avoid the added costs of purchasing on-board cab comfort devices. Therefore , ARB should reconsider its proposal to limit idling of sleeper berth truck s to 5 minutes in the state of

California. (Love’s Travel Stops, NATSO)

Agency Response : Staff believes that trucking businesses, faced w ith increasing diesel fuel prices and idling restrictio ns, will be motivated to install on-board cab comfort devices or use truck stops equ ipped with plug-in capabilities rather than rush to neighboring states solely because they can idle the truck engine for cab comfort. Using cab comfor t devices instead of idling the main engine will help truck operators save fuel costs and will provide them a better rest environment. Also, communities are i ncreasingly realizing the

harmful effects of diesel emissions and noise nuisa nce resulting from the extended idling of diesel trucks, which has resulte d in a nationwide increase in state and local rules to limit truck idling. Thus, to also attain air quality standards and reduce fossil fuel consumption, staff expects that in the near future neighboring states or their local government s will adopt regulations to control extended idling of diesel trucks 9 . Staff therefore does not expect that California’s idling requirements will place Califor nia’s truck stop operators at a competitive disadvantage with truck stop operators in neighboring states. In fact, staff believes that the rule will provide tru ck stop operators an additional revenue source if they choose to install alternativ e off-board cab comfort
systems.

59

. Comment : The ARB has not allowed sufficient time for mark et forces to take effect. Many fleets will initially purchase a few alternative idling devices and then increase their purchases as they prove to them selves that those devices positively affect their operating costs and profita bility. Since demand for alternative technologies is up due to increased fue l prices and incentives are

9 Two of California’s state neighbors, Arizona and N evada, have adopted regulations that limit idling o f diesel trucks, although sleeper trucks are exempted during federally mandated rest hours. The idling restric tions are
contained in “Arizona Revised Statutes, Section 11- 876”, for Arizona, and in “Nevada Administrative Co de,
Section NAC 445B.576”, for Nevada.- 50 -

proving effective, we strongly encourage ARB to rec onsider implementing this proposal. Alternatively, if ARB does proceed, that the sleeper berth exemption should be phased out over time, allowing the much l ower emitting newer model year vehicles a longer exemption period beyond the 2008 effective date in the proposal. (TMA)

Agency Response : No change was made in response to this comment. If demand for alternative technologies is increasing d ue to increased fuel prices and incentives are proving effective, then this com plements the effectiveness of the idling regulation. Phasing-out the sleeper ber th exemption over time is not acceptable for two reasons. First, the new model y ear vehicles may be certified to low exhaust emission standards, yet may emit hig h levels of NOx emissions during idle modes. This is because the very low ex haust temperatures that exist during extended idling operations render the NOx catalysts ineffective. Second, since many sleeper trucks are based out-of- state, the proposed phase-out exemption would be difficult to implement and enforce. ARB does not accept the continued exemption of sleeper truck s nor does it agree with the proposal to phase-out the exemption. In addition, sleeper trucks’ contribution to NOx+ROG emissions is significant. ARB estimates th at in 2010, extended idling emissions of NOx+ROG from sleeper trucks wil l be approximately 22 tons per day and 36 tons per day for trucks registered i n California and out-of-state, respectively.

60

. Comment : The proposed engine shutdown system does not all ow a driver to disengage the shut off system in case of an emergen cy situation necessitating

the use of a heater or air conditioner. Since the proposed low NOx idle engine option is infeasible by 2008 and will not be availa ble for purchase, truck owners will be forced to purchase trucks equipped with the shut off devices to comply with the idling requirements, endangering the healt h of drivers and risking public safety.

Drivers of non-sleeper trucks generally will not be equipped with APS units, and the proposed regulation will prevent them from over riding the shutdown system in an emergency situation. Sleeper trucks will be discouraged from using shore power or other alternative technologies, because dr ivers will not be able to plan emergency situations without the use of APS and tru ck owners will not want to incur the costs of using both idle reduction techno logies. CTA recommends that the ARB continue the existing exemption for tr ucks with sleeper berths. (CTA)

61

. Comment : ARB’s requirement for a non-programmable, tamper resistant 5- minute shutdown system will, in effect, eliminate c urrent exceptions for safety or health emergencies and for adverse weather condi tions unless frequent actions are taken by the driver or another party (i n case a driver is not able to respond). By eliminating these exceptions for truc ks sold in California beginning in 2008, drivers of these trucks may be s ubject to adverse impacts should emergencies arise. It does not appear ARB h as given any- 51 -

consideration to how these types of situations can be avoided to ensure driver safety. (ATA)

Agency Response to Comments 60 and 61 : Whether during an emergency situation or not, an operator of a sleeper or non-s leeper truck equipped with the engine shutdown system would be able to continuousl y idle the truck engine by depressing one of the foot pedals every 5 or 15 min utes, depending on whether the parking brake is engaged or not. If the truck is a sleeper truck, the truck owner may purchase the truck wired with a factory i nstalled shore power plug-in

unit and an on-board cab comfort device such as an APS, or may purchase the truck with an APS that is also wired to provide sho re power electricity. This would enable the operator of the sleeper truck to r est in the sleeper berth comfortably anywhere, whether he/she is stopped on the roadside due to severe weather condition or parked at a truck stop with electrified parking

spaces.

If the truck is a non-sleeper truck, the truck is n ot expected to have an APS as the truck operator is not expected to sleep in the truck. However, the operator will still be able to operate the truck engine cont inuously at idle by pressing one of the pedals to override the engine shutdown syste m. The owner of the non-sleeper truck may also consider purchasing a tr uck that is certified to the low NOx idling standard since some manufacturers in tend to make such trucks available for 2008 (see the Agency Response to Comm ent 3). Finally, implementation of the rule cannot be delayed since idling sleeper trucks contribute significantly to the air quality problem of the state (see the Agency Response to Comment 59).

I. AIR QUALITY BENEFITS

62

. Comment : The ARB has grossly overestimated the NOx reducti ons from implementation of the proposed rule. ARB used ques tionable and nonsensical high NOx idle emission rates. First, the various e stimates for idle emission

rates are based on idle emission data taken from tr ucks primarily during the period 1991 through 2003, with a significant portio n of idle measurements between 1995 to 2002. As ARB is clearly aware, NOx emissions during this time period may be suspect. See Agenda Item 00-12- 5. Therefore, use of these idle emissions is inappropriate for estimatin g idle emissions, especially after October, 2002. (International)

Agency Response : The commenter does not specify why the idling NO x emissions during the period from 1991 to 2003 are s uspect, nor is it clear how agenda item 00-12-5 (Amendments to Adopt Not-To-Exc eed and Euro III European Stationary Cycle Emission Test Procedures for the 2005 and Subsequent Model Year Heavy-Duty Diesel Engines) re lates to the statement that NOx emissions during this time period “may be suspect.” Staff cannot respond to an assertion that is not substantiated o r clearly described. Nevertheless, staff will comment on the NOx idling emission rates used to- 52 -

quantify the reductions. The idling NOx emission r ates used in this regulation

were derived from test data obtained from two sourc es: (1) the Coordinating Research Council E55/E59 Heavy-Duty Diesel Testing Project (CRC E55/E59), and (2) the joint U.S. EPA and Oak Ridge National L aboratory (ORNL) idle test program. These are peer-reviewed, published report s and are referenced in the Staff Report. Idle tests in the CRC E55/E59 pr ogram were conducted at curb idle without any loading, while the U.S. EPA/O RNL tests were conducted at different idle speeds (ranging between 600 rpm t o 1200 rpm), different

ambient conditions to simulate winter and summer co nditions, and under different loading conditions (including no load, he ating, and air conditioning load). These reports contain the best publicly ava ilable data and supported

staff’s estimates of idle emission rates and emissi on reductions associated with the rulemaking. Also see the Agency Response to Co mment 59.

63

. Comment : The use of such a high nonsensical idle emission rate fails to account for the significant emission reductions nec essary to meet the new low

emission standards in 2007 and even lower standards in 2010. The idle emission point within the 13-mode supplemental stea dy-state represents 15 percent of the weighted composite. Contrary to ARB ’s estimates, International’s own data suggests that, as standard s decrease, idle emissions are also decreasing. Using data from a model year 2007 medium-duty development engine and ARB’s idle emission estimate of 115.3 grams per hour, the ARB idle estimate contributes 0.14 grams per brake horsepower hour

to the total emissions. Such an idle emission rate , which represents 13 percent and 70 percent of the NOx standard in 2007 and 2010 , respectively, would make it virtually impossible to meet the 2010 stand ard at an average idle emission level of 115.3 grams per hour. Therefore, the estimated emission reductions benefits are arbitrary and significantly overestimated. (International)

Agency Response : The commenter has not provided data supporting i ts statement that its data indicates that NOx idling e missions decrease with a

decrease in standards. The commenter also fails to provide specific information regarding how it arrived at the conclus ion that an idling NOx emission rate of 115.3 grams per hour would contrib ute 0.14 grams per brake horsepower-hour. Without any data to substantiate these statements, staff is unable to adequately respond to this comment. Also , the NOx emission standards are in grams per horsepower-hour. It is understood that the idle

emission contribution to the total emissions in the transient and steady state tests is very small because the engine load, and th us work, is very low. The commenter’s analysis of idle emissions at the 115.3 grams per hour rate does not make sense, since the certification emission te st results are on a gram per horsepower-hour basis, not a gram per hour basis. Staff therefore disagrees

with the assertion that the estimated emission redu ctions are arbitrary and significantly overestimated.- 53 -

64

. Comment : Trucking companies will keep their older trucks longer to avoid purchasing trucks with a combined APS/ PM aftertrea tment system, which has not yet undergone thorough testing and will add a s ignificant cost to new truck purchases in 2008. Instead, pre-2007 trucks will b e kept on the road longer so that trucking companies can use existing, proven AP S technologies. This will counteract much of the expected PM benefits from th e 2007 engine standards. (CTA, ATA).

Agency Response : Staff disagrees with this assessment. Other fac tors such as engine mileage, warranty coverage and operating costs are more likely to

influence business decisions whether to retain or r eplace trucks. Even if trucking companies want to avoid purchasing trucks with a combined APS/PM aftertreatment system, there are a number of other alternative technologies, such as battery based APSs, thermal energy storage, and others they can purchase with a new truck. Furthermore, staff beli eves that trucking businesses will not avoid purchasing new trucks wit h integrated APS/PM aftertreatment systems because such systems will be verified and warranted for their useful lives by the manufacturer, and offer s ubstantial operating savings.

65

. Comment : The idling regulation allows APSs to vent their e xhaust emissions through the truck’s main engine PM aftertreatment e xhaust system. Exhaust emissions from the main engine are held to strict f ederal compliance standards which include minimum requirements for durability a nd effectiveness. As the peer-reviewed science behind the venting of APS emi ssions through the main engine exhaust system appears to be lacking, the im pact of this venting on federally certified main engine exhaust systems, as well as their effectiveness of these systems during APS use is uncertain. (ATA)

Agency Response : The Agency Response to Comments 35 and 36 is incorporated herein. Assuming for purposes of this response that in the absence of the idling regulation, a truck operator of a 2007 truck would idle the engine for extended periods of time to provide cab comfort. Staff estimates the engine-out PM emissions during idling of a PM trap equipped 2007 truck to be approximately 1.6 grams per hour. It is expected t hat the truck’s main PM trap would be designed to safely reduce engine-out PM em issions with minimum back pressure build-up during this extended idling period. It is also assumed that in the presence of an idling restriction, the truck operator would use a diesel-fueled APS to provide cab comfort. The PM e mission rate of a Tier 4 APS engine emitting at the standard and providing a n average of 3 kilowatt power is estimated to be 1.2 grams per hour. If th e APS exhaust is routed through the truck’s main PM trap, the performance o f the main PM trap is not expected to change, since the APS engine PM emissio n rate is almost equal or even less than the truck engine-out PM emission rat e. The commenter’s concern that the effectiveness of integrating engin e/APS exhaust systems is uncertain is simply unsubstantiated.- 54 -

66

. Comment : As documented by the empirical observations conta ined in the “Weekend Ozone Effect” (Journal of Air and Waste Ma nagement Association, 2003, 53 (7) 802-815), decreases in NOx emissions, mostly from fewer truck emissions, was the largest single contributor to el evated weekend ozone in the

South Coast Air Basin. Decreases in NOx emissions did not reduce ambient levels of particulate-phase nitrate either. Conseq uently, emission reductions associated with the idling regulation have the pote ntial to increase ozone

formation. (ATA)

Agency Response : The ozone weekend effect is not a reliable indica tor that NOx control is counter-productive for reducing ambi ent ozone levels. The ARB

conducted studies on the Ozone Weekend Effect 10 and came to the conclusion

that the weekend effect is not a real-world test of California’s NOx control program. California’s ozone control program has be en effective all days of the week, although at a slightly slower rate on weekend s than weekdays. NOx reduction may be one possible explanation for the w eekend effect. However, the ARB’s studies concluded that it may not be the primary cause in some areas and other processes may have significant role s. Plausible causes for the weekend effect include NOx reduction, different tim ing of emissions including NOx, different amounts and impacts of pollutants th at persist overnight aloft, different amounts of light-absorbing particulate ma tter in the air, ozone quenching by nitric oxide emissions, or some combin ation of these five factors. Significant uncertainties remain as to the causes o f the ozone weekend effect and to the relevance of those causes on a long-term control strategy. Therefore, the conclusion that emission reductions associated with the idling regulation will have the potential to increase ozon e formation is

unsubstantiated.

NOx is a key precursor not only of ozone, but also PM and other compounds

with health and environmental concerns. These incl ude nitrogen dioxide (NO 2 ), nitric acid (HNO 3 ), nitrous acid, peroxyacetylnitrate (PAN), nitro-p olycyclic aromatic hydrocarbons (nitro-PAHs), regional haze, and nitrate deposition with subsequent fertilization and eutrophication of soil s and surface waters. Many studies indicate that PM, in particular, but also N O 2 , HNO 3 , and other nitrogen containing pollutants have adverse health impacts, sometimes even greater than ozone episodes. Therefore, NOx control is als o important for the large

health benefits from reductions in other NOx-relate d pollutants. NOx reductions are also needed in ozone non-attainment regions tha t are not always HClimited.

67

. Comment : The ARB disregards advances in NOx adsorber tech nologies and in advanced engine controls that will also control NOx and system regeneration, and the resulting thermal loading on catalysts. Overall, NOx emissions for short duration idle periods will be z ero or low for non-sleeper

10 The Ozone Weekend Effect in California – Staff Report, Technical Support Document, and Ap pendices; ARB, Research and Planning and Technical Support Di vision, June 3, 2003. http://www.arb.ca.gov/aqd/weekendeffect/weekendeffe ct.htm- 55 -

trucks. Since ARB’s own data shows that non-sleepe r trucks and medium duty trucks idle for minimal time during the day and tha t these vehicles will emit virtually no NOx during these short periods (<15 mi nutes), ARB should exempt these vehicles from this regulation. (International).

Agency Response : Staff did not disregard the effects of advanced e ngine controls and thermal loading on catalysts, includin g NOx adsorber technologies, in controlling NOx emissions. Staff considered the effect of catalyst thermal loading on NOx emissions during id ling and determined that catalysts remain hot and control NOx emissions duri ng the first 5 minutes of idling following an end of a trip. However, after the first 5 minutes, the catalyst cools down to below its light-off temperature, duri ng which time period it is no longer effective in controlling NOx emissions. A n on-sleeper truck idles an average of 41 minutes per day, while a medium-duty truck idles an average of 17 minutes per day, indicating a significant portio n of the idling is not controlled by the NOx catalyst. Furthermore, not all idling e vents start at the end of a trip when NOx catalysts are still above their light-off temperatures and capable of reducing emissions. Some operators start the engin e “cold” and keep the engine idling for extended periods of time, either to warm up the engine or to sleep in their cab. Therefore, the effect of catal yst thermal loading is negligible in controlling cold start idling NOx emissions and the commenter’s conclusions and request to exempt non-sleeper and medium-duty t rucks is unacceptable.

68

. Comment : The proposal fails to adequately address the PM emission reduction necessary to meet the 2007 and later requ irements with the low NOx emissions and idling periods of non-sleeper trucks. The current proposal assumes a PM idle emission rate of 0.16 grams per h our for 2007 and later engines, while the in-use idling ATCM rulemaking (a genda item 04-7-3) was based upon an estimated PM emission rate of 2.77 gr ams per hour. The in-use idling ATCM reviewed the risks associated with PM i dle emission levels of 2.77 grams per hour and 0.3 grams per hour, and found th at the risks associated with PM levels of 0.3 grams per hour were significa ntly lower than that associated with PM levels of 2.77 grams per hour. At an emission level of 0.16 grams per hour, this risk would again be significan tly reduced. Since non-sleeper trucks idle for a much shorter period o f time with little or no NOx emissions and ARB’s estimate of 0.16 grams per hour is approximately 50 percent of that reviewed, but not used as a basis b y the in-use idling ATCM rule, ARB’s failure to adequately and appropriately eliminate (or alternatively reduce) the idling restriction for DPF equipped tru cks is arbitrary and capricious. (International)

Agency Response : No change was made in response to this comment. The risk associated with a PM level of 0.16 grams per h our is clearly less than that associated with a PM level of 0.3 grams per hour or 2.77 grams per hour. However, this does not mean that such risk is negli gible or non-existent. Diesel particulate matter has been identified as a toxic a ir contaminant for which there

is no safe threshold level of exposure . In addition to the health risks posed by- 56 -

diesel PM, idling trucks also emit significant NOx emissions and other toxics regardless of whether the truck is equipped with a filter or not. NOx is one of the two primary contributors to the formation of oz one and contributes to serious public health issues. Thus, ARB’s action t o restrict idling of filter equipped trucks is an appropriate measure that is d esigned to protect the public’s health and it disagrees with the commenter ’s statement that ARB failed to adequately and appropriately exempt filter equip ped trucks from the idling restriction or reduce their idling restrictions.

69

. Comment : ARB staff assumes that all sleeper trucks will co mply with the proposed regulations beginning in 2008 by purchasin g and installing a diesel APS, with Level 3 PM control for 2007 and later tru cks, at a cost of $10,000 each. But truck stop electrification, or other zer o emission technologies, would provide even greater emissions reductions, at a low er cost to the truck owner. (CalETC)

Agency Response : In estimating the emission benefits of this rulem aking resulting from the idling restrictions applicable 2 008 and newer sleeper trucks,

staff assumed these trucks will use a diesel APS wi th a level 3 PM control strategy. Staff’s assumption does not mean that al l of these trucks will necessarily comply by purchasing diesel APSs. The purpose of this assumption was only to determine emissions benefits under the worst case scenario that assumes full compliance using diesel APSs. However, staff agrees that it if a truck uses a zero emission tech nology, then the benefits would be greater.

J. LEADTIME AND STABILITY REQUIREMENTS

70. Comment : The new engine idling shutdown timer requirement is a new motor vehicle emission standard subject to the federal pr eemption and waiver provisions of the federal Clean Air Act (CAA). Sec tion 202(a)(3)(C) of the CAA specifies that no new emission standard may take ef fect earlier than 4 model years after it is promulgated (“lead-time” requirem ent), or before the prior

emission standard has been in effect for at least 3 model years (“stability” requirement). This requirement does not comply wit h either the lead-time or stability requirements. It violates the lead-time criteria because it takes effect in the 2008 model year, less than two model years from its date of adoption. In addition, heavy-duty on-highway engines will be sub ject to new emission control requirements applicable to 2007 through 201 0 model year engines. Therefore, the CAA’s stability requirement prevents ARB from imposing any new emission control requirements until 2013. (EMA, CTA, Cummins)

Agency Response : The ARB has not yet conclusively determined wheth er the new engine idling shutdown timer requirement consti tutes a standard relating to the control of emissions from new motor vehicle eng ines, which requires issuance of a new waiver from section 209(a) of the CAA, an amendment within the scope of an existing waiver, or an in-use opera tional control. This- 57 -

requirement can be characterized as an in-use opera tional control not subject to preemption as a standard under Clean Air Act sec tion 209(a) because it essentially implements through a mechanical means c ontrolling in-use idling of on-road diesel trucks. Clean Air Act section 209(d ) provides that California and other states are not precluded from controlling, re gulating or restricting the “use, operation, or movement of registered or licen sed motor vehicles.” As the Clean Air Act expressly allows states to impose the categories of controls specified in section 209(d), waiver of preemption i s not at issue and the leadtime and stability provisions of Clean Air Act sect ion 209(a)(3)(C), which apply to standards adopted by U.S. EPA, do not apply to t his requirement.

However, for the purpose of responding to these co mments ARB is assuming this requirement is a new motor vehicle engine emis sion standard. Based on this assumption, even if a new waiver from section 209(a) of the CAA is required, the lead-time and stability provisions of section 202(a)(3)(C) of the CAA do not apply to the new engine requirement. Se ction 202(a)(3)(C) only applies to standards “promulgated or revised under this paragraph [section 202(a) of the CAA],” that is, to standards promulga ted by the Administrator of the U.S. EPA. Since ARB adopted the new engine req uirement pursuant to authority of California state law and the waiver pr ovisions of section 209(b) of the CAA, the lead-time and stability requirements a re simply inapplicable. Moreover, the Board directed staff that to the exte nt it is necessary, to either request a waiver or a confirmation that the regulat ions are within the scope of an existing waiver of federal preemption pursuant t o section 209(b) of the CAA.

Also, since 1970, U.S. EPA has typically applied a “2-pronged” test of whether

California standards are consistent with CAA sectio n 202(a) as required by section 209(b)(1)(C). The standards must be: (1) technologically feasible in the lead time provided considering the cost of comp liance, and (2) compatible with the federal test procedures so that a single v ehicle could be subjected to both tests. No more should be required. This is i n accord with the legislative history of section 209. When the California waiver provisions and the “consistent with section 202(a)” language were firs t placed in the CAA in 1965, section 202(a) consisted of just one sentence requi ring adequate lead time in consideration of technological feasibility and econ omic costs. In the 1977 CAA amendments, Congress amended section 209 “to afford California the broadest possible discretion in selecting the best means to protect the health of its citizens and the public welfare.” (H. R. Rep. No. 2 94, 95th Cong., 1st Sess. 301 (1977), reprinted in 4 Leg. Hist. at 2768.) At the same time, Congress expanded section 202(a) to add several directives t o U.S. EPA regarding its adoption of emission standards, including the 4-yea r lead time requirement for heavy-duty vehicles. Given Congress’s expressed in tent to strengthen the waiver provisions, it is unlikely Congress intended to apply the specific 4-year requirement to California.

Moreover, the Board directed staff, to the extent i t is necessary, to either request a waiver or a confirmation that the regulat ions are within the scope of- 58 -

an existing waiver of federal preemption pursuant t o section 209(b) of the Clean

Air Act.

Finally, ARB believes that the commentators are mis reading section 202(a)(3)(C)’s stability requirement. That section simply states that any standard promulgated under 202(a) shall apply “for a period of no less than 3 model years,” and does not support an interpretatio n that limits the U.S. EPA’s authority to regulate heavy-duty vehicles or engine s to once every three model

years.

71. Comment : The alternative NOx idling emission standard vio lates the lead-time and stability provisions of the federal CAA. (Cummins)

Agency Response : Please see the Agency Response to Comment 70.

72. Comment : The provision in the ATCM portion of the regulati on allowing the

use of diesel-fueled APSs retrofitted with a verifi ed Level 3 in-use strategy for particulate matter fails to provide the lead-time r equired in the federal CAA sections 213(b) [42 USC 7547(b)] and 209(e)(2) [42 USC § 7543(e)(2)]. (EMA)

Agency Response : Section 213(b) of the federal CAA provides “[s]ta ndards

under this section shall take effect at the earlies t possible date considering the lead time necessary to permit the development and a pplication of the requisite technology, giving appropriate consideration to the cost of compliance within such period and energy and safety.” However, this section only applies to new nonroad engine and vehicle emission standards promu lgated by the Administrator of the U.S. EPA, see e.g., §§ 213(a)( 1)-(5), and not to the ATCM portion of the idling regulation that was promulgat ed under authority of state law and possibly the waiver provisions of the CAA secti on 209(e)(2).

Section 209(e)(2) provides that the Administrator o f the U.S. EPA shall authorize California to adopt and enforce standards and other requirements relating to the control of emissions from nonroad e ngines or vehicles unless he finds, among other things, that those standards and accompanying enforcement procedures are not consistent with sect ion 209. Staff anticipated that the ATCM portion of the idling regulation migh t require an authorization from U.S. EPA under section 209(e), and therefore i ncluded language in Resolution 05-55 that “to the extent necessary, the Board directs the Air Resources Board staff to file a request for authori zation ... pursuant to Clean Air Act section 209(e)(2).” Accordingly, if ARB su bmits an authorization, the Administrator of the U.S. EPA will determine, among other issues, whether the option regarding the use of diesel-fueled APSs equi pped with level 3 PM traps is consistent with section 209 of the CAA, which in turn involves a

determination whether sufficient lead time exists t o permit the development of technology necessary to meet the standards and othe r requirements, giving appropriate consideration to the cost of compliance in the time frame provided. Also, U.S. EPA regulations specifically allow Calif ornia to adopt nonroad- 59 -

regulations prior to receiving authorization from U .S. EPA. 59 Fed. Reg. 36969, 36981-983. (July 20, 1994).

K. FEDERAL HOURS OF SERVICE COMMENTS

73. Comment: The current idling ATCM exempts sleeper-berth equ ipped trucks from the five minute idling limit so that these tru cks can power heaters, air conditioners or ancillary equipment. Eliminating t his exemption will endanger the health and safety of sleeper-berth truck driver s because APSs equipped with Level 3 verified particulate matter systems ar e not feasible by the 2008 timeframe of the regulation and because it is unlik ely that all sleeper cab trucks entering California can or will be equipped with AP Ss or other climate control technologies by 2008. Consequently, sleeper-berth truck drivers will be forced to sleep and rest in uncomfortable cabs, which will adversely affect their health and safety, and ultimately the public’s safety as w ell. (EMA, DDC)

74. Comment : Federal regulations prescribe the maximum number of hours that drivers may operate trucks (hours of service or HOS ) in a given time period. The HOS regulations include provisions allowing dri vers to obtain mandatory hours of rest by sleeping in sleeper berth equipped trucks.

Because trip planning is an inexact science, driver s cannot ensure they will always have ready access to hotels, electrification facilities or truck stops. In addition, some businesses will not be able to affor d the regulation’s primary compliance option (APS + particulate trap) which AR B staff estimated will cost $5,000-$10,000 per truck. Those businesses need to decide whether to either discontinue doing business in California or “operat e in the state without operating the main engine.” Truck drivers who shut down their vehicles while resting are likely to experience less than desirabl e sleeping operations, which will not allow them to obtain the adequate rest env isioned by the federal HOS regulation. (ATA, TMA, CTA, DDC)

Agency Response to Comments 73 and 74 : The Agency Response to Comment 27 is incorporated herein.

The Federal Motor Carrier Safety Administration (FM CSA) promulgates regulations limiting the number of hours that drive rs may operate commercial motor vehicles. These regulations are commonly ref erred to as the “Hours of Service” (HOS) rules. The HOS rule was last revise d on August 25, 2005, and became effective on October 1, 2005. See 70 Fed. Reg. 49978 (Aug. 25, 2005) . As explained in the Executive Summary portion of the HOS rule:

“Today’s rule requires all drivers of property-carr ying commercial vehicles (CMV’s) in interstate commerce to take at least 10 consecutive hours off duty before driving, limits d riving time to 11 consecutive hours within a 14-hour, non-extendable window after- 60 - coming on duty, and prohibits driving after the dri ver has been on duty 60 hours in 7 consecutive days or 70 hours in 8 con secutive days. Drivers may restart the 60-or 70-hour ”clock” by ta king 34 consecutive hours off-duty.” 70 Fed.Reg. 49980 (Aug. 25, 2005).

The HOS rule contains provisions allowing drivers o f sleeper berth equipped trucks to accumulate rest periods in the sleeper be rths. 49 CFR 395.1(g). Drivers that elect to use this provision must spend at least 8 consecutive hours in the sleeper berth and 2 consecutive hours eitherin the sleeper berth, offduty, or any combination of the two options.

The comments imply that the proposal to eliminate t he current idling exemption for sleeper-berth equipped trucks will impair the r est periods of those drivers of trucks not equipped with APSs, by prohibiting them from idling the main engine for cab climate purposes. The comments therefore n ecessarily imply that the idling regulation conflicts with (and is preempted by the federal HOS rule).

The idling regulation is not inconsistent with the federal HOS rule and is therefore not preempted. In deciding whether a sta te law conflicts with, and is therefore preempted by a federal law, a court will first determine whether the state law is expressly preempted. If it is not, th e inquiry then turns to whether Congress implicitly intended to preempt the state l aw or if the state law is preempted because it actually conflicts with the fe deral law. Chevron U.S.A.,

Inc. v. Hammond

(1984) 726 F.2d 483, 486. In this case, the feder al HOS rule contains no language stating that state idling redu ction laws are preempted, so the idling regulation is not explicitly preempted, and the question then turns to whether the regulation actually conflicts with a va lid federal law.

The idling regulation does not actually conflict wi th federal law

An actual conflict exists if compliance with both f ederal and state standards is a physical impossibility Florida Lime & Avocado Growers, Inc. v. Paul (1963) 373 U.S. 132, 142-143, or if the state law stands as an obstacle to accomplishment and execution of the full purposes and objectives o f Congress. Hines v.

Davidowitz

(1941) 312 U.S. 52, 67. A truck operator can clea rly physically comply with both the proposed idling regulation and the federal HOS rule. For instance, drivers of sleeper berth equipped vehicle s can shut off the main engine before resting 8 consecutive hours in the sl eeper berth, or can start a compliant APS equipped with a verified level 3 PM t rap to power cab climate accessories before occupying the sleeper berth. Fu rthermore, both the federal HOS rule and the idling regulation can be enforced “without impairing the federal superintendence of the field,” Chevron U.S.A., Inc. (1984) 726 F.2d 483,

497. The HOS rule is intended to enhance commercia l motor vehicle safety by preventing driver fatigue, and the idling regulatio n is designed to limit the emissions of air pollutants and toxic air contamina nts from in-use sleeper trucks and new heavy-duty diesel vehicles. In light of th e fact that the federal and state laws regulate entirely separate fields – the safe operation of commercial- 61 -

motor vehicles and limiting air pollutant emissions generated from the idling of those vehicles, it is unlikely that Congress intend ed that the HOS rule preempt a state environmental regulation such as this idlin g regulation.

The idling regulation is not implicitly preempted by the federal HOS rule

Finally, the idling regulation is not implicitly pr eempted by federal statutes authorizing the HOS rule – the Motor Carrier Act of 1935 and the Motor Carrier Safety Act of 1984. 70 Fed. Reg. 49979 (Aug. 25, 2 005). A federal court deciding an implied preemption issue starts with th e assumption that the state law is not preempted unless that was “the clear and manifest purpose of Congress.” Rice v. Santa Fe Elevator Corp. (1947) 331 U.S. 218, 230. Such intent is not likely to be found here. First, the HOS rule and the idling regulation regulate entirely different fields, motor vehicle s afety and motor vehicle and nonroad exhaust emissions, respectively. Second, a state’s enactment of an environmental regulation, such as the idling regula tion at issue, is accorded an enhanced presumption of non-preemption. Chevron U.S.A., Inc. 726 F.2d 483, 488. Third, a provision in the federal motor vehic le statute, 49 U.S.C. 30103(b) only specifically prohibits states from prescribing motor vehicle safety standards

that are inconsistent with standards in effect unde r [Chapter 301, Subtitle VI, Title 49, United States Code]. These consideration s therefore do not establish a pervasive federal regulatory scheme giving rise t o an inference that Congress left no room for states to supplement it, or regula te the field of state environmental protection where the federal interest is so dominant that as to preclude state enforcement, especially in light of the sections 209(a) and (e) of the federal CAA waiving federal preemption for Cali fornia’s new motor vehicle and nonroad sources, respectively.

Finally, several of the comments are premised on t he assumption that many truckers cannot afford APSs, which appears unlikel y given their short projected payback periods. As more fully explained in the s taff report, staff projects the cost of installing a compliant APS can be recouped within 2.1 years from the savings in fuel costs. Staff therefore anticipate s that the vast majority of sleeper-berth equipped trucks will either be equip ped with an APS or will utilize another approved idling compliance option (e.g., t ruck stop electrification).

L. COMMERCE CLAUSE COMMENTS

75. Comment: The regulation violates the Commerce Clause of th e United States

Constitution. (ATA, CTA)

Agency Response: As explained below, neither the new engine idling shutdown timer nor the in-use ATCM component of the idling regulation violates

the federal Commerce Clause.

Article I, §8, cl. 3 of the United States Constitut ion states that the Congress has the power “[t]o regulate Commerce ... among the sever al States.” Courts have- 62 -

long recognized that this affirmative grant of powe r also includes an implicit or “dormant” limitation on the authority of states to affect interstate commerce. Healy v. Beer Institute

(1989) 491 U.S. 324, 326 fn 1.

The threshold issue to be resolved in a Commerce Cl ause challenge to a state law is whether Congress has exempted that law from Commerce Clause scrutiny. In this case, Congress’ enactment of the federal Clean Air Act (CAA) provisions allowing only California to adopt and en force new vehicle emission standards in § 209(b), and new and in-use nonroad e ngine standards and emission-related requirements in § 209(e)(2)(A) of the federal CAA, clearly evidence its intent to exempt California’s on and o ff-road vehicle and engine standards and emission-related requirements from Co mmerce Clause restrictions. The legislative history of the feder al Clean Air Act indicates that Congress was fully aware that allowing states to es tablish their own motor vehicle emission standards would disrupt interstate commerce, and it therefore preempted the states from establishing their own mo tor vehicle emission standards. However, Congress specifically exempted only California from the federal CAA section 209(a) preemption. “Rather tha n being faced with 51 different standards, as they had feared, or with on ly one, as they had sought, manufacturers must cope with two regulatory schemes under the legislative compromise embodied in § 209(a).” Engine Mfrs Ass’n v. U.S.E.P.A. (1996) 88 F.3d 1075, 1079. See also Motor and Equipment Mfrs. Ass’n, Inc. v. E.P.A. (1979) 1095, 1108 – 1111. Congress determined that authorizing California to establish separate and more stringent standards tha n those applicable to the rest of the nation would not unduly disrupt interst ate commerce. Instead of a Commerce Clause review, Congress enacted in section 209(b) of the federal CAA a procedure requiring the Administrator of the U.S. EPA to review California’s regulations and to authorize it to ado pt and enforce its unique emission standards and other requirements. People ex rel. State Air

Resources Bd. v. Wilmshurst (1999) 68 Cal.App.4 th 1332, 1345, Jordan v. Department of Motor Vehicles (1999) 75 Cal.App.4 th 449, 463.

In the 1990 amendments to the federal Clean Air Act , Congress authorized the U.S. EPA to regulate nonroad sources of emissions. As with motor vehicles, Congress preempted all states but California from r egulating nonroad sources. California is authorized to adopt and enforce both new and in-use nonroad emission standards and emission-related requirement s, subject to the review of the Administrator of the U.S. EPA in § 209(e)(2)(A) of the federal CAA. In fact, the Court of Appeals for the D.C. Circuit has held that only California is authorized to adopt in-use requirements for nonroad sources. Engine Mfrs

Ass’n v. U.S.E.P.A. (1996) 88 F.3d 1075. Other states that elect to r egulate nonroad sources may only adopt regulations identica l to those adopted by California, § 209(e)(2)(B) of the federal CAA. The refore, both the text and history of the motor vehicle and nonroad preemption and waiver provisions of the federal Clean Air Act evidence Congress’ intent to exempt the requirements at issue from Commerce Clause scrutiny. In additio n, even if a court were to hold that a waiver of preemption does not preclude it from determining if a state- 63 -

law unpermissibly violates the Commerce Clause, as demonstrated in the Agency Responses to Comments 75a through 77a below, this rulemaking does

not violate the federal Commerce Clause.

75a. Comment : In determining whether a particular state law vi olates the federal Commerce Clause, a court follows a two step analysi s. First, the court determines if the law discriminates against interst ate commerce. If the law does, the state must demonstrate that the law “serv es a legitimate public purpose” and that this purpose could not be served by less discriminatory

means.

The ATCM portion of the idling regulation violates the Commerce Clause of the United States Constitution. In analyzing whether a flat state tax discriminates against interstate commerce, courts examine the tax ’s effect in relation to the level of the taxpayer’s in-state activity. American Trucking Association, Inc. v.

Scheiner , (1987) 483 U.S. 266. In Scheiner , the Court held a flat state tax that cost out-of-state trucks five times more per mile t han in-state trucks was invalid because it discriminated in effect against intersta te commerce. The ATCM portion of the idling regulation can be construed a s a tax on trucks operated in

California. ARB staff estimates that an APS will c ost $5,000-$10,000 per truck (staff report, p. 38). The effective cost of the A PS on a California activity basis (per-mile, per-hour of operation, etc.) will likely be much higher for nonCalifornia based truck fleets than California based truck fleets. Therefore, the regulation can be analogized to a flat, annual stat e tax that the U.S. Supreme

Court held violated the federal commerce clause bec ause it discriminated in practical effect against interstate motor carriers. (ATA)

Agency Response: The commenter’s analysis is flawed. Analogizing the ATCM portion of the idling regulation to a flat ann ual state tax is inappropriate because the regulation cannot reasonably be charact erized as a tax, and because such assertion entirely disregards the loca l health and welfare aspect of the idling regulation. Furthermore, the ATCM po rtion of the rulemaking does not impose burdens on interstate commerce that are qualitatively or quantitatively different than those imposed on intr astate commerce.

Merriam Webster’s Collegiate Dictionary, 10 th edition, (1995) defines tax as “a charge usually of money imposed by authority on per sons or property for public purposes,” or “a sum levied on members of an organi zation to defray expenses,” and these definitions are consistent wit h those widely applied by courts in cases analyzing if state taxes of motor c arriers violate the federal

Commerce Clause. “The word ‘tax’ is used herein in the generic sense in which it has come to be applied to most payments ex acted by a state from particular industries as a condition to their exist ence. It includes fees required for licenses, permits, and registrations.” State Taxation of Motor Carriers as Affected by Commerce Clause , 17 A.L.R.2d 421. Here, it is undisputed that the ATCM portion of this rulemaking does not impose any fee or payment as a condition of compliance - a truck operator needs on ly to manually shut off the- 64 -

main truck engine after five minutes of idling. Fu rthermore, the provision regarding APSs merely provides an option that compa nies may elect to utilize. The decision to buy and install an APS is a busines s decision that each entity subject to this regulation will need to make for ea ch truck that operates in this State, and the fiscal consequences for each company will obviously depend on each of those decisions. It is highly unlikely tha t every trucking company subject to this regulation will buy the same make a nd model of APS for each of its trucks, and the capital costs will therefore no t be uniform or flat for each entity. The attempt to analogize this regulation t o a flat state tax therefore stretches too far. Moreover, the analogy also disr egards the fact that staff estimated this regulation will result in a net cost savings, even for those truck operators installing compliant APSs. Finally, the commenter’s assertion that out-of-state operators’ relative cost for an APS wi ll be greater than California- based vehicles is mere speculation, wit hout any supporting evidence. In fact, it is more likely that Californ ia-based sleeper trucks operate outside the State more frequently than non-Californ ia based sleepers, and that their APS costs on a “California activity basis” ar e therefore higher than the APS costs for non-Calfornia based sleepers on a Cal ifornia activity basis.

This comment also disregards the fact that this reg ulation is enacted by California under its police power to protect the he alth and welfare of its citizens. As demonstrated below in the Agency Reply to Commen t 76, this regulation will likely be found by a court to be a facially neutral regulation that does not unduly burden interstate commerce, and will therefore be u pheld against a federal Commerce Clause challenge. Also, to the extent th is comment maintains this regulation violates the Commerce Clause because it discriminates in effect against interstate commerce (by imposing disproport ionate costs on interstate commerce compared to intrastate commerce), courts w ill likely reject this contention and instead find this regulation imposes burdens on interstate commerce equivalent to those imposed on intrastate commerce, and therefore uphold it against the Commerce Clause challenge (se e Agency Response to Comment 76).

Finally, to the extent this comment alleges this fa cially neutral regulation discriminates in effect against interstate commerce (and would therefore be subject to review by a court under a strict scrutin y standard of review), several courts appear to follow a two step analysis in whic h only facially discriminatory laws are subjected to a strict scrutiny standard of review, and evenhanded laws are evaluated under a balancing test described belo w in the Agency Response

to Comment 76. National Elec. Mfrs. Ass’n v. Sorrell (2001) 272 F.3d 104, National Solid Waste Management Ass’n v. Pine Belt Regional Solid Waste Management Authority

(2004) 389 F.3d 491.

76. Comment: If a state law is not found to discriminate again st interstate commerce, a court will utilize a balancing test enu nciated in Pike v. Bruce

Church (1970) 397 U.S. 137, 142 to determine whether a no ndiscriminatory- 65 -

state regulation violates the federal Commerce Clau se. The Pike test weighs the local benefits of a state regulation against th e burdens it imposes on

interstate commerce.

The ATCM portion of the regulation violates the Pike test because it imposes excessive costs on interstate sleeper trucks that h ave very infrequent and limited operations in California, compared to other sleeper trucks. For this category of interstate sleeper trucks, California w ould obtain minimal benefits and yet the trucks would incur exorbitant costs. “ For example, for a truck that operates only a few hours per year in the State, th e per-pound cost of emission

reduction would be astronomical for that truck. Th is type of per-activity analysis in tax cases is consistent with well-accepted appor tionment requirements.” (ATA)

Agency Response: As noted by the comment, if a court determines th at a state law does not discriminate against interstate commerce or directly regulates commerce outside of the state’s boundarie s, it then balances the law’s local benefits against its burdens on interst ate commerce to determine if

the law violates the federal Commerce Clause. Pike v. Bruce Church 397 U.S. 137, 142. Under this test the state law will be up held unless it imposes a burden on interstate commerce that is clearly exces sive in relation to the putative local benefits. “If a legitimate local pu rpose is found, then the question becomes one of degree. And the extent of the burde n that will be tolerated will of course depend on the nature of the local interes t involved, and on whether it could be promoted as well with a lesser impact on i nterstate activities.” Ibid. Furthermore, courts will accord a greater presumpti on of validity to a state’s laws in the field of safety. Pike 397 U.S. 137, 143, Bibb v. Navajo Freight Lines, Inc. (1959) 359 U.S. 520.

Courts recognize that preventing air pollution is a nd has been a traditional local safety concern. Huron Portland Cement Co. v. Detroit (1960) 362 U.S. 440, 445-446. This recognition is also expressed in the federal Clean Air Act section 101(a)(3), where the U.S. Congress declared that st ates and local governments are primarily responsible for preventing air pollut ion, and in California Health and Safety Code sections 39000 and 39001, where the California legislature declared a strong public interest in controlling ai r pollution to protect the “health, safety, welfare, and sense of well-being” of Califo rnians. In regards to the ATCM portion of the idling regulation, the Californ ia legislature declared in California Health and Safety Code section 39650 tha t toxic air contaminants can endanger the public health, safety, and welfare , and should therefore be controlled to prevent harm to the public health. P ursuant to this directive the ARB identified diesel exhaust particulate matter as a toxic air contaminant in August 1998, and approved a comprehensive Diesel Ri sk Reduction Plan in September 2000 to significantly reduce emissions fr om new and in-use diesel fueled engines and vehicles. Idling emissions from diesel-fueled heavy-duty

motor vehicles are identified as sources of diesel exhaust particulate matter in the Diesel Risk Reduction Plan and this regulation is therefore an important- 66 -

component of ARB’s plan to reduce emissions of an i dentified toxic air

contaminant. These considerations establish that t he ATCM portion of this regulation serves the legitimate public purpose of protecting the health and welfare of California’s residents, which purpose “c learly falls within the exercise of even the most traditional concept of what is com pendiously known as the police power.” Huron Portland Cement Co. (1960) 362 U.S. 440, 442.

If a court determines that the justifications for a state safety based regulation are not illusory, as it would likely find in this c ase, it will accord the regulation significant deference. Raymond Motor Transportation v. Rice (1978) 434 U.S. 429, 449 (Blackmun, J., concurrence). The court wi ll then assess the regulation’s burden on interstate commerce. As set forth at length in the staff report, the ATCM portion of the idling regulation r equires all diesel-fueled commercial motor vehicles to limit idling of the pr imary diesel engine to five minutes at any location. Trucks that utilize APSs complying with specified emissions limits are exempted from the five minute idling limit, as are trucks electing to use other technologies such as on-shore electrical power or technologies producing minimal or no emissions. T hese requirements apply to

both California-based and non-California based truc ks that operate in the State.

The regulation therefore does not unduly burden int erstate commerce, because all truck operators can comply merely by manually s hutting off their truck engines. This compliance option does not require a ny additional equipment or incur any additional costs, other than those associ ated with carriers having to notify their truck operators of the idling limits. Those trucking companies that elect to install a compliant APS are estimated to i ncur a one time cost of no more than $10,500, but that cost will be significan tly offset by the savings resulting from the reduced fuel consumption and mai ntenance requirements. In fact, staff estimates a payback period of 2.1 years for an APS plus particulate matter trap, and also anticipates a net cost saving s over the useful life of the

truck. See

section VII, staff report. Furthermore, installin g a compliant APS is only one of a range of options available to truck o perators. These considerations demonstrate that this regulation doe s not impose a burden on interstate commerce that clearly exceeds its benefi ts of protecting the health and welfare of California’s residents from exposure s to an identified toxic air contaminant, and would therefore likely not be foun d to unconstitutionally

burden interstate commerce under the Pike balancing test.

This conclusion also necessarily follows because a state law violates the Pike balancing test only if it imposes a burden on inter state commerce that is “qualitatively or quantitatively different from tha t imposed on intrastate

commerce.” National Elec. Mfrs. Ass’n v. Sorrell (2001) 272 F.3d 104, 109, National Solid Waste Management Ass’n v. Pine Belt Regional Solid Waste Management Authority

(2004) 389 F.3d 491, 502. As discussed above, the ATCM portion of the regulation requires that both C alifornia-based and nonCalifornia based trucks operating in the State idle no longer than five minutes at any location, which applies equally to interstate a nd intrastate trucks. The- 67 -

comment attempts to create a distinction in regulat ory burdens by stating that interstate sleeper trucks “that have very infrequen t and limited operations in California” will have to pay “equivalent compliance costs” to an unnamed comparison category (which we necessarily assume ar e California-based sleeper trucks, as the existing in-use ATCM already regulates all non-sleeper trucks; see section IX.A of the staff report), whil e providing minimal emission benefits (which we also assume are in comparison to California-based sleeper trucks). This argument errs in two respects. Firs t, it disregards staff’s estimates that in the year 2010 and 2020, emissions from out-of-state registered sleeper trucks exceed those from California registered sleeper

trucks. See

section IX.A of the staff report and specifically tables 6 and 7. Second, its attempt to again analogize the regulati on to the imposition of a state tax is inappropriate as explained in the Agency Res ponse to Comment 75a. Finally, the ATCM portion of the regulation likely imposes higher regulatory burdens on California based sleeper trucks than on out-of-state registered sleeper trucks, since the California based trucks w ill likely be operated in California only a fraction of the time compared to their out-of-state counterparts. Accordingly, because the regulation does not impose a larger burden on

interstate commerce than it does on interstate comm erce, it will not violate the

Pike balancing test.

76a. Comment: Trucking companies cannot limit specific routes t o specific trucks and only allot routes to those specific trucks that are equipped to operate in

California. Because out-of-state trucks outnumber California-based trucks by a 3-1 margin, any emission benefits from regulating o ut-of-state trucks are outweighed by the $9.2 billion financial burden the regulation imposes on outof-state trucks. [Calculated by estimating an aver age cost of $7500 per APS times 1.23 million out-of-state based trucks]. The ATCM portion of the regulation therefore “imposes a significant cost on interstate carriers and dictate[s] equipment purchases” outside of Californ ia, which regulates interstate

commerce in violation of the federal Commerce Claus e. (CTA)

Agency Response: The Agency Response to comment 76 is incorporated herein. The ARB does not believe that the ATCM port ion of the rulemaking will impose a significant financial burden on out-of-sta te trucking fleets. The comment presumes that every out-of-state truck in t he nation’s fleet must install a compliant APS because it may have to drive into C alifornia sometime in the future. This assumption disregards the fact that t rucking fleets utilize advanced technologies, such as global positioning systems, t o track the locations of individual trucks on a real-time basis. Trucking f leets are therefore aware of the location of each of their vehicles, and can easily direct only compliant trucks into California. Furthermore, many trucks may neve r enter California because of its geographic location.

77. Comment : State regulations that directly regulate interst ate commerce or that impermissibly regulate activity occurring wholly ou tside of the regulating state

violates the federal Commerce Clause. Healy v. Beer Institute , 491 U.S. 324,- 68 -

332 (1989), Brown-Forman Distillers Corporation v. New York Sta te Liquor Authority (1986) 476 U.S. 573, Southern Pacific Co. v. Arizona 325 U.S. 761 (1945). The portion of the idling regulation that requires new 2008 and subsequent heavy-duty diesel trucks certified for s ale in California to be equipped with a shutdown timer violates the Commerc e Clause because it effectively controls truck operations beyond Califo rnia’s borders. This requirement prohibits sleeper trucks sold in Califo rnia from operating the main engine for cab comfort even though other states all ow such operation to comply with Federal Hours-of-Service requirements. “In th is instance, a state regulation mandating unique equipment effectively m andates its use in other states as well.” ( ATA)

77a. Comment: The ATCM portion of the regulation “dictate[s] eq uipment purchases” outside of California, in violation of t he federal Commerce Clause. (CTA)

Agency Response to Comments 77 and 77a: If a court finds that Congress has not exempted a state law from Commerce Clause s crutiny, it then determines whether the law discriminates against in terstate commerce or directly regulates commerce outside of the state’s boundaries. Such laws are virtually per se invalid. Brown-Forman Distillers Corp. v. New York State Liq uor Authority (1986) 476 U.S. 573, 579. In Brown-Forman Distillers Corporation v. New York State Liquor Authority (1986) 476 U.S. 573, and in Healy v. Beer

Institute (1989) 491 U.S. 324, the U.S. Supreme Court found that two price affirmation statutes (for liquor and beer, respecti vely) violated the Commerce Clause because they effectively regulated out-of-st ate commerce by controlling the prices and marketing practices in other states. For instance, the challenged

New York statute in Brown-Forman effectively forced sellers to forego promotional allowances in other states (in which th e allowances were legal) or would force other states to alter their own regulat ory schemes to allow the sellers to lower their New York prices.

In Southern Pac. Co. v. Sullivan (1945) 325 U.S. 761, the Supreme Court held that an Arizona law limiting the number of railroad cars in trains within the State

violated the Commerce Clause. The Court determined that the law was ineffective as a safety measure because the record indicated the law increased

the number of train-related accidents. Southern Pac. Co. (1945) 325 U.S. 761,

775-779. The Court also found that the law substan tially impeded interstate commerce because its practical effect was to regula te train operations beyond Arizona’s borders (by requiring trains to break up or reassemble railroad cars before entering and after leaving the State). The Court was especially concerned that if Arizona could regulate train leng ths, so could other states, which would seriously impede interstate commerce. Id. at 775.

The reasoning cited in the above mentioned cases is inapposite to the new engine shutdown timer and the ATCM portion of the r ulemaking. First, as explained in the Agency Response to comment 75, Con gress has likely- 69 -

exempted these requirements from Commerce Clause sc rutiny by its enactment of the federal CAA provisions allowing on ly California to adopt and enforce new vehicle emission standards in § 209(b) and in-use requirements for nonroad sources in § 209(e)(2)(A).

Second, ARB disagrees that the reasoning in the Brown-Forman, Healy, and

Southern Pac. Co. cases supports a finding that either the new engine shutdown timer requirement or the ATCM portion of t he rulemaking directly regulates commerce occurring entirely beyond Califo rnia’s borders. Unlike the price affirmation statutes in Brown-Foreman and Healy

, the idling shutdown timer requirement does not have a practical effect of regulating commercial activity beyond California’s borders, since it only applies to new 2008 and subsequent model heavy-duty diesel engines certifie d for sale and use in California. Therefore, businesses such as trucking fleets that do not register their trucks in California need not purchase Califo rnia certified engines equipped with the idling shutdown timers. Furtherm ore, at this time the U.S. EPA has not expressed an interest in adopting new e ngine idle shut down timer requirements. However, if and when it does, ARB wi ll work closely with U.S. EPA to harmonize the requirements to the greatest e xtent possible. Also, because the federal Clean Air Act preempts all stat es except California from adopting and enforcing in-use requirements for nonr oad sources (unless other states elect to adopt regulations that are identical to those adopted by California), the idling requirements avoid the poss ibility that other states might adopt possibly inconsistent requirements, which con cerned the Southern Pac.

Co. court.

Both the new engine shutdown timer and the ATCM req uirement are analogous

to the statute at issue in National Elec. Mfrs. Ass’n v. Sorrell (2001) 272 F.3d 104. In that case, Vermont law required manufactur ers of mercury-containing lamps to label them in order to inform consumers th at the lamps contain mercury and should be disposed of in an appropriate manner. 272 F.3d 104, 107. Lamp manufacturers argued that because of the ir manufacturing and distribution systems, the law violated the Commerce Clause because it would, in practical effect, require them to also label lam ps sold in every other state. The Court of Appeals for the Second District disagr eed, and upheld the law, reasoning that the statute was indifferent to wheth er lamps sold elsewhere

were labeled or not. “To the extent the statute ma y be said to ‘require’ labels on lamps sold outside Vermont, then, it is only bec ause the manufacturers are unwilling to modify their production and distributi on systems to differentiate between Vermont-bound and non-Vermont-bound lamps.” Id. at 110. In this case, each of the idling requirements is also indif ferent to whether engines sold outside of California are equipped with the shutdow n timer devices, or if trucks outside of California are equipped with an APS. Th erefore, under the reasoning of the Elec. Mfrs. Ass’n case, these requirements do not violate the

Commerce Clause.- 70 -

The comment that the new engine shutdown timer requ irement prohibits sleeper trucks in California from operating the mai n engine for cab comfort in order to comply with the federal Hours of Service r egulations is addressed in the Agency Response to Comments 73 and 74.