Final Statement of Reasons for Rulemaking 

Including Summary of Comments and Agency Responses 

PUBLIC HEARING TO CONSIDER ADOPTING THE REGULATION FOR 

MOBILE CARGO HANDLING EQUIPMENT AT PORTS AND 

INTERMODAL RAIL YARDS 

Public Hearing Date: December 8, 2005 

Agenda Item No.: 05-12-4 
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TABLE OF CONTENTS

Contents Page

I. General................................................................................................................. 1 

II. Modifications Made to the Original Proposal and Additional Documents 

Made Publicly Available........................................................................................ 4 

A. Exemptions, Subsection 2479 (c) .............................................................. 4 

B. Definitions, Subsection 2479(d)................................................................. 4 

C. Requirements, Subsection 2479(e) ........................................................... 5 

D. Alternative Compliance Plan for Non-Yard Truck Cargo Handling 

Equipment, Subsection 2479(h)................................................................. 6 

E. Reporting Requirements, Subsection 2479(j) ............................................ 6 

F. Additional Supporting Documentation........................................................ 6 

III. Summary of Comments and Agency Responses to the Original Proposal........... 7 

A. Performance Standards and Operational Requirements ......................... 11 

B. Best Available Control Technology (BACT) and Alternative Fuels........... 14 

C. Compliance Timeline ............................................................................... 17 

D. Alternative Compliance Plan and Compliance Extensions....................... 18 

E. Expanding the Regulation to Cover Additional Equipment....................... 20 

F. Procedures and Miscellaneous Issues..................................................... 22 

G. Incentive Funding .................................................................................... 25 

H. Recordkeeping and Reporting ................................................................. 27 

IV. Summary of Comments and Agency Responses – Notice of Modified Text....... 27 
1 

State of California 

AIR RESOURCES BOARD 

Final Statement of Reasons for Rulemaking, 

Including Summary of Comments and Agency Responses 

PUBLIC HEARING TO CONSIDER ADOPTING THE REGULATION FOR 

MOBILE CARGO HANDLING EQUIPMENT AT PORTS AND 

INTERMODAL RAIL YARDS 

Public Hearing Date: December 8, 2005 

Agenda Item No.: 05-12-4 

I. GENERAL 

In this rulemaking, the Air Resources Board (ARB, Board, or Agency) is adopting a new 

regulation to reduce emissions of diesel particulate matter (PM) and oxides of nitrogen 

(NOx) from mobile, compression ignition, cargo handling equipment at ports and 

intermodal rail yards. The regulation will be contained in new section 2479, title 13, 

California Code of Regulations (CCR). This regulation will reduce the public’s exposure 

to diesel PM and NOx by establishing best available control technology (BACT), which 

includes emission standards and operational requirements, for cargo handling equipment 

that operate at ports and intermodal rail yards in California. The regulation supports the 

“Risk Reduction Plan to Reduce Particulate Matter Emissions from Diesel-Fueled Engines 

and Vehicles,” which was adopted by the Board on September 30, 2000, and the State 

Implementation Plan. 

 

This rulemaking was initiated by the October 21, 2005, publication of a notice for a public 

hearing on December 8, 2005. A “Staff Report: Initial Statement of Reasons” (Staff 

Report) was also made available for public review and comment starting 

October 21, 2005. The Staff Report, which is incorporated by reference herein, described 

the rationale for the proposal. The text of the proposed regulation, which would add a 

new section 2479 to title 13, CCR, was included as Appendix A to the Staff Report. 

These documents were also posted on the ARB’s internet site for the rulemaking at: 

http://www.arb.ca.gov/regact/cargo2005/cargo2005.htm (“ARB’s internet site”). 

On December 8, 2005, the Board conducted a public hearing to consider the staff’s 

proposal for adoption. Written and oral comments were received at the hearing, and 

several parties suggested changes to the proposed regulation. The Board approved the 

staff’s proposal with proposed changes that included modifying the Alternative 

Compliance Plan (ACP) provision of the regulation to allow for public comment on any 

applications for the ACP, and addressing concerns regarding Department of Defense 

equipment that is subject to the requirements of the regulation. At the conclusion of the 

hearing on December 8, 2005, the Board adopted Resolution 05-62, in which it 
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approved the adoption of the originally proposed regulation with suggested 

modifications discussed at the hearing. In accordance with section 11346.8 of the 

Government Code, the Board directed the Executive Officer to incorporate the 

modifications into the proposed regulatory text and to make such modifications available 

for a supplemental comment period of at least 15 days. The Executive Officer was then 

directed either to adopt the regulation with such additional modifications as may be 

appropriate in light of the comments received, or to present the regulation to the Board 

for further consideration if warranted in light of the comments. 

The text of the modifications to the originally proposed regulation and the incorporated 

documents were made available for a supplemental 15-day comment period by 

issuance of a “Notice of Public Availability of Modified Text and Availability of Additional 

Documents” (“15-day Notice”). The 15-day Notice, a copy of Resolution 05-62, and the 

document entitled “Staff’s Suggested Modifications to the Original Proposal” were 

mailed on May 18, 2006, to all parties identified in section 44(a), title 1, CCR, and to 

other persons generally interested in the ARB’s rulemaking concerning cargo handling 

equipment at ports and intermodal rail yards. These documents were also published on 

May 18, 2006, on ARB’s Internet site. An email message announcing and linking to this 

posting was transmitted to the more than 1,000 parties that have subscribed to ARB’s 

“cargo” List Server. The 15-day Notice gave the name, telephone, and fax number of 

the ARB contact person from whom interested parties could obtain the complete texts of 

the additional incorporated documents and the modifications to the original proposal, 

with all of the modifications clearly indicated. 

Four written comments were received during the 15-day comment period. Three of the 

four comments did not specifically address the proposed modifications in the 15-day 

notice. One comment specifically addressed the proposed modifications, but staff 

determined additional modifications in response to that comment were unnecessary. 

After considering the comment received during the supplemental 15-day comment 

period, the Executive Officer issued Executive Order R-06-007, adopting new 

section 2479 in title 13, CCR, and adopting the incorporated documents. 

This Final Statement of Reasons (FSOR) updates the Staff Report by identifying and 

explaining the modifications that were made to the original proposal as a result of public 

comment and staff analysis after the Staff Report was issued. The FSOR also 

summarizes written and oral comments the Board received on the proposed regulatory 

text during the formal rulemaking process and the ARB’s responses to those comments. 

Documents Incorporated by Reference. Four test procedures and guidance 

documents are incorporated by reference in title 13, CCR, section 2479. Each instance 

of incorporation identifies the incorporated document by title and date. The 

incorporated ARB test procedures and documents, the American Society for Testing 

and Materials (ASTM) standards and procedures and the International Organization for 

Standardization (ISO) test methods, are readily available from the ARB upon request 

and were made available in the context of this rulemaking in the manner specified in 
3 

Government Code section 11346.5(b). Also, the referenced ASTM test methods are 

published by ASTM, a well-established and prominent organization in the sampling and 

analysis field. Similarly, the ISO documents are published by well-established and 

prominent organizations. Therefore, all of the incorporated documents are reasonably 

available to the affected public from commonly known sources. 

The test procedures and guidance documents are incorporated by reference because it 

would be cumbersome, unduly expensive, and otherwise impractical to print them in the 

CCR. Existing ARB administrative practice has been to have the test procedures, 

guidelines, specifications, and similar documents incorporated by reference rather than 

printed in the CCR because these procedures, specifications, and guidelines are highly 

technical and complex. They include the “nuts and bolts” engineering protocols, 

computer modeling, and laboratory practices required for certification of diesel engines 

and for performing computerized risk assessments. In addition, they have a very limited 

audience. Because the ARB has never printed complete test procedures and guidance 

documents in the CCR, the directly affected public is accustomed to the incorporation 

format utilized therein. The ARB’s test procedures and guidance documents as a whole 

are extensive, and it would be both cumbersome and expensive to print these lengthy, 

technically complex procedures for 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 public. 

Fiscal Impacts. The Executive Officer has determined that this regulatory action will 

not create costs or savings, as defined in Government Code section 11346.5(a)(5) and 

11346.5(a)(6), to any state agency or in federal funding to the State, or create costs or 

mandates to any local agency or school district, whether or not reimbursable by the 

state pursuant to part 7 (commencing with section 17500), division 4, title 2 of the 

Government Code, and does not impose a mandate that is required to be reimbursed 

pursuant to section 6 of article XIII B of the California Constitution. It also does not 

include any other non-discretionary costs or savings to local agencies. 

The Board has determined that some costs to ARB will be incurred in order to 

implement and enforce this regulation; however, we believe these costs can be 

absorbed in our current budget. In future years, additional enforcement resources may 

be needed depending on the compliance options selected by the affected sources. No 

other State agencies are expected to incur costs due to this regulation. Overall, while 

not specifically determined, the financial savings resulting from the health benefits of 

reduced exposures to diesel PM are expected to outweigh the cost of implementing and 

enforcing the proposed regulation. 

Consideration of Alternatives. The regulation proposed in this rulemaking was the 

subject of discussions involving staff and the affected owners, operators, and sellers of 

cargo handling equipment at ports and intermodal rail yards in California. A discussion 

of alternatives to the initial regulatory proposal is found in Chapter VII of the Staff 

Report. These include an option to rely on continued voluntary efforts and an option to 

regulate yard trucks only. For the reasons set forth in the Staff Report, staff’s 
4 

comments and responses at the hearings, and this FSOR, the Board has determined 

that none of the alternatives considered by the agency would be more effective in 

carrying out the purpose for which the regulatory action was proposed or would be as 

effective and less burdensome to affected private persons than the action taken by the 

Board. 

II. MODIFICATIONS MADE TO THE ORIGINAL PROPOSAL AND ADDITIONAL 

DOCUMENTS MADE PUBLICLY AVAILABLE 

At the December 2005 hearing, the Board approved the regulation and proposed 

modifications. Furthermore, the Board directed staff to work with stakeholders 

regarding modifications or clarifications to the approved regulation. The following is a 

description of the modifications and clarifications, by section number. 

A. Exemptions, Subsection 2479(c) 

Military Tactical Support Cargo Handling Equipment ((c)(4)): Staff added an 

exemption for military tactical support cargo handing equipment. 

B. Definitions, Subsection 2479(d) 

Alternative Diesel Fuel ((d)(1)): Staff modified this definition to include biodiesel to be 

consistent with the treatment of certain biodiesel blends meeting the definition of 

California Air Resources Board (CARB) diesel fuel. 

California Air Resources Board (CARB) Diesel Fuel ((d)(5)): Staff added this 

definition to support the existing fuel requirements of the regulation. 

Cargo Handling Equipment ((d)(7)): Staff modified this definition to clarify the 

inclusion of maintenance equipment that is used routinely or for predictable process 

upsets. 

Contiguous Properties ((d)(11)): Staff added this definition to support the revised 

definition for port. 

Intermodal Rail Yard ((d)(27)): Staff modified the definition to clarify that only 

transportation facilities – where the primary purpose of the greater facility (as opposed 

to a subcomponent thereof) is the transportation of goods by rail – are intended to fall 

within the ambit of the rule. Hence, a rail facility, such as a rail spur, that is merely 

ancillary to a non-transportation related business or operation, would not be subject to 

the regulation. 

Military Tactical Support Cargo Handling Equipment ((d)(31)): Staff added this 

definition as part of the new exemption for military tactical support cargo handling 

equipment (see above). 
5 

Ocean-going Vessel ((d)(39)): Staff added this definition as part of the revised 

definition for port. 

Port ((d)(44)): Staff revised this definition to clarify the inclusion of military terminals 

and docks that are part of, or on contiguous properties with, non-military terminals and 

docks. 

Terminal ((d)(55)): Staff modified this definition to include facilities owned and/or 

operated by the Department of Defense. 

Top Handler or Top Pick ((d)(57)): Staff modified this definition to correct a clerical 

error. 

Verification Procedure ((d)(59)): Staff modified this definition to correct a clerical 

error. 

C. Requirements, Subsection 2479(e) 

In-Use Performance Standards for Yard Trucks: Compliance Schedules for In-Use 

Yard Trucks. In (e)(2)(B), staff modified the date used to determine the percentage of 

yard trucks that must meet the requirements for each compliance deadline. The 

percentage will be determined based on the total population of yard trucks for a specific 

model year or model year group that exist in the owner’s or operator’s fleet as of 

January 1 of the first compliance deadline year for that model year or model year group. 

This change allows for early compliance without penalty and is consistent with staff’s 

original intent. 

In-Use Performance Standards for Non-Yard Truck Mobile Cargo Handling 

Equipment: Compliance Option for Basic Container Handling Equipment, Bulk 

Cargo Handling Equipment, and Rubber-tired Gantry Cranes. In (e)(3)(B), staff 

modified the text for compliance option (c) for each equipment type to correct a clerical 

error, which had unintentionally omitted pre-Tier 1 engines. 

In-Use Performance Standards for Non-Yard Truck Mobile Cargo Handling 

Equipment: Compliance Schedule for Non-Yard Truck Mobile Cargo Handling 

Equipment. In (e)(3)(c), staff modified the date used to determine the percentage of 

equipment that must meet the requirements for each compliance deadline. The 

percentage will be determined based on the total population of non-yard truck 

equipment for a specific model year or model year group that exist in the owner’s or 

operator’s fleet as of January 1 of the first compliance deadline year for that model year 

or model year group. This change allows for early compliance without penalty and is 

consistent with staff’s original intent. 
6 

D. Alternative Compliance Plan for Non-Yard Truck Cargo Handling 

Equipment, Subsection 2479(h) 

Requirements. Staff modified the alternative compliance plan (ACP) language in 

(h)(1)(A) to be more concise and less redundant. In (h)(1)(B), (h)(1)(F), and (h)(1)(H), 

staff modified the ACP language to make it clear that qualifying equipment must be 

located at the same port or intermodal rail yard to which the ACP applies, and in 

(h)(1)(C), staff clarified that no equipment can be included in more than one ACP. 

Additionally, in (h)(1)(H), staff clarified that emission reductions that are otherwise 

required by local rules, regulations, or statutes are not allowed to be included in an 

ACP. 

Application Process. Numerous modifications were made to the ACP Application 

Process in (h)(2), to address the Board’s directive to require the ACP to include 

provisions for public comment. Under the proposed modifications, all documents 

pertaining to ACP applications will be made available for public review. In addition, two 

separate public comment periods will be provided during the application process. The 

first will be provided after the Executive Officer has deemed the application to be 

“complete.” The second will be provided after the Executive Officer proposes to 

approve or disapprove the application. This comment period will allow the public to 

comment on the proposed decision by the Executive Officer before final action is taken, 

as well as a second opportunity to comment on the application. 

Revocation or Modification of Approved ACPs. In (h)(3), staff added a provision to 

enable the Executive Officer to revoke or modify an ACP if there have been violations to 

the ACP, or if the Executive Officer has reason to believe that the applicant no longer 

meets the criteria for an ACP. 

E. Reporting Requirements, Subsection 2479(j) 

Demonstration of Compliance. Paragraph (j)(2) was revised to clarify that the 

Demonstration of Compliance pertains to each in-use cargo handling equipment engine 

or vehicle subject to the requirements of subsection (e). 

Annual Reporting. In (j)(3)(D), staff added a clarification to require annual reporting of 

the population (number) of equipment in each yard truck model year group and each 

non-yard truck model year group in order to determine compliance percentage 

requirements. 

F. Additional Supporting Documentation 

In accordance with Government Code section 11347.1, staff has added to the 

rulemaking record the following documents, which are incorporated by reference in the 

regulation: 
7 

Diesel Particulate Matter Exposure Assessment Study for the Ports of Los Angeles 

and Long Beach 

The document cited above is the final version of the draft document included as 

Appendix C in the Staff Report.

In addition to the modifications detailed in this FSOR, staff made other minor 

modifications in the regulatory text to improve clarity; to correct spelling, typographical 

errors, and grammar; and to make numbering adjustments. 

III. SUMMARY OF COMMENTS AND AGENCY RESPONSES TO THE ORIGINAL 

PROPOSAL 

The Board received numerous written and oral comments in the formal 45-day 

rulemaking comment period leading up to the December 2005 Board meeting, 

beginning with the notice publication on October 21, 2005, and ending with the closing 

of the record on December 8, 2005. A list of commenters is set forth below, identifying 

the date and form of all comments that were timely submitted. Following the list is a 

summary of each objection or recommendation made regarding the proposed action, 

together with an explanation of how the proposed action has been changed to 

accommodate the objection or recommendation or the reasons for making no change. 

The comments have been grouped by topic whenever possible. Comments not 

involving objections or recommendations specifically directed towards the rulemaking or 

to the procedures followed by the ARB in this rulemaking are not summarized below. 

Additionally, any other referenced documents are not summarized below. 

In addition to more than 1,200 supportive comment letters from private citizens, 

government agencies, and legislators, we received comments from the following that 

were generally supportive of the regulation or the rulemaking process: 

American Lung Association of California (ALAC) 

Coalition for Clean Air (CCA) 

California Environmental Rights Alliance (CERA) 

National Resources Defense Council (NRDC) 

Alan Gordon for Senator Joe Simitian (GORDON) 

Long Beach Alliance for Children with Asthma (LBACA) 

Manufacturers of Emission Controls Association (MECA) 

Pacific Merchant Shipping Association (PMSA) 

Port of Long Beach (POLB) 

Sacramento Metropolitan Air Quality Management District (SMAQMD) 

Union of Concerned Scientists (UCS) 
8 

Comments Received during the 45-day Comment Period

Abbreviation 

Reference 

Number Commenter 

ALAC ALAC Bonnie Holmes-Gen 

American Lung Association of California 

Oral testimony: December 8, 2005 

CCA CCA Candice Kim 

Coalition for Clean Air 

Oral testimony: December 8, 2005 

CE CE 1 Mitchell W. Pratt 

Vice President, Public Affairs and Business 

Development 

Clean Energy 

Written testimony: December 6, 2005 

CE 2 Todd Campbell 

Clean Energy 

Oral testimony: December 8, 2005 

CERA CERA Joe Lyou 

California Environmental Rights Alliance 

Oral testimony: December 8, 2005 

CNGVC CNGVC 1 Michael L. Eaves 

President 

California Natural Gas Vehicles Coalition 

Written testimony: December 7, 2005 

CNGVC 2 Michael L. Eaves 

President 

California Natural Gas Vehicles Coalition 

Oral testimony: December 8, 2005 

DENNISON DENNISON Laura Dennison 

Private Citizen 

Written testimony: December 7, 2005 

DOD DOD 1 Rene Trevino 

Executive Director 

Department of Defense, Department of the Navy 

Written testimony: December 8, 2005 
9 

DOD 2 Major Jeremy Jungreis 

Department of Defense, Department of the Navy 

Oral testimony: December 8, 2005 

DOWDLE DOWDLE Mr. M. Dowdle 

California State University Bakersfield Library 

Written testimony: December 3, 2005 

EMA EMA Jed Mandel and Timothy French 

Engine Manufacturers Association 

Written testimony: December 5, 2005 

ENVIR ENVIR Diane Bailey, et al 

Scientist 

Natural Resources Defense Council 

Written testimony: December 6, 2005 

GNR GNR Erik Neandross 

Gladstein, Neandross & Associates, LLC 

Written testimony: December 7, 2005 

GORDON GORDON Alan Gordon 

Senator Joe Simitian 

Oral testimony: December 8, 2005 

LBACA LBACA Elina Green 

Project Manager 

Long Beach Alliance for Children with Asthma 

Oral testimony: December 8, 2005 

LOWENTHAL LOWENTHAL Bonnie Lowenthal 

Councilmember 

City of Long Beach 

Written testimony: December 8, 2005 

MECA MECA 1 Joe Kubsh 

Executive Director 

Manufacturers of Emission Controls Association 

Written testimony: December 6, 2005 

MECA 2 Joe Kubsh 

Executive Director 

Manufacturers of Emission Controls Association 

Oral testimony: December 8, 2005 
10 

NRDC NRDC Diane Bailey 

National Resources Defense Council 

Oral testimony: December 8, 2005 

PASHA PASHA Kenneth Keane 

Director, Maritime Safety and Security 

Pasha Stevedoring and Terminals L.P. 

Written testimony: November 16, 2005 

PMSA PMSA 1 John McLaurin 

President 

Pacific Merchant Shipping Association 

Written testimony: December 7, 2005 

PMSA 2 T.L. Garrett 

Vice President 

Pacific Merchant Shipping Association 

Oral testimony: December 8, 2005 

POLB POLB Thomas Jelenic 

Port of Long Beach 

Oral testimony: December 8, 2005 

SCAQMD SCAQMD 1 Barry R. Wallerstein 

Executive Officer 

South Coast Air Quality Management District 

Written testimony: December 7, 2005 

SCAQMD 2 Barry R. Wallerstein 

Executive Officer 

South Coast Air Quality Management District 

Oral testimony: December 8, 2005 

SMAQMD SMAQMD Larry Greene 

Air Pollution Control Officer 

Sacramento Metropolitan Air Quality 

Management District 

Written testimony: December 5, 2005 

UCS UCS Don Anair 

Engineer 

Union of Concerned Scientists 

Oral testimony: December 8, 2005 
11 

A. Performance Standards and Operational Requirements 

1. Comment: Requirements to replace or retire equipment should be based upon 

engine hour usage and not model year. (PASHA) 

2. Comment: Low-use vehicles and equipment should be exempt from the 

regulation. (DOD 1) 

3. Comment: PMSA requests that staff work with the companies disproportionately 

impacted to establish a minimal use threshold. (PMSA 1) 

4. Comment: PMSA would like to see some consideration for those who are 

disproportionately affected by the cost impacts because their equipment is used 

only sporadically and for a very low number of hours on an annual basis. 

(PMSA 2) 

Agency Response: We disagree with these comments. Because there have been no 

previous regulations reducing emissions from in-use cargo handling equipment, older 

model year equipment that are run much fewer hours can actually have higher 

emissions than newer equipment running more hours. For instance, a 1999 off-road 

yard truck run 500 hours a year would emit more diesel PM and NOx than a 2006 offroad yard truck running twice as many annual hours. Moreover, enforcing an hourly 

limit would be problematic for this type of equipment and would require overly 

burdensome recordkeeping. During the rulemaking process, staff assisted companies 

in explaining the available compliance options, and staff will continue to remain 

available to offer assistance in understanding the requirements of the regulation. 

5. Comment: The regulation will require all new cargo handling equipment to meet 

the final Tier 4 off-road engine standards as of January 1, 2007. (EMA) 

Agency Response: We disagree. The regulation is directed towards owners and 

operators as opposed to manufacturers and does not include any additional 

manufacturer requirements than existing U.S. EPA and ARB rules. Interim Tier 4 offroad engine standards begin in 2011 for most cargo handling equipment, with final 

Tier 4 standards becoming effective in 2014 to 2015. Meeting the final Tier 4 off-road 

engine standards is an option for owners and operators when those engines become 

available. However, until that time, cargo handling equipment that is newly purchased, 

leased, or rented as of January 1, 2007, must meet either the current model year onroad standards or off-road standards, as specified in subsection (e) of the regulation. 

6. Comment: The proposed regulation threatens to undermine the regulatory 

harmonization between the ARB and the United States Environmental Protection 

Agency (U.S. EPA) for controlling emissions from mobile off-road vehicles and 

equipment by requiring engines to meet final Tier 4 standards before they’re 

required. (EMA) 
12 

7. Comment: All in-use equipment will be required to meet final Tier 4 standards 

over a ten-year phase-in period between 2007 and 2017. (EMA) 

Agency Response: We disagree. The regulation will have no impact on the regulatory 

harmonization between the ARB and the U.S. EPA regulations for off-road vehicles. 

While meeting the final Tier 4 off-road engine standards is an option when those 

engines become available, it is not a requirement for all equipment types. In particular, 

non-yard truck equipment that have either met the 2007 or later on-road engine 

certification standards or that have applied the highest level verified diesel emission 

control strategy (VDECS) to meet their initial compliance deadline as specified in 

subsection (e)(3)(C), are not required to meet the Tier 4 off-road engine requirements 

so long as the level of control is sufficient for the category of equipment. This would 

include all Level 3 VDECS and some Level 2 VDECS. Those equipment that are 

required to take the next step in meeting Tier 4 off-road engine standards are not 

required to do so before the end of 2015 (Tier 4 engine standards are effective by 2011 

to 2012 for most equipment types). 

8. Comment: The rule should have included idling limits that were proposed in 

earlier drafts. (ENVIR) (GORDON) 

Agency Response: We disagree. Idling limits were considered by staff early in the 

regulatory development process as part of our preliminary regulatory concepts. Staff 

subsequently determined that idling limits would be difficult to implement and could 

actually delay the implementation of the regulation for a number of reasons, including 

difficulty determining what constitutes necessary versus unnecessary idling. The limits 

were, accordingly, removed from staff’s proposal. However, staff will continue to look at 

idling restrictions for this type of equipment and others as part of potential future 

rulemakings. 

9. Comment: Operators should be required to purchase yard trucks with engines 

meeting the 0.2 g/bhp-hr NOx level. (SCAQMD 1) (SCAQMD 2) (NRDC) (CERA) 

Agency Response: We disagree. The practical effect of the comment would be to 

require the use of alternative fuel (i.e., natural gas) engines, which staff determined are 

not cost-effective or even commercially available for many types of cargo handling 

equipment (Staff Report, Appendix F). However, to the extent these engines are 

available and equipment operators choose to use them, they remain a compliance 

option for meeting the requirements of the regulation. Additionally, the proposed use of 

on-road engines will not have as significant a shortfall in NOx reductions as the 

commenters infer. The on-road diesel engine standards as specified in title 13, CCR, 

section 1956.8 require 50 percent of new engines for model years 2007 through 2009 to 

meet a 0.2 g/bhp-hr NOx standard, while the other 50 percent could meet a 2.0 g/bhp-hr 

NOx standard. Engine manufacturers have stated that 2007 through 2009 model year 

engines will actually meet a 1.2 g/bhp-hr (or lower) NOx level, significantly below the 

2.0 g/bhp-hr standard. 
13 

10. Comment: The rule should require non-yard truck equipment to have a Level 3 

control installed or meet the Tier 4 standards by 2011. (SCAQMD 1) (CERA) 

Agency Response: We disagree. Currently, diesel particulate filters (DPFs) are the 

only technology capable of achieving Level 3 reductions in diesel PM. However, there 

are operational limitations to the use of DPFs in non-yard truck cargo handling 

equipment applications (this is discussed in the Staff Report, pp. V-4 – V-5). 

Because of this, a universal requirement that all non-yard truck engines be equipped 

with DPFs is not technologically feasible at this time. Additionally, the non-yard truck 

equipment population is very diverse, has high capital replacement costs, and long 

useful lives, making rapid turnover impractical. However, by allowing a phased-in 

turnover, as provided in the regulation, to either a Level 3 VDECS or Tier 4 engine for 

most non-yard truck equipment by December 31, 2015, more equipment are expected 

to meet the lower NOx standards provided in the Final Tier 4 off-road engines, which 

become effective in 2014 and 2015 for most cargo handling equipment. This will 

provide greater emission benefits relative to the commenters’ suggestion. 

11. Comment: Rubber-tired gantry (RTG) cranes and equipment with a Level 2 

control should also be required to meet the Tier 4 standards or install Level 3 

retrofits. (SCAQMD 1) (CERA) 

Agency Response: We disagree. As discussed in the Staff Report and this FSOR, 

staff considered the feasibility of retrofit controls, availability of VDECS, potential for 

engine repowering, average engine and equipment useful life, associated health risks, 

and economic feasibility of replacing equipment when establishing performance 

standards and operational requirements. Based on this information, staff concluded 

that requiring all non-yard truck equipment with a Level 2 VDECS to either meet Tier 4 

standards or install a Level 3 VDECS was not appropriate or feasible due to 

technological and economic constraints. 

12. Comment: Highest level NOx retrofits should be required concurrently with 

highest level PM retrofits. (SCAQMD 1) (CERA) 

Agency Response: We disagree. Few NOx retrofits exist for this equipment category. 

Only one NOx retrofit system, which is used in conjunction with a Level 2 diesel PM 

VDECS, has been verified by the ARB for this application. As discussed in the Staff 

Report and this FSOR, staff considered the feasibility of retrofit controls, availability of 

VDECS, ability for engine repowering, average useful life, associated health risks, and 

economic feasibility of replacing equipment when determining performance standards 

and operational requirements. Staff determined that requiring NOx retrofits concurrently 

with PM retrofits is not appropriate or feasible. However, staff will continue to evaluate 

the feasibility of this technology in a cargo handling equipment application and may 

consider future recommendations to the Board as appropriate. 
14 

B. Best Available Control Technology (BACT) and Alternative Fuels 

1. Comment: The rule should require BACT and offer incentives for the use of 

alternative fuels. (ENVIR) 

Agency Response: The regulation establishes and requires BACT for all equipment 

types. However, we disagree with the commenter that ARB should offer incentives for 

the use of alternative fuels. In this regulation, as with other mobile source regulations, 

BACT is a selection of compliance options, and alternative fuels may be used in 

meeting those requirements. 

2. Comment: Non-yard truck equipment should be required to meet the most 

stringent compliance option available before being allowed to use a less stringent 

option. (ENVIR) (CNGVC 2) 

3. Comment: For new non-yard truck equipment, electric powered equipment 

should be the performance standard first, followed by alternative clean fuels such 

as natural gas. (SCAQMD 1) (CERA) 

4. Comment: The regulation should require new purchases to comply with a 

hierarchy BACT approach, which would maximize emission reductions, be fuel 

neutral and emissions-driven, and support the Governor’s Action Plan and the 

Goods Movement Action Plan. The proposed regulation fails to require BACT for 

new and existing equipment and instead allows for three options for compliance 

in an attempt to provide regulatory flexibility. (CE 1) 

5. Comment: ARB should identify a hierarchy of compliance measures that if 

available and workable for an application, should be used; if a BACT technology 

option is deemed infeasible, the next order of compliance must be evaluated for 

applicability. (CNGVC 1) 

Agency Response: We disagree. Staff considered a top-down BACT approach, but 

determined that it was not cost-effective considering the extremely high costs of 

replacing equipment, the long useful lives, the contribution of emissions for this category 

of cargo handling equipment, and the additional reductions that would be achieved from 

the Tier 4 off-road engines that will be available in future years. This regulation follows 

the direction of other mobile source regulations in establishing BACT as a selection of 

several compliance options that maximize both flexibility and emission reductions. 

6. Comment: Appendix F of the Staff Report regarding natural gas as a 

compliance option includes outdated information on demonstration projects and 

fuel pricing. (CNGVC 1) 

Agency Response: We disagree. Staff utilized the most currently available data and 

research at the time the Staff Report was released. Staff’s evaluation of this data 

included demonstration programs and an evaluation of natural gas fuel prices. Staff 
15 

additionally noted an upcoming demonstration program at the Port of Long Beach that is 

now underway but had not yet begun at the time of writing (Staff Report, pp. F-5). 

7. Comment: The ARB Staff Report fails to take into consideration the current 

efforts at the Ports of Los Angeles and Long Beach to demonstrate up to 10 LNG 

yard tractors. (GNR) 

Agency Response: We disagree. The demonstration programs noted by the 

commenter had not begun at the time of publication of the Staff Report. However, at 

the time of publication, staff was aware of the upcoming demonstration at the Port of 

Long Beach and mentioned it in Appendix F (Staff Report, pp. F-5). 

8. Comment: Natural gas vehicles are inherently cleaner than their diesel 

counterparts and are significantly cleaner than current emission standards. 

(CE 1) (GNR) 

Agency Response: While we agree that natural gas vehicles have lower PM 

emissions than diesel engines, they have higher total hydrocarbon (THC) emissions and 

can potentially have higher NOx emissions, depending on the duty cycle and condition. 

9. Comment: ARB staff should recommend alternative fuel engines to be 

considered BACT for the purposes of this regulation. (GNR) (GORDON) 

Agency Response: As has been discussed in previous responses, we disagree with 

exclusively specifying alternative fuel engines as BACT because of the issues regarding 

availability and cost-effectiveness (Staff Report, Appendix F). However, we believe it 

appropriate to allow alternative fuel engines to be one of the various options that can be 

used in meeting the BACT requirements for all equipment types. 

10. Comment: In regards to selecting BACT, in terms of application and need, the 

urgency to reduce emissions, why are we picking winners? Why don’t we let the 

market pick the winners? We need to be a little more fuel neutral and a little bit 

more emissions driven and support rules that make sense. (CE 2) 

Agency Response: The regulation remains fuel neutral and allows the use of either 

diesel engines or alternative fuel engines to meet the requirements of the regulation. 

11. Comment: The cleanest options are going to be alternative fuels certified to the 

optional low NOx standards of 0.2 g/bhp-hr in 2007, and we’re proposing that 

that technology should be employed where applicable. (CNGVC 2) 

12. Comment: It is important for Central Valley air quality that the small and large 

vehicles handling the cargo from ship to shore be required to use alternative 

fuels with the lowest emission levels possible. (DENNISON) 
16 

13. Comment: The final Tier 4 standards will require 0.3 g/bhp-hr NOx emissions 

and 0.01 g/bhp-hr PM emissions. Natural gas engines in 2007 will be certified to 

0.2 g/bhp-hr NOx and 0.01 g/bhp-hr PM. If Tier 4 emissions are cited as BACT, 

then certainly natural gas engines, for the purposes of a 2007 regulation, should 

be considered BACT. (CNGVC 1) 

Agency Response: We disagree. The possible higher cost of the alternative fuel and 

alternative fuel infrastructure, along with cleaner diesel engines, which have emissions 

near to those of alternative fuel engines, favors selection of alternative fuels on a caseby-case basis instead of a general mandate. Therefore, we do not believe that it is 

appropriate to exclusively establish natural gas engines as BACT in cargo handling 

equipment applications. The regulation is intended to be fuel neutral, and alternative 

fuel engines are among the various compliance options that are considered BACT for 

meeting the requirements of the regulation. 

14. Comment: We are concerned that the Tier 4 standards and the 2007 on-road 

standards are seen as equivalent; but the Tier 4 standards don’t come into effect 

until 2011 and are not fully compliant until 2014. We think that’s too long and too 

far away, especially when some of the alternative fuels will beat the Tier 4 

standards in 2007. We should be fuel neutral. (CNGVC 2) 

15. Comment: The rule gives the implication that Tier 4 non-road engines will be 

available in 2007, but Tier 4 non-road standards don’t go into effect until 2011, 

and the manufacturers don’t have to be fully compliant with Tier 4 regulations 

until 2014. Given the reluctance shown by engine manufacturers to introduce 

low emission technology before required, it is hard to see how the proposed rule 

implemented in 2007 can be considered BACT. (CNGVC 1) 

Agency Response: The regulation does not suggest that Tier 4 engines will be 

available in 2007. The Staff Report discusses in detail both the on-road and off-road 

standards, including Tier 4, and their effective dates (Staff Report, pp. II-8 – II-10). Inuse yard trucks, which are responsible for approximately two-thirds of the cargo 

handling equipment emissions, are required to use either a certified on-road engine 

(2007 or later) or a final Tier 4 off-road engine or equivalent. Until the final Tier 4 

engines are available in 2014/2015, we expect most owners and operators to comply 

using certified on-road engines for the model year purchased. Non-yard truck 

equipment may also use either certified on-road or off-road engines. As discussed in 

previous responses, the regulation is fuel neutral, and we do not believe it is appropriate 

to exclusively establish natural gas engines as BACT in cargo handling equipment 

applications. However, alternative fueled engines are among the various compliance 

options that are considered BACT and may be used in meeting the requirements. 

 

16. Comment: The cost of operation for alternative fuel was not considered in the 

cost-effectiveness analysis, and the operation costs will more than offset the 

costs of the new technology. (CNGVC 2) 
17 

Agency Response: We disagree. Staff studied the cost of alternative fuel operation, 

which included costs for fuel, infrastructure, and equipment relative to diesel. Costs, 

however, are only one consideration in establishing regulatory requirements. 

Alternative fuel use in cargo handling equipment has only been successful in limited 

equipment applications, and the use of 2007 on-road engines in yard trucks greatly 

narrows the emissions reduction advantage of alternative fuels compared to diesel for 

this application. 

17. Comment: Please mandate that equipment and transportation involved in cargo 

movement use the cleanest possible technology and fuels. (DOWDLE) 

Agency Response: As has been discussed in response to previous comments, the 

regulation requires BACT for all equipment types, which can include the use of 

alternative fuel engines. 

18. Comment: I request that the Board require terminal owners and operators to 

purchase the cleanest and best available control equipment available on the 

market for cargo handling equipment. (LOWENTHAL) 

Agency Response: The regulation requires BACT for all newly purchased, leased, or 

rented equipment. 

C. Compliance Timeline 

1. Comment: Because industry has been proactive in applying retrofit controls 

before they were required, the compliance dates should be extended. (PMSA 1) 

(PMSA 2) 

Agency Response: We agree in the case of yard trucks where the majority of early 

retrofits have occurred, and the regulation does allow an additional year for compliance 

for equipment that have had a verified diesel emission control strategy (VDECS) 

installed prior to December 31, 2006. 

2. Comment: The regulation should take into account various incentive programs 

that have legal contractual requirements that may extend beyond the compliance 

dates. (PMSA 1) (PMSA 2) 

Agency Response: We agree in the case of yard trucks where the majority of 

incentive programs have been applied. The regulation includes a compliance extension 

option for applicable equipment that extends three years beyond the installation date of 

the VDECS if the funding was provided by a public agency, and if the program 

stipulated minimum use requirements that would expire after the required compliance 

date. 

3. Comment: Compliance deadlines for equipment used at ports and intermodal 

facilities within the South Coast should be accelerated. (SCAQMD 1) (CERA) 
18 

Agency Response: We disagree. Staff worked with stakeholders, including local air 

district and U.S. EPA staff, to craft a statewide regulation that would affect the ports and 

intermodal rail yards throughout the state consistently. Requiring separate compliance 

dates for one area relative to another would be contradictory, and could put some 

terminals in one area of the state at a business advantage relative to terminals in other 

parts of the state. 

4. Comment: The compliance timeline could be shorter and the financial burden 

for compliance placed on the entities being controlled. (GORDON) 

Agency Response: We disagree. Staff believes that the regulation contains the most 

expeditious and stringent compliance schedule feasible, and that it maximizes emission 

reductions in the most cost-effective manner. 

D. Alternative Compliance Plan and Compliance Extensions 

1. Comment: The Alternative Compliance Plan (ACP) is a loophole that doesn’t 

include operational constraints or allow for public comment. (ENVIR) (CE 1) 

(GORDON) (CCA) (ENVIR) (UCS) 

Agency Response: We disagree. The ACP provision does not provide a loophole in 

the regulation because safeguards are included to ensure that the required emission 

reductions are achieved. Specifically, applicants must provide documentation, 

calculations, emissions test data, or other information which demonstrates that the 

alternative emission control strategies under the proposed ACP will result in equivalent 

or greater emission reductions than compliance with subsection (e)(3) of the regulation. 

Applicants must also maintain recordkeeping, reporting, monitoring, and testing 

procedures that will demonstrate continued compliance with the ACP. At the Board’s 

direction, staff proposed modified regulatory language in the 15-Day Notice that 

establishes a process that is open to public scrutiny. Specifically, under the proposed 

modifications, all documents pertaining to ACP applications will be made available for 

public review, and two separate public comment periods will be provided during the 

application process. 

2. Comment: The Long Beach Alliance for Children with Asthma urges the Board 

to strengthen this rule by changing the ACP provision to include public review 

and public comment, if possible. (LBACA 2) 

3. Comment: I hope that the resolution will include a public comment process for 

the ACP and a report back to the Board on the progress of those plans and to 

also strengthen and be more specific in the requirements of those plans. 

(NRDC) 

Agency Response: At the Board’s direction, the staff proposed modifications to the 

ACP process to provide for greater public participation and scrutiny. Specifically, under 

the proposed modifications, all documents pertaining to ACP applications will be made 
19 

available for public review, and two separate public comment periods will be provided 

during the application process. As stated in the response to Comment number 1 above, 

safeguards are included in the ACP provision to ensure that the required emission 

reductions are achieved. Specifically, applicants must provide documentation, 

calculations, emissions test data, or other information which demonstrates that the 

alternative emission control strategies under the proposed ACP will result in equivalent 

or greater emission reductions than compliance with subsection (e)(3) of the regulation. 

Applicants must also maintain recordkeeping, reporting, monitoring, and testing 

procedures that will demonstrate continued compliance with the ACP. Additionally, staff 

will report back to the Board on the status of the development of the ACP guidance and 

periodically on the number of ACP applications that have been received and how those 

applications have been handled. 

4. Comment: The compliance extensions and ACP options should be removed. 

(CNGVC 1) (CE 1) 

Agency Response: We disagree. Removing compliance extensions and ACP options 

would unnecessarily limit the flexibility of the program and stifle innovation. Currently, 

there are promising control technologies under development that may be demonstrated 

to effectively control cargo handling equipment emissions, and allowing these 

demonstrations to go forward could increase the potential emission reductions from this 

category. 

5. Comment: The Coalition does not support compliance extensions. The menu of 

options ARB is proposing should be sufficient. At worst case, diesel options will 

include installation of Level 1 control devices, which is no different than the diesel 

retrofit rule for solid waste collection vehicles, which had no compliance 

extensions. (CNGVC 1) 

Agency Response: We disagree. Please see response to Comment number 4 above. 

6. Comment: The ACP takes some of the opportunities for emission reductions off 

the table that we can’t afford to give away right now. (CNGVC 2) 

Agency Response: We disagree. As discussed previously, safeguards are included in 

the ACP provision to ensure that each approved ACP will result in equivalent or greater 

emission reductions than compliance with the performance requirements in 

subsection (e)(3) of the regulation. The ACP provision also encourages the application 

of innovative technologies that could lead to ARB verification of additional diesel 

emission control technologies. 

7. Comment: The ACP language doesn’t specify that each ACP can include only 

equipment at the same facility, so that should be addressed. (CERA) 

Agency Response: We agree. The staff proposed modified regulatory language in the 

15-Day Notice, which requires owners and operators to include only equipment under 
20 

their direct control at the same port or intermodal rail yard and does not allow any 

equipment to be included in more than one ACP. 

8. Comment: There should be a requirement for staff to provide a written response 

to public comments received for ACP applications. (CERA) 

Agency Response: Staff proposed modified regulatory language in the 15-Day Notice 

that provides for a public review process. During that process, the Executive Officer will 

consider and address all comments received during the public comment periods and 

provide responses to each comment on the ACP Internet site. 

9. Comment: Whether an ACP is approved or denied, whoever has an interest 

should be able to appeal that decision to the full Board. (CERA) 

Agency Response: We disagree. Appealing to the full Board would delay the ACP 

application process, which in turn could result in a loss of emission reduction benefits. 

Staff’s proposed modified regulatory language in the 15-Day Notice provides interested 

parties an opportunity to submit comments regarding the Executive Officer’s proposed 

approval or disapproval of an ACP application. 

10. Comment: The ACP provision would essentially allow one to propose an 

alternative compliance method to be substituted for the proposed regulation – 

when, in reality, all emission sources and solutions will be required. The ACP 

provisions will be detrimental to the public need to address all sources. 

Compliance options that are currently outside the proposed regulation will 

eventually have to be regulated by local if not ARB authority. (CNGVC 1) 

Agency Response: We disagree. The ACP provision is intended to allow for flexibility 

in meeting the requirements of the regulation and for innovation of additional emission 

control technologies and only applies to non-yard truck equipment subject to the rule. 

The ACP applicant must demonstrate that the ACP will achieve equivalent or greater 

emission reductions. If the commenter was also referring to the inclusion of other 

sources of emissions besides cargo handling equipment, equipment and sources not 

subject to the regulation are not eligible to be included in an ACP. 

E. Expanding the Regulation to Cover Additional Equipment 

1. Comment: The rule should have been applicable to cargo handling equipment 

at distribution centers and airports. (ENVIR) (CE 1) (GORDON) 

2. Comment: The rule should be amended within one year to include distribution 

centers and airports where significant cargo handling takes place. (CNGVC 1) 

Agency Response: We disagree. Because of the community health risks associated 

with cargo handling equipment at ports and intermodal rail yards, it was important to 

address them quickly with this rule. While the risks with distribution centers and airports 
21 

may also be significant, including them in this rule would have delayed the regulatory 

process because it would have greatly increased the scope of the rule. A statewide inuse off-road equipment regulation is under development and is scheduled to be 

considered by the Board in 2007. That rule will address diesel off-road equipment not 

covered by this rule. Another rule, which addresses the large, spark-ignition equipment 

statewide, was approved by the Board in May 2006. 

3. Comment: I was disappointed that this rule only applies to ports and intermodal 

rail yards when the Business, Transportation, and Housing Agency (BTH) and 

California Environmental Protection Agency (CalEPA) process, the Goods 

Movement Emission Reduction Plan, is looking at everybody that’s impacted by 

the goods movement system, not just the people at the ports and intermodal rail 

yards. (CE 2) 

4. Comment: It is critical that the Board direct staff to come back to the Board 

within one year to include cargo handling equipment at airports and distribution 

centers. We don’t understand why staff decided to remove airports and 

distribution centers from the original rulemaking process, as their omission 

contradicts the goals established by the Goods Movement Action Plan. (CE 1) 

Agency Response: We disagree. See response to Comments number 1 and 2 above. 

5. Comment: The Board should consider adopting similar rules for heavy-duty onroad trucks that transport cargo from ports to intermodal rail yards. (CNGVC 1) 

(SCAQMD 1) (SCAQMD 2) (CE 1) (NRDC) (CERA) 

Agency Response: We agree. Staff is currently developing a port-truck measure to 

specifically address emissions from on-road trucks at ports. This measure, which may 

be regulatory or non-regulatory, is expected to be considered by the Board in 2007. 

Additionally, a proposed regulation for on-road private truck fleets is scheduled to be 

considered by the Board in the near future. 

6. Comment: We ask that ARB staff work with the Port of Long Beach to develop 

solutions to the emissions from on-road heavy-duty trucks. (POLB) 

Agency Response: We agree. See response to Comment number 5 above. 

7. Comment: Switcher locomotives and line haul locomotives should be included 

in the regulation within one year. (SCAQMD 1) (CE 1) (NRDC) (CERA) 

8. Comment: ARB should develop an enhancement in the short term to this rule to 

cover locomotive switcher and line haul engines when they are at standby or 

under maintenance. (SCAQMD 2) 

Agency Response: The California Legislature has granted ARB broad authority to 

regulate locomotive emissions, and has specifically directed the ARB to achieve the 
22 

maximum degree of emission reductions by the earliest practicable date from off-road 

equipment and vehicles, including locomotives. However, while this authority under 

State law is quite clear, preemption limitations at the federal level, which are supreme to 

State law, restrain the ability of ARB to engage in a regulatory approach targeting 

locomotive emission standards. Federal law significantly restricts the ability of states 

and local jurisdictions to control locomotive emissions, or to enforce rules that affect 

national railroad transportation. These limitations mean that voluntary agreements, as 

opposed to regulation, are preferable courses of action to ensure timely and certain 

emission benefits from railroad operations. 

9. Comment: I trust that you will also consider ways to reduce pollution from trains 

that travel the valley. (DENNISON) 

Agency Response: ARB has developed a comprehensive program to reduce 

emissions from railroad operations. The program includes negotiating memoranda of 

understanding with the two major railroads that accelerate locomotive turnover by 2010, 

require the installation of automatic idling devices, establish a statewide smoke opacity 

inspection program, and perform yard-by-yard risk assessments and mitigation. 

Additionally ARB strongly supports the adoption of more stringent (Tier 3) national 

locomotive standards and accelerating the introduction of these locomotives into 

California. 

F. Procedures and Miscellaneous Issues 

1. Comment: The Board should require an annual report back on the 

implementation of the regulation and the ACP. (SMAQMD) 

2. Comment: The Board should require staff to report back to them within six 

months on updates to the regulation and on the feasibility of addressing similar 

issues in future diesel regulations. (ENVIR) 

Agency Response: Staff will report back to the Board regarding the development of 

the ACP guidance and semi-annually on the number of ACP applications that have 

been received and how they have been handled. 

3. Comment: The Board should make sure that rules are adopted quickly to 

address this kind of equipment in other types of locations and making sure that 

we are getting the best possible technologies used in reducing emissions from 

these types of sources. (ALAC) 

Agency Response: As discussed in response to previous comments, additional 

statewide regulations to address other off-road diesel-fueled equipment not covered by 

this regulation are under development. Staff is also committed to forming a technology 

working group, or working through one of the existing technical working groups, such as 

the Maritime Air Quality Technical Working Group, to monitor the feasibility of retrofit 
23 

emission controls and to share information on successful applications of experimental 

emission control strategies (Staff Report, pp. ES-10 – ES-11). 

4. Comment: We ask the Board to request staff to come back to them with 

recommendations regarding encouraging the use of alternatives to dieselpowered equipment, accelerating the turnover of the equipment above and 

beyond what the regulation is requiring, reducing idling emissions from this 

equipment, and addressing the lack of distribution centers and airports in this 

regulation. (UCS) 

Agency Response: As discussed in response to previous comments, additional 

regulations are under development to address off-road equipment statewide, and staff is 

committed to monitoring the feasibility of retrofit emission controls and to share 

information on successful applications of experimental emission reduction strategies. 

Staff will continue to look at idling restrictions for this type of equipment and others as 

part of potential additional rulemakings. 

5. Comment: We ask that staff report back in no later than six months on how to 

require the use of best available control technologies for all types of equipment 

considering age and other technological feasibility issues, how to appropriately 

offer incentives for the use of cleaner, more protective alternative fuels, and how 

to reinstate idling limits. (CCA) 

Agency Response: Please see response to Comment number 4 above. More 

stringent on-road and off-road diesel engine standards are lessening the benefits of 

selecting alternative fueled engines over diesel engines, particularly in the case of yard 

trucks, which, in order to meet the requirements of this regulation, will be required to 

accelerate turnover to certified on-road engines or final Tier 4 off-road engines (or the 

equivalent). Within the first three years of implementation, by 2010, the emissions from 

on-road diesel engines and alternative fuel (LNG) engines will be virtually identical, 

making incentives for one over the other an impractical option. Staff will continue to 

look at idling restrictions for this type of equipment and others as part of potential 

additional rulemakings. 

6. Comment: Military tactical support equipment should be exempt from the 

regulation. (DOD 1) (DOD 2) 

Agency Response: We agree and have included the exemption as part of the 

changes in regulatory language in the 15-Day Notice. 

7. Comment: Because the 2007 certified engine standards are manufacturer 

average standards, yard trucks could end up with engines that emit 2.4 g/bhp-hr 

NOx. (SCAQMD 2) (NRDC) 

Agency Response: We disagree. Under the certified on-road diesel engine standards 

(title 13, CCR, section 1956.8), at least 50 percent of the engines manufactured for 
24 

model years 2007 through 2009 must meet a 0.2 g/bhp-hr NOx standard, while the 

other 50 percent must meet a 2.0 g/bhp-hr standard. Manufacturers have consistently 

expressed to staff that they intend to have 100 percent of their engines meet the 

average (1.1 to 1.2 g/bhp-hr NOx) for model years 2007 through 2009. Because of this, 

we believe it is unlikely that 2007 through 2009 model year yard truck engines will 

exceed 1.2 g/bhp-hr NOx emissions. For model years 2010 and beyond, 100 percent 

must meet a 0.2 g/bhp-hr NOx standard. 

8. Comment: Operators have begun the use of electrified rubber-tired gantry 

(RTG) cranes, and where that wasn’t feasible, there is alternative fueled 

equipment available. (SCAQMD 2) (NRDC) 

Agency Response: As discussed in the Staff Report and this FSOR, the use of 

alternative fueled equipment, particularly for non-yard truck vehicles, is limited. While 

BNSF Railway is proposing a new intermodal rail yard at the Port of Los Angeles for 

which they are considering the use of electric RTG cranes, there are only two electric 

RTG cranes in operation in the world (both in Europe), and none are currently in 

operation in the United States. BNSF Railway’s proposal is currently conceptual and 

has not been demonstrated to be feasible. 

9. Comment: The resolution should acknowledge and encourage the development 

of effective local strategies, such as those being pursued in the Port of 

Los Angeles. (SCAQMD 2) (NRDC) 

Agency Response: Acknowledgement for the ports’ air quality improvement plans to 

reduce emissions from port-side diesel equipment was included in the Staff Report 

(Staff Report, pp. II-11). Staff has worked closely with the ports in their development of 

their strategic plans and will continue to partner with them as they begin to implement 

the strategies specified in their plans. 

10. Comment: ARB cannot enforce any aspect of the regulation until the U.S. EPA 

has authorized the proposed rulemaking pursuant to the federal CAA 

section 209(e)(2). (EMA) 

Agency Response: As discussed in the Staff Report, CAA section 209(e) allows 

California to request and receive authority from the U.S. EPA to establish requirements 

for off-road mobile engines (Staff Report, pp. ES-2, I-2). ARB will make such a waiver 

request to the U.S. EPA as soon as this regulation becomes effective. A central part of 

ARB’s request to U.S. EPA will be authorization to require existing off-road yard trucks 

to repower using new 2007 heavy-duty vehicle on-road engines. California has already 

been granted a waiver by U.S. EPA to adopt and enforce emission standards for these 

engines. See California State Motor Vehicle Pollution Control Standards; Waiver of 

Federal Preemption, Decision of the Administrator (Heavy-Duty Diesel Vehicles and 

Engines Standards for 2007 and Later Model Years), 70 Fed.Reg. 50322 (8/26/05). 
25 

11. Comment: MECA would like to work with ARB staff to define a streamlined 

verification extension process that would help deliver more verified options to the 

off-road sector and expand the verified retrofit technology options available for 

cargo handling fleet operators to comply with the proposed ARB PM reduction 

regulations. (MECA 1) (MECA 2) 

Agency Response: Staff will be happy to work with MECA in the verification process. 

12. Comment: MECA is happy to report that the development effort for the 2007 onroad diesel engines is on track; those engines will be in the marketplace come 

2007. (MECA 2) 

Agency Response: We appreciate MECA’s comment. 

13. Comment: Our attorneys disagree with the statement in the Staff Report, 

“Districts are not authorized to adopt requirements for equipment subject to the 

proposed regulation.” We ask that this be struck from the Staff Report. If one 

looks at Vehicle Code Section 670, definition of a vehicle, it clearly says, “A 

device by which any person or property may be propelled, moved or drawn upon 

highway.” There are clearly types of emission sources covered by this rule that 

we believe we have authority under other provisions of the Health and Safety 

Code. (SCAQMD 2) (NRDC) 

14. Comment: I suggest that you strike the line regarding SCAQMD’s authority as 

they requested, and let the lawyers fight it out and get back to you with their 

decisions. (CCA) 

Agency Response: Under the Health and Safety Code, ARB has exclusive 

authority to regulate vehicular sources, and air districts have the primary authority to 

regulate nonvehicular sources. See Health and Safety Code section 39002, which 

provides in relevant part: 

Local and regional authorities have the primary responsibility from 

all sources other than vehicular sources. The control of vehicular 

sources, except as otherwise provided in this division, shall be the 

responsibility of the Air Resources Board. 

California courts have broadly defined vehicular sources to include any self-propelled 

vehicle that is capable of being drawn upon a highway, whether or not the object was 

designed to operate on a highway. Health and Safety Code section 39060 defines 

“vehicular sources” as “those sources or air contaminants emitted from motor vehicles.” 

The Health and Safety Code definitions of “motor vehicle” and “vehicle” incorporate the 

definitions in the Vehicle Code. Vehicle Code section 670 defines “vehicle” as “a device 

by which any person or property may be propelled, moved, or drawn upon a highway, 

excepting a device moved exclusively by human power or used exclusively upon 
26 

stationary rails or tracks.” Vehicle Code section 415 defines “motor vehicle” as “a 

vehicle which is self-propelled.” 

The courts have largely interpreted the definitions in the context of insurance claims, 

and have uniformly found the definitions to be broad. California courts have found, 

among other vehicles, a bulldozer,1

 a self-propelled mobile crane,2 a forklift,3 and a 

four-wheel Le Tourneau scraper4

 all to be motor vehicles. There is no reported case in 

which similar machines have been found not to be a motor vehicle. 

G. Incentive Funding 

1. Comment: The regulation will preclude equipment from accessing certain 

incentive funding programs which could possibly delay early implementation of 

currently available and future technologies. (PMSA 1) 

Agency Response: We disagree. Existing incentive funding programs, such as the 

Carl Moyer Program, remain an option for equipment that complies early or goes above 

and beyond the requirements of the regulation. Staff believes the commenter is 

referring to the Energy Policy Act of 2005, which authorizes $200 million each year, 

nationwide, for fiscal years 2007 through 2011 to provide grants or low-cost revolving 

loans to achieve reductions in diesel emissions. These monies cannot be used to fund 

emission reduction measures mandated under Federal, State, or local law. As 

discussed in the Staff Report, it is unknown when monies will be appropriated and how 

much funding will be made available to California. While this regulation is clearly a 

State mandate, the ARB would support the use of these monies by cargo handling 

equipment operators provided the funds are used to comply early or to achieve greater 

emissions benefits, similar to the manner in which Carl Moyer Program funds can be 

used. 

2. Comment: Federal funds are coming into play under the Energy Policy Act. We 

would like to see some consideration for allowing more of the incentive funds 

from both state and federal programs to be applied to this equipment in the 

hopes that we’ll turn over the equipment more aggressively and sooner than we 

might otherwise do if we solely rely upon the regulation to turn over the 

equipments. (PMSA 2) 

Agency Response: See response to Comment number 1 above. 

 

1

Lambert v. Southern Counties Gas Company (1959) 52 C.2d 347. 

2

 Donahue Const. Co. v. Transport Indem. Co. (1970) 7 Cal.App.3d 291. 

3

 (Travelers Indem. Co. v. Colonial Ins. Co. (1966) 242 Cal.App.2d 227, 236-238 disapproved on appeal 

on other grounds), 

4

 People v. Pakchoian (1952) 114 Cal.App.2d Supp. 
27 

H. Recordkeeping and Reporting Requirements 

1. Comment: Individual labels on equipment are redundant and unnecessarily 

burdensome. (PASHA) (PMSA 1) (PMSA 2) 

Agency Response: In subsection (i)(2) (Records Kept in Mobile Cargo Handling 

Equipment), the regulation allows for either individual labels or an alternative form 

approved by the Executive Officer or designee that is immediately accessible at the time 

of inspection by the enforcement agency. In other words, the commenter and others 

may use an alternative method which they believe is less burdensome in lieu of 

applying individual labels, so long as the Executive Officer has approved the alternative 

method. 

2. Comment: Records should be maintained for three to five years or until the 

equipment is sold. Maintaining records longer than that becomes onerous and 

burdensome. (DOD 1) 

Agency Response: In order to adequately enforce the requirements of the regulation, 

staff believes it is necessary for owners and operators to maintain the appropriate 

records for their equipment as long as it operates at a port or intermodal rail yard in 

California. 

IV. SUMMARY OF PUBLIC COMMENTS AND AGENCY RESPONSES – NOTICE 

OF MODIFIED TEXT 

Four written comments were received during the 15-day comment period. One 

comment was made in support of the modifications, and two others did not specifically 

address the modifications. Only one comment was made regarding the specific 

regulatory actions proposed in the Notice of Modified Text (dated May 18, 2006). Set 

forth below is a summary of the comment together with the Agency’s response. 

Comment Received during the 15-day Comment Period

Abbreviation 

Reference 

Number Commenter 

PARKER PARKER Brad Parker 

Private Citizen 

Written testimony: May 30, 2006 

1. Comment: Staff should not have exempted the military, which makes up a huge 

part of the ports (Seal Beach). Their emissions alone will undermine the purpose 

of reductions. 

Agency Response: The military is not exempt from the requirements of the regulation. 

Since the intent of the regulation is to reduce emissions from commercial ports and 
28 

intermodal rail yards because of the near source health risk to communities, the 

regulation applies to military operations that occur as part of a port or on contiguous 

properties. However, staff modified the proposed regulatory text to exempt military 

tactical support cargo handling equipment used in combat, combat support, combat 

service support, tactical or relief operations, or training for such operations. Staff 

believes the modification is appropriate and necessary for reasons of national defense 

and security.