Amendments to the In-Use Off-Road Diesel-Fueled Fleets Regulation

Introduction

The recent amendments, approved by the California Air Resources Board (CARB) in 2022 (2022 amendments) to the In-Use Off-Road Diesel-Fueled Fleets Regulation (Off-Road Regulation or regulation) incorporate new contracting requirements. CARB added the contracting requirements to establish a proactive check at the onset of a project or at contract renewal to encourage fleets to comply with the regulation. Contracting requirements also safeguard against the unfair monetary advantage of noncompliance and thus help level the playing field for all fleets. This fact sheet reviews key elements of the contracting requirements.

Background

Contracting requirements apply to both prime contractors and public works awarding bodies. As described below, some additional requirements solely apply to the prime contractor.

• A prime contractor is the entity that directly holds the project contract for the owner or awarding body. The prime contractor is responsible for overseeing the project or a portion of the project. See section 2449(c)(44) (https://ww2.arb.ca.gov/sites/default/files/barcu/regact/2022/off-roaddiesel/froa-1.pdf#page=14) of the 2022 amendments for the full definition. Note that work contracted with a homeowner for their personal residence, not for business, is exempt from the contracting requirements per section 2449(b)(2)(E) (https://ww2.arb.ca.gov/sites/default/files/barcu/regact/2022/off-roaddiesel/froa-1.pdf#page=4).
• A public works awarding body is the public agency, such as the state, city, county, or school district, that awards or enters into contract for a project where there are vehicles subject to this regulation are used. These are projects on public lands, such as the construction of a public building or road. A complete definition of public works awarding body is available in section 2449(c)(46) (https://ww2.arb.ca.gov/sites/default/files/barcu/regact/2022/off-roaddiesel/froa-1.pdf#page=15) of the regulation.

Contracting Requirements [Section 2449(i) (https://ww2.arb.ca.gov/sites/default/files/barcu/regact/2022/off-roaddiesel/froa-1.pdf#page=59)]

All contracting obligations start January 1, 2024, for both prime contractors and public works awarding bodies.

• For a project involving the use of vehicles subject to the regulation, the prime contractor or public works awarding body must obtain copies of the valid Certificate of Reported Compliance (Certificate) for the fleets and subcontractors that are listed in the contract.
• Certificates must be obtained prior to awarding or renewing a contract.
• Noncompliant fleets, i.e., those without a valid Certificate, are prohibited from being contracted.
• Copies of the Certificates must be retained for three years after the project is complete.
• Records must be provided to CARB within five business days, upon request.

Companies That Do Not Own or Operate Off-Road Diesel Vehicles

If a company does not own, operate, or rent (for longer than a year) off-road diesel equipment, as described in Section 2449(b) (https://govt.westlaw.com/calregs/Document/I91500A3141B211EE83B7BBAC0F484455?viewType=FullText&originationContext=documenttoc&transitionType=CategoryPageItem&contextData=%28sc.Default%29#:~:text=to%20this%20regulation.-,(b)%20Applicability,-(1)%20Except%20as) and Section 2449(c)(27) (https://govt.westlaw.com/calregs/Document/I91500A3141B211EE83B7BBAC0F484455?viewType=FullText&originationContext=documenttoc&transitionType=CategoryPageItem&contextData=%28sc.Default%29#:~:text=(27)%20%E2%80%9CFleet%20owner%E2%80%9D%20means%2C%20except%20as%20qualified%20below%2C%20the%20person%20who%20owns%20and%20has%20possession%20of%20the%20vehicles%20in%20the%20fleet.), the company is not subject to the Off-Road Regulation and therefore does not need to register for DOORS or obtain and submit a compliance certificate. Hence, a prime contractor that hires such a company that does not own, operate, or rent off-road diesel equipment need not obtain a Certificate of Reported Compliance from that company.

If a company rents off-road diesel equipment for less than one year, as described in Section 2449 (c)(27 (https://govt.westlaw.com/calregs/Document/I91500A3141B211EE83B7BBAC0F484455?viewType=FullText&originationContext=documenttoc&transitionType=CategoryPageItem&contextData=%28sc.Default%29#:~:text=(27)%20%E2%80%9CFleet%20owner%E2%80%9D%20means%2C%20except%20as%20qualified%20below%2C%20the%20person%20who%20owns%20and%20has%20possession%20of%20the%20vehicles%20in%20the%20fleet.)), the rental agency’s Certificate of Compliance can be submitted to public awarding bodies or prime contractors that request it.

Exemption for Emergency Operations [Section 2449(i)(4) (https://ww2.arb.ca.gov/sites/default/files/barcu/regact/2022/off-roaddiesel/froa-1.pdf#page=60)]

Emergency operations, as defined in section 2449(c)(18) (https://ww2.arb.ca.gov/sites/default/files/barcu/regact/2022/off-roaddiesel/ord15dayatta-1.pdf#page=8), where the prime contractor or public works awarding bodies are contracting for an emergency situation, are exempt from these contracting requirements. However, the exempted vehicle(s) must only be operated in the emergency situation and records of the exempted vehicles must be maintained. Records must include a description of the emergency and the address or location of the emergency; dates when the emergency operations happened; and an attestation that the vehicles were only operated in that emergency situation.

Additional Prime Contractor Obligations [Section 2449(j) (https://ww2.arb.ca.gov/sites/default/files/barcu/regact/2022/off-roaddiesel/froa-1.pdf#page=60)]

Prime contractors have additional obligations beyond the contracting requirements described above, these additional requirements do not apply to public works awarding bodies, as described further below:

• Prime contractors must collect new valid Certificates for fleets with ongoing contracts as of March 1 of each year.
  • Certificates must be collected between March 1 and June 1 of each year.
  • New contracts may not be written to evade this requirement.
• Prime contractors must only allow fleets with valid Certificates on the job site.
• The prime contractor must immediately disclose to CARB, upon request, the name and contact information of any fleet or vehicle owner on their job site; this requirement only applies to fleets or vehicles that are subject to the regulation.
• If the prime contractor discovers a fleet intending to operate vehicles at the job site does not have a valid Certificate or observes noncompliant fleets or vehicles operating on their job site, they must report it to CARB within five business days at: https://calepacomplaints.secure.force.com/complaints/Complaint (https://calepacomplaints.secure.force.com/complaints/Complaint), or at email: diesel.complaints@arb.ca.gov (mailto:dieselcomplaints@arb.ca.gov).

  Reports must include:

  • The date on which the violation was discovered or observed;
  • name and business address of the responsible party;
  • email and phone number of the responsible party, if known; the DOORS fleet ID number of the fleet, if known;
  • the location of the job site on which the noncompliant fleet or vehicle was operating, if applicable; and
  • statement specifying whether the fleet or vehicle is continuing to operate at the job site, if applicable.
• The prime contractor must prominently display a sign that provides key information about the regulation and how to report noncompliance. The sign must be posted where vehicles subject to this regulation will operate for eight or more calendar days; the sign must be posted by the eighth calendar day from when the first vehicle operates. Section 2449(j)(5) (https://ww2.arb.ca.gov/sites/default/files/barcu/regact/2022/off-roaddiesel/ord15dayatta-1.pdf#page=58) provides the exact language that must be on the signage, verbatim, along with other very specific directions about how and where to post it. The signage lettering must be larger than size 14-point type and must be displayed in a conspicuous place where employee notices are typically posted or where there is employee foot traffic. CARB has provided an example sign for contractors to use or reference at the following link (https://ww2.arb.ca.gov/sites/default/files/2023-08/prime_contractor_signage.pdf) and attached it below. For more information, see section 2449(j)(5) (https://ww2.arb.ca.gov/sites/default/files/barcu/regact/2022/off-roaddiesel/ord15dayatta-1.pdf#page=58) of the regulation.

While this document is intended to assist fleets with their compliance efforts, it does not alter or modify the terms of any CARB regulation, nor does it constitute legal advice. It is the sole responsibility of fleets to ensure compliance with the Regulation for In-Use Off-Road Diesel‑Fueled Fleets.