This should be old news to many of you. But it has recently come to my attention that it is not old news to everyone, which is why I'm posting it now. A Ford truck dealer client called me this week and asked about the California Air Resources Board's (CARB) Truck and Bus Regulation. He was in a bit of a panic because he thought there was some advertising requirement associated with it. Something registered through the haze of my tired brain (it was Friday afternoon, after all). Was that the Truck and Bus Regulation passed back in 2008?
Sure enough, it was. The deadlines imposed by the regulation kept getting extended until they became effective on January 1, 2012. But the regulation primarily imposes requirements on truck and bus fleet owners and involves retrofitting requirements. So why was he just now asking about it? Buried on page 54 of the 55 page Final Regulation Order is a one paragraph provision imposing disclosure requirements on anyone who sells a truck to which the regulation is applicable. The fact of the disclosure requirement was initially published back when the regulation became effective, but many dealers missed it.
First, by way of background, the Truck and Bus Regulation is set forth in 13 C.C.R. section 2025 and requires that particulate matter (PM) filters (they're like mufflers, but they help to reduce PM emissions from your vehicle) be installed on nearly all diesel fueled trucks and buses with a gross vehicle weight rating (GVWR) greater than 14,000 pounds that are privately or federally owned and for privately and publicly owned school buses. Now this doesn't apply to other public fleets, solid waste collection trucks and transit buses--they are subject to other regulations. Also trucks that transport marine containers must comply with the drayage truck regulation. And there are several exemptions in Section (c) of the regulation.
For fleet owners (including freight forwarders and brokers):
This is likely old news for fleet owners. And the point of this post is to advise medium and heavy duty diesel truck dealers of their disclosure requirements on the sale of a vehicle that is subject to this regulation. But in case you are a fleet owner and weren't aware of this law, you can find the details here, and a very brief summary is below:
Heavy trucks and buses (with a GVWR greater than 26,000 pounds): the regulation sets forth a schedule for replacement of PM filters based on the engine year of the trucks in your fleet. It also includes a phase-in option that allows fleets to decide which vehicles to retrofit or replace, regardless of engine model year. This last option includes a reporting requirement that started on January 31, 2012.
Light and medium truck and bus (GVWR of 14,001 to 26,000 pounds): requirements pertaining to these trucks do not go into effect until 2015. But the regulation also includes an option to install a PM filter retrofit on a lighter truck by 2014 to make the truck exempt from replacement until January 1, 2020.
There are record-keeping requirements, and of course, penalties for non-compliance (aren't there always penalties?), so make sure you consult your counsel to make sure you understand all of the requirements.
For truck dealers:
The disclosure requirements apply to any person (including an individual or business) residing in California who sells a vehicle with an engine subject to the regulation (see above for brief description of vehicles with engines subject to this regulation). The following disclosure must be made in writing to the buyer at the time of sale on the bill of sale, sales contract addendum, or invoice:
An on-road heavy-duty diesel or alternative-diesel vehicle operated in California may be subject to the California Air Resources Board Regulation to Reduce Particulate Matter and Criteria Pollutant Emissions from In-Use Heavy-Duty Diesel Vehicles. It therefore could be subject to exhaust retrofit or accelerated turnover requirements to reduce emissions or air pollutants. For more information, please visit the California Air Resources Board website at http://www.arb.ca.gov/dieseltruck.
This disclosure requirement applies to franchised truck dealers, to used truck dealers and to private individuals, among others. The type of sale is also not limited, such that it applies to retail, commercial, wholesale and auction transactions. Thus, dealers who sell diesel fueled trucks and buses with a gross vehicle weight rating (GVWR) greater than 14,000 pounds (and are not subject to a statutory exemption) must be sure to include the above disclosure on the bill of sale, sale contract addendum, or invoice. Because this disclosure must be given at the time of sale and has to be on the document memorializing t hat sale -- even in a consumer transaction -- remember that the Automobile Sales Finance Act's Single Document Rule would require that any sales contract addendum be sequentially paginated and stapled to the sales contract. You can obtain a copy of the required disclosure as a sales contract addendum from Auto Advisory Services.
The non-compliance civil penalty provisions of the regulation also apply to non-compliance with the disclosure requirement. Those penalties are $1,000 and $10,000, respectively, for each day in which the violation occurs. Back in July 2010, the CARB put out Regulatory Advisory Number 416 stating that the disclosure requirements became effective on January 8, 2010 and that if you did not include the required disclosure in any transaction after that date, you must contact all buyers and provide them with the disclosure. Presumably, the disclosure requirement was extended, along with the effectiveness of the regulation itself, to January 1, 2012.
Under a related regulation, similar disclosure requirements exist if you sell heavy-duty tractors and 53-foot or longer box-type trailers. If you have been selling trucks covered by these regulations without the required disclosure, you should contact your legal counsel for advice on what to do. Whether you are a diesel truck dealer or a fleet owner/operator or freight forwarder or broker, I highly advise that you to contact your lawyer for information concerning this regulation and how to implement an effective compliance plan.