Comment Log Display

October 19, 2011



Clerk of the Board
Air Resources Board
1011 I Street
Sacramento, CA  95814

The Airborne Toxic Control Measure for In-Use Diesel-Fueled
Transport Refrigeration Units (TRU) and TRU Generator Sets, and
Facilities Where TRUs Operate

We, the undersigned organizations, representing the California
agricultural industry, offer the following comments with respect
to: Proposed Amendments to The Airborne Toxic Control Measure for
In-Use Diesel-Fueled Transport Refrigeration Units 
(TRU) and TRU Generator Sets, and Facilities Where TRUs Operate. 

First, we wish to express our appreciation to ARB staff for working
with our produce shipper industry in an effort to develop a
workable solution to concerns over the interpretation of certain
requirements for California-Based Shippers.

We appreciate the ARB staff’s efforts in acknowledging the
financial and resource burden that would be imposed by Section
2477.10 of the staff’s proposed rulemaking on California fresh
produce shippers not engaged in the arrangement or contracting of
transportation.    While we are confident that the shipper industry
will make every reasonable attempt to ensure compliance with these
regulations, as expressed to ARB staff, since the majority of
shipping transactions are arranged by the consignee (buyer), either
directly or through broker arrangements, we do not believe that the
ultimate responsibility for enforcement-related information rests
with the California-based shipper, but rather the consignee,
broker, or the actual carrier for which this regulation is
designed.  California produce industry shippers need assurance that
they can exercise due diligence to the best of their ability and
not be held liable or otherwise penalized if the equipment is
subsequently found to be non-compliant.

The proposed rule states:

2477.10 Requirements for California-Based Shippers.

(a)	Beginning January 1, 2013, California-based shippers that
arrange, hire, contract for, or dispatch the transport of
perishable goods in TRU-equipped trucks, trailers, shipping
containers, or railcars, or TRU gen sets on California highways or
railways must:

(1)	Dispatch TRUs or TRU gen sets that comply with section
2477.5(a) if they travel on California highways or railways; or
(2)	Require the carriers they hire or contract with for transport
of perishable goods, to only dispatch TRUs or TRU gen sets that
comply with section 2477.5(a) if they travel on California highways
or railways; and
(3)	Provide the following information to the carrier or a
dispatched driver who will be traveling on a highway within
California:
(A)	Shipper’s business name and address.
(B)	Receiver’s business name and address.
(C)	 Freight broker or forwarder business name and address (if
any).
(D)	 Contact person’s name, and phone number at the shipper,
broker, or receiver with knowledge of the transport arrangements.

As has been expressed in several meetings and conference calls with
ARB staff, the only time the terms “arrange”, “hire”, “contract
for”, or “dispatch” should have application to a California shipper
is when that shipper directly contacts and negotiates with the
asset based carrier for the transportation of its commodity on a
delivered sale.  In all other circumstances it is a third party
which takes on the role of arranging, hiring, contracting or
dispatching. 

ARB staff concurs with industry that the vast majority of
refrigerated trailers used to transport perishable agricultural
commodities are domiciled outside the state of California.  Under
the regulations, an out-of-state registered refrigerated trailer is
not required to register through the ARBER system, and is not
required to provide identification on the refrigeration unit. 
Therefore, the California shipper must rely on the representation
of the carrier or its representative that its equipment is
compliant with the TRU regulations.  Requiring California shippers
to perform activities beyond requesting, or self attestation, that
the carrier is compliant would place them in an untenable position.
 An inquiry by a California shipper should be defined as meeting
due diligence.

As we understand from ARB staff, the requirements of section
2477.10 would only apply to a shipper if the shipper is the
business entity that hires or contracts with the carrier to
transport perishable goods on California highways.  

It is our further understanding that due diligence by a California
based shipper would be met if it conspicuously inserts the
following language on the bill of lading: “Carrier or its agent
certifies that any TRU equipment furnished will be in compliance
with California Regulations” 	

A typical bill of lading will have the shipper name, origin,
receiver name and destination; however, individual names and their
telephone numbers are rarely available.  In many instances, most
shipments are less than truckload and have multiple drops and
destinations.  The information currently contained on the bill of
lading provides adequate information to enable ARB staff to contact
any of the involved parties.  For this reason we are requesting
that 2477.10 (a) (3) (D) be deleted.

We believe that ARB staff understands our concerns and that
industry would receive the necessary assurances expressed herein
through ARB’s issuance of guidelines that would more fully explain
due diligence through a certification statement on the bill of
lading.

Again, we wish to express our appreciation to ARB staff in taking
into consideration industry concerns.


Very truly yours,

Agricultural Council of California
California Association of Winegrape Growers
California Citrus Mutual
California Farm Bureau Federation
California Grape & Tree Fruit League
California Pear Growers Association
California Poultry Federation
California State Floral Association
Grower Shipper Association of Central California
Grower-Shipper Association of Santa Barbara and San Luis Obispo
Counties
Nisei Farmers League
Pacific Egg and Poultry Association
Ventura County Agricultural Association
Western Agricultural Processors Association
Western Growers