State of California 

Air Resources Board 

Resolution 08-41 

November 21, 2008 

Agenda Item No.: 08-10-3 

WHEREAS, sections 39600 and 39601 of the Health and Safety Code authorize the Air 

Resources Board (ARB or the Board) to adopt standards, rules and regulations and to 

do such acts as may be necessary for the proper execution of the powers and duties 

granted to and imposed upon the Board by law; 

WHEREAS, Health and Safety Code sections 43013 and 43018 direct ARB to set 

emission control requirements for off-road mobile source categories including marine 

vessels, locomotives, utility engines, off-road motorcycles, and off-highway vehicles; 

WHEREAS, section 209(e)(1) of the federal Clean Air Act preempts states and their 

political subdivisions, including the State of California and the local districts, from 

adopting or enforcing emission standards or other requirements relating to the control of 

emissions of new nonroad engines less than 175 horsepower used in farm and 

construction equipment and vehicles; 

WHEREAS, section 209(e)(2) authorizes California to adopt standards and to seek 

authorization from the United States Environmental Protection Agency (U.S. EPA) prior 

to enforcing emission standards or other requirements relating to the control of 

emissions from nonroad engines, not otherwise preempted by section 209(e)(1); 

WHEREAS, in 1998, the Board adopted certification emission credits intended to 

provide flexibility to small off-road engine and equipment manufacturers and represent 

real and enforceable emission reductions beyond those required by regulation; 

WHEREAS, in 1998, the Board also adopted production emission credits which were 

intended to be used to offset compliance problems, and were considered and rejected 

by U.S. EPA; 

WHEREAS, in 2003, the Board adopted more stringent exhaust emission standards 

which were based on reductions achievable with the use of a catalyst; 

WHEREAS, manufacturers have requested that ARB harmonize with the federal 

certification fuel requirements in regards to the ethanol content, which may be up to ten 

percent of the fuel by volume; 
Resolution 08-41 2

WHEREAS, the existing program includes regulations and procedures for emission 

control labels, warranties, enforcement procedures, and compliance testing necessary 

to adequately enforce the exhaust emission standards and test procedures; 

WHEREAS, the California Environmental Quality Act and Board regulations require that 

no project which may have significant adverse environmental impacts be adopted as 

originally proposed if feasible alternatives or mitigation measures are available to 

reduce or eliminate such impacts; 

WHEREAS, a public hearing and other administrative proceedings have been held in 

accordance with the provisions of chapter 3.5 (commencing with section 11340), part 1, 

division 3, title 2 of the Government Code; 

WHEREAS, the Board finds that: 

Exhaust emissions from small off-road engines remain a significant source of air 

pollution; 

Manufacturers were able to earn a large amount of emission credits by making small 

off-road engines incrementally cleaner than the Tier 2 emission standards. 

Excessive accumulation of emission credits has kept small off-road engines from 

achieving expected emission; 

Despite the fact that the last of the Tier 3 emission standards went into effect in 2008, 

over seventy percent of small off-road engines do not meet the standards directly but 

only through the use of emission credits; 

Certification emission credits are based on the difference between the emission 

standards and the level at which the manufacturer certifies the engine; 

Production emission credits are based on the difference between manufacturer’s 

compliance level and emissions certification level; 

Production emission credits do not necessarily represent emission reductions beyond 

those required by regulation and may not, therefore, represent real emission reductions; 

Production emission credits can be converted to certification emission credits with a 

slight discount; 

Equipment with small off-road engines has a useful life of approximately five years of 

which benefits of credits are experienced; 

Certification emission credits remain banked beyond the equipment’s useful life; 
Resolution 08-41 3

To meet the emission reduction requirements of State and federal laws, ARB must 

ensure that expected emission reductions from mobile sources, including small off-road 

engines are being achieved; 

Promotion of zero emission equipment credits may aid engine and equipment 

manufacturers in marketing zero emission equipment and encourage development of 

advanced cleaner technology, leading to possible reduced emissions; 

Consumers often do not receive adequate warranty coverage due to language barriers 

between the warranty contact and the consumer; 

Durability is currently defined in hours, even though small off-road engines generally do 

not have hour meters; 

Certification fuel requirements are not harmonized with U.S. EPA’s rules and may 

unnecessarily increase certification costs for the manufacturers; 

WHEREAS, the Board further finds that: 

Limiting the lifetime of certification emission credits is necessary to keep emission 

credits from accumulating indefinitely; 

Elimination of production emission credits is necessary to ensure real emission benefits; 

Introduction of zero emission equipment credits would encourage advancement in 

technology for cleaner small off-road equipment; 

Requiring manufacturers to provide an American toll free warranty contact number with 

an English speaking contact would provide better warranty protection for the consumer; 

Including a useful life definition in terms of years of use at five years in addition to the 

hours of use definition would provide a more measurable useful life definition; 

Allowing the use of fuel with an ethanol content of up to ten percent will more closely 

align with U.S. EPA procedure and will simplify the process of certification for industry; 

The regulations would not result in any adverse environmental impacts; 

The economic and cost impacts of the amendments have been analyzed as required by 

California law, and the conclusions and supporting documentation for this analysis are 

set forth in the Initial Statement of Reasons; 

The amendments to the small off-road engine regulations are necessary, 

cost-effective, and technologically feasible to carry out the purposes of the state 

and federal clean air laws; 
Resolution 08-41 4

No alternative considered would be more effective in carrying out the purpose for which 

the regulation is proposed or would be as effective or less burdensome to affected 

private persons; 

NOW, THEREFORE, BE IT RESOLVED that the Board hereby approves sections 2403, 

2405, 2406, 2408, and 2409, title 13, California Code of Regulations and the “California 

Exhaust Emission Standards and Test Procedures for 2005 and Later Small Off-Road 

Engines” as set forth in Attachment A-1 hereto, with the modifications described in 

Attachment A-2 hereto. 

BE IT FURTHER RESOLVED that the Board hereby determines that the regulations 

adopted herein will not cause California small off-road engine emission standards, in the 

aggregate, to be less protective of public health and welfare than applicable federal 

standards. 

BE IT FURTHER RESOLVED that the Board hereby finds that separate California 

emission standards and test procedures are necessary to meet compelling and 

extraordinary conditions. 

BE IT FURTHER RESOLVED that the Board finds that the California emission 

standards and test procedures as adopted herein will not cause the California 

requirements to be inconsistent with section 202(a) of the Clean Air Act and raise no 

new issues affecting previous waiver determinations of the Administrator of the 

Environmental Protection Agency pursuant to section 209(b) of the Clean Air Act. 

BE IT FURTHER RESOLVED that pursuant to the determinations set forth above, the 

Board directs staff to file a request for authorization from the United States 

Environmental Protection Agency pursuant to section 209(e)(2) of Title II of the federal 

Clean Air Act as amended in 1990 to the extent necessary. 

I hereby certify that the above is a true and 

correct copy of Resolution 08-41, as 

adopted by the Air Resources Board. 

/s/ 

_______________________________ 

Monica Vejar, Clerk of the Board 
Resolution 08-41 

November 21, 2008 

Identification of Attachments to the Board Resolution

ATTACHMENT A-1: Proposed Amendments to the California Regulations for Small 

Off-Road Engines, section 2403, 2405, 2406, 2408, and 2409 within Chapter 9, 

Title 13, California Code of Regulations, as set forth in the attachment A to the Initial 

Statement of Reasons, released October 3, 2008. 

ATTACHMENT A-2: Proposed Amendments to the “California Exhaust Emission 

Standards and Test Procedures for 2005 and Later Small Off-Road Engines,” as set 

forth in the attachment B to the Initial Statement of Reasons, released 

October 3, 2008.