State of California 

AIR RESOURCES BOARD

Final Statement of Reasons for Rulemaking, 

Including Summary of Comments and Agency Response 

PUBLIC HEARING TO CONSIDER THE AMENDMENTS TO THE CURRENT 

SMALL OFF-ROAD ENGINES REGULATIONS. 

Public Hearing Date: November 21, 2008 

Agenda Item No.: 08-10-03 

 I. GENERAL 

The Air Resources Board (ARB or Board) regulates the emissions from new 

small off-road engines (SORE) sold in California. Within the regulations, ARB 

provides emission compliance flexibility to the manufacturers of these engines 

by allowing the earning and expending of emission credits. However, staff 

found some manufacturers were excessively banking the credits before more 

stringent emission standards were implemented, and then expending their 

accumulated credits over a long period of time afterwards to avoid or delay 

using more advanced emission controls on their engines. Accordingly, staff 

proposed modifications to the regulations to remedy this situation. 

The Staff Report: Initial Statement of Reasons for Proposed Rulemaking, 

Public Hearing to Consider Amendments to the Current Regulations for Small 

Off-Road Engines ("Staff Report"), released on October 3, 2008, is 

incorporated by reference herein. This Final Statement of Reasons (FSOR) 

updates the Staff Report, summarizes the public comments received, and 

presents the Board’s responses to those comments. 

On November 21, 2008, the Board conducted a public hearing to consider 

staff’s proposed amendments to the regulations and test procedures. After 

consideration of the written comments received during the 45-day public 

comment period prior to the hearing, and the testimony received at the public 

hearing, the Board adopted Resolution 08-41 to amend the regulations. The 

amendments affect the regulations in title 13, California Code of Regulations 

(CCR), sections 2403, 2405, 2406, 2408, and 2409, which incorporate by 

reference the, “California Exhaust Emission Standards and Test Procedures 

for 2005 and Later Small Off-Road Engines.” These documents were posted 

on ARB’s website for the rulemaking at: 

http://www.arb.ca.gov/regact/2008/sore2008/sore2008.htm . 

After the regulatory action is finalized, the amended test procedures will be 

available on ARB’s website, as well as in printed form upon request from 

Small Off-Road Engine program staff. 
In developing the regulatory proposal, ARB staff evaluated the potential 

economic impacts on representative private persons or businesses. The 

Executive Officer is not aware of any costs that representative private 

persons or businesses would necessarily incur in reasonable compliance with 

the proposed action. Although not quantifiable, any costs that manufacturers 

may incur would have been incurred by the manufacturers if they had 

complied with the emission standards at the time of the emission standard 

change. 

Pursuant to Government Code sections 11346.5(a)(5) and 11346.5(a)(6), the 

Executive Officer has determined that this regulatory action will not create 

costs or savings, as defined in Government Code section 11346.5(a)(6), to 

any state agency or in federal funding to the state, costs or mandate to any 

local agency or school district the costs of which are reimbursable by the 

state pursuant to Part 7 (commencing with section 17500), Division 4, Title 2 

of the Government Code. 

The Executive Officer has determined that this regulatory action will not have 

a significant statewide adverse economic impact directly affecting businesses, 

including the ability of California businesses to compete with businesses in 

other states, or on representative private persons. 

In accordance with Government Code section 11346.3, the Executive Officer 

has determined that this amendment will not affect the creation or elimination 

of jobs within the State of California, the creation of new businesses and the 

elimination of existing businesses within the State of California, and the 

expansion of businesses currently doing business within the State of 

California. 

The Executive Officer has also determined, pursuant to title 1, CCR, section 

4, that this regulatory action will not affect small businesses. The regulatory 

action only affects manufacturers of small off-road engines with emission 

credit balances. None of these engine manufacturers are considered to be 

small businesses. Manufacturers of small off-road equipment, who may be 

considered to be small businesses, would not be affected by this regulatory 

action change because they can use engines from engine manufacturers that 

either have or don’t have emission credit balances. 

At the hearing the staff presented and the Board adopted the amended 

regulations as proposed in the Staff Report. No substantive modifications to 

the proposed amendments were directed by the Board. Pursuant to Board 

Resolution 08-41, the Board has determined that no alternative 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 as and less 

burdensome to affected private persons than the action taken by the Board.

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 II. SUMMARY OF COMMENTS AND AGENCY RESPONSE 

Provided below is a list of commenters that provided written and/or oral testimony. 

Organization and Person Providing Comments Written 

Testimony 

Oral 

Testimony 

Barry Wallerstein, South Coast Air Quality 

Management District (SCAQMD) 

11/14/08 

(SCAQMD1) 

_ 

Henry Hogo, SCAQMD _ 11/21/08 

(SCAQMD2)

James McNew, Outdoor Power Equipment Institute 

(OPEI) 

11/18/08 11/21/08 

Roger Gault, Engine Manufacturers Association (EMA) 11/21/08 11/21/08 

Neil Maguire, Lion Cells - 11/21/08 

Joe Kubsh, Manufacturers of Emission Controls 

Association (MECA) 

11/20/08 

(MECA1) 

_ 

Rasto Brezny, MECA _ 11/21/08 

(MECA2) 

Set forth below is a summary of each objection or recommendation made regarding 

the specific adoption, amendment, or repeal proposed, together with an explanation 

of how the proposed action has been changed to accommodate each objection or 

recommendation, or the reasons for making no change. The responses below 

pertain only to the comments related to objections or recommendations directed at 

the agency’s proposed action or to the procedures followed by the agency in 

proposing or adopting the action. Repetitive comments have been aggregated and 

summarized while irrelevant comments have been dismissed. For the purposes of 

this paragraph, a comment is “irrelevant” if it is not specifically directed at the 

agency’s proposed action or to the procedures followed by the agency in proposing 

or adopting the action. 

A. General 

1. Comment: The catalyst technologies available today benefit the entire 

range of small spark-ignited engines to achieve the current standards without 

emission credits. The technology is based on years of experience with sparkignited engines. And in fact for small engines, these catalysts fit right inside 

the exhaust muffler. We support the proposed changes, and we thank the 

staff for their work in bringing forth this proposal. (MECA 2) 

Agency Response: The Board agrees that the technology to meet emission 

standards is readily available without any major design changes to 

manufacturers’ existing designs. The changes to the emission credit program 

as laid out in the amendments should not affect industry’s ability to comply 

with the current emission standards. In fact, many manufacturers already 

build engines which contain catalysts. 

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B. Production Emission Credits 

2. Comment: AQMD staff supports CARB staff’s proposal to eliminate 

production credits, as we strongly believe that the production credits are not 

necessary. The credits were never used as designed to offset compliance 

problems and, in addition, their use has resulted in higher emissions by 

allowing manufacturers to delay compliance with the current standards, while 

cost-effective technology is available to meet the standards. (SCAQMD1, 

SCAQMD2) 

Comment: We support the proposed changes to the current tier 3 regulation 

that will further enhance alignment with the recently released U.S. EPA Phase 

3 standards. We support the 2009 sunset date for production emission 

credits and requiring the conversion of any banked production credits by 

2010. The fact that there has been no instance to date where a manufacturer 

has required the use of production credits to comply with the emission 

standards attests to the robustness of existing manufacturing processes for 

small engines. (MECA1) 

Comment: OPEI recommends that ARB fully align their Averaging, Banking, 

and Trading (AB&T) credit program with EPA by eliminating their Production 

Line Testing (PLT) credit program. (OPEI) 

Agency Response: The Board agrees that eliminating the production 

emission credit program will better align ARB’s small off-road engine 

emissions program with U.S. EPA’s non-road small spark-ignition engine 

program. In addition, setting a limited life of one year on the existing 

production emission credits is a balanced approach for eliminating these 

credits while providing time for either their use or conversion to certification 

credits. 

C. Certification Credit Life 

3. Comment: AQMD staff believes it is essential that the life of certification 

credits be limited to five years (the useful life of SORE equipment) to ensure 

that the necessary reduction needed to meet the 2015 PM2.5 and 2024 8-

hour ozone attainment deadlines are realized. AQMD staff strongly supports 

CARB staff’s recommendation to limit the certification credits to a five-year 

lifetime. (SCAQMD1) 

 

Comment: MECA also supports the proposed 5 year limit on the use of 

certification emission credits as this is consistent with the new full useful life 

timelines for equipment under this regulation. Limiting credit life will motivate 

manufacturers to apply well-established exhaust control technology to small 

off-road engines to ultimately exceed the current emission standards and 

achieve further reductions in HC+NOx. (MECA1) 

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Comment: OPEI recommends that ARB fully align their AB&T credit program 

with EPA by imposing a 5 year credit life on manufacturer AB&T credits 

generated prior to the current standard levels. (OPEI) 

Agency Response: The Board agrees that the 5-year credit life limit provides 

industry with compliance flexibility options without sacrificing projected gains 

in air quality. The credit life limit will also prevent excessive emission credit 

balances in the future. 

It should be noted that the OPEI comment refers to the emission credits 

earned under the tier 2 emission standards. Although OPEI would like to 

have unlimited lifetime for credits generated under the tier 3 standards (See 

comment 4 below.), they are in favor of limiting the life of emission credits 

earned under the previous emission standards. 

4. Comment: OPEI recommends allowing unlimited life of credits generated 

by engines that emit at lower levels than required by the current standard 

levels. (OPEI) 

Comment: By putting a credit life on products that overachieve, you’re 

creating a disincentive that is unintended. (EMA) 

Agency Response: Staff found that while the certification emission credit did 

provide flexibility, it had mixed results with regard to driving the use of 

advanced technology. At the time that the existing credit program was 

implemented, staff expected that manufacturers would continue their normal 

production practices until their emission credit balances were exhausted. 

However, manufacturers instead changed their production practices to 

produce engines that “overachieved” in the short term in order to earn credits. 

Thus, as an alternative to using catalysts, which are a technically feasible and 

cost-effective means to comply with the tier 3 standards (as mentioned in 

Comment 1 above), manufacturers have used their banked credits. Since 

these credits had an unlimited lifetime, manufacturers were allowed to 

continue certifying “dirtier” engines. 

In addition, certification credit lifetime is limited to five years because the limit 

coincides with the useful lifetime of SORE equipment. Staff believes that 

limiting the credit life to five years does not introduce an unintended 

disincentive, but instead strikes a reasonable balance between not allowing 

credits at all and keeping credits from accumulating indefinitely. 

D. Zero Emission Equipment – Regulations 

5. Comment: In regard to the zero emission product proposal, this was really 

not invented very well in the workshop process. I think it has a long way to go 

before it’s really ready to be adopted as a rule making. (EMA) 

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Comment: The Board should direct staff to add more specificity in the final 

regulations that address the following potential ambiguities and loopholes. 

First, section 2408(f)(7)(A) does not specify the information that is required to 

verify the power of zero emission products compared to that of gas units. 

Second, ARB needs to define what it meant in (A)(1) – by battery-powered 

product “performing at a level equivalent to that of professional equipment 

(i.e., power, cutting width, etc).” Third, ARB needs to clarify what is meant by 

the Section (A)(3) – in terms of the battery (without recharging) allowing the 

equipment to perform at a continuous “professional performance level for at 

least 4 hours.” (OPEI) 

Comment: You need a fully vetted zero emission product standard including 

a test procedure to figure out what the equivalence is in order to properly 

assign the emission benefits that you’re going to give credits for. (EMA) 

Comment: The Board should direct ARB staff to either come back to the 

Board with a more refined proposal, or work through a “15 day” regulatory 

comment process with the affected stakeholders, including OPEI, to develop 

the needed technical amendments and procedures. Credits should only be 

generated for electric products that achieve a comparable level of 

operation/performance as professional gas equipment. ARB should 

ultimately define, and require (as one minimum criteria) the quantification of 

the equivalent, required “energy content” of batteries – that would be used to 

achieve “professional performance levels” for different products to benchmark 

the required performance. These standards should require the equivalent, 

sustained power (produced throughout the engine-powered products) be 

demonstrated as a condition of certification. (OPEI) 

Agency Response: Based on these comments, staff realized that some 

further development work was necessary on the Zero Emission Equipment 

(ZEE) regulations. Staff had expected that the necessary modifications could 

be adopted under a 15-day comment Notice. However, this course of action 

was not possible once the Board officially closed the Hearing Record on the 

day of the Hearing. Therefore, any additional modifications to the ZEE 

regulations, such as those expressed in the comments, will be proposed for 

adoption at a future Hearing. In this effort, staff will work to develop 

comprehensive modifications in collaboration with engine and equipment 

manufacturers, and other stakeholders. In the interim, staff does not expect 

that manufacturers will submit any certification applications requesting ZEE 

credits until these modifications have been adopted. 

E. Zero Emission Equipment – Emission Credits 

6. Comment: Relative to the proposed ZEE credit, AQMD staff strongly 

supports the overall concept of incentivizing, through emission credit 

generation, the use of professional and commercial level ZEE to encourage 

earlier adoption of future technologies and to further reduce emissions from 

the SORE category. The commercial and professional sector is responsible 

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for the majority of the SORE emissions and early introduction of ZEE would 

yield substantial emission reductions. (SCAQMD1, SCAQMD2) 

Comment: In recognition that this criterion may pose challenges in 

accelerating the introduction of future ZEE technologies into the market, we 

recommend that some intermediate form of credit generation be allowed for 

an interim period of time for equipment that may not entirely meet the 

proposed performance standards (similar to the partial zero-emission vehicle 

category in the CARB LEV program). This would allow manufacturers to gain 

critical real-world experience and ensure successful introduction of ZEE 

technology with its associated emission reductions. We would stress that this 

partial zero-emission crediting be allowed for a brief period of time to allow 

the ZEE technologies to mature. (SCAQMD1, SCAQMD2) 

Agency Response: Staff will include a review of the potential benefits and 

feasibility of both a general, and a partial, ZEE emission credit incentive 

approach as part of the regulatory development work to modify the ZEE 

provisions (see Response to Comment No. 5.). 

F. Zero Emission Equipment – Battery-Based Credits 

7. Comment: AQMD staff recommends that CARB include an additional 

requirement to the proposed ZEE performance standard (that they must 

perform at the same level as commercial gasoline-powered equipment before 

receiving credits). (SCAQMD1, SCAQMD2) 

Comment: OPEI is concerned that new, high-risk manufacturers could bank 

battery-based credits and then use them to import low-cost, higher-emitting 

gas product using these credits. (OPEI) 

Comment: Battery-based credits should be limited to prior “carry-over” 

engine families. This would assure the gas-powered products were CARB 

certified prior to credit use and the user of credits has legitimately entered the 

market. CARB would have greater compliance assurances and greater 

enforcement authority over these established manufacturers. (OPEI) 

Agency Response: Staff will take these suggestions into consideration when 

developing the ZEE credit provisions of the future proposal. 

G. Zero Emission Equipment – Battery Characteristics 

8. Comment: The one requirement I do think we should update is the 

requirement that it runs for the duration of a gas can. When we go to our lab, 

it takes about two seconds to replace, pull one battery out and replace 

another one. It would be cost prohibitive to require that the battery need to be 

so big it needs to run for four hours duration or the day. In terms of recharge, 

these batteries recharge in about 30 minutes to about 85 percent of their 

capacity. So the typical process is you have two batteries, one recharging 

and one ready to go. (Lion Cells) 

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Comment: The language concerning credits for zero-emission products in 

section 2408(f)(7) should specifically address the following issues: 1) 

Horsepower ratings of electric and gas motors run on opposite curves. 2) 

ARB should clarify if a “backpack battery” source is included in paragraph (2). 

3) In paragraph (3), ARB indicated the product must perform for 4 hours on 

each refueling or recharge. We generally agree the product should operate 

for a substantial period (producing the same performance level during all this 

time) before battery replacement or recharge is required. (OPEI) 

Agency Response: As explained in the Response to Comment No. 5, the 

ZEE regulations require some additional development work. Accordingly, it is 

not possible to respond to the technical specifics of these comments at this 

time. However, staff will review and consider the merits of this information 

during the development of these ZEE regulatory modifications. 

H. Provision for Executive Officer Discretion for Technical Changes 

9. Comment: It is our understanding that if the Board adopts this provision, 

the following process would still apply. ARB staff would informally provide 

advance notice to OPEI and other stakeholders and would work with these 

stakeholders to help draft MAC’s (Manufacturers Advisory Correspondence) 

or similar technical amendments or guidance. As long as this process is 

implemented in this matter so that there is an informal stakeholder input 

process, OPEI generally supports this amendment. (OPEI) 

Agency Response: The Executive Officer-initiated change would proceed as 

described in the comment. The intent is that advanced notice would be 

provided to all manufacturers and stakeholders in order to allow a full and 

complete discussion about the possible change. Also, it should be 

remembered that the main consideration in any possible decision to make a 

change to the test procedures, for whatever reason, is that the change can 

not compromise the stringency of the California emission standards. 

I. U.S. EPA Alignment 

10. Comment: Here are several examples of needed amendments that ARB 

should adopt to harmonize with the new EPA Phase 3 regulations: 

 1) EPA’s new engine test procedure (Part 1065) needs to be an option 

for certification ASAP (by 2013 at the latest when EPA mandates it for new 

families). 

 2) New 40 CFR §1054.670. ARB should add this language as an 

option to their current test procedure. 

 3) ARB should add language for the time to stabilize and the 

measurement period (for emissions) that is indicated in new section 

1054.505(a)(1). EPA requires a 5-minute warm up at each mode (minimum) 

and a 1-minute measurement period. 

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 4) EPA describes (in detail) the measurement speed of rated WOT 

(wide open throttle) and Idle. ARB should accept these test points as an 

alternate to the current specified test speeds in the ARB regulation. 

 5) Pursuant to (and with the same effective dates as) new 40 CFR 

§1054.135(c), ARB should revise its label language in section 2759(c)(4)(A) 

and 2404(C)(4)(A) to read “EMISSION CONTROL INFORMATION” (instead 

of the current “IMPORTANT EMISSION INFORMATION”) in order to 

harmonize with EPA. ARB should avoid pulling ahead any labeling changes 

before it is required by EPA – typically in the 2011 and 2012 Model Year. 

(OPEI) 

Agency Response: Some of these examples of “needed amendments” can 

probably be changed using the adopted provision for Executive Officer 

discretion. However, a determination of that applicability would require a 

more complete discussion with all manufacturers and stakeholders (see 

Response to Comment No. 9.). Guidance for such minor changes could also 

be distributed via MAC’s or other documents. 

The Board agrees with OPEI that allowing for Executive Officer discretion in 

making minor changes to the amendments would be a more efficient way of 

handling such issues. This is something that both staff and stakeholders 

desire. Staff was not able to include the changes suggested because these 

comments were not presented during the workshop process, but were 

submitted just prior to the Board Hearing. With an allowance for the 

Executive Officer discretion, this matter could be handled without the need to 

go through the full Board Hearing process. 

11. Comment: ARB could further limit credit exchanges between groundsupported and handheld classes similar to the restrictions EPA has adopted 

in its final Phase 3 regulations. (OPEI) 

Agency Response: The Board chose not to include this restriction in the 

credit program at this time because staff has found that manufacturers do not 

exchange emission credits between handheld and non-handheld equipment. 

J. Ethanol Fuels 

12. Comment: OPEI supports the addition of the EPA Phase 3 approach 

allowing exhaust certification with fuels up to 10 percent ethanol. We 

understand ARB staff’s intent is to link the selected certification fuel with any 

confirmatory testing. OPEI requests ARB to add language that clarifies that 

any confirmation or auditing tests that ARB conducts or requires be 

conducted will use the same, selected certification fuel. (OPEI) 

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Agency Response: The Board appreciates OPEI’s support of this portion of 

the amendments. The Board approved an allowance for the optional use of 

this fuel for certification testing. However, staff was not able to include a 

similar fuel allowance for confirmatory testing because the suggestion was 

received after the notice period had ended. This is another example of a 

minor technical change that ARB could possibly make to the test procedures, 

without returning to the Board, by using the Executive Officer discretion 

provision, as described in the Response to Comment Number 9. 

K. Emission Control Warranty Statement 

13. Comment: ARB staff has appropriately proposed to harmonize with the 

new EPA Phase 3 warranty provisions that require a live, English-speaking 

contact to promptly respond to warranty-service questions. However, the new 

ARB requirements need to specify when these new warranty-service 

obligations start to apply. OPEI suggests the 2010 Model Year. (OPEI) 

Agency Response: Since the 2009 Model-Year production has already 

begun, applying this requirement retroactively may not be appropriate or fair 

to manufacturers. Accordingly, staff agrees that this requirement would best 

be enforced beginning with the 2010 Model-Year production. 

L. Revisit Emission Standards 

14. Comment: MECA asks ARB to consider reviewing their tier 3 SORE 

exhaust emission standards in the near future and determine if further 

exhaust emission reductions can be gained by combining recent 

improvements in small engine designs with the application of catalyst 

technology on all SORE engine classes. A further tightening of SORE 

emission standards could provide ARB with much needed, additional 

reductions in hydrocarbon and NOx emissions that are critical for California to 

comply with EPA’s recently revised ambient ozone standards. (MECA1) 

Agency Response: ARB staff will continue to review technical improvements 

that could be made to small off-road engines and will propose new emission 

standards when they become feasible and appropriate.