CLEAN AIR ACT § 209(e)(2) AUTHORIZATION SUPPORT DOCUMENT

SUBMITTED BY THE

CALIFORNIA AIR RESOURCES BOARD

 

2008 AMENDMENTS TO CALIFORNIA’S 

SMALL OFF-ROAD ENGINES REGULATION 

December 2, 2013
1

l. INTRODUCTION AND SUMMARY OF REQUEST

The California Air Resources Board (CARB or Board) requests, pursuant to Clean Air 

Act (CAA) section 209(e)(2), that the Administrator of the U.S. Environmental Protection 

Agency (EPA) confirm that CARB’s 2008 amendments to its spark-ignited (SI) Small

Off-Road Engines regulation (2008 Amendments)

1

are within the scope of the 

authorization previously granted for CARB’s SORE regulations, or alternatively, grant a 

new authorization. Section II of this document describes the 2008 Amendments in 

detail, and Section III describes the basis for California’s request.

Small off-road engines and equipment 2are rated at or below 19 kilowatts (kW) (25 

horsepower (hp)). The vast majority of engines covered by the SORE SI regulation are 

gasoline-fueled SI3engines that are used to power a broad range of equipment,

including lawn mowers, leaf blowers, generators, and small industrial equipment. 

Exhaust and evaporative emissions from small off-road engines are a significant source 

of hydrocarbon (HC) and oxides of nitrogen (NOx) emissions, which contribute to 

California’s continuing ozone problem. The SORE SI regulation also includes

provisions for electric equipment.

A. Background and History of Previously Adopted and Authorized Small OffRoad Emission Standards and Test Procedures4

 

1. Initial SORE Regulation and 1994, 1995, and 1996 Amendments

CARB first adopted standards and test procedures applicable to utility and lawn and 

garden engines (ULGE Rule, subsequently renamed in a later rulemaking as the “Small 

Off-Road Engine (SORE) Regulation”)

5

on March 20, 1992, which California’s Office of 

Administrative Law (OAL) approved on May 1, 1992. In April 1993, in response to a 

petition from industry, CARB amended these regulations to delay initial implementation

until January 1, 1995. CARB requested that EPA grant authorization for the SORE 

regulation as required by section 209(e)(2) of the federal CAA.6 The Administrator 

 

1

The specific regulatory text enacted by the 2008 Amendments is set forth in California Code of 

Regulations (CCR), title 13, sections 2401, 2403, 2404, 2405, 2406, 2408, 2408.1 and 2409 (Enclosure 

6). Unless otherwise noted, all section references are to title 13, CCR. 

2

In this request, the federal term “nonroad” and the California term “off-road” are used interchangeably.

3

As further detailed below, CARB’s regulation for small off-road SI engines, which includes electric 

engines and equipment, and off-road compression ignition (CI) engines at or below 19 kW are now 

located in separate articles of CCR title 13. The 2008 Amendments are to the SORE SI regulation and 

affect SI and electric engines and equipment only. 

4

The 2008 Staff Report: Initial Statement of Reasons (Staff Report), at pages 4-7 (Enclosure 2) 

provides a summary of the key requirements of the previously authorized SORE regulations.

5

For purposes of clarity and consistency, the ULGE Rule is referred to as the SORE regulation.

6

Section 209(e) provides in pertinent part:

(1) No state or any political subdivision thereof shall adopt or attempt to enforce any standard or 

other requirement relating to the control of emissions from either of the following new nonroad engines 

or nonroad vehicles subject to regulation under this Act–

(A) New engines that are used in construction equipment or vehicles or used in farm equipment or 

vehicles and which are smaller than 175 hp. 
2

granted authorization to CARB on July 5, 1995.7 The authorized SORE regulation 

established two tiers of exhaust emission standards for new SI and compression ignition 

(CI) engines. Tier I standards applied to 1995 through 1998 model-year engines, while 

the Tier II standards applied to 1999 and newer engines. EPA adopted similar 

regulations in 1995, using the term “Phase” instead of “Tier” to describe the exhaust 

emission standards categories.

8

CARB amended the initially adopted and authorized SORE regulation in 1994, 1995, 

and 1996 to clarify certification and implementation procedures, exempt military tactical 

equipment, and relax emissions standards for certain engines. CARB requested and 

received EPA’s confirmation that these amendments fell within the scope of the initially 

granted SORE authorization on November 9, 2000.9

2. 1998 SORE Amendments

In 1998, CARB amended the initially adopted SORE regulation to apply to all engines 

rated less than 25 hp used in off-road applications, revised the regulation to be based 

on engine displacement instead of whether the engine is used in a handheld or nonhandheld application, and delayed implementation of the 1999 Tier 2 standards. For CI 

engines, the Board extended application of the authorized Tier 1 emission standards 

one year and adopted new emission standards for new engines under 19 kW,

consistent with the “Compression-Ignition Engine Statement of Principles” jointly 

entered into by CARB, EPA, and engine manufacturers in August 1996. The adopted 

emission standards were phased in, beginning with the 2000 model year.10 Finally, 

CARB adopted new durability requirements that were also phased in for new engines 

starting in the 2000 model year.

The 1998 SORE Amendments established an averaging, banking, and trading (ABT) 

provision that provided manufacturers flexibility in complying with applicable 

hydrocarbons and oxides of nitrogen (HC+NOx) standard for 2000 and subsequent 

model year engine families. For each engine family, a manufacturer would determine a 

Family Emission Limit (FEL); the FEL would serve as the "emissions standard" for 

compliance purposes. Individual FELs could be set above the standard, provided that 

the average of all a manufacturer’s FEL (as weighted by power, load factor, sales and

durability period) met the standard. Averaging was carried out by Emission Credits. 

The emission credit program was similar to that proposed by the EPA for small nonroad 

 

(B) New locomotives or new engines used in locomotives

* * * * *

(2) (A) In the case of any nonroad vehicles or engines other than those referred to in subparagraph 

[(e)(1)], the Administrator shall, after notice and public hearing, authorize California to adopt and 

enforce standards and other requirements relating to the control of emissions from such vehicles and 

engines if [certain specified conditions are met]. See infra. 

7

60 Fed.Reg. 37440 (July 20, 1995).

8

60 Fed. Reg. 34582 (July 3, 1995)

9

65 Fed.Reg. 69763 (November 20, 2000).

10 These emission standards aligned with emission standards adopted by EPA in its final rule for “Control 

of Emissions of Air Pollution from Nonroad Diesel Engines,” 62 Fed.Reg. 200 (January 2, 1997).
3

engines11 and was designed to provide industry the flexibility to deal efficiently with 

issues such as low sales volume engines that can be particularly costly to control. The 

averaging provision also allowed manufacturers to focus their efforts on their higher 

sales volume families first.

The 1998 SORE Amendments also created a provision allowing manufacturers to 

generate Production Emission Reduction Credits.

12

 A manufacturer would generate 

Production Emission Reduction Credits if the final HC+NOx sample mean (from 

production line testing) of an engine family was below the FEL. This provision was 

intended to allow manufacturers to receive consideration for the "headroom" or 

compliance margin they designed into their engines. The production emission reduction 

credits, based on actual production engines, could be used for certification and as a 

remedy for noncompliance of another engine family if needed. This introduced another 

degree of flexibility that did not previously exist in the program. EPA considered, but 

never adopted, a similar Production Emission Reduction Credits program.

EPA subsequently determined that, except for the above-mentioned durability 

requirements, California’s 1998 amendments to the SORE regulation were within the

scope of the previously granted 1995 authorization.13 EPA issued CARB a new 

authorization for the durability requirements on November 21, 2003.14

3. 2000 and 2004 Off-Road CI Amendments

In 2000, CARB amended the SORE regulation by recodifying the requirements 

applicable to new CI engines less than 19 kW from the SORE regulation (CCR title 13, 

division 3, chapter 9, article 1 section 2400 et seq.) to a different regulatory article 

(CCR title 13 division 3, chapter 9, article 4 section 2420 et seq.). With this change, all 

off-road CI engine categories are contained in the same regulatory article, which 

conforms to the federal regulatory program.

15

 

In 2004, CARB amended its off-road CI regulations to harmonize CARB’s standards 

and test procedures with the federal standards and test procedures specified in its Tier 

4 rulemaking16 and the subsequent Omnibus Technical Amendments,

17 while still 

maintaining the emission benefits of the current California program. 

EPA confirmed that the 2000 amendments to the off-road CI engine regulation were 

within the scope of the previously granted SORE authorization and granted a new 

 

11 EPA adopted Phase 2 regulations for small spark-ignition engines used in nonhandheld equipment in 

1999 that also included provisions for a certification ABT program. 64 Fed. Reg. 15208 (March 30, 1999). 

The certification credits generated under EPA’s ABT program had unlimited credit life, which this 

document will refer to as “enduring credits,” as opposed to the “expiring credits” discussed later. 

12 1988 and later model year engine families were eligible to participate in this provision. 

13 65 Fed.Reg. 69767 (November 20, 2000).

14 68 Fed.Reg. 65702 (November 21, 2003).

15 Hereafter, section 2400 et seq. is known as the SORE SI regulation.

16 69 Fed.Reg. 38958 (June 29, 2004)

17 70 Fed.Reg. 40240 (July 13, 2005)
4

authorization for the 2004 amendments to the standards and test procedures for 

nonroad CI engines rated less than 19 kW.

18

4. 2004 SORE SI Amendments

In 2004, CARB amended the exhaust emission standards and associated test 

procedures and adopted evaporative emission standards and associated test 

procedures for SI small off-road engines rated at or below 19 kW and equipment 

utilizing such engines. EPA issued CARB a new authorization for the 2004 SORE SI 

amendments on December 15, 2006.19

B. Overview of 2008 Amendments to California’s SORE SI Regulation

At its November 21, 2008 public hearing, the Board approved the 2008 Amendments by 

Resolution 08-41 (Enclosure 4). After making modifications to the proposed 

amendments available for supplemental public comment, CARB filed the Final 

Rulemaking Package with the Office of Administrative Law (OAL) on September 8, 

2009. OAL approved the rulemaking and filed it with the California Secretary of State 

on April 5, 2010. The 2008 Amendments became effective on May 5, 2010.

The 2008 SORE SI Amendments primarily addressed issues arising from the excessive 

accumulation of credits generated under the existing emission credits program in the SI 

SORE regulation, and included other amendments to streamline the regulation and 

enhance harmonization of requirements with the federal nonroad engine regulations.

As detailed in Section ll below, CARB requests confirmation that the following elements 

of the 2008 Amendments are within the scope of the authorized SORE regulation: 

 Modification of Certification Emission Credits 

 Modification of Production Emission Credits

 Ethanol Blend Certification Fuel Option

ll. SUMMARY OF 2008 AMENDMENTS THAT ARE WITHIN THE SCOPE OF

PREVIOUSLY GRANTED AUTHORIZATIONS

A summary of the 2008 Amendments that fall within the scope of the authorized SORE 

regulation follows. A more detailed description of these provisions is provided in the 

Staff Report (Enclosure 2) and 15-Day Notice of Modified Text (Enclosure 3).

A. Modification of Certification Emission Credits

CARB initially established the certification emission credits program in 1998 to provide 

manufacturers additional flexibility in certifying their engines. In concept, qualifying 

 

18 75 Fed.Reg. 8056 (February 23, 2010). The new authorization extended to all engine power categories 

of off-road CI engines affected by the regulation.

19 71 Fed.Reg. 75536 (December 15, 2006).
5

manufacturers would earn certification emission credits by introducing some engine 

families with cleaner technologies (e.g., catalysts) earlier than necessary, which they

could then use to provide more time to certify more challenging engine families. CARB

expected that the ABT provisions would provide manufacturers with another tool to 

manage compliance, while also encouraging the early introduction of cleaner engines.

While the certification emission credits program did provide manufacturers flexibility, it 

has also produced mixed results regarding the use of advanced technologies. Instead 

of using catalysts and other advanced technologies on the more challenging engine 

families, a small number of manufacturers have often been able to use banked credits 

to certify “dirtier” engines and delay implementation of cleaner technology. 

Furthermore, manufacturers have been able to accumulate a large amount of 

certification emission credits,

20 which indicates that the emissions standards were not 

as stringent as they needed to be, in that many more credits were generated than were 

needed to manage compliance. To exacerbate the situation further, the certification 

emission credits were available for use indefinitely. Allowing the credits to be banked 

for an indefinite period of time led to large credit banks that slowed progress towards 

cleaner engines. 

To address these issues, as discussed below and in the Staff Report, pages 8-11

(Enclosure 2), CARB adopted the following amendments.

1. Emission Credits Limited to Five Years

The 2008 Amendments limit the lifetime of certification emission credits to five years, 

which coincides with the useful lifetime of SORE equipment and/or the time the 

equipment remains in emissions compliance. One of the issues arising from the 

unlimited life of the certification emission credits was that such credits continued in 

existence even after the engines that had generated the emission credits had been

taken out of service. Limiting the credit life to five years strikes an appropriate balance 

between not allowing credits at all and preventing credits from accumulating indefinitely. 

In limiting the lifetime of certification emission credits, CARB neither modified the Tier 3 

hydrocarbon plus oxides of nitrogen (HC+NOx) emission standards for engines less 

than 50 cubic centimeters (cc) (that went into effect with the 2005 model year) nor the 

catalyst-based standards for engines above 80 cc. 

This limitation has not posed a challenge to manufacturers, as technology has been 

available (e.g., catalysts) that is both a technically feasible and cost effective means of 

complying with the Tier 3 standards. A number of manufacturers currently produce 

CARB certified engines without the use of banked emission credits. Currently there are 

68 CARB manufacturers that produce CARB certified SORE engines. Only five 

manufacturers use banked emission credits to certify for exhaust emissions and only 

one relies on buying emission credits. 

 

20 Current emission credits exceed 5 billion.
6

See section 2408 (Enclosure 6) and the Staff Report, pages 8-10 (Enclosure 2).

2. Emission Credits Generation for Advanced Technology 

The existing regulation did not allow electric equipment to participate in the emission 

credits program. Advances in electric-powered SORE equipment and advances in 

battery development led CARB to amend the SORE regulation to encourage the 

development of professional grade zero-emission equipment (ZEE).

21

 

CARB modified the program to allow advanced technology ZEE to generate emission 

credits provided they are able to meet the following requirements:

 The equipment must be able to perform at a level equivalent to that of currently 

available, professional level SORE equipment.

 The equipment must not be equipped with an electric cord. Corded equipment 

already exists and is generally not conducive to professional usage, and so 

awarding emission credits for it would not advance technology.

 Each recharge or refueling must allow the equipment to perform at a professional 

performance level for the same duration as typical professional equipment of the 

same type. The time to repower (e.g., time to replace battery pack) the ZEE 

should be equivalent to the time of refueling typical spark-ignition equipment.

 The equipment must be as durable as the equivalent professional SORE 

equipment. It should be capable of operation over the appropriate SORE test 

cycle repeatedly for the maximum durability period for that equipment.

To obtain certification, a manufacturer needs to provide a description of the equipment,

performance data showing that it meets the ZEE criteria, a description of the power 

source, an energy density or specific energy test, and all other applicable certification 

requirements. The manufacturer will receive credits upon certifying an advanced 

technology ZEE. 

ZEE credits can be averaged, banked, and traded as normal certification emission 

credits, and are subject to the same five-year credit life. However, because ZEE 

emission credits can be generated by manufacturers not currently in the SORE category 

(e.g., those who produce electric equipment, but not engines), CARB established 

additional limitations to ensure that any potential influx of emission credits does not 

result in the delay of improvements to engine-powered equipment. To this end, 

manufacturers cannot use ZEE credits to certify engines that exceed the standard by 

more than 40 percent. Rather, to certify an engine family with emissions that exceed 40 

percent above the standard manufacturers need to use other types of certification 

credits to cover the difference. CARB believes that the addition of ZEE credits will 

promote advanced technology and allow manufacturers additional flexibility. See 

sections 2401, 2404, 2405, 2408(g), and 2408.1 (Enclosure 6). These modifications are 

discussed in the Staff Report, pages 12-13 (Enclosure 2). 

 

21 In addition to providing reductions in criteria pollutants, increased use of ZEE will provide greenhouse 

gas reductions. 
7

B. Modification of Production Emission Credits

The emission credits program originally adopted by CARB also included both the 

generation and accrual of production emission credits. Production emission credits 

were initially adopted to provide manufacturers with additional flexibility in meeting 

emission standards on production engines. Manufacturers design their engines such 

that during production line testing the engines will perform “comfortably” below the 

emission standard. In general, any emissions margin observed during production 

testing is used by manufacturers as an emissions “cushion” to ensure compliance. 

CARB intended that the production emission credits provisions would be used by 

manufacturers to certify engine families as well as to offset production line testing 

exceedances of another engine family. The adoption of production emission credits 

was unique, in that no other existing mobile source category was allowed to generate 

and use production line credits for compliance purposes. At the time the 1998 proposal 

was drafted, EPA was considering the use of production emission credits and staff’s 

proposal was intended to harmonize with the anticipated, future EPA rulemaking. 

Ultimately, EPA decided against offering production emission credits as an option for 

these engines and equipment in its final rule.22 Termination of production emission 

credits enhances harmonization with the federal program.

Production emission credits were generated when a manufacturer produced an engine 

whose production line test result was below the applicable engine family emission limit. 

Manufacturers were also allowed to convert production emission credits to certification 

emission credits at a rate of 1.1 production emission credits to 1.0 certification emission 

credit, and some manufacturers that accumulated large amounts of production emission 

credit then converted those production emission credits to certification emission 

credits, which allowed them to continue producing and certifying engines that did not 

comply with the otherwise applicable emission standards. With the 2008 Amendments, 

CARB eliminated further generation of production emission credits starting in 2009, but 

allowed manufacturers an additional year to use or convert production emission credits 

to certification emission credits. 

As previously stated, CARB originally envisioned that manufacturers would use these 

generated/banked credits to offset compliance problems, but as of 2008, no 

manufacturer needed to use production emission credits for that purpose, and 

manufacturers, in certain cases, generated large amounts of production emission credit 

balances. 

 

22 EPA’s decision was influenced by the fact that manufacturers of small engines were able to comply

with federal phase 2 emission standards without the use of production emission credits. 64 Fed.Reg. 

15208 (March 30, 1999) and 73 Fed.Reg. 59034 (October 8, 2008). Despite not adopting the credit

provision as part of the federal regulations, EPA continued to find that California’s new off-road engine 

program to be more protective of public health and welfare than applicable federal standards. 75 

Fed.Reg. 8056 (February 23, 2010).
8

Production emission credits effectively provided manufacturers with a double benefit for 

having low compliance margins. First, they benefitted because the compliance margin 

ensured that their production engines did not exceed the emission standards and were

not out of compliance with the regulation. The credits provided manufacturers with a 

second benefit by rewarding them, even though the production compliance margin was

essentially part of their design strategy to meet the emissions standards, not an 

additional effort to go beyond the requirements by using cleaner technologies. 

The fact that production emission credits could be converted to certification emission 

credits raised a second concern. As production emission credits were converted to 

certification emission credits, the emission credit banks grew even larger. By the end of 

the 2007 model year, over 85 percent of the production emission credits had been 

converted to certification emission credits, which indicated that manufacturers did not 

actually need production credits to comply with the production line requirements. 

Instead, manufacturers could use the converted credits simply to further delay 

compliance with the Tier 3 standards for certain engine families, even though costeffective technology was available to comply. To date, this change has not raised any 

compliance issues.

See section 2409 (Enclosure 6). These modifications are discussed in the Staff Report,

pages 4-5, and 10-11 (Enclosure 2). 

C. Ethanol Blend Certification Fuel Option

The 2008 Amendments provide manufacturers the option to use a certification fuel with 

up to ten percent ethanol content, if they use the same fuel for certification with EPA. 

This option enhances the harmonization of California’s SORE certification procedures 

with EPA’s nonroad engine certification procedures, and could reduce testing costs for 

some manufacturers. See California Exhaust Emission Standards and Test Procedures 

for 2005 and Later Small Off-Road Engines, as amended February 24, 2010, Subpart 

D, Section 90.308 (Enclosure 10) and the Staff Report at page 13 (Enclosure 2).

III. AUTHORIZATION ANALYSIS 

A. Criteria for Granting New Authorizations Under CAA Section 209(e) or 

Confirming that Amendments are Within the Scope of Previous 

Authorizations

Section 209(e)(2) of the CAA sets forth the protocol that the Administrator must follow in 

granting California an authorization to adopt and enforce standards and other 

requirements relating to controlling emissions from new and in-use nonroad engines 

that are not otherwise specifically preempted by section 209(e)(1) – new engines less 

than 175 hp used in farm and construction equipment and vehicles and new engines 

used in new locomotives and locomotive engines. Section 209(e)(2) directs the 

Administrator to grant California an authorization for standards and requirements for all 

other nonroad engines if California determines that the state’s standards will be, in the 
9

aggregate, at least as protective of public health and welfare as applicable federal 

standards, unless she finds that: (1) the protectiveness finding of the state is arbitrary 

and capricious; (2) California does not need separate state standards to meet 

compelling and extraordinary conditions; or (3) the state standards and accompanying 

enforcement procedures are not consistent with CAA section 209.

In its 209(e) Final Rule, EPA interpreted “not consistent with section 209” to mean that 

those challenging a California authorization request must show that the State’s 

standards and accompanying enforcement provisions are not consistent with sections 

209(a), 209(b)(1)(C) – that the standards are not consistent with CAA section 202(a) –

and 209(e)(1).23

In considering whether to grant waivers (authorizations) for accompanying enforcement 

procedures tied to standards for which a waiver has already been granted, 

Administrators have long held that they will only address questions as to (1) whether the 

enforcement procedures are so lax that they threaten the validity of California’s 

determination that its standards are as protective of public health and welfare as 

applicable federal standards and, (2) whether the enforcement procedures are 

consistent with section 202(a).24 

The Administrator has applied a similar analysis in confirming that amendments to a 

CARB standard or regulation are within the scope of a previously granted authorization.

EPA can make such a confirmation if certain conditions are present. Specifically, if 

California acts to amend a previously authorized standard or accompanying 

enforcement procedure, the amendments may be considered within the scope of a 

previously granted authorization if such amendments:

 Do not undermine California's determination that its standards in the 

aggregate are as protective of public health and welfare as applicable Federal 

standards, 

 Do not affect consistency with section 209 of the Act, and

 Raise no new issues affecting EPA's previous authorization determination.25

It is also well established that EPA may only consider the aforementioned criteria set 

forth in section 209(e)(2), that EPA shall give substantial deference to California's policy 

judgments, and that the burden is on those who oppose the granting of the authorization

to show why it should not be granted.26

 

23 59 Fed.Reg. 36969, 36983 (July 20, 1994). 

24 Motor and Equipment Manufacturers Association v. EPA (MEMA) (D.C. Cir. 1979) 627 F.2d 1095, 

1111, 1113. EPA applies this standard in CAA section 209 requests on both on road waivers (209 (b))

and off road authorization (209 (e)), see 77 Fed.Reg. 72851, 72853 (Dec. 6, 2012).

25 65 Fed.Reg. 69767, 69768-769 (November 20, 2000); 71 Fed.Reg. 44027 at 44028 (August 3, 2006).

26 MEMA, supra, 627 F.2d 1095, 1121; 40 Fed.Reg. 23102, 23103-23104 (January 7, 1993).
10

B. The 2008 Amendments Fall Within the Scope of the Previously Granted 

Authorization

The following 2008 Amendments (detailed in Section ll above) fall within the scope of 

the previously granted authorization for the Small Off-Road Engine Regulation: 

 Modification of Certification Emission Credits 

 Modification of Production Emission Credits

 Ethanol Blend Certification Fuel Option

 

1. Protectiveness Determination

In adopting the 2008 Amendments, the Board approved Resolution 08-41 (Enclosure 4), 

in which it declared:

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.

These findings were reaffirmed by CARB’s Executive Officer.27

The Administrator has no basis to find that the Board’s protectiveness determination is 

arbitrary or capricious. The Administrator has previously determined that CARB’s

SORE emissions standards and related test procedures are at least as protective of 

public health and welfare as the federal nonroad emissions standards and test 

procedures,

28 and the 2008 Amendments do not affect that previous determination, as 

they do not modify the applicable emissions standards.

 

27 Executive Order R-10-004 (Enclosure 5). 

2860 Fed.Reg. 37440 (July 20, 1995); 71 Fed.Reg. 75536 (December 15, 2006); 75 Fed.Reg. 8056 

(February 23, 2010).
11

In 1999, EPA adopted regulations for small spark-ignition engines used in nonhandheld 

equipment that included enduring (i.e., non-expiring) credit provisions.29 In 2008, EPA 

adopted additional transitional credit provisions (i.e., expiring) as part of its Phase 3 

emissions standards in 2008.30 By capping its certification emission credit provisions at 

five years and eliminating the future accrual of production emission credits, CARB’s 

SORE regulations continue to be, in the aggregate, at least as protective of public 

health and welfare as applicable federal standards. The addition of the ZEE credits 

provision does not undermine this determination in that such credits will encourage 

development and production of cleaner, advanced technologies. 

2. Consistency with Section 209 of the CAA 

a. Consistent with CAA sections 209(a) and 209(e)(1)

In granting California the authorization for the 2004 Amendments to the SORE 

regulation, EPA found that those amendments were not inconsistent with CAA section 

209(a), because they did not regulate emissions from new motor vehicles or new motor 

vehicle engines.31 EPA also found that the amendments were not inconsistent with 

CAA section 209(e)(1) because they did not apply to new nonroad engines less than 

175 hp used in farm and construction equipment and vehicles, new locomotives, or 

engines used in new locomotives.32 The 2008 Amendments similarly do not apply to 

the above-mentioned preempted categories of mobile sources, and consequently, EPA 

cannot find that the amendments are inconsistent with CAA sections 209(a) or 

209(e)(1).

 b. Consistent with CAA section 209(b)(1)(C) and 202(a)

EPA determines if California standards are consistent with section 202(a) of the CAA by 

considering if they provide sufficient lead time to permit the development of technology 

needed to meet the standards and other requirements, giving appropriate consideration 

to the cost of compliance in the time frame provided, and if the California and federal 

test procedures are sufficiently compatible to permit manufacturers to meet both the 

state and federal test requirements with one test vehicle or engine.33 The reference to 

“cost of compliance” in CAA section 202(a) refers to the economic costs of emission 

standards and accompanying enforcement procedures and the timing of a particular 

emission control regulation rather than to its social implications.34 

 

29 64 Fed.Reg. 15208 (March 30, 1999).

30 73 Fed.Reg. 59034 (October 8, 2008). 

31 71 Fed.Reg. 75,536, 75, 537 (Dec. 15, 2006)

32 Ibid.

33 See 61 Fed.Reg. 53371, 53372 (October 11, 1996); Decision Document at p.2 (OBD II Waiver 

Decision).

34 Id., referencing See S. Rep. No. 192, 89th Cong., 1st Sess. 5-8 (1965); H.R. Rep. No. 728, 90th Cong., 

1st Sess. 23 (1967), U.S. Code Cong. & Admin.News 1967, p. 1938; see also 74 Fed.Reg. 3030 (January 

16, 2009), Decision Document at p. 49. 
12

As demonstrated below, each of the compliance options associated with the 

amendments described in Section II of this document are technically feasible within the

lead time provided for compliance and presents no issue of incompatibility between

California and federal test procedures.

i. Technological Feasibility and Lead Time

The 2008 Amendments do not raise any issue that disturbs EPA’s prior finding that the 

SORE emission standards are technologically feasible within the lead time provided for 

compliance or that inconsistent test procedures do not exist.35 None of these issues 

were raised in the comments on the amendments. See comments and CARB 

responses in the Final Statement of Reasons for Rulemaking, (Enclosure 7).

The limitation on emission credits did not pose a challenge for manufacturers, as

technology was available (catalysts) that was both a technically feasible and cost 

effective means of complying). As stated, most manufacturers have been able to 

comply fully with the standards without relying on the use of credits.

Production emission credits were originally intended for a manufacturer to use to offset 

compliance problems, but no manufacturer has needed to use production emission 

credits for that purpose since the adoption of the 2008 Amendments. Therefore, the 

elimination of these credits does not affect the EPA’s prior finding of feasibility.

The amendment allowing manufacturers to generate advanced technology ZEE 

emission credits is clearly feasible as it only provides manufacturers additional flexibility 

to comply with previously waived standards. See Staff Report, pages 8-11 (Enclosure 

2). 

The amendments allowing the use of an alternate certification test fuel likewise present 

no issue regarding technical feasibility. 

 ii. Test Procedure Consistency

The amendments present no issue of incompatibility between California and federal test 

procedures. Instead, the amendment allowing the use of federal certification fuel 

containing up to ten percent ethanol content only serves to enhance the consistency 

between California and federal test procedures.

3. No New Issues Exist

The 2008 SORE Amendments do not change any emissions requirements, design or 

performance standards, impose new means of enforcing emission limits nor do they 

expand the scope of what engines are included in the previously authorized regulations. 

The changes made to the emissions and production credit programs do not 

fundamentally alter the standards that previously received authorization, Therefore the 

 

35 71 Fed.Reg. 75,536, 75, 537 (Dec. 15, 2006)
13

Amendments do no impose new standards for which new authorization must be 

sought.36

CARB is not aware of any new issues affecting the previously granted authorization 

determination for the SORE regulation. The amendments do not force any change in 

technology to warrant revisiting conclusions reached in granting the existing 

authorizations. It is therefore entirely appropriate for EPA to approve the within the 

scope request.

C. Alternatively, a New Authorization Must Be Granted for the 2008 

Amendments 

Should the Administrator determine that a within the scope determination cannot be

granted for any of the above-identified 2008 Amendments, she must grant CARB a new 

authorization for those amendments based on the same record CARB has provided. As 

discussed above, no issue regarding protectiveness or consistency with CAA sections 

209(a), 209(e)(1), or 209(b)(1)(C) exists, and as demonstrated below, California 

satisfies the compelling and extraordinary criterion.

1. Compelling and Extraordinary Circumstances 

In adopting Resolution 08-41 (Enclosure 4), the Board confirmed CARB’s longstanding 

position that California continues to need its own nonroad engine program to meet 

serious air pollution problems. The relevant inquiry under section 209(e)(2)(A)(ii) is 

whether California needs its own emission control program to meet compelling and 

extraordinary conditions, not whether any given standard is necessary to meet such 

conditions.37

“[C]ompelling and extraordinary conditions” [do] not refer to levels of 

pollution directly, but primarily to the factors that tend to produce them: 

geographical and climatic conditions that, when combined with large 

numbers and high concentrations of automobiles, create serious air 

pollution problems.38

California, and particularly the South Coast and San Joaquin Valley Air Basins, continue 

to experience some of the worst air quality in the nation and continue to be in nonattainment with national ambient air quality standards for PM 2.5 and ozone.39

 The 

unique geographical and climatic conditions, and the tremendous growth in on and offroad vehicle population and use that moved Congress to authorize California to 

 

36 77 Fed.Reg. 9916, at 9920 (Feb. 21, 2012)

37 Final 209(e) Rule, 59 Fed.Reg. at 36982. The Administrator has recognized that even if such a 

standard by standard test were applied to California, it "would not be applicable to its fullest stringency 

due to the degree of discretion given to California in dealing with its mobile source pollution problems.” 

(41 Fed.Reg. 44209, 44213, (October 7, 1976); 49 Fed.Reg. 18887, 18892 (May 3, 1984).)

38 49 Fed.Reg. 18887, 18892 (May 3, 1984).

39 76 Fed.Reg. 40652, 40654 (July 11, 2011).
14

establish separate on-road motor vehicle standards in 1967 and off-road engine 

standards in 1990, still exist today.40

In the California Clean Air Act of 1988, the California Legislature found that: 

[D]espite the significant reductions in vehicle emissions which have been 

achieved in recent years, continued growth in population and vehicle miles 

traveled throughout California have the potential not only to prevent 

attainment of the state standards, but in some cases, to result in 

worsening of air quality.41

2. The Importance of Regulating Off-Road Engines

By adding federal and state authority to regulate off-road engines, Congress and 

California’s Legislature, respectively, acknowledged the increasing importance of 

reducing emissions from all mobile sources, including new and in-use off-road 

engines. The Administrator has repeatedly agreed with CARB that California’s 

continuing extraordinary conditions justify California’s mobile source emission 

programs.42 Nothing in these conditions has changed to warrant a change in this 

determination. Accordingly, for all the aforementioned reasons, there can be no doubt 

of the continuing existence of compelling and extraordinary conditions justifying 

California’s need for its own mobile source emissions program.43

IV. CONCLUSION

Based on the foregoing, CARB respectfully requests that the Administrator grant 

California’s request for the authorization action as described in this document pursuant 

to CAA section 209(e). To assist you in reviewing the requests, CARB is enclosing a

CD-ROM, containing the following referenced documents to be included in the record of 

this proceeding.

Reference Materials from the 2008 Amendments to its Small Off-Road Engines

and Equipment Regulations (as titled on the enclosed CD)

1. Public Hearing Notice dated November 20, 2008 (Enclosure 1 Notice of Public 

Hearing).

2. CARB Staff Report: Initial Statement of Reasons for Proposed Rulemaking,

dated October 3, 2008 (Enclosure 2 Staff Report)

 

40 See 74 Fed.Reg. 32744, 32762-32763 (July 8, 2009); 76 Fed.Reg. 77515, 77518 (December 13, 

2011).

41 California Health and Safety Code section 43000.5.

42 60 Fed.Reg 37440 (July 2, 1995) utility engine authorization Decision Document, at p. 33; 76 Fed.Reg. 

77515, 77518 (December 13, 2011).

43 76 Fed.Reg. 77515, 77518 (December 13, 2011); 76 Fed.Reg. 77521, 77525 (December 13, 2011).
15

3. 15 Day Notice of Modified Text dated February 4, 2010 (Enclosure 3 15 Day 

Notice), Attachment 1 (Enclosure 3 (A) Attachment to 15 Day Notice) 

4. Resolution 08-41 (Enclosure 4 CARB Resolution 08-41) 

5. Executive Order R-10-004 dated February 24, 2010 (Enclosure 5 Executive 

Order R-10-004)

6. Final Regulation Order as approved by OAL (Enclosure 6 Final Regulation)

7. Final Statement of Reasons for Rulemaking (Enclosure 7 FSOR)

8. Addendum to the Final Statement of Reasons (Enclosure 8 Addendum FSOR)

9. Transcript of September 23, 2008, public hearing in the rulemaking (Enclosure 9 

Transcript 09-23-08)

10. California Exhaust Emission Standards and Test Procedures for 2005 and Later 

Small Off-Road Engines, as amended February 24, 2010, Subpart D, Section 

90.308 (Enclosure 10 Test Procedures) 

11. Fully endorsed STD 400 face sheet and Final Regulation Order as approved by 

OAL and filed with the Secretary of State April 5, 2010 (Enclosure 11 STD 400)

12. Office of Administrative Law Approval Notice, April 5, 2010 (Enclosure 12 OAL 

Notice)

CARB Contacts

Technical questions or requests for additional technical information on this item should 

be directed to Ron Haste, Emission Research and Regulation Development Branch, 

Off-Road Control Section, at (626) 575-6676 or rhaste@arb.ca.gov. Legal questions 

should be directed to Lisa Brown, Senior Attorney, at (916) 324-2132 or 

lbrown@arb.ca.gov.