State of California 

AIR RESOURCES BOARD 

Addendum to the Final Statement of Reasons for Rulemaking 

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 

Addendum Prepared: February 24, 2010 

I. BACKGROUND 

On September 8, 2009, the California Air Resources Board (ARB) staff submitted 

the Final Statement of Reasons (FSOR), a Final Regulation Order containing 

proposed amendments to the Small Off-Road Engine (SORE) regulations, and 

the incorporated SORE test procedures to the Office of Administrative Law (OAL) 

for review and approval. 

On October 20, 2009, OAL disapproved the proposed amended regulations 

because the modifications to the regulations did not comply with the California 

Administrative Procedures Act (APA) required standards for clarity and 

consistency, and ARB did not comply with the APA procedural requirements for 

FSOR content. Although staff did not agree with all of OAL’s determinations, 

staff has addressed these concerns in this addendum. 

A. Failure to comply with the clarity standard. 

In its disapproval, OAL noted that during the public comment period and at the 

hearing, manufacturer representatives indicated that the zero emission 

equipment (ZEE) credit provisions proposed in section 2508(f)(7) were unclear 

and in need of revision. Staff acknowledged the lack of specificity and necessity 

for further clarifications at the hearing and in the FSOR. The clarity standard 

specified in California Government Code Section 11349(c) requires that 

regulations be written so that they will be understood by those directly affected by 

them. Accordingly, OAL did not approve the unclear and unfinished ZEE credit 

program regulations for codification into the California Code of Regulations 

(CCR). 

B. Failure to comply with the consistency standard. 

OAL also noted that the amendment proposed in section 2403(i) did not comply 

with the consistency standard specified in Government Code section 11340.5(a). 

Specifically, proposed section 2403(i) granted the Executive Officer the discretion 

to make technical changes to the incorporated test procedures in order to 
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enhance alignment with similar federal regulations promulgated after October 3, 

2008. Because of this limited authorization, OAL did not approve this 

amendment. 

C. Failure to follow procedural requirements of APA. 

Lastly, OAL noted that ARB’s FSOR contained inadequate summaries and 

responses to some of the comments as required under Government Code 

section 11346.9(a)(3). OAL determined that the FSOR did not adequately 

summarize or respond to the following comments. 

 1. The Outdoor Power Equipment Institute (OPEI) commented that: 

“under ARB’s credit life proposal, ARB’s ABT [Average Banking and Trading] 

credit program will not be consistent with the federal program (which does not 

impose a credit life on Phase 3 credits). Consequently, manufacturers would 

have to develop and implement unique ARB vs. EPA ABT-compliance strategies. 

This could require separate product lines for the California market. In turn, this 

will add cost-inefficiencies and higher prices for California consumers with no 

environmental benefits.” 

 2. The Engine Manufacturers Association (EMA) commented as follows: 

“Agency concerns regarding delayed implementation of product meeting the 

latest standard level due to credits banked from prior standard levels should be 

segregated from concerns regarding credits generated from products that emit at 

lower levels than the current standard requirements. EMA has proposed that 

ARB pursue an approach similar to EPA to segregate credits generated by 

manufacturers when building products to meet prior standard requirements from 

credit potential for products meeting the current stringent ARB standard levels.” 

In addition, OAL noted that there were comments to which the responses did not 

address the substance of the comments on the grounds of timeliness of the 

comments’ submission. This Addendum to the FSOR for the 2008 Amendments 

to the SORE Regulations lists, describes, and provides reasoning for the 

changes that ARB made to the FSOR, and the Final Regulation Order. Many of 

these changes were made in response to concerns raised by OAL, as well as 

typographical errors and oversights subsequently discovered. ARB is submitting 

this addendum to the FSOR for insertion in OAL File Number 2009-0908-03S. 

II. ADDITIONAL MODIFICATIONS

To address OAL’s concerns, staff made clarifying revisions, developed 

collaboratively with manufacturers, to the ZEE credit program regulations, 

removed adopted language for allowing Executive Officer discretion in making 

technical amendments to the test procedures, and revised responses to 

comments received in the 45-day public comment period. 
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In order to develop more refined ZEE credit program provisions, staff held 

several conference calls with OPEI, EMA and equipment manufacturer Stihl. On 

November 17, 2009, staff held a workshop to present its proposal for amending 

the ZEE credit program regulations. One month after the workshop, staff posted 

a draft of the proposed ZEE credit program modifications to the SORE 

regulations. After addressing additional concerns from manufacturers, staff 

published the “Notice of Public Availability of Modified Text” on February 4, 2010. 

Listserve notices were also sent out on ARB’s MSPROG and ORSPARK 

electronic mailing lists, and Board hearing commenters were individually 

provided with the Notice, as well. The comment period ended on 

February 19, 2010. 

The Notice of Public Availability of Modified Text included the following 

modifications, and the Final Statement of Reasons was amended as follows: 

A. Modifications to Regulatory Text of California Code of Regulations, Title 

13, Chapter 9, Article 1, sections 2401, 2403, 2404, 2405, 2406, 2408, and the 

addition of section 2408.1. 

 

 1. Section 2401 was modified by adding definitions of “eight-hour 

workday” in order to establish a basis of comparison of ZEE operation with that of 

conventional equipment; “professional level” to establish a basis of equipment 

performance comparisons; “standard battery package” to establish a basis for 

quantifying battery capacity delivered in a one-hour period; “zero-emission 

equipment credits” to identify emission reductions achievable by ZEE; and, “zeroemission equipment engine family” to identify specific ZEE that generate credits. 

2. Section 2403(b)(3) was modified by adding “subsection 2403(b)” to 

clarify the existing citation for subsection (2)(B), adding “.1” to the existing citation 

for section 2408 to correctly indicate the new section, and deleting “above” to 

eliminate redundancy. 

 3. Section 2403(i) was removed per OAL’s concern that it did not 

comply with the Government Code’s consistency standard and, in effect, would 

allow the Executive Officer regulatory authority outside of the APA process. 

 4. Sections 2404(m)(1) and (2) were added to provide manufacturers 

the option of adding labels to ZEE that meet professional-level ZEE 

requirements. The labels may encourage and facilitate environmentally 

conscious commercial consumers to purchase ZEE over conventional 

equipment. Staff made this label optional because some of the small-sized 

equipment lack available space due to the other labeling requirements. 

 5. Section 2405(h)(1) was added to ensure that warranties for ZEE, 

including batteries and battery chargers, would be warranted against defects for 
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at least two years. Although the ZEE credit program is optional, staff believes 

that the equipment needs to remain usable for the same amount of time as 

conventional equipment. The consumer purchasing the product also needs 

protection from defective products. 

 

 6. Section 2405(h)(2) was added to explicitly indicate the allowance 

for equipment manufacturers to make contractual agreements with battery 

manufacturers to provide warranty coverage for the batteries. However, the 

equipment manufacturer is ultimately responsible for covering all of the 

consumer’s warranty needs. This section was added at the specific request of 

the manufacturers, even though manufacturers could have done this on their 

own. 

 7. Section 2406(b)(2) was modified by changing “call” to “calls” to 

make the sentence grammatically correct. 

 8. Section 2408(f)(7) was deleted. Staff introduced provisions for a 

more defined ZEE credit program in section 2408.1. 

9. Section 2408(i)(3) was modified by correcting the mailing address 

for the end-of-year and final reports. 

 10. Section 2408.1(a) was added as part of the collaborative revisions 

developed with manufacturers to the ZEE credit program. As with the 

certification emission credit program, the credit program for ZEE is a voluntary 

program. Staff is proposing that ZEE may begin to generate ZEE credits with the 

2010 model year, and ZEE credits may be used to offset negative credits from 

any SORE family beginning with the 2011 model year. However, any equipment 

that receives funding by any emission reduction program funded by ARB (e.g., 

Assembly Bill 118 funding), or a manufacturer participating in the Blue Sky 

program, may not generate ZEE credits. Accordingly, staff is adding language to 

address the applicability issue. 

 11. Section 2408.1(b)(1)was added to set a starting point for the ZEE 

credit program. Basically, ZEE credits may be used to offset exhaust emissions 

for “carryover engine families” or engine families that meet the current tier 3 

emission standards. 

 12. Section 2408.1(b)(2) was added so that only ZEE sold and used in 

California would generate ZEE credits. 

 13. Section 2408.1(b)(3) was added to allow manufacturers that find it 

difficult to separate out exact sales of an engine family in California, to use their 

entire production of that engine family when calculating the usage of ZEE credits. 

This option is only allowed for the usage of credits, and not for the generation of 

credits. 
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 14. Section 2408.1(b)(4) was added as a requirement that 

manufacturers that wish to generate ZEE credits must certify the ZEE and the 

ZEE engine family would obtain a Family Emission Limit (FEL) of zero grams per 

kilowatt-hour. 

 15. Section 2408.1(b)(4)(A) was added to clarify that ZEE credits may 

be used for averaging, banking or trading, or a combination of these three 

actions. 

 16. Section 2408.1(b)(4)(B) was added to set the durability requirement 

at the maximum durability period to ensure that only higher durability 

professional-level equipment can generate ZEE credits. This is meant to 

encourage new technology that may not yet be in production. The durability 

periods would be different for each engine displacement category. The 

displacement designation would correspond to the displacement of the engine in 

the conventional equipment. 

 17. Section 2408.1(b)(4)(C) was added to allow a reduced ZEE 

durability requirement with a corresponding reduction in credit generation. A 

ZEE certified at the lower durability level may generate only seventy-five percent 

of the ZEE credits that the engine family would have generated at the normal 

durability period. To generate reduced ZEE credits, the engine family must meet 

a minimum durability period of 225 hours for engines with a displacement under 

or equal to 80cc or 375 hours for engines with displacement greater than 80 

cubic centimeters (cc) and less than 225cc. This provision would be allowed 

through the 2012 model year. This section was added in response to comments 

made at the board hearing requesting “some interim period of time for equipment 

that may not entirely meet the proposed performance standards.” 

 18. Section 2408.1(b)(4)(D) was added to state the minimum 

professional-level requirements. Conventional professional-level lawn and 

garden equipment are generally expected to provide one hour of continuous use 

before refueling is required. A similar one-hour operating period expectation will 

apply to professional-level ZEE. However, because current battery technology 

does not enable a single battery to power equipment constantly for one hour, 

staff is allowing up to four batteries to be used. If multiple batteries are 

necessary to meet this requirement, they must be provided with the equipment. 

Minimum specifications are stated in Table 1 of this section. Additional 

requirements are also included for durability testing and minimum battery 

durability. 

 19. Section 2408.1(b)(4)(E) was added to clarify the requirement that 

enough batteries be provided to the ultimate purchaser to allow for one hour of 

continuous operation. 
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 20. Section 2408.1(b)(4)(F) was added to require manufacturers to 

demonstrate as part of the certification process, that a commercial operator could 

use the equipment through a typical “8-hour” workday without difficulty. The 

manufacturer must show that this is possible with the limitations of the battery 

charging and recharging times. 

 21. Section 2408.1(b)(4)(G) was added to clarify that manufacturers 

must demonstrate compliance with the use of ZEE credits within 270 days after 

the end of the model year. 

 22. Section 2408.1(b)(4)(H) was added to state requirements for the 

manufacturer to track batteries originally sold with ZEE for credit generation. 

This requirement would be useful for both consumers and manufacturers to 

identify which batteries are covered under warranty. This section also clarifies 

that replacement batteries cannot generate ZEE credits. 

 23. Section 2408.1(c)(1) was added to establish ZEE credit use 

requirements. Specifically, only up to fifty percent of the negative emission 

credits from a particular engine family can be offset by ZEE credits. The 

remaining credit balance must be offset by positive certification credits. 

Requiring the use of certification emission credits, in addition to ZEE credits, 

encourages manufacturers to use other advanced emission control technologies 

in addition to the zero emission technology. 

 24. Section 2408.1(c)(2) was added to require that ZEE credits be 

banked before they can be used to offset emissions from other equipment. 

Requiring that ZEE credits be banked ensures that any ZEE credits being used 

are legitimate. 

 25. Sections 2408.1(c)(3) and (4) were added to keep ZEE credits 

separated by displacement categories. This requirement, which was requested 

by manufacturers, is beneficial because of the differential in the emission 

standards for each displacement category. In addition, ZEE is expected to 

replace equivalently performing conventional equipment, so the credits should be 

used only within the respective displacement category. Accordingly, language 

that specifies this requirement has been included. 

 26. Sections 2408.1(d)(1) and (2) were added to provide the provisions 

for banking ZEE credits. Specifically, while actual generation of these credits 

may begin with the 2010 model year, these credits can be banked only at the end 

of the model year. 

 27. Section 2408.1(d)(3) was added to indicate that ZEE credits can be 

banked for a maximum of five years. This is consistent with the same limits for 

certification emission credits. 
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 28. Section 2408.1(d)(4) was added to clarify that after five years, ZEE 

credits would expire and would no longer be usable for offsetting negative 

certification emission credits. 

 29. Section 2408.1(e) was added to provide the provisions for trading 

ZEE credits. Specifically, ZEE credits that are available for trading are credits 

that were banked in previous model years, and these credits can be used for 

averaging and banking purposes for up to five years from the time they were 

generated. 

 

 30. Section 2408.1(f) was added to provide clarifying language for the 

calculation of ZEE credits. 

 31. Section 2408.1(g) was added to provide the certification 

requirements for equipment that generate ZEE credits. These requirements 

mirror the requirements for certification emission credits. 

 32. Section 2408.1(h) was added to explain the maintenance of records 

requirements for ZEE credits. These requirements also mirror the requirements 

for certification emission credits. The records for ZEE credits must include 

maintaining records for the batteries, as well. 

 33. Section 2408.1(i) was added to provide the requirements for the 

end-of-year and final reports for ZEE credits. These requirements are also 

similar to the reports required for certification emission credits. 

In developing the ZEE credit program provisions, one aspect that concerned staff 

involves the possibility that commercial operators of ZEE may use portable 

generators or parked motor vehicle motive power sources for recharging ZEE 

batteries, instead of recharging through the electric power grid itself. However, 

staff currently believes that this kind of recharging activity will not be wide spread 

because of the additional costs and effort associated with owning, handling, and 

transporting the generators, or the fuel costs associated with motor vehicle 

engine idling. In the future, staff may consider monitoring and determining the 

emissions benefits associated with any battery recharging activities performed by 

operators of ZEE during a typical eight-hour workday, that rely either partially or 

completely on non-electric power grid sources. 

B. Modifications to the Final Statement of Reasons for Rulemaking. 

 1. Inadvertently omitted written comments. 

On page 3, Final Statement of Reasons, Section II, SUMMARY OF 

COMMENTS AND AGENCY RESPONSE, the following comments and 

Agency Responses are hereby added in their entirety, which includes 
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inadvertently omitted written comments received during the initial 45-day 

public comment period. 

15. Comment: Under ARB’s credit life proposal, ARB’s ABT 

[Average Banking and Trading] credit program will not be 

consistent with the federal program (which does not impose a credit 

life on Phase 3 credits). Consequently, manufacturers would have 

to develop and implement unique ARB vs. EPA ABT-compliance 

strategies. This could require separate product lines for the 

California market. In turn, this will add cost-inefficiencies and 

higher prices for California consumers with no environmental 

benefits. (OPEI) 

Agency Response: Previous to the changes made in these 

proposed amendments to the SORE regulation, ARB’s evaporative 

and exhaust emission standards, as well as its emission credit 

programs, had already differed from the United States 

Environmental Protection Agency’s (U.S. EPA) corresponding 

rules. Consequently, manufacturers had already developed and 

implemented unique California compliance strategies. 

Manufacturers have not provided any new or additional information 

to indicate that there would be any significant costs beyond those 

that already exist. In addition, although ARB prefers to align with 

U.S. EPA when possible, in this case, staff believes that the 

proposed changes will improve California’s emission credit 

program. Accordingly, no changes were made to the regulations in 

response to the comment. 

16. Comment: Agency concerns regarding delayed 

implementation of product meeting the latest standard level due to 

credits banked from prior standard levels should be segregated 

from concerns regarding credits generated from products that emit 

at lower levels than the current standard requirements. EMA has 

proposed that ARB pursue an approach similar to EPA to 

segregate credits generated by manufacturers when building 

products to meet prior standard requirements from credit potential 

for products meeting the current stringent ARB standard levels. 

(EMA) 

Agency Response: Although staff agrees that giving more weight 

to credits generated under the more stringent standards than 

credits generated under previous less stringent standards would be 

ideal, in practice, this would not be feasible. ARB exhaust emission 

standard changes took place in model years 2005, 2007, and 2008 

for SORE with engine displacements less than 80cc, 80cc to 225cc, 

and over 225cc, respectively. Staff would not expect 
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manufacturers to determine which of their remaining credits were 

generated before the changes in the emission standards because 

of the impracticality involved in retroactively establishing the proper 

accounting of emission credits to specific emission standards. Staff 

will, however, remember this comment when considering any 

modifications to the SORE regulations in the future. 

2. Comments that were responded to incompletely. 

On page 3, Final Statement of Reasons, Section II, SUMMARY OF 

COMMENTS AND AGENCY RESPONSE, the following responses to 

comments are hereby modified as indicated below. 

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. 

 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) 

Original 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. 
10

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. 

Further Agency Response: As indicated in the Hearing Notice for 

this regulatory action, the scope of the proposal was limited to 

amending the emission credit provisions for SORE, along with 

some other minor regulatory changes. The changes to the SORE 

test procedures recommended by the comments are beyond the 

scope of the proposal. Accordingly, no changes were made to the 

regulations in response to the comments. Nevertheless, staff 

recognizes the merit of these comments and will consider them for 

future incorporation into the regulation. 

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) 

Original 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. 

 

Further Agency Response: Staff did not modify the existing 

language in the test procedures because the inherent requirement 

to perform testing using good engineering practice means that 

certification confirmatory exhaust emission testing must be 

conducted with the same fuel that is used for the initial certification 

exhaust emission testing. In addition, section 2407(a)(7), CCR, 

title 13, indicates that an engine selected for exhaust emission 
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compliance testing must be emission tested according to the 

applicable test procedures (i.e., the same test procedures used for 

certification of the engine). Further, section 2407(d)(1), CCR, title 

13, indicates that the test procedures to be used for engines 

selected for exhaust emission quality-audit production line testing 

are specified in conjunction with the “Emission Standards and Test 

Procedures,” or in other words, the same test procedures used for 

certification of the engine. Consequently, since the adopted 

provision for allowing up to a 10 percent (by volume) ethanol fuel is 

explicitly specific to certification testing, that same test fuel 

allowance must also pertain to compliance and quality-audit 

production line testing. Accordingly, no changes to the test 

procedures were necessary in order for either certification 

confirmatory testing or compliance and quality-audit production line 

testing to be conducted with the same test fuel that was used to 

emission certify an engine. 

 

 

3. Comments that were received during the 15-day public comment 

period. 

The following includes comments that were received during the 15-day 

public comment period, and staff’s responses to these comments. 

 17. Comment: [EMA/OPEI recommends that] ZEE credit 

generating product labeling specified by §2404(m) be mandatory 

rather than optional as proposed. ARB has traditionally required all 

products certified by the Air Resources Board to be labeled such 

that their compliance status can be identified. Because certified 

ZEE will be generating emission credits utilized to demonstrate 

compliance with ARB emission standards it is important that these 

equipment be identifiable for warranty requirements as specified in 

§2405(h) and to avoid such equipment from being utilized for 

emission reduction programs as specified in §2408.1(a). Failure to 

change the labeling requirements from optional to mandatory will 

result in substantial risk that ARB will provide credits to equipment 

that either fails to meet warranty requirements or is additionally 

utilized to generate emission reduction program credits. (EMA, 

OPEI) 

Comment: EMA recommends that the proposed 15-day changes 

identified in the February 1, 2010 notice of publicly available 

modified text be adopted as proposed; provided, however, EMA 

contends that the product labeling specified by §2404(m) should be 

mandatory rather than voluntary. (EMA) 
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Agency Response: Staff understands and shares EMA’s and 

OPEI’s concerns about the compliance of equipment which will 

generate ZEE emission credits. However, it should be noted that 

the intent of the proposed optional ZEE label provisions, specified 

in section 2404(m), is to facilitate the identification of Californiacertified ZEE by the ultimate purchasers, and thereby encourage 

the use of ZEE. The ZEE label was made optional in recognition of 

the lack of available space on some smaller-sized equipment and 

of the compliance burden associated with the existing label 

requirements, as well as the additional cost burden of the newer 

battery technology itself. If a manufacturer chooses to use a label, 

it should be noted that only California-certified ZEE can display a 

label that contains the statement, as specified in section 

2404(m)(A), to be “professional-level California-certified zeroemission” equipment. Further, the proposed optional ZEE label is 

in addition to the existing label requirements contained in section 

2404. These existing label requirements already serve to readily 

identify the compliance status of SORE, specifically through the 

unique engine family names that must be displayed on labels. 

Thus, the compliance status of California-certified ZEE can be 

identified by their unique ZEE-engine family names, the definition of 

which is also included in the proposal. Accordingly, staff did not 

make any changes to the proposed regulations in response to 

these comments. 

 18. Comment: [EMA/OPEI recommends that] ARB Staff 

carefully review all applications for certification of ZEE credits 

generating families to ensure that (i) the equipment is in fact 

“professional level” meeting the proposed definition in §2401 (a); (ii) 

the ZEE warranty meets the requirements specified in §2405 (h); 

and (iii) the credits being generated comply with all of the 

requirements specified in §2408.1. (EMA, OPEI) 

Agency Response: Staff agrees that adherence with these 

requirements is critical to the success of the ZEE credit program. 

By virtue of its considerable experience with successfully 

developing, implementing, and administering mobile source 

emission control programs, staff is confident that all of the ZEEengine family applications submitted for certification will undergo 

the same careful review process that is used with all mobile source 

categories in order to ensure complete compliance with the 

regulations. Accordingly, staff did not make any changes to the 

proposed regulations in response to these comments 
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 19. Comment: [EMA/OPEI recommends that] ARB Staff 

carefully review any small off-road engine certification application 

utilizing ZEE credits to demonstrate compliance with ARB 

regulatory requirements including: (i) §2408.1 (c)(1) which requires 

that not more than 50% of an engine manufacturers negative 

credits can be offset by ZEE credits; (ii) all of the provisions 

specified in §2408.1(g) associated with the use of ZEE credits; and 

(iii) §2408 (g)(1)(E), which sets the maximum ZEE credit usage for 

an engine family 40% above the applicable standard. (EMA,OPEI) 

Agency Response: Again, as in the previous response, staff has 

already dealt with certification emission credit provisions, and will 

continue to review the ZEE credit program requirements with the 

same level of attention. Accordingly, staff did not make any 

changes to the proposed regulations in response to these 

comments. 

 20. Comment: [EMA/OPEI recommends that if] at a 

future date it is determined that additional products are capable of 

generating ZEE credits, a formal rulemaking process would be 

required before such products could generate ZEE credits. Such a 

rulemaking process will facilitate the required public participation 

process required to ensure that ZEE credits are only being 

generated by viable products. (EMA, OPEI) 

Agency Response: Staff agrees with this comment. A formal 

rulemaking process is the proper method for allowing any ZEE not 

currently identified in the proposed amendments. However, no 

changes the regulations were required in response to these 

comments. 

21. Comment: OPEI recommends adding to §2408.1(c)(1) a 

clarification statement such as “subject to the limitations in 

§2408(g)(1)(E).” (OPEI) 

Agency Response: The provisions requiring a manufacturer to 

indicate credit sources and recipients when using certification 

credits, as specified in §2408(g)(1)(E), pertain only to certification 

credits, and are not applicable when using ZEE credits. For ZEE 

credit use, §2408.1(g)(1)(E) requires that only recipients of ZEE 

credits (i.e., ZEE would not generate negative credits) be specified. 

The averaging requirements specified in §2408.1(c)(1) are to be 

allowed, “...under the provisions of section 2408.1.” Thus, the 

requirements specified in §2408.1(g)(1)(E) are applicable to 

§2408.1(c)(1). Accordingly, staff did not make any changes to the 

proposed regulations in response to this comment. 
14

22. Comment: To assure that “professional Level” (sic) 

performance is not only demonstrated for certification but also 

provided as part of the actual product sold, §2408.1(b)(4)(E) should 

be clarified that the 1 hr battery capacity must be supplied with the 

product. (OPEI) 

Agency Response: As specified in §2408.1(b)(4)(E), a 

manufacturer is required to provide a “standard battery package,” 

which is defined in §2401 to be sufficient battery capacity to allow 

equipment to perform one hour of continuous operation. Staff 

believes that these proposed provisions adequately indicate the 

requirement that a one-hour battery capacity must be provided with 

the product. Accordingly, staff did not make any changes to the 

proposed regulations in response to this comment. 

23. Comment: In addition to a unique part number for the 

manufacturers original battery pack as stated in 

§2408.1 (b)(4)(H)(1), original batteries should also be labeled “Not 

for Retail Sale”, to prevent ZEE products from being sold without 

the intended battery capacity or the original battery capacity from 

being retailed separately. (OPEI) 

Agency Response: As discussed in the Agency Response to 

Comment No. 22, a manufacturer must provide the ultimate 

purchasers with a standard battery package. Thus, it is the 

manufacturer’s responsibility to ensure that the proper number of 

batteries is sold with the ZEE product. In the interest of providing 

flexibility in manufacturers marketing concerns, ARB will not dictate 

how a manufacturer satisfies this requirement. Nevertheless, if 

ARB discovers that ZEE products are being sold without the 

standard battery package, then the manufacturer will not generate 

ZEE credits from the sale of their ZEE product. In addition, staff will 

not prevent manufacturers from labeling their product with a “Not 

for Retail Sale” warning in order to protect themselves from the 

possibility of its original batteries being sold separately from its ZEE 

product. Accordingly, staff did not make any changes to the 

proposed regulations in response to this comment. 

24. Comment: In §2408.1 (b), Battery Capacity – Add the 

following clarification – “See minimum supplied battery capacity 

requirements in §2408.1, Table 1. Additional capacity above 

minimum may be supplied at the manufacturer’s discretion.” 

(OPEI) 
15

Agency Response: Staff does not believe that the clarification is

necessary. Also, the proposed regulations do not prevent a 

manufacturer from providing additional battery capacity that is 

beyond the minimum amount required. Accordingly, staff did not 

make any changes to the proposed regulations in response to this 

comment. 

25. Comment: In §2408.1, Table 1, for handheld and back pack 

blowers, the performance criteria references ANSI B175.2. The 

standard is currently under revision and the performance criteria 

relied upon within Table 1 has not yet been published in the ANSI 

B175.2 standard. Current publish date estimated for the new 

revision of ANSI B175.2 is late 2010. To address this lapse 

between the ANSI B175.2 standard and the ZEE performance 

criteria reliance upon the ANSI B175.2 in Table 1, OPEI 

recommends two possible options: 

a. Inclusion of the performance criteria in §2408.1, or 

b. A temporary guidance document that would expire upon 

the publish date of ANSI B175.2. (OPEI) 

Agency Response: Staff relied on manufacturers’ recommendation 

of the ANSI B 175.2 standard in designating the performance 

criteria. The fact that the revisions to the ANSI B175.2 standard will 

not be published until late 2010 means that manufacturers of 

handheld and backpack blowers that wish to ZEE certify their 

product would either choose to use the performance criteria from 

the current version of the ANSI 175.2 standard or choose to wait 

until the revised standard is published. No changes to the 

regulations were made in response to the comment. 

III. CONCLUSIONS 

Staff believes that the regulatory text is sufficiently clarified to be consistent with 

APA’s standards for regulatory consistency and clarity, and with APA’s 

procedural requirements for regulatory actions so that meaningful public 

opportunity for comment is provided before the regulations become effective. 

The proposed 2008 amendments to the SORE regulations are necessary, costeffective, and technologically feasible. The final modifications were adopted by 

ARB through Executive Order [to be determined], dated [to be determined].