3. Issues: Comments and Responses
- "The Ontario Ministry of the Environment supports the federal initiative to reduce emissions from the off-road sector, as well as Environment Canada's approach of aligning Canadian federal standards with those of the U.S. Environmental Protection Agency".
- MECA wrote: "We support Canada's proposal to align with the U.S. standards."
- EMA wrote: "In referencing EPA's regulations EC has chosen the most effective way to achieve maximum emission benefits with minimum disruption to the industry."
- "OPEI strongly supports EC efforts to harmonize the Canadian system with the existing EPA regulations..."
- "OPEI fully supports EC's efforts to transition from the current
EC/Manufacturer Memorandum of Understanding (MOU) system to formal Canadian regulations on SSI engine emissions. [...] ... because equipment powered by non-Phase I compliant engines can be priced much less expensively, than equipment with compliant engines, the good corporate citizen MOU signatories will continue to be at a competitive disadvantage without formal emission regulations from EC. [...] the formal emission regulations will improve air quality and level the competitive playing field for all companies exporting power equipment to Canada."
Response:
The comments continue to confirm support from respondents for Canada to align emissions standards with the corresponding U.S. standards. As stated in section 2 of the Regulations, one of the purposes of the Regulations is to establish Canadian emission standards and test procedures aligned with those of the U.S. EPA. The Regulations are designed to achieve the desired alignment by incorporating by reference, portions of the applicable technical standards contained in the U.S. Code of Federal Regulations.
Comments on specific aspects of the Regulations are addressed in other sections of this document.
- "OPEI would like to confirm that the finalization of the European Union emission standards for SSI engines will have no effect on EC's harmonization decision. Indeed subsequent EC harmonization with EU standards, or developing a compliance scheme which would honor an EU certificate in lieu of an EPA certificate would be problematic considering the different fuel requirements in Europe and North America. In addition, different ancillary regulatory priorities, such as fire-safe requirements in the U.S. and noise requirements in the EU, directly impact emissions testing and thus hamper the ability to transfer emissions data between the two regulatory schemes".
- MECA wrote: "For non-handheld engines, we recommend that the U.S. Phase 2 standards be viewed as only interim standards. [...] Once California has finalized these new, more stringent standards for non-handheld, we recommend that Canada harmonize with the more stringent California standards as soon as is practical."
Response:
The Regulations do not accept European Union certification as evidence of conformity to the standards. The Regulations include provisions to accept engines covered by a U.S. certificate of conformity as evidence of conformity to the standards.
The Federal Agenda on Cleaner Vehicles, Engines and Fuels states that "the Department intends to proceed with the development of emission control programs for off-road engines, under Division 5 of CEPA 1999, aligned with the corresponding U.S. federal emissions control programs". The discussion note released along with the discussion draft of the proposed Regulations (July, 2002) solicited comments regarding the acceptance of engines certified to European Union standards for small spark-ignition engines. Since the publication of the proposed Regulations, the European Union has adopted a directive for emission standards for small spark-ignition engines that are essentially aligned with those of the U.S. EPA and member countries of the union have until August 2004 to implement these standards nationally. No comments were received requesting acceptance of European Union certification.
Under the Regulations, an engine must conform to Canadian standards before it can be imported or transported between provinces or territories for the purpose of retail sale. Under subsection 153(3) of CEPA 1999, an engine can be deemed to conform to a prescribed standard if "...the regulations provide that an enactment of a foreign government corresponds to that standard...". Subsection 14(4) of the regulations identifies the U.S. Environmental Protection Agency as the prescribed agency for the purpose of subsection 153(3) of CEPA 1999.
However, the Department remains prepared to examine the appropriateness of other standards as evidence of conformity to the Canadian emissions standards if formally requested.
Comments were received from OPEI regarding the treatment of specialty products not currently certified to U.S. standards.
- "Some OPEI members design products and engines specifically for the Canadian market that are not sold in the U.S. These Canada-specific products and engines, such as oversized brush cutters and chainsaws, are either used by the Canadian silviculture industry, or have special cold weather applications. These products and engines are not certified to meet EPA emission standards because they are not sold in the U.S. [...] If required to meet the Canadian emission standards by MY 2005, these Canadian-specific product lines would simply be terminated. [...]OPEI proposes that EC implement a variance system for Canada-only niche engines."
Response:
The Department has concluded that allowing these Canada-only products to meet alternative exhaust emission standards was the best option to keep these products available in Canada, considering their importance to the forestry sector and their relatively small contribution to national air pollution. Accordingly, subsection 10(2) of the Regulations includes less-stringent standards for handheld engines not covered by an EPA certificate when less than 2000 engines of a given model are sold annually in total in Canada. The alternative standards are consistent with those available under the U.S. regulations.
In the case of a class III or IV engine of 2007 and earlier model year, and of a class V engine of 2009 and earlier model year, the alternative standards correspond to those available in the U.S. under the small volume engine manufacturer and small volume engine family provisions. For a class III or IV engine of 2008 and later model year, and for a class V engine of 2010 and later model year, the standards correspond to the upper bound of the Phase 2 standards under the U.S. averaging provisions.
This approach will avoid the administrative burden associated with an averaging program for extremely limited quantities of products while ensuring continued availability of such specialized products in Canada.
- "EMA supports EC's approach that allows the importation into Canada, of engines identified as replacement engines in accordance with EPA regulations."
Response:
The Regulations are in accord with the comment.
The replacement engine provision in the Regulations (Section 13) was slightly modified to make it clearer. Also, subsection 13(3) has been added, requiring a label on a replacement engine to facilitate the administration of the Regulations. This can be either a bilingual label identifying the engine as a replacement engine or the replacement engine label set out by the U.S. EPA in section 1003(b)(5), Subpart K, part 90 of the Code of Federal Regulations.
- "EMA supports EC's approach that does not propose a separate averaging, banking and trading program in Canada."
- The Ontario Ministry of the Environment wrote: "In absence of a Canadian averaging program, we also encourage Environment Canada to continue to work with manufacturers and retailers to monitor and assure that lower-emissions equipment is readily available in the Canadian marketplace at reasonable cost and at least in the proportion to meet the standards."
Response:
The Regulations do not contain averaging provisions.
As discussed in the Regulatory Impact Analysis Statement, the industry tends to consider North America as a single market. Product offerings and sales mix are expected to be proportionally similar in Canada and the U.S. and therefore overall emissions levels from small spark-ignition engines should be similar. Going forward, the Department plans to collect data to verify whether comparable environmental performance is being achieved for Canada.
- EMA wrote: "The proposed Regulations apply to 2005 and later model year engines. For engines manufactured in Canada, this should provide sufficient time for authorization to apply the [national] mark to be obtained as well as integration of the mark in the manufacturing system."
Response:
The Regulations apply to engines of model year 2005 and later. The proposed Regulations were modified to simplify the administrative procedures at implementation. The effective date for most parts of the Regulations is January 1, 2005. To allow the administrative steps be taken to authorize the use of the national emissions mark in an expeditious manner, provisions related to the national emissions mark (sections 6 to 8 of the Regulations) come into force on the date of their registration. Section 8 of the Regulations enables a company to apply the national emissions mark to engines that comply with requirements applicable to the 2005 model year engines that are manufactured before January 1, 2005.
- "EMA supports EC's approach in requiring the National Emissions Mark only on engines manufactured in Canada".
- "OPEI fully support this approach [national emission mark to be required only if an engine is manufactured in Canada] considering the tight space constraints of SSI engines and the fact that engines sold in Canada will generally bear EPA labels".
- "OPEI respectfully requests that when published as a final version in the Canada Gazette, the preamble language explicitly addresses the national emissions mark exemption in a manner similar to EC's response to comments on the discussion draft".
Response:
The Regulations include a unique national emissions mark. In the discussion draft of the proposed Regulations, the national emissions mark was required on all prescribed small spark-ignition engines. Subsection 5(3) of the Regulations (same subsection in the proposed Regulations) requires the mark only on engines that are manufactured in Canada. The comments received support this approach.
Subsection 153(1) of CEPA 1999 directly requires that imported engines conform to the requirements of the Regulations as a condition for their importation into Canada. Accordingly, the application of a national emissions mark to imported engines is not required to demonstrate such conformity. The subsection entitled "administrative provisions" of the RIAS explains clearly which engines require the national emissions mark.
The Department will be issuing a guidance document (please see Section 5). Also, the Department will be working collaboratively with the Canada Customs and Revenue Agency to develop documentation to assist importers with regard to importation requirements as they relate to these Regulations.
- OPEI wrote: "The concurrent sales requirement [section 13(1) of the proposed Regulations], however, is problematic because in some cases engines used for Canadian and U.S. versions of the same equipment have minor variations, wholly unrelated to emission characteristics. [...] OPEI [...] requests that the concurrent sales requirement be broadened to account for engines and products that are for all practical purposes the same, but are not, in absolute sense, identical."
Response:
Subsection 14(1) of the Regulations (subsection 13(1) of the proposed Regulations) includes a provision clarifying the scope of engines deemed to be "covered by an EPA certificate and sold concurrently in Canada and in the U.S." An engine sold in Canada that:
- shares all the features (used by the EPA to classify engines into engine families) with an engine in an engine family covered by an EPA certificate and sold in the U.S. in the same model year; and
- has no features that could cause it to have a higher level of emissions than the engine family sold in the U.S. shall conform to the emission standards referred to in the EPA certificate, instead of standards set out in the Regulations.
- OPEI wrote: "When read together, Sections 15 and 17 of the proposed regulations suggest that all records submitted to EPA in support of a certificate application be retained for eight years, and be produced to the Minister upon request. EPA regulations do not require the retention of all application records for eight years. Indeed, routine emission test data, such as those reporting test cell temperatures and raw emission results for each mode or test phase need only be retained for one year 40CFR ยง 90.121(b). OPEI respectfully requests that these record keeping requirements be harmonized."
Response:
For engines covered by an EPA certificate, the Department intends to maintain alignment with EPA record keeping requirements. For an engine covered by EPA certificate, the Minister may request, under section 18 of the Regulations (section 17 of the proposed Regulations), that the company provides the evidence of conformity referred to in paragraphs 16(a) to (c) of the Regulations (paragraphs 15(a) to (c) of the proposed Regulations) for any engine manufactured in the eight years preceding the request.
Paragraph 16(c) of the Regulations (paragraph 15(c) of the proposed Regulations) includes the records submitted to the EPA in support for the issuance of the EPA certificate. Section 121, subpart B, part 90 of the CFR describes the record keeping requirements for engines covered by a U.S. EPA certificate of conformity.