[Federal Register Volume 88, Number 215 (Wednesday, November 8, 2023)]
[Rules and Regulations]
[Pages 77004-77009]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-24513]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 1074
[EPA-HQ-OAR-2022-0985; FRL-8952.1-01-OAR]
RIN 2060-AW12
Locomotives and Locomotive Engines; Preemption of State and Local
Regulations
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is finalizing
revisions to its regulations addressing preemption of State and local
regulation of locomotives and engines used in locomotives. This rule
implements a policy change to no longer categorically preempt certain
State regulations of non-new locomotives and engines, aligning with the
plain text of the Clean Air Act (CAA), and better achieving the
legislative intent of providing for exclusive Federal regulation of new
locomotives and new locomotive engines while preserving the ability of
California and other States to adopt and enforce certain State
standards regulating non-new locomotives and engines.
DATES: This final rule is effective on December 8, 2023.
ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-HQ-OAR-2022-0985. All documents in the docket are
listed on the https://www.regulations.gov website. Although listed in
the index, some information is not publicly available, e.g.,
confidential business information (CBI) or other information whose
disclosure is restricted by statute. Certain other material, such as
copyrighted material, is not placed on the internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available electronically through https://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Brian Nelson, Assessment and Standards
Division, Office of Transportation and Air Quality, Environmental
Protection Agency, 2000 Traverwood Drive, Ann Arbor, MI 48105;
telephone number: (734) 214-4278; email address: [email protected].
SUPPLEMENTARY INFORMATION:
General Information
Does this action apply to me?
This action does not directly apply to any regulated industry
classified by the North American Industry Classification System (NAICS)
Association.\1\ This action relates to State and local governments. The
revisions we are finalizing do not impose any requirements that State
and local governments must meet, but rather implement the Clean Air Act
preemption provisions for locomotives. To determine whether your entity
could be impacted by this action, you should carefully examine the
applicability criteria found in 40 CFR part 1074. If you have questions
regarding the applicability of this action to a particular entity,
consult the person listed in the FOR FURTHER INFORMATION CONTACT
section.
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\1\ NAICS Association. NAICS & SIC Identification Tools.
Available online: https://www.naics.com/search.
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What action is the Agency taking?
The Environmental Protection Agency (EPA) is finalizing revisions
to its regulations addressing preemption of State regulation of new
locomotives and new engines used in locomotives, to align with language
in the Clean Air Act.
What is the Agency's authority for taking this action?
Clean Air Act (CAA) section 209(e)(2)(B), 42 U.S.C. 7543(e)(2)(B),
requires EPA to promulgate regulations implementing section 209(e) of
the Act. CAA section 209(e)(1) addresses the prohibition of State
standards regarding certain classes of new nonroad engines or new
nonroad vehicles including new locomotives and new engines used in
locomotives.\2\ CAA section 209(e)(2)(A) specifies the criteria
relevant to EPA's evaluation of California authorization requests
(requests for a waiver of CAA preemption) for standards relating to the
control of emissions from nonroad engines or nonroad vehicles other
than those prohibited under section 209(e)(1). EPA's regulations
implementing these provisions for locomotives and locomotive engines
were first adopted in 1998 at 40 CFR part 85 and transcribed in 2008 at
40 CFR part 1074.\3\
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\2\ Section 209(e) pertains to the inability of State and
political subdivisions to adopt and enforce standards and other
requirements for certain nonroad engines and nonroad vehicles. EPA's
reference to ``State'' herein includes political subdivisions unless
otherwise noted.
\3\ See Emission Standards for Locomotives and Locomotive
Engines, Final Rule, 63 FR 18978, 18994 (April 16, 1998). See also,
Control of Emissions From Nonroad Spark-Ignition Engines and
Equipment, 73 FR 59034 (Oct. 8, 2008); See also Control of Air
Pollution: Emission Standards for New Nonroad Compression-Ignition
Engines at or Above 37 Kilowatts; Preemption of State Regulation for
Nonroad Engine and Vehicle Standards; Amendments to Rules, 62 FR
67733, 67734-67735 (December 30, 1997). See also Air Pollution
Control; Preemption of State Regulation for Nonroad Engine and
Vehicle Standards, July 20, 1994 (59 FR 36969).
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I. Summary
As part of its 1998 rule finalizing Emission Standards for
Locomotives and Locomotive Engines at 40 CFR part 92, which applied to
new locomotives and new engines used in locomotives, EPA also adopted
regulations in 40 CFR part 85 defining a broad preemption of certain
State and local controls of new or other locomotives and engines used
in locomotives, which we determined to be appropriate based on our
understanding of the information available at the time. Recently, there
has been interest in obtaining greater emissions reductions from the
locomotive sector, including possibly adopting programs to achieve
greater emission reductions from non-new locomotives that are not
required by EPA's emission standards for new locomotives and engines
under CAA section 213(a)(5).\4\ On April 27, 2023, EPA published a
notice of proposed rulemaking which, among other things, proposed
revisions to our locomotive preemption regulations.\5\ Specifically, we
proposed to delete 40 CFR 1074.12(b), which preempted the State control
of non-new locomotives for certain categories of State control measures
for a period of 133 percent of the useful life of a new locomotive or
engine,\6\ along with conforming edits.
[[Page 77005]]
Because this proposal was included in EPA's larger Phase 3 Heavy-Duty
Greenhouse Gas notice of proposed rulemaking, it shared and continues
to share a docket ID number with that proposal. We have decided to
finalize this locomotive preemption portion of the proposal as a
separate final rule, while preserving our discretion to take separate
final action on all other aspects of the proposal at a future date.
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\4\ Throughout this document, references to the regulation of
locomotives generally refer the regulation of both locomotives and
engines used in locomotives.
\5\ See, Greenhouse Gas Emissions Standards for Heavy-Duty
Vehicles-Phase 3; Proposed Rule, April 27, 2023, 88 FR 25926.
\6\ Including but not limited to emission standards, mandatory
fleet average standards, certification requirements, retrofit and
aftermarket equipment requirements, and non-Federal in-use testing
requirements.
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In this final rule, EPA is adopting the revisions to part 1074 as
proposed and with no further adjustments. We received overwhelming
support from commenters, as well as a few adverse comments. In this
preamble, we have highlighted only a few of those comments to explain
the basis of EPA's final locomotive preemption regulation. EPA has
prepared a comprehensive Response to Comments document, in which we
respond to all significant comments we received during the public
comment period on the issues addressed in this rule.\7\
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\7\ Response to Comments: Revisions to Preemption Regulations
for Locomotives and Locomotive Engines, EPA-420-R-23-032, available
at https://www.epa.gov/regulations-emissions-vehicles-and-engines/revisions-preemption-regulations-locomotives-and.
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II. Background
The CAA Amendments of 1990 called on EPA to adopt emission
standards for new locomotives and new locomotive engines that achieve
the greatest degree of emission reduction achievable through the
application of technology which EPA determines will be available for
the locomotives or engines, giving appropriate consideration to the
cost of applying such technology within the period of time available to
manufacturers and to associated noise, energy, and safety factors. CAA
section 213(a)(5), 42 U.S.C. 7547(a)(5).\8\ These 1990 amendments also
added CAA section 209(e) which sets out provisions that prohibit States
or any political subdivision thereof from regulating certain nonroad
engines or vehicles, provisions that set forth the requirement that EPA
must authorize California standards and other requirements relating to
the control of emissions from other nonroad vehicles and engines unless
specified criteria are found by EPA, and provisions that set forth how
States other than California can adopt California nonroad vehicle or
engine standards if certain criteria are met. Section 209(e)(2)
directed the Administrator of EPA to issue regulations to implement
section 209(e).
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\8\ EPA provides this discussion of the Federal locomotive
requirements under the CAA for background purposes only. In this
rulemaking, EPA did not reopen the Federal locomotive requirements,
and any comments on such are beyond the scope of the action and will
not be addressed here.
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In April of 1998, EPA adopted its first-ever regulations addressing
air pollutant emissions from new locomotives and new locomotive engines
(including freshly built and remanufactured) under CAA section
213(a)(5), 42 U.S.C. 7547(a)(5).\9\ As part of the 1998 final rule, EPA
also promulgated regulations designed to codify the nonroad preemption
provisions of section 209(e)(1)(B) to clarify the prohibition of any
State standard or other requirement relating to the control of
emissions from new locomotives or new engines used in locomotives.\10\
EPA's rule included a provision that set a period equivalent in length
to 133 percent of the regulatory useful life of a new locomotive or
engine during which certain categories of control measures are
preempted, whether applicable to new or other locomotives or locomotive
engines.\11\ EPA also adopted regulations to implement the CAA
provisions allowing California to request authorization for other State
requirements on non-new locomotives and engines used in locomotives not
otherwise prohibited.\12\
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\9\ Emission Standards for Locomotives and Locomotive Engines,
63 FR 18978 (April 16, 1998), codified at 40 CFR parts 85, 89 and
92. EPA's locomotive emission regulations were later moved to 40 CFR
part 1033. The preemption regulations were later transcribed at 40
CFR 1074.12; see 73 FR 59034 (Oct. 8, 2008).
\10\ EPA had previously set out the other nonroad preemption
provisions (except for locomotives) in 1994 (59 FR 36969) and
revised them in 1997 (62 FR 67733).
\11\ See Note 6.
\12\ To avoid confusion of the term ``used'' sometimes meaning
``placed or mounted,'' we employ the term ``non-new'' to describe
engines that do not meet the definition of ``new'' in Sec. 1074.5.
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As we explained in the April 27, 2023, proposed rule to amend part
1074, recent fleet profile data shows that the in-service locomotive
fleet continues to be dominated by Tier 2 and earlier locomotives
subject to EPA's less stringent emission standards.\13\ According to
data supporting EPA's 2020 National Emission Inventory, there are
16,787 locomotives in the Class I line-haul fleet.\14\ Of these, about
26 percent are Tier 3 or Tier 4 locomotives subject to more stringent
emission standards.\15\ The other 74 percent are Tier 2 or earlier
locomotives, broken down as follows: About 62 percent are
remanufactured to the revised remanufacture standards adopted in 2008;
11 percent have not been remanufactured and continue to have the higher
emissions of their original certification tier; and a small number,
about 1 percent, are unregulated (pre-1973) locomotives. The Class II
and III line-haul fleet consists of 3,447 locomotives. Of these, about
seven percent are Tier 3 or 4 locomotives. The other 93 percent are
Tier 2 or earlier, broken down as follows: About 39 percent of the
locomotives are unregulated (pre-1973); 48 percent are Tier 0; and the
other six percent are Tier 1 or Tier 2.
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\13\ 2020 National Emissions Inventory Locomotive Methodology
Prepared for U.S. Environmental Protection Agency by Eastern
Research Group, Inc. (May 19, 2022). https://gaftp.epa.gov/air/nei/2020/doc/supporting_data/nonpoint/Rail/2020_NEI_Rail_062722.pdf.
\14\ The current classification of railroads adopted by the
Surface Transportation Board (STB) in 2021 is based on annual
carrier operating revenue, as follows: Class I railroads, greater
than $943.9 million; Class II railroads, $42.4 to $943.9 million;
Class III railroads less than $42.4 million. See 49 CFR part 1201
(1-1 Classification of Carriers).
\15\ EPA took action to set additional emission standards for
new locomotives and engines in 2008; see final rule published at 73
FR 37096 (June 30, 2008), codified at 40 CFR part 1033, Control of
Emissions of Air Pollution From Locomotive Engines and Marine
Compression-Ignition Engines Less Than 30 Liters per Cylinder.
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In the April 27, 2023, proposal, we noted that there is interest
from entities who must develop State implementation plans (SIPs)
demonstrating attainment of national ambient air quality standards
(NAAQS) in obtaining greater emissions reductions from the locomotive
sector, including possibly adopting programs to achieve greater
emission reductions from non-new locomotives that are not required by
EPA's emissions standards for new locomotives and engines under CAA
section 213(a)(5). This interest is related to the large share of older
locomotives in the Class I, II, and III railroad fleets and their
emissions contribution to ambient concentrations of air pollution that
may violate the ozone and particulate matter NAAQS.
Nevertheless, the action taken here to revise our locomotive
preemption regulations does not achieve reductions of such emissions.
Rather, by aligning with the CAA, it may provide latitude for the
development of State approaches to addressing emissions from non-new
locomotives and non-new engines used in locomotives that are not
required to be reduced by EPA's emissions standards for new locomotives
and engines under CAA section 213(a)(5). In enacting the 1990 CAA
amendments and section 209(e) for nonroad equipment including non-new
locomotives, Congress recognized the unique role and air quality
concerns of California and clearly envisioned the
[[Page 77006]]
potential for California to regulate non-new locomotives. This is
plainly shown by the combination of statutory provisions--at CAA
sections 213(a)(5), 209(e)(1)(B), and 209(e)(2)(A)--that clearly show
that although EPA has exclusive authority to regulate emissions from
new locomotives and engines and certain other new nonroad engines and
vehicles, California retained the ability to seek authorization to
regulate ``other nonroad engines or vehicles,'' including those that
are non-new locomotives and locomotive engines. The purpose of EPA's
revisions is to effectuate this Congressional intent and the language
of the CAA whereby control measures for non-new locomotives must be
able to obtain authorization so long as they satisfy the criteria in
section 209(e) of the Act.
III. Regulatory Changes in This Final Rule
EPA is finalizing several revisions in 40 CFR part 1074, including
Sec. Sec. 1074.10, 1074.12, and 1074.101, to align EPA's regulations
with CAA section 209(e).
In 40 CFR 1074.10, ``Scope of preemption,'' we are revising Sec.
1074.10(b) to contain text that is currently located in Sec.
1074.12(a) and shifting the current text of Sec. 1074.10(b) into a new
Sec. 1074.10(c). This is solely a housekeeping measure and does not
revise the text contained in current Sec. 1074.12(a); it is only a
transcription.
We are deleting 40 CFR 1074.12, ``Scope of preemption-specific
provisions for locomotives and locomotive engines,'' in its entirety.
The previous text at 40 CFR 1074.12(b) preempted the State control of
non-new locomotives for certain categories of State control measures
for a period of 133 percent of useful life of a new locomotive or
engine.\16\ We believe the removal of the explicit period of preemption
in Sec. 1074.12(b) as well as the listed categories of State control
measures will reflect that not all State regulations addressing non-new
locomotives were intended by Congress to be preempted without the
possibility of obtaining a waiver of preemption and will align the
requirements and effects of the regulation with the plain language of
the CAA.
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\16\ See Note 6.
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In 40 CFR 1074.101, ``Procedures for California nonroad
authorization requests,'' we are finalizing a minor housekeeping edit
to paragraph (a) of this section, to refer to the relocated text in
Sec. 1074.10(b) that is being moved out of Sec. 1074.12.
IV. Comments Received and Responses
We received several comments expressing concerns about emissions
from non-new locomotives and their impact on communities, especially
for areas located along high traffic rail lines and/or in communities
with environmental justice concerns. We acknowledge these concerns
about the harmful impacts of locomotive emissions on these communities.
We received many comments supporting the removal of Sec. 1074.12(b),
including from the Environmental Defense Fund, the Moving Forward
Network, and the National Association of Clean Air Agencies. We are
finalizing the revisions as proposed.
Comments from industry on this topic include concerns from Wabtec
that EPA's proposed revisions could take away the stability and
predictability of a Federally-uniform regulatory program for new
locomotives and engines.\17\ We acknowledge the concern, but it is
misplaced. Only EPA has the authority to promulgate standards and
requirements that apply to new locomotives and new engines used in
locomotives, and this rule does nothing to change that exclusive
authority. California may not adopt and enforce standards or
requirements that apply to new locomotives or new engines used in
locomotives, as is plainly prohibited by section 209(e)(1)(B). As EPA
noted in the proposal, section 209(e)(2)(A) of the Act requires EPA to
authorize California's emission standards for certain nonroad engines
and vehicles, including for non-new locomotives and non-new engines
used in locomotives, so long as California meets the requirements of
that provision. Further, section 209(e)(2)(B) also allows certain
States to adopt California's standards so long as they meet the
statutory criteria. EPA's final rule aligns the regulation with these
clear statutory requirements.
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\17\ See comment from Westinghouse Air Brake Technologies
Corporation at EPA-HQ-OAR-2022-0985-1580-A1, pp. 8-9.
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In any case, we do not believe that our action improperly
diminishes the regulatory stability referred to by the commenter. The
underlying CAA preemption language protects manufacturers from having
to juggle compliance with conflicting State and Federal regulations of
new locomotives, and only EPA's regulations promulgated under CAA
section 213(a)(5) can impose compliance requirements on new locomotives
and new engines used in locomotives. There is no possibility, under
either the CAA or as a result of EPA's amended preemption regulations,
for California or any other State to adopt and enforce different
standards or other requirements that would apply to new locomotives or
new engines used in locomotives. In addition, EPA's authorization
process insulates manufacturers from State-level rules that could
significantly affect the design and manufacture of new locomotives or
new locomotive engines. Under this final rule, EPA remains obliged to
adhere to the statutory authorization criteria in CAA section
209(e)(2). EPA also intends to consider the reasoning of Allway Taxi in
reviewing any California rules submitted to EPA for authorization
pursuant to 40 CFR 1074.101 through 1074.105.\18\ A comment received
from the Association of American Railroads supports this point,
emphasizing that the removal of the categorical preemption of certain
types of State regulations that EPA has, to date, deemed likely to
significantly affect the design and manufacture of new locomotives or
new locomotive engines, does not change the underlying statutory
limitation against which EPA would evaluate a future request.\19\
Specifically, the statutory limitation referenced in that comment is
the one at CAA section 209(e)(2)(A), which requires the Administrator,
after notice and opportunity for public hearing, to authorize
California to adopt and enforce standards and other requirements
relating to the control of emissions from such nonroad vehicles or
engines not preempted by CAA section 209(e)(1) if California
[[Page 77007]]
determines that California standards will be, in the aggregate, at
least as protective of public health and welfare as applicable Federal
standards. Further, 209(e)(2)(A) states EPA shall not grant such
authorization if it finds that (1) the protectiveness determination of
California is arbitrary and capricious; (2) California does not need
such standards to meet compelling and extraordinary conditions; or (3)
California standards and accompanying enforcement procedures are not
consistent with CAA section 209.
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\18\ EPA notes, as set out in the notice of proposed rulemaking,
that in implementing this authorization authority it also expects to
continue to consider the reasoning of Allway Taxi v. City of New
York, 340 F. Supp. 1120 (S.D.N.Y 1972), aff 'd, 468 F.2d 624 (2d
Cir. 1972): ``We do not say that a state or locality is free to
impose its own emission control standards the moment after a new car
is bought and registered. That would be an obvious circumvention of
the Clean Air Act and would defeat the congressional purpose of
preventing obstruction to interstate commerce. The preemption
sections, however, do not preclude a state or locality from imposing
its own exhaust emission control standards upon the resale or
reregistration of the automobile. Nor do they preclude a locality
from setting its own standards for the licensing of vehicles for
commercial use within that locality. Such regulations would cause
only minimal interference with interstate commerce, since they would
be directed primarily to intrastate activities and the burden of
compliance would be on individual owners and not on manufacturers
and distributors.'' See also, Engine Manufacturers Ass'n v. EPA, 88
F.3d 1075, 1086 & n. 39 (D.C. Cir. 1996) (endorsing Allway Taxi
rationale); Engine Manufacturers Ass'n v. South Coast Air Quality
Management Dist., 541 U.S. 246, 254 (2004) (holding that Section
209(a) preempts certain State rules that would pressure
manufacturers to change the design of new engines even when ``not
en-forced through manufacturer-directed regulation'').
\19\ See comment from the Association of American Railroads &
American Short Line and Regional Railroad Association at EPA-HQ-OAR-
2022-0985-1492-A1, p. 4-5.
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We also received an adverse comment on this topic from the American
Free Enterprise Chamber of Commerce, claiming that the proposal did not
provide a compelling policy reason for deviating from the previous
approach to Federal preemption of State regulation of locomotives and
engines, whether new or other locomotives and engines.\20\ While EPA is
making a policy change to no longer categorically preempt State
regulation of non-new locomotives and engines, this final rule aligns
with the plain text of the CAA, is well supported by the factual record
including developments since the 1998 final rule, and better achieves
the legislative intent of providing for exclusive Federal regulation of
new locomotives and new locomotive engines while preserving the ability
of obtaining a waiver of preemption for regulating non-new locomotives
and engines.\21\ As we explain in section II of this document, the
final rule aligns EPA's regulations with the clear text of sections
213(a)(5), 209(e)(1)(B) and 209(e)(2)(A) of the CAA. While the agency
has discretion to establish further criteria for authorizations by
regulation beyond what are specified in the statute, as we did in the
1998 rule, the statute does not require this result.\22\ Rather, the
statute at section 209(e)(2) establishes a process where EPA
authorizes, on a case-by-case basis, certain California nonroad engine
and vehicle standards, including those applicable to non-new
locomotives, so long as they satisfy the criteria in section
209(e)(2)(A). The final rule faithfully implements this statutory
process for non-new locomotives and engines.
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\20\ See comment from the American Free Enterprise Chamber of
Commerce at EPA-HQ-OAR-2022-0985-1660-A1, p. 70.
\21\ Under governing caselaw, an agency may change policies so
long as it recognizes the change and articulates a good reason for
it. To the extent the commenter believes that some heightened
standard applies, such that a ``compelling'' justification is
required, that argument has not been raised with reasonable
specificity as required by CAA section 307(d)(7)(B), and in any
event is inconsistent with the caselaw. See F.C.C. v. Fox Television
Stations, Inc., 556 U.S. 502, 514-15 (2009).
\22\ NLRB v. Bell Aerospace Co., 416 U.S. 267, 294 (1974).
(``the choice between rulemaking and adjudication lies in the first
instance within the [agency's] discretion'').
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Moreover, EPA is making new factual findings that support the
change in policy. As explained in the April 27, 2023, proposal and
further explained in the Response to Comments document, we have
identified certain developments that indicate that the categorical
exclusion of some of the specified standards and requirements for 133
percent of the useful life period of new locomotives or engines is no
longer in all cases appropriate. We identified illustrative emissions
control technologies which have been voluntarily applied to non-new
locomotives and prima facie would not appear to significantly affect
the design or manufacture of new locomotives.\23\ In light of the
changed factual record, we believe that the 1998 rule's categorical bar
on certain types of controls for non-new locomotives is no longer
appropriate, and that instead, the agency ought to evaluate on a case-
by-case basis whether to authorize standards involving such controls
for non-new locomotives.
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\23\ 88 FR 26094-95.
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Finally, as we explained in the proposal, this rule better achieves
Congress's intent to differentiate between Federal regulation of new
locomotives and possible State regulation of non-new locomotives.
Although it is clear from the plain language of CAA sections 213(a)(5)
and 209(e)(1)(B) that only EPA is to regulate new locomotives and
engines, section 209(e)(2) contemplates that California may adopt
certain standards for non-new locomotives to address its air quality
problems, and that other States may follow California's lead.
Throughout section 209, Congress contemplated that authorizing
California's ``pioneering'' regulatory efforts would create a State-
level laboratory for innovation, driving experimentation in ``new
control systems and designs'' that would benefit the nation as a
whole.\24\ Although Congress, in section 209(e)(1)(B), precluded
California's ability to regulate new locomotives and engines, the 1998
final rule's categorical bar on certain controls whether applicable to
new or other locomotives and engines may have also precluded California
and other States from exploring innovative local programs to address
pollution from non-new locomotives and in turn achieving the potential
emissions reductions of such programs--programs that EPA could not
include in its emission standards under section 213(a)(5) that apply
only to new locomotives and engines. This final rule ensures that such
programs for non-new locomotives and engines may be authorized so long
as they meet the statutory authorization criteria and in turn yield
benefits for public health and the environment.
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\24\ S. Rep. No. 90-403, at 33.
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This action does not change the scope of preemption of State
regulation of new locomotives and new engines used by locomotives,
which is established by CAA section 209(e)(1). EPA agrees with the
commenter that we are making a policy change with regard to whether to
evaluate State regulation of non-new locomotives and engines at all,
but we are not changing any of the criteria for evaluating
authorization requests. On review of the extension of the preemption
provisions adopted in 1998 as reaching ``other locomotives or
locomotive engines,'' in addition to those that are ``new,'' without
preserving the authority under CAA section 209(e)(2) to consider for
authorization State regulation of the types of standards or
requirements listed at Sec. 1074.12(b), we now view the provisions at
Sec. 1074.12(b) as unnecessarily restricting such consideration beyond
what the statute requires at CAA section 209(e)(1)(B). Moreover, as
explained in the April 27, 2023, proposal, we have identified certain
developments that indicate that the categorial exclusion of some of the
specified standards and requirements for the 133 percent of the useful
life period of new locomotives or engines is no longer in all cases
appropriate. Consequently, we believe it is important that our
regulations not unnecessarily constrain EPA's future evaluation of a
State request for authorization to regulate non-new locomotives and
non-new engines used in locomotives under Sec. 1074.101. Indeed, one
reason for this revision is to eliminate any such constraint that is
apparent in current 40 CFR 1074.12(b).
EPA notes that concerns may exist related to authorization requests
that include forms of State controls that could significantly affect
the design or manufacture of a new locomotive or new engines used in
locomotives. As explained in the April 27, 2023, proposal, EPA
recognizes that significant advances in technology have occurred in the
intervening years since 1998, along with innovative forms of
regulations. Any State authorization application that includes
locomotive emission regulations would be subject to consideration of
whether such regulations significantly affect the design or manufacture
of a new
[[Page 77008]]
locomotive or new engine used in a locomotive to the extent such is
prohibited by section 209(e)(1)(B). EPA will evaluate any such
application on a case-by-case basis to determine if the controls may be
authorized under section 209(e)(2)(A) and 40 CFR 1074.101 through
1074.110.
Our proposed rule to revise the preemption language did not reopen
any aspect of the Federal regulatory program for new locomotives and
new engines used in locomotives set forth at 40 CFR part 1033.
Consequently, none of the changes to our preemption regulations will
have any impact on EPA's regulation of new locomotives or engines used
in locomotives (including freshly built and remanufactured) under 40
CFR part 1033. There are no potential costs or benefits to regulated
entities of any size as a result of these amendments to our preemption
regulations. Although several commenters on our proposed rule urged EPA
to take steps toward more stringent Federal emissions standards for
locomotives, those comments are beyond the scope of this rulemaking as
EPA did not propose or seek comments on any amendments to EPA's Federal
regulations to reduce the air emissions from new locomotives or new
engines used in locomotives. EPA reserves its discretion to revisit the
part 1033 regulations separately.
V. Statutory and Executive Order Reviews
Additional information about these statutes and Executive orders
can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 14094: Modernizing Regulatory Review
This action is not a significant regulatory action as defined in
Executive Order 12866, as amended by Executive Order 14094, and was
therefore not subject to a requirement for Executive Order 12866
review.
B. Paperwork Reduction Act (PRA)
This action does not impose an information collection burden under
the PRA because it does not contain any information collection
activities.
C. Regulatory Flexibility Act (RFA)
I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA. This
action will not impose any requirements on small entities. This rule
simply revises EPA's regulations to align with section 209 of the Clean
Air Act and to preserve for separate future adjudications under CAA
section 209(e)(2) whether a State rule addressing non-new locomotives
or engines would impermissibly relate to the control of emissions from
new locomotives or engines under section 209(e)(1). As a result of this
action alone there are no potential impacts to railroads, of any size.
D. Unfunded Mandates Reform Act (UMRA)
This action does not contain any unfunded mandate as described in
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect
small governments. The action imposes no enforceable duty on any State,
local, or Tribal governments or the private sector.
E. Executive Order 13132: Federalism
This action has federalism implications because these revisions to
part 1074 involve existing regulations that preempt State law under CAA
section 209(e). In this rule, EPA is revising our locomotive preemption
regulations to align with language Congress provided in section
209(e)(1)(B) and the congressional directive to EPA to implement the
prohibition of State regulation of new locomotives and new engines used
in locomotives while ensuring that States are not impeded from adopting
standards and other requirements relating to the control of emissions
as allowed by the CAA to address the contribution of air pollutant
emissions from non-new locomotives and non-new engines used in
locomotives to their air quality issues. EPA consulted with
representatives of various State and local governments in developing
this rule. Our outreach to State and local governments has satisfied
Executive Order 13132. EPA solicited and received comments on this
revision from many State and local officials. Specifically, we received
a letter with strongly supportive comments signed by officials from 12
States, as well as supportive comments from the Ozone Transport
Commission, National Association of Clean Air Agencies (NACAA), and
Northeast States for Coordinated Air Use Management (NESCAUM).
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have Tribal implications as specified in
Executive Order 13175. Thus, Executive Order 13175 does not apply to
this action. This action does not have substantial direct effects on
one or more Indian tribes, on the relationship between the Federal
Government and Indian tribes, or on the distribution of power and
responsibilities between the Federal Government and Indian tribes. In
the development of the proposed Greenhouse Gas Emissions Standards for
Heavy-Duty Vehicles--Phase 3 and this final rule, EPA engaged with our
Tribal stakeholders. We did so primarily by offering government-to-
government consultation upon request but also offered information
sessions and presentations to Tribal audiences.
G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
EPA interprets Executive Order 13045 as applying only to those
regulatory actions that concern environmental health or safety risks
that EPA has reason to believe may disproportionately affect children,
per the definition of ``covered regulatory action'' in section 2-202 of
the Executive order.
This action is not subject to Executive Order 13045 because it does
not concern an environmental health risk or safety risk. Since the
action does not concern human health, EPA's Policy on Children's Health
also does not apply.
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This action is not subject to Executive Order 13211, because it is
not a significant regulatory action under Executive Order 12866.
I. National Technology Transfer and Advancement Act (NTTAA) and 1 CFR
Part 51
This rulemaking does not involve technical standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations and
Executive Order 14096: Revitalizing Our Nation's Commitment to
Environmental Justice for All
EPA believes that this type of action does not concern human health
or environmental conditions and therefore cannot be evaluated with
respect to potentially disproportionate and adverse effects on
communities with environmental justice concerns. This rule does not
achieve reductions of locomotive emissions.
Although this action does not concern human health or environmental
conditions, EPA recognizes that locomotive emissions are an
environmental justice concern, and we promoted meaningful involvement
in
[[Page 77009]]
several ways. For example, we contacted individuals in environmental
justice groups about the proposal and provided information about the
public hearings and the comment period; provided information on our
website in both Spanish and English; and provided Spanish translation
during the public hearings. We received and considered comments from
those with environmental justice concerns, as described in the Response
to Comments document.\25\
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\25\ See Note 7.
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K. Congressional Review Act
This action is subject to the CRA, and the EPA will submit a rule
report to each House of the Congress and to the Comptroller General of
the United States. This action is not a ``major rule'' as defined by 5
U.S.C. 804(2).
VI. Statutory Authority and Legal Provisions
Statutory authority for these revisions to our preemption
regulations is found in CAA section 209(e)(2)(B), 42 U.S.C.
7543(e)(2)(B), which requires EPA to promulgate regulations
implementing CAA section 209(e), which in turn addresses the
prohibition of State standards regarding certain classes of new nonroad
engines or new nonroad vehicles including new locomotives and new
engines used in locomotives, as well as EPA's authorization criteria
for certain California standards for other nonroad engines or nonroad
vehicles.
VII. Judicial Review and Administrative Reconsideration
Under CAA section 307(b)(1), judicial review of this final action
is available only by filing a petition for review in the United States
Court of Appeals for the District of Columbia Circuit (the Court) by
January 8, 2024. Under CAA section 307(b)(2), the requirements
established by this final rule may not be challenged separately in any
civil or criminal proceedings brought by the EPA to enforce the
requirements. Section 307(d)(7)(B) of the CAA further provides that
only an objection to a rule or procedure which was raised with
reasonable specificity during the period for public comment (including
any public hearing) may be raised during judicial review. This section
also provides a mechanism for the EPA to reconsider the rule if the
person raising an objection can demonstrate to the Administrator that
it was impracticable to raise such objection within the period for
public comment or if the grounds for such objection arose after the
period for public comment (but within the time specified for judicial
review) and if such objection is of central relevance to the outcome of
the rule. Any person seeking to make such a demonstration should submit
a Petition for Reconsideration to the Office of the Administrator, U.S.
EPA, Room 3000, WJC South Building, 1200 Pennsylvania Ave. NW,
Washington, DC 20460, with a copy to both the person(s) listed in the
preceding FOR FURTHER INFORMATION CONTACT section, and the Associate
General Counsel for the Air and Radiation Law Office, Office of General
Counsel (Mail Code 2344A), U.S. EPA, 1200 Pennsylvania Ave. NW,
Washington, DC 20460. Under CAA section 307(b)(1), the filing of a
petition for reconsideration shall not affect the finality of the rule
for purposes of judicial review nor extend the time within which a
petition for judicial review may be filed, and shall not postpone the
effectiveness of the rule.
List of Subjects in 40 CFR Part 1074
Environmental protection, Administrative practice and procedure,
Air pollution control, Locomotives, Nonroad engines, Scope of
preemption.
Michael S. Regan,
Administrator.
For the reasons set out in the preamble, EPA amends title 40,
chapter I of the Code of Federal Regulations as set forth below.
PART 1074--PREEMPTION OF STATE STANDARDS AND PROCEDURES FOR WAIVER
OF FEDERAL PREEMPTION FOR NONROAD ENGINES AND NONROAD VEHICLES
0
1. The authority citation for part 1074 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
Subpart A--Applicability and General Provisions
0
2. Amend Sec. 1074.10 by revising paragraph (b) and adding paragraph
(c) to read as follows:
Sec. 1074.10 Scope of preemption.
* * * * *
(b) States and localities are preempted from adopting or enforcing
standards or other requirements relating to the control of emissions
from new locomotives and new engines used in locomotives.
(c) For nonroad engines or vehicles other than those described in
paragraphs (a) and (b) of this section, States and localities are
preempted from enforcing any standards or other requirements relating
to control of emissions from nonroad engines or vehicles except as
provided in subpart B of this part.
Sec. 1074.12 [Removed]
0
3. Remove Sec. 1074.12.
Subpart B--Procedures for Authorization
0
4. Amend Sec. 1074.101 by revising paragraph (a) to read as follows:
Sec. 1074.101 Procedures for California nonroad authorization
requests.
(a) California must request authorization from the Administrator to
enforce its adopted standards and other requirements relating to
control of emissions from nonroad engines or vehicles that are not
preempted by Sec. 1074.10(a) or (b). The request must include the
record on which the State rulemaking was based.
* * * * *
[FR Doc. 2023-24513 Filed 11-7-23; 8:45 am]
BILLING CODE 6560-50-P