[Federal Register Volume 89, Number 39 (Tuesday, February 27, 2024)]
[Notices]
[Pages 14484-14486]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-03955]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-11737-01-OAR]


California State Nonroad Engine Pollution Control Standards; In-
Use Locomotive Regulation; Requests for Authorization; Opportunity for 
Public Hearing and Comment

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of opportunity for public hearing and comment.

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SUMMARY: The California Air Resources Board (CARB) has notified the EPA 
that it has adopted its In-Use Locomotive Regulation. By letter dated 
November 7, 2023, CARB requested that the EPA authorize the In-Use 
Locomotive Regulation pursuant to section 209(e) of the Clean Air Act 
(CAA). This notice announces that the EPA will hold a public hearing to 
consider California's authorization request and that the EPA is now 
accepting written comments on the request.

DATES: 
    Comments: Written comments must be received on or before April 22, 
2024.
    Public Hearing: The EPA will hold a public hearing on March 20, 
2024. See SUPPLEMENTARY INFORMATION for further information on the 
virtual public hearing and registration. Additional information 
regarding the virtual public hearing and this action can be found at: 
https://www.epa.gov/regulations-emissions-vehicles-and-engines/virtual-public-hearing-californias-use-locomotive.

ADDRESSES: 
    Comments: You may submit your comments, identified by Docket ID No. 
EPA-HQ-OAR-2023-0574 by any of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov 
(our preferred method). Follow the online instructions for submitting 
comments.
     Email: [email protected].
     Mail: U.S. Environmental Protection Agency, EPA Docket 
Center, OAR, Docket EPA-HQ-OAR-2023-0574, Mail Code 28221T, 1200 
Pennsylvania Avenue NW, Washington, DC 20460.
     Hand Delivery or Courier (by scheduled appointment only): 
EPA Docket Center, WJC West Building, Room 3334, 1301 Constitution 
Avenue NW, Washington, DC 20004. The Docket Center's hours of 
operations are 8:30 a.m.-4:30 p.m., Monday-Friday (except federal 
holidays).
    Instructions: All submissions received must include the Docket ID 
No. for this action. Comments received may be posted without change to 
https://www.regulations.gov, including any personal information 
provided. For detailed instructions on sending comments and additional 
information on the process for this action, see the ``Public 
Participation'' heading of the SUPPLEMENTARY INFORMATION section of 
this document. For the full EPA public comment policy, information 
about confidential business information (CBI) or multimedia 
submissions, and general guidance on making effective comments, please 
visit: http://www.epa.gov/dockets/commenting-epa-dockets.
    Public Hearing: The virtual public hearing will be held on March 
20, 2024. The hearing will begin at 10 a.m. eastern daylight time and 
will end when all parties who wish to speak have had an opportunity to 
do so. All hearing attendees (including even those who do not intend to 
provide testimony) should register for the public hearing March 13, 
2024. Information on how to register for the virtual hearing can be 
found at https://www.epa.gov/regulations-emissions-vehicles-and-engines/virtual-public-hearing-californias-use-locomotive.

FOR FURTHER INFORMATION CONTACT: David Dickinson, Office of

[[Page 14485]]

Transportation and Air Quality, U.S. Environmental Protection Agency; 
Telephone number: (202) 343-9256; Email address: 
[email protected].

SUPPLEMENTARY INFORMATION: 

I. CARB's Authorization Request

    CARB's November 7, 2023, letter to the EPA Administrator notified 
the EPA that CARB had finalized its In-Use Locomotive Regulation.\1\ 
The In-Use Locomotive Regulation, adopted by the Board on April 27, 
2023, (approved by California's Office of Administrative Law (OAL) on 
October 27, 2023, and becoming effective on January 1, 2024) contains 
several provisions that apply to any locomotive operator that operates 
a locomotive in the State of California or to a delegate of that 
operator and applies only to locomotives and locomotive engines placed 
into service in California and only to an operator or delegate's 
operations inside California.\2\ The explanation of the In-Use 
Locomotive Regulation provided below is based on CARB's description of 
its regulation and is not an exhaustive list of the requirements 
(interested parties are encouraged to review CARB's rulemaking record 
contained in its authorization request and found in the EPA's docket 
associated with the review of the authorization request).
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    \1\ Title 13, California Code of Regulations, section 2478.
    \2\ CARB's Authorization Support Document at 3-4 (EPA Docket: 
EPA-HQ-OAR-2023-0574). A full description of CARB's In-Use 
Locomotive Regulation can be found in the Authorization Support 
Document submitted by CARB along with associated attachments that 
can be found in the EPA docket for this matter.
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    The In-Use Locomotive Regulation includes a ``Spending Account'' 
provision, whereby annually, for each locomotive operated in 
California, locomotive operators are required to deposit funds into a 
Spending Account. The account operates as a restricted trust, held by 
the locomotive operator, with the funds able to be withdrawn for 
specific uses described within the regulation.\3\
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    \3\ CARB's Authorization Support Document at 4-5.
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    The In-Use Locomotive Regulation also includes an ``In-Use 
Locomotive Operational Requirement'' that according to CARB starts 
January 1, 2030, and allows only locomotives with an original engine 
build date less than 23 years old to operate in California excepting 
locomotives that meet the current cleanest EPA Tier (currently Tier 4) 
of emission standards for a locomotive of its type, that are operated 
in a Zero Emission (ZE) configuration while in California,\4\ or that 
satisfy other specified conditions. CARB's authorization request notes 
that if a locomotive has been remanufactured or repowered to a Tier 4 
or cleaner emissions standard prior to January 1, 2030, the original 
engine build date will be based on the first year the locomotive was 
remanufactured to the Tier 4 or cleaner standard.\5\
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    \4\ CARB explains the ZE Configuration concept in its 
Authorization Support Document at 4 (``an operational configuration 
for the locomotive that emits no pollution, regardless of whether 
the locomotive might emit pollution when operated differently'').
    \5\ CARB Authorization Support Document at 5-6.
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    As an alternative to the spending account and the operational 
requirements, the In-Use Locomotive Regulation includes an 
``Alternative Compliance Plan (ACP)'' provision that allows regulated 
locomotive operators to comply with the Spending Account and/or In-Use 
Operational Requirements using a project or projects that achieve 
equivalent emissions reductions within three miles of the operators' 
locomotive activities within California.\6\
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    \6\ Id. at 6.
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    The In-Use Locomotive Regulation includes an idling requirement. 
According to CARB, locomotive ``operators must ensure that an Automatic 
Engine Stop Start (AESS) equipped locomotive is shut off no more than 
30 minutes after the locomotive becomes stationary. A locomotive may 
only exceed 30 minutes of idling for the following reasons: to prevent 
engine damage such as to prevent the engine coolant from freezing; to 
maintain air pressure for brakes or starter system, or to recharge the 
locomotive battery; to perform necessary maintenance; or to otherwise 
comply with federal or state regulations.'' \7\
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    \7\ Id. at 7.
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    CARB's regulation also imposes registration, reporting and 
recordkeeping requirements on locomotive operators for all locomotive 
activity in California. Locomotive operators are required to register 
all locomotives operating within the State by July 1, 2026.\8\
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    \8\ Id.
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    CARB's authorization request also includes a description of 
compliance exemptions and extensions that are provided to locomotive 
operators for enhanced flexibility to comply with the Spending Account 
and In-Use Operational Requirements.\9\
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    \9\ Id. at 8.
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II. Scope of Preemption and Criteria for an Authorization Under the 
Clean Air Act

    Section 209(e)(1) of the CAA prohibits all states and local 
governments from adopting or attempting to enforce any standard or 
other requirement relating to the control of emissions from certain 
types of new nonroad engines or nonroad vehicles, including both ``(A) 
New engines which are used in construction equipment or vehicles or 
used in farm equipment or vehicles and which are smaller than 175 
horsepower'' and ``(B) New locomotives or new engines used in 
locomotives.'' \10\ Section 209(e)(2)(A) of the CAA, however, 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 nonroad engines 
and vehicles otherwise not prohibited under section 209(e)(1) if 
California determines that California standards will be, in the 
aggregate, at least as protective of public health and welfare as are 
applicable Federal standards. However, the EPA shall not grant such 
authorization if it finds that (1) the determination of California is 
arbitrary and capricious; (2) California does not need such California 
standards to meet compelling and extraordinary conditions; or (3) 
California standards and accompanying enforcement procedures are not 
consistent with [CAA section 209].\11\
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    \10\ 42 U.S.C. 7543(e)(1).
    \11\ 42 U.S.C. 7543(e)(2)(A).
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    On July 20, 1994, the EPA promulgated a rule that sets forth, among 
other things, regulations providing the criteria, as found in section 
209(e)(2)(A), that the EPA must consider before granting any California 
authorization request for nonroad engine or vehicle emission 
standards.\12\ The EPA revised these regulations in 1997.\13\ As stated 
in the preamble to the 1994 rule, the EPA has historically interpreted 
the section 209(e)(2)(A)(iii) ``consistency'' inquiry to require, at 
minimum, that California standards and enforcement procedures be 
consistent with section 209(a), section 209(e)(1), and section 
209(b)(1)(C) (as the EPA has interpreted that subsection in the context 
of section 209(b) motor vehicle waivers).\14\ In addition, on November 
8, 2023, the EPA revised the regulatory language regarding the scope of

[[Page 14486]]

preemption pertaining to locomotives within section 209(e)(1)(B).\15\ 
The action taken in the rulemaking was to align the scope of preemption 
applicable to new locomotives and new engines used in locomotives to be 
the same as the scope of preemption for other new nonroad engines and 
vehicles preempted within section 209(e)(1)(A). The scope of preemption 
applicable to new locomotives can be found at 40 CFR 1074.10, and the 
criteria for granting California authorization requests can be found at 
40 CFR 1074.105. Provisions pertaining to the adoption of California 
nonroad standards by other states can be found at 40 CFR 1074.110.
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    \12\ 59 FR 36969 (July 20, 1994).
    \13\ 62 FR 67733 (December 30, 1997). The preemption regulations 
were later transcribed at 40 CFR part 1074; see 73 FR 59034 (Oct. 8, 
2008).
    \14\ 59 FR 36969 (July 20, 1994).
    \15\ 88 FR 77004 (November 8, 2023). In this authorization 
action, the EPA is not reopening the locomotive preemption 
rulemaking from November 8, 2023. Any public comments on the 
rulemaking that are not germane to this authorization action may not 
be addressed in the EPA's final decision regarding CARB's 
authorization request.
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    In order to be consistent with section 209(a), California's nonroad 
standards and enforcement procedures must not apply to new motor 
vehicles or new motor vehicle engines. To be consistent with section 
209(e)(1), California's nonroad standards and enforcement procedures 
must not attempt to regulate engine categories that are permanently 
preempted from state regulation (such as ``. . .any standard or other 
requirement relation to the control of emissions from . . .(B) New 
locomotives or new engines used in locomotives.''). To determine 
consistency with section 209(b)(1)(C), EPA typically reviews nonroad 
authorization requests under the same ``consistency'' criteria that are 
applied to motor vehicle waiver requests. Pursuant to section 
209(b)(1)(C), the Administrator shall not grant California a motor 
vehicle waiver if she finds that California ``standards and 
accompanying enforcement procedures are not consistent with section 
202(a)'' of the Act. Previous decisions granting waivers and 
authorizations have noted that state standards and enforcement 
procedures are inconsistent with section 202(a) if: (1) there is 
inadequate lead time to permit the development of the necessary 
technology giving appropriate consideration to the cost of compliance 
within that time, or (2) the federal and state testing procedures 
impose inconsistent certification requirements.\16\
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    \16\ 78 FR 58090, 58092 (September 20, 2013).
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III. EPA's Request for Comments

    We request comment on whether California's In-Use Locomotive 
Regulation meets the criteria for an EPA authorization. Specifically, 
we request comment on: (a) whether CARB's determination that its 
standards, in the aggregate, are at least as protective of public 
health and welfare as applicable federal standards is arbitrary and 
capricious, (b) whether California needs such standards to meet 
compelling and extraordinary conditions, and (c) whether California's 
standards and accompanying enforcement procedures are consistent with 
section 209 of the Act. As explained above, the EPA considers several 
provisions with regard to the consistency with section 209 of the Act 
criterion.

IV. Procedures for Public Participation

    The virtual public hearing will be held on March 20, 2024. The 
hearing will begin at 10 a.m. eastern daylight time. All hearing 
attendees (including those who do not intend to provide testimony and 
merely listen) should register for the public hearing at: https://www.epa.gov/regulations-emissions-vehicles-and-engines/virtual-public-hearing-californias-use-locomotive.
    Those seeking to register should do so by March 13, 2024. If you 
require the services of a translator or special accommodations such as 
American Sign Language, please pre-register for the hearing and 
describe your needs by March 13, 2024. The EPA may not be able to 
arrange accommodations without advance notice. Please note that any 
updates made to any aspect of the hearing will be posted online at: 
https://www.epa.gov/regulations-emissions-vehicles-and-engines/virtual-public-hearing-californias-use-locomotive. While the EPA expects the 
hearing to go forward as set forth above, please monitor the website or 
contact the person listed in the FOR FURTHER INFORMATION CONTACT 
section to determine if there are any updates. The EPA does not intend 
to publish a document in the Federal Register announcing updates.
    Each commenter will have 3 minutes to provide oral testimony. The 
EPA may ask clarifying questions during the oral presentations but will 
not respond to the presentations at that time. The EPA recommends 
submitting the text of your oral comments as written comments to the 
docket for this action. Written statements and supporting information 
submitted during the comment period will be considered with the same 
weight as oral comments and supporting information presented at the 
public hearing. The Agency will make a verbatim record of the 
proceedings at the hearing that will be placed in the docket. The EPA 
will keep the record open until April 22, 2024. After expiration of the 
comment period, the Administrator will render a decision on CARB's 
request based on the record of the public hearing, relevant written 
submissions, and other information that he deems pertinent.

Karl Simon,
Director, Transportation Climate Division, Office of Transportation and 
Air Quality.
[FR Doc. 2024-03955 Filed 2-26-24; 8:45 am]
BILLING CODE 6560-50-P