Locomotives and Locomotive Engines; Preemption of State and Local Regulations, 77004-77009 [2023-24513]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[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\
---------------------------------------------------------------------------

    \25\ See Note 7.
---------------------------------------------------------------------------

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