77004 Federal Register / Vol. 88, No. 215 / Wednesday, November 8, 2023 / Rules and Regulations 

1NAICS Association. NAICS & SIC Identification 

Tools. Available online: https://www.naics.com/ 

search. 

2Section 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. 

3See 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). 

4Throughout this document, references to the 

regulation of locomotives generally refer the 

regulation of both locomotives and engines used in 

locomotives. 

5See, 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 

subject to the limitations of 5 U.S.C. 

552a(k)(5); 5 U.S.C. 552a(c)(3); (d); 

(e)(1), (4)(H); and (f)(2) through (5). 

(ii) To the extent that records in EPA 

40 and 100 reveal a violation or 

potential violation of law, then an 

exemption under 5 U.S.C. 552a(k)(2) is 

also claimed for these records. EPA 40 

and 100 are also exempt under 5 U.S.C. 

552a(j)(2). 

(5) Reasons for exemption. EPA 36, 

40, and 100 are exempted from the 

above provisions of the PA for the 

following reasons: 

* * * * * 

[FR Doc. 2023–24233 Filed 11–7–23; 8:45 am] 

BILLING CODE 6560–50–P 

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. 

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: nelson.brian@

epa.gov. 

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. 

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

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. 


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requirements, and non-Federal in-use testing 

requirements. 

7Response to Comments: Revisions to 

Preemption Regulations for Locomotives and 

Locomotive Engines, EPA–420–R–23–032, available 

at https://www.epa.gov/regulations-emissionsvehicles-and-engines/revisions-preemptionregulations-locomotives-and. 

8EPA 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. 

9Emission 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). 

10EPA 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). 

11See Note 6. 

12To 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 

§ 1074.5. 

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. 

14The 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). 

15EPA 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. 

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. 

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

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). 

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

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 (pre1973) 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. 

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 


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16See Note 6. 

17See comment from Westinghouse Air Brake 

Technologies Corporation at EPA–HQ–OAR–2022– 

0985–1580–A1, pp. 8–9. 

18EPA 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 enforced through manufacturer-directed regulation’’). 

19See 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. 

potential for California to regulate nonnew 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 nonnew 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 §§ 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 

§ 1074.10(b) to contain text that is 

currently located in § 1074.12(a) and 

shifting the current text of § 1074.10(b) 

into a new § 1074.10(c). This is solely a 

housekeeping measure and does not 

revise the text contained in current 

§ 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 § 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. 

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 § 1074.10(b) that is being moved out 

of § 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 § 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. 

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 


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20See comment from the American Free 

Enterprise Chamber of Commerce at EPA–HQ– 

OAR–2022–0985–1660–A1, p. 70. 

21Under 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). 

22NLRB 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’’). 

23 88 FR 26094–95. 

24S. Rep. No. 90–403, at 33. 

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. 

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. 

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 nonnew locomotives is no longer 

appropriate, and that instead, the 

agency ought to evaluate on a case-bycase basis whether to authorize 

standards involving such controls for 

non-new locomotives. 

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 nonnew 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 nonnew 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. 

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 § 1074.12(b), we now view the 

provisions at § 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 nonnew engines used in locomotives under 

§ 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 


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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/lawsregulations/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 


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Federal Register / Vol. 88, No. 215 / Wednesday, November 8, 2023 / Rules and Regulations 77009 

25See Note 7. 

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

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 

■ 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 

■ 2. Amend § 1074.10 by revising 

paragraph (b) and adding paragraph (c) 

to read as follows: 

§ 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. 

§ 1074.12 [Removed] 

■ 3. Remove § 1074.12. 

Subpart B—Procedures for 

Authorization 

■ 4. Amend § 1074.101 by revising 

paragraph (a) to read as follows: 

§ 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 

§ 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 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 73 

[MB Docket No. 23–296; RM–11964; DA 23– 

1030; FR ID 183180] 

Television Broadcasting Services Des 

Moines, Iowa 

AGENCY: Federal Communications 

Commission. 

ACTION: Final rule. 

SUMMARY: The Video Division, Media 

Bureau (Bureau) has before it a notice of 

proposed rulemaking issued in response 

to a petition for rulemaking filed by 

Iowa Public Broadcasting Board 

(Petitioner), the licensee of 

noncommercial educational television 

PBS member station KDIN–TV (KDIN– 

TV or Station), channel *11, Des 

Moines, Iowa. The Petitioner has 

requested the substitution of channel 

*34 in place of channel *11 at Des 

Moines in the Table of TV Allotments, 

and requested that we delete vacant 

channel *34, Ames, Iowa (Ames) and 

substitute it with the allotment of vacant 

channel *21 to Ames. Petitioner filed 

comments in support of the petition, as 

required by the Commission’s rules 

(rules), reaffirming its commitment to 

apply for channel *34. 

DATES: Effective November 8, 2023. 

FOR FURTHER INFORMATION CONTACT: 

Emily Harrison, Media Bureau, at (202) 

418–1665 or Emily.Harrison@fcc.gov. 


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