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Federal Register / Vol. 62, No. 28 / Tuesday, February 11, 1997 / Proposed Rules6397affect how a manufacturer designs anew locomotive or new locomotiveengine (including both freshlymanufactured and remanufacturedunits). 26 Such state regulation would beconsidered as ‘‘relating to the control ofemissions from (new locomotives orlocomotive engines)’’ and would bepreempted. This interpretationappropriately implements Congressionalintent, in the unique circumstancesapplicable to locomotives. It is alsoconsistent with the case law interpretinga similar provision that applies to statemotor vehicle controls.In Allway Taxi v. City of New York 27 ,the court discussed the scope of federalpreemption under section 209(a), whichprohibits state or local standardsrelating to the control of emissions fromnew motor vehicles, and noted that thedefinition of ‘‘new motor vehicle’’ insection 216 of the Clean Air Act‘‘reveals a clear Congressional intent topreclude states and localities fromsetting their own exhaust emissioncontrol standards only with respect tothe manufacture and distribution of newautomobiles.’’ 28 The court concludedthat while Congress did not preemptstates from regulating the use ormovement of motor vehicles after theyare no longer new, a state or locality isnot free to impose its own emissioncontrol standards on motor vehicles thatare no longer new where that wouldcircumvent the Congressional purposeof preventing obstruction to interstatecommerce.In an earlier rulemaking action, EPAdiscussed the application of the AllwayTaxi case to non-road vehicles andengines other than locomotives, andstated that the Agency expected theprinciples of Allway Taxi to apply tostate adoption of emission controls onnon-road vehicles and engines after theyare no longer new. See 59 FR 36969,36973 (July 20, 1994). In that notice,EPA stated that the Agency expected thesame reasoning and policy would alsoapply to locomotives, although theimplementation of that policy woulddepend on the ultimate definition of‘‘new locomotive.’’ EPA today proposesto apply the same principles to stateregulation of emissions fromlocomotives; however, because ofcompelling factual and policyconsiderations relating to regulation oflocomotives as compared to regulation26 The proposed approach is intended to addressreal and concrete effects, whether or not large;however, it is not intended to address speculativeor trivial effects.27 Allway Taxi, Inc. v. City of New York, 340F.Supp. 1120 (S.D.N.Y.), aff’d, 468 F.2d. 624 (2d.Cir. 1972).28 340 F.Supp. at 1124.of motor vehicles and other nonroadvehicles and engines, theimplementation of these principleswould be expected to differ to asignificant degree.In the context of motor vehicleregulation, the Allway Taxi court notedthat a state’s imposition of its ownemission control requirementsimmediately after a new motor vehicleis purchased by an ultimate consumerand registered would be ‘‘an obviouscircumvention of the Clean Air Act andwould defeat the Congressional purpose(in preempting states from regulatingemissions from new motor vehicles) ofpreventing obstruction to interstatecommerce.’’ 29 However, states mayimpose emission control standards aftersome period of time following the saleof a motor vehicle, provided that thosestandards would not require a vehiclemanufacturer to redesign a new motorvehicle. The court stated that suchrequirements, such as standardsdirected primarily at intrastate activitieswhere the burden of compliance doesnot effectively impact manufacturersand distributors, cause only minimalinterference with interstate commerce. 30Applying this analysis to stateregulation of locomotives, section209(e)(1)(B) and the regulationsproposed today would preempt statesfrom adopting in-use regulationsrelating to the control of emissions thatwould be expected to affect how amanufacturer designs a new locomotiveor new locomotive engine (includingboth freshly manufactured andremanufactured engines). Such a statestandard would be considered as‘‘relating to the control of emissionsfrom [new locomotives or locomotiveengines]’’ and would be preempted. Thepractical effect of applying theprinciples of Allway Taxi tolocomotives is different than for othermobile sources because of the nature ofthe relationship between locomotivemanufacturers and their customers(railroad operators). Emission relatedrequirements imposed on railroads canreasonably be expected to have a verysignificant effect on locomotivemanufacturers and remanufacturers.This is especially true of the Class Irailroads which purchase nearly all ofthe freshly manufactured locomotives.With so few primary customers,manufacturers and remanufacturersmust be very responsive to changes indesign requested by these railroads.Although there are significantly morenon-Class I railroads than there areClass I railroads, their number is still29 Id.30 Id.fairly small. Therefore, staterequirements on railroads are muchmore likely to effect changes in howmanufacturers and remanufacturersdesign new locomotives and newlocomotive engines than would similarrequirements on end users of othermobile sources, such as automobileowners. The fact that locomotiveengines become new again when theyare remanufactured will also have aneffect on how the principles of AllwayTaxi are applied. EPA solicits commenton this interpretation of Allway Taxi asapplied to locomotive regulation.In addition to the unique factualcircumstances surrounding locomotives,there are compelling policy reasons thatsupport uniform, national regulation oflocomotive emissions. The legislativehistory of section 209(e) indicates thatCongress intended a broad preemptionof any state regulation of emissions fromnew locomotives or new locomotiveengines, in large part because of thesignificant interstate commerceconcerns raised by state-by-stateregulation of locomotives. The Housebill would have preempted states fromregulating emissions from all newnonroad engines and vehicles. 31 Bycontrast, the Senate bill contained nopreemption of state regulation ofnonroad engines. 32 In conference, theHouse and Senate agreed to limit theHouse bill’s broad preemption, andprohibited state standards and otherrequirements for only two categories ofnonroad vehicles and engines: new farmand construction equipment of 175 hpor less, and new locomotives. 33 Thefollowing statement made by Rep.Dingell during the House debate on theSenate bill indicates Congress’ concernthat state regulation of locomotives inparticular could result in a disruption ofinterstate commerce:With regard to (new locomotives and newengines used in locomotives), we balancedthe need to control emissions from newlocomotives against our belief that Stateefforts to regulate locomotive emissions oroperations would impose an unconstitutionalburden on interstate commerce. 34The legislative history of section209(e) does not contain a similarstatement regarding any other categoryof nonroad vehicles, indicating31 2 A Legislative History of the 1990 Clean AirAct Amendments of 1990 at 3092 (1993).32 3 A Legislative History of the Clean Air ActAmendments of 1990 at 4370 (1993).33 California was permitted to promulgate andenforce state standards and other requirements forother nonroad engines, if it received authorizationfrom EPA. Other states could then promulgatestandards identical to California’s for these otherengines.34 1 Legislative History of Clean Air ActAmendments of 1990 at 1126 (1993).