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6398 Federal Register / Vol. 62, No. 28 / Tuesday, February 11, 1997 / Proposed RulesCongress’ specific concern with theinterstate commerce burden that couldresult from state regulation of newlocomotives. Therefore, EPA believesthat it is appropriate and reasonable tointerpret section 209(e)(1)(B) aspreempting states from adopting anyregulation that affects how amanufacturer designs (or produces) newlocomotives or new locomotive engines(including remanufactured engines).This will implement the Congressionalintent that interstate operation oflocomotives not be burdened by suchstate emissions regulations. 35 EPA isproposing a regulatory provision thatcodifies this approach in today’s notice,and solicits comment on this issue.EPA recognizes that certainty withrespect to when state controls would bepreempted would be advantageous tostates and localities, as well as toindustry; therefore, EPA is proposing todefine the time period of preemptionunder section 209(e)(1)(B) moreexplicitly than in previous rules, forpurposes of locomotives and locomotiveengines. During this time, given therelationship between manufacturers andrailroads, a broad range of potential inusecontrols would be expected to affecthow a manufacturer designs or producesnew engines, and would be preemptedduring this time period. Those controlsare discussed later in this section.EPA believes that a period ofpreemption similar to but slightly longerthan the useful life of the locomotive isappropriate (where useful life isapproximately the average life of alocomotive between rebuilds and is alsothe period that locomotives would berequired to remain in compliance withfederal emissions standards). Thisapproach would effectively provide therailroads with some flexibility withrespect to scheduling when eachlocomotive is to be remanufactured, andit is consistent with the criteria forpreemption, as discussed in thefollowing paragraphs. To balance theneed for such flexibility with EPA’sconcerns about emissions reductions theAgency is proposing that the period ofpreemption be 25 percent longer thanthe applicable useful life of alocomotive. For example, for alocomotive with a useful life of 30,000MW-hr which reached the end of itsuseful life after 50 months of service,this period would be 7,500 MW-hr orabout 12.5 months of additional service(assuming the same rate of use). Basedon an analysis of current35 The Commerce Clause of the U.S. Constitutionis, of course, an additional limitation on stateauthority that is independent of federal preemptionunder the Clean Air Act. The regulations proposedtoday are based on section 209 of the Act.remanufacturing practices (see RSD),EPA believes that this approach wouldallow industry to largely continue itscurrent remanufacturing practices. TheAgency also requests comment on analternative approach to the period ofpreemption whereby a single period ofpreemption (defined in years, miles, orwork done) would apply to alllocomotives, irrespective of their usefullives.It is important to note that the Agencyexpects that emission performance willnot suddenly degrade at the end of alocomotive’s useful life, but rather thatany deterioration which does occurwould generally be gradual. In fact,given the rigorous compliance programwhich is being proposed, EPA expectsthat most locomotives will be designedand built such that those that areoperated within this 25 percent windowwould generally remain in compliancewith the applicable emissionsstandards. Moreover, as was discussedpreviously, the Agency specificationsfor useful life are based on average timebetween remanufacturing events. If amajority of locomotives were beingoperated significantly longer than theiruseful lives, the proposed regulationswould require that manufacturers andremanufacturers begin to specify longeruseful lives.EPA believes that certain categories ofpotential state requirements would bepreempted under the proposedapproach, including numericalemissions standards for newlocomotives, fleet average standards,certification requirements (such astesting), aftermarket (retrofit) equipmentrequirements, and in-use testing.Numerical emissions standards andcertification testing requirements fornew locomotives and new locomotiveengines are clearly standards or otherrequirements that are explicitlypreempted by section 209(e)(1). EPAbelieves that a state fleet averagestandard would also be preempted sinceEPA expects that requiring compliancewith any such standard would in effectban the sale or production of certainnew locomotives or new locomotiveengines (including remanufacturedlocomotives that are new) for use in astate. Given the logistical challenges ofoperating an interstate locomotive fleet,the only practical way in which arailroad could comply would be toremanufacture all of its locomotives tocomply with the fleet standard. Thiswould effectively establish a stateemissions standard for new locomotivesin violation of section 209(e)(1).Because of the unique factualcircumstances surrounding locomotives,a state retrofit requirement that appliedduring the time period between eachremanufacture (or between an engine’soriginal manufacture and firstremanufacture) would be preemptedbecause such a requirement wouldaffect the design, manufacture and/orremanufacture of new locomotives.Most retrofit requirements would affectengine performance, and thus lead todesign changes. For example, theinstallation of a catalyst-type add-onsystem would require the originalmanufacturer or remanufacturer todesign the locomotive and/or enginedifferently to account for the resultingincrease in exhaust back pressure.Moreover, aftermarket devices (such asengine heaters, selective reductioncatalysts, particulate traps, and exhaustgas recirculation (EGR)) would take upa significant amount of space in alocomotive; therefore, a stateaftermarket equipment requirement onlocomotives would be expected to causethe original manufacturer orremanufacturer to redesign thelocomotive differently at the time it isfirst manufactured, or duringremanufacturing, to account for the lateraddition of the aftermarket equipment.It is important to note that space is acritical issue for locomotivemanufacturers and remanufacturersbecause rail systems operate with verytight specifications for width, height,and length. The width and height of alocomotive must be small enough topass through tunnels and other suchrestrictions, while the length must beshort enough to allow the locomotive tonegotiate curves in existing tracks. EPAbelieves that retrofit equipment thatstates could require on non-newlocomotives would also be preemptedunder the criteria described above. Thisis especially true given the uniquecircumstances associated withlocomotives and locomotive engines. Aretrofit requirement that would havelittle or no effect on the originalmanufacture of a locomotive orlocomotive engine could have asignificant effect on the remanufactureof that locomotive or engine. Given thatthe definition of new locomotive andnew locomotive engine includesremanufactured locomotives andengines, retrofit requirements onlocomotives and locomotive engines aremore likely to have an effect on newlocomotives and locomotive enginesthan would similar requirements onmotor vehicles and other nonroadengines.As with retrofit requirements, EPAbelieves that states would be preemptedfrom adopting or enforcing non-federalin-use emissions testing programs.