Corporate Average Fuel Economy (CAFE) Preemption |
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Steven S. Cliff
National Highway Traffic Safety Administration
12 May 2021
[Federal Register Volume 86, Number 90 (Wednesday, May 12, 2021)]
[Proposed Rules]
[Pages 25980-25992]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-08758]
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DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
49 CFR Parts 531 and 533
[Docket No. NHTSA-2021-0030]
RIN 2127-AM33
Corporate Average Fuel Economy (CAFE) Preemption
AGENCY: National Highway Traffic Safety Administration (NHTSA),
Department of Transportation (DOT).
ACTION: Notice of proposed rulemaking.
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SUMMARY: This document proposes to repeal ``The Safer Affordable Fuel-
Efficient (SAFE) Vehicles Rule Part One: One National Program,''
published Sept. 27, 2019 (SAFE I Rule), in which NHTSA codified
regulatory text and made additional pronouncements regarding the
preemption of state and local laws related to fuel economy standards.
Specifically, this document proposes to fully repeal the regulatory
text and appendices promulgated in the SAFE I Rule. In addition, this
document proposes to repeal and withdraw the interpretative statements
made by the Agency in the SAFE I Rule preamble, including those
regarding the preemption of particular state Greenhouse Gas (GHG)
Emissions standards or Zero Emissions Vehicle (ZEV) mandates. As such,
this document proposes to establish a clean slate with respect to
NHTSA's regulations and interpretations concerning preemption under the
Energy Policy and Conservation Act (EPCA).
DATES: Comments must be received by June 11, 2021.
ADDRESSES: You may submit comments to the docket number identified in
the heading of this document by any of the following methods:
Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting
comments.
Mail: Docket Management Facility, M-30, U.S. Department of
Transportation, West Building, Ground Floor, Room W12-140, 1200 New
Jersey Avenue SE, Washington, DC 20590.
Hand Delivery or Courier: U.S. Department of
Transportation, West Building, Ground Floor, Room W12-140, 1200 New
Jersey Avenue SE, Washington, DC, between 9 a.m. and 5 p.m. Eastern
time, Monday through Friday, except Federal holidays.
Fax: 202-493-2251.
FOR FURTHER INFORMATION CONTACT: Hunter B. Oliver, Office of Chief
Counsel, NHTSA, telephone (202) 366-5263, facsimile (202) 366-3820,
1200 New Jersey Ave., SE. Washington, DC 20590.
SUPPLEMENTARY INFORMATION:
Table of Contents
A. Public Participation
B. Executive Summary
C. Statutory and Regulatory Background
D. Reconsideration Authority
E. Proposed Repeal of Regulations in the SAFE I Rule
F. Proposed Repeal of Preemption Interpretations in the SAFE I Rule
G. Repealing the Regulations and Positions Announced in the SAFE I
Rulemaking Remains Appropriate Even if NHTSA Possessed the Authority
for the Rulemaking
H. Rulemaking Analyses and Notices
1. Executive Order 12866, Executive Order 13563, and DOT
Regulatory Policies and Procedures
2. Regulatory Flexibility Act
3. Executive Order 13132 (Federalism)
4. Unfunded Mandates Reform Act of 1995
5. National Environmental Policy Act
6. Executive Order 12988 (Civil Justice Reform)
7. Paperwork Reduction Act
8. Privacy Act
A. Public Participation
NHTSA requests comment on all aspects of this proposed rule. This
section describes how you can participate in this process.
(1) How do I prepare and submit comments?
Your comments must be written. To ensure that your comments are
correctly filed in the docket, please include the docket number NHTSA-
2021-0030 in your comments. If you are submitting comments
electronically as a PDF (Adobe) file, we ask that the documents
submitted be scanned using the Optical Character Recognition (OCR)
process, thus allowing NHTSA to search and copy certain portions of
your submissions.\1\ Please note that pursuant to the Data Quality Act,
in order for the substantive data to be relied upon and used by NHTSA,
it must meet the information quality standards set forth in the Office
of Management and Budget (OMB) and Department of Transportation (DOT)
Data Quality Act guidelines. Accordingly, we encourage you to consult
the guidelines in preparing your comments. OMB's guidelines may be
accessed at https://www.whitehouse.gov/omb/information-
[[Page 25981]]
regulatory-affairs/information-policy/. DOT's guidelines may be
accessed at https://www.transportation.gov/dot-information-dissemination-quality-guidelines.
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\1\ OCR is the process of converting an image of text, such as a
scanned paper document or electronic fax file, into computer-
editable text.
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(2) Tips for Preparing Your Comments
When submitting comments, please remember to:
Identify the rulemaking by docket number and other
identifying information (subject heading, Federal Register date and
page number).
Explain why you agree or disagree, suggest alternatives,
and substitute language for your requested changes.
Describe any assumptions and provide any technical
information and/or data that you used.
If you estimate potential costs or burdens, explain how
you arrived at your estimate in sufficient detail to allow for it to be
reproduced.
Provide specific examples to illustrate your concerns, and
suggest alternatives.
Explain your views as clearly as possible, avoiding the
use of profanity or personal threats.
Make sure to submit your comments by the comment period
deadline identified in the DATES section above.
(3) How can I be sure that my comments were received?
If you submit your comments by mail and wish Docket Management to
notify you upon its receipt of your comments, enclose a self-addressed,
stamped postcard in the envelope containing your comments. Upon
receiving your comments, Docket Management will return the postcard by
mail.
(4) How do I submit confidential business information?
If you wish to submit any information under a claim of
confidentiality, you should submit your complete submission, including
the information you claim to be confidential business information
(CBI), to the NHTSA Chief Counsel. When you send a comment containing
CBI, you should include a cover letter setting forth the information
specified in our CBI regulation.\2\ In addition, you should submit a
copy from which you have deleted the claimed CBI to the Docket by one
of the methods set forth above.
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\2\ See 49 CFR part 512.
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To facilitate social distancing due to COVID-19, NHTSA is treating
electronic submission as an acceptable method for submitting CBI to the
Agency under 49 CFR part 512. Any CBI submissions sent via email should
be sent to an attorney in the Office of Chief Counsel at the address
given above under FOR FURTHER INFORMATION CONTACT. Likewise, for CBI
submissions via a secure file transfer application, an attorney in the
Office of Chief Counsel must be set to receive a notification when
files are submitted and have access to retrieve the submitted files. At
this time, regulated entities should not send a duplicate hardcopy of
their electronic CBI submissions to DOT headquarters.
Please note that these modified submission procedures are only to
facilitate continued operations while maintaining appropriate social
distancing due to COVID-19. Regular procedures for part 512 submissions
will resume upon further notice, when NHTSA and regulated entities
discontinue operating primarily in telework status.
If you have any questions about CBI or the procedures for claiming
CBI, please consult the person identified in the FOR FURTHER
INFORMATION CONTACT section.
(5) How can I read the comments submitted by other people?
You may read the materials placed in the docket for this document
(e.g., the comments submitted in response to this document by other
interested persons) at any time by going to http://www.regulations.gov.
Follow the online instructions for accessing the dockets. You may also
read the materials at the NHTSA Docket Management Facility by going to
the street addresses given above under ADDRESSES.
B. Executive Summary
In September 2019, NHTSA and the Environmental Protection Agency
(EPA) finalized a joint agency action relating to the state regulation
of GHG emissions from motor vehicles and ZEV mandates. In that action,
NHTSA codified numbered regulatory text that repeated the existing
statutory provisions and, in codified appendices, expressly declared
that certain types of state regulation were preempted due to a
perceived irreconcilable conflict with the Agency's fuel economy
standards. In addition, the Agency made further statements throughout
the rule's preamble that attempted to categorically label existing
state regulations--particularly those from the State of California--as
preempted under the codified regulations and associated statutory text.
As part of the SAFE I action, EPA also revoked a waiver that EPA had
previously extended to the State of California, under Section 209 of
the Clean Air Act, to regulate motor vehicle emissions through GHG
standards and a ZEV mandate.\3\
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\3\ This proposed rule is being issued only by NHTSA. As such,
to the extent EPA subsequently undertakes an action to reconsider
the revocation of California's Section 209 waiver, such action would
occur through a separate, independent proceeding.
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The SAFE I Rule represented the first time, in the nearly 50-year
history of the CAFE program, that NHTSA had adopted regulations
expressly defining the Agency's views on the scope of preemption of
state laws that relate to fuel economy. Until 2019, the self-executing
express preemption provisions in the governing fuel economy statute, 49
U.S.C. 32919, had always provided the sole codified language on CAFE
preemption. Since this statutory language is self-executing, Federal
courts, as well as Federal agencies, states, and local governments,\4\
had come to understand the fundamental operation of CAFE preemption and
applied it on a case-by-case basis, resulting in the development of a
significant body of case law, without the need for any corresponding
regulations from NHTSA.
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\4\ For ease of reference, unless otherwise distinguished
herein, the varying levels of State regulatory entities encompassed
by the phrase State or a political subdivision of a State are
encapsulated in the term ``States'' as used in the remainder of this
document.
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Nevertheless, NHTSA finalized the SAFE I Rule in 2019 to prevent
what the Agency then perceived to be a risk of regulatory uncertainty
and disharmony resulting from an overlap in state motor vehicle GHG
emissions regulations and ZEV mandates and NHTSA's fuel economy
standards. In an effort to foreclose such perceived instability, NHTSA
promulgated regulations that attempted to preempt ``any law or
regulation of a State or a political subdivision of a State regulating
or prohibiting tailpipe carbon dioxide emissions from automobiles,''
\5\ including state GHG standards and ZEV mandates. In the SAFE I Rule,
the Agency described the authority for this sweeping act of preemption
as primarily drawn from NHTSA's general mandate to establish national
fuel economy standards, rather than from any particular delegation of
rulemaking authority in Section 32919.\6\ In the same document, EPA
withdrew California's then-existing waiver under the Clean
[[Page 25982]]
Air Act, relying, in part, on NHTSA's conclusions that those programs
were preempted by Section 32919. The final rule was immediately
challenged in Federal court by numerous stakeholders, including
California, many of whom argued that NHTSA exceeded its authority in
promulgating the preemption regulations.\7\
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\5\ See 49 CFR part 531, app. B (a)(2); 49 CFR part 533, app. B
(a)(2).
\6\ See NHTSA, EPA, The Safer Affordable Fuel-Efficient (SAFE)
Vehicles Rule Part One: One National Program, Final Rule, 84 FR
51310, 51312 (Sept. 27, 2019) (``To ensure that the fuel economy
standards NHTSA adopts constitute the uniform national requirements
that Congress intended, NHTSA must address the extent to which State
and local laws and regulations are preempted by EPCA.'').
\7\ See generally Union of Concerned Scientists, et al. v.
NHTSA, et al., No. 19-1230 (D.C. Cir.) (on February 8, 2021, the
D.C. Circuit granted the Agencies' motion to hold the case in
abeyance in light of the reconsideration of the SAFE I action).
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On January 20, 2021, President Biden signed Executive Order 13990,
``Protecting Public Health and the Environment and Restoring Science To
Tackle the Climate Crisis,'' which, among other actions, directed DOT
and NHTSA to immediately review and consider suspending, revising, or
rescinding the SAFE I Rule. Accordingly, NHTSA has conducted a
comprehensive review of the SAFE I Rule and, in particular, the
legality of and need for the regulations and positions that the Agency
announced in the SAFE I Rule. As a result of this review, NHTSA now has
substantial doubts about whether the SAFE I Rule was a proper exercise
of the Agency's statutory authority with respect to CAFE preemption,
particularly as to whether NHTSA had authority to define the scope of
EPCA preemption through legislative rules, carrying the force and
effect of law. Accordingly, in this document, NHTSA proposes to fully
repeal and withdraw the codified regulations, as well as any associated
interpretations or views on EPCA preemption contained in the SAFE I
Rule, including in the regulatory text of Sec. Sec. 531.7, 533.7,
appendices B to parts 531 and 533, and the Preambles.
First, NHTSA has significant concerns that the regulations
finalized in the SAFE I Rule likely exceeded the Agency's rulemaking
authority under EPCA. In the final rule, NHTSA codified regulations in
the Code of Federal Regulations, which attempted to categorically
prohibit certain state programs by proclaiming them preempted under
EPCA. However, neither EPCA's express preemption provision nor any
other statutory source appears to permit NHTSA to adopt legislative
rules implementing express preemption under EPCA. Although NHTSA's
administration of EPCA enables the Agency to provide its interpretation
of EPCA's preemption provisions, NHTSA appears to lack the authority to
conclusively determine the scope or meaning of the EPCA preemption
clauses with the force and effect of law. Therefore, NHTSA now has
substantial doubts about whether the Agency possessed the authority to
issue binding legislative rules on the issue of EPCA preemption.
Accordingly, NHTSA proposes to withdraw the regulatory text finalized
in the SAFE I Rule. This approach realigns NHTSA to its historical
practice: For the entire history of the program until SAFE I was
finalized, NHTSA had administered the CAFE program without codifying
any such preemption regulations.
In addition, to the extent that the Preambles in the SAFE I Rule
contained interpretative views that would not be repealed if the Agency
rescinded the codified text, NHTSA is also proposing to withdraw those
positions. The Agency believes that withdrawing and repealing these
statements is appropriate to reaffirm the proper scope of NHTSA's
preemption authority and to remove the uncertainty created by the SAFE
I rule. Thus, the Agency proposes to categorically repeal both the
codified regulatory text and the interpretative views contained in the
SAFE I rule.\8\ Similarly, to the extent other NHTSA Preambles, which
preceded the SAFE I Rule, also espoused views directly defining EPCA
preemption under Section 32919 or the Agency's role in such preemption,
NHTSA proposes to withdraw and repeal those statements as well.\9\ If
finalized, the Agency believes that this proposal would restore a clean
slate for the Agency's position on EPCA preemption, which the Agency
views as a necessary step to ensure that such prior statements do not
overstate NHTSA's authority with respect to EPCA preemption issues.
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\8\ The Agency anticipates that many stakeholders may comment,
urging the Agency to go further--not merely to repeal the preemption
determination, but to affirmatively announce a view that State GHG
and ZEV programs are not preempted under EPCA. Nevertheless, the
Agency deems any such conclusions as outside the scope of this
Proposal. When an agency determines that its past action transcends
the legally permissible scope, the agency is obliged to realign its
regulatory activities to its properly authorized scope posthaste.
See, e.g., EME Homer City Generation, L.P. v. E.P.A., 795 F.3d 118,
134 (D.C. Cir. 2015) (noting the need for a corrective rulemaking
following a determination that a prior rulemaking exceeded the
agency's statutory authority). A repeal is the fastest way to do so
and is appropriate in this context, as explained below. Reassessing
the scope of preemption under EPCA and announcing new interpretative
views regarding Section 32919 entails a more substantive inquiry
that necessitates additional consideration and deliberation. While
NHTSA may decide to undertake such a deliberation in the future, the
Agency's imminent concern is realigning its regulatory statements to
their legally proper scope and removing the uncertainty caused by
the SAFE I rule.
\9\ For instance, NHTSA has particularly identified the
Preambles cited at the end of this footnote as containing such
statements. NHTSA seeks public comments on whether there are
additional preamble statements that contain related statements,
which should be included in this list. To be clear though, the
Agency is proposing to withdraw all of such statements that may
appear in prior NHTSA Preambles, regardless of whether they are
expressly cited herein. See, e.g., DOT, NHTSA, Light Truck Average
Fuel Economy Standards Model Years 2005-07, Final Rule, 68 FR 16868,
16895 (Apr. 7, 2003) (describing NHTSA's views on EPCA preemption in
the preamble to a final rule setting CAFE standards); DOT, NHTSA,
Average Fuel Economy Standards for Light Trucks Model Years 2008-
2011; Final Rule, 71 FR 17566, 17654 (Apr. 6, 2006) (describing
NHTSA's views of EPCA preemption in the preamble to a final rule
setting CAFE standards).
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In addition, this approach will ensure that any overstated or
legally tenuous statements from the SAFE I Rule do not impede NHTSA
from carefully reassessing its substantive views on EPCA preemption
and, if warranted, to subsequently announce those views in a new
setting. Restoring a clean slate is critical because the Agency now has
significant doubts about the accuracy and prudence of the substantive
views espoused in the SAFE I rulemaking, including the validity of the
preemption analysis and the manner in which it failed to account for a
variety of considerations, including factual circumstances specific to
policies that would be affected by the Rule and important federalism
interests.
Finally, even if NHTSA had authority to issue binding legislative
rules on preemption, NHTSA still proposes to fully repeal and withdraw
both these regulations and any interpretative positions. After
observing the SAFE I Rule's effect on interested stakeholders, ranging
from states, regulated entities, and the public, and considering the
temporally-limited and program-specific factual predicates underlying
NHTSA's prior assertion of permanent and comprehensive preemption,
NHTSA no longer believes that the Agency must or should expressly
regulate preemption with the force and effect of law. As such, the
Agency prefers for its codified regulations to return to a state of
silence regarding EPCA preemption, particularly as the views on
preemption expressed in the Appendices and preamble no longer
necessarily reflect the views of the Agency on these questions.\10\
NHTSA may decide to issue interpretations or guidance at a later point,
if warranted, after further consideration.
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\10\ As the codified text in Sec. Sec. 531.7 and 533.7 simply
repeats the statute, those provisions cannot be considered to convey
any distinct meaning from the verbatim language of Section 32919.
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C. Statutory and Regulatory Background
In 1975, Congress enacted the Energy Policy and Conservation Act
(EPCA), which among other goals, sought to
[[Page 25983]]
``conserve energy supplies through energy conservation programs, and
where necessary, the regulation of certain energy uses.'' \11\ Congress
included the ``improved energy efficiency of motor vehicles'' among the
energy conservation and independence objectives specifically enumerated
in the Act.\12\ To facilitate the enhanced energy efficiency of motor
vehicles, EPCA charged the DOT to ``prescribe, by rule, average fuel
economy standards'' for various classifications of motor vehicles.\13\
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\11\ The Energy Policy and Conservation Act of 1975, Public Law
94-163, 89 Stat. 871, section 2(4) (``Statement of Purposes'').
\12\ Id. section 2(5) (``Statement of Purposes'').
\13\ Id. section 502(3) (``Average Fuel Economy Standards
Applicable to Each Manufacturer'').
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In establishing a statutory framework for fuel economy regulation,
Congress incorporated a provision into EPCA that expressly described
the preemptive effect of resulting fuel economy standards and
requirements.\14\ The wording of this provision was slightly modified
in a recodification of EPCA in 1994. Overall though, both
contemporaneous legislative sources and courts considering fuel economy
matters have stressed that ``the 1994 recodification was intended to
``revise[ ], codif[y], and enact[ ]'' the law ``without substantive
change.'' \15\ As such, EPCA's original express preemption provision
remains codified in substantially the same form in 49 U.S.C. 32919. The
express language of subsection (a) of Section 32919 provides that
``[w]hen an average fuel economy standard prescribed under this chapter
is in effect, a State or a political subdivision of a State may not
adopt or enforce a law or regulation related to fuel economy standards
or average fuel economy standards for automobiles covered by an average
fuel economy standard under this chapter.'' \16\ The provision contains
an exception, which allows that a State or local government ``may
prescribe requirements for fuel economy for automobiles obtained for
its own use.'' \17\ In addition, when a Federal fuel economy labeling
or information requirement is in effect, pursuant to 49 U.S.C. 32908, a
State or local government may adopt or enforce an identical requirement
on ``disclosure of fuel economy or fuel operating costs.'' \18\
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\14\ Id. section 509 (``Effect on State Law'').
\15\ Green Mountain Chrysler Plymouth Dodge Jeep v. Crombie, 508
F. Supp. 2d 295, 346 (D. Vt. 2007) (quoting Pub. L. 103-272, 108
Stat. 745, 745 (1994); H.R. Rep. No. 103-180, at 1 (1994), reprinted
in 1994 U.S.C.C.A.N. 818, 818; S. Rep. No. 103-265, at 1 (1994)).
\16\ 49 U.S.C. 32919(a).
\17\ 49 U.S.C. 32919(c).
\18\ 49 U.S.C. 32919(b).
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For nearly 50 years after EPCA's enactment, NHTSA's own regulations
remained silent regarding the scope or effect of preemption established
by Section 32919. The Agency has, on occasion, spoken directly on
various aspects of the scope of EPCA preemption in an interpretative or
advisory format--most commonly in preambles of CAFE standards
rulemakings, as well as in briefings in litigation over specific state
or local laws.\19\ On multiple occasions throughout the Agency's
history, NHTSA has also incorporated an assessment of state motor
vehicle emissions programs--including those from California--into the
substantive analysis of CAFE standards rulemakings. For instance, these
assessments have often occurred through NHTSA's analysis of the
regulatory landscape and existing automotive industry practices, which
NHTSA considers when assessing the ``maximum feasible'' fuel economy
that can be achieved by manufacturers.\20\ However, until the SAFE I
Rule, NHTSA's commentary on EPCA preemption occurred exclusively in an
interpretative context, and the Agency had never established legally
binding requirements on states through regulatory text.\21\
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\19\ See, e.g., DOT, NHTSA, Light Truck Average Fuel Economy
Standards Model Years 2005-07, Final Rule, 68 FR 16868, 16895 (Apr.
7, 2003) (describing NHTSA's views on EPCA preemption in the
preamble to a final rule setting CAFE standards); DOT, NHTSA,
Average Fuel Economy Standards for Light Trucks Model Years 2008-
2011; Final Rule, 71 FR 17566, 17654 (Apr. 6, 2006) (describing
NHTSA's views of EPCA preemption in the preamble to a final rule
setting CAFE standards).
\20\ See, e.g., NHTSA, part 533 Average Fuel Economy Standards
for Nonpassenger Automobiles, Final Rule, 42 FR 13807, 13814 (Mar.
14, 1977); NHTSA, Light Truck Average Fuel Economy Standards Model
Years 2005-2007, Final Rule, 68 FR 16868, 16895 (Apr. 7, 2003).
\21\ NHTSA did, in 2008, propose language very similar to that
in the SAFE I Rule. See NHTSA, Average Fuel Economy Standards,
Passenger Cars and Light Trucks; Model Years 2011-2015, Notice of
Proposed Rulemaking, 73 FR 24351 (May 2, 2008). However, NHTSA
finalized only standards for model year 2011 through that rulemaking
action and chose not to finalize the proposed text regarding
preemption, explaining that NHTSA ``will re-examine the issue of
preemption in the content of its forthcoming rulemaking to establish
Corporate Average Fuel Economy standards for 2012 and later model
years.'' 74 FR 14196, 14200 (Mar. 30, 2009). NHTSA's subsequent
joint rulemakings with EPA prior to the SAFE rule continued to defer
substantive consideration of preemption due to the existence of the
National Program that involved NHTSA, EPA, and California. See 75 FR
25324, 25546 (May 7, 2010); 77 FR 62624, 63147 (Oct. 15, 2012).
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Thus, the SAFE I Rule represented the first Agency action to ever
finalize and codify rules that purported to create a binding effect on
the scope of EPCA preemption. The Agency initially proposed the
preemption regulations finalized in the SAFE I Rule as part of the
broader joint EPA and NHTSA rulemaking entitled, ``The Safer Affordable
Fuel-Efficient (SAFE) Vehicles Rule for Model Years 2021-2026 Passenger
Cars and Light Trucks.'' \22\ As part of this proposal, EPA also
``propos[ed] to withdraw the waiver granted to California in 2013 for
the GHG and ZEV requirements of its Advanced Clean Cars program.'' \23\
This proposed rule also encompassed NHTSA's proposed CAFE and EPA's
proposed GHG emissions standards for model years 2021-2026 and various
regulations regarding administrative aspects of the CAFE and GHG
programs.\24\ Subsequently, NHTSA and EPA decoupled the NHTSA
preemption regulations and EPA's revocation of California's Clean Air
Act waiver from the standards rulemaking. The Agencies jointly
published the SAFE I Rule on September 27, 2019, with NHTSA finalizing
the proposed preemption regulations, and EPA revoking California's
waiver. The Agencies later jointly published a separate final rule that
set CAFE and GHG emissions standards for model years 2021-2026
passenger cars and light trucks.\25\
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\22\ See generally NHTSA, EPA, The Safer Affordable Fuel-
Efficient (SAFE) Vehicles Rule for Model Years 2021-2026 Passenger
Cars and Light Trucks, Notice of Proposed Rulemaking, 83 FR 42986
(Aug. 24, 2018).
\23\ Id. at 42999.
\24\ Id.
\25\ NHTSA, EPA, The Safer Affordable Fuel-Efficient (SAFE)
Vehicles Rule for Model Years 2021-2026 Passenger Cars and Light
Trucks, Final Rule, 85 FR 24174 (Apr. 30, 2020).
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The preemption language promulgated by NHTSA in the SAFE I Rule
appears in several locations in the CFR: 49 CFR 531.7, appendix B to 49
CFR part 531, 49 CFR 533.7, and appendix B to 49 CFR part 533. The
provisions in Sec. Sec. 531.7 and 533.7, as well as in each appendix
B, mirror one another. The only distinction in the two sets of
regulations is that part 531 applies to passenger automobiles and part
533 applies to light trucks. Moreover, the language in Sec. Sec. 531.7
and 533.7 uses nearly verbatim language as the express preemption
statutory provision, 49 U.S.C. 32919.\26\ Each
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appendix B expressly codifies a prohibition on various state
activities--particularly those regulating motor vehicle carbon dioxide
emissions--that the Agency proclaimed were unlawful due to ``express
preemption'' and ``implied preemption.'' \27\
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\26\ Since the language in 49 CFR 531.7 and 533.7 merely parrots
the applicable statutory text, NHTSA questions whether either
provision even has a unique effect apart from Section 32919. See
Gonzales v. Oregon, 546 U.S. 243, 257 (2006) (``the existence of a
parroting regulation does not change the fact that the question here
is not the meaning of the regulation but the meaning of the
statute''). Based upon the comments received on the SAFE I Rule, on
further reflection, NHTSA's view is that this question merely
augmented the uncertainty among stakeholders about the scope of EPCA
preemption, and further demonstrates that this codification was
unnecessary and unhelpful.
\27\ See 49 CFR part 531, app. B; 49 CFR part 533, app B.
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Following the promulgation of the SAFE I Rule, the actions of both
NHTSA and EPA were challenged by a number of petitioners in both the
United States Court of Appeals for the District of Columbia Circuit
(D.C. Circuit) and the United States District Court for the District of
Columbia.\28\ The litigation has substantially divided the regulated
industry and interested stakeholders, as the D.C. Circuit litigation
encompasses ten consolidated petitions brought by a number of states,
cities, and environmental organizations challenging the rule. On the
other side of the litigation, several automakers, other states, and
fuel and petrochemical manufacturers have intervened in support of the
rule. In addition to the litigation, one public interest organization,
the Chesapeake Bay Foundation, filed a petition for reconsideration
with NHTSA following the SAFE I Rule's publication.\29\ The Chesapeake
Bay Foundation subsequently filed a petition for review in the D.C.
Circuit, which challenges NHTSA's denial of this petition for
reconsideration.\30\ In light of the Agencies' reconsideration of the
SAFE I action, the D.C. Circuit granted requests to hold both the
consolidated litigation and Chesapeake Bay Foundation's subsequent
lawsuit in abeyance.
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\28\ See generally Union of Concerned Scientists, et al. v.
NHTSA, et al., No. 19-1230 (D.C. Cir.). See also California v. Chao,
No. 19-cv-2826-KBJ (D.D.C.) (filed Sept. 20, 2019).
\29\ See generally Chesapeake Bay Foundation, Petition for
Reconsideration of NHTSA's Final Rule--The Safer Affordable Fuel
Efficient (SAFE) Vehicles Rule Part One: One National Program (Nov.
8, 2019).
\30\ See generally Chesapeake Bay Foundation, Inc. v. NHTSA, No.
20-2091 (D.C. Cir.).
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On January 20, 2021, President Biden signed Executive Order 13990,
which directed DOT and NHTSA to immediately undertake an assessment of
the SAFE I Rule.\31\ Specifically, Executive Order 13990 directed DOT
and NHTSA to, ``as appropriate and consistent with applicable law,
consider suspending, revising, or rescinding'' the SAFE I Rule.\32\ For
the SAFE I Rule, the Executive order also instructed that the Agency,
``as appropriate and consistent with applicable law, shall consider
publishing for notice and comment a proposed rule suspending, revising,
or rescinding the agency action . . . by April 2021.'' \33\
---------------------------------------------------------------------------
\31\ Executive Order 13990, Protecting Public Health and the
Environment and Restoring Science to Tackle the Climate Crisis, 86
FR 7037 (Jan. 25, 2021).
\32\ Id. at Sec. 2.
\33\ Id. at Sec. 2-2(ii).
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D. Reconsideration Authority
NHTSA, like any other Federal agency, is afforded an opportunity to
reconsider prior views and, when warranted, to adopt new positions.
Indeed, as a matter of good governance, agencies should revisit their
positions when appropriate, especially to ensure that their actions and
regulations reflect legally sound interpretations of the agency's
authority and remain consistent with the agency's views and practices.
As a matter of law, ``an Agency is entitled to change its
interpretation of a statute.'' \34\ Nonetheless, ``[w]hen an Agency
adopts a materially changed interpretation of a statute, it must in
addition provide a `reasoned analysis' supporting its decision to
revise its interpretation.'' \35\
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\34\ Phoenix Hydro Corp. v. F.E.R.C., 775 F.2d 1187, 1191 (D.C.
Cir. 1985).
\35\ Alabama Educ. Ass'n v. Chao, 455 F.3d 386, 392 (D.C. Cir.
2006) (quoting Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm
Mut. Auto. Ins. Co., 463 U.S. 29, 57 (1983)); see also Encino
Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125 (2016) (``Agencies
are free to change their existing policies as long as they provide a
reasoned explanation for the change.'') (citations omitted).
---------------------------------------------------------------------------
``Changing policy does not, on its own, trigger an especially
`demanding burden of justification.' '' \36\ Providing a reasoned
explanation ``would ordinarily demand that [the Agency] display
awareness that it is changing position.'' \37\ Beyond that, however,
``[w]hen an agency changes its existing position, it `need not always
provide a more detailed justification than what would suffice for a new
policy created on a blank slate.' '' \38\ While the Agency ``must show
that there are good reasons for the new policy,'' the Agency ``need not
demonstrate to a court's satisfaction that the reasons for the new
policy are better than the reasons for the old one.'' \39\ ``[I]t
suffices that the new policy is permissible under the statute, that
there are good reasons for it, and that the Agency believes it to be
better, which the conscious change of course adequately indicates.''
\40\ For instance, ``evolving notions'' about the appropriate balance
of varying policy considerations constitute sufficiently good reasons
for a change in position.\41\ Moreover, it is ``well within an Agency's
discretion'' to change policy course even when no new facts have
arisen: Agencies are permitted to conduct a ``reevaluation of which
policy would be better in light of the facts,'' without ``rely[ing] on
new facts.'' \42\
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\36\ See Mingo Logan Coal Co. v. E.P.A., 829 F.3d 710, 718 (D.C.
Cir. 2016) (quoting Ark Initiative v. Tidwell, 816 F.3d 119, 127
(D.C. Cir. 2016)).
\37\ FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515
(2009) (emphasis in original) (``An agency may not, for example,
depart from a prior policy sub silentio or simply disregard rules
that are still on the books.'').
\38\ Encino Motorcars, LLC, 136 S. Ct. at 2125-26 (quoting Fox
Television Stations, Inc., 556 U.S. at 515).
\39\ Fox Television Stations, Inc., 556 U.S. at 515 (emphasis in
original).
\40\ Id. (emphasis in original).
\41\ N. Am.'s Bldg. Trades Unions v. Occupational Safety &
Health Admin., 878 F.3d 271, 303 (D.C. Cir. 2017) (quoting the
agency's rule). To be sure, providing ``a more detailed
justification'' is appropriate in some cases. See Fox Television
Stations, Inc., 556 U.S. at 515 (2009) (``Sometimes [the agency]
must [provide a more detailed justification than what would suffice
for a new policy created on a blank slate]--when, for example, its
new policy rests upon factual findings that contradict those which
underlay its prior policy; or when its prior policy has engendered
serious reliance interests that must be taken into account.''). This
is not one of those cases: NHTSA's reconsidered understanding of the
governing legal framework does not ``rest[ ] upon factual findings
that contradict those which underlay its prior policy.'' Moreover,
the reconsideration does not undermine ``engendered serious reliance
interests that must be taken into account.,'' The uncertainty
associated with the SAFE I rulemaking, which is described further
herein, has not created an environment in which any interested
stakeholders could reasonably rely upon a framework that presupposed
the continuance of the SAFE I Rule.
\42\ Nat'l Ass'n of Home Builders v. E.P.A., 682 F.3d 1032,
1037-38 (D.C. Cir. 2012).
---------------------------------------------------------------------------
NHTSA views this need to reassess its stated positions as
particularly appropriate and imperative when the issues either
implicate the limits of the Agency's statutory authority or concern
positions on critical policy issues that no longer necessarily reflect
that agency's views. This is especially important in matters regarding
the preemption of state law, given both the federalism interests at
stake and because ``agencies have no special authority to pronounce on
pre-emption absent delegation by Congress.'' \43\ NHTSA believes that
upon tentatively determining that legal authority previously claimed
likely does not exist, the most responsible and legally essential
course of action is for the Agency to exercise its reconsideration
authority to explore and, if necessary, rectify the potential overstep.
This is the precise action that NHTSA proposes here.
---------------------------------------------------------------------------
\43\ See Wyeth v. Levine, 555 U.S. 555, 577 (2009).
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[[Page 25985]]
E. Proposed Repeal of Regulations in the SAFE I Rule
After a comprehensive reconsideration of the SAFE I Rule, NHTSA now
has substantial doubts about whether Congress provided the Agency with
the authority necessary to engage in legislative rulemaking \44\ to
define the scope of preemption in 49 U.S.C. 32919.\45\ Ultimately,
``agencies have no special authority to pronounce on preemption absent
delegation by Congress.'' \46\ Neither the language of Section 32919
nor the broader regulatory structure of Chapter 329 provide NHTSA with
the authority to promulgate regulations with the force and effect of
law on EPCA preemption. Moreover, contrary to the indications in the
SAFE I Rule, NHTSA provisionally considers a general delegation of
authority to the Secretary to ``carry out'' his ``duties and powers''
to be insufficient to support a legislative rulemaking that expressly
administers preemption under Section 32919. Consequently, NHTSA now
proposes to conclude that it likely overstepped its authority in
issuing binding legislative rules on preemption.\47\ Therefore, NHTSA
proposes to repeal each of these provisions in full to ensure that its
actions are unquestionably within the legally permissible boundaries of
the Agency's authority. Repealing these rules would also restore the
Agency's previous practice, in which NHTSA did not codify
interpretations of EPCA preemption in regulations.
---------------------------------------------------------------------------
\44\ As used in this document, the term ``legislative
rulemaking'' refers to an agency's authority to promulgate
regulations that carry the force and effect of law. See, e.g.,
Batterton v. Francis, 432 U.S. 416, 425 (1977) (noting that when a
Federal agency promulgates a rule within the scope of its
congressionally delegated authority, the agency ``adopts regulations
with legislative effect'').
\45\ NHTSA, EPA, The Safer Affordable Fuel-Efficient (SAFE)
Vehicles Rule Part One: One National Program, Final Rule, 84 FR
51310, 51320 (Sept. 27, 2019).
\46\ Wyeth v. Levine, 555 U.S. 555, 577 (2009).
\47\ The Agency acknowledges that there may be some potential
ambiguity as to whether the SAFE I Rule established binding
legislative rules or interpretative rules, as the Agency described
the effect of the rule in varying ways in that final rule,
particularly in its preamble. As described below, NHTSA believes the
SAFE I Rule was intended to be a legislative rule. However, to the
extent it is considered an interpretative rule, NHTSA believes it
would still be appropriate to rescind the rule for the reasons
described in Part F, infra.
---------------------------------------------------------------------------
1. NHTSA Is Concerned That the SAFE I Rule's Issuance of Binding,
Legislative Rules on EPCA Preemption Exceeded the Agency's Authority
The preemption analysis begins with consideration of the governing
statute. However, while EPCA already contains an express preemption
provision in Section 32919, the Appendices promulgated in the SAFE I
Rule expressed, in more specific terms than Section 32919, precise
types of state regulation that would be preempted--namely, state
efforts to regulate carbon dioxide emissions from motor vehicles or to
establish requirements for ZEVs.\48\ These regulations purported to
expressly prohibit the conduct in question through their force as
Federal regulations.
---------------------------------------------------------------------------
\48\ See 49 CFR part 531, app. B; 49 CFR part 533, app. B.
---------------------------------------------------------------------------
The Agency has tentatively determined that these regulations are
legislative rules, which seek to preempt state regulations in more
specific terms than the express preemption provision already present in
EPCA. As noted above, Congress included an express preemption provision
in EPCA in Section 32919. This statute expressly preempts state laws or
regulations ``related to fuel economy standards or average fuel economy
standards for automobiles,'' ``when an average fuel economy standard
prescribed under [Chapter 329] is in effect.'' \49\ Both the Agency and
courts have repeatedly understood Section 32919 as self-executing and
capable of direct application to state regulatory activity.\50\
Specifically, such a direct application involves the consideration of
whether the state regulation in question ``relate[s] to'' fuel economy
standards established elsewhere in Chapter 329.\51\ The statute does
not require any supplemental agency regulations to implement this
standard, nor does the text and structure of the statute appear to
provide NHTSA any special legislative role in dictating the scope of
Section 32919's preemption.
---------------------------------------------------------------------------
\49\ 49 U.S.C. 32919(a).
\50\ See, e.g., Green Mountain Chrysler Plymouth Dodge Jeep, 508
F. Supp. at 295 (undertaking a detailed analysis of Section 32919 to
determine whether state law was preempted under the express language
of the statute).
\51\ See Cent. Valley Chrysler-Jeep, Inc. v. Goldstene, 529 F.
Supp. 2d 1151, 1175 (E.D. Cal. 2007), as corrected (Mar. 26, 2008)
(conducting such an analysis before concluding that preemption did
not exist ``[g]iven the narrow scope the court must accord EPCA's
``related to'' language'').
---------------------------------------------------------------------------
Accordingly, NHTSA tentatively believes that the SAFE I Rule, which
codified additional binding standards for express EPCA preemption,
represented an additional act of express preemption beyond the self-
contained language of Section 32919. Through the SAFE I Rule, NHTSA
codified four provisions in the CFR, each of which purported to
directly regulate the scope of preemption under EPCA. Specifically,
NHTSA promulgated 49 CFR 531.7 and 533.7, both of which were nearly
verbatim codifications of the statutory text, and an identical appendix
B to both parts 531 and 533, which included a description of certain
state regulations also described as preempted. None of these provisions
instituted any new compliance or enforcement standards relating to
NHTSA's CAFE program. Instead, the provisions, by their own terms,
solely sought to codify into NHTSA's regulations a binding framework to
govern the scope of EPCA preemption.
As the Preamble to the SAFE I Final Rule described, these
provisions sought to ``ma[ke] explicit that state programs to limit or
prohibit tailpipe GHG emissions or establish ZEV mandates are
preempted.'' \52\ In announcing the SAFE I Rule, NHTSA repeatedly
described the final rules in terms that appeared to confer upon them
legally binding connotations. For instance, the Agency noted that
through the final rule, ``NHTSA intends to assert preemption'' \53\ and
characterized the regulations as ``implementing'' \54\ a preemption
requirement. Subpart ``a'' of each appendix B to parts 531 and 533 even
labels the regulatory text as ``Express Preemption'' provisions, before
proceeding to categorically assert, in mandatory terms, what types of
state laws were preempted.\55\ Such a direct declaration of preemption,
which purported to carry the force and effect of law, seeks to provide
an authoritative interpretation of the language of Section 32919, and
the regulations represented an act of legislative rulemaking that
attempted to impose more specific, binding requirements on State and
local governments. In order to properly engage in such legislative
rulemaking, NHTSA must have adequate authority to do so from Congress.
However, after reconsidering the matter, NHTSA has substantial doubts
about whether it has the requisite authority to validly promulgate such
requirements.
---------------------------------------------------------------------------
\52\ NHTSA, EPA, The Safer Affordable Fuel-Efficient (SAFE)
Vehicles Rule Part One: One National Program, Final Rule, 84 FR
51310 (Sept. 27, 2019).
\53\ Id. at 51317.
\54\ Id. at 51318.
\55\ See, e.g., 49 CFR part 533, app. B(a)(2) (``As a law or
regulation of a State or a political subdivision of a State related
to fuel economy standards, any state law or regulation regulating or
prohibiting tailpipe carbon dioxide emissions from automobiles is
expressly preempted under 49 U.S.C. 32919.'').
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[[Page 25986]]
2. Congress Must Have Provided NHTSA With Authority To Engage in
Legislative Rulemaking on Matters of EPCA Preemption if That Rulemaking
Is To Be Valid
The legitimacy of an agency's exercise of preemption power through
legislative rulemaking is principally a question of the extent of
authority delegated to the agency. This is because all rulemaking
authority of an agency ultimately derives from Congress.\56\ As such,
``in a situation where state law is claimed to be pre-empted by Federal
regulation, a narrow focus on Congress' intent to supersede state law
[is] misdirected.'' \57\ Instead, when considering an agency's
preemptive authority, ``the inquiry becomes whether the federal agency
has properly exercised its own delegated authority rather than simply
whether Congress has properly exercised the legislative power.'' \58\
Consequently, an agency ``may act only when and how Congress lets
[it].'' \59\ This restriction extends to all aspects of an agency's
regulatory activity--including a rulemaking. The matters upon which an
agency may promulgate rules imbued with the force and effect of law are
based on its delegated authority.\60\
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\56\ Cent. United Life Ins. Co. v. Burwell, 827 F.3d 70, 73
(D.C. Cir. 2016).
\57\ City of New York v. F.C.C., 486 U.S. 57, 64 (1988).
\58\ Id.
\59\ Cent. United Life Ins. Co., 827 F.3d at 73.
\60\ See, e.g., Adams Fruit Co. v. Barrett, 494 U.S. 638, 650
(1990) (determining that a Department of Labor regulation exceeded
the scope of authority delegated by a statute the agency
administered).
---------------------------------------------------------------------------
These limitations particularly apply with respect to matters of
preemption. As the Supreme Court has made clear:
A federal agency may pre-empt state law only when and if it is
acting within the scope of its congressionally delegated authority.
This is true for at least two reasons. First, an agency literally
has no power to act, let alone pre-empt the validly enacted
legislation of a sovereign State, unless and until Congress confers
power upon it. Second, the best way of determining whether Congress
intended the regulations of an administrative agency to displace
state law is to examine the nature and scope of the authority
granted by Congress to the agency.\61\
---------------------------------------------------------------------------
\61\ Louisiana Pub. Serv. Comm'n v. F.C.C., 476 U.S. 355, 374
(1986).
Since an agency lacks plenary authority, the delegation of one
power to an agency does not necessarily include other powers, even if
they are related.\62\ This applies even when the authority is
analogous. For instance, the D.C. Circuit has rejected an agency's
argument ``that it possesses plenary authority,'' holding instead
``that the fact that the Board is empowered'' in a particular
circumstance does not ``mean[] the Board therefore enjoys such power in
every instance'' in which a similar question arises.\63\ Accordingly,
construing an agency's authority requires a close examination of the
precise power delegated by Congress and how such authority may differ,
even if slightly, from other authority that Congress may reserve.
---------------------------------------------------------------------------
\62\ Ry. Labor Executives' Ass'n., 29 F.3d at 670 (en banc).
\63\ Id.
---------------------------------------------------------------------------
That is, in order for an agency to issue binding rules on
preemption, the agency must have the authority to directly regulate
preemption itself, rather than merely to establish the substantive law
that leads to preemption.\64\ Therefore, in evaluating an agency's
authority to issue legislative rules on preemption, the proper question
is whether Congress intended the agency to define, through its binding
regulations, when a state law is preempted. Only if Congress has
granted an agency that power does the agency have the authority to
speak with the force of law directly on preemption. NHTSA's tentative
conclusion, as described below, is that Congress does not appear to
have granted NHTSA such authority, and that in light of this doubt, the
Agency should not have issued such regulations in the first instance.
---------------------------------------------------------------------------
\64\ See, e.g., City of New York, 486 U.S. at 64 (clarifying
that ``the correct focus is on the federal agency that seeks to
displace state law and on the proper bounds of its lawful authority
to undertake such action.'').
---------------------------------------------------------------------------
3. NHTSA Has Substantial Doubts That EPCA Authorizes NHTSA To Issue
Legislative Rules on Preemption
EPCA does not appear to expressly provide the authority to DOT or
NHTSA to promulgate legislative rules implementing or defining the
scope of the statute's preemption. Throughout its rulemakings over the
long history of the CAFE program, NHTSA has consistently declined to
construe either Section 32919 or any other provision of EPCA as
expressly delegating DOT or NHTSA the authority to promulgate
preemption regulations. This approach even extends to the SAFE I
rulemaking, in which the Agency cited other statutory provisions for
its authority to issue the rules.\65\ The Agency continues to hold this
view of the statute.
---------------------------------------------------------------------------
\65\ See NHTSA, EPA, The Safer Affordable Fuel-Efficient (SAFE)
Vehicles Rule Part One: One National Program, Final Rule, 84 FR
51310, 51320 (Sept. 27, 2019) (citing other statutory provisions
applicable to DOT for the requisite rulemaking authority).
---------------------------------------------------------------------------
Section 32919, the express preemption provision of EPCA, states
that ``a State or a political subdivision of a State may not adopt or
enforce a law or regulation related to fuel economy standards'' as long
as a Federal fuel economy standard is in place.\66\ Thus, this
preemption provision offers the best evidence of any possible
congressional intent to confer preemption rulemaking authority upon
NHTSA. However, the provision is notably silent as to any role of the
agency in administering--much less defining--a preemption scheme. At
most, the statute merely refers to the substantive tasks of the agency
to establish ``fuel economy standard[s]'' and ``requirements'' as set
forth elsewhere in Chapter 329.\67\ Such references only connote the
core duties borne by the agency to administer the substance of the fuel
economy program, such as by setting ``maximum feasible average fuel
economy'' standards under Section 32902 or establishing fuel economy
labeling requirements under Section 32908. These responsibilities are
within the agency's traditional substantive regulatory functions, which
draw from NHTSA's technical automobile expertise rather than any
special agency authority over federalism. In the Agency's tentative
view, it seems more reasonable to conclude that if Congress had
intended to give NHTSA such direct regulatory authority over EPCA
preemption, it would have done so explicitly, and likely within Section
32919 or at least in direct reference to preemption.
---------------------------------------------------------------------------
\66\ 49 U.S.C. 32919.
\67\ See 49 U.S.C. 32919(a)-(b).
---------------------------------------------------------------------------
Thus, the Agency is now of the view that, under the language of
Section 32919, the express preemption instituted by the statute is
self-executing and self-contained. This is consistent with NHTSA's
longstanding reading of Section 32919. For instance, even the Preamble
to the SAFE I Final Rule acknowledged that the EPCA preemption
provision of Section 32919 was ``self-executing,'' and that ``state or
local requirements related to fuel economy standards are void ab
initio''--by operation of statute not regulation.\68\ Likewise, in the
National Environmental Policy Act of 1969 (NEPA) section of the SAFE I
Rule, NHTSA expressly disclaimed any discretion to alter the preemption
paradigm established by Section 32919 due to the self-sufficiency of
the statute, stressing that ``[a]ny preemptive effect resulting from
this final action is not the result of the exercise of Agency
discretion, but rather reflects the operation and application of the
Federal statute.'' \69\ As such, the
[[Page 25987]]
Agency again characterized any ``preempted standards [as] void ab
initio'' due to the non-discretionary and independent application of
Section 32919.\70\ Due to the express language of Section 32919, NHTSA
continues to believe that the provisions of Section 32919 are self-
executing. Consequently, the Agency has substantial doubts about the
validity of its prior conclusion that Congress provided rulemaking
authority to the Agency to further codify preemption requirements. In
reaching this tentative conclusion, NHTSA notes that the structures of
other parts of EPCA, as well as other Federal statutes, expressly
charge an agency to administer preemption through regulations, and no
such charge exists for NHTSA. For example, a precursor to the
Department of Energy, the Federal Energy Administration, was expressly
directed elsewhere in EPCA to ``prescribe . . . rule[s]'' that preempt
state and local appliance-efficiency standards.\71\ Likewise, other DOT
statutes expressly provide a regulatory, or even adjudicatory, role for
the Department in the preemption analysis. For instance, in the
transportation of hazardous materials context, 49 U.S.C. 5125 directs
the Secretary to adjudicate applications on whether a particular state
standard is ``substantially the same'' as Federal law and, as such,
exempted from statutory preemption.\72\ Similarly, 49 U.S.C. 31141
establishes a very detailed role for DOT in reviewing and preempting
state law pertaining to commercial motor vehicle safety.\73\ Many of
the seminal cases in the Supreme Court's preemption jurisprudence also
concerned statutory schemes that expressly delegated preemption
authorities to the agencies in question.\74\
---------------------------------------------------------------------------
\68\ NHTSA, EPA, The Safer Affordable Fuel-Efficient (SAFE)
Vehicles Rule Part One: One National Program, Final Rule, 84 FR
51310, 51325 (Sept. 27, 2019).
\69\ Id. at 51353-54.
\70\ Id.
\71\ The Energy Policy and Conservation Act of 1975, Public Law
94-163, 89 Stat. 871, section 327(b), recodified as amended at 42
U.S.C. 6297(d).
\72\ 49 U.S.C. 5125(d). The Secretary has delegated this
responsibility to another DOT operating administration, the Pipeline
and Hazardous Materials Safety Administration (PHMSA).
\73\ See 49 U.S.C. 31141 (expressly stating that ``[a] State may
not enforce a State law or regulation on commercial motor vehicle
safety that the Secretary of Transportation decides under this
section may not be enforced'' before enumerating multiple
subsections that define an adjudicatory role for the DOT, complete
with preemption standards and procedures). The Secretary has
delegated this responsibility to another DOT operating
administration, the Federal Motor Carrier Safety Administration
(FMCSA).
\74\ For example, in a set of cases evaluating the preemption of
certain state tort law relating to medical device product liability,
the Supreme Court analyzed U.S. Food and Drug Administration (FDA)
regulations that specifically defined when preemption occurred under
the applicable statute, the Medical Device Amendments (MDA). See
generally Lohr, 518 U.S. at 470 (plurality opinion); Riegel v.
Medtronic, Inc., 552 U.S. 312 (2008). See also 21 U.S.C. 360k; 21
CFR 808.1.
---------------------------------------------------------------------------
As these other statutory provisions demonstrate, Congress
understands how to incorporate legislative rulemaking authority for an
agency expressly and directly into a statutory framework for
preemption--and, in fact, exercised this prerogative elsewhere in EPCA.
These responsibilities range from charging an agency to promulgate
clarifying regulations on the applicability of preemption to
instructing an agency to establish an administrative procedure to
adjudicate exemptions of state law. Moreover, as 49 U.S.C. 31141
demonstrates, when Congress decides to incorporate an agency into the
preemption determination process, the grant of authority is often not
accomplished through an indeterminate delegation, but instead, through
an intricate and comprehensive description of the agency's precise role
in administering the preemption provision.
Within this statutory landscape, the total silence of Section 32919
as to any role for NHTSA in the implementation of preemption seems
instructive. In this context, it now appears to the Agency that
construing Section 32919 to permit NHTSA to issue regulations with the
force of law that regulate and define the scope of preemption, as the
Agency did in the SAFE I Rule, would be akin to reading an entirely new
subsection into the statutory provision. Congress' failure to
explicitly provide DOT authority to define or otherwise regulate the
scope of CAFE preemption--despite specifically incorporating an express
preemption provision into EPCA in Section 32919--casts significant
doubts upon the Agency's prior determination that NHTSA has legislative
rulemaking authority in matters of fuel economy preemption. NHTSA
requests comment on these provisional views.
Finally, contrary to the arguments made in the SAFE I Rule, NHTSA
tentatively believes there is no other statutory source conferring
legislative rulemaking authority on the Agency in matters of fuel
economy preemption. In the SAFE I rulemaking, NHTSA did not claim that
its authority to issue preemption regulations derived from Section
32919.\75\ Instead, NHTSA concluded that its authority arose implicitly
from EPCA, because the Agency argued that it could not carry out its
CAFE standard-setting responsibilities in the face of state regulation
that undermined its authority.\76\ In the SAFE I Final Rule's most
direct discussion of the issue of authority to promulgate regulations
concerning preemption, NHTSA linked the perceived conflict between
EPCA's purposes and state regulation to the general delegation of
authority to the Secretary to carry out his duties. Specifically, after
describing Section 322 as an express authorization for the Secretary of
Transportation ``to prescribe regulations to carry out her duties and
powers,'' and noting that Chapter 329 of Title 49 delegated the
Secretary's authority to NHTSA for EPCA purposes, the Agency concluded
in the SAFE I Rule that it ``ha[d] clear authority to issue this
regulation under 49 U.S.C. 32901 through 32903 to effectuate a national
automobile fuel economy program unimpeded by prohibited State and local
requirements.'' \77\ This is because the Agency characterized the
rulemaking as simply ``carry[ing] out'' the preemption scope of Section
32919.\78\
---------------------------------------------------------------------------
\75\ See generally NHTSA, EPA, The Safer Affordable Fuel-
Efficient (SAFE) Vehicles Rule Part One: One National Program, Final
Rule, 84 FR 51310, 51320 (Sept. 27, 2019).
\76\ See, e.g., id. at 51317.
\77\ Id. at 51320.
\78\ Id.
---------------------------------------------------------------------------
Upon reconsideration, NHTSA is concerned that this rationale was
improper. Section 322 contains statutory language of broad
applicability that extends well beyond the CAFE program and, indeed,
well beyond NHTSA. In light of the preceding discussion, it seems
especially peculiar to derive preemption authority from Section 322
when EPCA already contains an express preemption provision, which does
not provide NHTSA with a role in further defining that preemption with
the force and effect of law. Since Congress already crafted a specific
provision to describe EPCA preemption in Section 32919, the more
general terms of Section 322 would seem of much clearer applicability
if Section 32919 had otherwise delegated NHTSA certain authorities or
responsibilities to carry out. But as discussed above, Congress did
not, in EPCA, appear to charge NHTSA with any authority or
responsibility with respect to preemption regulations. Construing
Section 322's general terms to independently provide NHTSA with the
authority to issue legislative rules on EPCA preemption that override
Section 32919's notable silence as to any role for NHTSA would require
an extraordinarily expansive reading of Section 322.
Moreover, even apart from Section 322, general inferences drawn
from the broad purposes of EPCA do not seem capable of contravening a
clear reading
[[Page 25988]]
of the express preemption provision in Section 32919. As described
above, the SAFE I Rule argued that regulation was needed to resolve a
perceived irreconcilable conflict between state GHG emissions
regulations and ZEV mandates and EPCA's delegation of authority to
NHTSA to set national fuel economy standards.\79\ However, even
assuming that is true, the statutory provision on preemption provides
no role for NHTSA to speak on this issue with the force and effect of
law. The Agency does not believe that a proper statutory reading
permits this unambiguous silence in Section 32919 to be overridden by
intangible inferences extrapolated from EPCA generally.\80\
---------------------------------------------------------------------------
\79\ NHTSA, EPA, The Safer Affordable Fuel-Efficient (SAFE)
Vehicles Rule Part One: One National Program, Final Rule, 84 FR
51310, 51319 (Sept. 27, 2019).
\80\ Even if such a conflict existed, it would seem to only bear
upon an implied (conflict) preemption analysis, not whether NHTSA
had authority to promulgate binding regulations that expressly
governed preemption. Express and implied preemption are district
legal concepts. See, e.g., Geier v. Am. Honda Motor Co., 529 U.S.
861, 872 (2000) (distinguishing between express and implied
preemption). Accordingly, the SAFE I Rule's arguments for implied
(conflict) preemption cannot be used to bootstrap authority to
regulate through legislative rules that expressly codify mandatory
preemption requirements.
---------------------------------------------------------------------------
Likewise, upon reconsideration, NHTSA does not consider any such
general inferences as appropriately addressed through the categorical
rulemaking actions of the SAFE I Rule. For example, a substantial
portion of the SAFE I Rule drew from principles of implied conflict
preemption, seeking to label state regulation as preempted due to an
irreconcilable conflict with Federal CAFE standards. Moreover, at most,
the SAFE I Rule discussed compliance technologies specific to only one
example of state standards and one example of Federal standards.\81\
Yet the SAFE I Rule sought to extrapolate upon such a limited analysis
to justify a pronouncement of preemption for any state greenhouse gas
standards or ZEV requirements. The Agency now recognizes that implied
preemption, which arises primarily in a judicial context, involves
principles that are most appropriately applied by reference to specific
state programs, rather than in the abstract and categorical manner of
the SAFE I Rule's regulations.\82\ While NHTSA still retains
interpretative authority to set forth its advisory views on whether a
state regulation impermissibly conflicts with Federal law, such
authority does not support the power to codify binding legislative
rules on the matter.
---------------------------------------------------------------------------
\81\ The terminology used throughout the SAFE I rulemaking
analysis mirrors the standards used by courts to apply the judicial
doctrine of implied (conflict) preemption. For instance, the SAFE I
Preambles repeatedly invoked conflict preemption standards--
``frustrates,'' ``conflicts,'' and ``interferes''--to label state
programs preempted. See City of New York, 486 U.S. at 64 (``The
statutorily authorized regulations of an agency will pre-empt any
state or local law that conflicts with such regulations or
frustrates the purposes thereof.'') (emphasis added); See, e.g.,
Wyeth, 555 U.S. at 576 (``This Court has recognized that an agency
regulation with the force of law can pre-empt conflicting state
requirements.'') (emphasis added); See, e.g., Patriotic Veterans,
Inc. v. Indiana, 736 F.3d 1041, 1051 (7th Cir. 2013) (describing how
under the doctrine of conflict preemption, state law may be
preempted ``if it interferes'' with Federal law) (emphasis added).
\82\ See, e.g., Wyeth, 555 U.S. at 576 (noting that implied
preemption principally applies after ``the Court has performed its
own conflict determination relying on the substance of state and
federal law and not on agency proclamations of pre-emption.'').
---------------------------------------------------------------------------
Thus, upon reconsideration, NHTSA has substantial doubts about its
authority to issue legislative rules concerning EPCA preemption. Thus,
the SAFE I Rule's effort to establish such rules likely exceeded the
Agency's authority. For this reason, and for the additional reasons
discussed herein, NHTSA is now of the view that the SAFE I Rule rests
upon an infirm foundation and should be repealed. We seek comment on
this tentative determination.
F. Proposed Repeal of Preemption Interpretations in the SAFE I Rule
In addition to the proposed repeals of the codified provisions
promulgated in the SAFE I Rule, NHTSA also proposes to rescind the
accompanying substantive analysis in the Preambles of the Proposed and
Final SAFE I Rules--including positions on California's GHG and ZEV
programs. Descriptions of California's GHG and ZEV regulations, as well
as regulations of states adopting those regulations under Section 177
of the Clean Air Act, were repeatedly used throughout the SAFE I
rulemaking analysis as illustrative of why the Agency decided to codify
the express preemption text in parts 531 and 533 and their accompanying
Appendices. For example, after explaining the specific preemption
regulations, the Agency noted that ``[i]n the proposal, NHTSA
described, as an example, California's ZEV mandate, which manufacturers
must comply with individually for each state adopting California's
mandate.'' \83\ Therefore, these substantive positions on state law
were presented in the SAFE I rulemaking as exemplary of the need for
regulations, and the finalized text sought to preempt these precise
state programs. Consequently, NHTSA considers such examples and
substantive positions as inextricably linked to the regulatory text
and, as such, would also be rescinded upon the proposed removal of the
regulations.
---------------------------------------------------------------------------
\83\ NHTSA, EPA, The Safer Affordable Fuel-Efficient (SAFE)
Vehicles Rule Part One: One National Program, Final Rule, 84 FR
51310, 51314 (Sept. 27, 2019) (emphasis added).
---------------------------------------------------------------------------
However, to be abundantly clear, NHTSA is also proposing in this
document to repeal any interpretative positions regarding EPCA
preemption that may be contained within the Preambles of the SAFE I
NPRM and Final Rule regardless of whether they are linked to the
codified text. This includes any views on whether particular state
motor vehicle GHG emissions programs or ZEV mandates conflict with or
``relate to'' CAFE standards or are otherwise preempted by Section
32919. Given the Agency's concerns about the lack of legislative
rulemaking authority on matters of EPCA preemption, any surviving
substantive views on the topic would constitute, at most,
interpretative rules.\84\ As such, their repeal would not require the
notice and comment procedures set forth in 5 U.S.C. 553. Nevertheless,
an agency may find it useful and prudent to seek public comment on
interpretations or other agency actions as a matter of good government,
and NHTSA is doing so here. Due to the anticipated substantial public
interest in this action, NHTSA's interest in gaining a broad array of
perspectives on its change in course, and the well-established utility
of notice and comment procedures, the Agency is still including a
repeal of these interpretations as part of the proposal rather than
immediately finalizing a repeal of these views in this document.
---------------------------------------------------------------------------
\84\ See, e.g., Am. Tort Reform Ass'n v. OSHA, 738 F.3d 387, 394
(D.C. Cir. 2013). In addition, the following discussion and
rationales would also apply to the codified text that NHTSA proposes
to repeal above if that text were determined to be an interpretative
rule rather than a legislative rule.
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At this time, the Agency is not proposing to replace any such
interpretations with further views on the relationship between state
motor vehicle GHG emissions programs or ZEV mandates and EPCA
preemption. Instead, the Agency is exercising its rulemaking authority
under 5 U.S.C. 551 to propose simply repealing, rather than amending,
any such interpretative positions or interpretative rules of the
Agency. Several considerations incline the Agency to propose repealing
such interpretations, rather than leave them undisturbed or amend them
through this rulemaking.
[[Page 25989]]
1. Repealing the Interpretive Provisions Makes Clear That All Aspects
of the SAFE I Rule Have Been Repealed
First, repealing the interpretations treats them consistently with
the codified rules, which we are here proposing for repeal. While the
Agency possesses authority to issue advisory, interpretative rules on
matters pertaining to EPCA preemption, repealing and withdrawing the
interpretative positions of the SAFE I rulemaking promotes clarity by
ensuring that such views are withdrawn along with their accompanying
regulatory text, rather than leaving an ambiguity as to whether a
particular statement or provision regarding EPCA preemption remains in
effect. The ambiguity regarding the legal nature and effect of the
codified text and positions announced in the SAFE I Rule would only
amplify confusion if NHTSA proposed to repeal only parts of the
rulemaking.
The lack of clarity regarding this distinction is pervasive in the
SAFE I Rule, which often blurred the line between when the Agency was
attempting to merely articulate views on preemption under Section
32919, which were merely advisory, and when NHTSA sought to
categorically forbid state action through Federal preemption. For
example, the Preambles to the SAFE I Rule repeatedly labeled certain
types of state GHG regulation and ZEV mandates as categorically
preempted and prohibited, even if those programs were not expressly
enumerated in the plain language of the finalized regulations.
Specifically, the Preamble to the SAFE I final rule unequivocally
stressed that ``state programs to limit or prohibit tailpipe GHG
emissions or establish ZEV mandates are preempted,'' \85\ and that the
SAFE I Rule was a ``final decision from the agencies that States do not
have the authority to set GHG standards or establish ZEV mandates.''
\86\ At the same time, the Preamble also contained other statements in
which the Agency's position is described more as an interpretation of
the scope of Section 32919. For instance, NHTSA articulated in the
Preamble a ``view . . . that ZEV mandates are preempted by EPCA'' \87\
The intermittent manner in which the Agency described the force of
preemption in the Preamble intermingled any interpretative statements
regarding Section 32919 with the more binding definitions of preemption
the Agency sought to make in the Appendices. The Agency is also
concerned that the manner in which the Preamble described the Agency's
role with respect to EPCA preemption does not accurately reflect the
limits to the Agency's preemption authority described in the preceding
section.
---------------------------------------------------------------------------
\85\ Id. at 51311.
\86\ Id.
\87\ Id. at 51314.
---------------------------------------------------------------------------
2. Repealing All Aspects of the SAFE I Rule Provides the Agency With a
Clean Slate on This Issue
Further, repealing all aspects of the SAFE I Rule will restore the
Agency to a clean slate to appropriately exercise its interpretative
discretion on matters of EPCA preemption. In this respect, the Agency
is mindful that an ``administrative interpretation [which] alters the
federal-state framework by permitting federal encroachment upon a
traditional state power'' merits particularly careful consideration to
fully account for the significant federalism interests of states.\88\
Likewise, Executive Order 13132 recognizes the importance of
considering federalism interests, stressing that ``[t]he national
government should be deferential to the States when taking action that
affects the policymaking discretion of the States and should act only
with the greatest caution where State or local governments have
identified uncertainties regarding the constitutional or statutory
authority of the national government.'' \89\ Here, states have
indicated that the standards at issue were developed to protect the
states' residents from dangerous air pollution and the states' natural
resources from the threats posed by climate change. In a number of
cases, these policies also served as components of the states'
compliance with air pollution mitigation requirements delegated to
states under the Federal Clean Air Act.
---------------------------------------------------------------------------
\88\ See Solid Waste Agency of N. Cook Cty. v. U.S. Army Corps
of Engineers, 531 U.S. 159, 173 (2001).
\89\ Executive Order 13132, Federalism, Sec. 1(a) (Aug. 4,
1999).
---------------------------------------------------------------------------
Upon reconsideration, NHTSA is concerned that the categorical
preemption views announced in the SAFE I Rule were insufficiently
tailored to account for these federalism interests because they label
an entire segment of state and local regulation as preempted,
irrespective of the precise contours of any particular programs,
regulations, or technological developments that may arise. This is not
to say that the Agency cannot approach the question of whether a
particular state or local law is preempted without certain general
principles or overarching views, either at the time it is considering a
particular matter or in an advance advisory opinion, but it is entirely
different to declare that such general views are incontrovertible or
absolute in a way that does not account for the nuanced and careful
consideration of program-specific facts called for in preemption
analyses.
Thus, the Agency believes that a clean slate would more
appropriately enable a particularized consideration of how the
specifics of state programs may ``relate to'' fuel economy standards
under Section 32919. Such an approach would be more reflective of the
importance of federalism concerns and of the kind of program-specific
factual inquiry often involved in identifying whether a state program
is preempted under the statute. This type of factual, case-specific
approach is consistent with how courts generally consider both the
application of express preemption provisions and, even more so, claims
of implied conflict preemption. Such courts remain available to resolve
issues that may arise in the context of applying EPCA preemption, such
as in legal challenges to particular state programs. In fact, should
such a legal challenge arise, this narrower approach affords a better
opportunity to provide to the presiding court, if appropriate, a more
tailored and relevant perspective on the Agency's view of whether the
state law at issue is preempted. To the extent NHTSA sets forth any
such advisory views of how EPCA preemption may affect state programs,
considering those programs in a more specific and narrow context also
enables the Agency to more fully leverage its automotive expertise in
understanding the particular vehicle technologies implicated by the
respective regulations. These same advantages also apply if the Agency
elects, as appropriate, to provide similar views outside of the
litigation context as well. The clean slate facilitated by this
approach is fully consistent with NHTSA's previous approach to EPCA
preemption.
In contrast, establishing a clean slate and clearly communicating
that NHTSA's views on EPCA preemption, while advisory, do not
independently preempt, encourages states and political subdivisions to
more freely devise programs that can potentially coexist with Section
32919. Therefore, the Agency is concerned that retaining the views
announced in the SAFE I Rule, and categorically foreclosing
consideration of any such programs that states may otherwise pursue,
unnecessarily and inappropriately restricts potential policy innovation
at the State and local level.
[[Page 25990]]
Further, the Agency believes that repealing all aspects of the SAFE
I Rule and restoring a clean slate is appropriate because the Agency
has substantial doubts about the substantive EPCA preemption
conclusions reached in the SAFE I Rule. The proposal, final rule, and
ensuing litigation for the SAFE I Rule generated an extensive array of
public comments, scholarship, and legal briefing regarding both the
procedural and substantive matters of EPCA preemption. While NHTSA is
not announcing any new substantive views regarding EPCA preemption in
this document, the Agency recognizes that many of these writings raised
very detailed and thorough arguments advocating for a different reading
and application of Section 32919 than was adopted by NHTSA in the SAFE
I Rule.\90\
---------------------------------------------------------------------------
\90\ For instance, in 2019 and 2020, Professor Greg Dotson with
the University of Oregon School of Law published two law review
articles dedicated entirely to the Agencies' SAFE I rulemaking. In
these articles, Professor Dotson comprehensively analyzed applicable
legislative and regulatory history, before suggesting that Congress
did not intend to preempt state GHG standards or ZEV mandates under
Section 32919. Similar conclusions have been reached by other
commenters and litigants in the SAFE I rulemaking and consolidated
litigation.
---------------------------------------------------------------------------
Although the Agency does not propose to adopt any substantive views
in this proposal, NHTSA acknowledges that these substantive arguments
merit careful consideration and raise significant doubts for the Agency
as to the validity of the positions taken in SAFE I. As long as the
SAFE I Rule statements remain in place, any opportunity for a more
nuanced consideration of particular state programs is significantly
diminished. Moreover, if they remained in place, the SAFE I views would
inaccurately suggest that the Agency remained certain about substantive
issues for which, in reality, the Agency harbored significant doubts
and continued to reconsider. Accordingly, NHTSA preliminarily believes
that even if it does not yet wish to articulate new substantive views,
withdrawing any interpretations from the SAFE I Rule is a necessary and
appropriate next step to ensure the Agency can fully exercise its
interpretative and policymaking discretion to do so in a more nuanced
and careful way at a later point, if warranted.
Due to these concerns, the Agency has tentatively determined that
it is appropriate to first repeal the interpretative positions, rather
than also to include a new interpretation in this proposal, as doing so
enables the most efficient and streamlined removal of NHTSA's express
preemption regulations. If the Agency finalizes its view that the
express preemption regulations in parts 531 and 533 indeed exceed
NHTSA's delegated authority, repealing the ultra vires regulations
quickly is imperative to restore NHTSA's regulations to their properly
authorized scope, which remains NHTSA's paramount objective in this
proposal. In contrast, broadening the scope of this proposal to include
new substantive interpretations regarding EPCA's application to state
motor vehicle emissions regulations may significantly expand both the
purview of the Agency's analysis and the scope of public input on the
proposal, and the time needed to complete this action. Therefore,
repealing but not replacing the Agency's substantive views on
preemption provides the additional time needed to fully reconsider the
issue without leaving any implication that the statements in the SAFE I
rulemaking remain in effect or inappropriately dampening state
regulatory activity in the interim.
Accordingly, NHTSA is proposing to fully withdraw any
interpretative statements or views espoused in the Preambles of the
SAFE I Rule to ensure that no ambiguity exists regarding whether the
Agency continues to endorse such statements. Such a rescission and
repeal offers the opportunity to establish a clean slate, in which no
prior overstatements as to NHTSA's role lead to confusion about a
party's legal obligations or the weight the Agency's statements should
carry and no interpretative statements with which the Agency may no
longer agree could influence state actions.
G. Repealing the Regulations and Positions Announced in the SAFE I
Rulemaking Remains Appropriate Even if NHTSA Possessed the Authority
for the Rulemaking
Even apart from the Agency's substantial concerns discussed above,
the Agency is also proposing a complete repeal of the codified
provisions and interpretative views as independently worthwhile steps.
Upon reconsideration, even if it could do so lawfully, NHTSA no longer
deems it necessary to speak with the force and effect of law on matters
of EPCA preemption.
At the outset, the Agency considers the codified text in Sec. Sec.
531.7 and 533.7 unnecessary, as they merely repeat the statutory text
and, thus, have no effect beyond the statute simply by virtue of their
codification in NHTSA's regulations. In fact, NHTSA is concerned that
their verbatim recitation in the CFR could even be confusing to some,
who assume some subtle difference must exist in the statutory and
regulatory provisions. As such, the Agency no longer considers the two
provisions to offer any utility and proposes their repeal. As for the
remaining two Appendices and associated Preamble text, the Agency
remains concerned that, even if NHTSA possessed authority for the
rulemaking, the categorical manner in which the SAFE I Rule applied
preemption does not appropriately account for the importance of a more
nuanced approach that considers state programs on a more particularized
basis. NHTSA believes this more nuanced approach could better balance
federalism interests by avoiding a sweeping and premature prohibition
of all state and local programs and instead evaluating such programs
more specifically. Further, NHTSA now has significant doubts about the
validity of its preemption analysis as applied to the specific state
programs discussed in SAFE I. Therefore, for both these reasons and the
further discussion on the subject that appears in the preceding
section, NHTSA considers a proposal to repeal the regulations and
interpretations appropriate irrespective of the Agency's level of
authority on preemption.
H. Rulemaking Analyses and Notices
1. Executive Order 12866, Executive Order 13563, and DOT Regulatory
Policies and Procedures
NHTSA has considered the impact of this rulemaking action under
Executive Order 12866, Executive Order 13563, and the Department of
Transportation's regulatory policies and procedures. This rulemaking
document has been considered a ``significant regulatory action'' under
Executive Order 12866. At this stage, NHTSA does not believe that this
rulemaking would be ``economically significant,'' as it would not
directly reinstate any state programs or otherwise affect the self-
executing statutory preemption framework in 49 U.S.C. 32919.
2. Regulatory Flexibility Act
Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601 et seq.,
as amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996), whenever an agency is required to publish a notice
of proposed rulemaking or final rule, it must prepare and make
available for public comment a regulatory flexibility analysis that
describes the effect of the rule on small entities (i.e., small
businesses, small organizations, and small governmental
[[Page 25991]]
jurisdictions). No regulatory flexibility analysis is required,
however, if the head of an agency certifies the proposal will not have
a significant economic impact on a substantial number of small
entities.
NHTSA has considered the impacts of this document under the
Regulatory Flexibility Act and certifies that this rulemaking will not
have a significant economic impact on a substantial number of small
entities. The following provides the factual basis for this
certification under 5 U.S.C. 605(b). This proposed action would only
concern the question of preemption; the action does not set CAFE or
emissions standards themselves. The preemption regulations at issue in
this proposal have no direct effect on any private entities, regardless
of size, because the rules do not regulate private entities. Thus, any
effect on entities implicated by this regulatory flexibility analysis
is merely indirect.
3. Executive Order 13132 (Federalism)
Executive Order 13132 requires NHTSA to develop an accountable
process to ensure ``meaningful and timely input by State and local
officials in the development of regulatory policies that have
federalism implications.'' \91\ ``Policies that have federalism
implications'' is defined in the Executive order to include regulations
that have ``substantial direct effects on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government.'' \92\ Executive Order 13132 imposes additional
consultation requirements on two types of regulations that have
federalism implications: (1) A regulation that imposes substantial
direct compliance costs, and that is not required by statute; and (2) a
regulation that preempts State law.\93\
---------------------------------------------------------------------------
\91\ Executive Order 13132, Federalism, Sec. 1(a) (Aug. 4,
1999).
\92\ Id. at Sec. 1(a).
\93\ Id. at Sec. 6(b), (c).
---------------------------------------------------------------------------
While this proposal concerns matters of preemption, it does not
propose either type of regulation covered by Executive Order 13132's
consultation requirements. Rather, the action in this proposal
expressly proposes to repeal regulations and positions that sought to
preempt State law. Thus, this proposal does not implicate the
consultation procedures that Executive Order 13132 imposes on agency
regulations that would either preempt state law or impose substantial
direct compliance costs on states.
4. Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995, Public Law 104-4,
requires agencies to prepare a written assessment of the cost, benefits
and other effects of proposed or final rules that include a Federal
mandate likely to result in the expenditure by State, local, or tribal
governments, in the aggregate, or by the private sector, of more than
$100 million annually. Because this rulemaking is not expected to
include a Federal mandate, no unfunded mandate assessment will be
prepared.
5. National Environmental Policy Act
The National Environmental Policy Act of 1969 (NEPA) \94\ directs
that Federal agencies proposing ``major Federal actions significantly
affecting the quality of the human environment'' must, ``to the fullest
extent possible,'' prepare ``a detailed statement'' on the
environmental impacts of the proposed action (including alternatives to
the proposed action).\95\ However, there are some instances where NEPA
does not apply to a particular proposed action.
---------------------------------------------------------------------------
\94\ 42 U.S.C. 4321-4347.
\95\ 42 U.S.C. 4332.
---------------------------------------------------------------------------
One consideration is whether the action is a non-discretionary
action to which NEPA may not apply.\96\ In this document, NHTSA has
expressed its substantial concerns over whether Congress provided
legislative rulemaking authority to the Agency with regard to 49 U.S.C.
32919. To the extent that the SAFE I Rule purported to dictate or
proclaim EPCA preemption with the force of law, the Agency expresses a
concern throughout this proposal that such actions exceed the
Congressional grant of authority to NHTSA under EPCA. If NHTSA in fact
exceeded its authority, the Agency believes that the only legally
appropriate course of action would be to realign its regulatory
activities to their properly authorized scope by removing the
regulatory language and appendices from the Code of Federal Regulations
and repealing the corresponding analysis of particular state GHG
emissions programs in the SAFE I Rule. Courts have long held that NEPA
does not apply to nondiscretionary actions by Federal agencies.\97\ If
NHTSA were to conclude in its final rule that it lacked authority to
issue regulations mandating preemption or otherwise categorically
proclaiming state regulations to be preempted, it must therefore
conclude that NEPA does not apply to this action.
---------------------------------------------------------------------------
\96\ See Dept. of Transp. v. Public Citizen, 541 U.S. 752, 768-
69 (2014) (holding that the agency need not prepare an environmental
impact statement (EIS) in addition to an environmental assessment
(EA) and stating, ``Since FMCSA has no ability categorically to
prevent the cross-border operations of Mexican motor carriers, the
environmental impact of the cross-border operations would have no
effect on FMCSA's decisionmaking--FMCSA simply lacks the power to
act on whatever information might be contained in the EIS.'').
\97\ See, e.g., Public Citizen, 541 U.S. 752; Milo Cmty. Hosp.
v. Weinberger, 525 F.2d 144 (1st Cir. 1975); State of South Dakota
v. Andrus, 614 F.2d 1190 (8th Cir. 1980); Citizens Against Rails-to-
Trails v. Surface Transp. Bd., 267 F.3d 1144 (D.C. Cir. 2001);
Sierra Club v. Babbitt, 65 F.3d 1502 (9th Cir. 1995).
---------------------------------------------------------------------------
The Agency also notes that the Supreme Court has characterized an
express preemption statue's scope as a legal matter of statutory
construction, in which ``the purpose of Congress is the ultimate
touchstone of pre-emption analysis.'' Cipollone v. Liggett Grp., Inc.,
505 U.S. 504, 516 (1992). In turn, ``Congress' intent, of course,
primarily is discerned from the language of the pre-emption statute and
the `statutory framework' surrounding it.'' Lohr, 518 U.S. at 485-86
(plurality opinion). This particularly applies ``[i]f the statute
contains an express pre-emption clause[. Then] the task of statutory
construction must in the first instance focus on the plain wording of
the clause, which necessarily contains the best evidence of Congress'
pre-emptive intent.'' CSX Transp., Inc. v. Easterwood, 507 U.S. 658,
664 (1993).
In light of this background, as both this proposal and the SAFE I
Rule itself consistently made clear, the statutory text of 49 U.S.C.
Section 32919 governs express preemption through self-executing terms.
Specifically, the Preamble to the SAFE I Final Rule stressed that
``[a]ny preemptive effect resulting from this final action is not the
result of the exercise of Agency discretion, but rather reflects the
operation and application of the Federal statute.'' \98\ NHTSA asserted
that it did not have authority to waive any aspect of EPCA preemption
no matter the potential environmental impacts; rather, ``preempted
standards are void ab initio.'' \99\ On this basis, the Agency
concluded that NEPA did not apply to its action.
---------------------------------------------------------------------------
\98\ 84 FR 51310, 51353-54.
\99\ Id. at 51354.
---------------------------------------------------------------------------
In this document, NHTSA does not seek to take any new substantive
step or announce any new substantive view. Instead, NHTSA proposes only
to withdraw the SAFE I Rule, which was an action for which the Agency
already determined NEPA did not apply as the operative statute
continued to govern any environmental effects from preemption. As
before, the express preemption provision of Section 32919
[[Page 25992]]
remains enacted, in full and unchanged, irrespective of the SAFE I
Rule, this proposal, or any subsequent final rule. As such, even though
NHTSA now expresses doubts about its substantive conclusions in the
SAFE I Rule and proposes to withdraw those views here, the Agency
continues to believe that it did not and cannot dictate or define by
law the self-executing scope of preemption under Section 32919. This is
because of the Agency's belief expressed herein that its views on
Section 32919, while potentially informative and advisory, do not carry
the force and effect of law.\100\ Therefore, this proposal likewise
would not change the statutorily set scope of express preemption and,
as such, the Agency does not consider this proposal to result in any
environmental impact that may arise from such preemption.
---------------------------------------------------------------------------
\100\ See supra Sec. E(3). If NHTSA did, in fact, have authority
to establish the scope of preemption with the force and effect of
law, and if the Agency inappropriately failed to incorporate
environmental considerations into its decision in the SAFE I Rule,
then establishing a clean slate and restoring the scope to the
status quo ante would rectify this overstep. See, e.g., supra Sec.
F(2). In the event NHTSA is adjudged to possess such binding
authority and decides to exercise it in a future rulemaking, such a
clean state will allow NHTSA to include such environmental
considerations, if appropriate, at that time.
---------------------------------------------------------------------------
6. Executive Order 12988 (Civil Justice Reform)
Pursuant to Executive Order 12988, ``Civil Justice Reform,'' \101\
NHTSA has determined that this proposed rule does not have any
retroactive effect.
---------------------------------------------------------------------------
\101\ 61 FR 4729 (Feb. 7, 1996).
---------------------------------------------------------------------------
7. Paperwork Reduction Act
In accordance with the Paperwork Reduction Act of 1980, NHTSA
states that there are no requirements for information collection
associated with this rulemaking action.
8. Privacy Act
Please note that anyone is able to search the electronic form of
all comments received into any of DOT's dockets by the name of the
individual submitting the comment (or signing the comment, if submitted
on behalf of an association, business, labor union, etc.). You may
review DOT's complete Privacy Act Statement in the Federal Register
published on April 11, 2000 (Volume 65, Number 70; Pages 19477-78), or
you may visit http://dms.dot.gov.
List of Subjects in 49 CFR Parts 531 and 533
Fuel economy.
Proposed Regulatory Text
For the reasons stated in the preamble, the National Highway
Traffic Safety Administration proposes to amend 49 CFR parts 531 and
533 as set forth below.
PART 531--PASSENGER AUTOMOBILE AVERAGE FUEL ECONOMY STANDARDS
0
1. The authority citation for part 531 continues to read as follows:
Authority: 49 U.S.C. 32902; delegation of authority at 49 CFR
1.95.
Sec. 531.7 [Removed]
0
2. Remove Sec. 531.7.
Appendix B [Removed]
0
3. Remove appendix B to part 531.
PART 533--LIGHT TRUCK FUEL ECONOMY STANDARDS
0
4. The authority citation for part 533 continues to read as follows:
Authority: 49 U.S.C. 32902; delegation of authority at 49 CFR
1.95.
Sec. 533.7 [Removed]
0
5. Remove Sec. 533.7.
Appendix B [Removed]
0
6. Remove appendix B to part 533.
Issued on April 22, 2021, in Washington, DC, under authority
delegated in 49 CFR 1.81, 1.95, and 501.4
Steven S. Cliff,
Acting Administrator.
[FR Doc. 2021-08758 Filed 5-11-21; 8:45 am]
BILLING CODE 4910-59-P