[Federal Register Volume 86, Number 247 (Wednesday, December 29, 2021)]
[Rules and Regulations]
[Pages 74236-74267]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-28115]



[[Page 74235]]

Vol. 86

Wednesday,

No. 247

December 29, 2021

Part II





 Department of Transportation





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National Highway Traffic Safety Administration





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49 CFR Parts 531 and 533





Corporate Average Fuel Economy (CAFE) Preemption; Final Rule

Federal Register / Vol. 86 , No. 247 / Wednesday, December 29, 2021 / 
Rules and Regulations

[[Page 74236]]


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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: Final rule.

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SUMMARY: This document finalizes NHTSA's proposal to repeal in full 
``The Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule Part One: 
One National Program,'' published September 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. NHTSA originally proposed to repeal the SAFE I Rule 
in a Notice of Proposed Rulemaking entitled ``Corporate Average Fuel 
Economy Preemption,'' which was published on May 12, 2021. After 
evaluating all public comments submitted for this Proposal, the Agency 
is finalizing the Proposal. As such, the Agency is repealing all 
regulatory text and appendices promulgated in the SAFE I Rule. In doing 
so, the Agency underscores that any positions announced in 
preambulatory statements of prior NHTSA rulemakings, including in the 
SAFE I Rule, which purported to define the scope of preemption under 
the Energy Policy and Conservation Act (EPCA), do not reflect the 
Agency's reconsidered understanding of its proper role in matters of 
EPCA preemption. Through this final rule, NHTSA makes clear that no 
prior regulations or positions of the Agency reflect ongoing NHTSA 
views on the scope of preemption of states or local jurisdictions under 
EPCA.

DATES: This action is effective on January 28, 2022.
    Petitions for Reconsideration: Pursuant to 49 CFR 553.35, petitions 
for reconsideration of this final rule must be received not later than 
February 14, 2022.

ADDRESSES: Any petitions for reconsideration should refer to the docket 
number of this document and be submitted to: Deputy Administrator, 
National Highway Traffic Safety Administration, 1200 New Jersey Avenue 
SE, West Building, Fourth Floor, Washington, DC 20590.

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

I. Overview of Final Rule
    A. Summary of Proposal
    B. Public Participation Opportunities and General Overview of 
Comments
    C. Finalized Approach
II. Final Rule
    A. This Final Rule Is a Proper Exercise of NHTSA's 
Reconsideration Authority
    B. NHTSA Is Finalizing Its Repeal of the SAFE I Rule in Its 
Entirety
III. Rulemaking Analyses and Notices
    1. Executive Order 12866, Executive Order 13563, and DOT 
Regulatory Policies and Procedures
    2. Executive Order 13990
    3. Executive Order 14008
    4. Regulatory Flexibility Act
    5. Executive Order 13132 (Federalism)
    6. Unfunded Mandates Reform Act of 1995
    7. National Environmental Policy Act
    8. Executive Order 12988 (Civil Justice Reform)
    9. Paperwork Reduction Act
    10. Privacy Act
    11. Congressional Review Act

I. Overview of Final Rule

A. Summary of Proposal

    On May 12, 2021, NHTSA published in the Federal Register a Notice 
of Proposed Rulemaking (NPRM or Proposal) entitled ``Corporate Average 
Fuel Economy (CAFE) Preemption,'' which set forth the proposal that 
NHTSA is finalizing today.\1\ As explained in the Proposal, this NPRM 
considered a repeal of NHTSA's portion of a joint agency action 
completed by NHTSA and the Environmental Protection Agency (EPA) in 
2019, ``The Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule Part 
One: One National Program'' (SAFE I Rule or Rule).\2\ In the SAFE I 
Rule, NHTSA and EPA finalized a joint agency action relating to the 
state regulation of greenhouse gas (GHG) emissions from motor vehicles 
and state mandates for zero emission vehicles (ZEVs). In that action, 
NHTSA codified regulatory text and appendices, which 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 published further statements in the 
preambles of the SAFE I rulemaking, which described various types of 
state regulations as preempted. As part of the SAFE I action, EPA also 
withdrew portions of a waiver that EPA had previously extended to the 
California Air Resources Board (CARB) under Section 209 of the Clean 
Air Act to regulate new motor vehicle emissions through GHG standards 
and a ZEV mandate.\3\
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    \1\ See DOT, NHTSA, Notice of Proposed Rulemaking, Corporate 
Average Fuel Economy (CAFE) Preemption, 86 FR 25980 (May 12, 2021) 
(referred to in subsequent citations as ``CAFE Preemption NPRM'').
    \2\ See generally NHTSA, EPA, Withdrawal of Waiver; Final Rule, 
The Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule Part One: 
One National Program, Final Rule, 84 FR 51310 (Sept. 27, 2019).
    \3\ Unless otherwise stated herein, all references to the SAFE I 
Rule and any associated discussions in this final rule refer only to 
NHTSA's portions of the SAFE I action and do not include any EPA 
actions on the California waiver.
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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, 
NHTSA, and EPA to immediately review and consider suspending, revising, 
or rescinding their respective portions of the SAFE I Rule. NHTSA's 
resulting comprehensive assessment of the SAFE I Rule identified 
potential problems relating to both the legal authority claimed by 
NHTSA for the rulemaking and the degree to which the categorical 
prohibitions announced by the Agency failed to appropriately account 
for the substantial and often nuanced state interests in the measures 
purportedly preempted by the SAFE I Rule. As a result of these 
considerations, NHTSA published the NPRM, to propose a repeal of the 
SAFE I Rule and to solicit public comment on the Agency's concerns 
about the legality and prudence of the rulemaking. On April 28, 2021, 
EPA outlined its own review of the EPA aspects of the SAFE I joint 
agency action, publishing a Notice of Opportunity for Public Hearing 
and Comment that proposed a reconsideration of EPA's withdrawal of 
California's waiver under the Clean Air Act.\4\ Both agencies have 
expressly recognized that their respective reconsideration proposals 
are separate, independent proceedings.\5\
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    \4\ See generally EPA, Notice of Opportunity for Public Hearing 
and Comment, 86 FR 22421 (Apr. 28, 2021).
    \5\ See id. at 22422 n.3 (``This action is being issued only by 
EPA and, therefore, does not bear upon any future or potential 
action NHTSA may take regarding its decision or pronouncements in 
SAFE I.''); CAFE Preemption NPRM, 86 FR 25981 n.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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    In the CAFE Preemption NPRM, NHTSA proposed to repeal the SAFE I 
Rule for several independent reasons. First, the Agency repeatedly 
expressed substantial doubts regarding the legal validity of the Rule. 
As the NPRM explained, NHTSA became concerned about whether the Agency 
possesses the authority to define the scope of EPCA through rulemaking. 
Accordingly, NHTSA proposed to repeal and withdraw the codified 
regulations and appendices, as well as any associated interpretations 
or views on EPCA preemption contained in the SAFE I Rule, including in 
the regulatory text of Sections 531.7, 533.7, and appendices B to Parts 
531 and 533.
    In the Proposal, NHTSA recognized that the statutory preemption 
provision in EPCA, Section 32919, was self-executing. In this respect, 
Section 32919 is able to preempt state or local laws directly, without 
the need for a DOT or NHTSA regulation that further implements either 
EPCA preemption or this particular statutory provision. As such, the 
statutory provision is both standalone and fails to articulate any role 
for the Agency in further dictating a preemptive scope. Accordingly, 
the NPRM proposed that Section 32919 and EPCA were more appropriately 
read as indicating that Congress did not intend to empower NHTSA to 
define preemption in this manner. As a result, NHTSA's Proposal 
expressed concern that in the SAFE I Rule, the Agency acted outside of 
its delegated authority by publishing regulations and pronouncements 
that sought to do just such a thing. Accordingly, the NPRM proposed to 
repeal the SAFE I Rule.
    In addition, the Proposal also articulated a separate basis for 
repealing the entirety of the SAFE I Rule, which rested upon the 
inappropriateness of such a sweeping pronouncement of preemption. Even 
if EPCA had imbued NHTSA with power to dictate preemption through 
regulations, the expansive manner in which this authority was wielded 
in the SAFE I rulemaking failed to appropriately account for a variety 
of important considerations. These include legally relevant factors, 
such as the substantial federalism interests of states and local 
jurisdictions who had long relied on programs to address environmental 
hazards in their local communities or comply with other federal air 
pollution requirements. In addition, the categorical and generally 
applicable scope of the SAFE I Rule also precluded consideration of 
other fact-specific attributes of particular programs, many of which 
represent diverse characteristics that bear upon the application of 
EPCA preemption and the accuracy of any ensuing preemption analysis. 
Many of these factors--some of which were not even discussed in the 
SAFE I rulemaking--strongly suggest that a more considered and 
circumscribed dispensation of any preemption authority would more 
narrowly tailor any preemptive pronouncements to better account for the 
diverse, nuanced, and relied upon federalism interests of the preempted 
state governments and their constituents. As described further below, 
these concerns were raised and expressed by a significant number of 
public comments, especially from those local jurisdictions most 
affected by the rulemaking. These jurisdictions described numerous 
unique considerations regarding their programs that the SAFE I Rule's 
absolute proclamation of preemption did not fully contemplate. These 
considerations reflected the Agency's similar concerns in the NPRM, 
which proposed to repeal the SAFE I Rule in its entirety in order to 
establish a ``clean slate,'' that restores NHTSA's longstanding 
practice of undertaking a more careful and particularized role in the 
EPCA preemption discourse.
    Finally, even apart from the lack of rulemaking authority and the 
overly broad manner of the SAFE I Rule's prohibitions, the NPRM also 
proposed a repeal of the SAFE I Rule in order to remove the regulation 
that overcomplicated or potentially confused an otherwise direct 
application of Section 32919's statutory standards. In connection with 
a proposed repeal of the regulatory text from the SAFE I Rule, the NPRM 
also proposed to clarify that, to the extent prior statements from 
rulemaking preambles (from the SAFE I Rule or otherwise) discussed 
aspects of EPCA preemption or could be read as interpretative views on 
the subject, those statements should not be read as continuing views of 
the Agency. While this clarification was not legally necessary, NHTSA 
still considered it worthwhile because the inconsistent nature of many 
of the Agency's prior statements on EPCA preemption and the oftentimes 
imperative language utilized in such statements--especially during the 
SAFE I rulemaking--risked a confusing landscape in which regulated 
entities and the public were unsure of the precise legal effect of 
Agency statements that purported to control EPCA's preemptive reach. 
Moreover, NHTSA felt that many of those statements, particularly in the 
preambles of the SAFE I Rule, contained sweeping and definitive 
language on preemption, which left no room for nuance or further 
deliberation about particular programs, and obscured the Agency's 
ongoing internal consideration of whether EPCA actually enacted a 
narrower scope of preemption than claimed in the rulemaking. In light 
of these considerations, the NPRM proposed to expressly disclaim any of 
these prior statements to make clear they no longer accurately 
reflected the Agency's position on the issue.

B. Public Participation Opportunities and General Overview of Comments

    The public docket opened for this rulemaking following the Federal 
Register publication of the NPRM on May 12, 2021. The public comment 
period spanned 30 days, with comments due on June 11, 2021. During that 
time, the Agency received 445 comments. As of the date of today's final 
rule, NHTSA has not received any late comments posted after the close 
of the comment period.\6\
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    \6\ Following the close of the comment period, the State of 
California requested a meeting to describe aspects of a public 
comment submitted by California, along with other states and cities. 
See State of California et al., Docket No. NHTSA-2021-0030-0403, 
Comments of States and Cities Supporting Repeal of NHTSA's ``SAFE'' 
Part One Preemption Rule (June 11, 2021). In this meeting, which 
occurred on August 26, 2021, California walked through the various 
sections of their comment. A docket memo posted by NHTSA to the 
rulemaking docket provides more information regarding this meeting. 
See NHTSA, Docket No. NHTSA-2021-0030-0450, Docket Memo, Meeting 
with the State of California, (Sept. 7, 2021).
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    NHTSA closely reviewed each of the comments posted to the docket 
for this Proposal. While NHTSA is responding to the particular comments 
in further detail in the substantive analysis in the following sections 
of this final rule, at a high level, the public comments spanned a 
diverse array of state and local jurisdictions, regulated entities and 
trade associations for regulated industries, public interest groups and 
other nonprofit organizations, and individual members of the public. 
The Agency appreciates the time and effort dedicated by these parties 
in submitting their comments and is grateful for the diversity and 
depth of views, both for and against the Proposal, expressed by the 
commenters.
    Overall, the Agency received comments spanning the entire spectrum 
of perspectives with respect to the Proposal. The vast majority of 
comments from the entities most immediately affected by the rulemaking, 
i.e., states and local jurisdictions, strongly supported the Proposal. 
In particular, as explained further below, many of these comments 
provided tangible examples of hardships imposed

[[Page 74238]]

by the SAFE I Rule and identified nuanced aspects of their affected 
programs that were not fully considered during the SAFE I rulemaking. 
Likewise, comments from entities or associations in the automotive 
industry, who are directly affected by motor vehicle emission 
regulations, largely tended to support the Proposal or offer more 
neutral views. With a few exceptions, most other institutional 
commenters strongly supported the rulemaking as well. Such commenters 
consisted of public interest groups, such as environmental or consumer 
advocacy organizations, who overwhelmingly supported the Proposal and 
urged a swift repeal of the SAFE I Rule for many of the same reasons 
expressed in the NPRM.
    The Agency also received several institutional comments that 
expressly opposed the Proposal. While these comments are discussed in 
depth later in this final rule, in a general sense, these comments 
urged the Agency to retain the SAFE I Rule in its entirety. Many of 
these comments defended the substantive validity of the preemption 
scope announced in the SAFE I Rule, and construed NHTSA's governing 
authorities as delegating to the Agency the power to regulate 
preemption in the manner attempted in that rulemaking. Several of these 
comments also questioned the sufficiency of NHTSA's proposed 
justifications to repeal the SAFE I Rule, essentially arguing that 
NHTSA could not reasonably repeal a substantive position on preemption 
without replacing it with an alternative substantive view. While a 
number of individuals commented in support of the Proposal, the Agency 
recognizes that many individual members of the public also opposed a 
repeal of the SAFE I Rule.\7\
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    \7\ The vast majority of these individual commenters who opposed 
the rulemaking appeared to participate in an organized letter 
writing campaign, judging from the fully or partially verbatim 
overlap in language or terminology in many of those comments, and 
raised the same general objections to the proposed rule.
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    Finally, a significant portion of the comments raised, either in 
full or in part, issues beyond the narrow scope on which NHTSA proposed 
to repeal the SAFE I Rule. Such topics, which appeared in comments both 
supportive of and opposed to the Proposal, tended to focus on the 
substantive aspects of the CAFE program, such as the appropriate levels 
of fuel economy stringency, the effect of any particular state programs 
on the environment or vehicle fleets, or specific vehicle technologies, 
such as electrification. Likewise, as anticipated in the NPRM, many of 
the commenters also articulated substantive views on the appropriate 
scope of EPCA preemption.\8\ NHTSA recognizes that many of these issues 
pose important societal or public policy questions and, in fact, 
analyzed a number of these topics in significant detail as part of its 
standard-setting analysis proposed in the Federal Register on September 
3, 2021, ``Corporate Average Fuel Economy Standards for Model Years 
2024-2026 Passenger Cars and Light Trucks.'' \9\ Nevertheless, most of 
these issues do not directly speak to the proposed bases of NHTSA's 
repeal of the SAFE I Rule, given the very narrow scope of this 
rulemaking, which principally arose from a reconsideration of the 
discrete legal issues that underpinned the exercise of Agency authority 
in the SAFE I rulemaking. As such, while NHTSA greatly appreciates the 
efforts of commenters to submit such views and thoroughly reviewed them 
as part of the Agency's continuous efforts to understand broader public 
perspectives on NHTSA's fuel economy responsibilities, such views do 
not directly bear upon today's final rule.
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    \8\ See, e.g., CAFE Preemption NPRM, 86 FR at 25982 n.8 (``The 
Agency anticipates that many stakeholders may comment, urging the 
Agency to go further--not mere 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.'').
    \9\ NHTSA, Corporate Average Fuel Economy Standards for Model 
Years 2024-2026 Passenger Cars and Light Trucks, 86 FR 49602 (Sept. 
3, 2021).
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C. Finalized Approach

    Today's final rule finalizes the proposal set forth in the CAFE 
Preemption NPRM. As such, this final rule repeals all aspects of the 
SAFE I Rule, both the codified regulatory text and the accompanying 
pronouncements about the scope of CAFE preemption. Specifically, the 
final rule repeals 49 CFR Sections 531.7 (``Preemption'') and 533.7 
(``Preemption''), as well as each Appendix B in 49 CFR part 531 
(``APPENDIX B TO PART 531--PREEMPTION'') and Part 533 (``APPENDIX B TO 
PART 533--PREEMPTION''). In doing so, NHTSA's regulations will return 
to the same state for which they existed throughout the nearly 50-year 
history of the Agency's CAFE program--in which no regulation existed to 
purport to broadly define the scope of EPCA preemption.
    In finalizing this Proposal, NHTSA concludes that it lacked 
authority to dictate the scope of EPCA preemption enacted in Section 
32919. The plain language of Section 32919 establishes a clearly 
executable preemptive framework that can be applied by any reviewing 
court in the absence of an Agency regulation purporting to further 
dictate EPCA's preemptive scope. This conclusion is not simply 
presupposition, but as NHTSA's Proposal referenced and many commenters 
subsequently emphasized, the self-sufficiency of Section 32919 is a 
straightforward historical observation demonstrated by the provision's 
repeated application by Federal courts across the country--both to 
uphold and to preempt various state and local laws. The text of Section 
32919 does not mention any role for NHTSA in codifying binding 
preemption requirements, nor does it state that the Agency is conferred 
with preemption rulemaking authority. Instead, the statute is self-
executing and suffices to control the preemption analysis. The courts 
retain their authority to decide preemption questions; furthermore, the 
Agency may, consistent with law, provide interpretations of CAFE 
preemption questions other than by legislative rule. Thus, repeal of 
the SAFE I Rule is not simply appropriate, but a necessary measure to 
ensure that NHTSA is acting within the appropriate scope of its 
authority under EPCA.
    In addition, today's final rule also concludes that a repeal of the 
SAFE I Rule is appropriate irrespective of whether NHTSA had legal 
authority for the SAFE I rulemaking. Through both its regulations and 
preambulatory language, the SAFE I Rule sweepingly preempted expansive 
categories of state and local motor vehicle emissions regulations. In 
doing so, the SAFE I Rule imposed immutable preemption requirements of 
general applicability, while ignoring the substantially important 
federalism interests affected by such prohibitions. Many of the 
comments from states and local jurisdictions underscored this position, 
identifying specific state programs affected by the SAFE I Rule that 
those states had previously relied on to protect their citizens from 
environmental hazards and to meet federal obligations, such as 
attainment goals for National Ambient Air Quality Standards for 
criteria pollutants.\10\ By

[[Page 74239]]

imposing categorical preemption prohibitions without regard for such 
considerations, the SAFE I Rule impermissibly failed to account for 
legally relevant factors, such as reliance interests of states and 
local jurisdictions in longstanding programs potentially affected by 
the Rule. In doing so, the SAFE I Rule precluded potential avenues for 
a more tailored approach that considered programs in a more 
particularized setting rather than prematurely overriding those 
federalism interests in a categorical manner.
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    \10\ See, e.g., National Association of Clean Air Agencies, 
Docket No. NHTSA-2021-0030-0140 (June 10, 2021) (``For California 
and states that implement California's motor vehicle emissions 
program under Section 177 of the federal Clean Air Act, their GHG 
and ZEV programs are vitally important. Such programs enable long-
term planning and yield critical emission reductions that will 
contribute significantly to states' abilities to meet their climate 
goals and their statutory obligations to attain and maintain the 
health-based National Ambient Air Quality Standards (NAAQS) for 
criteria pollutants.'').
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    Moreover, by purporting to preempt abstract categories of 
regulation, the SAFE I Rule's prohibitions were both categorical and 
anticipatory--largely precluding entire subjects of state regulations 
without analyzing important factual questions or variables, such as the 
particulars of state programs, their specific manners of 
implementation, or possible scientific developments that may affect the 
relevant technologies. Therefore, even if the SAFE I Rule constituted a 
legitimate exercise of the Agency's authority, it represented an overly 
broad attempt to preempt state and local laws that precluded more 
detailed, and therefore potentially more accurate, considerations of 
specific programs. As such, NHTSA considers the SAFE I Rule's 
categorical and anticipatory scope to express an inappropriately broad 
and restrictive view on EPCA preemption. Accordingly, independent from 
the authority question, the SAFE I Rule conflicts with the need for a 
more focused consideration of preemption issues and, as such, must be 
repealed.
    Finally, as part of today's notice, NHTSA is also expressly 
emphasizing that language in the preambulatory statements of other 
rulemakings, including the SAFE I Rule, which purport to dictate the 
scope of EPCA preemption, should no longer be viewed as the position of 
the Agency.\11\ Indeed, several commenters expressed a view that those 
statements should be naturally understood as defunct upon a formal 
repeal of any attendant regulatory text.\12\ In any event, given the 
degree to which many of these statements--especially in the SAFE I 
Rule--employ absolute language and purport to outright prohibit certain 
regulations, the Agency feels that it is important to make abundantly 
clear that these statements should not be read out of context to 
suggest that they remain current views of the Agency. This ensures that 
parties otherwise affected by such statements are not confused about 
whether the admonitions and prohibitions contained in the statements, 
which remain published in the Federal Register even after the repeal of 
the actual regulations from the Code of Federal Regulations, continue 
to apply.
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    \11\ The specific statements identified by the Agency are 
described further in Section II.B.iii.b. See also infra n.252 
(listing statements appearing in rulemakings other than the SAFE I 
Rule).
    \12\ See State of California et al., Docket No. NHTSA-2021-0030-
0403 (June 11, 2021); Center for Biological Diversity et al., Docket 
No. NHTSA-2021-0030-0369 (June 11, 2021).
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II. Final Rule

A. This Final Rule Is a Proper Exercise of NHTSA's Reconsideration 
Authority

    As emphasized in the Proposal, 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.
    The need for an ongoing reconsideration of prior positions applies 
to both reevaluations of an agency's statutory authority, as well as 
reassessments of policy decisions. Overwhelmingly, commenters to this 
Proposal did not question the general discretion of NHTSA, as a Federal 
agency, to reconsider either statutory or policy-based decisions. 
Indeed, most commenters expressly supported NHTSA's reconsideration 
efforts and articulated numerous reasoned justifications for the 
undertaking. The few commenters who opposed the reconsideration tended 
to focus on the adequacy of the reasons for the reconsideration rather 
than NHTSA's prerogative to conduct the reconsideration. Such 
objections are addressed below within the specific reconsideration 
basis to which they were directed. However, a small number of 
dissenting comments raised issues more broadly applicable to the 
reconsideration process.
i. The Agency's Reconsideration Authority Applies Irrespective of Any 
Changes in Facts or Circumstances
    Several commenters contended that the Agency lacks a sufficient 
legal basis to withdraw the SAFE I Rule, arguing that no legal or 
factual circumstances changed between the issuance of the SAFE I Rule 
and the Proposal.\13\ At the outset, it is important to be clear that 
the procedural question of whether an agency may reconsider a prior 
action is separate from whether the reconsideration is itself 
reasonable. We discuss the first here, while we address the second 
issue below in Part II.B. NHTSA does not agree that no relevant legal 
or factual developments occurred following the SAFE I Rule. But even 
before reaching this question, the Agency stresses that the governing 
administrative law framework does not require that any such changes 
occur before an agency may reconsider a prior position. A change in 
factual circumstances is only one amongst a host of different reasons 
that may cause an Agency to reconsider a prior agency action. Agencies 
may reconsider an issue ``for example, in response to changed factual 
circumstances, or a change in administrations.'' \14\ Pure policy 
reconsiderations also remain sufficient grounds, with ``evolving 
notions'' about the appropriate balance of varying policy 
considerations constituting sufficient reason for a change in 
position.\15\ This is all part of the natural and appropriate role of 
an agency engaging in informed rulemaking, which ``must consider 
varying interpretations and the wisdom of its policy on a continuing 
basis.'' \16\
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    \13\ See National Automobile Dealers Association, Docket No. 
NHTSA-2021-0030 (June 10, 2021).
    \14\ Nat'l Cable & Telecomms. Ass'n v. Brand X internet Servs., 
545 U.S. 967, 981-82 (2005) (emphasis added).
    \15\ N. Am.'s Bldg. Trades Unions v. Occupational Safety & 
Health Admin., 878 F.3d 271, 303 (D.C. Cir. 2017).
    \16\ Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 
U.S. 837, 838 (1984).
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    This reconsideration exemplifies the types of reassessments for 
which a change in facts is not required or even particularly pertinent. 
As described throughout this notice, NHTSA's repeal of the SAFE I Rule 
is especially necessary because the Agency no longer reads EPCA as 
providing NHTSA the authority to dictate the scope of preemption 
through regulations. This is principally a narrow legal determination, 
which focuses on whether Congress intended to provide the requisite 
rulemaking authority to the Agency. Such a question does not turn upon 
factual circumstances, but instead depends upon a statutory 
construction of Section 32919. Further, as discussed below, even if the 
prior rule was a valid exercise of its authority, NHTSA concludes that 
the SAFE I Rule was overly broad and restrictive as it ignored 
important reliance interests and distinctions within state and local 
laws.
    Even so, NHTSA notes that new factual developments since the SAFE I 
Rule's 2019 promulgation have

[[Page 74240]]

occurred. Commenters stressed many of these factual updates as 
illustrative of the sweeping scope of the SAFE I Rule. For example, 
since the SAFE I Rule's promulgation, several additional states have 
expressed a desire to adopt future motor vehicle emissions measures 
under Section 177 of the Clean Air Act.\17\ Moreover, many commenters 
stressed that every successive year, additional information and 
scientific data emerges regarding the climate crisis.\18\ Multiple 
other comments emphasized that technological progress on motor vehicle 
emissions reduction strategies creates a dynamic regulatory landscape 
in which compliance paths are more complex than the static assumptions 
in the SAFE I Rule.\19\ Thus, even though a change in facts is not 
necessary for NHTSA's reconsideration to occur, the Agency disagrees 
with several commenters who argued that no factual circumstances have 
changed since the SAFE I rulemaking occurred.
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    \17\ See, e.g. Edison Electric Institute, Docket No. NHTSA-2021-
0030-0396 (June 11, 2021) (``Since the finalization of SAFE I, 
Nevada, New Mexico, Minnesota and Virginia have announced their 
intent to adopt California's criteria-pollutant, GHG, and ZEV 
regulations. Washington, which has already adopted California's 
criteria-pollutant and GHG standards, has announced its intent to 
adopt California's ZEV standards.'').
    \18\ See generally Allergy & Asthma Network et al., Docket No. 
NHTSA-2021-0030-0299 (June 4, 2021).
    \19\ South Coast Air Quality Management District, Docket No. 
NHTSA-2021-0030-0446 (June 11, 2021).
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ii. The Agency Can Reconsider the SAFE I Rule Without the Need To 
Announce New Substantive Positions on EPCA Preemption
    Several other commenters opposed the Proposal by arguing that any 
repeal of the SAFE I Rule that did not announce a new substantive 
position on EPCA preemption was arbitrary and capricious. These 
comments especially criticized aspects of the Proposal, such as 
footnote 8, that expressly clarified that any new substantive 
conclusions on EPCA preemption were ``outside the scope of this 
Proposal.'' \20\ For instance, a joint comment submitted by a 
collection of entities, including the Competitive Enterprise Institute 
(CEI), labeled the Proposal ``the first-ever assertion of regulatory 
cancel culture'' because ``the NPRM declines to debate the opinions it 
proposes to delete.'' \21\ Ultimately, these commenters suggested that 
NHTSA could not repudiate the views of EPCA preemption announced in the 
SAFE I Rule without simultaneously replacing those views with a new 
substantive position on preemption.
---------------------------------------------------------------------------

    \20\ CAFE Preemption NPRM, 86 FR at 25982 n.8.
    \21\ Competitive Enterprise Institute et al., Docket No. NHTSA-
2021-0030-0411 (June 11, 2021).
---------------------------------------------------------------------------

    NHTSA understands that many commenters feel strongly about the 
important policy dynamics underlying the scope of EPCA preemption. This 
applies both to commenters such as CEI, who support sweeping EPCA 
preemption and seek to defend the substance of the SAFE I Rule's 
scope,\22\ and to commenters who prefer NHTSA to declare expressly that 
EPCA preemption is inapplicable to state programs.\23\ Several such 
comments that oppose the rulemaking argue that unless the agency 
announces new substantive positions on EPCA preemption, it has failed 
to provide a legally adequate justification for a repeal.\24\
---------------------------------------------------------------------------

    \22\ Id.
    \23\ See, e.g., Tesla, Inc. Docket No. NHTSA-2021-0030-0398 
(June 11, 2021). This is not to say that all commenters advocated 
for the rulemaking to expand into substantive EPCA areas. In fact, a 
large number of commenters appeared to understand the narrow legal 
focus of this rulemaking, with many expressly supporting the 
Agency's bifurcated approach of first sorting out issues of Agency 
authority before grappling with substantive EPCA preemption 
questions. See, e.g., Center for Biological Diversity et al., Docket 
No. NHTSA-2021-0030-0369 (June 11, 2021) (``While the substantive 
errors in the Rule's preemption analysis could have formed an 
independent ground for repeal, Commenters understand that NHTSA 
considers those issues to be ``outside the scope of this Proposal'' 
because NHTSA will not be `[r]eassessing the scope of preemption 
under EPCA' or `announcing new interpretive views'' in this 
proceeding.' ''); Rivian, Docket No. NHTSA-2021-0030-0413 (June 11, 
2021) (``Rivian agrees in the appropriateness to leave an 
affirmative announcement of the view that State GHG and ZEV programs 
are not preempted under EPCA for another rulemaking.''); National 
Coalition for Advanced Transportation, Docket No. NHTSA-2021-0030-
0310 (June 11, 2021) (``NCAT recognizes that NHTSA is not seeking 
comment on substantive interpretation of EPCA preemption'').
    \24\ See American Fuel & Petrochemical Manufacturers, Docket No. 
NHTSA-2021-0030-0425 (June 11, 2021) (arguing that NHTSA's 
``recission of the SAFE I Rule would be unlawful'' because the 
rulemaking ``fails to explain how ZEV mandates and GHG tailpipe 
standards are not `related to' the federal CAFE standards, a 
foundational requirement for a regulatory reversal such as the one 
NHTSA is proposing here.'').
---------------------------------------------------------------------------

    However, by advancing directly to substantive policy questions, 
such comments skip a critical step in the rulemaking analysis. As an 
agency, NHTSA's exercise of rulemaking authority is bound by specific 
statutory and legal frameworks that govern not only the substantive 
scope of available policies, but also the manner in which such policies 
may be articulated.\25\ Therefore, NHTSA may not proceed directly to 
the policy questions surrounding EPCA preemption without first 
carefully considering whether the manner in which its views are 
expressed is appropriate and permissible. In this respect, both the 
Proposal and final rule are based on issues that arise prior to 
reaching any substantive conclusions about EPCA preemption. Namely, 
this reconsideration principally evaluates the legal authority for 
NHTSA to issue legislative rules implementing Section 32919 and the 
overly broad form in which NHTSA promulgated those regulations. As 
such, this action addresses these threshold questions while 
establishing space for the Agency to more thoroughly consider whether, 
when, and how to express its views on the subsequent substantive 
matters, such as whether particular state and local programs are 
preempted. In fact, the Proposal expressly acknowledged that NHTSA 
continues to deliberate further about ``the scope of preemption under 
EPCA'' and in the future may ``announc[e] new interpretative views 
regarding Section 32919.'' \26\ But before doing so, NHTSA must ensure 
that the manner in which the issues are raised--including the manner in 
which the Agency has spoken about them in the past--conforms to the 
authority delegated to the Agency by Congress and is otherwise 
appropriate, as discussed in Part II.B. That is the focus of this 
rulemaking and a principal impetus for today's repeal of the SAFE I 
Rule.
---------------------------------------------------------------------------

    \25\ Ry. Labor Executives' Ass'n v. Nat'l Mediation Bd., 29 F.3d 
655, 670 (D.C. Cir. 1994) (en banc) (stressing that ``[a]gencies owe 
their capacity to act to the delegation of authority, either express 
or implied, from the legislature'').
    \26\ CAFE Preemption NPRM, 86 FR at 25982 n.8.
---------------------------------------------------------------------------

    As described throughout this Final Rule, NHTSA has concluded that 
the SAFE I Rule exceeded the Agency's authority by attempting to 
dictate the scope of EPCA preemption through regulations. Upon such a 
determination, the most responsible and legally essential course of 
action is for the Agency to exercise its reconsideration authority to 
rectify the overstep. The importance of the policy interests underlying 
the EPCA preemption issue do not compel a different approach. Instead, 
they only underscore the need for NHTSA to ensure that when it attempts 
to speak to these notable policy issues, it only does so as properly 
authorized and through an appropriate scope.
    Moreover, now that NHTSA has determined that the SAFE I Rule 
exceeded the Agency's authority for the reasons expressed in Part 
II.B.i. below and also impermissibly ignored important federalism 
interests without regard for the availability of a more circumscribed 
approach instead, as explained in Part II.B.ii. below, it would be 
problematic to delay a repeal of the

[[Page 74241]]

Rule until new interpretative positions on EPCA preemption (following 
the appropriate process) can be formulated. Many commenters, and 
particularly local jurisdictions directly affected by the SAFE I Rule's 
preemption determination, urged a swift finalization of this rulemaking 
in order to resolve their federalism interests.\27\ Although the Agency 
agrees with these commenters about the need to repeal the SAFE I Rule 
swiftly, NHTSA stresses that today's action is not intended to 
determine that any particular State or local law is or is not 
preempted. As evidenced by other comments' diversity and depth of views 
on the substance of EPCA preemption, applying Section 32919 to 
particular state programs or types of regulations requires a more 
careful and comprehensive analysis, that is attentive to the legal and 
factual issues presented by a particular action. As explained further 
in Section II.B.ii., these intricacies are best addressed through 
careful deliberation and attention to the factual context relevant to 
the respective preemption considerations. Accordingly, requiring new 
substantive views on EPCA preemption to accompany any repeal of the 
SAFE I Rule would require the Agency to either delay a repeal of the 
SAFE I Rule even though the Agency considers it an invalid rule or, 
conversely, formulate a new overly broad substantive view on EPCA 
preemption that risks similar overgeneralizations as exhibited in the 
SAFE I Rule. However, this false dichotomy is avoidable by first 
focusing on a repeal of the SAFE I Rule before subsequently--and 
separately--taking the time needed to fully consider how to best 
approach any nuanced substantive issues that remain, if the Agency 
determines that such action is necessary.
---------------------------------------------------------------------------

    \27\ See District of Columbia Department of Energy and 
Environment, Docket No. NHTSA-2021-0030-0412 (June 11, 2021) (``The 
District of Columbia calls on the NHTSA to finalize this rule 
proposal as expeditiously as practicable. The District and other 177 
states need regulatory certainty to implement clean cars programs 
for the benefit of the health and welfare of our residents.''); 
National Coalition for Advanced Transportation, Docket No. NHTSA-
2021-0030-0310 (June 11, 2021) (urging the Agency to finalize the 
repeal ``as promptly as possible'').
---------------------------------------------------------------------------

    Finally, it is worth emphasizing that EPCA does not state that 
NHTSA must speak substantively on EPCA preemption. This clear reading 
of Section 32919 was affirmed by commenters both supportive of and 
opposed to the Proposal. For instance, a supportive comment submitted 
by the State of California, together with numerous other states and 
local jurisdictions, emphasized that ``even if EPCA did give NHTSA that 
authority [for the SAFE I Rule], the statute does not compel NHTSA to 
issue such rules.'' \28\ Similarly, a comment from the National 
Automobile Dealers Association (NADA), who opposed the Proposal, echoed 
the sentiment that the SAFE I Rule was ``not specifically required by 
EPCA to be issued'' as it was ``not a necessary predicate to EPCA 
preemption.'' \29\
---------------------------------------------------------------------------

    \28\ State of California et al., Docket No. NHTSA-2021-0030-0403 
(June 11, 2021).
    \29\ National Automobile Dealers Association, Docket No. NHTSA-
2021-0030-0435 (June 10, 2021).
---------------------------------------------------------------------------

    Such comments recognize, as they must, that EPCA is totally silent 
as to any role for NHTSA in further defining EPCA preemption. They 
simply disagree on what that silence means. But even construing this 
silence permissively, as commenters such as NADA urged,\30\ whether to 
speak substantively about EPCA preemption is, at most, a matter of 
Agency discretion. In this respect, EPCA contrasts sharply with other 
enactments in which Congress expressly instructed NHTSA or DOT to 
promulgate implementing regulations about a particular subject. 
Examples of such enactments abound even within EPCA, such as the 
unambiguous instruction in Section 32902 that ``the Secretary of 
Transportation shall prescribe by regulation average fuel economy 
standards for automobiles manufactured by a manufacturer in that model 
year.'' \31\ In comparison to such statutorily mandated regulations, 
the silence of Section 32919 cannot reasonably be read as a requirement 
that NHTSA promulgate any particular preemption regulations or even 
opine on the substance of preemption at all. Under the framework 
advanced by these commenters, an agency could never return to silence 
after speaking substantively on a topic, even if it had good reasons to 
do so and the statute did not require the agency to speak on the issue. 
This unsustainable standard would permanently erode any NHTSA 
discretion to remain silent under Section 32919.
---------------------------------------------------------------------------

    \30\ Id.
    \31\ 49 U.S.C. 32902(a) (emphasis added). See also infra. 
nn.125-131.
---------------------------------------------------------------------------

    Therefore, regardless of the authority question, EPCA at most only 
afforded NHTSA discretion to decide how or even whether to speak on 
matters of preemption. Thus, even if Section 32919 is construed as 
commenters such as NADA urge, EPCA still must be read to permit NHTSA 
to remain silent on EPCA preemption. This includes neither codifying 
regulations on preemption nor making broadly applicable statements on 
EPCA preemption where the Agency has valid reason not to do so. And 
here, as discussed in Section II.B., NHTSA has identified multiple 
clear grounds to repeal the SAFE I Rule. Such silence remains a viable 
option because, as commenters across the board recognized, the self-
executing language of Section 32919 is fully capable of controlling the 
preemption question without the presence of Agency regulations.\32\
---------------------------------------------------------------------------

    \32\ Emmett Institute on Climate Change and the Environment, 
Docket No. NHTSA-2021-0030-0218 (June 10, 2021) (``[w]e do not 
believe that such guidance--or a more formal preemption 
determination along those lines--is necessary in light of the self-
executing nature of EPCA's preemption language, the statutory and 
legislative history of EPCA and its amendments, and legal precedent 
regarding EPCA's relationship to state and federal fuel economy 
standards.''); Alliance for Automotive Innovation, Docket No. NHTSA-
2021-0030-0400 (June 11, 2021) (acknowledging that any offending 
state programs are ``automatically preempted under the terms of the 
statute. Federal courts can apply EPCA's preemption provision to any 
such law or regulation''); National Automobile Dealers Association, 
Docket No. NHTSA-2021-0030-0435 (June 10, 2021) (``NADA concurs with 
NHTSA's repeated suggestions that EPCA's express and implied 
preemption is self-executing. Consequently, the SAFE I Rule's 
regulatory language is not essential to effectuate EPCA's express 
and implied preemption of state laws governing or related to the 
fuel economy of new light-duty motor vehicles.'') (emphasis in 
original).
---------------------------------------------------------------------------

iii. The Narrow Scope of This Reconsideration Renders Substantive 
Policy Issues Raised in the Comments Outside of the Scope of This 
Rulemaking
    The narrow legal scope of this rulemaking renders many of the 
substantive issues raised in the comments irrelevant to NHTSA's 
reconsideration and repeal of the SAFE I Rule. Comments on both sides 
of the spectrum--both for and against the Proposal--fall outside of 
this narrow scope. The Agency carefully evaluated such comments, both 
to identify any nuances that may yet bear upon this rulemaking and to 
cultivate a greater understanding of how the public views broader 
issues associated with the CAFE program. Nevertheless, NHTSA does not 
consider such issues as informing the narrow legal focus of today's 
repeal of the SAFE I Rule. Several categories of such comments are 
identified below, along with an explanation of how they fail to 
intersect with the specific grounds that motivated this 
reconsideration.
    Many commenters, both supportive of the Proposal and opposed to a 
repeal of the SAFE I Rule, advanced their views about the proper scope 
of EPCA preemption and, in particular, how ``related to'' in Section 
32919 should be

[[Page 74242]]

substantively construed. Some of these commenters expressly recognized 
that such views fell outside of the Proposal, but nevertheless included 
them in the event the Agency elected to delve into substantive issues 
in another context, such as an interpretation or in a subsequent action 
after this rulemaking.\33\ Likewise, many commenters supportive of the 
Proposal identified what they viewed as the SAFE I Rule's erroneous 
legal conclusions on the scope of EPCA preemption, as part of their 
broader support for any action that repealed the Rule.\34\ Other 
comments mistook the Proposal as setting forth substantive views and 
welcomed the new positions the Agency was assumed to have adopted.\35\ 
Moreover, multiple comments opposing the Proposal sought to defend the 
SAFE I Rule on substantive grounds, labeling the original rulemaking a 
correct interpretation of EPCA.\36\ These comments tended to focus on 
the meaning of ``related to'' under Section 32919 and essentially 
tracked the reasoning of the SAFE I Rule in construing the phrase's 
substantive scope.\37\
---------------------------------------------------------------------------

    \33\ See, e.g., Emmett Institute on Climate Change and the 
Environment, Docket No. NHTSA-2021-0030-0218 (June 10, 2021) (``To 
the extent NHTSA believes a statement confirming EPCA's lack of 
preemptive effect on state vehicle GHG emission and ZEV standards 
would be useful and appropriate, it could issue interpretive 
guidance to that effect. However, we do not believe that such 
guidance--or a more formal preemption determination along those 
lines--is necessary'').
    \34\ Id.
    \35\ See, e.g., Tesla, Inc. Docket No. NHTSA-2021-0030-0398 
(June 11, 2021) (``NHTSA's proposal to clarify that EPCA should not 
be read to preempt state emission standards that are contemplated 
and authorized by the CAA is welcomed.''); Maine Department of 
Environmental Protection, Docket No. NHTSA-2021-0030-0249 (June 10, 
2021) (``As NHTSA's Proposed Rule now acknowledges, this 
interpretation was flawed, for California's GHG emissions standards 
are not `related to' and do not otherwise conflict with federal fuel 
economy standards simply because CO2 emissions correlate with fuel 
consumption The Department applauds this correction.'').
    \36\ See, e.g., National Automobile Dealers Association, Docket 
No. NHTSA-2021-0030-0435 (June 10, 2021) (stressing that the ``the 
SAFE I Rule contains a well-reasoned analysis'' before outlining the 
substantive points in the Rule to which NADA agreed).
    \37\ See American Fuel & Petrochemical Manufacturers, Docket No. 
NHTSA-2021-0030-0425 (June 11, 2021) (undertaking a statutory 
construction analysis of ``related to'' under Section 32919). See 
also Urban Air Initiative et al., Docket No. NHTSA-2021-0030-0423 
(June 11, 2021) (discussing federal jurisprudence defining the scope 
of the term ``related to'').
---------------------------------------------------------------------------

    While all of these comments raise the important questions of how 
far EPCA's scope extends and which state programs may be affected by 
such a scope, as the Agency explained both in the Proposal and in 
today's final rule, those issues are distinct from the narrow legal 
considerations that factor into this rulemaking. NHTSA's statutory 
authority to codify standalone requirements for EPCA preemption is a 
separate question from whether the substance of those requirements 
exceeds the scope of Section 32919. Likewise, even if the Agency had 
authority for the SAFE I Rulemaking, it remains possible for NHTSA to 
have wielded this authority in an inappropriately broad or inattentive 
manner, irrespective of the ultimate substantive preemption scope 
propounded in such an action. Consequently, none of the grounds invoked 
in this rulemaking for a repeal of the SAFE I Rule depend upon a 
particular interpretation of EPCA's preemptive scope. As such, as NHTSA 
explained elsewhere in this notice, finalizing this rulemaking without 
delving into those issues presents the most responsible option, which 
best satisfies the need for a swift repeal of the SAFE I Rule while 
preserving space for an ongoing thoughtful consideration of these 
complex substantive issues.
    In a similar vein, several comments opposing the NPRM argued that 
NHTSA's Proposal was inadequately justified because the proposed repeal 
of the SAFE I Rule was not accompanied by a detailed economic analysis, 
such as a regulatory impact statement. These commenters, such as the 
American Fuel and Petrochemical Manufacturers (AFPM), contended that 
NHTSA could not repeal the SAFE I Rule without ``fully analyz[ing] the 
impacts'' or ``examin[ing] the relevant data'' behind economic impacts 
from this rulemaking.\38\ For example, AFPM argued that such an 
analysis must undertake a detailed economic estimate of a litany of 
considerations, including ``the foreseeable impacts'' to ``vehicle 
cost, jobs, low-income households, small businesses, etc.,'' as well as 
an evaluation of how possible programs that may be initiated by states 
following a repeal affect other estimates, such as electric vehicle 
pricing or the stringency of subsequent CAFE standards.\39\ Other 
commenters argued similarly, insisting that a repeal of the SAFE I Rule 
would ``almost certainly lead to'' more stringent fuel economy 
standards and inflated vehicle prices, thereby eroding consumer 
choice.\40\ Additional commenters propounding this view submitted their 
own voluminous impacts analyses of a repeal of the SAFE I Rule, which 
included submissions of material such as declarations from academics, 
published journal articles analyzing particular regulatory programs, 
and past regulatory analyses conducted by EPA and CARB regarding 
specific regulatory programs.\41\
---------------------------------------------------------------------------

    \38\ American Fuel & Petrochemical Manufacturers, Docket No. 
NHTSA-2021-0030-0425 (June 11, 2021).
    \39\ Id.
    \40\ Competitive Enterprise Institute et al., Docket No. NHTSA-
2021-0030-0411 (June 11, 2021).
    \41\ See Urban Air Initiative et al., Docket No. NHTSA-2021-
0030-0423 (including Attachments 2-9).
---------------------------------------------------------------------------

    To the extent commenters articulated these positions as reasons 
NHTSA failed to satisfy various Executive Orders, the National 
Environmental Policy Act (NEPA), and other broadly applicable 
requirements, those aspects of the arguments are addressed in Section 
III (Rulemaking Analyses and Notices).\42\ However, insofar as those 
comments suggest that the absence of a detailed economic analysis 
inadequately justifies a repeal, NHTSA rejects such arguments as 
misconstruing the nature of this rulemaking.
---------------------------------------------------------------------------

    \42\ Likewise, many of the reasons outlined here also apply to 
those rulemaking analyses sections.
---------------------------------------------------------------------------

    As explained throughout this final rule, NHTSA has concluded that 
the SAFE I Rule was legally flawed in a manner that legally 
necessitates a repeal. First, as Section II.B.i. of the final rule 
concludes, NHTSA issued the SAFE I Rule in excess of its authority. 
Accordingly, the Agency believes that the only legally appropriate 
course of action is to repeal the SAFE I Rule in order to undo the 
legally invalid action. Similarly, as Section II.B.ii. of this notice 
explains, NHTSA also ignored significant and legally relevant factors 
when promulgating the SAFE I Rule. Overlooking these considerations 
also renders the SAFE I Rule legally invalid and in need of repeal. 
Each of these grounds is governed by a legal determination, such as the 
legal standards and questions of statutory construction applicable to 
an agency's delegation of authority. These principles of law dictate a 
repeal of the SAFE I Rule irrespective of the policy concerns or 
impacts asserted by such commenters, which cannot cure the legal 
deficits in the SAFE I Rule. Therefore, the concerns raised by such 
commenters do not alter either the legal frameworks or the legally 
necessitated outcomes described in Sections II.B.ii. and II.B.iii. of 
this notice.
    Moreover, such commenters also fail to account for the fact that, 
through this repeal, NHTSA's regulations are simply returning to the 
status quo as it existed prior to the legally invalid action of the 
SAFE I Rule. Thus, in this rulemaking, NHTSA is not taking a position 
on

[[Page 74243]]

whether any individual program is preempted or not. And, even after 
this final rule, the viability of individual state or local programs 
and any associated policy impacts from those programs will be dependent 
on a host of particularized and contingent variables. In light of this, 
it is difficult to project, even for illustrative purposes, the 
incremental impacts of this regulatory action.\43\
---------------------------------------------------------------------------

    \43\ NHTSA expands on this same issue in the NEPA section of 
this final rule, which explains that a statutory construction 
analysis controls the question of whether Section 32919 delegated 
authority to NHTSA to promulgate express preemption regulations. 
This analysis, in turn, looks to the language of the statute to 
discern Congress' intent.
---------------------------------------------------------------------------

    In addition, because the Agency does not consider an analysis of 
those programs in the abstract or aggregate appropriate, doing so here 
for purposes of analyzing impacts would risk the same sort of sweeping 
and overly broad preemption conclusions characteristic of the SAFE I 
Rule. As described in Section II.B.ii., the Agency has determined that 
the SAFE I Rule was both far too broad and too restrictive and did not 
take into account a host of legally relevant considerations, such as 
reliance interests, the important reasons for the state and local laws 
it sought to preempt, and, most importantly, the actual details of 
those laws. Accordingly, hypothesizing about the substantive scope of 
EPCA preemption for purposes of a cost-benefit analysis would undermine 
one of the principal goals of this rulemaking, which seeks to defer 
assessments of programs until the times and places in which they can be 
more particularly and thoroughly considered. Moreover, hypothesizing as 
such also further diminishes the extent to which the results of a cost-
benefit analysis could inform this rulemaking because those programs 
are more appropriately and accurately considered in more particular 
contexts where it is not necessary to make abstract projections or 
theorize about programs or technologies that may not even exist yet.
    Furthermore, in this repeal, the Agency is not declaring any 
particular program preempted or not preempted. Instead, this repeal 
simply makes the point that any such preemption analysis should be 
undertaken more narrowly and carefully and does not seek to alter the 
preemption landscape already established by Section 32919. In contrast, 
it was the SAFE I Rule that marked a departure from the Agency's 
longstanding practice of refraining from issuing EPCA preemption rules. 
In reality, as both the Proposal and this final rule have stressed, 
EPCA preemption is properly governed by the self-executing statutory 
language of Section 32919. That language remains in place, unchanged, 
irrespective of this rulemaking. The courts, of course, retain their 
usual authority to decide matters of EPCA preemption. In turn, the 
Agency may also at some point offer interpretations as guidance on its 
views on questions of EPCA preemption, though not through the mechanism 
of a legislative rule. Nevertheless, the preemption framework 
established by the statutory language in Section 32919 continues to 
govern the ultimate preemption analysis.
    Moreover, it is worth noting that the SAFE I Rule itself did not 
include a quantitative analysis of the costs or benefits that these 
commenters now argue should accompany its repeal, but rather only 
provided a ``qualitative discussion of the impacts'' of the preemption 
regulations it promulgated.\44\ This is despite the fact that the SAFE 
I Rule purported to preempt many state and local programs that were 
already in place, which would have had significant economic effects. 
This provides a clear contrast to this final rule, which takes no 
position on whether any particular programs are preempted.
---------------------------------------------------------------------------

    \44\ CAFE Preemption NPRM, 86 FR at 51352.
---------------------------------------------------------------------------

    Various commenters raised other issues that are clearly outside the 
scope of this rulemaking. A joint comment submitted by the State of 
Ohio along with several other states did not explicitly support or 
oppose the Proposal, but simply expressed the view that by permitting 
California to seek a waiver, Section 209 of the Clean Air Act 
unconstitutionally violates the equal sovereignty doctrine by affording 
preferential treatment to the State of California.\45\ The comment thus 
concludes that ``any agencies that issue such a waiver are therefore 
acting unconstitutionally.'' \46\ NHTSA need not wade into the 
substance of the equal sovereignty doctrine in response to this 
comment. This rulemaking is conducted solely by NHTSA, and any EPA 
adjudication of a California waiver application under Section 209 
constitutes a separate, independent proceeding.\47\ Repealing the SAFE 
I Rule merely removes the impermissible layer of regulatory preemption 
from NHTSA's own regulations. The broad preemption framework codified 
by the SAFE I Rule applied equally to all states and repealing this 
framework likewise refreshes the preemption analysis for the entire 
country. Accordingly, repealing the SAFE I Rule does not extend 
differential treatment to any state or local jurisdiction.
---------------------------------------------------------------------------

    \45\ State of Ohio et al., Docket No. NHTSA-2021-0030-0355 (June 
11, 2021).
    \46\ Id.
    \47\ Supra n.5.
---------------------------------------------------------------------------

    In addition, several commenters raised a variety of issues relating 
to the administration of the CAFE program, which do not inform the 
legal bases pertinent to today's repeal of the SAFE I Rule. These range 
from comments advocating for a particular stringency of any fuel 
economy standards later promulgated by NHTSA \48\ to requesting a new 
interpretation of 49 U.S.C. 32902 in order to more expansively consider 
electric vehicles in the standard setting analysis.\49\ While such 
commenters are encouraged to raise such issues in connection with 
future NHTSA rulemakings setting CAFE standards, this particular 
rulemaking does not touch on the standard setting analysis.
---------------------------------------------------------------------------

    \48\ Consumer Reports, Docket No. NHTSA-2021-0030-0224 (June 11, 
2021); Allergy & Asthma Network et al., Docket No. NHTSA-2021-0030-
0299 (June 4, 2021).
    \49\ Rivian, Docket No. NHTSA-2021-0030-0413 (June 11, 2021).
---------------------------------------------------------------------------

    Finally, NHTSA received over four hundred comments from individual 
commenters who expressed perspectives on the Proposal. The vast 
majority of these comments from individuals did not speak to the 
particular legal issues implicated in this rulemaking, but raised 
broader policy issues instead. A large number of these comments 
expressed opposition to the rulemaking. While submitted individually, 
by and large, these opposition comments appeared to be form comments or 
part of an unspecified letter writing campaign, as they frequently 
employed verbatim language. Specifically, an overwhelming number of the 
comments started with the exact same phrase: ``California should not be 
deciding what kind of cars the rest of the country can buy, and here is 
why . . .'' \50\ While the reasons provided after this opening clause 
varied somewhat, they all pertained to substantive policy issues 
surrounding motor vehicle regulations rather than the narrow legal 
grounds necessitating a repeal of the SAFE I Rule. Frequent examples of 
the substantive policy concerns raised in these comments include: 
Skepticism towards climate change and related environmental issues; 
objections to vehicle electrification; concerns about consumer choice 
in the availability of motor vehicles; and vehicle price concerns. Most 
of these comments also appeared

[[Page 74244]]

directed more to a restoration of California's waiver for the Advanced 
Clean Cars program under the Clean Air Act, which, as both NHTSA and 
EPA have explained, is a separate proceeding from this rulemaking.\51\ 
Finally, quite a few comments failed to raise any substantive policy 
concerns at all, but simply expressed political hostility towards a 
variety of subjects, especially including the State of California and 
the EPA.\52\
---------------------------------------------------------------------------

    \50\ See, e.g., Comment from Thomas Houghton, NHTSA-2021-0030-
0028 (June 3, 2021).
    \51\ Supra n.5.
    \52\ To the extent these commenters associated this rulemaking 
with the EPA's reconsideration of California's waiver under the 
Clean Air Act or otherwise raised vague allegations that EPA was 
actually controlling this rulemaking, NHTSA reiterates again that 
both the NPRM and final rule were issued solely by NHTSA. Unlike the 
SAFE I and SAFE II Rules, this is not a joint rulemaking with EPA 
(or any other agency). See also supra n.5 (explaining that the EPA 
is conducting a separate, independent proceeding to reconsider its 
portions of the SAFE I Rule).
---------------------------------------------------------------------------

    Apart from these form comments, several individual commenters 
expressed support for the Proposal. Their comments also focused on 
substantive policy issues or matters more connected to a California 
waiver under the Clean Air Act. Examples of such comments include 
expressions of hope that the Proposal would enable states to set 
stronger pollution control standards or beliefs that the proposed rule 
offered potential health-related benefits and opportunities to mitigate 
climate change.
    Overall, the concerns expressed by these individual commenters were 
not about the merits of NHTSA returning to its longstanding approach to 
EPCA preemption, but rather about substantive issues connected to 
hypothetical state programs or policy goals which the commenters felt 
could possibly arise at some point in the future. For instance, a 
number of commenters suggested that a repeal of the SAFE I Rule would 
result in the proliferation of electric vehicles, and therefore 
expressed various concerns with vehicle electrification, such as an 
inability to satisfy unique or specific vehicle needs (e.g., work 
functions), poor performance, an insufficient electric grid, increased 
costs of electric vehicles, or misgivings about battery sourcing. Other 
commenters expressed broader policy concerns, such as advocating for 
carbon energy or arguing that air quality mitigation measures are 
matters of personal choice that should not be subject to regulation. 
Such substantive policy concerns, however, are beyond the scope of this 
rulemaking and NHTSA therefore does not address them here.\53\ This 
rulemaking merely entails a narrow legal focus on the proper and 
prudent exercise of NHTSA's authority. The Agency's final rule neither 
promulgates Federal standards nor revives any standards of states or 
local jurisdictions. In fact, this final rule does not even change the 
scope of EPCA preemption under Section 32919, as NHTSA has repeatedly 
acknowledged that the self-executing statutory language controls such a 
scope and remains enacted, in full and unchanged, irrespective of the 
SAFE I Rule or this rulemaking.
---------------------------------------------------------------------------

    \53\ This also applies to comments filed by institutions or 
entities which based opposition or support for the Proposal on 
substantive policy grounds. See, e.g., Sierra Club Massachusetts, 
Docket No. NHTSA-2021-0030-0326 (June 11, 2021) (raising generalized 
climate concerns); Allergy & Asthma Network et al., Docket No. 
NHTSA-2021-0030-0299 (June 4, 2021) (raising generalized health 
concerns arising from the climate crisis); The particular substance 
of any state or local policy does not control this repeal. Likewise, 
a repeal of the SAFE I Rule takes no position on how particular 
technologies may bear upon an EPCA preemption analysis. As such, 
this rulemaking is technologically neutral and does not seek to 
promote or discourage any specific vehicle technologies or emissions 
reductions strategies. Comments that endorse or criticize particular 
technologies, which were especially concerned with vehicle 
electrification, do not factor into the Agency's narrow legal 
determination in this repeal. See, e.g., American Fuel & 
Petrochemical Manufacturers, Docket No. NHTSA-2021-0030-0425 (June 
11, 2021) (``oppos[ing] technology-specific mandates, including zero 
emission vehicle (ZEV) mandates'' by arguing that they ``interfere 
with consumers' choices and are contrary to law''); See also Zero 
Emission Transportation Association, Docket No. NHTSA-2021-0030-0397 
(June 11, 2021) (supporting policies that ``increase the pace of 
zero emission vehicle deployment that are critical to decarbonizing 
the transportation sector'').
---------------------------------------------------------------------------

    Finally, even though many of the individual commenters expressly 
opposed the Proposal, NHTSA notes that many of these same comments 
frequently invoked reasons that actually support the rationale for the 
rulemaking. By far the most common theme developed in the individual 
comments opposing the Proposal was a concern for states' rights and 
skepticism of any approach that imposed an overgeneralized restriction 
on the ability of local jurisdictions to respond to the diverse needs 
of their respective communities.
    These commentors opposed the Proposal based on a faulty assumption 
that NHTSA's rulemaking proposed to delegate the authority to 
California to set legally binding standards on the rest of the United 
States.\54\ Of course, neither the Proposal nor today's repeal 
delegates any authority to California or elsewhere. This rulemaking 
does not even take a substantive position on the status of any 
individual program of a state or local jurisdiction. Instead, repealing 
the SAFE I Rule merely repeals an impermissible layer of prescriptive 
preemption requirements, which the Agency was not authorized to 
promulgate, and which improperly ignore legally relevant preemption 
considerations. Through such a repeal, NHTSA also removes unnecessary 
and inappropriate restrictions on potential policy flexibility and 
innovation at the state and local levels as it relates to motor vehicle 
emissions regulations. This additional flexibility at state and local 
levels may even address this theme expressed in many of these 
individual comments, which consistently opposed measures that applied 
an overbroad or one-size-fits-all approach to state and local concerns.
---------------------------------------------------------------------------

    \54\ See, e.g., Mark Franck, Docket No. NHTSA-2021-0030-0043 
(June 3, 2021) (``California should not be deciding what kind of 
cars the rest of the country can buy. This damaging new rule, would 
allow California to make special regulations that the rest of us 
would be required to follow.'').
---------------------------------------------------------------------------

B. NHTSA Is Finalizing Its Repeal of the SAFE I Rule in Its Entirety

    After evaluating the public's input regarding the Proposal and 
further assessing the Agency's concerns regarding the SAFE I Rule, 
NHTSA is finalizing its proposed approach of repealing the SAFE I Rule 
in its entirety, including both the regulatory text and the other 
pronouncements that the Agency made in the document about EPCA 
preemption. The Agency concludes that this approach is both legally 
required and appropriate for several distinct reasons. First, as 
described further in Section II.B.i., the Agency lacked the authority 
to promulgate regulations on preemption, as the SAFE I Rule attempted 
to do. Second, as described in Section II.B.ii., regardless of whether 
NHTSA actually had authority for the SAFE I Rule, the Rule was still 
promulgated without regard for legally relevant and important 
considerations that should have informed the preemption analysis. 
Instead of accounting for those issues before fundamentally altering 
relied-upon federalism interests, the SAFE I Rule instituted a rigid 
and categorical preemption framework without regard for whether a 
narrower approach was available. Third, irrespective of a lack of 
authority or the Rule's overly broad scope, the SAFE I Rule still 
warrants repeal in order to mitigate the unnecessary complexity and 
potential confusion the SAFE I Rule injected into the EPCA preemption 
framework. By repealing this erroneous framework and refocusing the 
preemption analysis on the original statutory language, this final rule 
also provides space for the Agency to more carefully and appropriately

[[Page 74245]]

incorporate those considerations into any future action that may become 
necessary with respect to EPCA preemption.
    In all of these matters, the Agency remains mindful that EPCA does 
not require NHTSA to speak substantively on EPCA preemption, and 
certainly not through the promulgation of legislative rules. Under the 
unambiguous language of EPCA, the Agency could indefinitely remain 
silent as to Section 32919 without running afoul of any congressional 
directive or statutory mandate. As such, even if the SAFE I Rule's 
supporters have policy preferences for wanting the Rule to remain, 
there is indisputably no statutory requirement for the Rule. Thus, upon 
reconsideration, NHTSA concludes that a rule of this kind, which 
suffers from legal deficiencies and was imprudent for the Agency to 
issue, is particularly appropriate for repeal.
i. NHTSA Is Finalizing Its Proposal To Repeal the SAFE I Rule in Full 
Due to a Lack of Authority for the Original Rulemaking
a. Section 32919 Did Not Authorize NHTSA To Dictate Preemption in the 
Manner Attempted by the SAFE I Rule
    NHTSA concludes that a repeal of the SAFE I Rule is legally 
required because the Agency lacked the requisite authority to codify 
the standalone regulations promulgated by the SAFE I Rule. The Agency 
maintains the Proposal's view that in promulgating the SAFE I Rule, 
NHTSA attempted to exercise a legislative rulemaking function by 
establishing binding, express preemption requirements, which sought to 
control, rather than advise, the public (including states and local 
jurisdictions). In order to set these regulatory mandates, Congress 
would have had to first provide authority to NHTSA to act in such a 
manner. However, the Agency has determined that Congress did not intend 
for Section 32919 to provide NHTSA authority to institute additional 
express preemption terms, or to codify the scope of EPCA preemption 
through legislative rulemaking.
1. The SAFE I Rule Codified Legislative Rules, Which Sought To Impose 
Standalone Preemption Requirements
    Before describing the limitations on NHTSA's authority, the Agency 
first confirms the Proposal's understanding of the SAFE I Rule as 
codifying legislative rules, which sought to institute binding 
preemption requirements. NHTSA recognizes that although numerous 
commenters agreed with the Proposal on this issue, several commenters 
opposing the Proposal contested either the legislative status of the 
SAFE I Rule or whether the distinction even matters for this 
reconsideration. To be clear, NHTSA considers a repeal of the SAFE I 
Rule both appropriate and necessary for the reasons described 
throughout this final rule, irrespective of whether one considers the 
Rule to be legislative, interpretative, or any other form of agency 
statement. Nevertheless, NHTSA still views the SAFE I Rule as 
displaying the hallmarks of a legislative regulatory action. As such, 
the Agency starts the authority discussion with this issue.
    In this respect, the Agency distinguishes between a legislative 
rule, ``which is a rule that is intended to have and does have the 
force of law,'' and an interpretative rule, which ``does not have the 
force of law and is not binding on anyone.'' \55\ For this reason, 
legal scholars have often noted that while interpretative rules may 
provide guidance to the public or ``persuad[e a] court that the 
agency's interpretation is correct,'' \56\ they ultimately lack a 
binding effect, serving only to ``advise the public.'' \57\ As such, an 
interpretative rule ``does not contain new substance of its own'' but 
is simply a conduit for understanding a pre-existing obligation already 
established by the statute under interpretation.\58\ In contrast, 
legislative rules have long been understood as imposing binding 
obligations that ``affect[ ] individual rights and obligations.'' \59\ 
Further, ``the exercise of quasi-legislative authority by governmental 
departments and agencies must be rooted in a grant of such power by the 
Congress and subject to limitations which that body imposes.'' \60\ 
Consequently, for NHTSA to have validly promulgated legislative rules 
in the SAFE I Rule, Congress must have first provided the authority to 
the agency to do so.
---------------------------------------------------------------------------

    \55\ Nat'l Latino Media Coal. v. F.C.C., 816 F.2d 785, 787-88 
(D.C. Cir. 1987) (explaining further that ``A valid legislative rule 
is binding upon all persons, and on the courts, to the same extent 
as a congressional statute. When Congress delegates rulemaking 
authority to an agency, and the agency adopts legislative rules, the 
agency stands in the place of Congress and makes law.'').
    \56\ See Richard J. Pierce, Jr. & Kristin E. Hickman, 
Administrative Law Treatise Sec.  4.5 (6th Edition, 2020-1 Cum. 
Supp.) (``The agency's interpretative rule serves only the function 
of potentially persuading the court that the agency's interpretation 
is correct . . . Correspondingly, members of the public may choose 
for practical reasons to comply with an interpretative rule.'').
    \57\ See Attorney General's Manual on the Administrative 
Procedure Act (1947) at 30 n.3.
    \58\ Nat'l Latino Media Coal., 816 F.2d at 788.
    \59\ See Morton v. Ruiz, 415 U.S. 199, 232 (1974).
    \60\ See Chrysler Corp. v. Brown, 441 U.S. 281, 302 (1979).
---------------------------------------------------------------------------

    Within this backdrop, NHTSA views the SAFE I Rule as clearly 
intending to establish binding preemption requirements, which 
affirmatively prohibited programs of states and local jurisdictions. As 
described further below, both the regulatory text and the manner in 
which NHTSA contemporaneously described its rulemaking lead to the 
conclusion that the SAFE I Rule was not an effort to inform, but an 
effort to issue binding, prescriptive requirements with the force and 
effect of law. This conclusion is supported by multiple facets of the 
rulemaking, many of which were illustrated through the comments.
    Several commenters to the Proposal disagreed that the SAFE I Rule 
was a legislative rule or that the distinction between a legislative 
and interpretive rule mattered. Although the Agency responds more 
specifically to such detailed concerns below, NHTSA nevertheless 
considers the legislative status of the SAFE I Rule ultimately a 
straightforward outgrowth of the regulatory background and applicable 
law. While courts and legal scholars have set forth numerous multi-part 
tests or thresholds for trying to find the demarcation point between 
interpretative and legislative rules, they all overwhelmingly seek to 
answer a question much different, and frequently more complicated, than 
that presented in this rulemaking. In the typical fact pattern, 
encountered by many courts, an agency seeks to characterize its own 
action as interpretative and valid absent the undertaking of notice-
and-comment procedures, while challengers (often the regulated entities 
most affected by the action) argue that the rule alters their 
substantive obligations and necessitates notice-and-comment procedures 
before promulgation.\61\ As such, these multifaceted judicial doctrines 
seek to aid a reviewing court in reconciling the contradictory 
positions between the regulators and the regulated, in order to 
accurately understand how extensively the agency's action actually 
attempted to affect the rights and obligations of the regulated 
parties.
---------------------------------------------------------------------------

    \61\ See, e.g., Hoctor v. U.S. Dep't of Agric., 82 F.3d 165 (7th 
Cir. 1996).
---------------------------------------------------------------------------

    None of these circumstances apply to the SAFE I Rule or this 
Proposal. In the Proposal, NHTSA, as the agency that promulgated the 
regulations in question in the SAFE I Rule (after notice-and-comment), 
expressed its own concern that it had issued legislative rules in 
excess of its authority, and acknowledged that the rules attempted

[[Page 74246]]

to impose substantive restrictions on regulated entities--namely, 
states and local jurisdictions.\62\ In turn, the state and local 
governments that submitted comments overwhelmingly agreed with the 
Agency's characterization of its own rule. This sentiment was 
exemplified by a comment from California's South Coast Air Quality 
Management District, which directly expressed that ``[t]he Preemption 
Rule has every indicium of being a legislative rule, which purported to 
change the legal rights and obligations of states by its action.'' \63\ 
As described in greater detail in Section II.B.ii. of this final rule, 
these commenters provided tangible examples of actual hardships those 
states feared would ensue from the extent to which the SAFE I Rule 
disrupted their state regulatory agendas and curtailed their previously 
understood federalism rights. These concerns make clear that, by and 
large, states and local jurisdictions considered the SAFE I Rule as 
more than simply interpretative guidance on an EPCA preemption 
restriction that already applied to them, but as a new regulatory 
measure that would serve to invalidate existing state programs and ones 
those entities hoped to formulate in the future.\64\
---------------------------------------------------------------------------

    \62\ CAFE Preemption NPRM, 86 FR at 25985 (``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.'').
    \63\ South Coast Air Quality Management District, Docket No. 
NHTSA-2021-0030-0446 (June 11, 2021).
    \64\ State of California et al., Docket No. NHTSA-2021-0030-0403 
(describing the SAFE I Rule's disruption of state programs and 
reliance interests in established regulatory approaches).
---------------------------------------------------------------------------

    This is an understandable expectation, as both NHTSA and EPA also 
contemporaneously treated the SAFE I Rule as binding and effectuating 
change. The SAFE I Rule even expressly described the rulemaking action 
as ``effectuating Congress's goal.'' \65\ Similarly, commenters 
emphasizing this point also referenced language from the final rule 
preamble of the SAFE I Rule, in which the Agencies recognized that `` 
`certain States may need to work with EPA to revise their [State 
Implementation Plans] in light of this final action'' to remove 
purportedly preempted standards.\66\ In the SAFE I joint agency action, 
EPA also characterized NHTSA's preemption regulations as determinative, 
noting that ``in light of NHTSA's determinations'' on EPCA preemption, 
EPA's grant of a waiver for ``California's program was invalid, null, 
and void.'' \67\ These characterizations help to demonstrate that the 
regulated community and the public could reasonably have expected that 
NHTSA's SAFE I Rule regulations presented mandatory and legally 
effective requirements.
---------------------------------------------------------------------------

    \65\ NHTSA, EPA, Withdrawal of Waiver; Final Rule, The Safer 
Affordable Fuel-Efficient (SAFE) Vehicles Rule Part One: One 
National Program, Final Rule, 84 FR 51310, 51316 (Sept. 27, 2019) 
(emphasis added).
    \66\ South Coast Air Quality Management District, Docket No. 
NHTSA-2021-0030-0446 (June 11, 2021) (quoting NHTSA, EPA, Withdrawal 
of Waiver; Final Rule, The Safer Affordable Fuel-Efficient (SAFE) 
Vehicles Rule Part One: One National Program, Final Rule, 84 FR 
51310, 51324 (Sept. 27, 2019)).
    \67\ NHTSA, EPA, Withdrawal of Waiver; Final Rule, The Safer 
Affordable Fuel-Efficient (SAFE) Vehicles Rule Part One: One 
National Program, Final Rule, 84 FR 51310, 51356 (Sept. 27, 2019).
---------------------------------------------------------------------------

    This view was echoed by many other commenters who supported this 
Proposal.\68\ Even commenters who opposed the current Proposal and 
argued that the SAFE I Rule was merely interpretative (or contended the 
distinction failed to matter), still treated the SAFE I Rule as a 
regulatory linchpin that was critical to keeping states and local 
jurisdictions from pursuing regulatory programs that they would 
otherwise undertake. For example, one commenter likened the repeal of 
the SAFE I Rule to a ``dereliction'' of NHTSA's duty, akin to 
permitting states to run amok in ``lawlessness'' in the absence of 
regulations and removing the sole bulwark to ``California's impending 
balkanization,'' all the while insisting that the ``[t]he One National 
Program rules do not satisfy the intransitivity test for legislative 
rules'' because their restrictions were present all along in Section 
32919.\69\ This concern, though, would only be valid if the SAFE I Rule 
were binding and not a mere interpretation. Thus, it becomes clear 
that, ultimately, all commenters--both supportive of and opposed to the 
Proposal--treat the SAFE I Rule as a sweeping measure, which was 
largely expected to bind regulated entities. In other words, as a 
legislative rule.
---------------------------------------------------------------------------

    \68\ See, e.g., Center for Biological Diversity et al., Docket 
No. NHTSA-2021-0030-0369 (June 11, 2021).
    \69\ Urban Air Initiative et al., Docket No. NHTSA-2021-0030-
0423 (June 11, 2021).
---------------------------------------------------------------------------

    The SAFE I Rule, thus, was widely viewed as establishing new legal 
restrictions intended to broadly alter the pre-existing EPCA preemption 
landscape. As described in the Proposal, in 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 both the Proposal and many commenters pointed out, the 
imperative and mandatory language of the SAFE I Rule illustrates the 
degree to which the SAFE I Rule imposed demands upon regulated entities 
(and expected compliance) rather than helpfully advised them of a 
possible construction of pre-existing statutory language. 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.'' \70\ 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'' \71\ and characterized the regulations as 
``implementing'' \72\ 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.\73\
---------------------------------------------------------------------------

    \70\ NHTSA, EPA, The Safer Affordable Fuel-Efficient (SAFE) 
Vehicles Rule Part One: One National Program, Final Rule, 84 FR 
51310 (Sept. 27, 2019).
    \71\ Id. at 51317.
    \72\ Id. at 51318.
    \73\ 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.'').
---------------------------------------------------------------------------

    A few commenters sought to diminish the importance of such 
mandatory language, contending, for instance, that ``nothing'' would 
have practically changed had the Agency employed more permissive or 
advisory language in the SAFE I Rule instead of the imperative language 
used throughout both the codified text and preamble.\74\ This 
argument's supposition is undermined by the numerous comments

[[Page 74247]]

from states and local jurisdictions--the entities to whom such language 
was primarily directed--who consistently made clear that they 
understood the Rule's regulations as constricting their activities 
rather than merely advising how Section 32919 may be applied at some 
indeterminate point in the future. Moreover, the Agency's own 
statements in the SAFE I Rule disprove this argument, as they reveal a 
definitive expectation that states would curb their actions in order to 
meet the newly demanded scope of preemption.\75\
---------------------------------------------------------------------------

    \74\ Urban Air Initiative et al., Docket No. NHTSA-2021-0030-
0423 (June 11, 2021) (rhetorically asking ``If the Agency had done 
this, what would change in the real world compared to what the 
Agency actually did? In a word, nothing.'').
    \75\ See supra nn.66-67.
---------------------------------------------------------------------------

    More fundamentally though, discounting the importance of the 
Agency's own language in the precise rulemaking record in question too 
narrowly focuses the legislative rule inquiry. Even the cases cited by 
opposing commenters on this issue, such as American Mining Congress v. 
Mine Safety & Health Administration, expressly recognized that all of 
the avenues and tests for distinguishing between legislative and 
interpretative rules are ultimately just different ways of asking 
whether ``the agency intended to exercise'' a delegated legislative 
power to promulgate rules that impose binding obligations with ``legal 
effect.'' \76\ As noted above, this inquiry is much more 
straightforward in a situation, such as here, where the agency itself 
believes that this is the intent of the rule and undertook the notice-
and-comment procedures required under the Administrative Procedure Act 
(APA) to issue legally binding regulations, without in any way implying 
that those steps were optional. For this reason, American Mining 
Congress underscored that despite any of the more complicated analyses 
that may apply when an agency disagrees on a rule's legislative status, 
the entire question is resolved if in the rulemaking the agency simply 
``choose[s] explicitly to invoke its general legislating authority.'' 
\77\ In such a case, the rule should be ``presumably treat[ed] . . . as 
an attempted exercise of legislative power.'' \78\
---------------------------------------------------------------------------

    \76\ 995 F.2d 1106, 1109 (D.C. Cir. 1993) (``Our own decisions 
have often used similar language, inquiring whether the disputed 
rule has `the force of law'. We have said that a rule has such force 
only if Congress has delegated legislative power to the agency and 
if the agency intended to exercise that power in promulgating the 
rule.'') (internal citations omitted).
    \77\ Id. at 1111.
    \78\ Id.
---------------------------------------------------------------------------

    Here, the SAFE I Rule clearly--and explicitly--expressed an 
understanding that the new rules created legal obligations that would 
bind states and local jurisdictions, as described above. Moreover, even 
the mechanics of the SAFE I Rule's promulgation demonstrate NHTSA's 
awareness that it was codifying legislative rules that instituted legal 
requirements. Commenters defending the SAFE I Rule stressed that the 
rulemaking undertook all of the procedural steps required by the APA 
for a legislative (but not an interpretative) rule.\79\ This procedural 
regularity only underscores the SAFE I Rule's intended legislative 
function, as it illustrates the lengths the Agency went to ensure that 
the regulations codified by the SAFE I Rule were procedurally 
defensible and binding.\80\ Moreover, the SAFE I Rule was codified into 
NHTSA's own regulations in the Code of Federal Regulations (CFR)--a 
step that courts, including American Mining Congress, have often 
considered helpful in understanding the Agency's intent.\81\ The Agency 
also does not view the requirements in the Appendices as somehow 
procedurally cured or automatically interpretations simply because they 
appear in appendices rather than separately numbered regulations. It is 
not uncommon for agencies, including NHTSA, to include regulatory 
requirements in appendices.\82\ The appendices here continued that 
approach, with the facial language of the appendices codified in the 
CFR continuously invoking the same binding language described 
throughout this final rule.
---------------------------------------------------------------------------

    \79\ See, e.g., National Automobile Dealers Association, Docket 
No. NHTSA-2021-0030-0435 (June 10, 2021) (``the regulatory language 
set out in the SAFE I Rule was adopted in full compliance with all 
applicable procedural requirements.'').
    \80\ See Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 
173 (2007) (describing how an agency's use of ``full notice-and-
comment rulemaking procedures'' suggested the agency intended to 
promulgate a legislative rule). To be clear, the mere fact that an 
Agency requests comment on an action before finalizing it is not 
itself dispositive evidence that an action is a legislative rule, as 
there are many strong policy reasons for agencies to seek public 
input on documents beyond when they are expressly required to do so 
by statute. However, in those instances, the agency will generally 
make clear that the document at issue is an interpretation, policy 
statement, or other sort of guidance document, which stands in 
significant contrast to the approach taken in the SAFE I rulemaking.
    \81\ Am. Min. Cong., 995 F.2dat 1109 (``an agency seems likely 
to have intended a rule to be legislative if it has the rule 
published in the Code of Federal Regulations''). NHTSA recognizes 
that, as at least one commenter pointed out, some subsequent cases 
have deemed a rule interpretative even if published in the CFR. See, 
e.g., Health Ins. Ass'n of Am., Inc. v. Shalala, 23 F.3d 412, 423 
(D.C. Cir. 1994). While such cases may indicate that a CFR 
publication is not dispositive of the issue, they do not eliminate 
the relevance of this step as a helpful piece of the larger puzzle 
of identifying the agency's intent to codify binding regulations.
    \82\ See, e.g., 49 CFR part 564, Appendices A-B (listing 
information required to be submitted to the Agency regarding certain 
replaceable light sources in motor vehicles).
---------------------------------------------------------------------------

    Finally, a joint comment submitted by the Urban Air Initiative, 
among others, raised an issue that highlights one of the most telling 
aspects of the SAFE I Rule's legislative character.\83\ Specifically, 
after arguing the Rule did not satisfy governing tests for legislative 
rules, the comment reached the ultimate conclusion that the legislative 
versus interpretative distinction was irrelevant to the SAFE I Rule's 
viability. The comment contended that, either way, the SAFE I Rule was 
a valid outgrowth of NHTSA's interpretative authority in administering 
EPCA and the CAFE program. To reach this conclusion, the comment 
focused at length on the concept of the ``force of law'' and the 
intransitivity test for legislative rulemaking, stressing that the SAFE 
I Rule embodied NHTSA's interpretative authority because it simply 
defined a pre-existing and already enforceable obligation set by 
Section 32919. And, in that sense, even if the SAFE I Rule's 
interpretation was binding, such a result was permissible as long as 
the APA's notice and comment procedures were followed. At least one 
other comment similarly remarked that whether the SAFE I Rule is 
legislative or interpretative ``may not make much of a difference as a 
practical matter.'' \84\ The theme in such comments is a baseline 
assumption that the SAFE I Rule did not ``itself impose[ ] federal 
regulatory preemption'' because, they stress, Section 32919 already 
imposed a self-executing preemption requirement.\85\
---------------------------------------------------------------------------

    \83\ Urban Air Initiative et al., Docket No. NHTSA-2021-0030-
0423 (June 11, 2021).
    \84\ National Automobile Dealers Association, Docket No. NHTSA-
2021-0030-0435 (June 10, 2021).
    \85\ See id.
---------------------------------------------------------------------------

    Ultimately, the Agency believes such comments erroneously comingled 
the substantive question about the scope of EPCA's preemption 
requirements with the unrelated question of whether the SAFE I Rule's 
regulations sought to codify prescriptive requirements that implemented 
Section 32919 in a legislative manner. The Urban Air Initiative's joint 
comment characterized these questions as one and the same, arguing that 
as long as the substance of Section 32919 supported the preemption 
requirements promulgated in the SAFE I Rule, the legislative versus 
interpretative distinction was ``irrelevant'' because either way NHTSA 
was simply elucidating requirements that already existed under 
EPCA.\86\

[[Page 74248]]

However, blending the substance and form in this way ignores a 
longstanding recognition that whether legislative rules validly 
prescribe conduct in a binding way is a distinct issue from whether the 
requirements those rules impose are consistent with either the 
underlying statute or regulation.
---------------------------------------------------------------------------

    \86\ See Urban Air Initiative et al., Docket No. NHTSA-2021-
0030-0423 (June 11, 2021).
---------------------------------------------------------------------------

    Rather than comparing the substantive scope of the underlying 
statute and the agency's subsequent action, the legislative rule 
inquiry instead looks to the degree to which the standard announced by 
the agency went ``beyond a process reasonably described as 
interpretation'' by turning the original statutory standard into a 
rigid threshold that prescribed specific conduct.\87\ In this sense, an 
agency performs a ``legislative function'' by applying a ``value 
judgement[ ]'' to a broader statutory framework and turning that 
judgment into a static requirement, which imposes a rigid threshold for 
compliance.\88\ In such situations, the rule announced by the agency is 
legislative in that it forms a standalone requirement, which is no 
longer tied ``to the animating standard'' of the statute, but 
``stand[s] free of the standard'' as it is ``self-contained'' and 
``unbending.'' \89\ Examples of these types of legislative rules span 
from a set of investment conditions fashioned from a general statutory 
standard of ``reasonable costs'' \90\ to an agency's mathematical 
analysis that turned a statutory standard into a requirement that a 
fence meet specific dimensions.\91\ While the nature or type of rule 
resulting from the legislative undertaking may vary, the focus of the 
inquiry is on the transformation of a statutory standard into a set of 
specifically enumerated rules that prescribe conduct.
---------------------------------------------------------------------------

    \87\ See Hoctor v. U.S. Dep't of Agric., 82 F.3d 165, 170 (7th 
Cir. 1996).
    \88\ Id.
    \89\ Id. at 171.
    \90\ See Cath. Health Initiatives v. Sebelius, 617 F.3d 490, 496 
(D.C. Cir. 2010).
    \91\ See generally Hoctor, 82 F.3d 165.
---------------------------------------------------------------------------

    Importantly, this legislative rule inquiry is wholly distinct from 
the question about whether the legislative rules would be a permissible 
reading of the underlying statute or regulation. In fact, courts 
conducting these analyses often expressly make clear that the 
legislative rule determination does not require them to reach the 
question of whether those rules would have been subsumed within the 
respective scopes of the statutes or any other existing regulations 
that the agencies had already promulgated. For instance, through this 
legislative rule inquiry ``[w]e may assume, without deciding, that the 
[requirements] are an extension'' of the statute and ``consistent'' 
with existing regulatory provisions.\92\ Even so, ``neither assumption 
leads to the conclusion that the [requirements] represent an 
interpretation.'' \93\ Instead, what matters is whether the agency 
performs merely an act of interpretation or instead operates in an 
essentially legislative capacity by crystallizing a broader statutory 
standard into specific prescriptive requirements.
---------------------------------------------------------------------------

    \92\ Id.
    \93\ Id.
---------------------------------------------------------------------------

    Applying this same framework, even assuming for purposes of 
discussion (like those courts) that the SAFE I Rule's regulations 
imposed a substantive obligation that was consistent with the ``related 
to'' standard in Section 32919, the regulations still undeniably 
prescribed conduct in a way that was legislative rather than 
interpretative. Specifically, the SAFE I Rule's regulations turned the 
baseline standard of Section 32919, ``related to,'' into an entire list 
of specifically enumerated conduct that created a prescriptive 
threshold for EPCA preemption.
    Under Section 32919, ``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 [Chapter 329].'' \94\ 
This statutory framework contains a general standard by which to 
evaluate the application of EPCA preemption: ``related to.'' In the 
SAFE I Rule, NHTSA applied a ``value judgment'' \95\ to this statutory 
standard by undertaking what the Rule called a ``scientific'' and 
``mathematical'' evaluation of fuel economy and emissions concepts.\96\ 
Through this endeavor, the SAFE I Rule fashioned a set of highly 
prescriptive requirements that precisely and rigidly dictated when a 
state or local jurisdiction's program ``related to'' fuel economy 
standards for purposes of EPCA. For the question of whether the rule 
was legislative or interpretive, it is wholly irrelevant to determine 
whether those prescriptive requirements were reasonable understandings 
of the ``related to'' statutory standard. All that matters for the 
legislative rule analysis is that, once codified, the regulations from 
the SAFE I Rule served as standalone standards for EPCA preemption. The 
SAFE I Rule extrapolated from the original statutory standard and 
articulated express prohibitions which, once codified, were intended to 
and capable of fully controlling the preemption analysis in lieu of the 
original statutory language.\97\
---------------------------------------------------------------------------

    \94\ 49 U.S.C. 32919(a).
    \95\ Hoctor, 82 F.3d at 170.
    \96\ NHTSA, EPA, Withdrawal of Waiver; Final Rule, The Safer 
Affordable Fuel-Efficient (SAFE) Vehicles Rule Part One: One 
National Program, Final Rule, 84 FR 51310, 51319-20 (Sept. 27, 2019) 
(``The foundational factual analysis involves the scientific 
relationship between automobile fuel economy and automobile tailpipe 
emissions of carbon dioxide. NHTSA discussed this scientific 
relationship in detail.'').
    \97\ See 49 CFR part 531, Appendix B(a)(E)(3).
---------------------------------------------------------------------------

    For example, Appendix B to Parts 531 and 533 expressly declares the 
preemption of ``any law or regulation of a State or a political 
subdivision of a State'' solely based on the fact that the program in 
question ``ha[s] the direct or substantial effect of regulating or 
prohibiting tailpipe carbon dioxide emissions from automobiles.'' \98\ 
A similar standard is repeated multiple times in the SAFE I Rule's 
regulations, with subsection (a)(E)(2) also flatly preempting ``any law 
or regulation'' that ``regulates or prohibits tailpipe carbon dioxide 
emissions automobiles,'' \99\ and subsection (b) codifying identical 
categorical thresholds for ``implied preemption.'' \100\ These 
categorical thresholds represent NHTSA's ``scientific'' and 
``mathematical'' judgment in the SAFE I Rule as to how EPCA's animating 
``related to'' standard would look as a prescriptive requirement. But 
in the SAFE I Rule, NHTSA went beyond just providing guidance about how 
NHTSA's views on the subject should inform a state or local 
jurisdiction who wished to understand how their program might fit 
within EPCA's ``related to'' standard. Instead, NHTSA announced those 
positions in the form of regulations of general applicability that 
formed their own regulatory standards. These new regulations were 
``self-contained'' and ``unbending'' in that any programs that 
satisfied the strict regulatory text were now labeled as conclusively 
preempted by NHTSA. And, this approach prevented a more careful 
analysis of whether it is possible that any state or local standard 
that met the static preemption threshold imposed by these regulations 
may not actually ``relate to'' fuel economy for any particular reason 
(such as perhaps the fact-specific variables foreclosed from 
consideration as described below in Section II.B.ii.). In this sense, 
once in place, the SAFE I Rule's regulations were intended to 
functionally replace the EPCA preemption language in any analysis of 
whether a particular program was preempted, without a need to reference

[[Page 74249]]

the original statutory text or underlying caselaw.\101\ The SAFE I Rule 
even acknowledges the standalone nature of the new regulations, 
explaining that the codified ``regulations are operable without regard 
to any specific Federal standards and requirements . . . or other parts 
of the Code of Federal Regulations.'' \102\
---------------------------------------------------------------------------

    \98\ Id.
    \99\ 49 CFR 531.7(a)(E)(2).
    \100\ 49 CFR 531.7(b).
    \101\ NHTSA stresses that it is not necessary to substantively 
determine whether ``related to'' could be properly interpreted to 
include these concepts in order to reach this point, nor does the 
Agency make such a determination here. What matters is that, once 
codified, the regulation now forms the operative standard, which 
purports to be legally binding and capable of standalone 
application. In that sense, the regulation functions as a 
legislative rule, which requires legislative rulemaking authority to 
promulgate, no matter how proper or improper the substantive content 
of the rule may be.
    \102\ NHTSA, EPA, Withdrawal of Waiver; Final Rule, The Safer 
Affordable Fuel-Efficient (SAFE) Vehicles Rule Part One: One 
National Program, Final Rule, 84 FR 51310, 51315 (Sept. 27, 2019) 
(explaining how the SAFE I Rule was a standalone rulemaking action 
that did not need to accompany a CAFE standards rulemaking) 
(emphasis added).
---------------------------------------------------------------------------

    While Section II.B.ii. below explains how this inflexible standard 
inappropriately precludes individualized considerations, the self-
contained nature of the standard also demonstrates how the SAFE I 
Rule's regulations operate as prohibitions that turn a broader 
statutory standard into a set of rules that states and local 
jurisdictions must follow. This process of fashioning a set of specific 
and prescriptive requirements out of an underlying statutory standard 
involves a legislative function of the agency and the rules that 
emerged from this process are legislative in nature. And the law is 
clear that an agency may prescribe conduct and issue such legislative 
rules only if provided the authority to do so by Congress.\103\ EPCA 
provides NHTSA with no such authority.
---------------------------------------------------------------------------

    \103\ See, e.g., Louisiana Pub. Serv. Comm'n v. F.C.C., 476 U.S. 
355, 374 (1986).
---------------------------------------------------------------------------

2. EPCA Did Not Authorize NHTSA To Expressly Establish New EPCA 
Preemption Requirements
    Once the SAFE I Rule's regulations are properly understood as 
seeking to impose binding legal requirements, it becomes clear that the 
Rule is premised on the need for NHTSA to possess the requisite 
authority to validly set such mandates. The Proposal generated a number 
of comments on this authority issue. A large number of those comments 
agreed with the Proposal's concerns about a lack of authority for the 
rulemaking, while several commenters defended the legitimacy of the 
Rule. But while these comments may have disagreed on the existence of 
authority or the extent to which NHTSA's authorities extended, they did 
not generally dispute the Proposal's recognition of the fundamental 
principle that an agency must possess authority to issue legislative 
rules.
    As the Proposal explained, the regulatory authority of federal 
agencies extends only insofar as Congress permits.\104\ Consequently, 
an agency ``may act only when and how Congress lets [it].'' \105\ These 
restrictions extend to all aspects of an agency's regulatory activity--
including a rulemaking and ultimately derive from Congress.\106\ As 
such, the matters upon which an agency may promulgate rules imbued with 
the force and effect of law depend upon the extent to which the Agency 
has the appropriate statutory authority.\107\
---------------------------------------------------------------------------

    \104\ Ry. Labor Executives' Ass'n v. Nat'l Mediation Bd., 29 
F.3d 655, 670 (D.C. Cir. 1994) (en banc) (stressing that 
``[a]gencies owe their capacity to act to the delegation of 
authority, either express or implied, from the legislature'').
    \105\ Cent. United Life Ins. Co. v. Burwell, 827 F.3d 70, 73 
(D.C. Cir. 2016).
    \106\ Id.
    \107\ 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).
---------------------------------------------------------------------------

    Ultimately, as the Proposal expressed, 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.\108\ 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.\109\ 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.
---------------------------------------------------------------------------

    \108\ Ry. Labor Executives' Ass'n., 29 F.3d at 670 (en banc).
    \109\ Id.
---------------------------------------------------------------------------

    The need for sufficient authority does not fade when an agency 
seeks to promulgate regulations expressly dictating preemption. In 
fact, as the Proposal expressed, 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. 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.'' \110\ 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.'' \111\ 
An agency must draw preemption authority from definitive sources, as 
the governing framework ``does not create preemption authority out of 
thin air.'' \112\ As the Supreme Court has made clear:
---------------------------------------------------------------------------

    \110\ City of New York v. F.C.C., 486 U.S. 57, 64 (1988).
    \111\ Id.
    \112\ See, e.g., Mozilla Corp. v. FCC, 940 F.3d 1, 78 (D.C. Cir. 
2019) (determining that neither express nor ancillary authority nor 
other doctrines, such as the impossibility exception, could justify 
the FCC's assertion of preemption authority for a particular 
action).

    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.\113\
---------------------------------------------------------------------------

    \113\ Louisiana Pub. Serv. Comm'n, 476 U.S. at 374.

    In response to the Proposal, many commenters repeatedly expressed a 
concern that NHTSA lacked the authority for the SAFE I Rule.\114\ In 
most cases, these comments echoed rationales expressed in the Proposal 
for why such authority was lacking.\115\ Accordingly,

[[Page 74250]]

many of them also read Section 32919 as silent on any role for NHTSA in 
further dictating the scope of EPCA preemption,\116\ understood Section 
32919's self-executing nature as actually foreclosing regulations that 
dictate additional express preemption requirements,\117\ and viewed 
general delegations of authority to the Secretary of Transportation 
insufficient to support such a sweeping act of preemption.\118\
---------------------------------------------------------------------------

    \114\ Center for Biological Diversity et al., Docket No. NHTSA-
2021-0030-0369 (June 11, 2021); State of California et al., Docket 
No. NHTSA-2021-0030-0403 (June 11, 2021); South Coast Air Quality 
Management District, Docket No. NHTSA-2021-0030-0446; National 
Association of Clean Air Agencies (NACAA), Docket No. NHTSA-2021-
0030-0140 (June 10, 2021); Maine Department of Environmental 
Protection, Docket No. NHTSA-2021-0030-0249 (June 10, 2021); Tesla, 
Inc. Docket No. NHTSA-2021-0030-0398 (June 11, 2021); Nevada 
Division of Environmental Protection, Docket No. NHTSA-2021-0030-
0362 (June 11, 2021).
    \115\ A few comments go further and suggest that NHTSA not only 
lacks legislative authority with respect to EPCA preemption, but 
interpretative authority as well. See, e.g., Northeast States for 
Coordinated Air Use Management, Docket No. NHTSA-2021-0030-0300 
(June 11, 2021) (noting that ``the agency lacks statutory authority 
to define the scope of EPCA preemption through legislative or 
interpretative rules'') (emphasis added). In response, NHTSA 
stresses that it continues to believe that the Agency may offer 
interpretations or guidance as to its views. To be sure, NHTSA does 
not agree with other commenters who argue that this interpretative 
authority equates to the ability to issue binding interpretations. 
See Urban Air Initiative et al., Docket No. NHTSA-2021-0030-0423 
(June 11, 2021). But the Agency nevertheless maintains the view 
expressed in the Proposal that NHTSA may properly announce 
interpretative views about matters of EPCA preemption if so desired. 
See CAFE Preemption NPRM, 86 FR at 25988 (``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.'').
    \116\ See, e.g., Center for Biological Diversity et al., Docket 
No. NHTSA-2021-0030-0369 (June 11, 2021) (stressing that Section 
32919 ``does not mention the Secretary or contemplate Federal 
regulations `to carry out' congressional intent to preempt State and 
local laws.'').
    \117\ See, e.g., National Coalition for Advanced Transportation, 
Docket No. NHTSA-2021-0030-0310 (June 11, 2021).
    \118\ See, e.g., Emmett Institute on Climate Change and the 
Environment, Docket No. NHTSA-2021-0030-0218 (June 10, 2021) 
(``NHTSA also lacked the ancillary authority to adopt the 2019 
Rule.'').
---------------------------------------------------------------------------

    These comments reinforce the Proposal's substantial doubts about 
NHTSA's authority to promulgate the SAFE I Rules, which the Agency 
crystalizes in this final rule into a firm conclusion that the 
requisite authority does not exist. The lack of legal authority is most 
clearly illustrated by the inadequacy of the two grounds articulated by 
the SAFE I Rule (and comments who supported that position here) for the 
proposition that NHTSA enjoys authority to promulgate the regulations: 
(1) The general rulemaking authority of the Secretary of 
Transportation; and (2) more generalized inferences from the spirit of 
EPCA. The Agency finalizes its view that neither of these grounds 
suffices.
a. No Direct Statutory Authority Enables NHTSA To Promulgate the SAFE I 
Rule
    First, NHTSA finalizes the view expressed in the Proposal that no 
direct statutory source exists for the Agency to derive authority to 
conduct the SAFE I rulemaking. In this respect, NHTSA focuses, in 
particular, on the two statutory provisions that commenters supporting 
the SAFE I Rule especially relied upon to argue that such authority 
existed: 49 U.S.C. 322 and 49 U.S.C. 32919. Neither of these provisions 
enables a legislative rulemaking action to establish new binding 
preemption requirements.
    This analysis starts with Section 322 because that is the only 
source of statutory authority invoked in the SAFE I Rule. Notably, even 
though EPCA speaks directly to the fuel economy preemption issue in 
Section 32919, in the SAFE I rulemaking, NHTSA did not invoke Section 
32919 to claim the authority to issue preemption regulations.\119\ 
Instead, NHTSA claimed authority based on the Secretary of 
Transportation's ``general powers'' under Section 322 to ``carry out'' 
all responsibilities across the entire Department of Transportation. 
NHTSA argued at the time that this authority was sufficient because the 
Agency could not carry out its CAFE standard-setting responsibilities 
in the face of state regulation that undermined its authority.\120\ 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.'' \121\ This is 
because in the SAFE I Rule the Agency characterized that rulemaking as 
simply ``carry[ing] out'' the preemption scope of Section 32919.\122\
---------------------------------------------------------------------------

    \119\ 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).
    \120\ See, e.g., id. at 51317.
    \121\ Id. at 51320.
    \122\ Id.
---------------------------------------------------------------------------

    NHTSA concludes that the general authority for the Secretary to 
``carry out'' his responsibilities across the entire Department of 
Transportation cannot supplant the otherwise strong indication that 
legally binding regulations on EPCA preemption exceed the scope of the 
Agency's authority. Nothing in the comments undermines the Proposal's 
straightforward recognition that Section 322 contains statutory 
language of broad applicability that extends well beyond the CAFE 
program and, indeed, well beyond NHTSA. It continues to seem 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 below, 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, which neither 
Section 322 nor EPCA could support.
    Moreover, inserting Section 322 into EPCA in such a manner would 
require a strained reading of EPCA, which contradicts the specific 
approach Congress consistently employed throughout EPCA to provide 
authority to the various agencies targeted by the statute. Unlike some 
other enactments, which are primarily aimed at enabling a particular 
agency or creating a specific program, EPCA sought to establish an 
interagency framework for energy independence, which spanned a host of 
agencies and their respective jurisdictions. For instance, at various 
points, Congress directs portions of EPCA to a variety of agencies, 
including but not limited to the Department of Transportation, the 
Environmental Protection Agency, the Department of Justice, the Federal 
Trade Commission, the Federal Maritime Commission,\123\ and the Federal 
Power Commission.\124\ Consistent with this approach, the facial 
language of EPCA tends to clearly state when and where Congress 
intended to galvanize an agency into acting on a particular provision. 
For instance, even just taking a few non-exhaustive examples from the 
original language of the specific section of EPCA dedicated to 
automotive fuel economy:
---------------------------------------------------------------------------

    \123\ See generally The Energy Policy and Conservation Act of 
1975, Public Law 94-163, 89 Stat. 871.
    \124\ Id.
---------------------------------------------------------------------------

     Section 501(1) specifies that ``[t]he Secretary may 
prescribe such rules as may be necessary to implement this paragraph,'' 
which concerns the definitions of an automobile.\125\
---------------------------------------------------------------------------

    \125\ Id. Sec.  501(1) (``The term `automobile' means . . .'').

---------------------------------------------------------------------------

[[Page 74251]]

     Section 501(2) links the term passenger automobile to that 
``which the Secretary determines by rule.'' \126\
---------------------------------------------------------------------------

    \126\ Id. Sec.  501(2) (``The term `passenger automobile' means 
. . .'').
---------------------------------------------------------------------------

     Section 502 describes the circumstances, in detail, by 
which ``the Secretary shall prescribe, by rule, average fuel economy 
standards.'' \127\
---------------------------------------------------------------------------

    \127\ Id. Sec.  502 (``Average Fuel Economy Standards Applicable 
to Each Manufacturer'').
---------------------------------------------------------------------------

     Section 505(a)(3) requires that ``the Secretary shall 
prescribe rules setting forth the form and content of the reports 
required under'' the Section.\128\
---------------------------------------------------------------------------

    \128\ Id. Sec.  505(a)(3).
---------------------------------------------------------------------------

     Section 505(b)(1) describes the specific actions that the 
Secretary of Transportation and the EPA Administrator may take, such as 
conducting hearings, ``for the purpose of carrying out the provision of 
this part.'' \129\
---------------------------------------------------------------------------

    \129\ Id. Sec.  505(b)(1).
---------------------------------------------------------------------------

     Section 506(a)(3) requires that ``the form and content'' 
of labeling requirements ``shall be prescribed by the EPA Administrator 
by rule.'' \130\
---------------------------------------------------------------------------

    \130\ Id. Sec.  506(a)(3).
---------------------------------------------------------------------------

     Section 508(a)(3)(D) permits that ``the Secretary may 
prescribe rules for purposes of carrying the provisions of this 
paragraph,'' which pertains to civil penalties.\131\
---------------------------------------------------------------------------

    \131\ Id. Sec.  508(a)(3)(D).
---------------------------------------------------------------------------

    The remainder of EPCA is replete with similar examples of Congress 
specifically--and expressly--speaking to the ability or need for the 
agencies to implement its provisions through a variety of regulatory 
actions. In contrast, as noted by both the Proposal and certain 
commenters, Section 32919 (originally Section 509 of EPCA) is notably 
silent as to any role of the agency in administering--much less 
defining--a preemption scheme. This is despite other preemption 
provisions in EPCA continuing Congress' general trend throughout the 
statute of more specifically enumerating the role of the agency when 
contemplating further agency implementation. For instance, as the 
Proposal noted, the structures of other parts of EPCA 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 energy conservation standards.\132\
---------------------------------------------------------------------------

    \132\ See 42 U.S.C. 6297.
---------------------------------------------------------------------------

    This is also consistent with the manner in which Congress has 
provided preemption authority to the Department of Transportation in 
other contexts. The Proposal identified several of such examples, 
recognizing that, 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.\133\ 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.\134\ 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.\135\
---------------------------------------------------------------------------

    \133\ See 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)).
    \134\ 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).
    \135\ 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 Medtronic, Inc. v. Lohr, 518 U.S. 
470 (1996) (plurality opinion); Riegel v. Medtronic, Inc., 552 U.S. 
312 (2008). See also 21 U.S.C. 360k; 21 CFR 808.1.
---------------------------------------------------------------------------

    A few comments disputed the salience of these other preemption 
examples, with a joint comment submitted by CEI especially delving into 
the particulars of these preemption schemes. After analyzing each of 
these preemption statutes in turn, CEI concluded that those statutory 
preemption provisions in which Congress explicitly prescribed an 
agency's role all ``have one thing in common:'' A limited preemption 
scope that necessitates an agency's subsequent involvement, oftentimes 
through adjudication, to ``fine tune the scope of preemption.'' \136\ 
CEI's joint comment stressed that, in contrast, Section 32919's silence 
as to any role for NHTSA was simply ``a reflection of the preemption's 
absoluteness.'' \137\ In doing so though, CEI's comment demonstrates a 
critical difference in Section 32919 and these other statutory 
preemption provisions. In those other statutory preemption provisions 
analyzed by CEI's comment, Congress indisputably enumerated a 
preemption framework in which the agency in question played an active 
role in legally determining how statutory preemption applied to 
particular states and programs. In contrast, Section 32919 enumerates 
no such role for DOT or NHTSA, nor does it even leave room for 
subsequent implementation by the Agency. Instead, the self-executing 
terms of Section 32919 demonstrate that Congress intended the provision 
to operate without any ensuing requirements or legal determinations 
imposed by the Agency. Through its codification of new prescriptive 
requirements on EPCA preemption, the SAFE I Rule involved NHTSA taking 
the type of subsequent agency action not intended by Congress. Reading 
Section 32919 to permit NHTSA to promulgate binding regulations on EPCA 
requires an acceptance that NHTSA may authoritatively determine the 
reach of the self-executing (and legally self-sufficient) obligations 
stemming from the statute. But as CEI's comment highlights, Section 
32919 seems to clearly not want the Agency to ``fine tune'' the legal 
mechanics of EPCA's preemptive scope.\138\ But that is exactly what the 
power to issue legislative rules under Section 32919 would allow.
---------------------------------------------------------------------------

    \136\ Competitive Enterprise Institute et al., Docket No. NHTSA-
2021-0030-0411 (June 11, 2021).
    \137\ Id.
    \138\ Id.
---------------------------------------------------------------------------

    CEI's comment also argues that the examples from those other 
statutory provisions cannot inform this rulemaking because in those 
enactments Congress contemplated an adjudicatory role for the agencies 
rather than the rulemaking action undertaken in the SAFE I Rule. NHTSA 
does not believe this distinction negates the comparative value of 
those provisions. Of course, the SAFE I Rule was a generally applicable 
rule, not an adjudication or even simply an administrative enforcement 
action against any particular party. Even so, the preemption statutes 
described both in the NPRM and herein remain relevant comparisons even 
when they provide adjudicatory rather than rulemaking roles for an 
agency. In either case, the Agency is still exercising a core 
administrative decision-making function to implement the preemption 
statute in a legally binding way--adjudication just does that on a 
case-by-case basis whereas a rulemaking does

[[Page 74252]]

that all at once.\139\ In both cases, the question remains whether 
Congress intended the agency to further implement the statutory 
preemption scheme through legally enforceable agency action. The other 
statutory examples demonstrate that when Congress so intends agency 
implementation, the statutes in question facially articulate that role 
clearly and discernably in the text.
---------------------------------------------------------------------------

    \139\ See, e.g. SEC v. Chenery Corp., 332 U.S. 194 (1947) 
(discussing overlap between the adjudicatory and rulemaking 
functions of an agency).
---------------------------------------------------------------------------

    To the extent the differences in rulemaking and adjudication are 
pertinent to today's rulemaking, such differences only further support 
NHTSA's conclusions. For instance, CEI's comment stresses that these 
other statutory examples only articulate a role for agencies because 
``subsequent regulatory adjudication'' is needed to implement their 
preemption frameworks (in contrast to Section 32919, which CEI 
characterizes as ``clear'').\140\ However, even assuming CEI's premise 
is true, this only further supports the Proposal's conclusion by 
suggesting that adjudication--not rulemaking--was Congress' preferred 
method to statutorily engraft an agency into the legal process of 
formulating the scope of an express preemption provision. If so, the 
SAFE I Rule's attempt to use rulemaking to legally affect EPCA's 
preemptive scope appears even further from the scheme intended by 
Congress. Ultimately, no matter how these provisions are read, it is 
undeniable that Section 32919 stands apart from other statutory 
preemption schemes in which the agency is charged with a more active 
role in setting the scope of preemption in a legally binding way.
---------------------------------------------------------------------------

    \140\ See Competitive Enterprise Institute et al., Docket No. 
NHTSA-2021-0030-0411 (June 11, 2021).
---------------------------------------------------------------------------

    Commenters' other efforts to explain away Section 32919's silence 
are similarly unavailing. In particular, CEI's joint comment proffers 
two ``alternative explanations'' for the statute's silence. In the 
first, the comment argues that in enacting EPCA, Congress was simply 
na[iuml]ve, unable ``in 1975 to anticipate the brazenness of 21st 
century `climate ambition,' '' so presumably unaware of what CEI deems 
an eventual need for NHTSA to legally intercede on EPCA 
preemption.\141\ However, this fails to account for the fact that the 
preemption provision of EPCA has been the subject of litigation for 
decades and, thus, questions about its scope are not new, even if the 
specific aspects of this issue change over time. Despite this, Congress 
has not materially changed the statutory language governing EPCA 
preemption, with the current language in Section 32919 remaining 
substantially the same as the language originally enacted in Section 
509 of EPCA. Further, even if the recent actions by California and 
other states are somehow different than earlier preemption questions, 
it would not change what authority EPCA, as it is currently enacted, 
provides NHTSA.
---------------------------------------------------------------------------

    \141\ Competitive Enterprise Institute et al., Docket No. NHTSA-
2021-0030-0411 (June 11, 2021).
---------------------------------------------------------------------------

    Moreover, CEI's comment suggests that Congress perhaps 
intentionally eschewed a more precise description of delegated 
authority, preferring instead to tacitly provide authority through 
silence to avoid ``foster[ing] confusion and uncertainty.'' This 
position is both counterintuitive and disproved by EPCA's express text. 
First, it strains credulity to read EPCA's silence as Congress' 
concerted effort to still provide authority to the agency, but just in 
a more clear and unambiguous way than if it had done so expressly. As 
the rest of EPCA demonstrates, Congress understood how to carve out a 
legal role for an agency in a multitude of matters, including 
preemption, even when that role involved a complicated adjudicatory 
scheme. Moreover, since an agency's rulemaking actions must always fall 
within the scope of statutory authority, if Congress had any concerns 
about how that authority could be misapplied, it could have easily 
enacted language that set the parameters for any implementing agency 
regulations (as it did in Section 327 of EPCA).\142\ As such, there is 
no reason to believe that Congress would have suddenly become wary of 
precisely describing such authority when it reached Section 32919. And 
a construction that requires such a leap does not offer the most 
reasonable reading of the statute.
---------------------------------------------------------------------------

    \142\ See 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).
---------------------------------------------------------------------------

    Finally, at least one other commenter sought to diminish this 
contrast in statutory approaches by focusing not on the actual 
statutory language in question, but instead, on the legal doctrines 
underpinning administrative law. Specifically, a joint comment by the 
Urban Air Initiative argued at length that the Proposal's doubts about 
the delegation of statutory authority for the SAFE I Rule contradicted 
the Supreme Court's application of administrative law principles in 
City of Arlington v. FCC.\143\ The comment presented City of Arlington 
for the proposition that since NHTSA administers the broader CAFE 
program and Section 32919 does not expressly prohibit the Agency from 
promulgating implementing regulations on EPCA preemption, the silence 
of Section 32919 should not serve as a barrier to NHTSA's SAFE I 
rulemaking authority.\144\ As such, the comment concluded that the 
Proposal's approach would too finely parse an agency's authority on a 
provision-by-provision basis and undertake an unmanageably granular 
review of authority for federal administrative agencies.
---------------------------------------------------------------------------

    \143\ Urban Air Initiative et al., Docket No. NHTSA-2021-0030-
0423 (June 11, 2021) (discussing 569 U.S. 290 (2013)).
    \144\ Id.
---------------------------------------------------------------------------

    NHTSA views this concern as unfounded and depending upon a 
protracted reading of City of Arlington. In City of Arlington, the 
Supreme Court reviewed a declaratory ruling by the Federal 
Communications Commission, which contained the agency's interpretation 
and subsequent implementation of its own regulatory jurisdiction under 
the Telecommunications Act of 1996.\145\ The question presented in the 
case was ``[w]hether . . . a court should apply Chevron to . . . an 
agency's determination of its own jurisdiction.'' \146\ The Court 
ultimately held that Chevron deference should apply because, at their 
core, all agency constructions of a statute present jurisdictional 
issues.\147\ This is because, the majority reasoned, agencies are 
always bound by statute, which renders any departure from a statute's 
intended scope or meaning also a transcendence of the agency's 
jurisdiction.\148\
---------------------------------------------------------------------------

    \145\ See generally City of Arlington, Tex. v. F.C.C., 569 U.S. 
290 (2013).
    \146\ Id. at 295 (ellipses in original).
    \147\ Id.
    \148\ Id. at 299-300.
---------------------------------------------------------------------------

    The Urban Air Initiative's joint comment contends that, in light of 
City of Arlington, the Proposal's focus on whether Section 32919 
confers rulemaking authority is an ``empty distraction'' and 
demonstrative of an overly burdensome undertaking that too narrowly 
searches for questions of authority or agency jurisdiction.\149\ Read 
properly though, City of Arlington actually underscored the 
appropriateness of the Agency's concern about its own authority. The 
Urban Air Initiative's comment advances City of Arlington to argue that 
NHTSA need not worry about its statutory authority because no special 
class of jurisdictional questions exists. But the City of Arlington 
majority made clear that this is only because all questions about an 
agency's actions are jurisdictional. At base, City of Arlington's 
holding illustrates the exact point repeated

[[Page 74253]]

throughout this rulemaking: because agencies have no plenary 
jurisdiction, agencies' ``power to act and how they are to act is 
authoritatively prescribed by Congress, so that when they act 
improperly, no less than when they act beyond their jurisdiction, what 
they do is ultra vires.'' \150\ As a result, any time the agency 
implements a statute the question ``is always whether the agency has 
gone beyond what Congress has permitted it to do, there is no 
principled basis for carving out some arbitrary subset of such claims 
as `jurisdictional.' '' \151\ This is even apparent when the Court's 
phrase of ``empty distraction'' is read in its full context: ``The 
[jurisdictional] label is an empty distraction because every new 
application of a broad statutory term can be reframed as a questionable 
extension of the agency's jurisdiction.'' \152\ Consequently, far from 
ignoring this precedent as the comment claims, NHTSA views this 
rulemaking as conducting the precise analysis contemplated by the 
Court--ensuring that its regulatory activities conform to their 
governing statutory authorities.\153\
---------------------------------------------------------------------------

    \149\ Urban Air Initiative et al., Docket No. NHTSA-2021-0030-
0423 (June 11, 2021).
    \150\ City of Arlington, Tex., 569 U.S. at 297-98.
    \151\ Id.
    \152\ Id. at 300 (emphasis added).
    \153\ Similarly, the joint comment submitted by the Urban Air 
Initiative argues that because these issues are irrelevant, NHTSA is 
simply manufacturing issues to conceal the ``political pretext'' for 
a repeal of the SAFE I Rule. See Urban Air Initiative et al., Docket 
No. NHTSA-2021-0030-0423 (June 11, 2021). But this contradicts the 
authorities cited here, which encourage an agency to closely assess 
its statutory authority, as NHTSA is doing in this rulemaking. These 
commenters may disagree with NHTSA's ultimate conclusions in this 
rulemaking, but dismissing the concerns surrounding the SAFE I Rule 
as merely ``pretextual'' ignores the litany of legitimate issues 
articulated in this rulemaking, as well as the substantial number of 
thoughtful comments expressing additional concerns about the SAFE I 
Rule.
---------------------------------------------------------------------------

    Moreover, even the broader holding of City of Arlington supports 
NHTSA's conclusions in this rulemaking. The Court's ultimate holding in 
the case is that, because all questions are essentially jurisdictional, 
an agency should be entitled to Chevron deference when construing the 
scope of its statutory authority, even when those questions concern the 
subjects on which an agency may regulate.\154\ The Chevron doctrine is, 
of course, a multi-dimensional analysis, and thus deference to a 
reasonable interpretation only arises in the first place if the 
statutory language is ambiguous.\155\ Here, NHTSA views the lack of 
rulemaking authority as a clear and unambiguous reading of Section 
32919, for all of the reasons described herein. However, even if 
Section 32919 were considered to be ambiguous on the existence of 
authority, as several commenters contended, the City of Arlington 
framework stressed by those commenters still supports extending 
deference to NHTSA for its determination in this repeal that the Agency 
lacked authority to promulgate the SAFE I Rule. In fact, if such an 
ambiguity were deemed to exist, that is the precise type of 
determination for which City of Arlington made clear deference should 
apply: ``[t]he question here is whether a court must defer under 
Chevron to an agency's interpretation of a statutory ambiguity that 
concerns the scope of the agency's statutory authority (that is, its 
jurisdiction).'' \156\
---------------------------------------------------------------------------

    \154\ City of Arlington, Tex., 569 U.S. at 297-98.
    \155\ See generally Chevron, U.S.A., Inc., 467 U.S. 837.
    \156\ City of Arlington, Tex., 569 U.S. at 296-97.
---------------------------------------------------------------------------

    Similarly, Chevron also does not support a claim that the SAFE I 
Rule was tacitly authorized in order ``to fill any gap left'' by 
Congress in Section 32919's statutory scheme.\157\ Chevron and its 
progeny recognize that, in some instances, statutory ambiguities or 
``gaps'' in statutory frameworks indicate that Congress contemplated an 
agency acting in order to resolve such ambiguities.\158\ In these 
situations, an incomplete statutory scheme raises the possibility that 
Congress ``implicitly or explicitly'' intended the agency to step in 
and undertake rulemaking to provide the missing pieces and enable the 
statute's administration.\159\ However, as described throughout this 
reconsideration, EPCA and Section 32919 clearly demonstrate that 
Congress did not intend for NHTSA to further implement or administer 
Section 32919.
---------------------------------------------------------------------------

    \157\ See NHTSA, EPA, Withdrawal of Waiver; Final Rule, The 
Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule Part One: One 
National Program, Final Rule, 84 FR 51310, 51351 (Sept. 27, 2019) 
(quoting Chevron, 467 U.S. at 843).
    \158\ See, e.g., Chevron, 467 U.S. at 843.
    \159\ Id.
---------------------------------------------------------------------------

    This is evident because, as the Proposal recognized, both the 
Agency and courts have repeatedly understood Section 32919 as self-
executing and capable of direct application to state regulatory 
activity.\160\ 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.\161\ 
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. This view 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,'' asserting that 
``state or local requirements related to fuel economy standards are 
void ab initio''--by operation of statute not regulation.\162\ 
Likewise, in the 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.'' \163\ As such, 
the Agency again characterized any ``preempted standards [as] void ab 
initio'' due to the non-discretionary and independent application of 
Section 32919.\164\
---------------------------------------------------------------------------

    \160\ See, e.g., Green Mountain Chrysler Plymouth Dodge Jeep v. 
Crombie, 508 F. Supp. 2d 295 (D. Vt. 2007) (undertaking a detailed 
analysis of Section 32919 to determine whether state law was 
preempted under the express language of the statute).
    \161\ 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'').
    \162\ NHTSA, EPA, The Safer Affordable Fuel-Efficient (SAFE) 
Vehicles Rule Part One: One National Program, Final Rule, 84 FR 
51310, 51325 (Sept. 27, 2019).
    \163\ Id. at 51353-54.
    \164\ Id.
---------------------------------------------------------------------------

    The self-executing nature of Section 32919 formed one of the most 
widely agreed-upon propositions in the Proposal. Commenters on all 
sides of the issue expressly confirmed their own understanding of 
Section 32919 as self-executing and capable of direct enforcement and 
application against preempted programs. For instance, commenters in 
support of the Proposal expressly agreed that ``[i]n the absence of the 
Preemption Rule, any state law or regulation `relating to fuel economy 
standards' can be challenged in a proper case, allowing for full 
evaluation of both the state law and the express statutory preemption 
in Section 32919,'' \165\ that ``implementing EPCA Section 32919'' does 
not require any NHTSA regulations,\166\ and that ``[c]ourts have 
likewise treated the EPCA preemption language as self-executing as they 
have applied this language to particular circumstances to determine 
whether a

[[Page 74254]]

state or local government action is or is not preempted.'' \167\ 
Similarly, commenters that otherwise more neutrally commented on other 
aspects of the Proposal still explicitly endorsed Section 32919's self-
executing status.\168\ And commenters opposing the Proposal nonetheless 
still stressed that they ``agree that the statute is self-executing and 
that any state regulation that is `related to fuel economy' is 
preempted and void ab initio.'' \169\ For this reason, even opposition 
commenters stated that ``[c]onsequently, the SAFE I Rule's regulatory 
language is not essential to effectuate'' EPCA preemption.\170\
---------------------------------------------------------------------------

    \165\ South Coast Air Quality Management District, Docket No. 
NHTSA-2021-0030-0446 (June 11, 2021).
    \166\ Tesla, Inc. Docket No. NHTSA-2021-0030-0398 (June 11, 
2021).
    \167\ National Coalition for Advanced Transportation, Docket No. 
NHTSA-2021-0030-0310 (June 11, 2021).
    \168\ Alliance for Automotive Innovation, Docket No. NHTSA-2021-
0030-0400 (June 11, 2021) (Expressing that any offending local laws 
are ``automatically preempted under the terms of the statute. 
Federal courts can apply EPCA's preemption provision to any such law 
or regulation.'').
    \169\ American Fuel & Petrochemical Manufacturers, Docket No. 
NHTSA-2021-0030-0425 (June 11, 2021).
    \170\ National Automobile Dealers Association, Docket No. NHTSA-
2021-0030-0435 (June 10, 2021). See also Urban Air Initiative et 
al., Docket No. NHTSA-2021-0030-0423 (June 11, 2021).
---------------------------------------------------------------------------

    Although commenters widely agreed on Section 32919's self-executing 
status, a small number of comments opposing the Proposal tried to argue 
that this status did not preclude the SAFE I Rule. For instance, a 
joint comment submitted by CEI argued that Section 32919 still ``has no 
practical effect unless someone interprets and implements it.'' \171\ 
This misses the central point of the issue though. Since Section 32919 
is self-executing, a regulation is not needed to implement the 
preemption provision, and, moreover, nothing in Section 32919 provides 
any authority to issue a binding rule on the scope of preemption. In 
that respect, Section 32919 fundamentally differs from other EPCA 
statutory provisions, such as Section 32902, which sets a general CAFE 
framework that must be implemented by NHTSA periodically 
``prescrib[ing] by regulation'' the actual CAFE standards that govern 
particular model years.\172\ EPCA is replete with other examples of 
those types of statutes requiring regulatory implementation.\173\ In 
contrast, Section 32919 contains all of the elements necessary for 
implementation within the four corners of its statutory language.\174\ 
This is not just theoretical, but evident from the numerous times 
Section 32919 has directly supported a private right of action seeking 
to enforce its preemption provisions in Federal court.\175\
---------------------------------------------------------------------------

    \171\ Competitive Enterprise Institute et al., Docket No. NHTSA-
2021-0030-0411 (June 11, 2021).
    \172\ See 49 U.S.C. 32902(a).
    \173\ See supra nn.125-131.
    \174\ A joint comment submitted by the Urban Air Initiative 
cites this point as evidence that the SAFE I Rule was a permissible 
interpretation because Section 32919 does not leave room for a 
regulation to create newly enforceable requirements. See supra 
nn.84-85. This aspect of the comment is fully addressed in an 
earlier portion of the final rule that explains how this argument 
ignores the plain language of the regulations codified in the SAFE I 
Rule.
    \175\ See Cent. Valley Chrysler-Jeep, Inc., 529 F. Supp. 2d at 
1175; Green Mountain Chrysler Plymouth Dodge Jeep, 508 F. Supp. at 
295; Ophir v. City of Boston, 647 F. Supp. 2d 86, 91-92 (D. Mass. 
2009).
---------------------------------------------------------------------------

    To the extent that CEI means that Section 32919 has no practical 
effect unless it is enforced, as explained further in the next section, 
by promulgating regulations of general applicability, the SAFE I Rule 
was an act of rulemaking not enforcement. As such, whether Section 
32919 needs to be enforced in a particular case has no bearing on 
whether NHTSA enjoys rulemaking authority to codify a regulation of 
general applicability.
    Ultimately, the self-executing nature of Section 32919 demonstrates 
that Congress did not establish a rulemaking role for NHTSA in EPCA 
preemption. Instead, Congress enacted a statutory provision that 
operates fully on its own, without any discernable responsibility for 
the Agency in further implementing the scope of Section 32919 through 
regulations.
b. The Requisite Rulemaking Authority Cannot Be Generally Inferred From 
EPCA
    Both the SAFE I Rule and commenters to the Proposal defending that 
Rule also argued that the spirit of EPCA hints at the need for such 
rulemaking authority. NHTSA continues to find this argument unavailing 
and, as such, is finalizing the Proposal's view that generalized 
inferences drawn from EPCA cannot sustain the provisions codified in 
the SAFE I Rule. Moreover, NHTSA views many of the themes and 
inferences that commenters invoked for this proposition inapposite, as 
they mischaracterize the nature of the SAFE I Rule. As such, nothing 
from these purported inferences changes NHTSA's conclusion that the 
SAFE I Rule was an ultra vires rule that must be repealed.
    The SAFE I Rule sought to justify the rulemaking on predominantly 
policy grounds, characterizing the express preemption measure as 
necessary to fulfill other CAFE responsibilities delegated to the 
Agency. In particular, the SAFE I Rule argued that the 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.\176\ The 
SAFE I Rule thus rationalized the regulations by emphasizing that 
``Congress's intent to provide for uniform national fuel economy 
standards is frustrated when State and local actors regulate in this 
area.'' \177\
---------------------------------------------------------------------------

    \176\ NHTSA, EPA, The Safer Affordable Fuel-Efficient (SAFE) 
Vehicles Rule Part One: One National Program, Final Rule, 84 FR 
51310, 51319 (Sept. 27, 2019).
    \177\ Id. at 51313.
---------------------------------------------------------------------------

    In particular, the SAFE I Rule suggested that the rulemaking was 
essential to guard against states or local jurisdictions undermining 
the CAFE program. For instance, the Agency repeatedly expressed that 
the regulations targeted ``State requirements that impermissibly 
interfere with [the Agency's] statutory role to set nationally 
applicable standards,'' \178\ that implementing the provisions was 
necessary to foreclose state and local requirements that ``conflict 
with NHTSA's ability to set nationally applicable standards,'' \179\ 
and that the action was necessary because ``Congress's intent to 
provide for uniform national fuel economy standards is frustrated when 
State and local actors regulate in this area.'' \180\
---------------------------------------------------------------------------

    \178\ Id. at 51317 (emphasis added).
    \179\ Id. at 51319 (emphasis added).
    \180\ Id. at 51313 (emphasis added).
---------------------------------------------------------------------------

    A large number of the comments supporting the SAFE I Rule expressed 
this same idea. This theme is illustrated, for example, by a joint 
comment from CEI, which stresses that without the SAFE I Rule, 
California (through CARB) would be positioned to ``balkanize auto 
markets unless it gets its way'' in dictating motor vehicle emissions 
and fuel economy standards.\181\ Like the SAFE I Rule, such commenters 
focused on the need for the provision ``to avoid potential conflicts 
with EPCA's national fuel economy standards,'' \182\ and provided 
extensive analysis purporting to show how particular programs are 
poised to ``undermine CAFE's flexible fleet-average standards'' unless 
the SAFE I Rule's prohibitions remain in place.\183\ Some commenters 
opposing a repeal even carried this theme to the point of describing 
the SAFE I Rule as

[[Page 74255]]

akin to an enforcement action, necessary for NHTSA to police EPCA's 
congressional purpose in the face of ``lawless'' states and local 
jurisdictions.184 185
---------------------------------------------------------------------------

    \181\ Competitive Enterprise Institute et al., Docket No. NHTSA-
2021-0030-0411 (June 11, 2021).
    \182\ National Automobile Dealers Association, Docket No. NHTSA-
2021-0030-0435 (June 10, 2021).
    \183\ Urban Air Initiative et al., Docket No. NHTSA-2021-0030-
0423 (June 11, 2021) (labeling an entire section of the comment 
``State electric automobile quotas restrict manufacturer compliance 
choices and undermine CAFE's flexible fleet-average standards.'').
    \184\ See Urban Air Initiative et al., Docket No. NHTSA-2021-
0030-0423 (June 11, 2021). See also American Fuel & Petrochemical 
Manufacturers, Docket No. NHTSA-2021-0030-0425 (June 11, 2021); 
Competitive Enterprise Institute et al., Docket No. NHTSA-2021-0030-
0411 (June 11, 2021).
    \185\ The SAFE I Rule was not an enforcement action, and NHTSA's 
portion of the Rule was not (unlike EPA's portion) even an 
adjudication. Instead, as described throughout this final rule, the 
SAFE I Rule codified rules of general applicability, which 
instituted preemption requirements for all states so long as the 
rule remained in effect. As such, even if those commenters' 
arguments explain the background for why NHTSA tried to undertake 
the SAFE I Rule, they cannot justify how NHTSA acted through a 
legislative rulemaking of general applicability. For that, it is 
necessary to instead focus on the issues of rulemaking authority 
that form so much of this final rule.
---------------------------------------------------------------------------

    The idea that the SAFE I Rule is necessary to prevent states and 
local jurisdictions from frustrating EPCA or NHTSA's national CAFE 
program is inconsistent with a properly applied preemption framework. 
In the absence of the SAFE I Rule, two fundamental preemption 
mechanisms still exist to guard against state or local programs that 
sufficiently conflict with CAFE to render EPCA's purposes a 
nullity.\186\ First, as described throughout this final rule, a repeal 
of the SAFE I Rule does not affect the statutory express preemption 
provision in Section 32919. This self-executing statutory provision is 
fully capable of enforcement against offending state and local programs 
in the absence of any regulations purporting to further implement its 
scope. In fact, before the SAFE I Rule, this provision had provided 
this function for years without implementing regulations. Here, Section 
32919's plain language illustrates how Congress' preemptive scheme is 
immediately executable upon NHTSA promulgating the substantive law 
(national fuel economy standards) rather than any express preemption 
provisions. 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.\187\ 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.
---------------------------------------------------------------------------

    \186\ Through this, NHTSA stresses that it takes no position in 
this rulemaking on whether EPCA preemption either expressly or 
impliedly preempts the particular state and local programs 
identified by such commenters. The point here is that these 
mechanisms persist to weigh such commenters' concerns, not that 
their substantive concerns are substantiated.
    \187\ See 49 U.S.C. 32919(a)-(b).
---------------------------------------------------------------------------

    As such, it is not necessary for NHTSA to codify new express 
preemption provisions in order to ``carry out'' EPCA. All NHTSA needs 
to do is fulfill the substantive task enumerated in Section 32919: 
Ensuring ``an average fuel economy standard prescribed under this 
chapter is in effect.'' \188\ Once such a standard is in place, Section 
32919's self-executing standard is fully capable of safeguarding 
Congress' purpose in EPCA. Moreover, as explained in Section II.B.iii. 
of this final rule, the familiar ``related to'' standard in Section 
32919 may even be clearer to apply and understand without the 
convoluted layer of the SAFE I Rule. Accordingly, even assuming the 
concerns raised by such commenters are accurate, they are fully 
redressable by the statutory express preemption language in Section 
32919, which remains untouched by this rulemaking.
---------------------------------------------------------------------------

    \188\ See 49 U.S.C. 32919(a).
---------------------------------------------------------------------------

    More fundamentally though, even after today's repeal of the SAFE I 
Rule, judicial concepts of implied preemption will remain available to 
perform their traditional function of guarding against state law that 
sufficiently interferes with the supremacy of federal law. In fact, the 
concepts used by the SAFE I Rule (and commenters defending it) to 
justify rulemaking authority were actually more appropriately applied 
to an implied preemption analysis instead.\189\ The terminology 
repeatedly employed throughout the SAFE I Rule--``frustrates,'' \190\ 
``conflicts,'' \191\ and ``interferes'' \192\--mirrors the standards 
often arising in implied preemption. Implied preemption is a judicial 
doctrine principally applied by courts when adjudicating challenges to 
particular state programs.\193\ The judicial standards for implied 
preemption remain available to presiding courts irrespective of the 
presence of the SAFE I Rule. Therefore, if state and local 
jurisdictions endanger EPCA to the degree claimed by those commenters, 
there is no reason to believe that Article III courts could not 
evaluate those claims through the lens of implied preemption, as has 
been the case throughout the long history of both EPCA and all other 
federal law.\194\
---------------------------------------------------------------------------

    \189\ For instance, the Supreme Court has expressly clarified 
that when its precedent preempts state laws ``when they conflict 
with or interfere with federal authority over the same activity,'' 
such an opinion ``is best read as a conflict pre-emption case.'' See 
Oneok, Inc. v. Learjet, Inc., 575 U.S. 373, 389 (2015) (discussing 
Mississippi Power & Light Co. v. Mississippi ex rel. Moore, 487 U.S. 
354, 373 (1988)).
    \190\ 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).
    \191\ See, e.g., Wyeth v. Levine, 555 U.S. 555, 576 (2009) 
(``This Court has recognized that an agency regulation with the 
force of law can pre-empt conflicting state requirements'') 
(emphasis added).
    \192\ 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).
    \193\ See, e.g., Freightliner Corp. v. Myrick, 514 U.S. 280, 287 
(1995) (explaining that implied conflict preemption may exist in 
particular situations ``where it is impossible for a private party 
to comply with both state and federal requirements or where state 
law stands as an obstacle to the accomplishment and execution of the 
full purposes and objectives of Congress.'') (internal quotations 
omitted). See also, e.g., CSX Transp., Inc. v. Easterwood, 507 U.S. 
658, 663 (1993) (``Where a state statute conflicts with, or 
frustrates, federal law, the former must give way.'').
    \194\ Commenters opposing a repeal even appeared to recognize as 
much, as several argued that state and local programs prohibited by 
the SAFE I Rule were also impliedly preempted. See, e.g., American 
Fuel & Petrochemical Manufacturers, Docket No. NHTSA-2021-0030-0425 
(June 11, 2021) (arguing that such programs ``are impliedly 
preempted because they `stand[ ] as an obstacle to the 
accomplishment and execution of the full purposes and objectives of 
Congress''' in EPCA) (internal citations omitted).
---------------------------------------------------------------------------

    Moreover, as a judicial doctrine intended for application in a 
particular case, principles of implied preemption do not support NHTSA 
claiming authority to conduct a rulemaking of general 
applicability.\195\ Instead, this rulemaking act of promulgating new 
prescriptive preemption requirements, which are expressly codified in 
law, involves a separate act of rulemaking authority to impose express 
preemption through regulations. NHTSA's rulemaking authority to do so 
is governed by the principles already discussed above in Section 
II.B.i--not the judicial concepts that govern whether a Federal court 
should deem a state program impliedly preempted by the supremacy of 
existing federal law. Therefore, the concepts of implied preemption 
invoked by NHTSA to justify the SAFE I Rule were misapplied. They exist 
to enable a court to determine whether a state program conflicts with 
existing federal law, not

[[Page 74256]]

to empower NHTSA to make more federal law, as the Agency claimed in the 
SAFE I Rule. Accordingly, since NHTSA has already applied the proper 
rulemaking authority framework in Section II.B.i. above and determined 
that such authority was lacking for the SAFE I Rule, judicial concepts 
of implied preemption cannot cure this deficit of authority. Moreover, 
they do not need to, because an implied preemption review remains 
available irrespective of the fate of the SAFE I Rule.
---------------------------------------------------------------------------

    \195\ Judicial applications of implied and express preemption 
illustrate how they are separate concepts, which are applied 
regimentally by courts rather than as a monolithic preemption 
analysis. See, e.g., Geier v. Am. Honda Motor Co., 529 U.S. 861, 869 
(2000).
---------------------------------------------------------------------------

ii. NHTSA Continues To Consider a Repeal of the SAFE I Rule Appropriate 
Even if the Agency Had Discretion To Conduct the Original Rulemaking
    In addition, even if the Agency either had sufficient authority to 
issue the SAFE I Rule as a legislative rule or, alternatively, if the 
prior Rule was simply an interpretation, the Agency nevertheless 
continues to consider a repeal justified by other considerations as 
well. Specifically, the SAFE I Rule purported to preempt an entire 
segment of emissions regulations from state and local jurisdictions 
without fully considering a number of variables pertinent to the 
preemption determination. By ignoring these factors, the Rule was still 
legally flawed because it ignored legally relevant considerations that 
should have informed both the nature and scope of the Agency's 
preemption determination. Likewise, in overlooking such important 
considerations, the SAFE I Rule also improvidently imposed preemption 
in absolute terms when a more narrowly tailored approach was available 
instead.
a. The Categorical Scope of Preemption in the SAFE I Rule 
Inappropriately Ignored Important Interests of States and Local 
Jurisdictions
    In the Proposal, the Agency expressed a concern that the 
categorical preemption views announced in the SAFE I Rule were 
insufficiently tailored to account for state federalism interests 
because they labeled 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 alarm especially arose from the SAFE I Rule's declaration of 
preemption through terms that were incontrovertible or absolute in a 
way that would not account for the nuanced and careful consideration of 
program-specific facts called for in preemption analyses. The comments 
to this Proposal substantiated these concerns. In particular, the 
majority of states and local jurisdictions who commented on the 
Proposal provided tangible examples of the types of nuances and 
federalism hardships that the SAFE I Rule failed to consider.
    NHTSA continues to consider the federalism concerns in this arena 
as constituting substantial interests of states and local 
jurisdictions, who oftentimes seek to address pivotal matters of public 
health and welfare through the programs impinged by the SAFE I Rule. In 
this respect, the Agency remains 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.\196\ Likewise, Executive Order 13132 
underscores 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.'' 
\197\ Nevertheless, by imposing a categorical and rigid approach to 
preemption, the SAFE I Rule prematurely discarded such federalism 
considerations despite the potential for more narrowly tailored 
approaches instead. As such, the SAFE I Rule both impermissibly ignored 
legally relevant variables of state programs and imprudently adopted a 
broader approach than necessary in instituting immutable preemption 
requirements.
---------------------------------------------------------------------------

    \196\ See Solid Waste Agency of N. Cook Cty. v. U.S. Army Corps 
of Engineers, 531 U.S. 159, 173 (2001).
    \197\ Executive Order 13132, Federalism, Sec. 1(a) (Aug. 4, 
1999).
---------------------------------------------------------------------------

    For instance, in the Proposal, the Agency expressed a concern that 
in a number of cases, the policies preempted by the SAFE I Rule also 
served as components of the states' compliance with air pollution 
mitigation requirements delegated to states under the Federal Clean Air 
Act.\198\ This issue formed one of the more common refrains in comments 
from states and local jurisdictions subject to the SAFE I Rule's 
preemption determination, who stressed that the prior rulemaking failed 
to consider--or even acknowledge--their reliance interests in motor 
vehicle emissions regulations as a critical component in achieving 
National Ambient Air Quality Standards (NAAQS). NAAQS levels are set by 
the EPA for six separate ubiquitous air pollutants, and states are 
required to achieve and maintain them under federal law. A survey of 
the comments indicates that feedback on the ways in which the SAFE I 
Rule could undermine compliance with the NAAQS was overwhelming. For 
example, a comment by the National Association of Clean Air Agencies, a 
group of 115 local air agencies spanning 41 states, the District of 
Columbia, and four territories, stressed that programs prohibited by 
the SAFE I Rule ``enable long-term planning and yield critical emission 
reductions that will contribute significantly to states' abilities to 
meet their statutory obligations to attain and maintain the health-
based [NAAQS] for criteria pollutants.'' \199\ Separate comments 
submitted by the Ozone Transport Commission Mobile Sources Committee, a 
body comprised of 12 states and the District of Columbia, as well as 
the Nevada Division of Environmental Protection, and the District of 
Columbia Department of Energy and Environment, reiterated this point as 
well.\200\ Maine's Department of Environmental Protection likewise 
commented to reiterate that these particular reliance interests are not 
new but rather have existed since the inception of such state programs, 
noting that ``the [California low emission vehicle] program was 
initially created to help attain and maintain the health-based [NAAQS] 
for criteria pollutants.'' \201\
---------------------------------------------------------------------------

    \198\ CAFE Preemption NPRM, 86 FR at 25989.
    \199\ National Association of Clean Air Agencies (NACAA), Docket 
No. NHTSA-2021-0030-0140 (June 10, 2021).
    \200\ Ozone Transport Commission, Docket No. NHTSA-2021-0030-
0139 (June 10, 2021); Nevada Division of Environmental Protection, 
Docket No. NHTSA-2021-0030-0362 (June 11, 2021); District of 
Columbia Department of Energy and Environment, Docket No. NHTSA-
2021-0030-0412 (June 11, 2021).
    \201\ Maine Department of Environmental Protection, Docket No. 
NHTSA-2021-0030-0249 (June 10, 2021).
---------------------------------------------------------------------------

    Commenters made clear that these reliance interests were tied to 
programs in place at the time of the SAFE I Rule's promulgation. For 
instance, California's South Coast Air Quality Management District 
described how the SAFE I Rule invalidated ``state pollution control 
standards which have been previously approved into State Implementation 
Plans (SIPs).'' \202\ The State of California's comment described this 
reliance in depth, noting that California's preempted regulatory 
programs arose from what the State described as its longstanding

[[Page 74257]]

understanding of EPCA prior to the SAFE I Rule, which resulted in 
``weighty state interests, developed over the course of decades of 
implementing these state laws.'' \203\ This prolonged reliance on the 
regulatory framework in place well before the SAFE I Rule led 
California to invest substantial resources in the development of 
affected state programs, as well as ``base long-term state planning'' 
on the continuation of these programs into the future.\204\
---------------------------------------------------------------------------

    \202\ South Coast Air Quality Management District, Docket No. 
NHTSA-2021-0030-0446 (June 11, 2021).
    \203\ State of California et al., Docket No. NHTSA-2021-0030-
0403, (June 11, 2021) (this comment also expressed that the SAFE I 
Rule ``declared preempted long-standing laws that protect public 
health and welfare and exercise core state police powers carefully 
preserved by Congress in the Clean Air Act.'') (citing Cal. Code 
Regs. tit. 13, Sec.  1960.1(g)(2) (1991)).
    \204\ State of California et al., Docket No. NHTSA-2021-0030-
0403 (June 11, 2021).
---------------------------------------------------------------------------

    In addition, states and local jurisdictions similarly feared that 
by losing the state regulatory programs on which they had relied, the 
jurisdictions faced substantial detrimental consequences if they failed 
to meet required NAAQS levels. For example, a comment from a collective 
of municipal entities stressed that ``vehicle emissions impact air 
quality and a community's ability to meet required ozone levels. 
Falling outside of required ozone levels can have negative impacts on 
cities, potentially disqualifying them from federal funding 
opportunities for highway and transit infrastructure.'' \205\ The 
Connecticut Department of Transportation commented similarly, noting 
that undermining state programs in this area was particularly harmful 
to state interests, as satisfying NAAQS requirements was already a 
difficult endeavor, which only became harder after the SAFE I 
Rule.\206\ The Agency also received comments about this issue from the 
electricity industry, which expressed unease that by undermining 
established frameworks for NAAQS compliance, the SAFE I Rule could 
disrupt regulatory schemes in other industries as well.\207\
---------------------------------------------------------------------------

    \205\ National League of Cities et al., Docket No. NHTSA-2021-
0030-0421 (June 11, 2021).
    \206\ See Connecticut Department of Transportation, Docket No. 
NHTSA-2021-0030-0330 (June 11, 2021).
    \207\ See Edison Electric Institute, Docket No. NHTSA-2021-0030-
0396 (June 11, 2021) (expressing a concern that ``NHTSA's broad 
preemption codification in SAFE I would compel states to shift the 
emissions reductions they need for NAAQS attainment from automobiles 
to stationary sources, including electric power generators.'').
---------------------------------------------------------------------------

    In the SAFE I Rule, NHTSA expressly ``reject[ed] the notion that 
California has valid reliance interests'' in preexisting state 
regulations and programs, largely because the Rule labeled those 
programs broadly preempted under the framework announced in the 
rulemaking.\208\ Upon reconsideration, the Agency views its original 
logic in this respect as circular, amounting to a conclusion that NHTSA 
need not consider whether the breadth of its new regulations adequately 
considered particular issues, such as federalism or reliance interests, 
because those interests were already preempted according to the scope 
articulated by the SAFE I Rule. However, as the comments to the current 
proposal demonstrate, numerous states and local jurisdictions continue 
to harbor deep concerns about the SAFE I Rule's sweeping prohibition of 
programs on which they relied to accomplish important state regulatory 
priorities--required by federal law that was not altered in the SAFE I 
Rule--and promote the health and welfare of their citizens. 
Accordingly, NHTSA concludes that the SAFE I Rule inappropriately 
instituted an absolute preemption scheme that foreclosed any 
consideration for whether a more narrowly tailored approach was 
available instead.
---------------------------------------------------------------------------

    \208\ CAFE Preemption NPRM, 86 FR at 51327.
---------------------------------------------------------------------------

    A few commenters that objected to the Proposal touched upon 
federalism issues, which the Agency do not believe persuasively argue 
for continuing the approach in the SAFE I Rule. First, the American 
Fuel & Petrochemical Manufacturers (AFPM) stated that ``it [was] 
impractical to provide informed comment'' on the extent of federalism 
at stake in the Proposal because the Proposal spoke about preemption 
broadly rather than by reference to the status of specific state or 
local programs.\209\ At base, this comment implies that NHTSA may not 
conduct an informed reconsideration of the SAFE I Rule without 
simultaneously announcing new substantive positions on how EPCA 
preemption applies to particular programs. However, the Agency already 
outlined the reasons such a view was unavailing in Section II.A. of 
this notice. Moreover, this comment illustrates the advantages of a 
more nuanced approach to the preemption issue than what had been taken 
in the SAFE I rulemaking, as the issue may vary based on the particular 
program at issue. In that respect, this comment underscores the exact 
point that NHTSA has raised throughout this rulemaking: The idea that a 
categorical and preemptive prohibition of state programs is not an 
opportune way to deal with EPCA preemption because the precise 
variables that inform the analysis likely differ for each case and 
potentially factor into the accuracy of the individual preemption 
analyses. AFPM's comment assumes such unknown variables and 
``vagaries'' support retaining the SAFE I Rule, because absent specific 
context about a particular program it is impossible to conduct the full 
preemption analysis. But it was the SAFE I Rule that originally imposed 
preemption at a categorical level, without regard for the context-
specific inquiries needed to conduct the full preemption analysis. As 
such, AFPM's emphasis on the need to understand the specifics of the 
programs affected by a preemption discussion only illustrates one of 
the critical deficiencies of the SAFE I Rule's preemption analysis, 
which this repeal rectifies.
---------------------------------------------------------------------------

    \209\ American Fuel & Petrochemical Manufacturers, Docket No. 
NHTSA-2021-0030-0425 (June 11, 2021).
---------------------------------------------------------------------------

    AFPM's comment also concludes that states have a diminished 
federalism interests in this area because ``Congress has clear 
authority to regulate mobile sources that move in interstate commerce'' 
and ``EPCA expressly and clearly establishes that federal law preempts 
state laws `related to' fuel economy.'' \210\ However, this argument 
simply begs the substantive question of which programs Congress 
intended to preempt under EPCA. As explained throughout this final 
rule, the Agency believes that the categorical approach taken in the 
SAFE I Rule is flawed on this question, as it ignores the potentially 
varying characteristics of existing or even still-undefined future 
programs and the degree to which those diverse attributes may bear upon 
the EPCA preemption inquiry.
---------------------------------------------------------------------------

    \210\ Id.
---------------------------------------------------------------------------

    Similarly, comments such as AFPM's seek to minimize the SAFE I 
Rule's effect on federalism interests by stressing that the ``SAFE I 
Rule has no impact on states' abilities to adopt emissions regulations 
that are not related to fuel economy, or to establish vehicle 
registration fees, taxes and other'' such policies.\211\ Even if true, 
this argument still presumes that the SAFE I Rule established a clear 
delineation between programs prohibited under its regulations and those 
that survived. However, as described further in Section II.B.iii. of 
this final rule, the SAFE I Rule did not so clearly define the contours 
of preemption. Instead, it only introduced new undefined standards into 
the preemption discourse. Beyond this, it is insufficient to say that a 
rulemaking that categorically forecloses some important federalism 
interests is acceptable because at least it did not eliminate all 
federalism interests. As evidenced by

[[Page 74258]]

the comments (many of which are set forth above), commenting states and 
local jurisdictions almost uniformly emphasized the importance of the 
regulatory agendas they believe were foreclosed by the SAFE I Rule's 
preemptive scope, including regulatory programs that helped 
jurisdictions attain the federal Clean Air Act's NAAQS. These are 
substantial and legitimate interests that should not be overbroadly 
discarded, particularly through categorical prohibitions that 
unnecessarily foreclose opportunities to more carefully account for 
those federalism interests in particularized contexts.
---------------------------------------------------------------------------

    \211\ Id.
---------------------------------------------------------------------------

    These federalism interests are especially illustrated by the degree 
to which many of the state and local programs in question seek to 
address critical matters of health and welfare within local 
communities. The Proposal outlined a concern that a categorical 
preemption scope inappropriately foreclosed potential opportunities to 
address localized health and safety hazards facing states and 
communities by preventing local governments from identifying solutions 
needed for their individual citizens. This concern arose from the 
Proposal's recognition that 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. The comments to this Proposal continued to reiterate 
a prevailing concern that the SAFE I Rule inappropriately and 
unnecessarily deprived states and local jurisdictions of an important 
regulatory tool to address hazards facing their local communities.
    Commenters opposing a repeal contested this point, arguing instead 
that ``the self-described purposes'' of any individual state program 
are irrelevant to the EPCA preemption analysis, which is solely 
concerned with the relationship between the state regulation in 
question and fuel consumption.\212\ However, the position of these 
commenters does not properly account for the full scope of the SAFE I 
Rule. These commenters direct their views to the individualized 
application of EPCA preemption to particular state or local programs, 
arguing that no single purpose of an individual program can override 
whether EPCA preempts that program. But the SAFE I Rule was a rule of 
general applicability, not an adjudication of an individual program. As 
such, the SAFE I Rule did not limit its analysis to the preemption of a 
particular state program or narrow band of state regulation. Instead, 
the SAFE I Rule grouped an entire segment of possible state regulation, 
motor vehicle greenhouse gas emissions, and codified a regulation of 
general applicability that preempted all possible initiatives currently 
regulating in this segment or which may be devised in the future. This 
is a much broader act and one not required by Section 32919, which does 
not command NHTSA to issue any regulations, much less anticipatory 
regulations that prospectively foreclose entire regulatory topics. When 
evaluating whether such an unnecessarily broad scope was an appropriate 
approach, it is both relevant and prudent to consider in the aggregate 
what possible other purposes those preempted measures may have pursued. 
And when this inquiry indicates, as it has here, that preemptively 
prohibited programs are likely aimed at protecting the health and 
welfare of state populations, the Agency is right to ask whether a more 
narrowly tailored approach could have left more room for those 
objectives or at least deferred the total foreclosure of them until 
those programs were ripe for consideration.
---------------------------------------------------------------------------

    \212\ National Automobile Dealers Association, Docket No. NHTSA-
2021-0030-0435 (June 10, 2021).
---------------------------------------------------------------------------

    In contrast, the SAFE I Rule prohibited all state policies in a 
vacuum, without any knowledge of even the most fundamental questions 
about those policies, such as whose regulations are at issue, what 
motor vehicle technologies are being regulated, which compliance paths 
may be available, or what technological or policy breakthroughs may 
occur in the future to alter the preemption analysis. Comments to the 
Proposal indicate that, when a more thorough and nuanced consideration 
of preemption is permitted, programs enveloped by the sweeping scope of 
the SAFE I Rule potentially relate to important goals of protecting 
health and welfare of local populations.
    For instance, the State of California commented, noting that 
affected state programs were originally devised as a means of 
mitigating unique environmental challenges facing the state: 
``California's greenhouse gas standards were first adopted 16 years ago 
in response to the prospect of disruptions in the states' water supply, 
increases in `catastrophic wildfires,' damage to the State's extensive 
coastline and ocean ecosystems, aggravation of existing and severe air 
quality problems and related adverse health impacts, and more.'' \213\ 
Even commenters opposing the Proposal acknowledged that the state 
programs at issue initially arose from an effort to enable states to 
address unique environmental challenges facing their communities.\214\ 
Other commenters likewise raised concerns about localized health 
hazards from motor vehicle emissions, with a comment on behalf of a 
collective of medical associations stressing that local conditions from 
such emissions can ``form unhealthy ozone and particle pollution, which 
can lead to premature death, hospitalizations, missed days of work and 
school, asthma attacks and a host of other health problems.'' \215\ 
Commenters also raised environmental justice concerns, describing these 
pollution hazards as not borne uniformly across the country, but 
instead particularly manifested in minority and low-income communities. 
For instance, the Bay Area Air Quality Management District commented to 
stress that the policy flexibility foreclosed by the SAFE I Rule was 
``critical to protecting communities that suffer more from localized 
air pollution than others'' and especially essential ``to address 
disparate air pollution impacts that can harm local communities, 
particularly low income and communities of color in the San Francisco 
Bay Area.'' \216\ Likewise, in summarizing health risks from enhanced 
motor vehicle emissions, the medical associations' comment identified 
these problems as ``disproportionately impact[ing] communities located 
near highways, ports, warehouses and other places where traffic is 
concentrated--which are

[[Page 74259]]

more likely to be low-income or communities of color.'' \217\
---------------------------------------------------------------------------

    \213\ State of California et al., Docket No. NHTSA-2021-0030-
0403 (June 11, 2021) (citing 2002 Cal. Stat. c. 200 (A.B. 1493) 
(Digest)).
    \214\ See Urban Air Initiative et al., Docket No. NHTSA-2021-
0030-0423 (June 11, 2021) (describing the Section 209 waiver process 
under the Clean Air Act by explaining that ``Congress justified this 
waiver exception based on California's `unique' smog (ground-level 
ozone) problems, caused by California-specific conditions such as 
the `numerous thermal inversions that occur within that state 
because of its geography and prevailing wind patterns.'' ') (quoting 
California State Motor Vehicle Pollution Control Standards: Waiver 
of Federal Preemption Notice of Decision, 49 FR 18887, 18890 (May 3, 
1984) (which itself cited 113 Cong. Reg. 30,948, (Nov. 2, 1967))).
    \215\ Allergy & Asthma Network et al., Docket No. NHTSA-2021-
0030-0299 (June 4, 2021). See also Sierra Club Connecticut Chapter, 
Docket No. NHTSA-2021-0030-0378 (June 11, 2021) (expressing concern 
about localized ozone pollution in Connecticut and associated asthma 
risks), Sierra Club Toiyabe Chapter, Docket No. NHTSA-2021-0030-0161 
(June 10, 2021).
    \216\ Bay Area Air Quality Management District, Docket No. 
NHTSA-2021-0030-0371 (June 11, 2021).
    \217\ Allergy & Asthma Network et al., Docket No. NHTSA-2021-
0030-0299 (June 4, 2021).
---------------------------------------------------------------------------

    Despite such a diverse array of challenges, commenting states and 
local jurisdictions consistently agreed that the inflexibility of the 
SAFE I Rule's broad preemption determination foreclosed opportunities 
for them to develop innovative policy solutions to the unique issues 
they faced that were still consistent with Federal law. This need to 
allow for more innovative policy flexibility than permitted by the 
expansive terms in the SAFE I Rule but still potentially allowed under 
the more general terms of EPCA was echoed expressly by multiple 
commenters, such as the Connecticut Department of Transportation,\218\ 
a collection of municipal entities,\219\ and the National Coalition for 
Advanced Transportation, who feared that the SAFE I Rule 
``inappropriately and unnecessarily dampen[ed] policy innovation at the 
state and local levels and investments across the country.'' \220\ 
Several industry groups likewise commented to caution against 
unnecessarily restricting policy innovation at the present stage, in 
particular, as both the automotive and energy industries are in the 
midst of widespread transformations with the advent of new 
electrification technologies and approaches.\221\ Precluding states 
from pursuing innovative opportunities to address such important 
matters of health and welfare demonstrates the degree to which the SAFE 
I Rule broadly undermined the federalism interests of such 
jurisdictions without regard for whether a more narrowly tailored 
consideration of EPCA preemption was available instead.
---------------------------------------------------------------------------

    \218\ Connecticut Department of Transportation, Docket No. 
NHTSA-2021-0030-0330 (June 11, 2021) (pointing to several past 
policy initiatives to demonstrate that ``[o]ur agencies are working 
together to find innovative state air quality and transportation 
solutions to improve air quality and take action on climate 
change'').
    \219\ National League of Cities et al., Docket No. NHTSA-2021-
0030-0421 (June 11, 2021) (``The Notice of Proposed Rulemaking 
(NPRM) expresses concern that in labeling `an entire segment of 
state and local regulation as preempted,' the SAFE I Rule 
`unnecessarily and inappropriately restricts potential policy 
innovation at the State and local level.' We agree.'').
    \220\ Zero Emission Transportation Association, Docket No. 
NHTSA-2021-0030-0397 (June 11, 2021) (``Repealing these regulations 
is a critical step toward ensuring federal and state GHG vehicle 
emissions standards can support the rapid transition to electric 
vehicle production that will spur American manufacturing, 
innovation, and competitiveness in the global market . . .''); 
National Coalition for Advanced Transportation, Docket No. NHTSA-
2021-0030-0310 (June 11, 2021) (``comes at a critical time when 
States and local governments are working to reduce harmful GHG and 
other emissions and many different stakeholders, including NCAT 
members, are investing in the development and deployment of electric 
vehicles and related infrastructure across the country''); Edison 
Electric Institute, Docket No. NHTSA-2021-0030-0396 (June 11, 2021) 
(``EEI's member companies are in the middle of a profound, long-term 
transformation in how electricity is generated, transmitted, and 
used'').
    \221\ Zero Emission Transportation Association, Docket No. 
NHTSA-2021-0030-0397 (June 11, 2021); National Coalition for 
Advanced Transportation, Docket No. NHTSA-2021-0030-0310 (June 11, 
2021).
---------------------------------------------------------------------------

    Finally, commenters that opposed the Proposal (and thus were 
supportive of the SAFE I Rule) argued that this latest rulemaking was a 
change in position by the Agency, in an effort to single it out as a 
departure from precedent. These commenters that opposed the Proposal, 
such as NADA and CEI, sought to minimize any significance of the SAFE I 
Rule's unprecedented exertion of preemption authority, with CEI's joint 
comment noting in particular that ``unprecedented violations call for 
unprecedented corrections.'' \222\ These comments suggest that actions 
like the SAFE I Rule had never been necessary in the past because, they 
argue, no state or local jurisdiction had ever sought to contravene 
EPCA to the extent of California's Advanced Clean Car program.\223\ But 
although the preambles to the SAFE I rulemaking discussed California's 
Advanced Clear Car Program at length, NHTSA's portion of the notice, 
(unlike EPA's portion) still was not an individualized adjudication of 
California's Advanced Clean Car Program. Instead, it was a rulemaking 
action to establish regulations that set a generally applicable 
definition of ``related to'' as it appears in Section 32919. The SAFE I 
Rule characterized this definition as binding not just on California's 
existing programs, but on any state and local efforts that fell within 
the text included in the appendices now or in the future. Moreover, 
unlike any other ``non-regulatory preamble language'' \224\ NHTSA may 
have issued in the past, the SAFE I Rule codified the new preemption 
standards into regulatory text. In this respect, the SAFE I Rule far 
surpassed any of NHTSA's prior positions on EPCA preemption and 
introduced new codified requirements implementing statutory language 
that had been enacted nearly 50 years earlier.\225\ The express 
preemption statute that the SAFE I Rule sought to define for the first 
time has existed for the entirety of the CAFE program, as EPCA's 
original enactment included text substantially similar to the current 
language in Section 32919. And California's Advanced Clean Car program 
was not the first time, over the course of EPCA's long history, that a 
state or local jurisdiction instituted a program that some challenged 
as preempted under EPCA. In fact, at least one of those other programs 
had even resulted in a Federal court order deeming it preempted by 
Section 32919.\226\ Moreover, even California's initiatives were not 
new at the time of the SAFE I Rule. As California's comment to this 
Proposal explained, ``California's zero-emission-vehicle standards 
[were] first adopted more than three decades ago'' and its ``greenhouse 
gas standards were first adopted 16 years ago.'' \227\
---------------------------------------------------------------------------

    \222\ Competitive Enterprise Institute et al., Docket No. NHTSA-
2021-0030-0411 (June 11, 2021).
    \223\ See, e.g., National Automobile Dealers Association, Docket 
No. NHTSA-2021-0030-0435 (June 10, 2021); Competitive Enterprise 
Institute et al., Docket No. NHTSA-2021-0030-0411 (June 11, 2021), 
Urban Air Initiative et al., Docket No. NHTSA-2021-0030-0423 (June 
11, 2021).
    \224\ National Automobile Dealers Association, Docket No. NHTSA-
2021-0030-0435 (June 10, 2021).
    \225\ 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.'' 
Green Mountain Chrysler Plymouth Dodge Jeep, 508 F. Supp. 2d at 346 
(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)).
    \226\ Compare Ophir, 647 F. Supp. 2d at 91-92 (``The Court 
declares instead that the hybrid requirement of Rule 403 is 
expressly preempted by the EPCA, and the city and [Police 
Commissioner] are permanently enjoined from enforcing it.''), with 
Cent. Valley Chrysler-Jeep, Inc., 529 F. Supp. 2d at 1175 (holding 
that California's regulation of motor vehicle greenhouse gas 
emissions were not preempted under Section 32919).
    \227\ State of California et al., Docket No. NHTSA-2021-0030-
0403 (citing Cal. Code Regs. title 13, Sec.  1960.1(g)(2) (1991)).
---------------------------------------------------------------------------

    Thus, until 2019, the self-executing express preemption provisions 
in the governing fuel economy statute, Section 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, 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. As such, the SAFE I Rule was neither the natural evolution of 
NHTSA's prior positions nor an expected outgrowth of the regulatory 
landscape. Thus, to the extent this rulemaking is a change in position, 
it is simply a course correction that returns the Agency's regulations 
to

[[Page 74260]]

the same state in which they existed for approximately 44 of the 46 
years of EPCA's lifespan prior to the SAFE I Rule.
    Commenters that opposed the Proposal argued that this history of 
regulatory silence is irrelevant, pointing, for instance, to Supreme 
Court cases upholding agencies who promulgated regulations long after 
the enactment of the antecedent statutory language.\228\ This argument, 
though, oversimplifies NHTSA's position and the applicable legal 
standards. The Agency agrees that a statute's long pendency does not 
foreclose the opportunity to promulgate otherwise appropriate 
regulations that seek to apply the statute for the first time. But that 
does not mean the SAFE I Rule's unprecedented departure from 
longstanding practice is, as commenters contend, ``of little 
consequence.'' \229\ Such comments erroneously reduce the standard into 
an all-or-nothing proposition: Suggesting the lack of prior regulations 
must either independently sink the rulemaking or have no bearing on the 
analysis at all. However, the very same Supreme Court jurisprudence 
cited by these comments makes clear that the proper inquiry is more 
nuanced. In particular, the cases emphasize that although ``the mere 
fact that an agency interpretation contradicts a prior agency position 
is not fatal,'' such unprecedented diversions must still ``take account 
of legitimate reliance'' interests connected to the prior 
positions.\230\ Within this more comprehensive framework, the problem 
with the SAFE I Rule was not simply that it sought to promulgate 
regulations on Section 32919 for the first time--but that it did so 
without regard for many of the legally relevant considerations, such as 
reliance interests, that should have informed whether the Agency should 
have taken such a broadly applicable view of preemption.
---------------------------------------------------------------------------

    \228\ See Urban Air Initiative et al., Docket No. NHTSA-2021-
0030-0423 (June 11, 2021) (citing Smiley v. Citibank (S. Dakota), 
N.A., 517 U.S. 735 (1996) (upholding a regulation first promulgated 
by the Comptroller of the Currency ``more than 100 years after the 
enactment'' of the statutory language to which it was directed).
    \229\ National Automobile Dealers Association, Docket No. NHTSA-
2021-0030-0435 (June 10, 2021).
    \230\ Smiley, 517 U.S. at 742.
---------------------------------------------------------------------------

    In the Proposal, the Agency expressed concern that the SAFE I Rule 
improperly neglected to consider the nuances of the federalism 
interests affected by the rule.\231\ The commenting state and local 
governments subject to such preemption overwhelmingly agreed, 
commenting that this concern was particularly illustrated by the 
failure of the SAFE I Rule to account for the state and local 
jurisdictions' reliance interests in the purportedly preempted 
programs. Their comments substantiated this claim, pointing to numerous 
important policy goals or Federal statutory obligations that relied 
upon those programs. These reliance interests are largely unsurprising, 
as NHTSA had never previously issued regulations on EPCA preemption for 
the entirety of the CAFE program up to the point of the SAFE I Rule or 
had otherwise itself attempted to preempt those programs. Nevertheless, 
the SAFE I Rule still failed to meaningfully discuss these reliance 
interests. Instead, the Rule instituted a sweeping prohibition that 
foreclosed opportunities to more narrowly consider programs in a 
particularized setting. Consequently, a full repeal of the SAFE I Rule 
addresses this legal deficit and thereby restores the proper foundation 
upon which the Agency may more appropriately consider this issue in any 
future settings.
---------------------------------------------------------------------------

    \231\ See CAFE Preemption NPRM, 86 FR at 25989.
---------------------------------------------------------------------------

    Finally, NHTSA believes it is worth making clear that repealing the 
SAFE I Rule does not itself undermine any reliance interests. In this 
respect, the Agency is mindful that neither states, nor local 
jurisdictions, the entities potentially subject to any preemption, nor 
motor vehicle manufacturers, the entities producing the vehicles 
potentially subject to any state or local regulation, articulated a 
reliance interest in the SAFE I Rule in their comments to this 
Proposal.\232\ To the contrary, numerous states and local jurisdictions 
supported the Proposal and expressly clarified that they have not 
relied on the framework of the SAFE I Rule due to its brief tenure and 
uncertainty surrounding its legal validity. For example, a comment 
submitted by the State of California along with a collection of other 
states and local jurisdictions emphasized that ``no cognizable reliance 
interests in the Preemption Rule counsel against repeal. Besides being 
unclear, the Preemption Rule has faced litigation for all but a few 
hours of its 21-month existence, preventing any reasonable reliance 
interests from accruing during that time.'' \233\ Therefore, other than 
the reliance interests restored by repealing the SAFE I Rule,\234\ 
NHTSA has not identified any reasonable reliance interests that may 
caution against this rulemaking.
---------------------------------------------------------------------------

    \232\ As for automobile manufacturers, three motor vehicle 
manufacturers, Ford, Tesla, and Rivian, directly commented on the 
Proposal. Each of these comments expressly supported the Proposal. 
Ford Motor Company, Docket No. NHTSA-2021-0030-0002 (Apr. 28, 2011) 
(``Ford supports NHTSA's proposal to restore a ``clean slate'' by 
repealing the SAFE I rule and preamble statements regarding 
preemption.''), Tesla, Inc. Docket No. NHTSA-2021-0030-0398 (June 
11, 2021) (``Tesla supports NHTSA's proposal and the full repeal of 
the SAFE Rule Part 1''), Rivian, Docket No. NHTSA-2021-0030-0413 
(June 11, 2021) (``Rivian supports NHTSA's conclusion that their 
portion of the SAFE I rule must be repealed''). Other motor vehicle 
manufacturers submitted comments through their industry 
organizations. None of these comments opposed the Proposal either. 
See Zero Emission Transportation Association, Docket No. NHTSA-2021-
0030-0397 (June 11, 2021), National Coalition for Advanced 
Transportation, Docket No. NHTSA-2021-0030-0310 (June 11, 2021), 
Alliance for Automotive Innovation, Docket No. NHTSA-2021-0030-0400 
(June 11, 2021).
    \233\ State of California et al., Docket No. NHTSA-2021-0030-
0403 (June 11, 2021).
    \234\ See National League of Cities et al., Docket No. NHTSA-
2021-0030-0421 (June 11, 2021) (noting that a repeal of the SAFE I 
Rule ``would in turn restore the conditions on which those local 
governments relied in setting their climate goals.'').
---------------------------------------------------------------------------

b. The Rigid Framework of the SAFE I Rule Also Left No Room To Account 
for Other Important Preemption Variables
    The substantial federalism and reliance interests discussed above 
support a narrowly tailored preemption analysis that considers 
preemption on a particularized basis rather than through sweeping 
proclamations that categorically eliminate the interests. Addressing 
EPCA preemption in a more particularized setting also promotes a more 
thorough and informed preemption assessment of any specific state or 
local programs at issue. This is because the nature of the EPCA 
preemption analysis frequently requires an understanding of fact-
specific variables or diverse characteristics of the programs in 
question, such as the relevant technologies, compliance paths, and 
particular activities pertinent to those programs. Forming abstract or 
generally applicable EPCA preemption conclusions precludes an 
understanding of those program-specific attributes and, like the SAFE I 
Rule, results in a sweeping proclamation that cannot possibly account 
for the diverse array of programs (some of which likely have not even 
been formulated yet) potentially affected by the analysis. For 
instance, in order to announce a generally applicable scope for EPCA 
preemption, the SAFE I Rule drew assumptions about compliance 
technologies and program characteristics that would regulate GHG 
emissions from motor vehicles or involve ZEV mandates in the near-term. 
In turn, the Rule extrapolated those assumptions to the entire realm of 
regulatory possibilities, both now and in the future. The SAFE I Rule's 
rigid and generally applicable scope foreclosed any opportunity to 
evaluate specific

[[Page 74261]]

programs based on a comprehensive understanding of their actual 
characteristics rather than on generalized assumptions about how they 
operate. This left no space to defer a preemption assessment until the 
specific programs could be fully understood or consider whether actual 
differences in programs (both in the near-term or through technological 
developments that may occur in the future) could affect the application 
of EPCA's ``related to'' preemption standard.
    Numerous commenters also identified multiple other considerations 
relating to potential state motor vehicle emissions regulations that 
would be foreclosed for consideration by the sweeping rigidity of the 
SAFE I Rule. By rigidly restricting policy developments and precluding 
avenues for innovation, the SAFE I Rule ultimately implemented a rigid 
and permanent prohibition based on, at most, a limited understanding of 
a particular snapshot of the regulatory landscape. Comments further 
underscored a concern that the regulatory landscape upon which the SAFE 
I Rule imposed is dynamic and evolving. This view was particularly 
developed in a comment from the South Coast Air Quality Management 
District, which criticized the SAFE I Rule for neglecting to ``consider 
how pollution control technology changes over time,'' ``fail[ing] to 
acknowledge that some technologies may not have any measurable 
relationship with fuel economy standards at all,'' and ignoring that 
``state-set standards may be met by means other than increasing fuel 
economy.'' \235\ Ultimately, such concerns echo the Proposal's 
misgivings that the SAFE I Rule rigidly applied preemption irrespective 
of the precise contours and legally relevant characteristics of any 
particular programs, regulations, or technological developments that 
may arise. In doing so, the SAFE I Rule instituted an inflexible 
preemption framework, which necessarily could not accommodate the 
litany of fact-specific variables and nuances that typically bear upon 
a preemption analysis, which, the Agency stresses, could still 
determine that any particular program is preempted. However, preempting 
all programs that fit within the broad categories established in the 
SAFE I Rule fails to acknowledge that the specific contours of any 
particular program remain crucial to the analysis.
---------------------------------------------------------------------------

    \235\ South Coast Air Quality Management District, Docket No. 
NHTSA-2021-0030-0446 (June 11, 2021) (supporting such positions 
through a citation to ``Green Mountain Chrysler Plymouth Dodge Jeep, 
508 F.Supp. 2d at 381 (discussing meeting GHG standards through 
preventing leakage of air conditioner refrigerants)'').
---------------------------------------------------------------------------

    A few comments that opposed the Proposal disagreed with this 
concern, such as a comment from NADA that argued the ``physics and 
chemistry involved with fuel economy and GHG emissions standards'' are 
intrinsically intertwined such that a regulation of one regulates the 
other.\236\ In this respect, NADA's comment largely mirrors the 
reasoning of the SAFE I Rule in preempting all motor vehicle GHG 
standards. However, as discussed throughout this rulemaking, the Agency 
here is not taking a generally applicable position on this issue, as 
NHTSA continues to believe that such statements simply ignore the 
details of particular programs. Ultimately, such statements make 
factual determinations about detailed scientific and technical issues 
in the abstract --without any regard for the actual technical details 
of the particular programs or technologies that bear upon those 
specific conclusions. In doing so, such statements of general 
applicability cannot possibly account for whether variables, which are 
presently unknown (and some of which may depend upon programs or 
technologies not even in existence yet), may affect the relevant 
technical analysis or substantive accuracy of the preemption 
determination.
---------------------------------------------------------------------------

    \236\ National Automobile Dealers Association, Docket No. NHTSA-
2021-0030-0435 (June 10, 2021). See also Urban Air Initiative et 
al., Docket No. NHTSA-2021-0030-0423 (June 11, 2021).
---------------------------------------------------------------------------

    Ultimately, if NADA or any other parties oppose the state and local 
programs that the SAFE I Rule sought to preempt, they remain free to 
challenge those programs in Federal court, as they have been able to do 
since the inception of those programs. The repeal of the SAFE I Rule 
does not change that ability or the underlying ``related to'' standard 
in Section 32919. To the extent NADA considers this point a process 
flaw, NHTSA responds that NADA's focus is too narrow, as the Agency has 
explained above that there exists no need to replace its positions on 
preemption in the SAFE I Rule with new generally applicable positions. 
The SAFE I Rule sought to preempt, in a generally applicable manner, 
all state and local GHG emissions regulations for motor vehicles. 
Continuing this approach from the SAFE I Rule would improperly only 
focus upon a snapshot of the regulatory landscape: The current manner 
in which currently available technology reduces emissions based. This 
unduly limited perspective is evident even from the face of such 
comments, such as a joint comment from CEI asserting that ``[t]he two 
types of standards will remain mathematically convertible as long as 
affordable and practical onboard carbon capture technologies do not 
exist.''\237\ Therefore, even assuming the framework espoused by the 
SAFE I Rule and commenters defending the Rule, the relationship between 
the regulations that would have been preempted under SAFE I Rule and 
fuel economy still only exists as a potentially impermanent state of 
affairs, subject to change as technology or legal standards evolve. As 
such, it was not appropriate for the SAFE I Rule to try and confine 
these dynamic regulatory subjects to a static and one-size-fits-all 
prohibition.
---------------------------------------------------------------------------

    \237\ Competitive Enterprise Institute et al., Docket No. NHTSA-
2021-0030-0411 (June 11, 2021) (emphasis added).
---------------------------------------------------------------------------

    In light of the foregoing, upon reconsideration, NHTSA finalizes 
its view that the SAFE I Rule's categorical scope was an inappropriate 
approach. The preemption framework established by the Rule necessarily 
could not account for legally relevant considerations and, in any 
event, imprudently and unnecessarily imposed preemption in absolute 
terms, foreclosing any outlet for a more narrowly tailored approach 
instead and precluding opportunities to account for program-specific 
variables that could affect the accuracy or nature of a preemption 
analysis.
iii. Restoring the Focus to the Governing Statutory Language Promotes a 
Properly Applied EPCA Preemption Framework
    In light of the foregoing, NHTSA maintains the Proposal's concern 
that the Agency's preceding discourse on EPCA preemption paints a 
circuitous regulatory landscape, which convolutes the proper 
application of legal principles on important questions of preemption. 
Such confusion culminated in the SAFE I Rule, which as described 
throughout herein, misapplied the governing legal principles, 
articulated an impermissible legal role for the Agency, and failed to 
identify the legally relevant factors that bore on an EPCA preemption 
determination. In doing so, the SAFE I Rule also purported to 
synthesize a variety of Agency statements and positions that predated 
that rulemaking. And, even though the SAFE I Rule represented a marked 
departure from the Agency's longstanding historical practice of not 
codifying express EPCA preemption requirements, the SAFE I Rule 
(including its preambles that accompanied the rulemaking) still

[[Page 74262]]

attempted to envelop the Agency's historical discussions of EPCA 
preemption within its legally problematic preemption framework. 
Accordingly, NHTSA continues to believe that a repeal of the SAFE I 
Rule is justified in order to clarify the applicable preemption 
framework and restore the traditional focus on EPCA's longstanding 
statutory standards in Section 32919, which ultimately govern the 
preemption analysis. Moreover, because of the extent to which the SAFE 
I Rule inextricably comingled its analysis with a variety of prior 
Agency statements on the subject of EPCA preemption, in repealing the 
SAFE I Rule, the Agency also stresses that none of those preceding 
statements should be read as persisting Agency positions on the nature 
or scope of EPCA preemption. In doing so, NHTSA strives to disentangle 
any regulatory confusion wrought by the SAFE I Rule from the original 
statutory standards in Section 32919.
    Accordingly, NHTSA is finalizing its proposed approach of refining 
the discourse on EPCA preemption by repealing the SAFE I Rule. The 
Agency considers this basis for a repeal applicable regardless of 
whether NHTSA possessed authority for the SAFE I rulemaking because, 
either way, the SAFE I Rule introduced confusion that undermined a 
properly scoped preemption analysis. In this respect, as described 
before, the Agency remains cognizant that Congress has not required 
NHTSA to speak substantively on EPCA preemption. Thus, anything NHTSA 
says on this subject is, at most, elective and unnecessary for Section 
32919 to function as Congress intended. Consequently, if NHTSA's 
regulations on EPCA preemption raise the possibility of confusion or 
otherwise convolute the discourse on the subject, it would be better to 
reset those statements entirely than allow them to linger.
a. Repealing the SAFE I Rule Facilitates the Direct Application of 
Longstanding Statutory Standards
    NHTSA finalizes the Proposal's view that a repeal of the SAFE I 
Rule helpfully elucidates the proper standards to apply when conducting 
an EPCA preemption analysis. This is not simply because the SAFE I Rule 
promulgated requirements for which no authority existed, as described 
above. Even apart from their unsustainable legal status, the SAFE I 
Rule also introduced entirely new and largely undefined concepts into 
the preemption analysis. In doing so, the SAFE I Rule diverted 
attention from the statutory standards of Section 32919, which were 
traditional standards long applied by regulated entities and courts. By 
layering additional uncharted and undefined regulatory standards on top 
of this longstanding statutory language, the SAFE I Rule introduced new 
uncertainty into the EPCA preemption regulatory landscape. As such, 
today's repeal of the Rule removes this superfluous layer thereby 
restoring the focus on the original statutory standards, which are 
capable of direct application.
    On balance, the comments to the Proposal illustrated the degree to 
which a repeal of the SAFE I Rule promoted a clearer and more direct 
application of the governing statutory preemption standards. Several 
commenters opposing a repeal expressed concern that this step would 
undo what they viewed as the SAFE I Rule's clarification of EPCA 
preemption. To reach this conclusion, such comments generally argued 
that by categorically preempting states and local jurisdictions, the 
SAFE I Rule established a clear brightline for preemption, whereas a 
repeal would fail to provide any guidance on the subject or potentially 
result in overlapping requirements.\238\
---------------------------------------------------------------------------

    \238\ See, e.g., National Automobile Dealers Association, Docket 
No. NHTSA-2021-0030-0435 (June 10, 2021), Competitive Enterprise 
Institute et al., Docket No. NHTSA-2021-0030-0411 (June 11, 2021), 
American Fuel & Petrochemical Manufacturers, Docket No. NHTSA-2021-
0030-0425 (June 11, 2021), Urban Air Initiative et al., Docket No. 
NHTSA-2021-0030-0423 (June 11, 2021).
---------------------------------------------------------------------------

    However, commenters by no means agreed on the proposition that the 
SAFE I Rule clarified the regulatory landscape. In fact, a large number 
of commenters supporting a repeal specifically expressed the opposite 
concern: That the SAFE I Rule introduced more uncertainty. Many of 
these commenters were states and local entities who especially need to 
understand the contours of EPCA preemption in order to formulate their 
own policies and assess their viability. Such commenters pointed to 
tangible examples of how aspects of the SAFE I Rule convoluted the EPCA 
preemption analysis by introducing new regulatory requirements and 
standards that produced more uncertainty than the underlying statutory 
standards in Section 32919.
    Ultimately, NHTSA finalizes the Proposal's view that refocusing the 
governing preemption spotlight back on Section 32919's statutory terms 
is ideal because the SAFE I Rule did not elucidate the regulatory 
landscape, and in some cases, may have even added confusion by 
introducing unfamiliar and uncharted terms into the preemption 
analysis. Permitting the regulations of the SAFE I Rule to linger 
enhances the potential that these regulations may only add regulatory 
confusion to the statutory standards long in place under EPCA. As 
described throughout this final rule, EPCA preemption is governed by 
the express preemption provision in Section 32919, which has employed 
substantially the same language throughout the history of the CAFE 
program. Multiple commenters noted that the ``related to'' language 
enacted in Section 32919 has also been used by Congress in other 
enactments beyond EPCA and has the benefit of extensive jurisprudence 
analyzing the meaning of the term.\239\ Moreover, Section 32919 itself 
has even been applied by several Federal courts, who have applied the 
provision to both preempt and not preempt state and local 
programs.\240\ Therefore, the governing statutory standards in Section 
32919 are familiar concepts that the public, including regulated 
entities, and adjudicators have frequently analyzed or considered over 
the span of EPCA's many years of existence.
---------------------------------------------------------------------------

    \239\ In fact, this point was emphasized even by commenters 
critical of the Proposal, as they sought to raise substantive 
arguments about how various state programs were preempted by EPCA 
under the ``related to'' standard. See, e.g., Urban Air Initiative 
et al., Docket No. NHTSA-2021-0030-0423 (June 11, 2021) (seeking to 
apply Section 32919's ``related to'' terminology by reference to 
other jurisprudence interpreting similar language).
    \240\ Compare Ophir, 647 F. Supp. 2d at 91-92 (``The Court 
declares instead that the hybrid requirement of Rule 403 is 
expressly preempted by the EPCA, and the city and [Police 
Commissioner] are permanently enjoined from enforcing it.''), with 
Cent. Valley Chrysler-Jeep, Inc., 529 F. Supp. 2d at 1175 (holding 
that California's regulation of motor vehicle greenhouse gas 
emissions were not preempted under Section 32919).
---------------------------------------------------------------------------

    In contrast, the unprecedented approach of the SAFE I Rule confused 
this framework and, as described above, purported to introduce new 
prescriptive standards into the preemption analysis by way of the 
codified regulations. The SAFE I Rule substituted this long-applied 
statutory standard for new regulatory phrases that lacked any 
jurisprudential history or further definition. The resulting ambiguity 
introduced many unknowns into the EPCA preemption landscape, such as 
what those new standards mean or how NHTSA may seek to construe its new 
standards in the future. In addition, because Section 32919 can also 
support a private right of action, in the past, private parties have 
undertaken litigation seeking to enforce the terms of EPCA preemption. 
As such, any new

[[Page 74263]]

and potentially malleable standards promulgated by the SAFE I Rule also 
offer new opportunities for private litigants to advocate for novel 
applications of the SAFE I Rule's prescriptive preemption requirements 
in contexts even beyond the scope originally contemplated by the 
Agency. These factors introduce substantial uncertainties into a 
regulatory landscape that, before the SAFE I Rule, had been exclusively 
governed by the longstanding statutory language in Section 32919.
    Many of the comments raised concerns associated with such 
uncertainties. For instance, a joint comment submitted by California 
along with numerous other states and local jurisdictions expressed 
concern that the new regulations from the SAFE I Rule introduced new--
and undefined--legal standards into the preemption framework, pointing 
to new concepts or phrases such as ``direct or substantial effect'' or 
``in-use'' regulations.\241\ Commenting states and local jurisdictions 
also feared that all of these unknowns actually complicated their long-
term planning by making the EPCA preemption standard 
unpredictable.\242\ For example, a group of municipal entities 
expressed uncertainty over whether these untested standards could even 
be stretched to apply to routine traffic measures in the future.\243\ 
And another local jurisdiction noted that the ensuing litigation over 
the SAFE I Rule's validity introduced further disruptions into 
anticipated regulatory initiatives that were already in the process of 
development upon the promulgation of the Rule.\244\ Ultimately, all of 
these comments underscore the Proposal's concern that the SAFE I Rule 
did not even achieve the clarity that it cited so frequently as the 
reason for the rulemaking. In fact, strong indications exist that the 
Rule actually amplified any ambiguities surrounding EPCA preemption by 
suddenly linking the preemption analysis to uncharted standards and 
unfamiliar concepts. As such, even setting aside the litany of other 
legal problems with the Rule discussed throughout this rulemaking, 
NHTSA views this repeal as a necessary and prudent step to unclutter 
the EPCA regulatory landscape.
---------------------------------------------------------------------------

    \241\ State of California et al., Docket No. NHTSA-2021-0030-
0403 (June 11, 2021).
    \242\ South Coast Air Quality Management District, Docket No. 
NHTSA-2021-0030-0446 (June 11, 2021) (``the Preemption Rule suffered 
from a notable lack of clarity and an incomplete analysis of 
standards. As the Proposed Repeal notes, the Preemption Rule 
inconsistently used language between the preamble and codified text, 
creating the risk of confusion as to the full scope of preemption 
being promulgated.''). See also Connecticut Department of 
Transportation, Docket No. NHTSA-2021-0030-0330 (June 11, 2021) 
(stressing that a ``repeal is necessary to provide certainty for 
transportation and air quality planning agencies, the public, and 
the original equipment manufacturers.'').
    \243\ National League of Cities et al., Docket No. NHTSA-2021-
0030-0421 (June 11, 2021).
    \244\ District of Columbia Department of Energy and Environment, 
Docket No. NHTSA-2021-0030-0412 (June 11, 2021) (noting that ``the 
promulgation of SAFE I threw [the District's] process into 
turmoil.''). See also CAFE Preemption NPRM, 86 FR at 25984 (noting 
that ``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.'').
---------------------------------------------------------------------------

    Other aspects of the SAFE I Rule's regulatory text exacerbated the 
uncertainty surrounding the SAFE I Rule's unprecedented preemption 
framework. For instance, the Proposal highlighted that the codified 
text of the SAFE I Rule was potentially perplexing because Sections 
531.7 and 533.7 merely parroted the statutory text in Section 32919. As 
such, the Proposal expressed a concern that the verbatim recitation of 
the statutory language in the CFR could even be confusing to some, who 
assume some subtle difference must exist in the statutory and 
regulatory provisions. One commenter defending the SAFE I Rule rejected 
this reasoning, arguing that ``such concerns would be immediately 
dispelled upon comparing the statutory and regulatory text and 
realizing the provisions were identical.'' \245\ The comment assumed 
this alignment would be naturally understood because the commenter 
asserted that ``agencies routinely'' parrot their statutes in such a 
manner.\246\ But this assumption is not shared by all, with at least 
one prominent administrative law treatise expressly recognizing that 
``agencies rarely issue legislative rules that simply repeat the 
precise language of a statute.'' \247\ Agencies may often integrate 
portions of statutory language into their regulations, but to fully 
copy an entire statutory provision into their own regulations is a step 
further (and a step that the Supreme Court discourages, at least with 
regard to deference).\248\ In this respect, the oddity of codifying 
into regulation multiple provisions that already exist verbatim and in 
full in a statute creates a peculiar regulatory maze for statutory 
standards otherwise capable of direct implementation. As one joint 
comment noted, the uncertain purpose of taking this superfluous step 
was exacerbated by the SAFE I ``Rule's preamble [which] magnified the 
risk of confusion by stating that verbatim recitation of Section 32919 
in the Code of Federal Regulations `articulates NHTSA's views on the 
meaning' of that section.'' \249\ This approach sends readers on a 
search for meaning, straining to find differences between the statute 
and their mirroring regulatory provisions or perhaps attempting to 
apply some sort of extra-textual analysis to construe one iteration of 
the text differently than the other. And even if, as AFPM's comment 
hypothesizes, a thoughtful reader may eventually reach the conclusion 
that no such differences actually exist because the provisions are 
identical, the entire circuitous endeavor serves no purpose because the 
statutory text already controlled the analysis and its regulatory 
copies do nothing to further illuminate that analysis.
---------------------------------------------------------------------------

    \245\ American Fuel & Petrochemical Manufacturers, Docket No. 
NHTSA-2021-0030-0425 (June 11, 2021).
    \246\ Id.
    \247\ Richard J. Pierce, Jr. & Kristin E. Hickman, 
Administrative Law Treatise Sec.  3.8 (6th Edition, 2020-1 Cum. 
Supp.).
    \248\ See Gonzales v. Oregon, 546 U.S. 243, 257 (2006) (refusing 
to extend deference to an agency regulation that merely parroted a 
statute).
    \249\ Center for Biological Diversity et al., Docket No. NHTSA-
2021-0030-0369 (June 11, 2021) (quoting 84 FR at 51319).
---------------------------------------------------------------------------

    In any event, whether or not such a parroting regulation is 
actually confusing need not be dispositive because, at the very least, 
such a parroting regulation is superfluous and unnecessary. As such, it 
is not unreasonable for NHTSA to conclude that the superfluous and 
potentially confusing provisions in Sections 531.7 and 533.7 should no 
longer remain codified and if they were to remain so, would only 
overcomplicate the EPCA preemption analysis. Accordingly, NHTSA 
finalizes its view that a repeal of the SAFE I Rule is independently 
warranted in order to restore the focus to EPCA's governing statutory 
standards and remove an unnecessary and potentially confusing layer of 
regulatory haze that risks obscuring the proper preemption analysis.
b. NHTSA Reiterates That Prior Regulatory Statements on the Scope and 
Nature of EPCA Preemption No Longer Remain Current Views of the Agency
    Finally, NHTSA reiterates the Proposal's view that, to the extent 
prior rulemaking statements from the Agency discuss matters of EPCA 
preemption, they should not be read inconsistently with the 
reconsidered views that NHTSA now expresses in this final rule. 
Throughout the SAFE I rulemaking, NHTSA sought to portray the

[[Page 74264]]

regulations as the culmination of the Agency's historical discourse on 
the subject of EPCA preemption. To be sure, as has been reiterated 
throughout this final rule, NHTSA does not view the SAFE I Rule as a 
natural or consistent outgrowth of its historical position of not 
promulgating preemption regulations under Section 32919. Nevertheless, 
the degree to which the SAFE I Rule sought to emmesh the Agency's prior 
discussions of EPCA preemption, which appeared occasionally in 
preambles to substantive CAFE standard-setting rulemakings, within the 
flawed rationale of the SAFE I Rule warrants a clarification of the 
relationship of those prior statements to today's repeal.
    In this respect, NHTSA fully agrees with several commenters who 
expressed that this clarification is not formally necessary because 
this final rule clearly contains the current views of the Agency and 
upon the repeal of the SAFE I Rule, ``any preambular statements 
justifying or explaining the Preemption Rule's regulatory provisions or 
appendices will be a `legal nullity.' '' \250\ NHTSA likewise agrees 
that this portion of the rulemaking is not a separate final agency 
action. Any such statements or discussions in the SAFE I rulemaking 
preambles simply accompanied the SAFE I regulations so upon the repeal 
of those regulations there is nothing further to formally undo. 
Likewise, NHTSA is not formally repealing any statements that preceded 
the SAFE I Rule in the sense that NHTSA is suggesting that the 
statements will be somehow stricken from past Federal Register 
publications (nor is the Agency even aware of a legal mechanism to do 
so).\251\ But it is precisely because those statements will remain 
published that NHTSA considers it prudent to, out of an abundance of 
caution, make crystal clear that they should not be read in isolation 
or taken out of context as views NHTSA continues to endorse.
---------------------------------------------------------------------------

    \250\ State of California et al., Docket No. NHTSA-2021-0030-
0403 (June 11, 2021) (quoting NRDC v. EPA, 559 F.3d 561, 565 (D.C. 
Cir. 2009)); Center for Biological Diversity et al., Docket No. 
NHTSA-2021-0030-0369 (June 11, 2021).
    \251\ In this respect, NHTSA particularly disagrees with 
commenters opposing the Proposal who mischaracterize the nature of 
the Agency's action in order to label the rulemaking ``retroactive 
censorship'' or ``regulatory cancel culture.'' See Competitive 
Enterprise Institute et al., Docket No. NHTSA-2021-0030-0411 (June 
11, 2021).
---------------------------------------------------------------------------

    Therefore, to the extent the Proposal referred to this 
clarification as a ``repeal'' or ``clean slate,'' the Agency simply 
means that any statements NHTSA has made in past rulemaking discussions 
(in the SAFE I Rule or otherwise) that seek to impose a scope for EPCA 
preemption or suggest NHTSA has the authority to do so should no longer 
be read as current NHTSA positions.\252\ In other words, no one should 
attempt to overly parse NHTSA's prior statements in order to argue, for 
example, that NHTSA somehow left a portion of the SAFE I Rule analysis 
untouched and continues to hold those views. NHTSA continues to 
consider this precautionary step worthwhile. In doing so, NHTSA makes 
clear that no prior statements should continue to clutter the EPCA 
preemption analysis. This promotes a clearer and more precise discourse 
on EPCA preemption, which is easier to follow because of the manner in 
which the SAFE I Rule's preambulatory discussion of EPCA preemption 
comingled core legal concepts and purported to draw from prior Agency 
positions. As explained in the preceding section, the SAFE I Rule was 
repeatedly imprecise in the way it described several fundamental legal 
principles, such as rulemaking authority, the nature of preemption, and 
the effect of regulations. This results in a legally confusing 
discussion about how EPCA preemption operates, how the legal framework 
should apply, and how NHTSA's views on preemption should factor into 
any such analysis. Irrespective of the substantive conclusions reached 
through such a rulemaking, this confusing landscape created by the SAFE 
I rulemaking record unnecessarily convolutes the EPCA preemption 
discourse and provides a difficult legal footprint for any members of 
the public or adjudicatory body to follow. Accordingly, renewing the 
focus on Section 32919's original language through this final rule 
restores a more direct and straightforward application of EPCA's 
familiar and longstanding statutory preemption terms.
---------------------------------------------------------------------------

    \252\ In addition to the SAFE I Rule, the Proposal specifically 
identified several other Preamble statements as containing such 
statements: 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).
---------------------------------------------------------------------------

III. 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. Only one commenter 
raised any of these issues during the comment process. This commenter 
argued that the Proposal conflicted with Executive Order 12866 because 
the NPRM ``failed to evaluate whether the action is a significant 
regulatory action.'' \253\ However, this comment is not correct, as 
this rulemaking document has been considered a ``significant regulatory 
action'' under Executive Order 12866, but has not been designated as 
``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.
---------------------------------------------------------------------------

    \253\ American Fuel & Petrochemical Manufacturers, Docket No. 
NHTSA-2021-0030-0425 (June 11, 2021).
---------------------------------------------------------------------------

    The same commenter also argued that NHTSA failed to comply with 
Executive Order 12866 because the Proposal did not ``assess all costs 
and benefits of its proposed action and available regulatory 
alternatives.'' \254\ The Agency addressed this comment in Section 
II.A. of this notice.
---------------------------------------------------------------------------

    \254\ Id.
---------------------------------------------------------------------------

2. Executive Order 13990

    Executive Order 13990, ``Protecting Public Health and the 
Environment and Restoring Science to Tackle the Climate Crisis'' (86 FR 
7037, Jan. 25, 2021), directed the immediate review of ``The Safer 
Affordable Fuel-Efficient (SAFE) Vehicles Rule Part One: One National 
Program,'' 84 FR 51310 (September 27, 2019), by April 2021.'' The 
Proposal followed the review directed in this Executive Order and this 
Final Rule concludes the review. As noted in the Proposal and 
reiterated again today, the Agency continues to deliberate further 
about the complex substantive issues surrounding EPCA preemption and 
may elect to undertake further action in the future, if warranted, to 
exercise NHTSA's interpretative and policymaking discretion with 
respect to such issues. Nevertheless, as the Agency's review under 
Executive Order 13990 identified other independent and dispositive 
problems with the SAFE I Rule, these grounds suffice for NHTSA to 
conclude its reconsideration of the Rule by repealing the SAFE I Rule 
in full.

3. Executive Order 14008

    Executive Order 14008, ``Tackling the Climate Crisis at Home and 
Abroad'' (86 FR 7619) expressly recognizes that ``[t]he United States 
and the world face a profound climate crisis.'' Accordingly, the Order 
describes a multitude of

[[Page 74265]]

domestic and foreign policy measures designed to promote ``climate 
considerations'' as ``an essential element of United States foreign 
policy and national security.'' \255\
---------------------------------------------------------------------------

    \255\ Id.
---------------------------------------------------------------------------

    One commenter opposing the Proposal and defending the SAFE I Rule 
argued that by repealing the SAFE I Rule without a technical analysis 
of any impacts of state electric vehicle mandates on ``low-income car 
buyers,'' NHTSA failed to comply with the environmental justice 
provisions of Executive Order 14008.\256\ In response, first and 
foremost, the Agency stresses that the substantive climate 
considerations described in the Order do not change the principally 
legal justifications for the repeal of the SAFE I Rule. As described 
throughout this Final Rule, a repeal of the SAFE I Rule is necessitated 
by the multiple legal deficits with the Rule, including a lack of NHTSA 
rulemaking authority and the Agency's failure to adequately consider 
legally relevant considerations prior to promulgating the preemption 
regulations. These legal problems leave the Agency with no discretion 
but to repeal the Rule.
---------------------------------------------------------------------------

    \256\ See American Fuel & Petrochemical Manufacturers, Docket 
No. NHTSA-2021-0030-0425 (June 11, 2021).
---------------------------------------------------------------------------

    Moreover, NHTSA notes that both the nature and application of this 
rulemaking are consistent with the climate and environmental justice 
goals expressed in Executive Order 14008. While NHTSA's repeal does not 
depend upon substantive issues, as described throughout, the Agency 
notes that commenters delving into the substantive issues surrounding 
the SAFE I Rule widely viewed the original rule as undermining efforts 
to ``address[ ] climate change and improv[e] equity.'' \257\ Moreover, 
as explained in Section II.B.ii. above, repealing the SAFE I Rule 
enables any future preemption analyses to occur at a more nuanced level 
compared to the categorical and rigid prohibition instituted by the 
repealed regulations. In this sense, repealing the SAFE I Rule 
facilitates future opportunities to better incorporate climate and 
environmental justice considerations into future substantive 
applications or interpretations of EPCA preemption.
---------------------------------------------------------------------------

    \257\ See, e.g., Consumer Reports, Docket No. NHTSA-2021-0030-
0224 (June 11, 2021).
---------------------------------------------------------------------------

    Finally, Executive Order 14008 makes clear that pursuing 
environmental justice often entails understanding policies from the 
perspective of local communities, ``to address the disproportionately 
high and adverse human health, environmental, climate-related and other 
cumulative impacts on disadvantaged communities'' from those 
policies.\258\ This rulemaking has repeatedly described the extent to 
which repealing the SAFE I Rule will remove improper restrictions on 
states and local jurisdictions, thereby facilitating their development 
of innovative policies tailored to address the challenges facing their 
local communities.\259\ In doing so, repealing the SAFE I Rule 
increases the potential that environmental justice may be served as 
those jurisdictions are often in the best situation to both quickly 
identify the unique challenges facing disadvantaged local communities 
and understand the steps necessary to mitigate them.
---------------------------------------------------------------------------

    \258\ Executive Order 14008, Tackling the Climate Crisis at Home 
and Abroad, 86 FR 7619 (Feb. 1, 2021).
    \259\ See supra nn.216-217 (describing commenters who 
specifically raised environmental justice concerns connected to this 
very issue).
---------------------------------------------------------------------------

4. 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 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 final rule only concerns the 
question of preemption; the action does not set CAFE or emissions 
standards themselves. The preemption regulations repealed in this 
action have no direct effect on any private entities, regardless of 
size, because the rules do not regulate private entities. Further, 
unlike the SAFE I Rule, this rulemaking takes no position on whether 
any particular State or local law is preempted and has no impact, let 
alone a significant impact, on any small government jurisdiction. Thus, 
NHTSA confirms in this final rule that this rule would have no 
significant impact on any small entities.

5. 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.'' \260\ ``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.'' \261\ 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.\262\
---------------------------------------------------------------------------

    \260\ Executive Order 13132, Federalism, Sec. 1(a) (Aug. 4, 
1999).
    \261\ Id. at Sec. 1(a).
    \262\ Id. at Sec. 6(b), (c).
---------------------------------------------------------------------------

    While this final rule concerns matters of preemption, it does not 
entail either type of regulation covered by Executive Order 13132's 
consultation requirements. Rather, the action in this final rule merely 
repeals regulations and positions that sought to preempt State law. 
Thus, this final rule 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.

6. 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 does not include a 
Federal mandate, no unfunded mandate assessment was prepared.

7. National Environmental Policy Act

    The National Environmental Policy Act of 1969) \263\ 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

[[Page 74266]]

action (including alternatives to the proposed action).\264\ However, 
there are some instances where NEPA does not apply to a particular 
proposed action.
---------------------------------------------------------------------------

    \263\ 42 U.S.C. 4321-4347.
    \264\ 42 U.S.C. 4332.
---------------------------------------------------------------------------

    In the Proposal, NHTSA emphasized that one consideration is whether 
the action is a non-discretionary action to which NEPA may not 
apply.\265\ In this Final Rule, NHTSA has concluded that the SAFE I 
Rule was legally flawed for several reasons. Principally, Congress did 
not provide 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 
determined through this rulemaking that such actions exceed the 
Congressional grant of authority to NHTSA under EPCA. Accordingly, the 
Agency believes that the only legally appropriate course of action is 
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 programs in the SAFE I Rule. In addition, this Final 
Rule concluded that the SAFE I Rule failed to adequately consider a 
litany of context-dependent variables that bear upon the preemption 
analysis--including legally relevant considerations such as the 
longstanding reliance interests undermined by the preemption imposed by 
the SAFE I Rule. Overlooking these considerations also renders the SAFE 
I Rule legally invalid and in need of repeal. Courts have long held 
that NEPA does not apply to nondiscretionary actions by Federal 
agencies.\266\ Based on the conclusion in this final rule that the 
legal deficits in the SAFE I Rule compel the Agency to repeal it, NHTSA 
maintains the position that NEPA does not apply to this action.
---------------------------------------------------------------------------

    \265\ 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.'').
    \266\ 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).
---------------------------------------------------------------------------

    This is consistent with the position described in the Proposal, 
which also considered NEPA inapplicable due to the legally required 
nature of the repeal. Only two comments even raised NEPA issues, with 
one supporting the Agency's position and the other challenging it. 
Notably, the supporting comment was submitted on behalf of twelve 
public interest organizations, many of which consisted of environmental 
interest organizations. This joint comment expressly agreed with NHTSA 
that ``if NHTSA definitively concludes that the Preemption Rule exceeds 
its statutory authority, it need not analyze the environmental impacts 
of a repeal under the National Environmental Policy Act.'' \267\ This 
comment further recognized that since the Agency's repeal is compelled 
by law, any attendant NEPA evaluation is unnecessary because ``the 
agency `lacks the power to act on whatever information' it might gather 
in a NEPA analysis.'' \268\ This matches the framework described in 
this Final Rule.
---------------------------------------------------------------------------

    \267\ Center for Biological Diversity et al., Docket No. NHTSA-
2021-0030-0369 (June 11, 2021).
    \268\ Id. (quoting Public Citizen, 541 U.S. at 768-69).
---------------------------------------------------------------------------

    The sole comment opposing the Proposal's approach to NEPA was a 
joint comment submitted by the Urban Air Initiative. This comment 
argued that a repeal of the SAFE I Rule was a major action that 
required an environmental impact statement.\269\ In support of this 
argument, the comment tried to link the rulemaking to a variety of 
environmental impacts, such as changes to motor vehicle fuel economy 
from increased battery pack weight, as well as toxicity from electric 
automobile batteries.\270\ However, even this comment predicates 
NHTSA's NEPA obligation on the rulemaking qualifying ``as a 
discretionary action.'' \271\ As described throughout this final rule, 
NHTSA's repeal of the SAFE I Rule is nondiscretionary due to the need 
to remedy the legal deficits with the Rule. Nothing in this comment 
changes this traditional understanding of NEPA's operation. Moreover, 
in labeling this repeal an action subject to NEPA, these commenters 
fail to explain why this conclusion, if true, would not also apply to 
the SAFE I Rule, which is what originally set in motion such a sweeping 
preemption scope. In doing so, the comment strenuously defends the 
viability of the SAFE I Rule without recognizing that this very same 
argument would render the SAFE I Rule violative of NEPA and only 
provide another reason that the Rule is legally invalid and in need of 
repeal.\272\
---------------------------------------------------------------------------

    \269\ Urban Air Initiative et al., Docket No. NHTSA-2021-0030-
0423 (June 11, 2021).
    \270\ Id.
    \271\ Id.
    \272\ The Proposal recognized the potential for this 
contradiction as well, noting that 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 a repeal which restores the scope to the status 
quo ante would rectify this overstep.
---------------------------------------------------------------------------

    Moreover, as in the Proposal, the Agency also reiterates that the 
Supreme Court has characterized an express preemption statute's scope 
as a legal matter of statutory construction, in which ``the purpose of 
Congress is the ultimate touchstone of pre-emption analysis.'' \273\ In 
turn, ``Congress' intent, of course, primarily is discerned from the 
language of the pre-emption statute and the `statutory framework' 
surrounding it.'' \274\ 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.'' \275\
---------------------------------------------------------------------------

    \273\ Cipollone v. Liggett Grp., Inc., 505 U.S. 504, 516 (1992).
    \274\ Lohr, 518 U.S. at 485-86 (plurality opinion).
    \275\ CSX Transp., Inc., 507 U.S. at 664.
---------------------------------------------------------------------------

    In light of this background, as both this rulemaking and the SAFE I 
Rule itself consistently made clear, the statutory text of Section 
32919 ultimately governs express preemption through self-executing 
terms. The SAFE I Rule even relied on this to conclude that NEPA was 
not required for that rulemaking because NHTSA could not change the 
scope of EPCA preemption. As described in this rulemaking, the SAFE I 
Rule was confused and contradictory in this respect because, if valid, 
the regulations codified by the SAFE I Rule would have actually imposed 
prescriptive preemption requirements. Nevertheless, the SAFE I Rule 
still accurately assessed that under a properly scoped application of 
Section 32919, preemption ``is not the result of the exercise of Agency 
discretion, but rather reflects the operation and application of the 
Federal statute.'' \276\
---------------------------------------------------------------------------

    \276\ NHTSA, EPA, The Safer Affordable Fuel-Efficient (SAFE) 
Vehicles Rule Part One: One National Program, Final Rule, 84 FR 
51310, 51353-54 (Sept. 27, 2019).
---------------------------------------------------------------------------

    The express preemption provision of Section 32919 remains enacted, 
in full and unchanged, irrespective of the SAFE I Rule or this final 
rule. As almost all commenters agreed, this provision is self-executing 
and governing of the EPCA preemption issue irrespective of any Agency 
regulations that purport to do so as well. Therefore, in repealing the 
SAFE I Rule, NHTSA is not actually

[[Page 74267]]

changing the scope of EPCA preemption. To be sure, a repeal will remove 
the SAFE I Rule, which facially imposed binding requirements. But those 
requirements themselves were invalid because NHTSA's regulations were 
never capable of modifying the scope of EPCA's self-executing terms, 
even if they purported to do so. Accordingly, under Section 32919's 
constant language, the actual scope of EPCA preemption is the same 
today as it was yesterday when the regulations remained codified, as 
well as the same as it was in 2018 before those rules were ever 
promulgated. Therefore, this final rule likewise does not change the 
statutorily set scope of express preemption and, as such, the Agency 
does not consider this rule to result in any environmental impact that 
may arise from such preemption.\277\
---------------------------------------------------------------------------

    \277\ This view was also expressly supported by commenting 
public interest organizations. See Center for Biological Diversity 
et al., Docket No. NHTSA-2021-0030-0369 (June 11, 2021).
---------------------------------------------------------------------------

8. Executive Order 12988 (Civil Justice Reform)

    Pursuant to Executive Order 12988, ``Civil Justice Reform,'' \278\ 
NHTSA has determined that this final rule does not have any retroactive 
effect.
---------------------------------------------------------------------------

    \278\ 61 FR 4729 (Feb. 7, 1996).
---------------------------------------------------------------------------

9. 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.

10. Privacy Act

    In accordance with 5 U.S.C. 553(c), NHTSA solicited comments from 
the public to better inform the rulemaking process. These comments are 
posted, without edit, to www.regulations.gov, as described in DOT's 
system of records notice, DOT/ALL-14 FDMS, accessible through 
www.transportation.gov/privacy.

11. Congressional Review Act

    Pursuant to Subtitle E of the Small Business Regulatory Enforcement 
Fairness Act of 1996, also known as the Congressional Review Act (5 
U.S.C. 801 et seq.), the Office of Information and Regulatory Affairs 
designated this action as not a ``major rule,'' as defined by 5 U.S.C. 
804(2). NHTSA will submit a rule report to each House of the Congress 
and to the Comptroller General of the United States.

List of Subjects in 49 CFR Parts 531 and 533

    Fuel economy.

Regulatory Text

    For the reasons stated in the preamble, the National Highway 
Traffic Safety Administration amends 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 December 21, 2021, in Washington, DC, under authority 
delegated in 49 CFR 1.81, 1.95, and 501.5.
Steven S. Cliff,
Deputy Administrator.
[FR Doc. 2021-28115 Filed 12-22-21; 4:15 pm]
BILLING CODE 4910-59-P