NHTSA Seeks To Repeal The Safer Affordable Fuel-Efficient Vehicles Part One: One National Program
The National Highway Traffic Safety Administration (NHTSA) issued a Notice of Proposed Rulemaking (NPRM) in the May 12, 2021 Federal Register (F.R. Vol. 86 No. 90 [Docket No. NHTSA-2021-0030]). The NPRM addresses The Safer Affordable Fuel-Efficient (SAFE) Vehicles Part One: One National Program (SAFE I Rule) which was published September 27, 2019. The SAFE I Rule codified regulatory text and made pronouncements applying to state and local laws related to fuel economy standards. The NPRM proposes to fully repeal the regulatory text and appendices in the SAFE I Rule including NHTSA interpretative statements in the preamble. This includes state Greenhouse Gas (GHG) Emissions or Zero Emissions Vehicle (ZEV) mandates.
This NPRM is issued by the NHTSA and to the extent that the Environmental Protection Agency (EPA) subsequently undertakes an action to reconsider the revocation of California's Section 209 waiver, such action would occur through a separate, independent proceeding. The NHTSA finalized the SAFE I Rule in 2019 to prevent a risk of regulatory uncertainty and disharmony resulting from an overlap in state motor vehicle GHG emissions regulations and ZEV mandates and the NHTSA's fuel economy standards.
To prevent perceived instability, the NHTSA promulgated regulations that attempted to preempt regulation of a State or a political subdivision of a State regulating or prohibiting tailpipe carbon dioxide emissions from automobiles, including state GHG standards and ZEV mandates. In the SAFE I Rule, the NHTSA described the authority for this sweeping act of preemption as primarily drawn from the NHTSA's general mandate to establish national fuel economy standards. In the same document, EPA withdrew California's then-existing waiver under the Clean Air Act, relying, in part, on the NHTSA's conclusions that those programs were preempted by Section 32919. The Final Rule was immediately challenged in Federal court by numerous stakeholders, including California.
After a comprehensive reconsideration of the SAFE I Rule, the NHTSA now has substantial doubts about whether Congress provided the NHTSA with the authority necessary to engage in legislative rulemaking to define the scope of preemption. As a result, the NHTSA proposes to repeal each of these provisions in full to ensure that its actions are unquestionably within the legally permissible boundaries of the NHTSA's authority. These actions also restore the NHTSA’s previous practice of not codifying interpretations of the Energy Policy and Conservation Act (EPCA) preemption in regulations.
Due to these concerns, the NHTSA has tentatively determined that it is appropriate to first repeal the interpretative positions, rather than to include a new interpretation in this proposal. This action enables the most efficient and streamlined removal of NHTSA's express preemption regulations. If the NHTSA finalizes its view that the express preemption regulations in Parts 531 -- Passenger Automobile Average Fuel Economy Standards and Part 533 - Light Truck Fuel Economy Standards indeed exceed the NHTSA's delegated authority, repealing these beyond legal authority regulations quickly is imperative to restore the NHTSA's regulations to their properly authorized scope, which remains NHTSA's paramount objective in this proposal. Accordingly, the NHTSA is proposing to fully withdraw any interpretative statements or views espoused in the Preambles of the SAFE I Rule to ensure that no ambiguity exists regarding whether the NHTSA continues to endorse such statements.
NHTSA requests comments on all aspects of this NPRM. Comments are due by June 11, 2021.
The NPRM is available on InterRegs.NET for our US Federal subscribers and is also available at www.selectregs.com.