[Federal Register Volume 74, Number 53 (Friday, March 20, 2009)]
[Notices]
[Pages 11993-11994]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-6061]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration


Corporate Average Fuel Economy Standards; Effect Upon State Laws 
and Regulations

AGENCY: National Highway Traffic Safety Administration (NHTSA), 
Department of Transportation (DOT).

ACTION: Notice of intent.

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SUMMARY: In a notice of proposed rulemaking published on May 2, 2008, 
proposing Corporate Average Fuel standards for model years 2011-2015, 
NHTSA set forth its previously stated view regarding preemption under 
the Energy Policy and Conservation Act of State standards regulating 
carbon dioxide emissions from motor vehicle tailpipes and proposed to 
include a summary statement of those views in the Code of Federal 
Regulations. However, in a January 26, 2009 memorandum requesting that 
NHTSA complete its rulemaking in two phases, the President further 
requested the agency to reconsider its views. In accordance with that 
request, NHTSA will re-examine the issue of preemption in the context 
of its forthcoming rulemaking to establish Corporate Average Fuel 
Economy standards for model year 2012 and later years.

FOR FURTHER INFORMATION CONTACT: Stephen P. Wood, Acting Chief Counsel, 
National Highway Traffic Safety Administration, U.S. Department of 
Transportation, 1200 New Jersey Ave., SE., Washington, DC 20590.

SUPPLEMENTARY INFORMATION: The Energy Independence and Security Act 
(EISA) amended the Energy Policy and Conversation Act (EPCA) by 
mandating that the model year (MY) 2011-2020 Corporate Average Fuel 
(CAFE) standards be set sufficiently high to ensure that the industry-
wide average of all new passenger cars and light trucks, combined, 
reaches not less than 35 miles per gallon by MY 2020. NHTSA published a 
notice of proposed rulemaking (NPRM) on May 2, 2008 to begin 
implementing the EISA mandate by establishing CAFE standards for MYs 
2011-2015.\1\ In the proposal, NHTSA set forth its previously stated 
view that State standards regulating carbon dioxide emissions from 
motor vehicle tailpipes are expressly and impliedly preempted and 
proposed to include a summary of that conclusion and the

[[Page 11994]]

underlying reasoning in the Code of Federal Regulations.
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    \1\ 73 FR 24352.
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    On January 26, 2009, President Obama issued a memorandum concerning 
the completion of the rulemaking.\2\ In light of the requirement in 
EPCA to prescribe CAFE standards for 18 months in advance,\3\ i.e., by 
March 30, 2009 for MY 2011, and in order to provide additional time to 
obtain new information and consider anew the appropriate approach to 
establishing future CAFE standards, the President requested NHTSA to 
complete its rulemaking in two phases: (1) standards for MY 2011, and 
(2) standards for MY 2012 and beyond. The President further requested 
that NHTSA consider, as part of both phases, whether any provisions 
regarding preemption are consistent with the EISA, the Supreme Court's 
decision in Massachusetts v. EPA and other relevant provisions of law 
and the policies underlying them.
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    \2\ The memorandum is available at: http://www.whitehouse.gov/the_press_office/The_Energy_Independence_and_Security_Act_of_2007/ (last accessed March 12, 2009).
    \3\ 49 U.S.C. 32902(a).
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    Massachusetts v. EPA,\4\ was a case involving a 2003 order of the 
Environmental Protection Agency (EPA) denying a petition for rulemaking 
to regulate greenhouse gas emissions from motor vehicles under the 
Clean Air Act.\5\ The Court ruled that greenhouse gases are 
``pollutants'' under the Clean Air Act and that the Act therefore 
authorizes EPA to regulate greenhouse gas emissions from motor vehicles 
if that agency makes the necessary findings and determinations under 
section 202 of the Act.
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    \4\ 549 U.S. 497 (2007).
    \5\ 68 FR 52922 (September 8, 2003).
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    The Court considered EPCA briefly, stating

    [T]hat DOT sets mileage standards in no way licenses EPA to 
shirk its environmental responsibilities. EPA has been charged with 
protecting the public's ``health'' and ``welfare,'' 42 U.S.C. Sec.  
7521(a)(1), a statutory obligation wholly independent of DOT's 
mandate to promote energy efficiency. See Energy Policy and 
Conservation Act, Sec.  2(5), 89 Stat. 874, 42 U.S.C. Sec.  6201(5). 
The two obligations may overlap, but there is no reason to think the 
two agencies cannot both administer their obligations and yet avoid 
inconsistency.

549 U.S. at 537.

    In keeping with the President's remarks on January 26 regarding the 
need for new national policies to address the closely intertwined 
issues of energy independence, energy security and climate change, and 
for the initiation of serious and sustained domestic and international 
action to address them, NHTSA will develop CAFE standards for MY 2012 
and beyond after collecting new information, conducting a careful 
review of technical and economic inputs and assumptions and standard 
setting methodology. It is reasonable to anticipate that this process 
will lead to changes, given the further review and analysis that will 
be conducted pursuant to the President's request, and given the steady 
evolution in technical and policy factors potentially relevant to the 
next CAFE rulemaking. NHTSA may consider numerous factors, including, 
but not limited to, energy and climate change needs and policy choices 
regarding goals and approaches to achieving them, developments in 
domestic legislation and international negotiations regarding those 
goals and approaches, technologies for reducing fuel consumption, the 
capacity and condition of the automotive industry, fuel prices, and 
climate change science and damage valuation.
    The goal of the review and re-evaluation will be to ensure that the 
approach used for MY 2012 and thereafter produces CAFE standards that 
contribute, to the maximum feasible extent, consistent with the legal 
requirements of EPCA/EISA, to meeting the energy and environmental 
challenges and goals outlined by the President. We intend to craft our 
program with the goal of creating the maximum incentives for 
innovation, providing reasonable flexibility to the regulated parties, 
and meeting the goal of making substantial and continuing reductions in 
the consumption of fuel sufficient to achieve at least 35 mpg not later 
than model year 2020. To that end, we are committed to ensuring that 
the CAFE program for beyond MY 2011 is based on the best scientific, 
technical, and economic information available, and that such 
information is developed in close coordination with the Environmental 
Protection Agency, Department of Energy and other federal agencies and 
our stakeholders, including the public and the vehicle manufacturers.
    In response to the President's request that NHTSA consider whether 
any provisions regarding preemption are consistent with EISA, the 
Supreme Court's decision in Massachusetts v. EPA and other relevant 
provisions of law and the policies underlying them, NHTSA is 
reconsidering its views regarding preemption under EPCA of state 
standards regulating motor vehicle tailpipe emissions of carbon 
dioxide. Accordingly, the agency will neither include any discussion of 
preemption in the preamble to forthcoming final rule establishing CAFE 
standards for MY 2011 nor include any provisions addressing preemption 
in the amendments made by that rule to the Code of Federal Regulations. 
This course of action will permit the agency to address the issue of 
preemption in a deliberate, comprehensive manner in the context of its 
forthcoming rulemaking to establish CAFE standards for 2012 and later 
model years.

    Issued on: March 16, 2009.
Stephen R. Kratzke,
Associate Administrator for Rulemaking.
[FR Doc. E9-6061 Filed 3-17-09; 4:15 pm]
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