NHTSA intends to fully respond to all substantive comments received
on the Draft EIS in the forthcoming Final EIS, consistent with CEQ
regulations. NHTSA received numerous public comments on the Draft EIS
that related to the revocation of California's waiver and EPCA
preemption. The following summarizes and briefly addresses those
comments.
    Multiple commenters called NHTSA's DEIS inadequate because it did
not analyze an alternative that would keep the California waiver and
regulations (as well as similar regulations adopted in the District of
Columbia and other States pursuant to section 177 of the CAA) in
place.\293\ On the other hand, one commenter noted its support for the
proposition that NHTSA is not obligated under NEPA to consider a
scenario that it believes Federal law does not permit.\294\ As
described above, NHTSA concludes that NEPA does not apply to this final
rule regarding preemption. Based on this conclusion, it is immaterial
whether NHTSA analyzed an alternative that would keep the California
waiver and regulations in place. NHTSA lacks the discretion and
authority to select such an alternative as a State or local law or
regulation related to automobile fuel economy standards is void ab
initio under the preemptive force of EPCA.
---------------------------------------------------------------------------

    \293\ Center for Biological Diversity, Earthjustice,
Environmental Law and Policy Center, Natural Resources Defense
Council, Public Citizen, Inc., Safe Climate Campaign, Sierra Club,
Southern Environmental Law Center, and Union of Concerned
Scientists, Docket No. NHTSA-2017-0069-0550; South Coast Air Quality
Management District, Docket Nos. NHTSA-2017-0069-0532 and NHTSA-
2017-0069-0497; Blanca Luevanos, Docket No. NHTSA-2017-0069-0508;
National Coalition for Advanced Transportation, Docket No. NHTSA-
2017-0069-0597; California Office of the Attorney General et al.,
Docket No. NHTSA-2017-0069-0625.
    \294\ Alliance of Automobile Manufacturers, Docket No. NHTSA-
2017-0069-0588.
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    One commenter criticized NHTSA for failing to consider the criteria
pollutant impacts of alternatives that keep the waiver in place and
that account for California's specific electricity grid.\295\ That
commenter also criticized NHTSA for not fully accounting for the
impacts to NOX emissions in the South Coast Air Basin as a
result of revoking the waiver.\296\ Another commenter noted that the
nine areas NHTSA identified as suffering from ``serious'' or
``extreme'' nonattainment conditions for ozone and PM2.5 are
located in California, even though the agencies proposed to revoke or
declare preempted the State's Clean Air Act waiver for GHG emissions
and the State's ZEV mandate.\297\ One commenter wrote that NHTSA should
consider and discuss the local impacts that preempting the ZEV mandate
would have on localities where ZEV sales are currently concentrated and
where they will likely concentrate in the future, and particularly in
California and the other States that have adopted the ZEV mandate
pursuant to section 177 of the CAA.\298\ While these comments are more
specific about identifying potential environmental impacts, these
impacts simply do not bear on the question of whether or how preemption
applies. Preemption relies solely on whether the State or local law or
regulation is ``related to fuel economy standards or average fuel
economy standards.'' Therefore, NHTSA is not obligated to analyze or
consider these environmental impacts as part of this final rule.
---------------------------------------------------------------------------

    \295\ South Coast Air Quality Management District, Docket No.
NHTSA-2017-0069-0497.
    \296\ South Coast Air Quality Management District, Docket No.
NHTSA-2017-0069-0497.
    \297\ Center for Biological Diversity, Earthjustice,
Environmental Law and Policy Center, Natural Resources Defense
Council, Public Citizen, Inc., Safe Climate Campaign, Sierra Club,
Southern Environmental Law Center, and Union of Concerned
Scientists, Docket No. NHTSA-2017-0069-0550.
    \298\ New York State Department of Environmental Conservation,
NHTSA-2017-0069-0608.
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    One commenter noted that if California's waiver is revoked, the
State would be unable to address pollution issues through adoption of
California's or its own standards, making it difficult to attain or
maintain compliance with the Clean Air Act.\299\ Another State alleged
that it depends on the criteria pollutant and air toxic emission
reduction co-benefits of the State's use of section 177 motor vehicle
emissions standards as a control strategy in its State Implementation
Plan to meet its

SIP.\300\ NHTSA disagrees with the underlying premise of the comments.
States and local governments are able to continue to encourage ZEVs in
many different ways, such as through investments in infrastructure and
appropriately tailored incentives. States and local governments cannot
adopt or enforce regulations related to fuel economy standards, which
include ZEV mandates, but they are able to address pollutants regulated
by the Clean Air Act in numerous ways that are not preempted by Federal
law. Moreover, as noted above, this action does not impact in any way
the Federal standards in place for greenhouse gas emissions from
automobiles and fuel economy standards. Since California and other
section 177 States have ``deemed'' compliance with the Federal
standards to be compliance with the State standards, this action does
not have significant environmental impacts to the quality of the human
environment. Any impacts associated with potential changes to Federal
standards are not a result of this action and are purely speculative
until the agencies finalize a change.
---------------------------------------------------------------------------

    \299\ Boulder County Public Health, Docket No. NHTSA-2017-0069-
0499.
    \300\ Oregon Department of Environmental Quality, Docket No.
NHTSA-2017-0069-0526.
---------------------------------------------------------------------------

2. Clean Air Act Conformity Requirements as Applied to NHTSA's Action
    The Clean Air Act (42 U.S.C. 7401 et seq.) is the primary Federal
legislation that addresses air quality. Under the authority of the
Clean Air Act and subsequent amendments, EPA has established NAAQS for
six criteria pollutants, which are relatively commonplace pollutants
that can accumulate in the atmosphere as a result of human activity.
The air quality of a geographic region is usually assessed by comparing
the levels of criteria air pollutants found in the ambient air to the
levels established by the NAAQS (taking into account, as well, the
other elements of a NAAQS: Averaging time, form, and indicator). These
ambient concentrations of each criteria pollutant are compared to the
levels, averaging time, and form specified by the NAAQS in order to
assess whether the region's air quality is in attainment with the
NAAQS. When the measured concentrations of a criteria pollutant within
a geographic area are below those permitted by the NAAQS, EPA
designates the region as an attainment area for that pollutant, while
areas where concentrations of criteria pollutants exceed Federal
standards (or nearby areas that contribute to such concentrations) are
designated as nonattainment areas. Former nonattainment areas that come
into compliance with the NAAQS and are redesignated as attainment are
known as maintenance areas. When EPA revises a NAAQS, each State is
required to develop and implement a State Implementation Plan (SIP) to
address how it plans to attain and maintain the new standard. Each
State with a nonattainment area is also required to submit a SIP
documenting how the region will reach attainment levels within time
periods specified in the Clean Air Act. For maintenance areas, the SIP
must document how the State intends to maintain compliance with the
NAAQS.
    No Federal agency may ``engage in, support in any way or provide
financial assistance for, license or permit, or approve'' any activity
in a nonattainment or maintenance area that does not ``conform'' to a
SIP or Federal Implementation Plan after EPA has approved or
promulgated it.\301\ Further, no Federal agency may ``approve, accept
or fund'' any transportation plan, program, or project developed
pursuant to title 23 or chapter 53 of title 49, U.S.C., in a
nonattainment or maintenance area unless the plan, program, or project
has been found to ``conform'' to any applicable implementation plan in
effect.\302\ The purpose of these conformity requirements is to ensure
that Federally sponsored or conducted activities do not interfere with
meeting the emissions targets in SIPs, do not cause or contribute to
new violations of the NAAQS, and do not impede the ability of a State
to attain or maintain the NAAQS or delay any interim milestones. EPA
has issued two sets of regulations to implement the conformity
requirements:
---------------------------------------------------------------------------

    \301\ 42 U.S.C. 7506(c)(1) and (5).
    \302\ 42 U.S.C. 7506(c)(2) and (5).
---------------------------------------------------------------------------

    (1) The Transportation Conformity Rule \303\ applies to
transportation plans, programs, and projects that are developed,
funded, or approved under title 23 or chapter 53 of title 49, U.S.C.
---------------------------------------------------------------------------

    \303\ 40 CFR part 51, subpart T, and part 93, subpart A.
---------------------------------------------------------------------------

    (2) The General Conformity Rule \304\[thinsp]applies to all other
federal actions not covered under transportation conformity. The
General Conformity Rule establishes emissions thresholds, or de minimis
levels, for use in evaluating the conformity of an action that results
in emissions increases.\305\ If the net increases of direct and
indirect emissions are lower than these thresholds, then the project is
presumed to conform and no further conformity evaluation is required.
If the net increases of direct and indirect emissions exceed any of
these thresholds, and the action is not otherwise exempt,\306\ then a
conformity determination is required. The conformity determination can
entail air quality modeling studies, consultation with EPA and state
air quality agencies, and commitments to revise the SIP or to implement
measures to mitigate air quality impacts.
---------------------------------------------------------------------------

    \304\ 40 CFR part 93, subpart B.
    \305\ 40 CFR 93.153(b).
    \306\ 40 CFR 93.153(c).
---------------------------------------------------------------------------

    This action is not developed, funded, or approved under title 23 or
chapter 53 of title 49, U.S.C. Accordingly, this action is not subject
to transportation conformity. Under the General Conformity Rule, a
conformity determination is required when a Federal action would result
in total direct and indirect emissions of a criteria pollutant or
precursor originating in nonattainment or maintenance areas equaling or
exceeding the rates specified in 40 CFR 93.153(b)(1) and (2), and the
action is not otherwise exempt. As explained below, NHTSA's action
results in neither direct nor indirect emissions as defined in 40 CFR
93.152.
    The General Conformity Rule defines direct emissions as ``those
emissions of a criteria pollutant or its precursors that are caused or
initiated by the Federal action and originate in a nonattainment or
maintenance area and occur at the same time and place as the action and
are reasonably foreseeable.'' \307\ NHTSA's action is to promulgate
regulatory text and a detailed appendix, in addition to discussing the
issue in this preamble to the rule, specifically to provide clarity on
EPCA's preemption provision in order to give already established
standards meaning, and thus is specifically exempt from general
conformity requirements.\308\ Moreover, this action would cause no
direct emissions consistent with the meaning of the General Conformity
Rule.\309\ Any changes in emissions that could occur as a result of
preemption would happen well after and in a different place from the
promulgation of this rule. Furthermore, any such changes in emissions--
especially those occurring in specific nonattainment or maintenance
areas--are not reasonably foreseeable. Any such changes are

unlikely because this action does not impact in any way the Federal
standards in place for criteria pollutant emissions from automobiles.
Further, this action does not impact the Federal standards in place for
greenhouse gas emissions from automobiles or fuel economy standards.
Since California and other section 177 States have ``deemed''
compliance with the Federal standards to be compliance with the State
standards, it is not clear that this action (as it pertains to the
State's greenhouse gas emissions standards) would result in changes to
the anticipated fleet of vehicles in those States and therefore to
criteria pollutant emissions. Any impacts associated with potential
changes to Federal standards are not a result of this action and are
purely speculative until the agencies finalize a change. Additionally,
we note California's statement in its 2013 waiver request that
``[t]here is no criteria emissions benefit from including the ZEV
proposal in terms of vehicle (tank-to-wheel or TTW) emissions. The LEV
III criteria pollutant fleet standard is responsible for those emission
reductions in the fleet . . . .'' \310\ As discussed previously, this
action clarifies that criteria pollutant standards are not preempted
unless they have a direct or substantial relationship to fuel economy
standards. California's LEV III criteria pollution standard would not
be preempted under this approach.
---------------------------------------------------------------------------

    \307\ 40 CFR 93.152.
    \308\ 40 CFR 93.153(c)(2)(iii).
    \309\ Department of Transp. v. Public Citizen, 541 U.S. 752, 772
(2004) (``[T]he emissions from the Mexican trucks are not `direct'
because they will not occur at the same time or at the same place as
the promulgation of the regulations.'').
    \310\ Docket No. EPA-HQ-OAR-2012-0562, pp. 15-16.
---------------------------------------------------------------------------

    Indirect emissions under the General Conformity Rule are ``those
emissions of a criteria pollutant or its precursors: (1) That are
caused or initiated by the Federal action and originate in the same
nonattainment or maintenance area but occur at a different time or
place as the action; (2) That are reasonably foreseeable; (3) That the
agency can practically control; and (4) For which the agency has
continuing program responsibility.'' \311\ Each element of the
definition must be met to qualify as indirect emissions. NHTSA finds
that neither of the first two criteria are satisfied for the same
reasons as presented regarding direct emissions.
---------------------------------------------------------------------------

    \311\ 40 CFR 93.152.
---------------------------------------------------------------------------

    Furthermore, NHTSA cannot practically control, nor does it have
continuing program responsibility for, any emissions that could occur
as a result of preemption. ``[E]ven if a Federal licensing, rulemaking,
or other approving action is a required initial step for a subsequent
activity that causes emissions, such initial steps do not mean that a
Federal agency can practically control any resulting emissions.'' \312\
With regard to preemption, NHTSA lacks the discretion and authority to
keep the California waiver and regulations in place, as a State or
local law or regulation related to automobile fuel economy standards is
void ab initio under the preemptive force of EPCA. NHTSA cannot be
considered to practically control or have continuing program
responsibility for emissions that could result from preemption when
that result is required by Federal statute.\313\ NHTSA also does not
have continuing program responsibility for emissions that occur in
California and other section 177 States, are regulated by the Clean Air
Act, and for which the States and local governments can continue to
address in numerous ways that do not conflict with Federal law.
---------------------------------------------------------------------------

    \312\ 40 CFR 93.152.
    \313\ See Public Citizen, 541 U.S. at 772-3.
---------------------------------------------------------------------------

    For the foregoing reasons, this action does not cause direct or
indirect emissions under the General Conformity Rule, and a general
conformity determination is not required. NHTSA will address any
responsibilities under the General Conformity Rule as it pertains to
potential changes to the fuel economy standards in the forthcoming
final rule for that action.
3. Endangered Species Act
    Under Section 7(a)(2) of the Endangered Species Act (ESA), Federal
agencies must ensure that actions they authorize, fund, or carry out
are ``not likely to jeopardize the continued existence'' of any
Federally listed threatened or endangered species or result in the
destruction or adverse modification of the designated critical habitat
of these species. 16 U.S.C. 1536(a)(2). If a Federal agency determines
that an agency action may affect a listed species or designated
critical habitat, it must initiate consultation with the appropriate
Service--the U.S. Fish and Wildlife Service (FWS) of the Department of
the Interior (DOI) and/or the National Oceanic and Atmospheric
Administration's National Marine Fisheries Service of the Department of
Commerce (together, ``the Services''), depending on the species
involved--in order to ensure that the action is not likely to
jeopardize the species or destroy or adversely modify designated
critical habitat. See 50 CFR 402.14. Under this standard, the Federal
agency taking action evaluates the possible effects of its action and
determines whether to initiate consultation. See 51 FR 19926, 19949
(June 3, 1986).
    Pursuant to Section 7(a)(2) of the ESA, the agencies have reviewed
this action and have considered applicable ESA regulations, case law,
and guidance to determine what, if any, obligations the agencies have
under the ESA. The agencies have considered issues related to emissions
of CO2 and other GHGs and issues related to non-GHG
emissions. Based on this assessment, the agencies have determined that
their actions (withdrawal of California's waiver and the final rule
regarding preemption) do not require consultation under Section 7(a)(2)
of the ESA.
a. The Agencies Lack Discretionary Authority
    NHTSA's final rule adopts regulatory text (including a detailed
appendix) regarding EPCA's preemption provision, in addition to
discussing the issue in this preamble to the rule, specifically to
provide needed clarity on that provision. The new regulatory text
provides for why any law or regulation of a State or a political
subdivision of a State regulating or prohibiting tailpipe carbon
dioxide emissions from automobiles is expressly and impliedly preempted
by EPCA. Any 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. NHTSA does not
have authority to waive any aspect of EPCA preemption no matter the
potential impacts; rather, preempted standards are void ab initio.
    EPA's action is to withdraw the waiver it had previously provided
in January 2013 to California for that State's GHG and ZEV programs
under section 209 of the Clean Air Act. This action is being undertaken
on two separate and independent grounds. First, EPA has determined EPCA
preemption renders its prior grant of a waiver for those aspects of
California's regulations that EPCA preempts invalid, null, and void,
thereby necessitating withdrawal of the waiver. Second, EPA concludes
that CAA section 209(b)(1)(B), which provides that EPA shall not issue
a waiver if California does not ``need'' separate state standards ``to
meet compelling and extraordinary conditions,'' was not intended to
allow California to promulgate State standards for emissions from new
motor vehicles designed to address global climate change problems.
Therefore, California does not meet the necessary criteria to receive a
waiver for these aspects of its program. Similar to NHTSA, these
decisions are not discretionary, but rather reflect EPA's conclusion
that EPCA preemption and the requirements

of the Clean Air Act prohibit the granting of a waiver to California.
    The Supreme Court has held that Section 7(a)(2) of the ESA and its
implementing regulations apply only to actions in which there is
discretionary Federal authority.\314\ In National Association of Home
Builders, EPA considered the requirement of Section 402(b) of the Clean
Water Act that EPA transfer certain permitting powers to State
authorities upon an application and a showing that nine specified
criteria had been met. The Court concluded that the ESA did not operate
as a ``tenth criterion.'' \315\ According to the Court: ``While the EPA
may exercise some judgment in determining whether a State has
demonstrated that it has the authority to carry out [the] enumerated
statutory criteria, the statute clearly does not grant it the
discretion to add another entirely separate prerequisite to that list.
Nothing in the text of [the statute] authorizes the EPA to consider the
protection of threatened or endangered species as an end in itself when
evaluating a transfer application.'' \316\
---------------------------------------------------------------------------

    \314\ National Ass'n of Home Builders v. Defenders of Wildlife,
551 U.S. 644, 673 (2007) (``Applying Chevron, we defer to the
Agency's reasonable interpretation of ESA [section] 7(a)(2) as
applying only to `actions in which there is discretionary Federal
involvement or control.' '' (quoting 50 CFR 402.03)).
    \315\ National Ass'n of Home Builders, 551 U.S. at 649.
    \316\ Id. at 671.
---------------------------------------------------------------------------

    The agencies believe this holding applies to the instant action as
well. As this action results from nondiscretionary authorities, the
Section 7(a)(2) implementing regulations expressly exclude them from
coverage. Neither ECPA nor the Clean Air Act include the protection of
threatened or endangered species as a consideration for the application
of preemption (which operates by statute) or the prohibition on the
granting of a waiver (under the enumerated statutory criterion in CAA
section 209(b)(1)(B)). Although there is some judgment in considering
the application of EPCA and the CAA, neither action involves the type
of discretion that would require a Section 7(a)(2) consultation by the
agencies with the Services.
b. Any Effects Resulting From the Agencies' Actions Are too Attenuated
for Consultation To Be Required
    In addition, the agencies have considered the potential effects of
this action to listed threatened or endangered species or designated
critical habitat of these species and concludes that any such effects
are too attenuated to require Section 7(a)(2) consultation. The
agencies base this conclusion both on the language of the Section
7(a)(2) implementing regulations and on the long history of actions and
guidance provided by DOI.
    The Section 7(a)(2) implementing regulations require consultation
if a Federal agency determines its action ``may affect'' listed species
or critical habitat.\317\ The Services' current regulations define
``effects of the action'' in relevant part as ``the direct and indirect
effects of an action on the species or critical habitat, together with
the effects of other activities that are interrelated or interdependent
with that action, that will be added to the environmental baseline.''
\318\ Further, they define indirect effects as ``those that are caused
by the proposed action and are later in time, but still are reasonably
certain to occur.'' \319\
---------------------------------------------------------------------------

    \317\ 50 CFR 402.14(a). The Departments of the Interior and
Commerce recently issued a final rule revising the regulations
governing the ESA Section 7 consultation process. 84 FR 44966 (Aug.
27, 2019). The new regulations take effect on September 26, 2019. As
discussed in the text above, the agencies do not believe that the
change in regulations has any effect on the agencies' analysis here.
    \318\ 50 CFR 402.02.
    \319\ Id.
---------------------------------------------------------------------------

    The Services' recently published final rule revising the definition
of ``effects of the action'' to be ``all consequences to listed species
or critical habitat that are caused by the proposed action, including
the consequences of other activities that are caused by the proposed
action. A consequence is caused by the proposed action if it would not
occur but for the proposed action and it is reasonably certain to
occur.'' \320\ In the preamble to the final rule, the Services
emphasized that the ``but for'' test and ``reasonably certain to
occur'' are not new or heightened standards.\321\ In this context,
```but for' causation means that the consequence in question would not
occur if the proposed action did not go forward . . . . In other words,
if the agency fails to take the proposed action and the activity would
still occur, there is no `but for' causation. In that event, the
activity would not be considered an effect of the action under
consultation.'' \322\ As the Services do not consider these to be
changes in their longstanding application of the ESA, these
interpretations apply equally under the existing regulations (which are
effective through September 25, 2019) and the new regulations (which
are effective beginning September 26, 2019).
---------------------------------------------------------------------------

    \320\ 50 CFR 402.02, as amended by 84 FR 44976, 45016 (Aug. 27,
2019) (effective Sept. 26, 2019).
    \321\ 84 FR at 44977 (``As discussed in the proposed rule, the
Services have applied the `but for' test to determine causation for
decades. That is, we have looked at the consequences of an action
and used the causation standard of `but for' plus an element of
foreseeability (i.e., reasonably certain to occur) to determine
whether the consequence was caused by the action under
consultation.'').
    \322\ Id.
---------------------------------------------------------------------------

    Any potential effects of this action to threatened or endangered
species or designated critical habitat would be a result of changes to
GHG or criteria air pollutant emissions. In the next section, the
agencies discuss why this action is not anticipated to result in
changes to GHG or criteria air pollutant emissions. However, even if
such changes to emissions were to occur, the agencies do not believe
resulting impacts to listed species or critical habitat satisfy the
``but for'' test or are ``reasonably certain to occur.''
    GHG emissions are relevant to Section 7(a)(2) consultation because
of the potential impacts of climate change on listed species or
critical habitat. For example, one comment to the NPRM documented the
potential impacts of climate change on federally protected species and
included a five-page table of species listed during 2006 to 2015 for
which the commenters claim climate change was a listing factor.\323\
However, the agencies believe this comment inappropriately attributes
the entire issue of climate change, including all GHG emissions no
matter which sector generated them, to NHTSA and EPA's actions.\324\ In
fact, the commenter demonstrates the very issue with doing so: There is
no ``but for'' causation associated with EPA's revocation of
California's waiver and NHTSA's final rule on preemption, as the
impacts of climate change will occur regardless of this action.
Furthermore, even if this action results in changes to GHG emissions,
such changes would be extremely small compared to global GHG emissions.
There is no scientific evidence that sufficiently ``connects the dots''
between those changes in emissions and any particular impact to a
listed species or critical habitat; thus, any impacts are not
``reasonably certain to occur.'' States (such as California) and local
governments may also continue to encourage ZEVs in numerous ways that
do not conflict with

Federal law, which may also prevent any alleged impact from these
actions.
---------------------------------------------------------------------------

    \323\ Center for Biological Diversity, Sierra Club, and Public
Citizen, Inc., Docket No. NHTSA-2018-0067-12378.
    \324\ See, e.g., 78 FR 11766, 11785 (Feb. 20, 2013) (``Without
the requirement of a causal connection between the action under
consultation and effects to species, literally every agency action
that contributes GHG emissions to the atmosphere would arguably
result in consultation with respect to every listed species that may
be affected by climate change.'').
---------------------------------------------------------------------------

    Similarly, with regard to criteria air pollutants, States are still
subject to the Clean Air Act, which requires limitations on emissions
of those pollutants. Furthermore, since California and other Section
177 States have ``deemed'' compliance with the Federal standards to be
compliance with the State standards, it is not clear that this action
would result in changes to emissions. Any impacts associated with
potential changes to Federal standards are not a result of this action
and are purely speculative until the agencies finalize a change. We
again note California's statement in its 2013 waiver request that
``[t]here is no criteria emissions benefit from including the ZEV
proposal in terms of vehicle (tank-to-wheel or TTW) emissions. The LEV
III criteria pollutant fleet standard is responsible for those emission
reductions in the fleet . . . .'' \325\ As discussed previously, this
action clarifies that criteria pollutant standards are not preempted
unless they have a direct or substantial relationship to fuel economy
standards. California's LEV III criteria pollution standard would not
be preempted under this approach, and that program's benefits are
anticipated to remain in place.
---------------------------------------------------------------------------

    \325\ Docket No. EPA-HQ-OAR-2012-0562, pp. 15-16.
---------------------------------------------------------------------------

    The agencies have also considered the long history of actions and
guidance provided by DOI. To that point, the agencies incorporate by
reference Appendix G of the MY 2012-2016 CAFE standards EIS.\326\ That
analysis relied on the significant legal and technical analysis
undertaken by FWS and DOI. Specifically, NHTSA looked at the history of
the Polar Bear Special Rule and several guidance memoranda provided by
FWS and the U.S. Geological Survey. Ultimately, FWS concluded that a
causal link could not be made between GHG emissions associated with a
proposed Federal action and specific effects on listed species;
therefore, no Section 7(a)(2) consultation would be required.
---------------------------------------------------------------------------

    \326\ Available on NHTSA's Corporate Average Fuel Economy
website https://one.nhtsa.gov/Laws-&-Regulations/CAFE-%E2%80%93-Fuel-Economy/Final-EIS-for-CAFE-Passenger-Cars-and-Light-Trucks,-Model-Years-2012%E2%80%932016.
---------------------------------------------------------------------------

    Subsequent to the publication of that Appendix, a court vacated the
Polar Bear Special Rule on NEPA grounds, though it upheld the ESA
analysis as having a rational basis.\327\ FWS subsequently issued a
revised Final Special Rule for the Polar Bear.\328\ In that final rule,
FWS provided that for ESA section 7, the determination of whether
consultation is triggered is narrow and focused on the discrete effect
of the proposed agency action. FWS wrote, ``[T]he consultation
requirement is triggered only if there is a causal connection between
the proposed action and a discernible effect to the species or critical
habitat that is reasonably certain to occur. One must be able to
`connect the dots' between an effect of a proposed action and an impact
to the species and there must be a reasonable certainty that the effect
will occur.'' \329\ The statement in the revised Final Special Rule is
consistent with the prior guidance published by FWS and remains valid
today.\330\ Ultimately, EPA and NHTSA are not able to make a causal
link for purposes of Section 7(a)(2) that would ``connect the dots''
between this action, vehicle emissions from motor vehicles affected by
this action, climate change, and particular impacts to listed species
or critical habitats. Therefore, no Section 7(a)(2) consultation is
required.
---------------------------------------------------------------------------

    \327\ In re: Polar Bear Endangered Species Act Listing and
Section 4(D) Rule Litigation, 818 F. Supp. 2d 214 (D.D.C. Oct. 17,
2011).
    \328\ 78 FR 11766 (Feb. 20, 2013).
    \329\ 78 FR at 11784-11785.
    \330\ See DOI Solicitor's Opinion No. M-37017, ``Guidance on the
Applicability of the Endangered Species Act Consultation
Requirements to Proposed Actions Involving the Emissions of
Greenhouse Gases'' (Oct. 3, 2008).
---------------------------------------------------------------------------

c. The Agencies' Actions Would Have No Effect on Listed Species and
Designated Critical Habitat
    In addition to the foregoing a Section 7(a)(2) consultation is not
required because this action will have no effect on a listed species or
designated critical habitat. This notification and final rule only
address the issues of California's waiver and preemption; they do not
set CAFE standards. Fundamentally, this action is about which sovereign
entity (i.e., the Federal government or State governments) can issue
standards that relate to fuel economy. EPCA is clear that this
authority is restricted to the Federal government. This action provides
clarity on the boundary set by Congress, as well as under principles of
implied preemption.
    As previously described, absent this action, OEMs would likely
produce more efficient vehicles for sale in California and the States
that have adopted California's standards, but the increased fuel
economy of these vehicles would likely be offset by less efficient
vehicles produced for sale in the rest of the U.S., leading to little
to no change in either fuel use or GHG emissions at a national level.
Further, as EPA and NHTSA have not finalized any action to amend the
Federal GHG and fuel economy standards that were promulgated in 2012,
California's ``deemed to comply'' provision remains operative. As OEMs
are anticipated to make use of this compliance mechanism, CARB's GHG
standards are functionally identical to Federal standards, and their
preemption would not result in additional environmental impacts. Any
impacts associated with potential changes to Federal standards are not
a result of this action and are purely speculative until the agencies
finalize a change.
    Finally, we again note California's 2013 waiver request statement
that there is no criteria emissions benefit associated with the ZEV
program because the LEV III criteria pollution standard is responsible
for those emissions reductions. This action clarifies that criteria
pollutant standards are not preempted unless they have a direct or
substantial relationship to fuel economy standards. California's LEV
III criteria pollution standard would not be preempted under this
approach. Therefore, those benefits are anticipated to remain in place.
    For the foregoing reasons, automobile emissions are not anticipated
to change as a result of this action. Even if they do, any change would
be so minimal as to be unlikely to pose any effects on a listed species
or critical habitat. Because any effect on a listed species or critical
habitat is not reasonably certain to occur, the agencies conclude that
there will be no effect on listed species or critical habitat under the
Section (7)(a)(2) implementing regulations, and no Section 7(a)(2)
consultation is required for this action.
4. National Historic Preservation Act (NHPA)
    The NHPA (54 U.S.C. 300101 et seq.) sets forth government policy
and procedures regarding ``historic properties''--that is, districts,
sites, buildings, structures, and objects included on or eligible for
the National Register of Historic Places. Section 106 of the NHPA
requires federal agencies to ``take into account'' the effects of their
actions on historic properties.\331\ The agencies conclude that the
NHPA is not applicable to this action because a rule regarding the
preemption of State laws and a decision to revoke California's waiver
are not the type of activities that have the potential to cause effects
on historic properties. This conclusion is supported by the lack of
discretion over

preemption and the underlying justification for the withdrawal of the
waiver to California, the fact that any causal relationship between
effects on historic properties as a result of emissions from the sale
and operation of motor vehicles in California and section 177 States
and this action are too attenuated, and the conclusion that impacts are
not reasonably foreseeable.\332\
---------------------------------------------------------------------------

    \331\ Section 106 is now codified at 54 U.S.C. 306108.
Implementing regulations for the Section 106 process are located at
36 CFR part 800.
    \332\ See the discussions regarding NEPA, Clean Air Act
Conformity, and the ESA.
---------------------------------------------------------------------------

5. Fish and Wildlife Conservation Act (FWCA)
    The FWCA (16 U.S.C. 2901 et seq.) provides financial and technical
assistance to States for the development, revision, and implementation
of conservation plans and programs for nongame fish and wildlife. In
addition, the Act encourages all Federal departments and agencies to
utilize their statutory and administrative authorities to conserve and
to promote conservation of nongame fish and wildlife and their
habitats. The agencies conclude that the FWCA is not applicable to this
action because it does not involve the conservation of nongame fish and
wildlife and their habitats.
6. Coastal Zone Management Act (CZMA)
    The Coastal Zone Management Act (16 U.S.C. 1451 et seq.) provides
for the preservation, protection, development, and (where possible)
restoration and enhancement of the nation's coastal zone resources.
Under the statute, States are provided with funds and technical
assistance in developing coastal zone management programs. Each
participating State must submit its program to the Secretary of
Commerce for approval. Once the program has been approved, any activity
of a Federal agency, either within or outside of the coastal zone, that
affects any land or water use or natural resource of the coastal zone
must be carried out in a manner that is consistent, to the maximum
extent practicable, with the enforceable policies of the State's
program.\333\
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    \333\ 16 U.S.C. 1456(c)(1)(A).
---------------------------------------------------------------------------

    The agencies conclude that the CZMA is not applicable to this
action because it does not involve an activity within, or outside of,
the nation's coastal zones that affects any land or water use or
natural resource of the coastal zone. This conclusion is supported by
the lack of discretion over preemption and the underlying justification
for the withdrawal of the waiver to California, the fact that any
causal relationship between effects on coastal zones as a result of
emissions from the sale and operation of motor vehicles in California
and section 177 States and this action are too attenuated, and the
conclusion that impacts are not reasonably foreseeable.\334\
---------------------------------------------------------------------------

    \334\ See the discussions regarding NEPA, Clean Air Act
Conformity, and the ESA.
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7. Floodplain Management (Executive Order 11988 and DOT Order 5650.2)
    These Orders require Federal agencies to avoid the long- and short-
term adverse impacts associated with the occupancy and modification of
floodplains, and to restore and preserve the natural and beneficial
values served by floodplains. Executive Order 11988 also directs
agencies to minimize the impact of floods on human safety, health and
welfare, and to restore and preserve the natural and beneficial values
served by floodplains through evaluating the potential effects of any
actions the agency may take in a floodplain and ensuring that its
program planning and budget requests reflect consideration of flood
hazards and floodplain management. DOT Order 5650.2 sets forth DOT
policies and procedures for implementing Executive Order 11988. The DOT
Order requires that the agency determine if a proposed action is within
the limits of a base floodplain, meaning it is encroaching on the
floodplain, and whether this encroachment is significant. If
significant, the agency is required to conduct further analysis of the
proposed action and any practicable alternatives. If a practicable
alternative avoids floodplain encroachment, then the agency is required
to implement it.
    In this action, the agencies are not occupying, modifying and/or
encroaching on floodplains. The agencies, therefore, conclude that the
Orders are not applicable to this action.
8. Preservation of the Nation's Wetlands (Executive Order 11990 and DOT
Order 5660.1a)
    These Orders require Federal agencies to avoid, to the extent
possible, undertaking or providing assistance for new construction
located in wetlands unless the agency head finds that there is no
practicable alternative to such construction and that the proposed
action includes all practicable measures to minimize harms to wetlands
that may result from such use. Executive Order 11990 also directs
agencies to take action to minimize the destruction, loss or
degradation of wetlands in ``conducting Federal activities and programs
affecting land use, including but not limited to water and related land
resources planning, regulating, and licensing activities.'' DOT Order
5660.1a sets forth DOT policy for interpreting Executive Order 11990
and requires that transportation projects ``located in or having an
impact on wetlands'' should be conducted to assure protection of the
Nation's wetlands. If a project does have a significant impact on
wetlands, an EIS must be prepared.
    In this action, the agencies are not undertaking or providing
assistance for new construction located in wetlands and conclude that
these Orders do not apply to this action.
9. Migratory Bird Treaty Act (MBTA), Bald and Golden Eagle Protection
Act (BGEPA), Executive Order 13186
    The MBTA (16 U.S.C. 703-712) provides for the protection of certain
migratory birds by making it illegal for anyone to ``pursue, hunt,
take, capture, kill, attempt to take, capture, or kill, possess, offer
for sale, sell, offer to barter, barter, offer to purchase, purchase,
deliver for shipment, ship, export, import, cause to be shipped,
exported, or imported, deliver for transportation, transport or cause
to be transported, carry or cause to be carried, or receive for
shipment, transportation, carriage, or export'' any migratory bird
covered under the statute.\335\
---------------------------------------------------------------------------

    \335\ 16 U.S.C. 703(a).
---------------------------------------------------------------------------

    The BGEPA (16 U.S.C. 668-668d) makes it illegal to ``take, possess,
sell, purchase, barter, offer to sell, purchase or barter, transport,
export or import'' any bald or golden eagles.\336\ Executive Order
13186, ``Responsibilities of Federal Agencies to Protect Migratory
Birds,'' helps to further the purposes of the MBTA by requiring a
Federal agency to develop a Memorandum of Understanding (MOU) with the
Fish and Wildlife Service when it is taking an action that has (or is
likely to have) a measurable negative impact on migratory bird
populations.
---------------------------------------------------------------------------

    \336\ 16 U.S.C. 668(a).
---------------------------------------------------------------------------

    The agencies conclude that the MBTA, BGEPA, and Executive Order
13186 do not apply to this action because there is no disturbance,
take, measurable negative impact, or other covered activity involving
migratory birds or bald or golden eagles involved in this rulemaking.
This conclusion is supported by the lack of discretion over preemption
and the reasons underlying justification for the withdrawal of the
waiver to California, the fact that any causal relationship between
effects on migratory birds or bald or golden eagles as a result of
emissions from the sale

and operation of motor vehicles in California and section 177 States
and this action are too attenuated, and the conclusion that impacts are
not reasonably foreseeable.\337\
---------------------------------------------------------------------------

    \337\ See the discussions regarding NEPA, Clean Air Act
Conformity, and the ESA.
---------------------------------------------------------------------------

10. Department of Transportation Act (Section 4(f))
    Section 4(f) of the Department of Transportation Act of 1966 (49
U.S.C. 303), as amended, is designed to preserve publicly owned park
and recreation lands, waterfowl and wildlife refuges, and historic
sites. Specifically, Section 4(f) provides that DOT agencies cannot
approve a transportation program or project that requires the use of
any publicly owned land from a public park, recreation area, or
wildlife or waterfowl refuge of national, State, or local significance,
or any land from a historic site of national, State, or local
significance, unless a determination is made that:
    (1) There is no feasible and prudent alternative to the use of
land, and
    (2) The program or project includes all possible planning to
minimize harm to the property resulting from the use.
    These requirements may be satisfied if the transportation use of a
Section 4(f) property results in a de minimis impact on the area.
    NHTSA concludes that Section 4(f) is not applicable to its final
rule here because this rulemaking is not an approval of a
transportation program or project that requires the use of any publicly
owned land.
11. Executive Order 12898: ``Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations''
    Executive Order (E.O.) 12898 (59 FR 7629 (Feb. 16, 1994))
establishes Federal executive policy on environmental justice. Its main
provision directs Federal agencies, to the greatest extent practicable
and permitted by law, to make environmental justice part of their
mission by identifying and addressing, as appropriate,
disproportionately high and adverse human health or environmental
effects of their programs, policies, and activities on minority
populations and low-income populations in the United States.
    The agencies have determined that this action will not have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations because it does not
change existing Federal standards. This conclusion is supported by the
lack of discretion over preemption and the underlying justification for
the withdrawal of the waiver to California, the fact that any causal
relationship between effects on minority or low-income populations as a
result of emissions from the sale and operation of motor vehicles in
California and section 177 States and this action are too attenuated,
and the conclusion that impacts are not reasonably foreseeable.\338\
---------------------------------------------------------------------------

    \338\ See the discussions regarding NEPA, the Clean Air Act
Conformity, and the ESA.
---------------------------------------------------------------------------

12. Executive Order 13045: ``Protection of Children From Environmental
Health Risks and Safety Risks''
    This action is not subject to E.O. 13045 (62 FR 19885, April 23,
1997) because it is not an economically significant regulatory action
as defined by E.O. 12866, and the agencies have no reason to believe
that the environmental health or safety risks related to this action
may have a disproportionate effect on children because it does not
change existing Federal standards. This conclusion is supported by the
lack of discretion over preemption and the underlying justification for
the withdrawal of the waiver to California, the fact that any causal
relationship between effects on children as a result of emissions from
the sale and operation of motor vehicles in California and section 177
States and this action are too attenuated, and the conclusion that
impacts are not reasonably foreseeable.\339\
---------------------------------------------------------------------------

    \339\ See the discussions regarding NEPA, the Clean Air Act
Conformity, and the ESA.
---------------------------------------------------------------------------

G. 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 if the head of an agency
certifies the proposal will not have a significant economic impact on a
substantial number of small entities. SBREFA amended the Regulatory
Flexibility Act to require Federal agencies to provide a statement of
the factual basis for certifying that a proposal will not have a
significant economic impact on a substantial number of small entities.
    This joint action only concern the question of preemption; the
joint action does not set CAFE or emissions standards themselves.
Further, as the California waiver withdrawal is not a rulemaking, it is
not subject to the RFA. Accordingly, only NHTSA's final rule
establishing regulatory text related to preemption is at issue in this
action. NHTSA has considered the impacts of this document under the
Regulatory Flexibility Act and certifies that this rule would not have
a significant economic impact on a substantial number of small
entities. One commenter, Workhorse Group, Inc. (Workforce), in comments
echoed by a trade association, argued that it was a small business and
would be affected the preemption provisions because it would no longer
be able to earn and sell credits under the ZEV mandates established by
California and the other 177 States. This argument is not persuasive,
as the preemption regulation has no direct effect on Workforce or any
other similar entity because it does not regulate any private entity,
but instead clarifies the agency's views on what State or local laws
are preempted. Thus, any effect on Workhorse or any other similar
entities is, at most, indirect. Any effect is even further attenuated
by the fact that small entities such as Workhorse are not even subject
to a ZEV mandate, but choose to participate in the program voluntarily.
    Additionally, in keeping with previous waiver actions, EPA's action
is not a rule as defined in the Regulatory Flexibility Act, 5 U.S.C.
601(2). Therefore, EPA has not prepared a supporting regulatory
flexibility analysis addressing the impact of this action on small
business entities. See 78 FR at 2145 (Jan. 9, 2013); 74 FR at 32784
(July 8, 2009); 73 FR at 12169 (Mar. 6, 2008).

H. Executive Order 13132 (Federalism)

    Executive Order 13132 requires federal agencies 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.'' The Order defines the term ``Policies that
have federalism implications'' 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.'' Under
the Order, agencies may not issue a regulation that has federalism
implications, that imposes substantial direct compliance costs, unless
the Federal government

provides the funds necessary to pay the direct compliance costs
incurred by State and local governments, or the agencies consult with
State and local officials early in the process of developing the
proposed regulation. The agencies complied with Order's requirements
and discuss their response to comments in the above sections.

I. Executive Order 12988 (Civil Justice Reform)

    Pursuant to Executive Order 12988, ``Civil Justice Reform,'' \340\
NHTSA has determined that this final rule does not have any retroactive
effect.
---------------------------------------------------------------------------

    \340\ 61 FR 4729 (Feb. 7, 1996).
---------------------------------------------------------------------------

J. Executive Order 13175 (Consultation and Coordination With Indian
Tribal Governments)

    This final rule does not have tribal implications, as specified in
Executive Order 13175 (65 FR 67249, November 9, 2000). This rule will
be implemented at the Federal level. Thus, Executive Order 13175 does
not apply to this rule. Two commenters raised issues associated with
this Executive Order. Issues raised in these comments related to the
standards will be addressed that forthcoming rulemaking. One commenter,
in an apparent reference to the preemption actions being finalized in
this document, argued that the NPRM would weaken tribal abilities to
set GHG standards. This is incorrect: The finalization of the EPCA
preemption provisions merely clarifies the law that any law or
regulation of a State or political subdivision of a State ``related
to'' fuel economy is preempted, while EPA's decision in this document
only affects a State, not a Tribal government.

K. Unfunded Mandates Reform Act

    Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA)
requires Federal agencies to prepare a written assessment of the costs,
benefits, and other effects of a proposed or final rule that includes 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 in any one year (adjusted for inflation with base
year of 1995). Adjusting this amount by the implicit gross domestic
product price deflator for 2016 results in $148 million (111.416/75.324
= 1.48).\341\ This final rule will not result in the expenditure by
State, local, or Tribal governments, in the aggregate, or by the
private sector of more than $148 million annually.
---------------------------------------------------------------------------

    \341\ Bureau of Economic Analysis, National Income and Product
Accounts (NIPA), Table 1.1.9 Implicit Price Deflators for Gross
Domestic Product. https://bea.gov/iTable/index_nipa.cfm.
---------------------------------------------------------------------------

L. Regulation Identifier Number

    The Department of Transportation assigns a regulation identifier
number (RIN) to each regulatory action listed in the Unified Agenda of
Federal Regulations. The Regulatory Information Service Center
publishes the Unified Agenda in April and October of each year. You may
use the RIN contained in the heading at the beginning of this document
to find this action in the Unified Agenda.

M. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement
Act (NTTAA) requires NHTSA and EPA to evaluate and use existing
voluntary consensus standards in its regulatory activities unless doing
so would be inconsistent with applicable law (e.g., the statutory
provisions regarding NHTSA's vehicle safety authority, or EPA's testing
authority) or otherwise impractical.\342\ As this action does not
affect the CAFE or GHG standards, it is not subject to the NTTAA.
---------------------------------------------------------------------------

    \342\ 15 U.S.C. 272.
---------------------------------------------------------------------------

N. Department of Energy Review

    49 U.S.C. 32902(j)(2) requires that ``Before taking final action on
a standard or an exemption from a standard under this section, the
Secretary of Transportation shall notify the Secretary of Energy and
provide the Secretary of Energy a reasonable time to comment.'' As this
action does not establish a standard or provide an exemption, it is not
subject to this requirement. However, NHTSA has submitted this action
to OMB for interagency review and, thus, the Department of Energy has
been afforded the opportunity to review.

O. Paperwork Reduction Act

    The Paperwork Reduction Act (PRA) of 1995, Public Law 104-13,\343\
gives the Office of Management and Budget (OMB) authority to regulate
matters regarding the collection, management, storage, and
dissemination of certain information by and for the Federal government.
It seeks to reduce the total amount of paperwork handled by the
government and the public. The PRA requires Federal agencies to place a
notice in the Federal Register seeking public comment on the proposed
collection of information. This action includes no information
collections. The information collections associated with the CAFE and
GHG programs will be discussed in the final rule that will establish
CAFE and GHG standards.
---------------------------------------------------------------------------

    \343\ Codified at 44 U.S.C. 3501 et seq.
---------------------------------------------------------------------------

P. Privacy Act

    In accordance with 5 U.S.C. 553(c), the agencies 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.

Q. Judicial Review

    NHTSA and EPA undertake this joint action under their respective
authorities pursuant to the Energy Policy and Conservation Act and the
Clean Air Act, mindful of the Supreme Court's statement in
Massachusetts v. EPA, 549 U.S. 497, 532 (2007), that ``there is no
reason to think the two agencies cannot both administer their
obligations and yet avoid inconsistency.'' Pursuant to Clean Air Act
section 307(b), any petitions for judicial review of this action must
be filed in the United States Court of Appeals for the D.C. Circuit by
November 26, 2019. Given the inherent relationship between the
agencies' actions, any challenges to NHTSA's regulation should also be
filed in the United States Court of Appeals for the D.C. Circuit.

List of Subjects in 49 CFR Parts 531 and 533

    Fuel economy.

Regulatory Text

    In consideration of the foregoing, under the authority of 49 U.S.C.
322, 32901, 32902, and 32903, and delegation of authority at 49 CFR
1.95, NHTSA amends 49 CFR chapter V as follows:

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
1.50.

0
2. Add Sec.  531.7 to read as follows:

Sec.  531.7  Preemption.

    (a) General. When an average fuel economy standard prescribed under
this chapter is in effect, a State or a political subdivision of a
State may not adopt or enforce a law or regulation related to fuel
economy standards or average fuel economy standards for automobiles
covered by an average fuel economy standard under this chapter.

    (b) Requirements must be identical. When a requirement under
section 32908 of title 49 of the United States Code is in effect, a
State or a political subdivision of a State may adopt or enforce a law
or regulation on disclosure of fuel economy or fuel operating costs for
an automobile covered by section 32908 only if the law or regulation is
identical to that requirement.
    (c) State and political subdivision automobiles. A State or a
political subdivision of a State may prescribe requirements for fuel
economy for automobiles obtained for its own use.

Appendix to Part 531 [Designated as Appendix A to Part 531 and Amended]

0
3. Designate the appendix to part 531 as appendix A to part 531 and in
newly designated appendix A, remove all references to ``Appendix'' and
add in their place ``Appendix A.''

0
4. Add appendix B to part 531 to read as follows:

Appendix B to Part 531--Preemption

    (a) Express Preemption:
    (1) To the extent that any law or regulation of a State or a
political subdivision of a State regulates or prohibits tailpipe
carbon dioxide emissions from automobiles, such a law or regulation
relates to average fuel economy standards within the meaning of 49
U.S.C. 32919.
    (A) Automobile fuel economy is directly and substantially
related to automobile tailpipe emissions of carbon dioxide;
    (B) Carbon dioxide is the natural by-product of automobile fuel
consumption;
    (C) The most significant and controlling factor in making the
measurements necessary to determine the compliance of automobiles
with the fuel economy standards in this part is their rate of
tailpipe carbon dioxide emissions;
    (D) Almost all technologically feasible reduction of tailpipe
emissions of carbon dioxide is achievable through improving fuel
economy, thereby reducing both the consumption of fuel and the
creation and emission of carbon dioxide;
    (E) Accordingly, as a practical matter, regulating fuel economy
controls the amount of tailpipe emissions of carbon dioxide, and
regulating the tailpipe emissions of carbon dioxide controls fuel
economy.
    (2) As a law or regulation related to fuel economy standards,
any law or regulation of a State or a political subdivision of a
State regulating or prohibiting tailpipe carbon dioxide emissions
from automobiles is expressly preempted under 49 U.S.C. 32919.
    (3) A law or regulation of a State or a political subdivision of
a State having the direct or substantial effect of regulating or
prohibiting tailpipe carbon dioxide emissions from automobiles or
automobile fuel economy is a law or regulation related to fuel
economy standards and expressly preempted under 49 U.S.C. 32919.
    (b) Implied Preemption:
    (1) A law or regulation of a State or a political subdivision of
a State regulating tailpipe carbon dioxide emissions from
automobiles, particularly a law or regulation that is not attribute-
based and does not separately regulate passenger cars and light
trucks, conflicts with:
    (A) The fuel economy standards in this part;
    (B) The judgments made by the agency in establishing those
standards; and
    (C) The achievement of the objectives of the statute (49 U.S.C.
Chapter 329) under which those standards were established, including
objectives relating to reducing fuel consumption in a manner and to
the extent consistent with manufacturer flexibility, consumer
choice, and automobile safety.
    (2) Any law or regulation of a State or a political subdivision
of a State regulating or prohibiting tailpipe carbon dioxide
emissions from automobiles is impliedly preempted under 49 U.S.C.
Chapter 329.
    (3) A law or regulation of a State or a political subdivision of
a State having the direct or substantial effect of regulating or
prohibiting tailpipe carbon dioxide emissions from automobiles or
automobile fuel economy is impliedly preempted under 49 U.S.C.
Chapter 329.

PART 533--LIGHT TRUCK FUEL ECONOMY STANDARDS

0
5. The authority citation for part 533 continues to read as follows:

    Authority:  49 U.S.C. 32902; delegation of authority at 49 CFR
1.50.

0
6. Add Sec.  533.7 to read as follows:

Sec.  533.7  Preemption.

    (a) General. When an average fuel economy standard prescribed under
this chapter is in effect, a State or a political subdivision of a
State may not adopt or enforce a law or regulation related to fuel
economy standards or average fuel economy standards for automobiles
covered by an average fuel economy standard under this chapter.
    (b) Requirements must be identical. When a requirement under
section 32908 of title 49 of the United States Code is in effect, a
State or a political subdivision of a State may adopt or enforce a law
or regulation on disclosure of fuel economy or fuel operating costs for
an automobile covered by section 32908 only if the law or regulation is
identical to that requirement.
    (c) State and political subdivision automobiles. A State or a
political subdivision of a State may prescribe requirements for fuel
economy for automobiles obtained for its own use.

Appendix to Part 533 [Designated as Appendix A to Part 533 and Amended]

0
7. Designate appendix to part 533 as appendix A to part 533 and in
newly redesignated appendix A, remove all references to ``Appendix''
and add in their place ``Appendix A''.

0
8. Add appendix B to part 533 to read as follows:

Appendix B to Part 533--Preemption

    (a) Express Preemption:
    (1) To the extent that any law or regulation of a State or a
political subdivision of a State regulates or prohibits tailpipe
carbon dioxide emissions from automobiles, such a law or regulation
relates to average fuel economy standards within the meaning of 49
U.S.C. 32919.
    (A) Automobile fuel economy is directly and substantially
related to automobile tailpipe emissions of carbon dioxide;
    (B) Carbon dioxide is the natural by-product of automobile fuel
consumption;
    (C) The most significant and controlling factor in making the
measurements necessary to determine the compliance of automobiles
with the fuel economy standards in this part is their rate of
tailpipe carbon dioxide emissions;
    (D) Almost all technologically feasible reduction of tailpipe
emissions of carbon dioxide is achievable through improving fuel
economy, thereby reducing both the consumption of fuel and the
creation and emission of carbon dioxide;
    (E) Accordingly, as a practical matter, regulating fuel economy
controls the amount of tailpipe emissions of carbon dioxide, and
regulating the tailpipe emissions of carbon dioxide controls fuel
economy.
    (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.
    (3) A law or regulation of a State or a political subdivision of
a State having the direct or substantial effect of regulating or
prohibiting tailpipe carbon dioxide emissions from automobiles or
automobile fuel economy is a law or regulation related to fuel
economy standards and expressly preempted under 49 U.S.C. 32919.
    (b) Implied Preemption:
    (1) A law or regulation of a State or a political subdivision of
a State regulating tailpipe carbon dioxide emissions from
automobiles, particularly a law or regulation that is not attribute-
based and does not separately regulate passenger cars and light
trucks, conflicts with:
    (A) The fuel economy standards in this part;
    (B) The judgments made by the agency in establishing those
standards; and
    (C) The achievement of the objectives of the statute (49 U.S.C.
Chapter 329) under which those standards were established, including
objectives relating to reducing fuel consumption in a manner and to
the extent consistent with manufacturer flexibility, consumer
choice, and automobile safety.
    (2) Any law or regulation of a State or a political subdivision
of a State regulating or prohibiting tailpipe carbon dioxide
emissions from automobiles is impliedly preempted under 49 U.S.C.
Chapter 329.

    (3) A law or regulation of a State or a political subdivision of
a State having the direct or substantial effect of regulating or
prohibiting tailpipe carbon dioxide emissions from automobiles or
automobile fuel economy is impliedly preempted under 49 U.S.C.
Chapter 329.

    Issued on September 19, 2019 in Washington, DC, under authority
delegated in 49 CFR 1.95 and 501.4
    Dated: September 19, 2019.
James C. Owens,
Acting Administrator, National Highway Traffic Safety Administration.
    Dated: September 19, 2019.
Andrew R. Wheeler,
Administrator, Environmental Protection Agency.
[FR Doc. 2019-20672 Filed 9-26-19; 8:45 am]
 BILLING CODE 4910-59-P


[Federal Register Volume 77, Number 15 (Tuesday, January 24, 2012)]
[Rules and Regulations]
[Page 3386]
[FR Doc No: 2012-1229]

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DEPARTMENT OF COMMERCE

Bureau of Industry and Security

15 CFR Parts 740, 742 and 774

[Docket No. 110825537-2038-02]
RIN 0694-AF38

Export and Reexport License Requirements for Certain Microwave
and Millimeter Wave Electronic Components: Correction

AGENCY: Bureau of Industry and Security, Commerce.

ACTION: Final rule: Correction.

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SUMMARY: This correction adds a compliance date of February 9, 2012, to
a final rule published on January 9, 2012 (77 FR 1017). That final rule
imposed a license requirement on exports and reexports to all
destinations other than Canada of two types of microwave and millimeter
wave electronic components. The two components are packaged high
electron mobility transistors and packaged microwave ``monolithic
integrated circuits'' power amplifiers that meet certain criteria with
respect to frequency range, size and output power. BIS is publishing
this correction to make sure exporters and reexporters have sufficient
time to comply with the rule.

DATES: Effective date: January 24, 2012.
    Compliance date: All exports and reexports on or after February 9,
2012, for which the rule published at 77 FR 1017, January 9, 2012,
creates a new license requirement must be in compliance with the terms
of that rule.

FOR FURTHER INFORMATION CONTACT: William Arvin, Regulatory Policy
Division, Office of Exporter Services,<PHONE_NUMBER>,
<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: On January 9, 2012, BIS published a final
rule imposing a license requirement on exports and reexports to all
destinations other than Canada of two types of microwave and millimeter
wave electronic components (77 FR 1017, January 9, 2012, FR Doc. 2012-
135). The two components are packaged high electron mobility
transistors (HEMT) and packaged microwave ``monolithic integrated
circuits'' (MMIC) power amplifiers that meet certain criteria with
respect to frequency range, size and output power. That rule was
effective upon publication and did not provide for any delay in
compliance. This correction adds a compliance date of February 9, 2012,
to provide time for exporters and reexporters upon whom this rule
imposes a new license requirement to apply for any necessary licenses.
This correction makes no other changes to the rule.

Bernard Kritzer,
Director, Office of Exporter Services.
[FR Doc. 2012-1229 Filed 1-23-12; 8:45 am]
BILLING CODE 3510-33-P