Concerns About the Process Used for the SAFE Vehicles Rule Demonstrate the Need for a Policy on EPA’s Role in Joint Rulemakings

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Although the EPA and NHTSA jointly issued the SAFE Vehicles Rule, the agencies’ technical personnel did not collaborate during final rule development, undercutting the joint character of the rulemaking. Furthermore, the EPA did not follow its established process for developing regulatory actions, did not complete major Action Development Process milestones, or did not document who decided to skip these milestones and why. In addition, NHTSA performed all major technical assessments for the rule, while the role of EPA technical personnel was limited to providing advisory input to NHTSA for some aspects of the analysis. The EPA did not conduct a separate analysis related to executive orders on the impacts of modified standards on vulnerable populations.

Former EPA Administrator Scott Pruitt decided that the SAFE Vehicles Rule would be based solely on NHTSA modeling and analysis and that NHTSA would draft the majority of the preamble text. One senior EPA official cited NHTSA’s statutory deadline for establishing its standards as the impetus for its lead role in developing the rulemaking. This approach bypassed aspects of the EPA’s normal rulemaking process. It also diverged from the more collaborative precedent set by the agencies’ prior joint rulemakings, as well as circumvented Office of Air and Radiation technical personnel feedback prior to the final rule being circulated for interagency review. Furthermore, technical personnel were confused about the proper contents of the docket, and congressional and tribal stakeholders raised transparency concerns after the final rule was published. While joint rulemaking is infrequent, the process should be improved by clearly defining the EPA’s responsibilities when working with a partner agency.

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