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OFFICE OF INSPECTOR GENERAL
Operating efficiently and effectively
Concerns About the Process
Used for the SAFE Vehicles
Rule Demonstrate the Need
for a Policy on EPA's Role in
Joint Rulemakings
Report No. 21-E-0125
April 20, 2021

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Report Contributors:
Patrick Gilbride
Erin Barnes-Weaver
Allison Krenzien
Fred Light
Abbreviations
ADP
Action Development Process
CAA
Clean Air Act
CAFE
Corporate Average Fuel Economy
EPA
U.S. Environmental Protection Agency
GAO
U.S. Government Accountability Office
GHG
Greenhouse Gas
NHTSA
National Highway Traffic Safety Administration
OAR
Office of Air and Radiation
OGC
Office of General Counsel
OIG
Office of Inspector General
OMB
Office of Management and Budget
OP
Office of Policy
Pub. L.
Public Law
SAFE
Safer Affordable Fuel-Efficient
U.S.C.
United States Code
Cover Photo: Some vehicles are subject to the Safer Affordable Fuel-Efficient Vehicles Rule
for Model Years 2021-2026 Passenger Cars and Light Trucks. (EPA photo)
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U.S. Environmental Protection Agency
Office of Inspector General
At a Glance
21-E-0125
April 20, 2021
Why We Did This Evaluation
We conducted this evaluation
to determine whether the
U.S. Environmental Protection
Agency's actions on the final
Safer Affordable Fuel-Efficient
Vehicles Rule for Model Years
2021-2026 Passenger Cars
and Light Trucks were
consistent with requirements
pertaining to transparency,
record keeping, and docketing
and followed the EPA's process
for developing final regulatory
actions.
The EPA and the National
Highway Traffic Safety
Administration finalized the
SAFE Vehicles Rule on
April 30, 2020. The agencies
have different statutory
authorities for vehicle rules
related to greenhouse gas
emissions and fuel-economy
standards.
This evaluation addresses the
following:
•	Operating efficiently and
effectively.
This evaluation addresses these
top EPA management challenges
•	Complying with key internal
control requirements (data
quality; policies and
procedures).
•	Integrating and leading
environmental justice.
Address inquiries to our public
affairs office at (202) 566-2391 or
OIG WEBCOMMENTS@epa.gov.
List of OIG reports.
Concerns About the Process Used for the SAFE
Vehicles Rule Demonstrate the Need for a Policy on
EPA's Role in Joint Rulemakings
What We Found
The EPA's actions in
the final SAFE Vehicles
Rule undercut the
rule's quality.
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.
Recommendations and Planned Agency Corrective Actions
We recommend that the Office of Air and Radiation docket its interpretation of
whether the EPA docket for Clean Air Act joint rulemaking actions reflects that
the partner agency is an "other agency" for purposes of the Act's docketing
requirements. We recommend that the Office of Air and Radiation and the
general counsel docket any comments generated by the EPA and NHTSA during
interagency review from January 14, 2020, to March 30, 2020. We recommend
that the Office of Air and Radiation and the Office of Policy document decisions
regarding Action Development Process milestones and determine the EPA's role
in joint rulemakings, including addressing executive orders on children's health,
tribal consultation, and environmental justice. One recommendation is resolved
with corrective actions pending, while three recommendations are unresolved.

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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
THE INSPECTOR GENERAL
April 20, 2021
MEMORANDUM
SUBJECT: Concerns About the Process Used for the SAFE Vehicles Rule Demonstrate the Need for
a Policy on EPA's Role in Joint Rulemakings
Report No. 21-E-0125
This is our report on the subject evaluation conducted by the Office of Inspector General of the
U.S. Environmental Protection Agency. The project number for this evaluation was QA&E-FY20-0269.
This report contains findings that describe the problems the OIG has identified and corrective actions the
OIG recommends. Final determinations on matters in this report will be made by EPA managers in
accordance with established audit resolution procedures.
The Offices of Policy and Air and Radiation are responsible for issues discussed in this report.
In accordance with EPA Manual 2750, the Office of Air and Radiation provided acceptable planned
corrective actions and estimated milestone dates for Recommendation 3. This recommendation is
resolved.
Action Required
Recommendations 1, 2, and 4 are unresolved. The resolution process, as described in the EPA's Audit
Management Procedures, begins immediately with the issuance of this report. Furthermore, we request a
written response to the final report within 60 days of this memorandum. Your response will be posted on
the OIG's website, along with our memorandum commenting on your response. Your response should be
provided as an Adobe PDF file that complies with the accessibility requirements of Section 508 of the
Rehabilitation Act of 1973, as amended. The final response should not contain data that you do not want
to be released to the public; if your response contains such data, you should identify the data for redaction
or removal along with corresponding justification.
We will post this report to our website at www.epa.gov/oig.
FROM: Sean W. O'Donnell
TO:
Victoria Arroyo, Associate Administrator for Policy
Office of the Administrator
Joseph Goffman, Acting Assistant Administrator
Office of Air and Radiation
cc: Melissa Hoffer, Acting General Counsel

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Concerns About the Process Used for	21-E-0125
the SAFE Vehicles Rule Demonstrate the Need for
a Policy on EPA's Role in Joint Rulemakings
Table of Contents
Chapters
1	Introduction		1
Purpose		1
Background		1
Responsible Offices		8
Scope and Methodology		8
2	Final SAFE Vehicles Rule Concerns Indicate Improvements
Needed for Developing Joint Rules		10
EPA and NHTSA Technical Personnel Did Not Collaborate		11
Final SAFE Rule Did Not Follow the ADP, Including Assessing
Potential Impacts on Vulnerable Populations		12
Not Following the ADP Created Concerns on Record Keeping,
Docketing, and Final Rule Text Changes		13
Conclusion		18
Recommendations		18
Agency Response and OIG Assessment		19
Status of Recommendations and Potential Monetary Benefits		21
Appendices
A Agency Response to Draft Report	 22
B Distribution	 26

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Chapter 1
Introduction
Purpose
The Office of Inspector General
conducted this evaluation to
determine whether the actions
of the U.S. Environmental
Protection Agency on the final
Safer Affordable Fuel-Efficient
Vehicles Rule for Model
Years 2021-2026 Passenger
Cars and Light Trucks, known
as the SAFE Vehicles Rule,
were consistent with requirements pertaining to transparency, record keeping, and
docketing, and followed the EPA's process for developing final regulatory
actions.
Background
The EPA is charged with regulating greenhouse gas, or GHG, emissions from
new motor vehicles as air pollutants under Section 202(a) of the Clean Air Act,
42 U.S.C. § 7521(a). In 2009, then-President Barack Obama announced the
National Fuel Efficiency Policy to establish a harmonized national program of
new standards for light-duty vehicles that reduce GHG emissions and improve
fuel economy. Consistent with that policy, the EPA and the U.S. Department of
Transportation's National Highway Traffic Safety Administration, or NHTSA,
published their first joint rulemaking in 2010. During the promulgation of that
rulemaking, the U.S. Government Accountability Office reviewed the process
being used by both agencies and recommended that the agencies formalize the
process. The EPA agreed with the recommendations, but we found no internal or
external guidance formalizing the process for promulgating a joint rulemaking.
Regardless of whether the EPA coordinates with another agency to develop and
issue a rulemaking, the EPA is the exclusive agency charged with implementing
Section 202(a) of the CAA. The EPA's Action Development Process ensures that
Agency rulemaking actions "are of consistently high quality," according to the
EPA's Action Development Process: Guidance for EPA Staff on Developing
Quality Actions (March 2018), also known as the A DP Guidance. The A DP
Guidance notes that "much of the EPA's environmental success and
organizational credibility is directly linked to the quality of' the EPA's regulation
development. In light of the EPA's statutory charge and the stated importance of
developing quality regulations, internal regulatory development guidance is
Top Management Challenges
This evaluation addresses the following top
management challenges for the Agency, as identified
in OIG Report No. 20-N-0231. EPA's FYs 2020-2021
Top Management Challenges, issued July 21, 2020:
•	Complying with key internal control
requirements (data quality; policies and
procedures).
•	Integrating and leading environmental justice.
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equally relevant in the joint rulemaking context as it is in rulemakings exclusive
to the EPA.
GHG and Vehicle Fuel Economy Standards
Federal standards regulate the GHG emissions from and the fuel economy of new
passenger cars and light trucks. These standards include the light-duty vehicle
GHG emission standards promulgated by the EPA and the Corporate Average
Fuel Economy, or CAFE, standards promulgated by NHTSA (Table 1).
Table 1: GHG and CAFE Standards
GHG standards
Congress designed the CAA to protect public health and welfare
from different types of air pollution caused by a diverse array of
pollution sources. In addition, Congress drafted the Act with
general authorities that can be used to address pollution problems
that emerge overtime. The April 2007 Supreme Court decision in
Massachusetts v. EPA held that the EPA has the authority under
Section 202(a)(1) of the CAA, 42 U.S.C. § 7521(a)(1), to regulate
GHG emissions from new motor vehicles as air pollutants.
CAFE standards
The Energy Policy and Conservation Act directs NHTSA to set the
"maximum feasible" average fuel economy level, taking into
account four statutory factors—technological feasibility, economic
practicability, the effect of other government standards on fuel
economy, and the need of the nation to conserve energy. NHTSA
has discretion over how to balance these factors. In 2007,
Congress enacted the Energy Independence and Security Act of
2007 (Pub. L. 110-140), which amended the Energy Policy and
Conservation Act and mandated phasing in increased CAFE
standards to reach 35 miles per gallon for passenger cars and light
trucks by 2020. Beginning with model year 2011, the Energy
Independence and Security Act mandated NHTSA to consult with
both the EPA and the U.S. Department of Energy when prescribing
CAFE standards.
Source: OIG summary of GHG and CAFE standards. (EPA OIG table)
Joint Rulemaking History
Since 2010, the EPA has worked jointly with NHTSA on five rulemakings to
align GHG standards with CAFE standards. Three of these rulemakings, including
the SAFE Vehicles Rule, have pertained to passenger cars and light trucks.
After the proposal phase of the first joint rulemaking in 2010 (Figure 1), the GAO
reviewed, among other items, the design of the standards that NHTSA and the
EPA proposed and how the two agencies collaborated to set standards. The GAO
noted that NHTSA and the EPA shared resources and expertise to jointly set
CAFE and GHG standards. As a result of these efforts, the GAO concluded that
each agency had significant input into the development of both sets of standards.
The GAO recommended NHTSA and the EPA document and publish the process
used in the joint rulemaking to establish a roadmap for any future rulemaking
efforts, facilitate future collaboration, and increase transparency. The GAO also
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recommended that NHTSA and the EPA enter into a Memorandum of
Understanding in which the agencies agree to continue their enhanced partnership
in any future CAFE and GHG rulemakings. NHTSA and the EPA agreed with the
recommendations and committed to working together to document their
collaborative rule development process. Documents indicate that the agencies
developed a draft response with several practices for joint and coordinated work.
The GAO's website shows these recommendations as closed upon
implementation.
Despite not formalizing a process for joint rulemaking, the agencies worked
collaboratively on another passenger car and light trucks rulemaking in 2017
(Figure 1), as well as on heavy-duty vehicle rulemakings, prior to the final SAFE
Vehicles Rule published in 2020.
Figure 1: Events surrounding three joint rulemakings on passenger cars and light trucks
Supreme Court decision in
Massachusetts v. EPA holds
that the EPA has authority to
regulate GHGs.
April 2007
FoHowing the rule proposal
phase, the GAO reviewed the
EPA's and NHTSA's
partnership for their first joint
rulemaking and recommended
formalizing their process.
February 2010
The EPA and NHTSA issued a
joint rulemaking for CAFE and
GHG emission standards. The
rule implemented a 3.5 percent
increase for GHG emissions
standards each year from
model years 2017-2021, then 5
percent each year from model
years 2022-2025.
October 2012
May 2009
President Obama announced
the National Fuel Efficiency
Policy, which called for
collaboration between
NHTSA, the EPA, and others
to establish a national
program to implement fuel
efficiency standard changes.
At the president's
direction, the EPA
announced its intention to
reconsider the Final
Determination and said
that the standards set for
model years 2022-2025
were no longer
appropriate.
March 2017
May 2010
The EPA and NHTSA
issued their first joint
rulemaking for GHG
emission standards
and CAFE standards
to apply in model
years 2012-2016. The
rule increased GHG
emission standards by
5 percent per year.
January 2017
The EPA completed a
midterm evaluation of
previous standards to apply
in model years 2022-2025. In
its Final Determination, the
EPA said that the standards
were appropriate and that
changes via a rulemaking
were not warranted.
April 2020
The EPA and NHTSA
issued the final SAFE
Vehicles Rule, which sets
the stringency of CAFE and
GHG emission standards at
a 1.5 percent increase each
year from model years
2021-2026 instead of the 5
percent per year as in the
prior joint rulemaking.
Source: OIG summary. (EPA OIG image)
Note: Green boxes denote joint rulemakings on passenger cars and light trucks between the EPA and NHTSA.
EPA's Regulatory Development
The EPA is one of the most active regulatory
agencies in the federal government, and writing
regulations is one of the most significant tools the
EPA has to protect human health and the
environment. The EPA designed its ADP over
30 years ago to equip rule writers with the tools
necessary to write a regulation. Per the ADP
Guidance, the ADP serves as a comprehensive
framework to ensure the use of quality information
to support EPA actions and an open process for
action development.
Developing environmental
regulations is one of the
Agency's principal tasks, and
much of the EPA's
environmental success and
organizational credibility is
directly linked to the quality
of this work.
— EPA's ADP Guidance
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The ADP includes four major milestones typically required for complex actions,
such as the final SAFE Vehicles Rule:
•	Early Guidance. Initial direction from senior management, including
policy priorities and expectations of the workgroup.
•	Analytical Blueprint. A workgroup's plan for conducting analyses to
support action development.
•	Options Selection. Identification of significant issues by the workgroup,
as well as identification of a range of options to resolve each issue. Senior
management then decides which options would best achieve the goals of
the action.
•	Final Agency Review. The last point for internal EPA review of an
action, which confirms that all issues have been resolved or elevated for
resolution. The action package is ready for Office of Management and
Budget review, if required, or signature, if the workgroup decides that all
EPA and external requirements have been met.
The ADP Guidance encourages using a staff workgroup to share information and
draft the key rulemaking materials associated with the milestones or to seek
waivers for individual milestones if the workgroup agrees the milestone is not
needed. While the ADP is the EPA's established process for developing actions,
neither the ADP Guidance nor any other internal guidance defines joint
rulemaking or describes how to approach action development in a joint
rulemaking context.
The lead EPA program office conducting the rulemaking spearheads action
development and charters the workgroup. The Office of Air and Radiation was
the lead EPA program office for the final SAFE Vehicles Rule and the prior joint
rulemakings with NHTSA. According to theADP Guidance, the Office of
General Counsel should participate in the development of rules, such as the SAFE
Vehicles Rule, that may require extensive cross-agency involvement, new
science, or nonroutine application of existing science or that have the potential for
precedent-setting implementation issues, policy implications, or economic
considerations.
The associate administrator of the EPA's Office of Policy oversees the ADP, and
staff within the OP's Office of Regulatory Policy and Management manages the
process for the Agency and the day-to-day operations and information systems
that underpin the process. The Office of Regulatory Policy and Management helps
to ensure that the EPA uses the most appropriate analytic information to
determine regulatory policy, serves as the liaison to other federal agencies for all
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actions, and manages ADP infrastructure such as the tracking system described
below.
The ADP includes a Regulatory Steering Committee, which is a standing body
with representation from each program office and region, the OGC, and cross-
media offices such as the EPA's Office of Children's Health Protection. The ADP
Guidance requires that program offices evaluate impacts on children's health and
environmental justice communities. Similarly, theADP Guidance requires the
lead program office to identify key external stakeholders, including tribal
governments, and make plans for appropriate consultation.
Executive Orders and Rulemaking
Several executive orders play a central role in federal regulatory development.
Specifically, the EPA is charged with administering all or part of the
executive orders in Table 2.
Table 2: Executive orders pertaining to federal regulatory development

Provides that significant regulatory actions be submitted
for interagency review to the OMB and that comments by
the OMB or other agencies are addressed.
After the publication of an action, the federal agency
promulgating the action and the OMB make available to
the public certain documents and information related to
the action and interagency review exchanged between
them during interagency review. All documents submitted
regulations signed by the EPA administrator must be
included in the EPA's ADP tracking database.
Executive Order 12898,
Federal Actions to
Address Environmental
Justice in Minority
Populations and Low-
Income Populations,
February 11, 1994
Focuses federal attention on the environmental and
human health effects of federal actions on minority and
low-income populations with the goal of achieving
environmental protection.
Executive Order 13045
Protection of Children
From Environmental
Health Risks and Safety
Risks, April 21, 1997

Executive Order 13175,
Consultation and
Coordination with Indian
Tribal Governments,
November 6, 2000
Applies to rules with tribal implications and states that, to
the extent practicable and permitted by law, the Agency
cannot promulgate some rules unless certain conditions
are met.
Consultation with tribal officials is required when
agencies are developing policies that have "substantial
direct effects" on tribes and tribal interests.
Source: EPA summary of executive orders. (EPA OIG table)
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A significant regulatory action, as defined by Executive Order 12866, is any
action that is likely to result in a rule that may:
•	Have an annual effect on the economy of $100 million or more
or adversely affect, in a material way:
o	The economy,
o	A sector of the economy,
o	Productivity,
o	Competition,
o	Jobs.
o	The environment,
o	Public health or safety.
o	State, local, or tribal governments or communities.
•	Create a serious inconsistency or otherwise interfere with an action
taken or planned by another agency.
•	Materially alter the budgetary impact of entitlements, grants, user
fees, loan programs, or the rights and obligations of recipients thereof.
•	Raise certain novel legal or policy issues.
Economically significant regulatory actions are a subset of significant
regulatory actions that meet the first criteria. These regulatory actions require
a more detailed assessment of the likely benefits and costs, as well as a similar
analysis of potentially effective and reasonably feasible alternatives. Per
Executive Order 12866, the final SAFE Vehicles Rule is an economically
significant regulatory action.
Rulemaking Record Keeping and Tracking
The Federal Records Act, 44 U.S.C. § 3101, requires agencies to make and
preserve records containing adequate and proper documentation of their
decisions. Guidelines from the National Archives and Records Administration
define characteristics of trustworthy records. Additionally, Section 6.2 of the
EPA's Interim Records Management Policy requires the Agency to document
the formulation and execution of basic policies and decisions.
The EPA developed the ADP Tracker system in 2012 to help the Agency
manage and track rulemaking actions, milestones, workgroups, and workflow.
While the OP oversees the tracking system as the overall process manager for
the ADP, the OP shares system data entry with program offices. According to
the 2013 ADP Tracker data entry guidance, the lead office for developing an
action is ultimately responsible for the accuracy, consistency, and
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completeness of the data in the ADP Tracker. The OP is responsible for
entering process management data, items for which it is the decision-maker,
and interactions with the OMB. Additionally, a 2013 memorandum to the
EPA's Regulatory Steering Committee specified that lead program office staff
are required to upload key documents supporting the four major ADP
milestones. In 2018, then-Acting Administrator Andrew Wheeler emphasized
timely and accurate reporting in the Agency's regulatory management system
in an internal Agency memorandum.
In addition to the ADP Tracker, the EPA maintains email records on
rulemakings in the Agency's Capstone system. Under Capstone, Agency
employees have 90 days from the date an email is created or received to delete
or "cull" any junk or personal email no longer needed. After the 90-day
culling period, employees' emails will be preserved for ten years and then
deleted, unless subject to a litigation hold or other preservation obligation.
Additionally, emails created or received by senior leaders, such as assistant
and deputy assistant administrators, designated as Capstone officials are saved
as permanent records and then transferred to the National Archives and
Records Administration after 15 years.
Docketing
A rulemaking docket typically contains materials relating to each stage or
phase in the development of a rule. The EPA's rulemaking dockets include
paper and electronic documents that form the basis of the EPA's decisions in
proposing, amending, repealing, or promulgating a rule. Specific docketing
requirements apply to certain actions under Section 307(d) of the CAA.
Among other things, this provision addresses the location of dockets, public
availability of docket materials, and the materials to be included in dockets.
The provision also specifies that the "promulgated rule may not be based ...
on any information or data which has not been placed in the docket as of the
date of such promulgation."
Additionally, for any rulemaking sent to the OMB for review under Executive
Order 12866, the agency must identify and make available to the public
(1) the draft regulation and certain other documents sent to the OMB for
review, such as certain analyses and assessments; (2) the substantive changes
between the draft regulation sent to the OMB for review and the regulation
subsequently announced; and (3) the changes made at the suggestion or
recommendation of the OMB. The EPA implements these provisions by
placing the materials in the rulemaking docket.
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The documents in a rulemaking docket may include but are not limited to:
•	Regulatory text.
•	Background documents.
•	Information received from members of the public.
•	Supporting materials for statutory and executive order reviews, such as
a Regulatory Impact Analysis, which is required for economically
significant rules per Executive Order 12866.
According to EPA docketing guidance, a rulemaking docket should generally not
include documents containing predecisional, deliberative information, or
communications, unless such information is included in the scope of material to
be docketed pursuant to Section 307(d) of the CAA or Executive Order 12866.
Responsible Offices
The OP and the OAR are responsible for the issues discussed in this report.
Scope and Methodology
We conducted this evaluation from August 2020 to March 2021 in accordance
with the Quality Standards for Inspection and Evaluation published in
January 2012 by the Council of the Inspectors General on Integrity and
Efficiency. Those standards require that we perform the evaluation to obtain
sufficient, competent, and relevant evidence to provide a reasonable basis for our
findings, conclusions, and recommendations based on our objectives. We believe
that the evidence obtained provides a reasonable basis for our findings,
conclusions, and recommendations.
Our review focused on processes to promulgate the final SAFE Vehicles Rule.
We did not evaluate activities related to the proposed rule and did not assess the
accuracy or appropriateness of modeling, analysis, data, or other inputs used in
developing the joint rulemaking. Given our oversight authority, we focused on the
EPA's role and processes in working with NHTSA. Additionally, the following
specific concerns raised by a member of Congress further refined our scope:
•	The OAR drafted comments to NHTSA identifying errors and
inaccuracies, hand carried hard-copy comments to NHTSA, and did not
docket those comments.
•	The agencies made significant changes after the final rule was signed but
before publishing it in the Federal Register.
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To address our objectives, we reviewed relevant guidance, policies, statutes, and
executive orders. We also reviewed the Federal Records Act, the EPA's Interim
Records Management Policy, the National Archives and Records
Administration's Document Drafting Handbook, and the EPA's 2018 A DP
Guidance. We obtained information on the final SAFE Vehicles Rule from the
EPA's ADP Tracker system. We also accessed materials from EPA and NHTSA
websites and each agency's rulemaking docket. We reviewed written exchanges
between the two agencies during the development of the final rule, including the
EPA's original text and suggested revisions to the final rule preamble. We also
reviewed a February 2010 GAO report on the EPA's and NHTSA's partnership.
Because there is no formal guidance on developing joint rulemakings and the
ADP is the EPA's established, comprehensive process for developing actions, we
used it as a basis to evaluate the development of the final SAFE Vehicles Rule. In
addition, we reviewed prior joint rulemakings between the two agencies.
We interviewed the EPA's workgroup chair for the rulemaking, OAR technical
staff and managers, and OAR senior officials on the process to develop the joint
rule with NHTSA. We also interviewed assigned staff attorneys within the OGC,
the former general counsel, and the former acting general counsel. We
interviewed OP personnel and the former OP associate administrator. We also
interviewed several EPA staff and managers about executive orders related to
impacts to vulnerable populations, including environmental justice and tribal
coordinators for the OAR and the Agency's Office of Children's Health
Protection.
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Chapter 2
Final SAFE Vehicles Rule Concerns Indicate
Improvements Needed for Developing Joint Rules
The EPA and NHTS A jointly issued the SAFE Vehicles Rule. The agencies'
technical personnel, however, 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 ADP rulemaking milestones, and did not document who decided to skip
these milestones and why. In addition, NHTS A performed all major technical
assessments for the rule; the role of EPA technical personnel was limited to
providing advisory input to NHTSA for only some aspects of the analysis. The
EPA also did not conduct analysis related to executive orders on the impacts of
modified GHG standards on vulnerable populations. In the EPA's prior joint
rulemakings with NHTSA, each agency conducted modeling and analysis and
drafted preamble text related to its separate statutory authority. An EPA rule
workgroup would typically:
•	Seek early guidance from senior managers to establish policy priorities
and communicate expectations for the workgroup, including how to
address any issues related to environmental justice and children's health.
•	Complete an analytic blueprint spelling out workgroup plans for data
collection and analyses.
•	Consult with key stakeholders potentially affected by an action, including
state and tribal representatives.
•	Develop options for senior management consideration.
•	Establish a docket for rulemaking transparency.
Former EPA Administrator Scott Pruitt decided that the SAFE Vehicles Rule
would be based solely on NHTSA modeling and analysis and not on that of the
EPA's scientists, and that NHTSA would draft the majority of the preamble text.
One senior EPA official cited NHTSA's statutory deadline for establishing CAFE
standards as the impetus for its lead role in developing the rulemaking. This
approach bypassed aspects of the EPA's normal ADP. It also diverged from the
more collaborative precedent set by the agencies' prior joint rulemakings, as well
as circumvented OAR technical personnel feedback on modeling, input data, and
the majority of the preamble text prior to the final rule being circulated by the
OMB for interagency review.
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Furthermore, OAR 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.
The GAO reviewed the first joint rulemaking between the EPA and NHTSA and
recommended capturing best practices for future efforts. While joint rulemaking
is infrequent, the process should be improved by clearly defining the EPA's
anticipated role and responsibilities when working with a partner agency. The
EPA administrator has broad discretion in the rulemaking process, but this
clarification would, at minimum, establish a baseline of expectations.
EPA and NHTSA Technical Personnel Did Not Collaborate
As noted in Chapter 1, the EPA's ADP Guidance does not prescribe how to
approach action development in a joint rulemaking context. Given each agency's
unique statutory authority, we would expect, consistent with past practice, each
agency to write regulations related to its statutory authority and then jointly
develop the remaining sections. While the former occurred, collaboration between
the EPA and NHTSA was less extensive than in prior joint rulemakings, such as
that for model years 2012-2016, which included parallel modeling and analysis as
shown in Table 3.
Table 3: Comparison of collaboration in prior joint rule and final SAFE Vehicles Rule
Activity
Final Light-Duty Vehicle Greenhouse
Gas Emission Standards and
Corporate Average Fuel Economy
Standards Rule (2010)
Final SAFE Vehicles Rule (2020)




Performed modeling
and analysis
' 		

		

Wrote preamble text
related to executive
orders
		
~
	

Wrote preamble and
regulatory text for
standards
			
V**
	*

Source: OIG analysis. (EPA OIG table)
Then-Administrator Pruitt decided that NHTSA would perform all modeling and
analysis on behalf of both agencies and have a lead role in developing the final
SAFE Vehicles Rule. The role of EPA technical personnel was to review the
modeling and analysis results, which formed the basis of the Agency's regulatory
text. One senior EPA official suggested that NHTSA's statutory deadline for
establishing CAFE standards motivated this decision. Notably, in prior joint
rulemakings, each agency performed modeling and analysis related to its
individual standards. The agencies then coordinated their standards based on the
results. In contrast, for the SAFE Vehicles Rule, the OAR's technical staff and
resources were not fully utilized to develop GHG standards. Instead of applying
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OAR modeling tools previously used to develop and evaluate GHG standards,
NHTSA modified its CAFE standards modeling tool to perform the joint analysis.
Furthermore, in part because NHTSA did not timely share information and EPA
leadership shared rulemaking and analysis on a limited basis with OAR technical
personnel, OAR technical personnel were unable to fully collaborate on rule
development.
NHTSA submitted approximately 1,000 pages of the
final SAFE Vehicles Rule to the OMB for interagency
review on January 14, 2020. Because of the lack of
interagency collaboration at the technical level, OAR
technical personnel reported to their leadership that
NHTSA had not shared 650 of those approximately
1,000 pages with them prior to submitting the rule to
the OMB.
OAR technical personnel reviewed the document that the OMB distributed for
interagency review. According to OAR comments on the text and at in-person
management briefings, the document, drafted primarily by NHTSA, contained
numerous errors and inaccuracies. These written comments, provided to NHTSA
on February 5, 2020, spanned a range of issues from edits for clarity to
substantive factual inaccuracies and "unnecessary denigration" of prior EPA
work. OAR technical personnel received a second draft of the rule on March 24,
2020, including an additional approximately 700 pages of text; reviewed the draft;
and returned their comments to OAR management on March 26, 2020. Based on
our analysis, 93 percent of the comments made on the March version directly
referred back to changes that the OAR suggested in February.
In 2019, OAR technical personnel reported that the continued failure to correct
errors could leave the rule legally vulnerable. The EPA's senior leadership was
aware of the type and scope of technical personnel's comments, and
then-Administrator Wheeler ultimately signed the rulemaking with many
comments unaddressed by NHTSA. Had the two agencies collaborated more
closely on modeling, analysis, and preamble text prior to interagency review,
OAR technical comments and legal defensibility concerns might have been
addressed earlier in the process, thereby improving confidence in the rule's
quality.
Final SAFE Rule Did Not Follow the ADP, Including Assessing
Potential Impacts on Vulnerable Populations
One way the Agency develops quality rulemakings is through the implementation
of its ADP, which the EPA developed over 30 years ago. According to OAR
technical personnel, the workgroup, as a whole, "was not involved" in the final
rule or utilized in the way it normally would be. For example, OAR technical
personnel said that the workgroup did not complete any major milestones called
From October 2019
through March 2020, no
one at the EPA ever saw
NHTSA's model or input
files until they were
posted online.
—OAR manager
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for in the ADP. The justification for this was
that the EPA was only responsible for drafting
the portions of the rule related to its statutory
authority.
The OAR staff who would typically be
responsible for executive order analyses said
that EPA senior leadership did not instruct them
to do any executive order analyses related to
children's health, environmental justice, or
tribal consultation for the final SAFE Vehicles
Rule. Staff also noted that there was little time
to conduct reviews on this portion of the
preamble text and that they were not charged with making such reviews a priority.
However, in prior joint rulemakings, each agency was responsible for determining
the potential impacts of the rule's respective standards on vulnerable populations.
Absent any independent EPA analysis pursuant to the executive orders, we share
concerns expressed to us by some EPA personnel that the Agency did not fully
utilize its established process for regulatory development or its technical
personnel familiar with environmental justice, children's health, and tribal
consultation to determine the standards' potential impact on vulnerable
populations.
Finally, theADP Guidance notes that the establishment of a docket is an
important step in the process. While the EPA does have a docket for the final
SAFE Vehicles Rule, the docket does not contain the same information or level of
detail as NHTSA's docket for the same rule and the EPA's docket in the prior
joint rulemaking. We note specific docketing concerns below.
Not Following the ADP Created Concerns Regarding Record
Keeping, Docketing, and Final Rule Text Changes
Record Keeping
Federal and EPA record-keeping requirements apply to regulatory decisions and
reporting actions in a management system. Additionally, a 2013 memorandum to
all Regulatory Steering Committee members required uploading materials
associated with the four major milestones into ADP Tracker. For the final SAFE
Vehicles Rule, the EPA did not document in the ADP Tracker the decision or
rationale for skipping ADP milestones as a result of then-Administrator Pruitt's
direction that NHTSA be the lead rule-writer. We also noted an instance of
"inauthentic" documentation generated by a Department of Transportation
contractor. Authenticity is one of the characteristics of trustworthy records,
according to the National Archives and Records Administration.
The ADP serves as a
comprehensive framework to
ensure the use of quality
information to support EPA
actions and an open process for
action development. The ADP
Guidance encourages using a staff
workgroup to share information
and draft key rulemaking
materials. It also includes four
major milestones typically
required for actions, such as the
final SAFE Vehicles Rule.
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Not Documenting Decisions to Skip ADP Milestones
The ADP is presented as a step-by-step guide, but
it is not intended to be a rigid process. The ADP
Guidance allows for adjustments depending on the
circumstances and notes that adjustments should be
documented through waivers approved by senior
management in cases where the rule workgroup
deems that a step is unnecessary. While the ADP
Guidance allows for the use of waivers, then-
Acting Administrator Wheeler, in an August 2018
memorandum, said, "I do not intend to waive ADP
milestones for ... those actions reflecting the
Administrator's top priorities and requiring
extensive cross-office coordination." The
memorandum then reiterated the ADP
requirements for requesting waivers, suggesting
that the administrator's memorandum only spoke to intent and did not prohibit
waivers.
Products of major ADP milestones that document regulatory decisions and
actions, such as overall policy direction and regulatory options selection, can
be considered records, which are required to be retained per the Federal
Records Act. Although the ADP Tracker is not designated as a records
management system, inputs to the ADP Tracker may include records, such as
the rationale to skip major decision points through an approved waiver. When
the OIG requested documentation from the Agency regarding the decisions to
skip milestones, the Agency was unable to provide responsive documentation.
Therefore, unless records of such decisions or actions were otherwise put into
a records management system, the EPA did not meet federal and Agency
record-keeping requirements to document regulatory decisions and actions in
a management system. As a result, the Agency's rulemaking and other
internal stakeholders lack a complete picture of the rule's actions, milestones,
and workflow—goals that the ADP Tracker was developed to address.
One Instance of an Inauthentic Record Noted
Guidelines from the National Archives and Records Administration define
"authenticity" as one of the four characteristics of "trustworthy" records. Per
the National Archives and Records Administration, authenticity means that
items can be proven to be what they claim to be, have been created or sent by
the persons claiming to have created or sent them, and have been created or
sent at the claimed time.
A Department of Transportation contractor erroneously selected the EPA as
the contractor's agency when uploading the final SAFE Vehicles Rule
"Flexibility is often
appropriate during the
application of the ADP
when developing a
quality action, and the
workgroup and lead
[assistant
administrator]/[regional
administrator] should
work out details of the
process for each action in
consultation with the
Office of Policy."
—ADP Guidance
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preamble into the OMB's system for review and comment. This raises
concerns about whether users can trust information in the OMB's system,
since the entry was not, as claimed, created by the EPA. Additionally, OP
staff responsible for marshaling the final rule through the ADP wrote that they
were confused because they did not know who uploaded the final rule
preamble. OAR senior officials said that NHTSA generally uploaded
materials on behalf of both agencies during this rulemaking. NHTSA did not
upload documents on behalf of both agencies in prior joint rulemakings.
Docketing and Changes to Final Rule Text
EPA's Hand-Carried Documents Were Not Docketed
The CAA requires the EPA administrator to docket written comments from
other agencies on rules submitted to the OMB for interagency review (see
sidebar). OGC attorneys said that in joint rulemakings in 2010 and 2012, as
"The drafts of proposed rules submitted by the
Administrator to the Office of Management and
Budget for any interagency review process prior to
proposal of any such rule, all documents
accompanying such drafts, and all written comments
thereon by other agencies and all written responses to
such written comments by the Administrator shall be
placed in the docket no later than the date of the
proposal of the rule. The drafts of the final rule
submitted for such review process prior to
promulgation and all such written comments thereon,
all documents accompanying such drafts, and written
responses thereto shall be placed in the docket no
later than the date of promulgation." (Emphasis
added.)
—CAA § 307(d)(4)(B)(ii),
42 U.S.C. § 7607(d)(4)(B)(ii)
seen or jointly worked with NHTSA on the majority of the rule text—or the
Regulatory Impact Analysis—prior to NHTSA providing them to the OMB
for interagency review. The EPA's comments noted numerous factual
inaccuracies, unnecessary denigration of the EPA's work, and clarifying
language resulting from the lack of collaboration between the two agencies.
EPA senior leaders said they agreed with NHTSA's request that the EPA not
send its comments electronically because of NHTSA's concerns about leaks
and, instead, printed hard copies of these comments, hand carried the copies,
and reviewed them during in-person meetings with NHTSA. The comments
between the EPA and NHTSA were not included in the EPA docket.
well as for the final SAFE Vehicles Rule in
2020, the Agency's practice was to treat
NHTSA as a coauthor both before and after
initiating interagency review. Using this
interpretation, NHTSA would not be
considered an "other agency" for the
purposes of the docketing provision. The
OGC based its interpretation upon the notion
that, as joint authors, the two agencies
operated in such close coordination as to
merit treatment as a single agency for
purposes of CAA docketing requirements.
On February 5, 2020, OAR technical
personnel commented on approximately
1,000 pages of rule text that NHTSA
submitted to the OMB for interagency
review. The EPA technical personnel had not
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According to the OGC's interpretation of CAA docketing requirements, the
comments between the EPA and NHTSA on the draft final rule circulated by
the OMB for interagency review did not need to be docketed because the two
agencies were joint authors of the rule. The former OAR deputy assistant
administrator we interviewed said that this approach was suggested by
NHTSA. OAR senior leaders said this approach maintained version control
and encouraged the deliberative process, which they said had broken down
between the EPA's and NHTSA's technical personnel. Senior leaders said that
they felt the need to manage—at their levels—communications between the
two agencies to avoid miscommunications and contentious interactions at the
technical level. Conversely, OAR technical personnel perceived this approach
as circumventing their role in the rulemaking as the subject matter experts on
content.
In this context, the EPA's docketing decision is questionable. For the portions
of the rule that OAR technical personnel did not jointly draft or review prior
to interagency review, we do not agree that NHTSA and the EPA should be
considered as a single agency. The EPA's comments on new material as well
as NHTSA's responses should be included in the docket in the same way as
responses of other interagency reviewers. Furthermore, the OAR should
docket or otherwise publicize its interpretation of the CAA's docketing
requirements at the outset of joint rulemakings to increase transparency.
OAR technical personnel also said that extensive senior leadership
involvement created uncertainty in what should be the proper contents of the
docket. Interviewees and written materials noted that this lack of information
about the contents of the docket created transparency concerns, as the current
docket would not include the same type of information the EPA docketed for
prior joint rules with NHTSA.
Additionally, in contrast to other joint rulemakings, the then-OAR assistant
administrator told Agency personnel that only five senior-level EPA officials
were authorized to communicate with the OMB on the rule. While limiting the
number of people coordinating with the OMB is common for rulemakings,
senior leadership involvement in this activity is unusual. Typically, EPA staff
and managers would be responsible for submitting relevant documents to the
OMB and the docket. In this case, EPA staff and managers passed documents
to senior leadership to submit to the OMB, and EPA staff gathered materials
shared by Agency leadership with the OMB during interagency review and
added materials to the docket as appropriate. As noted in the OGC's written
docketing explanation, EPA staff were relying on senior management and
NHTSA to ensure that the EPA docket was complete and that it would be
evident from the EPA docket that the EPA was not the agency transmitting
documents to the OMB for interagency review.
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We concluded that, since the hand-carried comments shared in-person with
NHTSA were emailed internally among EPA staff, they were captured as
records within the Agency's Capstone system. Moreover, the Capstone system
automatically retains records for senior executives. The former OAR deputy
assistant administrator we interviewed, a Capstone official, provided us emails
showing that comments were received electronically.
Changes Made to the Final Rule Post-Signature Met Federal and
Internal Requirements
The National Archives and Records Administration's Document Drafting
Handbook notes how to make changes to correct both substantive and
nonsubstantive errors to signed documents before publication in the Federal
Register. Per the Handbook, minor corrections to a document filed for public
inspection are made through a letter detailing the change, whereas extensive
changes may require the document to be withdrawn and resubmitted after
making corrections. The Handbook does not define "minor corrections" or
"extensive changes." The EPA's A DP Guidance states that proposed
"substantive changes" should be submitted by the lead assistant administrator
with concurrence from the OGC and the OP through a memorandum to the
EPA administrator. The EPA administrator must then approve those changes
before transmitting the action to the Federal Register.
Interviewees said, and documentation indicated, that within days of the
publication of the final SAFE Vehicles Rule, external stakeholders alerted
OAR technical personnel to discrepancies between preamble and statutory
language, some of which had been previously noted by OAR technical
personnel. As a result, in accordance with the procedures outlined for
"substantive changes" in the Handbook, the then-OAR assistant administrator
drafted a corrections memorandum and transmitted it through the OGC and
the OP, which then-Administrator Wheeler signed to initiate the annotated
changes. The memorandum was then placed in the docket to document the
corrections to "identified inadvertent errors." Such errors corrected by the
memorandum include:
•	Incorrect coefficients for the GHG standards, both in the preamble and
the regulations.
•	Incorrect minimum fuel economy standards in the regulations.
•	Incorrect preamble text describing credits.
•	Incorrect values in seven preamble tables.
•	Unclear captions for tables and other items that should be improved
for clarity.
Given that both theADP Guidance and the Document Drafting Handbook
contemplate the possibility of making changes post-signature and prescribe
how to make such changes, the final SAFE Vehicles Rule corrections were
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not unprecedented. Furthermore, the EPA personnel interviewed said that
changes at this stage are not unusual for a rulemaking of this size. EPA
personnel also believed that there was no need for a new notice-and-comment
period to make the changes as they were not outside the scope of the original
intent of the rulemaking and were necessary to fix inadvertent contradictions
between preamble and regulatory language. Furthermore, whether the changes
made to the rulemaking after publication were "substantive changes" or
"minor corrections," the EPA took the more rigorous approach to correct
those errors.
Conclusion
Then-Administrator Pruitt designated NHTSA as lead rule-writer and analyst for
the final SAFE Vehicles Rule, relegating the Agency's technical personnel to the
role of after-the-fact reviewers more so than real-time partners in the modeling
and analysis. This resulted in poor collaboration between NHTSA and the EPA,
lack of adherence to the EPA's ADP, and reduced overall transparency in the
approach used to promulgate the final rule because of record-keeping and
docketing concerns. Documenting and consistently addressing expectations for
the EPA's role in future joint rulemakings should improve the quality of the
EPA's actions.
Recommendations
We recommend that the assistant administrator for Air and Radiation:
1.	In coordination with the Office of General Counsel, docket for the final
Safer Affordable Fuel-Efficient Vehicles Rule and commit to docketing
for future joint rulemaking actions covered by Clean Air Act § 307(d),
42 U.S.C. § 7607(d), whether the EPA docket for the joint rulemaking
action reflects an interpretation that the partner agency is an "other
agency" for purposes of the docketing requirements of Clean Air Act
§ 307(d)(4)(B)(ii), 42 U.S.C. § 7607(d)(4)(B)(ii). This docketed
information should include whether written comments on the action by
either partner agency during interagency review and responses to such
comments are part of the docket, if applicable.
2.	In coordination with the Office of General Counsel, docket any written
comments received from the National Highway Traffic Safety
Administration regarding the draft final Safer Affordable Fuel-Efficient
Vehicles Rule during interagency review from January 14, 2020, to
March 30, 2020, and docket the EPA's written responses to such comments.
3.	In coordination with the Office of Policy, formally document decisions to
not complete Action Development Process milestones, including early
guidance, analytic blueprint, options selection, and final agency review.
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We recommend that the associate administrator for Policy:
4. In coordination with program offices, develop a policy for the Agency's
role in a joint rulemaking. The policy could build upon earlier
recommendations from the U.S. Government Accountability Office and
include:
•	Expectations for addressing executive orders.
•	Expectations for completing Action Development Process
milestones or documenting decisions to skip milestones.
•	A description of the rulemaking major process steps and
deliverables, including timing.
•	A description of interagency roles, responsibilities, and
interactions, including resolving conflict.
•	Identification of other stakeholders.
•	Best practices that may have more general applicability and should
be updated as appropriate to reflect process improvements.
Agency Response and OIG Assessment
The Agency provided corrective actions for Recommendations 1,3, and 4 and
completion dates for Recommendations 1 and 3. The Agency disagreed with
Recommendation 2. Recommendation 3 is resolved with corrective actions
pending, and we require more specific details to resolve Recommendations 1 and
4. The Agency's full response is in Appendix A.
For Recommendation 1, the Agency's proposed corrective action to docket a
memorandum describing the EPA's interpretation of Clean Air Act § 307(d),
42 U.S.C. § 7607(d), at the time of the SAFE Vehicles Rule satisfies the first part
of the recommendation. However, the Agency did not, per the rest of the
recommendation, commit to docketing for future joint rulemaking actions whether
the EPA docket reflects an interpretation that the partner agency is an "other
agency" for purposes of the docketing requirements of Clean Air Act
§ 307(d)(4)(B)(ii), 42 U.S.C. § 7607(d)(4)(B)(ii). The docketed information
should include whether written comments on the joint rulemaking action by either
partner agency during interagency review and responses to such comments are
part of the docket, if applicable. This recommendation is unresolved.
The EPA disagreed with Recommendation 2. In its response, the EPA stated that
its interpretation during the SAFE Vehicles Rule was that NHTSA, as the
coauthor in the joint rulemaking, was not an "other agency" for purposes of the
docketing requirements under Clean Air Act § 307(d)(4)(B)(ii), 42 U.S.C.
§ 7607(d)(4)(B)(ii), and that the docket was not required to include written
comments on the action by either coauthor agency during interagency review or
responses to such comments. The EPA also stated that its interpretation for the
SAFE Vehicles Rule was consistent with previous Agency practices for such joint
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rulemakings and that the SAFE Vehicles Rule was signed by both NHTSA and
EPA administrators as a joint rule.
While we agree that the EPA's actions related to docketing for the SAFE Vehicles
Rule were consistent with previous EPA practices for similar joint rulemakings,
the process undertaken to promulgate the SAFE Vehicles Rule varied
considerably from prior joint rulemakings. As we noted above, OAR personnel
were not provided or consulted on significant portions of the rule, including
regulatory and preamble text and the Regulatory Impact Analysis, prior to
NHTSA's submittal to the OMB for interagency review, pursuant to Executive
Order 12866. The EPA received this content for the first time during interagency
review. The EPA's extensive comments on this content, including on factual
accuracy and denigration of the Agency's previous work, demonstrate that the
two agencies did not operate as a single author prior to submitting the rule to the
OMB. Moreover, as an agency within the Department of Transportation, there is
no dispute that NHTSA is in fact an "other agency." This recommendation is
unresolved.
For Recommendation 3, the EPA agreed to submit a memorandum to the rule file
explaining that, during the SAFE Vehicles Rule, time did not allow for early
guidance, analytic blueprint, options selection, and final agency review to occur in
the traditional way and that these milestones are "moot" for purposes of the ADP.
The EPA added that the Federal Records Act and its implementing regulations
and the Agency's Interim Records Management Policy do not impose a
requirement to create and maintain documentation of what internal ADP steps and
milestones the EPA followed or waived, and the reasons for this, within the ADP
Tracker database. Therefore, the absence of entries in the ADP tracker is not a
records deficiency. We disagree that "decisions to follow or waive internal
procedural steps are not 'regulatory decisions'" for purposes of records
management. By definition, these internal steps are meant to shape the regulations
promulgated by the Agency. Nevertheless, the corrective action provided satisfies
Recommendation 3 to formally document that ADP steps were not completed.
This recommendation is resolved.
For Recommendation 4, the Agency agreed to discuss roles and expectations with
partner agencies should the EPA enter into another joint rulemaking. This does
not satisfy the recommendation to develop a formal policy for the Agency's role
in a joint rulemaking generally. This recommendation is unresolved.
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Status of Recommendations and
Potential Monetary Benefits
RECOMMENDATIONS
Potential
Planned	Monetary
Rec. Page	Completion	Benefits
No. No.	Subject	Status1 Action Official	Date	(In $000s)
1	18 In coordination with the Office of General Counsel, docket for the U Assistant Administrator
final Safer Affordable Fuel-Efficient Vehicles Rule and commit to	for Air and Radiation
docketing for future joint rulemaking actions covered by Clean
Air Act § 307(d), 42 U.S.C. § 7607(d), whether the EPA docket
for the joint rulemaking action reflects an interpretation that the
partner agency is an "other agency" for purposes of the
docketing requirements of Clean Air Act § 307(d)(4)(B)(ii), 42
U.S.C. § 7607(d)(4)(B)(ii). This docketed information should
include whether written comments on the action by either partner
agency during interagency review and responses to such
comments are part of the docket, if applicable.
2	18 In coordination with the Office of General Counsel, docket any
written comments received from the National Highway Traffic
Safety Administration regarding the draft final Safer Affordable
Fuel-Efficient Vehicles Rule during interagency review from
January 14, 2020, to March 30, 2020, and docket the EPA's
written responses to such comments.
U Assistant Administrator
for Air and Radiation
3 18 In coordination with the Office of Policy, formally document	R Assistant Administrator 6/30/21
decisions to not complete Action Development Process	for Air and Radiation
milestones, including early guidance, analytic blueprint, options
selection, and final agency review.
4 19 In coordination with program offices, develop a policy for the	U Associate Administrator
Agency's role in a joint rulemaking. The policy could build upon	for Policy
earlier recommendations from the U.S. Government
Accountability Office and include:
•	Expectations for addressing executive orders.
•	Expectations for completing Action Development
Process milestones or documenting decisions to skip
milestones.
•	A description of the rulemaking major process steps
and deliverables, including timing.
•	A description of interagency roles, responsibilities, and
interactions, including resolving conflict.
•	Identification of other stakeholders.
•	Best practices that may have more general
applicability and should be updated as appropriate to
reflect process improvements.
1C = Corrective action completed.
R = Recommendation resolved with corrective action pending.
U = Recommendation unresolved with resolution efforts in progress.
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Appendix A
Agency Response to Draft Report
^£0Sr%
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
% ^1^ ®	WASHINGTON, D.C. 20460
PRO^
March 19, 2021
MEMORANDUM
SUBJECT: Joint Agency Response to Office of Inspector General Draft Report. Concerns on
the Process Employed for the SAFE Rule Demonstrate the Need for a Policy on the
EPA's Role in Joint Rulemakings (OA&E-FY20-0269)
ipvoppu	Digitally signed by
l_r n	JOSEPH GOFFMAN
FROM: Joseph Goffman GOFFMAN SSi&J9
Actins Assistant Administrator
Office of Air and Radiation
Arroyo,
Vicki Arroyo Victoria
Associate Administrator
Office of Policy
Melissa A.
Melissa Hoffer H offer
Acting General Counsel
Digitally signed by Arroyo,
Victoria
Date: 2021.03.19
10:23:54 -04'00'
Digitally signed by
Melissa A. Hoffer
Date: 2021.03.19
12:53:49 -04'00'
TO:	Patrick Gilbride
Environmental Research Programs Directorate
Office of Audit and Evaluations
Office of Inspector General
On behalf of EPA's Office of Air and Radiation, Office of Policy, and Office of General
Counsel, thank you for the opportunity to respond to the issues and recommendations in the subject
draft report. Below we provide important policy clarifications and corrective actions with
estimated completion dates as requested.
The EPA is charged with regulating greenhouse gas emissions from new motor vehicles
as air pollutants under Section 202(a) of the Clean Air Act, 42 U.S.C. § 7521(a). In 2012, the
EPA and the U.S. Department of Transportation's National Highway Traffic Safety
Administration (NHTSA) published their joint ailemaking to set greenhouse gas and
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corporate average fuel economy (CAFE) standards for light duty vehicles for model years 2017
and later. In 2017, former EPA Administrator Pruitt initiated a joint rulemaking with NHTSA to
revisit the GHG and CAFE standards. This rulemaking resulted in the Safer Affordable Fuel-
Efficient Vehicles Rule for Model Years 2021-2026 Passenger Cars and Light Trucks Final
Rule (SAFE part 2), which was published on April 30, 2020 and became effective on June 29,
2020. The events and issues outlined in the draft report occurred over the past several years,
before the arrival of current EPA senior
leadership.
As members of EPA's new senior leadership team, we value transparency in the
rulemaking process, understand the importance of an accurate and complete public rulemaking
docket, and support the purpose and goals of EPA's internal Action Development Process (ADP).
We believe that EPA's regulatory actions should be developed based on sound policy, analytical,
and scientific foundations, and should be informed by the full capability of technical staff. We
appreciate the OIG's thorough review of the SAFE part 2 process and provide the agency's
responses to OIG's specific recommendations below. As requested, the relevant offices have
coordinated and combined our responses into this memorandum.
Recommendation 1: In coordination with the Office of General Counsel, docket for the final
Safer Affordable Fuel-Efficient Vehicles Rule and commit to docketing for future joint
rulemaking actions covered by Clean Air Act § 307(d), 42 U.S.C. § 7607(d), whether the EPA
docket for the joint rulemaking action reflects an interpretation that the partner agency
is an "other agency" for purposes of the docketing requirements of Clean Air Act §
307(d)(4)(B)(ii), 42 U.S.C. § 7607(d)(4)(B)(ii). The docketed information should include
whether written comments on the action by either partner agency during interagency review
and responses to such comments are part of the docket, if applicable.
Response 1: EPA agrees to draft a memorandum describing EPA's interpretation of Clean Air
Act Section 307(d) at the time of the Safer Affordable Fuel-Efficient Vehicles (SAFE part 2)
rulemaking and add that memorandum to the SAFE part 2 rulemaking docket. If EPA undertakes
any future joint rulemakings under Clean Air Act Section 307(d), EPA agrees that, as it considers
agency policies for joint rulemaking, it will consider docketing requirements concerning
interagency review under CAA 307(d), and evaluate the best way to notify the public of EPA's
legal interpretations or policies about those docketing requirements.
Planned completion date: The new memorandum will be added to the SAFE part 2 docket by
the end ofQ3 FY2021.
Recommendation 2: In coordination with the Office of General Counsel, docket any written
comments received from the National Highway Traffic Safety Administration regarding the
draft final Safer Affordable Fuel-Efficient Vehicles Rule during interagency review from
January 14, 2020, to March 30, 2020, and docket the EPA's written responses to such
comments.
Response 2: EPA's interpretation of Clean Air Act 307(d) for the SAFE part 2 rulemaking was
consistent with previous EPA practices for such joint rulemakings. SAFE part 2 was signed
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by both the NHTSA and EPA Administrators as a joint rule. EPA's interpretation of Clean Air
Act 307(d) during the SAFE part 2 rulemaking was that the co-author in the joint rulemaking,
NHTSA, was not an "other agency" for purposes of the docketing requirements under Clean
Air Act § 307(d)(4)(B)(ii), 42 U.S.C. § 7607(d)(4)(B)(ii), and that the docket was not required
to include written comments on the action by either co-author agency during interagency review
or responses to such comments. Therefore, EPA disagrees with OIG's recommendation to
docket the written comments and responses to such comments from the SAFE part 2 rulemaking
between NHTSA and EPA as docketing these materials would be inconsistent with EPA's
interpretation of Clean Air Act § 307(d)(4)(B)(ii) for the SAFE part 2 rulemaking.
Recommendation 3: In coordination with the Office of Policy, formally document decisions
to not complete Action Development Process milestones, including early guidance, analytic
blueprint, options selection, and final agency review.
Response 3: EPA is not required to create and maintain documentation of what internal Action
Development Process (ADP) steps and milestones EPA followed or waived, and the reasons
for this, within the Office of Policy's ADP Tracker database. The Federal Records Act and
its implementing regulations impose no such requirement, and thus, the absence of entries in the
ADP Tracker is not a per se records deficiency in contravention of the Federal Records Act.
Similarly, the Agency's Interim Records Management Policy does not impose such
requirements either. Decisions to follow or waive internal procedural steps are not "regulatory
decisions." EPA believes that there are adequate and appropriate records, both in the docket for
the rule and in EPA's formal recordkeeping systems, that pertain to the regulatory decisions
made regarding the SAFE part 2 rulemaking. To respond to this recommendation, EPA agrees
to submit a memorandum to the rule file explaining that, during the SAFE part 2 rulemaking,
time did not allow for early guidance, analytic blueprint, options selection, and final agency
review to occur in the traditional way. Therefore, these milestones are considered "moot" for
purposes of the ADP.
Planned Completion Date: EPA will submit the memorandum to the rule file by end of Q3,
FY2021.
Recommendation 4: In coordination with program offices, develop a policy for the Agency's
role in a joint rulemaking. The policy could build upon earlier recommendations from the
U.S. Government Accountability Office and include:
•	Expectations for addressing executive orders.
•	Expectations for completing Action Development Process milestones or documenting
decisions to skip milestones.
•	A description of the rulemaking major process steps and deliverables, including
timing.
•	A description of interagency roles, responsibilities, and interactions, including
resolving conflict.
•	Identification of other stakeholders.
•	Best practices that may have more general applicability and should be updated as
appropriate to reflect process improvements.
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Response 4: EPA agrees to have discussions with partner agencies to clarify roles and expectations
should the agency enter into another joint rulemaking in the future.
If you have any questions regarding this response, please contact William Charmley,
Director of the Assessment and Standards Division, Office of Transportation and Air Quality
at 734-214-4466.
cc:
Betsy Shaw
Sarah Dunham
Marc Vincent
William Charmley
William Nickerson
Gautam Srinivasan
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Distribution
Appendix B
The Administrator
Associate Deputy Administrator
Assistant Deputy Administrator
Chief of Staff, Office of the Administrator
Deputy Chief of Staff, Office of the Administrator
Agency Follow-Up Official (the CFO)
Agency Follow-Up Coordinator
General Counsel
Assistant Administrator for Air and Radiation
Associate Administrator for Policy, Office of the Administrator
Associate Administrator for Congressional and Intergovernmental Relations
Associate Administrator for Public Affairs
Principal Deputy General Counsel
Deputy General Counsel
Principal Deputy Assistant Administrator for Air and Radiation
Associate General Counsel, Air and Radiation Law Office, Office of General Counsel
Director, Office of Continuous Improvement, Office of the Chief Financial Officer
Director, Office of Regulatory Policy and Management, Office of Policy, Office of the
Administrator
Director, Office of Transportation and Air Quality, Office of Air and Radiation
Audit Follow-Up Coordinator, Office of General Counsel
Audit Follow-Up Coordinator, Office of Air and Radiation
Audit Follow-Up Coordinator, Office of the Administrator
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