and petitioning pathways do not count against the menu cap.
    The agency received comments in support and opposition to the
increase of the menu credit cap to 15g/mile. Some manufacturers and
suppliers supported the increase, while others expressed opposition.
Toyota, Nissan, Stellantis, the ITB Group, Auto Innovators, MECA, and
Borg Warner all agreed with the agency's direction to increase the cap,
stating the credit cap should continue to increase as new technologies
are added to the menu.\1246\ Stellantis contends that the increased
credit cap will further incentivize the industry to adopt these
technologies across fleets and that these technologies have a real
benefit to fuel economy. ACEEE, Tesla, and Lucid oppose the increase to
the menu credit cap.\1247\ Tesla stated that the off-cycle program
creates an asymmetry in the regulations which favor internal combustion
engines and effectually diverts R&D resources to the creation and
improvement of legacy ICE technologies that are less efficient than
electrified powertrains. Additionally, these organizations state that
increasing the menu credit cap adds additional compliance flexibilities
with questionable improvements to real world efficiency.
---------------------------------------------------------------------------

    \1246\ Toyota, NHTSA-2021-0053-1568, at page 20; Nissan, NHTSA-
2021-0053-0022-A1 at page 7; Stellantis, NHTSA-2021-0053-1527, at
page 32; ITB Group, at NHTSA-2021-0053-0019-A1, at page 7; Auto
Innovators, NHTSA-2021-0053-1492, at page 124.; MECA, NHTSA-2021-
0053-1113 at page 3; BorgWarner, at page 2.
    \1247\ ACEEE, NHTSA-2021-0053-0074, at page 6.; Tesla, NHTSA-
2021-0053-1480-A1, at page 10; Lucid, NHTSA-2021-0052-1584 at page
6.
---------------------------------------------------------------------------

    NHTSA appreciates the feedback from the manufacturers and industry
stakeholders. NHTSA disagrees that the off-cycle program provides an
asymmetrical benefit to internal combustion manufacturers. Off-cycle
credits are designed to reward real-world emissions reductions missed
through 2-cycle testing and the agency has a duty to honor the most
accurate fuel economy performances from each manufacturer in order to
issue final compliance to Federal fuel economy standards. We believe
that off-cycle is a viable route to achieving fuel economy
improvements, and if there are any incongruities between awarded
credits and technology efficacy, then the solution should be to address
the source of the discrepancy rather than scrapping the program.
    NHTSA acknowledges that certain credits and flexibilities may be
more beneficial to certain technologies but does not believe that this
warrants the elimination of the off-cycle program at this time. NHTSA
further notes that commenters who asked the agency to lower or
eliminate off-cycle credits because it `favored' ICE simultaneously
supported providing more incentives for electric pathways. The
objective of CAFE is to reduce the Nation's dependency on oil, not to
promote a particular technology pathway. Manufacturers are free to set
their compliance pathways and can chose to invest in technologies other
than off-

cycle technologies. ICE vehicles sold during the years covered by this
final rule will remain on the road for decades to come and creating an
incentive to have manufacturers making those vehicles more fuel
efficient is beneficial to consumers--including those who may purchase
the vehicle a decade or later after the vehicle was manufactured--and
reduces the Nation's carbon emissions.
    For the final rule, NHTSA is adopting provisions that align with
the EPA's program in terms of increasing the off-cycle menu cap to 15
g/mile in MY 2023 and extending through MY 2026. Off-cycle technologies
are often more cost effective than other available technologies that
reduce vehicle GHG emissions over the 2-cycle tests and manufacturers
use of the program continues to grow. Off-cycle credits reduce program
costs and provide additional flexibility in terms of technology choices
to manufacturers which has resulted in many manufacturers using the
program. Multiple manufacturers were at or approaching the 10 g/mile
credit cap in MY 2019.\1248\ Also, in the SAFE rule, EPA added menu
credits for high efficiency alternators but did not increase the credit
cap for the reasons noted above.\1249\ While adding the technology to
the menu has the potential to reduce the burden associated with the
credits for both manufacturers and the agencies, it further exacerbates
the credit cap issue for some manufacturers. Increasing the cap
provides an additional optional flexibility and also an opportunity for
manufacturers to earn more menu credits by applying additional menu
technologies that will improve fuel efficiency.
---------------------------------------------------------------------------

    \1248\ In MY 2019, Ford, FCA, and JLR reached the 10 g/mile cap
and three other manufacturers were within 3 g/mile of the cap. See
``The 2020 EPA Automotive Trends Report, Greenhouse Gas Emissions,
Fuel Economy, and Technology since 1975,'' EPA-420-R-21-003 January
2021.
    \1249\ 85 FR 25236 (Apr. 30, 2020).
---------------------------------------------------------------------------

(iv) Definitions
(a) Passive Cabin Ventilation
    In the NPRM, the agency proposed a revision to the passive cabin
ventilation definition to make it consistent with the technology used
to generate the credit value. The credits for passive cabin ventilation
were originally determined based on an NREL study that strategically
opened a sunroof where hot air collects to allow for the unrestricted
flow of heated air to exit the interior of the vehicle while combined
with additional floor openings to provide a minimally restricted entry
for cooler ambient air to enter the cabin. The modifications that NREL
performed on the vehicle reduced the flow restrictions for both heated
cabin air to exit the vehicle and cooler ambient air to enter the
vehicle, creating a convective airflow path through the vehicle cabin.
    As noted in the Joint TSD for the 2012 final rule:

    For passive ventilation technologies, such as opening of windows
and/or sunroofs and use of floor vents to supply fresh air to the
cabin (which enhances convective airflow), (1.7 g/mile for light-
duty vehicles and 2.3 g/mile for light-duty trucks) a cabin air
temperature reduction of 5.7 [deg]C can be realized.\1250\
---------------------------------------------------------------------------

    \1250\ 2012 TSD at 584.

    The passive cabin ventilation credit values were based on achieving
the 5.7 [deg]C cabin temperature reduction.
    Some manufacturers have claimed the passive cabin ventilation
credits based on the addition of software logic to their HVAC system
that sets the interior climate control outside air/recirculation vent
to the open position when the power to vehicle is turned off at higher
ambient temperatures. The manufacturers have claimed that the opening
of the vent allows for the flow of ambient temperature air into the
cabin. While opening the vent may ensure that the interior of the
vehicle is open for flow into the cabin, no other action is taken to
improve the flow of heated air out of the vehicle. This technology
relies on the pressure in the cabin to reach a sufficient level for the
heated air in the interior to flow out through body leaks or the body
exhausters to open and vent heated air out of the cabin.
    Analytical studies performed by manufacturers evaluating the
performance of the open dash vent demonstrate that while the dash vent
may allow for additional airflow of ambient temperature air entering
the cabin, it does not reduce the existing restrictions on heated cabin
air exiting the vehicle, particularly in the target areas of the
occupant's upper torso. That hotter air generally must escape through
restrictive (by design to prevent water and exhaust fumes from entering
the cabin) body leaks and occasional venting of the heated cabin air
through the body exhausters. While this may provide some minimal
reduction in cabin temperatures, this open dash vent technology is not
as effective as the combination of vents used by the NREL researchers
to allow additional ambient temperature air to enter the cabin and also
to reduce the restriction of heated air exiting the cabin.
    In response to the agency's proposal to redefine passive cabin
ventilation off-cycle menu technology, industry stake holders provided
feedback in support and opposition to the proposed change. The ITB
Group and the Union of Concerned Scientists both wrote in support of
the change to the Passive Cabin Ventilation definition, stating that
menu definitions should be supported by representative data.\1251\
Stellantis, Nissan, Auto Innovators, and JLR all argued against the
agency's plan to change the passive cabin ventilation definition
stating that the timing of this definition change would prevent
manufacturers from gaining credits for technology already installed on
vehicles.\1252\ Auto Innovators, Stellantis, Nissan, and Toyota all
stated the lead-time for the adoption of the new passive cabin
ventilation was a concern.\1253\ Commenters stated that to effectively
meet the new definition, vehicles would need to be redesigned which
would take years to implement, thus offsetting manufacturers'
compliance strategies for several years to come. Several commenters,
including JLR, stated that the agency should consider some off-cycle
credit for those vehicles that meet the passive cabin ventilation as
previously written, since technologies already installed on vehicles
provide some level of real-world fuel efficiency benefits and should be
considered for menu credit. The ITB Group identified a risk in adopting
a new technology definition, as some manufacturers may decide to remove
passive cabin ventilation technologies currently applied to fleets;
technologies that provide some real-world benefits but do not meet the
new technology definition, thus increasing fleet emissions.
---------------------------------------------------------------------------

    \1251\ ITB Group, at NHTSA-2021-0053-0019-A1, at p. 3; UCS,
NHTSA-2021-0053-1567, at p. 14.
    \1252\ Stellantis, NHTSA-2021-0053-1527, at p. 32; Nissan,
NHTSA-2021-0053-0022-A1, at p. 8; Auto Innovators, NHTSA-2021-0053-
1492, at p. 59; JLR, NHTSA-2021-0053-1505, at pp. 7-8.
    \1253\ Toyota, NHTSA-2021-0053-1568, at p. 22.
---------------------------------------------------------------------------

    The agency appreciates the comments provided by industry
stakeholders and understands the strain this definition change will put
on manufacturers who currently do not meet the standards of the new
definition. NHTSA disagrees with comments that the agency should
continue to allow the use of the unrevised definitions and menu credits
for several model years into the future. Allowing manufacturers to
claim fuel economy off cycle credit for a technology that does not
produce real-world benefits at the level prescribed in the menu of off-
cycle technologies effectively reduces the stringency of the standard
and inequitably benefits those

manufacturers who apply technology that does not meet the intent of the
rule. For example, when establishing the passive cabin ventilation
credit, EPA envisioned air flow consistent with windows and/or sunroof
being open for a period of time to allow hot air to escape the cabin
through convective air flow. Under the original definitions,
manufacturers are generating a sizeable credit for simply opening the
interior vents when the vehicle is keyed off. With respect to the
comments received on the application timing of this definition, the
agency has provided more than the statutorily mandated minimum of 18
months lead time. The agency believes that 18 months is sufficient lead
time for manufacturers to reconfigure their compliance plans.
    NHTSA is finalizing revisions to the passive cabin ventilation
definition with clarifying edits to make it consistent with the
technology used to generate the credit value. The agency continues to
allow for innovation as the definition includes demonstrating
equivalence to the methods described in the Joint TSD. As proposed,
NHTSA is revising the definition of passive cabin ventilation to
include only methods that create and maintain convective airflow
through the body's cabin by opening windows or a sunroof, or equivalent
means of creating and maintaining convective airflow, when the vehicle
is parked outside in direct sunlight. Current systems claiming the
passive ventilation credit by opening the dash vent do not meet the
updated definition. Manufacturers seeking to claim credits for the open
dash vent system will be eligible to petition the agency for credits
for this technology using the alternative EPA approved method outlined
in 40 CFR 86.1869-12(d).
(b) Active Engine and Transmission Warmup
    As proposed in 2021 NPRM, NHTSA is revising the menu credit
definition of active engine and transmission warmup to no longer allow
systems that capture heat from the coolant circulating in the engine
block prior to the opening of the thermostat to qualify for the Active
Engine and Active Transmission warm-up menu credits.
    In the NPRM for the 2012 final rule,\1254\ EPA proposed capturing
waste heat from the exhaust and using that heat to actively warm up
targeted parts of the engine and the transmission fluid. The exhaust
waste heat from an internal combustion engine is heat that is not being
used as it is exhausted to the atmosphere. In the 2012 final
rule,\1255\ the agency revised the definitions for active engine and
transmission warm-up by replacing exhaust waste heat with the waste
heat from the vehicle. The agencies concluded that other methods, in
addition to waste heat from the exhaust, that could provide similar
performance--such as coolant loops or direct heating elements--may
prove to be a more effective alternative to direct exhaust heat.
Therefore, the agencies expanded the definition in the 2012 final rule.
---------------------------------------------------------------------------

    \1254\ See 2011 NPRM, 76 FR 74854 (Dec. 1, 2011).
    \1255\ 77 FR 62624 (Oct. 15, 2012).
---------------------------------------------------------------------------

    All agency analysis regarding active engine and transmission warm-
up through the 2012 final rule was performed assuming the waste heat
utilized for these technologies would be obtained directly from the
exhaust prior to being released into the atmosphere and not from any
engine-coolant-related loops. At this time, many of the systems in use
are engine-coolant-loop-based and are taking heat from the coolant to
warm-up the engine oil and transmission fluid.
    We provided additional clarification on the use of waste heat from
the engine coolant in preamble to SAFE rule.\1256\ We focused on
systems using heat from the exhaust as a primary source of waste heat
because that heat would be available quickly and also would be
exhausted by the vehicle and otherwise unused.\1257\ Heat from the
engine coolant already may be used by design to warm up the internal
engine oil and components. That heat is traditionally not considered
``waste heat'' until the engine reaches normal operating temperature
and subsequently requires it to be cooled in the radiator or other heat
exchanger.
---------------------------------------------------------------------------

    \1256\ 85 FR 24174 (Apr. 30, 2020).
    \1257\ 85 FR 25240 (Apr. 30, 2020).
---------------------------------------------------------------------------

    We allowed for the possible use of other sources of heat such as
engine coolant circuits, as the basis for the credits as long as those
methods would ``provide similar performance'' as extracting the heat
directly from the exhaust system and would not compromise how the
engine systems would heat up normally absent the added heat source.
However, the SAFE rule also allowed us to require manufacturers to
demonstrate that the system is based on ``waste heat'' or heat that is
not being preferentially used by the engine or other systems to warm up
other areas like engine oil or the interior cabin. Systems using waste
heat from the coolant do not qualify for credits if their operation
depends on, and is delayed by, engine oil temperature or interior cabin
temperature. As the engine and transmission components are warming up,
the engine coolant and transmission oil typically do not have any
``waste'' heat available for warming up anything else on the vehicle
since they are both absorbing any heat from combustion cylinder walls
or from friction between moving parts in order to achieve normal
operating temperatures. During engine and transmission warm-up, the
only waste heat source in a vehicle with an internal combustion engine
is the engine exhaust, as the transmission and coolant have not reached
warmed-up operating temperature and therefore do not have any heat to
share.\1258\
---------------------------------------------------------------------------

    \1258\ 85 FR 25240 (Apr. 30, 2020).
---------------------------------------------------------------------------

    In the NPRM, NHTSA proposed revising the menu definition to align
with the EPA definition of active engine and transmission warm-up to no
longer allow systems that capture heat from the coolant circulating in
the engine block to qualify for the Active Engine and Active
Transmission warm-up menu credits.
    In response to the NPRM, NHTSA received comments with respect to
the proposed new definition. The Union of Concerned Scientists
commented in support of updating the definition, stating the
technologies,\1259\ as currently defined, allow manufacturers to claim
undue credit for technologies that produce real-world fuel efficiency
benefits less than the menu credit amount. Auto Innovators, Nissan,
Stellantis, and JLR wrote in opposition to the proposed definition
change, stating the lead time as one of the reasons to not adopt the
change.\1260\ Commentors stated that this change leaves less than 1
year to implement a design change to satisfy the new definition which
is not reasonable. The ITB Group commented that the new definition
should not be limited to only exhaust waste heat but include any
technology that can rapidly warm an engine, including a zero-coolant
flow program to result in rapid warm-up.\1261\ Nissan stated that
redefining the menu technology will increase the number of alternative
methodology off-cycle requests for lesser amounts of fuel economy
credit. Nissan, JLR, the ITB Group, The Alliance, Stellantis, and
Toyota \1262\ recommended the agency honor some lesser fuel economy
credit

amount for technologies that meet the current definition.\1263\ Toyota
recognized the agency's rationale for updating the technology
definitions but requested that an application date for new definitions
be delayed until the 2025 MY in order to implement new vehicle designs.
---------------------------------------------------------------------------

    \1259\ UCS, NHTSA-2021-0053-1567, at p. 14.
    \1260\ Auto Innovators, NHTSA-2021-0053-1492, at p. 59.; Nissan,
NHTSA-2021-0053-0022-A1, at p. 8; Stellantis, NHTSA-2021-0053-1527,
at p. 32; JLR, NHTSA-2021-0053-1505, at pp. 7-8.
    \1261\ ITB Group, at NHTSA-2021-0053-0019-A1, at p. 3.
    \1262\ Nissan; JLR; ITB Group; Auto Innovators; Stellantis;
Toyota.
    \1263\ Nissan, NHTSA-2021-0053-0022-A1, at p. 8; JLR, NHTSA-
2021-0053-1505, at pp. 7-8; ITB Group, at NHTSA-2021-0053-0019-A1,
at p. 3; Auto Innovators; Stellantis, NHTSA-2021-0053-1527, at p.
32; Toyota, NHTSA-2021-0053-1568, at p. 22.
---------------------------------------------------------------------------

    NHTSA appreciates the feedback from the industry and stake holders.
NHTSA disagrees with extending the definition to include technologies
that do not rely on waste exhaust heat; the lack of specific text
requiring exhaust heat recovery resulted in many manufacturers
utilizing extended coolant pathways which did not result in real-world
benefits commensurate with the intent of the technology or menu
credits, real-world benefits which are lesser than recovering exhaust
heat.
    As proposed in the NPRM, NHTSA is revising the menu definition to
align with the EPA definition of active engine and transmission warm-up
to no longer allow systems that capture heat from the coolant
circulating in the engine block to qualify for the Active Engine and
Active Transmission warm-up menu credits. NHTSA will allow credit for
coolant systems that capture heat from a liquid-cooled exhaust manifold
if the system is segregated from the coolant loop in the engine block
until the engine has reached fully warmed-up operation. The agency will
also allow system design that captures and routes waste heat from the
exhaust to the engine or transmission, as this was the basis for these
two credits as originally proposed in the proposal for the 2012 rule.
The approach NHTSA and EPA have finalized will help ensure that the
level of menu credits is consistent with the technology design
envisioned by the agencies when it established the credit in the 2012
rule. This revision to the technology definition will apply starting in
MY 2023.
    Manufacturers seeking to utilize their existing systems that
capture coolant heat before the engine is fully warmed-up and transfer
this heat to the engine oil and transmission fluid would remain
eligible to seek credits through the alternative method application
process outlined in 40 CFR 86.1869-12(d). We expect that these
technologies may provide some benefit, though not the level of credits
included in the menu. But, as noted above, since these system designs
remove heat that is needed to warm-up the engine the agency expects
that these technologies will be less effective than those that capture
and utilize exhaust waste heat.
(4) Other Credits Suggested by Commenters
    Securing America's Future Energy provided comments stating that it
believes that connected and automated vehicles (CAVs) have tremendous
potential to increase efficiencies and save fuel.\1264\ Securing
America's Future Energy encouraged NHTSA and EPA to update the approach
to off-cycle credits, while considering several potential improvements
tailored to accommodate truly innovative technologies. Securing
America's Future Energy commented most of savings of these CAVs are
additive with other efficiency technologies and, together identify the
potential to reduce fuel consumption by 18 to 25 percent if deployed
throughout the fleet, according to its 2018 research report, ``Using
Fuel Efficiency Regulations to Conserve Fuel and Save Lives by
Accelerating Industry Investment in Autonomous and Connected
Vehicles.'' In general, Securing America's Future Energy believes that
CAVs can improve efficiency by lowering the amount of accidents,
lowering congestion, and allowing for smarter navigation, amongst other
benefits.
---------------------------------------------------------------------------

    \1264\ Securing America's Future Energy, NHTSA-2021-0053-1513,
at pp. 12-17.
---------------------------------------------------------------------------

    In response to Securing America's Future Energy's suggestion, NHTSA
reiterates as mentioned in the 2012 final rule that our policy is to
consider any fuel efficiency benefits for autonomous vehicles and
advanced driver assistance systems (ADAS) as part of the regulatory
process for its safety programs. At present, a number of these
technologies are included in several Congressional bills that may
mandate the adoption of new safety requirements or regulations in these
areas. NHTSA will consider how to address the fuel efficiency benefits
of these technologies as a part of its subsequent Congressional
rulemakings.

B. Vehicle Classification and Compliance Validation Testing

    Vehicle classification, for purposes of the light-duty CAFE
program, refers to whether an automobile qualifies as a passenger
automobile (car) or a non-passenger automobile (light truck). Passenger
cars and light trucks are subject to different fuel economy standards
as required by EPCA/EISA and consistent with their different
capabilities.
    Vehicles are designated as either passenger automobiles or non-
passenger automobiles. Vehicles ``capable of off-highway operation''
are, by statute, non-passenger automobiles.\1265\ Determining ``off-
highway operation'' was left to NHTSA, and currently is a two-part
inquiry: first, does the vehicle either have 4-wheel drive or over
6,000 pounds gross vehicle weight rating (GVWR), and second, does the
vehicle have a significant feature designed for off-highway
operation.\1266\ NHTSA's regulation on vehicle classification contain
requirements for vehicles to be classified as light trucks either on
the basis of off-highway capability or on the basis of having ``truck-
like characteristics.'' \1267\ Over time, NHTSA has refined the light
truck vehicle classification by revising its regulations and issuing
legal interpretations. However, based on the increase in crossover SUVs
and advancements in vehicle design trends, NHTSA became aware of
vehicle designs that complicate classification determinations for the
CAFE program. Throughout the past decade, NHTSA identified these
changes in compliance testing, data analysis, and has discussed the
trend in rulemakings, publications, and with stakeholders.
---------------------------------------------------------------------------

    \1265\ 49 U.S.C. 32901(a)(18).
    \1266\ 49 CFR 523.5(b).
    \1267\ 49 CFR 523.5(a).
---------------------------------------------------------------------------

    In the SAFE 1 and SAFE 2 rules, NHTSA stated it continues to
believe that an objective procedure for classifying vehicles is
paramount to the agency's continued oversight of the CAFE program. When
there is uncertainty as to how vehicles should be classified,
inconsistency in determining manufacturers' compliance obligations can
result, which is detrimental to the predictability and fairness of the
program. In the 2020 final rule, NHTSA attempted to resolve several
classification issues and committed to continuing research to resolve
others. NHTSA notified the public of its plans to develop a compliance
test procedure for verifying manufacturers' submitted classification
data. An objective standard would help avoid manufacturers having to
reclassify their vehicles, improve consistency and fairness across the
industry, and introduce areas within the criteria where uncertainties
existed, and research could be conducted in the near future to resolve.
    In 2021 NPRM rulemaking,\1268\ NHTSA provided additional
classification, guidance and sought comments on several unknown aspects

needed to develop its compliance test procedure. In this final rule,
NHTSA is adding additional clarifications for testing production
measurements for vehicles with adjustable suspensions and clarifying
its intent to collect information from manufacturers for defining
current axle and running clearance dimensions for light trucks. NHTSA
is also clarifying a safety concern with its definition for classifying
MPVs in 49 CFR 571.3 and its long-term plans to use requirements in its
CAFE program to address the problem. In addition, NHTSA plans to
release its draft test procedure later this year based upon the
requirements finalized in this document. We note that we are not
changing our current regulations on vehicle classification in this
final rule.
---------------------------------------------------------------------------

    \1268\ 86 FR 49602 (Sept. 3, 2021).
---------------------------------------------------------------------------

1. Clarifications for Classifications Based Upon ``Off-Road
Capability''
    For a vehicle to qualify as off-highway (off-road) capable, in
addition to either having 4WD or a GVWR more than 6,000 pounds. The
vehicle must have four out of five characteristics indicative of off-
highway operation. These characteristics are:

 An approach angle of not less than 28 degrees
 A breakover angle of not less than 14 degrees
 A departure angle of not less than 20 degrees
 A running clearance of not less than 20 centimeters
 Front and rear axle clearances of not less than 18 centimeters
each.
(a) Production Measurements
    NHTSA's regulations require manufacturers to measure vehicle
characteristics when a vehicle is at its curb weight, on a level
surface, with the front wheels parallel to the automobile's
longitudinal centerline, and the tires inflated to the manufacturer's
recommended cold inflation pressure.\1269\ NHTSA clarified in the 2020
final rule that 49 CFR part 537 requires manufacturers to classify
vehicles for CAFE based upon their physical production characteristics.
The agency verifies reported values by measuring production vehicles.
Manufacturers must also use physical vehicle measurements as the basis
for values reported to the agency for purposes of vehicle
classification. It may be possible for certain vehicles within a model
type to qualify as light trucks while others would not because of their
production differences. Since issuing the 2020 final rule, NHTSA has
met with manufacturers to reinforce the use of production measurements
and to reduce reporting burdens to NHTSA. For example, NHTSA clarified
that manufacturers should only report classification information for
those physical measurements used for qualification and can omit other
measurements.
---------------------------------------------------------------------------

    \1269\ 49 CFR 523.5(b)(2).
---------------------------------------------------------------------------

    In the previous rulemaking, NHTSA also identified that certain
vehicle designs incorporated rigid (i.e., inflexible) air dams, valance
panels, exhaust pipes, and other components, equipped as manufacturers'
standard or optional equipment (e.g., running boards and towing
hitches), that likely violate a vehicles 20-centimeter running
clearance. Despite these rigid features, some manufacturers were not
taking these components into consideration when making classification
decisions. Additionally, other manufacturers provided dimensions for
their base vehicles without considering optional or various trim level
components that may reduce the vehicle's ground clearance. Consistent
with our approach to other measurements, NHTSA clarifies that ground
clearance, as well as all the other off-highway criteria for a light
truck determination, should use the measurements from vehicles with all
standard and optional equipment installed, at the time vehicles are
shipped to dealerships. These views were shared by manufacturers in
response to the previous CAFE rulemaking.
    The agency reiterates that the characteristics listed in 49 CFR
523.5(b)(2) are characteristics indicative of off-highway capability. A
fixed feature--such as an air dam that does not flex and return to its
original state or an exhaust that could detach--inherently interferes
with the off-highway capability of these vehicles. If manufacturers
seek to classify vehicles as light trucks under 49 CFR 523.5(b)(2) and
the vehicles have a production feature that does not meet the four
remaining characteristics to demonstrate off-highway capability, they
must be classified as passenger cars. NHTSA also clarifies that
vehicles that have adjustable ride height, such as air suspension, and
permit variable on-road or off-road running clearances should be
classified based upon the mode most commonly used or the off-road mode
for those with this feature. NHTSA sought comments in the NPRM on how
to define the mode most commonly used for any adjustable suspensions.
NHTSA also asked, in developing its planned test procedure expected
later in MY 2022, would it be more appropriate to allow manufacturers
to define the mode setting for vehicles with adjustable suspensions.
    In response to the NPRM, NHTSA received several comments about
defining the mode most commonly used for any adjustable suspensions
and, for the test procedure, whether it is more appropriate to allow
manufacturers to define the mode setting for vehicles with adjustable
suspensions. Comments were received from Auto Innovators,\1270\
Stellantis,\1271\ JLR,\1272\ and Ford.\1273\ In general, comments
stated that manufacturers believe they should be able to define the
setting for vehicles with adjustable suspension based on the
manufacturer recommended setting for off-road use.
---------------------------------------------------------------------------

    \1270\ Auto Innovators, NHTSA-2021-0053-1492, at page 66.
    \1271\ Stellantis, NHTSA-2021-0053-1527, at page 29
    \1272\ JLR, NHTSA-2021-0053-1505-A, at p. 5.
    \1273\ Ford, NHTSA-2021-0053-1545-A1, at p. 2.
---------------------------------------------------------------------------

    For example, Auto Innovators provided detailed comments explaining
how that they believe manufacturers should be able to define the
setting for vehicles with adjustable suspension based on the
manufacturer recommended setting for off-road use.\1274\ However, they
also found through subsequent research and submitted to NHTSA that the
most commonly used mode is not necessarily suited to off-road use given
the relatively low frequency of such use. Auto Innovators stated that
given the multitude of settings that a modern vehicle has, it should
generally be the selection that provides the greatest ground clearance.
Such settings are design features intended to further enable off-road
operation. For vehicles with driver-selectable suspension settings,
Auto Innovators recommends that the classification of off-road
capabilities be determined on the dimensional characteristics using the
highest ride height setting recommended for off-road use.
---------------------------------------------------------------------------

    \1274\ Auto Innovators, NHTSA-2021-0053-1492, at page 66.
---------------------------------------------------------------------------

    JLR agrees with Auto Innovators that an off-road mode, if
available, should be used assessing the vehicle compliance to the off-
road requirements.\1275\ Further, if more than one off-road mode is
available, the mode that achieves the highest ride height as this would
be optimized for rock-crawling where the greatest ground clearance is
needed. JLR believes that manufacturers should always define the mode
used for determination of classification because one mode will be most
suited to off-road use, and this would be highlighted to the owner. JLR
states the most

commonly used mode will not likely be the one to use for off-road, as
most vehicles will be predominantly used on-road. It would be
inappropriate to use a mode not intended for off-road use, simply
because it was used most often. Stellantis agrees with Auto Innovators
and JLR in relation to the suggestion that for the test procedure, it
would be more appropriate to allow manufacturers to define the mode
setting for vehicles with adjustable suspensions.
---------------------------------------------------------------------------

    \1275\ JLR, NHTSA-2021-0053-1505-A1, at p. 5.
---------------------------------------------------------------------------

    Ford supported NHTSA's proposal to conduct audits of vehicle
measurements and vehicle classification.\1276\ They state it is
critical that vehicles are properly categorized to maintain the
integrity of the CAFE program and to ensure a level playing field for
all automobile manufacturers. Ford supports convening a group of expert
stakeholders, including NHTSA and automobile manufacturers, to develop
vehicle measurement processes and procedures in a future rulemaking.
Ford recommended that manufacturers have the option to use Computer
Aided Design (CAD) data for dimensional reporting. They stated the use
of CAD data supports the timing and logistical requirements and allows
all buildable combinations of vehicles, including optional equipment,
to be assessed. Ford stated automobile manufacturers are ultimately
responsible for ensuring that their vehicles are built according to
their specifications and that all vehicles are properly categorized.
---------------------------------------------------------------------------

    \1276\ Ford, NHTSA-2021-0053-1545-A1, at p. 2.
---------------------------------------------------------------------------

    NHTSA agrees that auditing manufacturers' classification criteria
will be necessary to create uniformity among vehicles classified as
light trucks. NHTSA plans to use its upcoming compliance test procedure
to collect more information on vehicles with adjustable suspensions.
The questions in the 2021 NPRM attempted to clarify the correct height
adjustment settings for of vehicles with adjustable suspension to
determine if they meet the criteria in 49 CFR part 523 to be classified
as light trucks. The agency thanks the industry for their feedback and
will take it under advisement in future rulemakings and test
procedures. While we are not changing our classification regulations in
this rule, we want to note that we are still weighing whether it is
appropriate to allow manufacturers to choose the height used to
determine CAFE compliance for vehicles with adjustable suspensions. The
purpose for our previous flexibility was to afford maximum leniency for
vehicles necessary for off-road work purposes. However, given the vast
proliferation of SUVs and crossovers--the majority of which will never
be used for off-road purposes--we believe that we will need to
reevaluate what features are indicative of off-road purposes in the
near future. Upon completion of NHTSA's CAFE vehicle classification
testing program, the agency will send its annual compliance questions
to manufacturers as a part of its normal compliance questionnaires to
collect more information on all AWD/4WD vehicles with adjustable
suspensions and to identify the available adjustable ride height
settings of these vehicles. Furthermore, any vehicle tested will be
required to specify all available off-road features as discussed above
as information in response to NHTSA's testing specification request
forms.\1277\
---------------------------------------------------------------------------

    \1277\ See https://www.nhtsa.gov/vehicle-manufacturers/test-specification-forms. (Accessed: March 15, 2022)
---------------------------------------------------------------------------

    The agency wants to remind manufacturers that a vehicle's CAFE
classification is not dispositive of a vehicle's classification for our
safety regulations. Vehicles classified as non-automobiles for CAFE may
be considered passenger cars for our safety regulations.
    Furthermore, consistent with our approach to other measurements,
NHTSA is reaffirming for its final rule that manufacturers must measure
ground clearances, as well as all the other off-highway criteria for a
light truck determination, using vehicles with all standard and
optional equipment installed, at the time vehicles are shipped to
dealerships. These views were shared by manufacturers in response to
the previous CAFE rulemaking. By using measurements from vehicles with
all standard and optional equipment installed, at the time vehicles are
shipped to dealerships, NHTSA can ensure that vehicles are properly
classified.
    Finally, NHTSA does not agree with Ford's recommendation that
manufacturers should use Computer Aided Design (CAD) data for off-road
dimensional reporting. CAD data have been shown in the past to be
ineffective in providing accurate dimensions for production vehicles.
Vehicles on dealer lots have shown high variance in terms of dimensions
from region to region, across the country and in different markets.
This is highly evident through numerous recalls under 49 CFR part 573
filed with NHTSA which identify variance in production plant as a cause
for non-compliances or defects. In the vast majority of recalls, it
shows that the population of vehicles affected are highly dependent on
manufacturing plant, equipment, and vehicle manufacturing processes.
These variances mainly result from stack tolerances produced from a
combination of manufacturing and production tolerances which are not
fully accounted for in CAD drawings. Thus, CAD would not be a valid
tool for representing vehicle production dimensions. However, NHTSA
will continue to discuss the errors that may exist in using CAD for
classifying vehicles with manufacturers for consideration in future
rulemakings.
(b) Testing for Approach, Breakover, and Departure Angles
    Approach angle, breakover angle, and departure angle are relevant
to determine off-highway capability. Large approach and departure
angles ensure the front and rear bumpers and valance panels have
sufficient clearance for obstacle avoidance while driving off-road. The
breakover angle ensures sufficient body clearance from rocks and other
objects located between the front and rear wheels while traversing
rough terrain. Both the approach and departure angles are derived from
a line tangent to the front (or rear) tire static loaded radius arc
extending from the ground near the center of the tire patch to the
lowest contact point on the front or rear of the vehicle. The term
``static loaded radius arc'' is based upon the definitions in SAE J1100
and J1544.\1278\ The term is defined as the distance from wheel axis of
rotation to the supporting surface (ground) at a given load of the
vehicle and stated inflation pressure of the tire (manufacturer's
recommended cold inflation pressure).
---------------------------------------------------------------------------

    \1278\ See SAE J1100 published on May 26, 2012 and SAE J1544
published on Oct 25, 2011.
---------------------------------------------------------------------------

    The static loaded radius arc is easy to measure for computer
simulations, but the imaginary line tangent to the static loaded radius
arc is difficult to ascertain in the field. The approach and departure
angles are the angles between the line tangent to the static loaded
radius arc and the level ground on which the test vehicle rests. For
the compliance test procedure, a substitute measurement will be used. A
measurement that provides a good approximation of the approach and
departure angles involve using a line tangent to the outside diameter
or perimeter of the tire and extends to the lowest contact point on the
front or rear of the vehicle. This approach provides an angle slightly
greater than the angle derived from the true static loaded radius arc.
The approach also has the advantage to allow measurements to be made
quickly for measuring angles in the field to

verify data submitted by the manufacturers used to determine light
truck classification decisions. In order to comply, the vehicle
measurement must be equal to or greater than the required measurements
to be considered as compliant and if not, the reported value will
require an investigation which could lead to the manufacturer's vehicle
becoming reclassified as a passenger car.
    NHTSA plans to start developmental testing for its test vehicle
classification test procedures. We agree with Ford that opening
discussions with expert stakeholders, including NHTSA and automobile
manufacturers, to develop vehicle measurement processes and procedures
is a worthy goal especially during our fabrication of a device to
measure approach, breakover and departure angles. We reiterate that
manufacturers should determine their vehicle classifications using off-
road angles based on a line tangent to the front (or rear) tire static
loaded radius arc. However, for developmental testing, NHTSA will
evaluate the differences in angle measurements between those using its
substitute approach (a line tangent to the outside diameter or
perimeter of the tire and extends to the lowest contact point on the
front or rear of the vehicle) and the true angle based on the static
loaded radius arc. We will share the results with manufacturers to
establish the variations in the measurements and to identify any
complications. Depending upon the outcome of comparisons and
developments for a suitable test device using the static loaded radius
arc, a simple and repeatable apparatus, the agency may forgo
establishing a device for its alternative angle measurement approach
for compliance testing. NHTSA will start reaching out to interested
parties in the next couple of months to start researching approaches
for developing test devices.
(c) Running Clearance
    NHTSA regulations define ``running clearance'' as ``the distance
from the surface on which an automobile is standing to the lowest point
on the automobile, excluding unsprung weight.'' \1279\ Unsprung weight
includes the components (e.g., suspension, wheels, axles, and other
components directly connected to the wheels and axles) that are
connected and translate with the wheels. Sprung weight, on the other
hand, includes all components fixed underneath the vehicle that
translate with the vehicle body (e.g., mufflers and subframes). To
clarify these requirements, NHTSA previously issued a letter of
interpretation stating that certain parts of a vehicle--such as tire
aero deflectors that are made of flexible plastic, bend without
breaking, and return to their original position--would not count
against the 20-centimeter running clearance requirement.\1280\ The
agency explained that this does not mean a vehicle with less than 20
centimeters running clearance could be elevated by an upward force that
bends the deflectors and still be considered compliant with the running
clearance criterion, as it would be inconsistent with the conditions
listed in the introductory paragraph of 49 CFR 523.5(b)(2). Further,
NHTSA explained that without a flexible component installed, the
vehicle must meet the 20-centimeter running clearance requirement along
its entire underside. This 20-centimeter clearance is required for all
sprung weight components. For its compliance test procedure, NHTSA will
include a list of the all the components under the vehicle considered
as unsprung components. NHTSA will update the list of unsprung
components as the need arises.
---------------------------------------------------------------------------

    \1279\ 49 CFR 523.2.
    \1280\ See https://www.nhtsa.gov/interpretations/11-000612-medie-part-523 (accessed Mar. 29, 2022).
---------------------------------------------------------------------------

    NHTSA received several comments in relation to defining ``running
clearance'' as per regulations. Comments were received from Stellantis
\1281\ and Hyundai.\1282\ Stellantis provided comments stating they
agree that the 20 cm clearance is for all sprung components. They also
appreciate the agency re-affirming its interpretation that flexible
components that return to their original position without breaking are
not to be included in the assessment. Hyundai provided comments
requesting NHTSA to clarify that vehicles classified for off-road use
according to the physical production characteristic of ground clearance
should meet a minimum value whereby higher values are acceptable.
Hyundai stated NHTSA provides requirements for a variety of criteria
where a minimum or maximum value is appropriate. They state, for
example, ``NHTSA regulations state that front and rear axle clearances
of not less than 18 centimeters are another criterion that can be used
for designating a vehicle as off-highway capable''. Hyundai continued
``NHTSA explained that without a flexible component installed, the
vehicle must meet the 20-centimeter running clearance requirement along
its entire underside''.
---------------------------------------------------------------------------

    \1281\ Stellantis, NHTSA-2021-0053-1527, at page 29.
    \1282\ Hyundai, NHTSA-2021-0053-1512-A1, at page 8.
---------------------------------------------------------------------------

    NHTSA agrees with Stellantis that the 20 cm clearance requirement
is for sprung components as per NHTSA's regulations and prior
interpretations.
    In response to Hyundai, NHTSA reiterates that the 20-centimeter
clearance is required for all sprung weight components. This is not
related to unsprung weight components such as axles. Unsprung weight
includes the components (e.g., suspension, wheels, axles, and other
components directly connected to the wheels and axles) that are
connected and translate with the wheels. Sprung weight, on the other
hand, includes all components fixed underneath the vehicle that
translate with the vehicle body (e.g., mufflers and subframes). For its
compliance test procedure, NHTSA will include a list of the all the
components under the vehicle considered as unsprung components. NHTSA
will update the list of unsprung components as the need arises.
(d) Front and Rear Axle Clearance
    NHTSA regulations state that front and rear axle clearances of not
less than 18 centimeters are another criterion that can be used for
designating a vehicle as off-highway capable.\1283\ The agency defines
``axle clearance'' as the vertical distance from the level surface on
which an automobile is standing to the lowest point on the axle
differential of the automobile.
---------------------------------------------------------------------------

    \1283\ 49 CFR 523.5(b)(2).
---------------------------------------------------------------------------

    The agency believes this definition may be outdated because of
vehicle design changes, including axle system components and
independent front and rear suspension components which hang lower than
the differential. In the past, traditional light trucks with 4WD
systems had solid rear axles with center- mounted differential on the
axle. For these trucks, the rear axle differential was closer to the
ground than any other axle or suspension system components. This
traditional axle design still exists today for some trucks with a solid
chassis (also known as body-on-frame configuration). Today, however,
many SUVs and CUVs that qualify as light trucks are constructed with a
unibody frame and have unsprung (e.g., control arms, tie rods, ball
joints, struts, shocks, etc.) and sprung components (e.g., the axle
subframes) connected together as a part of the axle assembly. These
unsprung and sprung components are located under the axles, making them
lower to the ground than the axles and the differential, and were not
contemplated when NHTSA established

the definition and the allowable clearance for axles. The definition
also did not originally account for 2WD vehicles with GVWRs greater
than 6,000 pounds that had one axle without a differential, such as the
model year 2018 Ford Expedition. Vehicles with axle components that are
low enough to interfere with the vehicle's ability to perform off-road
would seem inconsistent with the regulation's intent of ensuring off-
highway capability.
    In light of these issues, for the compliance test procedure, in the
2020 final rule, NHTSA stated it would request manufacturers to
identify those axle components that are sprung or unsprung and provide
sufficient justification as a part of the testing setup request forms
sent to manufacturers in support of its compliance testing program. In
addition, for vehicles without a differential, NHTSA would request the
location each manufacturer used to establish its axle clearance
qualification. NHTSA would validate the location specified by the
manufacturer but would challenge any location on the vehicle's axle
found to be located at a lower elevation to the ground than the
designed location of its axle clearance measurement. NHTSA reiterated
this approach in the 2021 NPRM and committed to adding the approach in
its upcoming vehicle classification test procedure.\1284\
---------------------------------------------------------------------------

    \1284\ 86 FR 49602 (Sept. 3, 2021).
---------------------------------------------------------------------------

    In response to the NPRM, NHTSA received several comments in
relation to defining ``Front and Rear Axle Clearance'' as per NHTSA
regulations. Comments were received from Auto Innovators \1285\ and
Stellantis.\1286\ Auto Innovators provided comments stating they
believe the current definition is sufficient as the differential is the
vulnerable component. They expressed that other suspension components
closer to the tire are not likely to: (1) Hit the ground due to
proximity to the tire, and (2) are much more likely to tolerate the
occasional contact in a 4-low/off-road situation. Auto Innovators
stated if NHTSA believes addressing suspension or axle components in
independent suspension systems is necessary, it should engage with SAE
International to develop a procedure for measuring the clearances of
such components, determine typical clearances in vehicles classified as
light trucks based on other off-road capability criteria, and seek
input from automobile manufacturers and off-road user groups. Auto
Innovators believed only then should NHTSA consider formally proposing
appropriate additional off-road characteristics for 49 CFR 523.5(b)(2)
to address such components. They stated if NHTSA modified the
definition of ``axle clearance'' or changes its interpretation of the
definition, through test procedures or otherwise, to include components
or locations other than the bottom of the differential, it should not
reclassify vehicles on the basis of such changes until MY 2027 at the
earliest, and the footprint-based target curves should be reassessed.
---------------------------------------------------------------------------

    \1285\ Auto Innovators, NHTSA-2021-0053-1492, at page 69.
    \1286\ Stellantis, NHTSA-2021-0053-1527, at page 29.
---------------------------------------------------------------------------

    Additionally, Stellantis provided comments stating suspension
components, both on a solid axle truck or independent suspension have
the possibility of being closer to the ground, but this is generally
closer to the tire where the ground clearance need is least as the tire
will lift the vehicle and nearby suspension components over an
obstacle, versus a differential that might make contact if a driver
chooses to straddle an obstacle.\1287\ Further, they believe,
suspension components are unlikely to be damaged by light or incidental
contact and therefore don't need the same clearance protection as a
differential. Lastly, they believe, the suspension components
essentially prevent ground contact to half shafts so they are similarly
not vulnerable to contact. Stellantis does not believe a change is
needed to the axle clearance requirement. If a change is needed,
Stellantis requested that the agency work with manufacturers to develop
a new requirement. They stated regardless, any change to this
requirement demands ample lead-time for manufacturers to incorporate
into a redesign. They believe anything less would result in a de facto
stringency change in the rule as some number of vehicles would
presumably be reclassified as passenger cars. Stellantis stated this
has not been considered and is not likely to be trivial. Stellantis
believed if this change is adopted, then the agency should also work
with industry to understand which vehicles would become part of the
passenger car fleet, and then reassess the footprint stringency lines
for both fleets.
---------------------------------------------------------------------------

    \1287\ Stellantis, NHTSA-2021-0053-1527, at page 29.
---------------------------------------------------------------------------

    We thank the industry for their input, and will take it into
consideration as we consider CAFE vehicle classifications in the
future. The comments raised further questions. Our regulations state
that front and rear axle clearances of not less than 18 centimeters are
another criterion that can be used for designating a vehicle as off-
highway capable. Vehicles with axle components that are low enough to
interfere with the vehicle's ability to perform off-road would seem
inconsistent with the regulation's intent of ensuring off-highway
capability. Both Auto Innovators and Stellantis assume that suspension
components closer to the tire are not likely to: (1) Hit the ground due
to proximity to the tire, and (2) are much more likely to tolerate the
occasional contact in an off-road situation. However, we are uncertain
if commenters considered the possibility of debris or obstacles
encountered off-road that could significantly damage these components.
While differentials are significant components of an off-road vehicles
ability to traverse off-road terrains so are other suspension
components and any ridged components attached to the vehicle that are
lower than the differential. There are a multitude of scenarios where
these unsprung and sprung components could be damaged significantly
decreasing the off-road ability of a vehicle. We need to assess these
factors as the agency works with manufacturers to develop a new
requirement as Auto Innovators and Stellantis suggested. NHTSA's
current intent presently is not to modify the definition of ``axle
clearance'' or adopt changes through its test procedure but rather to
continue collecting information through communication with the industry
and then in subsequent rulemaking consider changes to its definitions.
NHTSA also agrees with Auto Innovators and Stellantis that the agency
should also work with industry to understand which vehicles would
become part of the passenger car fleet and reassess the footprint
stringency lines for both fleets.
(e) 49 CFR 571.3 MPV Definition
    As discussed in the previous sections, NHTSA asked commenters to
provide some feedback to assist in the creation of test procedures.
While ``multi-purpose vehicles'' (MPVs) is not a vehicle classification
for CAFE purposes, we took the opportunity to seek comment on our
definition of MPV in the proposal as it touches upon many of the same
issues discussed above. In the proposal, NHTSA questioned whether to
link the definition of MPV in 49 CFR 571.3 (as it relates to special
features for occasional off-road operation) to 49 CFR 523.5(b)(2). It
also asked what drawbacks exist in linking both provisions. Another
question raised was whether using the longstanding off-road features
for fuel economy provides could clarify the means for certifying that a
vehicle meets the definition for MPV in Sec.  571.3 when

manufacturers may otherwise be uncertain as to how to classify a
vehicle.
    In response to the NPRM, NHTSA received several comments in
relation to linking the definition of MPV in 49 CFR 571.3, as it
relates to special features for occasional off-road operation, to the
one in 49 CFR 523.5(b)(2). Comments were received from Auto
Innovators,\1288\ Ford,\1289\ Hyundai,\1290\ and JLR.\1291\ In general,
comments opposed linking the two standards, but failed to define other
special features to qualify for occasional off-road operation. We will
use the feedback from manufacturers in the future when we consider
safety vehicle classification.
---------------------------------------------------------------------------

    \1288\ Auto Innovators, NHTSA-2021-0053-1492, at pp. 70-71.
    \1289\ Ford, NHTSA-2021-0053-1545-A1, at p. 2.
    \1290\ Hyundai, NHTSA-2021-0053-1512-A1, at p. 8.
    \1291\ JLR, NHTSA-2021-0053-1505-A, at p. 1.
---------------------------------------------------------------------------

VIII. Regulatory Notices and Analyses

A. Executive Order 12866, Executive Order 13563

    Executive Order 12866, ``Regulatory Planning and Review'' (58 FR
51735, Oct. 4, 1993), as amended by Executive Order 13563, ``Improving
Regulation and Regulatory Review'' (76 FR 3821, Jan. 21, 2011),
provides for making determinations whether a regulatory action is
``significant'' and therefore subject to the Office of Management and
Budget (OMB) review process and to the requirements of the Executive
order. Under these Executive orders, this action is an ``economically
significant regulatory action'' because it is likely to have an annual
effect on the economy of $100 million or more. Accordingly, NHTSA
submitted this action to OMB for review and any changes made in
response to OMB recommendations have been documented in the docket for
this action. The benefits and costs of this final rule are described
above and in the FRIA, which is located in the docket and on NHTSA's
website.

B. DOT Regulatory Policies and Procedures

    This final rule is also significant within the meaning of the
Department of Transportation's Regulatory Policies and Procedures. The
benefits and costs of the final rule are described above and in the
FRIA, which is located in the docket and on NHTSA's website.

C. Executive Order 13990

    Executive Order 13990, ``Protecting Public Health and the
Environment and Restoring Science to Tackle the Climate Crisis'' (86 FR
7037, Jan. 25, 2021), directed the immediate review of ``The Safer
Affordable Fuel-Efficient (SAFE) Vehicles Rule for Model Years 2021-
2026 Passenger Cars and Light Trucks'' (the 2020 final rule) by July
2021. The Executive order directed that ``[i]n considering whether to
propose suspending, revising, or rescinding that rule, the agency
[i.e., NHTSA] should consider the views of representatives from labor
unions, States, and industry.''
    This final rule follows the review directed in this Executive
order. Promulgated under NHTSA's statutory authorities, it finalizes
new CAFE standards for the model years covered by the 2020 final rule
for which there is still available lead time to change, and it accounts
for the views provided by labor unions, States, and industry.

D. Environmental Considerations

1. National Environmental Policy Act (NEPA)
    Concurrently with this final rule, the agency is releasing a Final
SEIS, pursuant to the National Environmental Policy Act, 42 U.S.C. 4321
through 4347, and implementing regulations issued by the Council on
Environmental Quality (CEQ), 40 CFR part 1500, and NHTSA, 49 CFR part
520. The agency prepared the Final SEIS to analyze and disclose the
potential environmental impacts of the proposed CAFE standards and a
range of alternatives. The Final SEIS analyzes direct, indirect, and
cumulative impacts and analyzes impacts in proportion to their
significance. It describes potential environmental impacts to a variety
of resources, including fuel and energy use, air quality, climate, land
use and development, hazardous materials and regulated wastes,
historical and cultural resources, noise, and environmental justice.
The Final SEIS also describes how climate change resulting from global
carbon dioxide emissions (including CO2 emissions attributable to the
U.S. light duty transportation sector under the alternatives
considered) could affect certain key natural and human resources.
Resource areas are assessed qualitatively and quantitatively, as
appropriate, in the Final SEIS.
    The agency has considered the information contained in the Final
SEIS in making the final decision described in this final rule.\1292\
This preamble and final rule constitute the agency's Record of Decision
(ROD) under 40 CFR 1505.2 for its promulgation of CAFE standards for
MYs 2024-2026. The agency has authority to issue its Final SEIS and ROD
simultaneously pursuant to 49 U.S.C. 304a(b) and U.S. Department of
Transportation, Office of Transportation Policy, Guidance on the Use of
Combined Final Environmental Impact Statements/Records of Decision and
Errata Sheets in National Environmental Policy Act Reviews (April 25,
2019).\1293\ NHTSA has determined that neither the statutory criteria
nor practicability considerations preclude simultaneous issuance.
---------------------------------------------------------------------------

    \1292\ The Final SEIS is available for review in the public
docket for this action and in Docket No. NHTSA-2021-0054.
    \1293\ The guidance is available at https://www.transportation.gov/sites/dot.gov/files/docs/mission/transportation-policy/permittingcenter/337371/feis-rod-guidance-final-04302019.pdf (accessed: February 10, 2022).
---------------------------------------------------------------------------

    As required by the CEQ regulations,\1294\ this final rule (as the
ROD) sets forth the following in Sections IV, V, and VI above (1) the
agency's decision (2) alternatives considered by NHTSA in reaching its
decision, including the environmentally preferable alternative; (3) the
factors balanced by NHTSA in making its decision, including essential
considerations of national policy (Section VIII.B above); (4) how these
factors and considerations entered into its decision; and (5) the
agency's preferences among alternatives based on relevant factors,
including economic and technical considerations and agency statutory
missions. The following sections discuss comments received on the Draft
SEIS, NHTSA's range of alternatives, and other factors used in the
decision-making process. This section also briefly addresses mitigation
\1295\ and whether all practicable means to avoid or minimize
environmental harm from the alternative selected have been adopted.
---------------------------------------------------------------------------

    \1294\ 40 CFR 1505.2.
    \1295\ See 40 CFR 1508.1(s) (``Mitigation includes . . .
[m]inimizing impacts by limiting the degree or magnitude of the
action and its implementation.'').
---------------------------------------------------------------------------

    One commenter, the WDNR, stated that NHTSA should collaborate more
with EPA, especially when it comes to addressing any collateral impacts
on criteria pollutant emissions, since both agencies have rulemakings
related to analyses of anticipated GHG and criteria pollutant emissions
impacts. NHTSA believes that it properly coordinates with EPA and that
differences in the respective rules are due to each agencies'
authority. EPA is a Cooperating Agency on the Final SEIS, and as such,
NHTSA coordinated with EPA to review and comment on the Draft and Final
SEISs prior to publication. Separately, as discussed further below and
in the Final SEIS, the agency's authority to promulgate fuel economy
standards does not allow it to regulate criteria pollutants from
vehicles

or refineries (nor can NHTSA regulate other factors affecting those
emissions, such as driving habits); however, EPA still retains the
ability to regulate NAAQS under the Clean Air Act.
    Some commenters agreed that that the range of alternatives
presented in NHTSA's Proposal and accompanying Draft SEIS represented a
reasonable range of final agency actions. However, some commenters
advocated for the finalization of standards more stringent than
Alternative 2 to better advance NHTSA's statutory purposes of
maximizing fuel economy considering the environmental, heath, and
security needs of the United States to conserve energy. Some commenters
stated that NHTSA needs to implement more stringent standards in order
to improve public health, to help mitigate some of the impacts of
climate change, including poor air quality, to assist States in
attaining and maintaining the National Ambient Air Quality Standards
(NAAQS), and to meet environmental justice goals. NHTSA agrees that
increasing the fuel economy of the passenger car and light[hyphen]truck
fleet would result in public health and climate benefits, which are
analyzed in the Final SEIS, the TSD, and the FRIA.
    As described in the Final SEIS, Chapter 1, Purpose and Need for the
Action, NHTSA must consider the requirements of EPCA, which sets forth
the four factors the agency must balance when determining ``maximum
feasible'' standards. NHTSA's explanation for how it arrived at the
range of alternatives under consideration is in Section IV and VI and
incorporated by reference in the SEIS. NHTSA must consider all the
statutory factors when considering which standards are maximum
feasible, and cannot consider some to the exclusion of others, as
described at length in Section VI of this preamble. NHTSA agrees with
commenters that the range of alternatives under consideration in the
SEIS is reasonable, in light of the factors it must balance. All of the
action alternatives NHTSA evaluated for the SEIS would result in
substantial fuel savings and associated GHG emissions reductions, as
well as many of the other benefits highlighted by the commenters. NHTSA
also believes that considering more aggressive standards beyond what
the agency has modeled for the action alternatives would exceed maximum
feasibility.
    In the Draft SEIS and in the Final SEIS, the agency identified a
Preferred Alternative. In the Draft SEIS, the Preferred Alternative was
identified as Alternative 2 (8.0 percent average annual increase for
both passenger cars and light trucks for MYs 2024-2026), which were the
standards the agency proposed in the NPRM. In the Final SEIS, the
Preferred Alternative was identified as Alternative 2.5. As the Final
SEIS notes, under the Preferred Alternative, on an mpg basis, the
estimated annual increases in the average required fuel economy levels
between MYs 2024 and 2025 is 8.0 percent for both passenger cars and
light trucks and for MY 2026, annual increases in average require fuel
economy levels is 10.0 percent for both passenger cars and light
trucks.\1296\ After carefully reviewing and analyzing all of the
information in the public record, comments submitted on the Draft SEIS,
and the Final SEIS, NHTSA decided to finalize the Preferred Alternative
described in the Final SEIS for the reasons described in this ROD.
---------------------------------------------------------------------------

    \1296\ Because the standards are attribute-based, average
required fuel economy levels, and therefore rates of increase in
those average mpg values, depend on the future composition of the
fleet, which is uncertain and subject to change. When NHTSA
describes a percent increase in stringency, we mean in terms of
shifts in the footprint functions that form the basis for the actual
CAFE standards (as in, on a gallon per mile basis, the CAFE
standards change by a given percentage from one model year to the
next).
---------------------------------------------------------------------------

    Some commenters agreed with the underlying CAFE Model assumptions
that affected the environmental modeling in the SEIS, like including
the California's ZEV standards in the baseline for this final rule.
Other commenters disagreed with some assumptions, such as rebound rate
and import share assumptions, and identified the impact of those
assumptions on VMT. Another commenter noted that NHTSA used outdated
CAFE Model input assumptions that inform the analyses presented in the
SEIS and do not reflect the best available evidence. The agency
addresses the comments regarding the CAFE Model above in Section III of
the preamble. NHTSA has considered and accounted for California's ZEV
standards in developing the baseline for this final rule and agrees
that it is reasonable to include these standards in the baseline for
this final rule as they are other legal requirements affecting
automakers. To the extent that commenters are concerned about CAFE
Model input assumptions that inform the analyses presented in the Draft
and Final SEIS, as discussed further in preamble Section II.C, Changes
in Light of Public Comments and New Information, NHTSA did update the
analysis for the final rule. Some of these updates include updates to
assumptions mentioned by the commenter, e.g., adjusting the measure of
rebound driving from fifteen to ten percent. A full list of changes for
the final rule analysis and the basis for those changes is discussed
throughout the preamble and in the relevant portions of the TSD.
    NHTSA performed a national-scale photochemical air quality modeling
and health benefit assessment for the Final SEIS; it is included as
Appendix D. The purpose of this assessment was to use air quality
modeling and health-related benefits analysis tools to examine the
potential air quality-related consequences of the alternatives
considered in the Draft SEIS. As provided for prior rulemakings and for
the scoping notice for this EIS, NHTSA also announced that, due to the
substantial lead time required, the analysis would be based on the
modeling of the alternatives presented in the Draft SEIS, not of the
alternatives as presented in the Final SEIS. Furthermore, while
photochemical modeling provides spatial and temporal detail for
estimating changes in ambient levels of air pollutants and their
associated impacts on human health and welfare for the alternatives
considered, the analysis affirms the estimates that appear in the SEIS
and does not provide significant new information for the decisionmaker
or the public.
    The Sierra Club stated that NHTSA's Draft SEIS presents ``an
erroneous picture of the GHG emissions impacts of battery electric
vehicles (EVs)'' and relies on ``stale data.'' \1297\ The commenter
stated that ``when more current data are used, the results are
dramatically different and show that EVs are already superior to
internal combustion engine (ICE) vehicles from a GHG emissions
perspective across almost the entire country, and trends in power
generation will cause EVs to further outpace ICE vehicles on emission
reductions in the coming years.'' NHTSA has updated the Final SEIS
Section <IP_ADDRESS>, Charging Locations, to use more appropriate and
current emission factors to assess the CO2 impacts from electric
vehicle (EV) charging locations and behaviors, and NHTSA updated
Section 6.2.1, Diesel and Gasoline, in the Final SEIS to discuss
transporting oil sands crude by pipeline and rail.
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    \1297\ NHTSA acknowledged but did not address this limitation in
the Draft SEIS. Draft SEIS at 6-16 (``The U.S. grid mix has changed
significantly over the past decade, and this means that older [life-
cycle assessments] based on different grid mix assumptions might not
be comparable with findings in Chapters 4 and 5, which are based on
more recent grid mix forecasts.'').
---------------------------------------------------------------------------

    NHTSA considered environmental considerations as part of its
balancing of

the statutory factors to set maximum feasible fuel economy standards.
As a result, the agency has limited the degree or magnitude of the
action as appropriate in light of its statutory responsibilities. The
agency's authority to promulgate fuel economy standards does not allow
it to regulate criteria pollutants from vehicles or refineries, nor can
NHTSA regulate other factors affecting those emissions, such as driving
habits. Consequently, NHTSA must set CAFE standards but is unable to
take further steps to mitigate the impacts of these standards. Chapter
9 of the Final SEIS provides a further discussion of mitigation
measures in the context of NEPA.
2. Clean Air Act (CAA) as Applied to NHTSA's Final Rule
    The CAA (42 U.S.C.[thinsp]7401 et seq.) is the primary Federal
legislation that addresses air quality. Under the authority of the CAA
and subsequent amendments, EPA has established National Ambient Air
Quality Standards (NAAQS) for six criteria pollutants, which are
relatively commonplace pollutants that can accumulate in the atmosphere
as a result of human activity. EPA is required to review each NAAQS
every five years and to revise those standards as may be appropriate
considering new scientific information.
    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). Concentrations of criteria pollutants within the air mass
of a region are measured in parts of a pollutant per million parts
(ppm) of air or in micrograms of a pollutant per cubic meter ([mu]g/m3)
of air present in repeated air samples taken at designated monitoring
locations using specified types of monitors. 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 region are below those permitted by the NAAQS, EPA
designates the region as an attainment area for that pollutant, while
regions where concentrations of criteria pollutants exceed Federal
standards are called nonattainment areas. Former nonattainment areas
that are now in compliance with the NAAQS are designated as maintenance
areas. Each State with a nonattainment area is required to develop and
implement a State Implementation Plan (SIP) documenting how the region
will reach attainment levels within time periods specified in the CAA.
For maintenance areas, the SIP must document how the State intends to
maintain compliance with the NAAQS. When EPA revises a NAAQS, each
State must revise its SIP to address how it plans to attain the new
standard.
    No Federal agency may ``engage in, support in any way or provide
financial assistance for, license or permit, or approve'' any activity
that does not ``conform'' to a SIP or Federal Implementation Plan after
EPA has approved or promulgated it.\1298\ 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., unless the plan, program, or project has been found to
``conform'' to any applicable implementation plan in effect.\1299\ 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:
---------------------------------------------------------------------------

    \1298\ 42 U.S.C. 7506(c)(1).
    \1299\ 42 U.S.C. 7506(c)(2).
---------------------------------------------------------------------------

    (1) The Transportation Conformity Rule \1300\ 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.
---------------------------------------------------------------------------

    \1300\ 40 CFR part 51, subpart T, and part 93, subpart A.
---------------------------------------------------------------------------

    (2) The General Conformity Rule \1301\ 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.\1302\ If the net increases of direct and indirect
emissions exceed any of these thresholds, and the action is not
otherwise exempt, 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.
---------------------------------------------------------------------------

    \1301\ 40 CFR part 51, subpart W, and part 93, subpart B.
    \1302\ 40 CFR 93.153(b).
---------------------------------------------------------------------------

    The CAFE standards and associated program activities are not
developed, funded, or approved under title 23 or chapter 53 of title
49, United States Code. Accordingly, this action and associated program
activities are not subject to transportation conformity. Under the
General Conformity Rule, a conformity determination is required where 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). As explained below, the agency'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.'' \1303\ The agency's action would set fuel
economy standards for light duty vehicles. It therefore would not cause
or initiate direct emissions consistent with the meaning of the General
Conformity Rule.\1304\ Indeed, the agency's action in aggregate reduces
emissions, and to the degree the model predicts small (and time-
limited) increases, these increases are based on a theoretical response
by individuals to fuel economy prices and savings, which are at best
indirect. 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.\1305\ Each element of the definition
must be met to qualify as indirect emissions. NHTSA has determined
that, for purposes of general conformity, emissions (if any) that may
result from its final fuel economy standards would not be caused by the
agency's action, but rather would occur because of subsequent
activities the

agency cannot practically control. ``[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.'' \1306\
---------------------------------------------------------------------------

    \1303\ 40 CFR 93.152.
    \1304\ Dep't of Transp. v. Pub. Citizen, 541 U.S. at 772
(``[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.''). NHTSA's action is to establish
fuel economy standards for MY 2021-2026 passenger car and light
trucks; any emissions increases would occur in a different place and
well after promulgation of the final rule.
    \1305\ 40 CFR 93.152.
    \1306\ 40 CFR 93.152.
---------------------------------------------------------------------------

    As the CAFE program uses performance-based standards, NHTSA cannot
control the technologies vehicle manufacturers use to improve the fuel
economy of passenger cars and light trucks. Furthermore, NHTSA cannot
control consumer purchasing (which affects average achieved fleetwide
fuel economy) and driving behavior (i.e., operation of motor vehicles,
as measured by VMT). It is the combination of fuel economy
technologies, consumer purchasing, and driving behavior that results in
criteria pollutant or precursor emissions. For purposes of analyzing
the environmental impacts of the alternatives considered under NEPA,
NHTSA has made assumptions regarding all of these factors. The agency's
Final SEIS projects that increases in air toxic and criteria pollutants
would occur in some nonattainment areas under certain alternatives in
the near term, although over the longer term, all action alternatives
see improvements. However, the standards and alternatives do not
mandate specific manufacturer decisions, consumer purchasing, or driver
behavior, and NHTSA cannot practically control any of them.\1307\
---------------------------------------------------------------------------

    \1307\ See, e.g., Dep't of Transp. v. Pub. Citizen, 541 U.S.
752, 772-73 (2004); S. Coast Air Quality Mgmt. Dist. v. Fed. Energy
Regulatory Comm'n, 621 F.3d 1085, 1101 (9th Cir. 2010).
---------------------------------------------------------------------------

    One commenter, the WDNR, stated that ``NHTSA should work with EPA
to offset any short-term increases in NOX and VOC emissions
associated with the rule'' and suggested that NHTSA is ``largely
plac[ing] the burden of implementing any measures on state and local
agencies'' by not taking certain actions to offset criteria pollutant
increases. NHTSA disagrees, as it is not within NHTSA's jurisdiction to
implement such measures and lacks the expertise to conduct a full-scale
analysis of their efficacy.
    In addition, NHTSA does not have the statutory authority to control
the actual VMT by drivers. As the extent of emissions is directly
dependent on the operation of motor vehicles, changes in any emissions
that result from the agency's CAFE standards are not changes the agency
can practically control or for which the agency has continuing program
responsibility. Therefore, the final CAFE standards and alternative
standards considered by NHTSA would not cause indirect emissions under
the General Conformity Rule, and a general conformity determination is
not required.
3. 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.\1308\ The agency concludes that the
NHPA is not applicable to this rulemaking because the promulgation of
CAFE standards for light duty vehicles is not the type of activity that
has the potential to cause effects on historic properties. However,
NHTSA includes a brief, qualitative discussion of the impacts of the
alternatives on historical and cultural resources in the Final SEIS.
---------------------------------------------------------------------------

    \1308\ 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.
---------------------------------------------------------------------------

4. 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 agency concludes that the FWCA does not apply to this
final rule because it does not involve the conservation of nongame fish
and wildlife and their habitats. However, NHTSA conducted a qualitative
review in its Final SEIS of the related direct, indirect, and
cumulative impacts, positive or negative, of the alternatives on
potentially affected resources, including nongame fish and wildlife and
their habitats.
5. 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.\1309\
---------------------------------------------------------------------------

    \1309\ 16 U.S.C. 1456(c)(1)(A).
---------------------------------------------------------------------------

    NHTSA concludes that the CZMA does not apply to this rulemaking
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.
    The Center for Biological Diversity (CBD) commented that sea-level
rise driven by climate change is accelerating and threatening many
coastal species, including citing research results ``that sea level
rise resulting from climate change, and the inadequacy of existing
regulatory mechanisms to address climate change, are primary threats
endangering these species,'' including the loggerhead turtle, and that
``sea level rise will be much more extreme without strong action to
reduce greenhouse gas pollution.'' Therefore, CBD claimed that
``finalizing the Rule is likely to result in a significant increase of
CO2 emissions and worsen sea-level rise'' and ``triggers
NHTSA's legal duty under the ESA to consult on how continued habitat
loss due to sea-level rise will adversely affect the loggerhead sea
turtle and other listed species threatened by sea-level rise.'' In the
Final SEIS, NHTSA estimates that the sea-level rise in 2100 associated
with Preferred Alternative would be 0.05 centimeter. Such a level is
too small to have any meaningful impact on land or water use or a
natural resource of the coastal zone. Furthermore, as this final rule
amends CAFE standards that increase each year for MYs 2024-2026, this
action will result in reductions in sea-level rise resulting from
climate change compared to the sea-level rise that would result from
the 2020 final rule standards. NHTSA continues to conclude that the
CZMA is not applicable to this rulemaking.
    NHTSA has, however, conducted a qualitative review in the Final
SEIS of the related direct, indirect, and cumulative impacts, positive
or negative, of the alternatives on

potentially affected resources, including coastal zones.
6. Endangered Species Act (ESA)
    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 (collectively,
``listed species'') or result in the destruction or adverse
modification of the designated critical habitat of these species.\1310\
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) or the National
Oceanic and Atmospheric Administration's National Marine Fisheries
Service of the Department of Commerce (together, ``the Services'') or
both, 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.\1311\ Under this standard, the
Federal agency taking action evaluates the possible effects of its
action and determines whether to initiate consultation.\1312\
---------------------------------------------------------------------------

    \1310\ 16 U.S.C. 1536(a)(2).
    \1311\ See 50 CFR 402.14.
    \1312\ See 50 CFR 402.14(a) (``Each Federal agency shall review
its actions at the earliest possible time to determine whether any
action may affect listed species or critical habitat.'').
---------------------------------------------------------------------------

    The Section 7(a)(2) implementing regulations require consultation
if a Federal agency determines its action ``may affect'' listed species
or critical habitat.\1313\ The regulations define ``effects of the
action'' as ``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.'' \1314\ The
definition makes explicit a ``but for'' test and the concept of
``reasonably certain to occur'' for all effects.\1315\ The Services
have defined ``but for'' causation to mean ``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.'' \1316\
---------------------------------------------------------------------------

    \1313\ 50 CFR 402.14(a). The recently issued final rule revising
the regulations governing the ESA Section 7 consultation process. 84
FR 44976 (Aug. 27, 2019). The effective date of the new regulations
was subsequently delayed to October 28, 2019. 84 FR 50333 (Sept. 25,
2019). As discussed in the text that follows, NHTSA believes that
the conclusion would be the same under both the current and prior
regulations.
    \1314\ 50 CFR 402.02 (emphasis added), as amended by 84 FR
44976, 45016 (Aug. 27, 2019).
    \1315\ The Services' prior regulations defined ``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.'' 50
CFR 402.02 (as in effect prior to Oct. 28, 2019). Indirect effects
were defined as ``those that are caused by the proposed action and
are later in time, but still are reasonably certain to occur.'' Id.
    \1316\ 84 FR 44977 (Aug. 27, 2019) (``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.''). We note that as the Services do not consider
this to be a change in their longstanding application of the ESA,
this interpretation applies equally under the prior regulations
(which were effective through October 28, 2019), and the current
regulations.
---------------------------------------------------------------------------

    The ESA regulations also provide a framework for determining
whether consequences are caused by a proposed action and are therefore
``effects'' that may trigger consultation. The regulations provide in
part:
    To be considered an effect of a proposed action, a consequence must
be caused by the proposed action (i.e., the consequence would not occur
but for the proposed action and is reasonably certain to occur). A
conclusion of reasonably certain to occur must be based on clear and
substantial information, using the best scientific and commercial data
available. Considerations for determining that a consequence to the
species or critical habitat is not caused by the proposed action
include, but are not limited to:
    (1) The consequence is so remote in time from the action under
consultation that it is not reasonably certain to occur; or
    (2) The consequence is so geographically remote from the immediate
area involved in the action that it is not reasonably certain to occur;
or
    (3) The consequence is only reached through a lengthy causal chain
that involves so many steps as to make the consequence not reasonably
certain to occur.\1317\
---------------------------------------------------------------------------

    \1317\ 50 CFR 402.17(b).
---------------------------------------------------------------------------

    The regulations go on to make clear that the action agency must
factor these considerations into its assessments of potential
effects.\1318\
---------------------------------------------------------------------------

    \1318\ 50 CFR 402.17(c) (``The provisions in paragraphs (a) and
(b) of this section must be considered by the action agency and the
Services.'').
---------------------------------------------------------------------------

    The Services have previously provided legal and technical guidance
about whether CO2 emissions associated with a specific
proposed Federal action trigger ESA Section 7(a)(2) consultation. NHTSA
analyzed the Services' history of actions, analysis, and guidance in
Appendix G of the MY 2012-2016 CAFE standards EIS and now incorporate
by reference that appendix in this preamble.\1319\ In that appendix,
NHTSA looked at the history of the Polar Bear Special Rule (73 FR
76249, Dec. 16, 2008) and several guidance memoranda provided by FWS
and the U.S. Geological Survey. Ultimately, DOI concluded that a causal
link could not be made between CO2 emissions associated with
a proposed Federal action and specific effects on listed species;
therefore, no Section 7(a)(2) consultation would be required.
---------------------------------------------------------------------------

    \1319\ Available on NHTSA's Corporate Average Fuel Economy
website at 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.\1320\ FWS then issued a revised
final special rule for the Polar Bear.\1321\ 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.'' \1322\ The statement in the revised final special rule is
consistent with the prior guidance published by FWS and remains valid
today.\1323\ Likewise, the current regulations identify remoteness in
time, geography, and the causal chain as factors to be considered in
assessing

whether a consequence is ``reasonably certain to occur.'' If the
consequence is not reasonably certain to occur, it is not an ``effect
of a proposed action'' and does not trigger the consultation
requirement.
---------------------------------------------------------------------------

    \1320\ 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).
    \1321\ 78 FR 11766 (Feb. 20, 2013).
    \1322\ 78 FR 11784-11785 (Feb. 20, 2013).
    \1323\ 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).
---------------------------------------------------------------------------

    In the NPRM for this action, NHTSA stated that pursuant to Section
7(a)(2) of the ESA, the agency considered the effects of the proposed
standards and reviewed applicable ESA regulations, case law, and
guidance to determine what, if any, impact there might be to listed
species or designated critical habitat. NHTSA considered issues related
to emissions of CO2 and other GHGs, and issues related to
non-GHG emissions. NHTSA stated that based on this assessment, the
agency determined that the action of setting CAFE standards does not
require consultation under Section 7(a)(2) of the ESA. NHTSA received
one comment on its analysis of obligations under the ESA, which is
summarized below.
    The Center for Biological Diversity (CBD) provided two reasons why
they believe the rule ``triggers NHTSA's procedural duty to undergo
Section 7 consultation.'' \1324\ First, CBD stated that NHTSA's
adoption of the proposed alternative is discretionary and if ``an
agency has any statutory discretion over the action in question, that
agency has the authority, and thus the responsibility, to comply with
the ESA.'' \1325\ CBD argued that NHTSA, in its discretion to adopt
less stringent standards than the strongest alternative analyzed, or
even a stronger alternative than the most stringent alternative
analyzed, directly ties NHTSA's action to harm to listed species and
critical habitat. CBD stated that although the rule would reduce the
total amount of greenhouse gas and other emissions compared to the
baseline (i.e., the 2020 final rule), NHTSA's decision to finalize this
rule would nonetheless allow cars and light trucks to emit millions of
metric tons of greenhouse gases and tens of thousands of tons of
criteria pollutants. CBD stated that the increases in greenhouse gas
emissions between alternatives, specifically between the proposal's
alternative 2 and alternative 3, are not insignificant, and they can be
directly tied to harm to species or critical habitat, such as to
precise losses of sea ice and sea ice days in the Arctic. CBD also
stated that NHTSA is ``making the discretionary decision to include a
number of different regulatory flexibilities and credits, which allow
manufacturers to avoid or delay producing vehicles that would reduce
their emissions.'' CBD concluded that by undergoing consultation under
the ESA, NHTSA could make discretionary decisions, such as regarding
stringency levels and uses of credits and other flexibilities, that
mitigate these effects.
---------------------------------------------------------------------------

    \1324\ Docket No. NHTSA-2021-0053-1549.
    \1325\ NHTSA-2021-0053-1549, at 4 (citing Am. Rivers v. United
States Army Corps of Eng'rs, 271 F.Supp.2d 230, 251 (D.D.C. 2003)).
---------------------------------------------------------------------------

    Second, CBD stated that NHTSA's adoption of the rule is an
``action'' under the ESA, that ``may affect'' endangered species or
their habitat. CBD stated that the ``may affect'' standard includes
``[a]ny possible effect, whether beneficial, benign, adverse or of an
undetermined character'', citing the 1986 final rule on interagency
cooperation under the ESA. CBD stated that ``the increases in
greenhouse gas and criteria emissions--associated with the agency
decisions described above--may impact the hundreds of federally
protected species and their critical habitats that are imperiled due
specifically to exacerbated climate change, nitrogen deposition, and
greater levels of particular air pollutants from vehicle emissions.''
    NHTSA has again reviewed applicable ESA regulations, case law,
guidance, and rulings in assessing the potential for impacts on
threatened and endangered species from the final CAFE standards. NHTSA
disagrees that the agency's discretion to select an alternative under
EPCA/EISA means that the agency is required to undertake ESA
consultation. That a statute gives an agency discretion does not by
itself bring an agency action under the ESA's consultation
requirements; again, Section 7 imposes a duty to consult with the
Services ``before engaging in any discretionary action that may affect
a listed species or critical habitat.'' \1326\ First, ``to trigger the
ESA consultation requirement, the discretionary control retained by the
federal agency also must have the capacity to inure to the benefit of a
protected species.'' 1327 1328 And second, as discussed
above, the determination of whether an action will have an effect is
subject to longstanding interpretation of the Services' regulations,
including a ``but-for'' test. Again, the Services have defined ``but
for'' causation to mean ``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.'' \1329\
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    \1326\ Karuk Tribe of California v. U.S. Forest Serv., 681 F.3d
1006, 1020 (9th Cir. 2012).
    \1327\ Id. See also Sierra Club v. Babbitt, 65 F.3d 1502, 1509
(9th Cir. 1995).
    \1328\ CBD cites the D.C. Circuit for the proposition that if
``an agency has any statutory discretion over the action in
question, that agency has the authority, and thus the
responsibility, to comply with the ESA.'' However, the D.C.
Circuit's summary of an agency's obligation under the ESA is not so
pointed; rather ``Under the ESA, government agencies are obligated
to protect endangered and threatened species to the extent that
their governing statutes provide them the discretion to do so.'' See
Am. Rivers v. U.S. Army Corps of Engineers, 271 F. Supp. 2d 230, 251
(D.D.C. 2003) (citing Platte River Whooping Crane Critical Habitat
Maintenance Trust v. Federal Energy Regulatory Comm'n, 962 F.2d 27,
34 (D.C. Cir. 1992) (The ESA ``directs agencies to `utilize their
authorities' to carry out the ESA's objectives; it does not expand
the powers conferred on an agency by its enabling act.'') (emphasis
in original) (internal citation and quotations omitted); American
Forest & Paper Ass'n v. EPA, 137 F.3d 291, 299 (5th Cir. 1998): (The
ESA ``serves not as a font of new authority, but as something far
more modest: A directive to agencies to channel their existing
authority in a particular direction.'')).
    \1329\ 84 FR 44977 (Aug. 27, 2019) (``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.''). We note that as the Services do not consider
this to be a change in their longstanding application of the ESA,
this interpretation applies equally under the prior regulations
(which were effective through October 28, 2019), and the current
regulations.
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    NHTSA is 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 criteria pollutant emissions, and particular impacts to listed
species or critical habitats. The purpose of Section 7(a)(2)
consultation is to ensure that Federal agencies are not undertaking,
funding, permitting, or authorizing actions that are likely to
jeopardize the continued existence of listed species or destroy or
adversely modify designated critical habitat.\1330\ With this final
rule, NHTSA is not requiring, authorizing, funding, or carrying out the
production or refining of fuel (i.e., a proximate cause of upstream
emissions),\1331\ the operation of motor vehicles, both in regards to
vehicle miles traveled and driving location (i.e., the proximate cause
of

downstream emissions), the use of land that is critical habitat for any
purpose, or the taking of any listed species or other activity that may
affect any listed species. There is a complex and lengthy chain of
causality between NHTSA's action of setting standards and the listed
actions, which is highly dependent on (1) both manufacturer's and
consumer's behavior, and (2) the nature of climate change and criteria
pollutant emissions, which makes any impacts of this action uncertain.
Regardless of the level of stringency at which NHTSA sets CAFE
standards, criteria pollutant and CO2 emissions from these
upstream and downstream emissions sources will change to a greater or
lesser degree because of several independent factors, including those
which are explicitly authorized by EPCA/EISA.
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    \1330\ 16 U.S.C. 1536.
    \1331\ NHTSA notes that upstream emissions sources, such as oil
extraction sites and fuel refineries, remain subject to the ESA. As
future non-Federal activities become reasonably certain, Section 7
and/or other sections of the ESA may provide protection for listed
species and designated critical habitats. For example, new oil
exploration or extraction activity may result in permitting or
construction activities that would trigger consultation or other
activities for the protection of listed species or designated
critical habitat, as impacts may be more direct and more certain to
occur.
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    This leads NHTSA to the same conclusion as the proposal: The
resulting impacts of this action to listed species or critical habitat
does not satisfy the ``but for'' test and impacts are not ``reasonably
certain to occur.'' Because NHTSA concludes there are ``no effects,''
Section 7(a)(2) consultation is not required.
(a) NHTSA's Action Does Not Give the Agency Discretionary Control Over
Emissions, Nor Does It Satisfy the Services' ``But-for'' Test for
Effects Under the ESA
    NHTSA is statutorily obligated to set attribute-based CAFE
standards for each model year at the levels it determines are ``maximum
feasible.'' \1332\ ``Maximum feasible'' involves the balancing of four
factors--technological feasibility, economic practicability, the effect
of other motor vehicle standards of the government on fuel economy, and
the need of the United States to conserve energy--while also
considering EPCA's primary purpose: Energy conservation. NHTSA selects
a range of alternatives to consider when setting standards in each
regulatory action, and that range encompasses a spectrum of possible
standards NHTSA could determine is maximum feasible based on the
different ways the agency could weigh EPCA's four statutory factors.
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    \1332\ See 49 U.S.C. 32902(a) (``At least 18 months before the
beginning of each model year, the Secretary of Transportation shall
prescribe by regulation average fuel economy standards for
automobiles manufactured by a manufacturer in that model year. Each
standard shall be the maximum feasible average fuel economy level
that the Secretary decides the manufacturers can achieve in that
model year.'').
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    First, NHTSA disagrees with CBD that simply because EPCA/EISA gives
the agency discretion to set standards then NHTSA is required to
undertake Section 7(a)(2) consultation. Again, ``to trigger the ESA
consultation requirement, the discretionary control retained by the
federal agency also must have the capacity to inure to the benefit of a
protected species.'' \1333\ If NHTSA does not set standards, vehicle-
related upstream and downstream emissions will still occur; if NHTSA
sets more or less stringent standards than those finalized in this
action, emissions will still occur. Moreover, NHTSA disagrees that the
differences in emissions between Alternative 2 and Alternative 3 can be
directly tied to harm to species or critical habitat. There is no way
to meaningfully differentiate between the alternatives (or an
unanalyzed alternative more stringent than Alternative 3) in terms of
outcomes for listed species and designated critical habitat. At most,
NHTSA can only posit that more stringent standards hypothetically could
lead to better outcomes. But where to draw the line in terms of impacts
to species and habitats is an impossible exercise.
---------------------------------------------------------------------------

    \1333\ Id. See also Sierra Club v. Babbitt, 65 F.3d 1502, 1509
(9th Cir. 1995).
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    In addition, as outlined below, the causal chain between NHTSA's
action of setting standards and vehicle emissions is broken by actions
from third parties at several steps, and similarly with the chain
between vehicle emissions and impacts to listed species or threatened
habitats. This means that NHTSA's action does not meet the Services'
tests for ``but for'' causation.
    First, NHTSA's action here is to codify for each model year
coefficients that manufacturers input to a mathematical formula to
determine their corporate average fuel economy standard based on their
vehicles' footprints and sales volumes. The footprint-based standards
approach, dictated by EPCA/EISA, gives manufacturers significant
discretion to design, produce, and sell motor vehicles to meet
different objectives. Because manufacturers could choose to produce
more vehicles with larger footprints (and therefore less stringent
standards), fleet-average CO2 emissions could increase to
some extent year-over-year independently of where NHTSA sets standards.
Or the opposite may be true, and a shift in consumer preferences could
lead to increased production of vehicles with smaller footprints (and
therefore more stringent standards), resulting in overall declines in
CO2 emissions in the future compared to what NHTSA is
forecasting.
    In addition, Congress provided several flexibilities in EPCA/EISA
that influence how manufacturers produce vehicles for sale in a model
year. Manufacturers can trade and apply credits that have been earned
from over-compliance in lieu of meeting the applicable standards for a
particular model year, and in fact manufacturers have planned to rely
on credits to comply with the standards for the model years regulated
by this action. Furthermore, the program allows manufacturers to pay
civil penalties to cover any shortfall in compliance, further
offsetting potential improvements in fuel economy (and, therefore,
changes in air pollutant and CO2 emissions). Importantly,
NHTSA does not have discretion to limit either of these program
flexibilities, contrary to CBD's comment, as they both are prescribed
by Congress. Both flexibilities could offset any changes in emissions
that would result from the final decision.
    Consumers also play a role in which vehicles are sold and how those
vehicles are driven. Vehicle manufacturers can choose to apply
different fuel-economy-improving technologies to their vehicles that
result in different fuel economy and CO2 and criteria
pollutant emissions, and they do in part based on consumer demand.
NHTSA carries forward sales projections for each vehicle in the
analysis based on historic data; however, the agency cannot control the
fleet mix that a manufacturer ultimately sells. Moreover, while NHTSA
makes projections about much consumers may choose to drive vehicles for
purposes of setting standards, based on data that includes odometer
readings, economic data, and other factors, NHTSA does not have any
control over the drivers' actual VMT. While VMT is affected by the cost
of driving associated with fuel economy (i.e., the rebound effect), it
is also affected by several factors, such as economic conditions, that
are beyond NHTSA's control.
    The fact that CO2 and criteria pollutant emissions will
continue after NHTSA's action on standards cannot, alone, trigger
Section 7(a)(2) consultation.\1334\ Again, consultation is not required
where an agency lacks discretion to take action that will inure

to the benefit of listed species.\1335\ Ultimately, the relevant
decisions that result in emissions are taken by third parties, and any
on-the-ground activities to implement and carry out those decisions are
undertaken by such third parties. This means that emissions will never
uniformly increase or decrease for all future model years, across all
regulated pollutants, and in all locations throughout the country. The
only factor that NHTSA has control over is what level of stringency to
set in each model year.
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    \1334\ National Ass'n of Home Builders v. Defenders of Wildlife,
551 U.S. 644, 673 (2007) (``Applying Chevron, we defer to the
[a]gency'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)).
    \1335\ Id.; Sierra Club v. Babbitt, 65 F.3d 1502, 1509 (9th Cir.
1995) (ESA Section 7(a)(2) consultation is not required where an
agency lacks discretion to influence private conduct in a manner
that will inure to the benefit of listed species).
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(a) NHTSA Cannot Control Greenhouse Gas and Criteria Pollutant
Emissions From Motor Vehicle Impacts to Listed Species or Critical
Habitat
    The mechanics of climate change and both upstream and downstream
criteria air pollutant emissions further break the chain of causality
between NHTSA's action and specific effects on listed species or
designated critical habitat.
    Climate change is a global phenomenon, impacted by greenhouse gas
emissions that could occur anywhere throughout the world. As these
gases accumulate in the atmosphere, radiative forcing increases,
resulting in various potential impacts to the global climate system
(e.g., warming temperatures, droughts, and changes in ocean pH) over
long time scales. These changes could directly or indirectly impact
listed species and/or designated critical habitat over time. Although
this is a simplified explanation of a complex phenomenon subject to a
significant degree of scientific study, it illustrates that the
potential climate change-related consequences of this rulemaking on
listed species and designated critical habitat are not ``reasonably
certain to occur'' under any of the three tests in the ESA regulations
and listed above. Not only are the consequences to listed species or
designated critical habitat geographically and temporally remote from
the emissions that result from regulated vehicles, the chain of
causality is simply too lengthy and complex. Because impacts to listed
species and designated critical habitat result from climate shifts
that, in and of themselves, result from the accumulation over time of
greenhouse gas emissions from anywhere in the world, NHTSA cannot
``connect the dots'' between the emissions from a regulated vehicle and
those impacts. While the potential impacts of climate change have been
well-documented, there is no degree of certainty, using available data
or tools, that this action (as distinct from any other source of
CO2 emissions) would be the cause of any particular impact
to listed species or critical habitats.\1336\
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    \1336\ See 50 CFR 402.17(b) (``A conclusion of reasonably
certain to occur must be based on clear and substantial information,
using the best scientific and commercial data available.'').
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    The chain of causality between this action and specific impacts
from criteria pollutant emissions on listed species or designated
critical habitat is similarly attenuated. Emissions of upstream and
tailpipe criteria pollutant emissions are determined by similar
manufacturer and driver controls as discussed above,\1337\ meaning that
the impacts of CAFE standards on criteria pollutants is indirect. As
shown in the preamble and Final SEIS, the impacts of all alternatives
on the emissions of criteria pollutants are small,\1338\ and they
increase and decrease based on pollutant and emissions type (i.e.,
upstream or downstream). However, while small in magnitude, net impacts
could also vary among different geographic areas depending on the
locations of upstream emission sources and where changes in highway
travel occur. NHTSA has no way of knowing, with reasonable certainty,
where these impacts would occur. Current modeling tools available are
not designed to trace fluctuations in ambient concentration levels of
criteria and toxic air pollutants to potential impacts on particular
endangered species. NHTSA therefore cannot conclude that impacts
related to the emissions of criteria air pollutants from fuel processes
or vehicles are ``reasonably certain to occur'' to listed species or
critical habitat.\1339\
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    \1337\ In addition to the factors discussed above, vehicles
produced in the model years covered by this action are subject to
EPA's tailpipe emissions standards, and these standards are expected
to become increasingly stringent over the timeframe covered by this
rulemaking. However, the technologies used to increase fuel economy
are not the same technologies that are used to decrease tailpipe
emissions, so an increase in the first will not necessarily result
in a decrease in the latter. That said, as discussed in the preamble
above and further in the Final SEIS, total emissions from vehicles
have declined dramatically since 1970 due to EPA regulation of
vehicles and fuels.
    \1338\ For more information, see Chapter 4 of the Final SEIS.
    \1339\ See 50 CFR 402.17 (``A conclusion of reasonably certain
to occur must be based on clear and substantial information, using
the best scientific and commercial data available'').
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    For these reasons, NHTSA concludes that any consequence to specific
listed species or designated critical habitats from climate change or
other air pollutant emissions is too remote and uncertain to be
attributable to this action. The consequences of this action therefore
are not ``effects'' for purposes of consultation under Section 7(a)(2),
and this action has not triggered ESA consultation. Accordingly, NHTSA
has concluded its review of this action under Section 7 of the ESA.
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 impacts 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 final rule, NHTSA is not occupying, modifying, and/or
encroaching on floodplains. NHTSA therefore concludes that the Orders
do not apply to this final rule. NHTSA has, however, conducted a review
of the alternatives on potentially affected resources, including
floodplains, in its Final SEIS.
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 final 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.
    NHTSA is not undertaking or providing assistance for new
construction located in wetlands. NHTSA therefore concludes that these
Orders do not apply to this final rule. NHTSA has, however, conducted a
review of the alternatives on potentially affected resources, including
wetlands, in its Final SEIS.
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,