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Federal Register / Vol. 86, No. 169 / Friday, September 3, 2021 / Proposed Rules below, NHTSAs proposed 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 area and occur at the same time and place as the action and are reasonably foreseeable. 560 NHTSAs proposed 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.561 Indeed, the proposal 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:
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; that are reasonably foreseeable;
that the agency can practically control;
and for which the agency has continuing program responsibility.562
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 the proposed fuel economy standards would not be caused by NHTSAs action, but rather would occur because of subsequent activities the agency cannot practically control. Even 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. 563
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 560 40

CFR 93.152.
of Transp. v. Pub. Citizen, 541 U.S. at 772 The 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. NHTSAs action is to establish fuel economy standards for MYs 20242026 passenger cars and light trucks; an emissions increase, if any, would occur in a different place and well after promulgation of an eventual final rule.
562 40 CFR 93.152.
563 Id.

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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 proposal and alternatives under NEPA, NHTSA
has made assumptions and estimates regarding all of these factors. The agencys SEIS projects that increases in air toxics 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 proposed standards and alternatives do not mandate specific manufacturer decisions, consumer purchasing, or driver behavior, and NHTSA cannot practically control any of them.564
In addition, NHTSA does not have the statutory authority to control the actual VMT by drivers. As the extent of emissions depends directly on the operation of motor vehicles, changes in any emissions that could result from NHTSAs proposed standards are not changes the agency can practically control or for which the agency has continuing program responsibility.
Therefore, the proposed 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 policies and procedures regarding historic propertiesthat 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.565
NHTSA concludes that the NHPA is not applicable to this proposal 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 564 See, e.g., Dept of Transp. v. Pub. Citizen, 541
U.S. 752, 77273 2004; South Coast Air Quality Management District v. Federal Energy Regulatory Commission, 621 F.3d 1085, 1101 9th Cir. 2010.
565 Section 106 is codified at 54 U.S.C. 306108.
Implementing regulations for the Section 106
process are located at 36 CFR part 800.

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alternatives on historical and cultural resources in the SEIS.
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. NHTSA
concludes that the FWCA does not apply to this proposal because it does not involve the conservation of 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 presentation, protection, development, and where possible restoration and enhancement of the Nations 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 States program.566
NHTSA concludes that the CZMA
does not apply to this proposal because it does not involve an activity within, or outside of, the Nations coastal zones that affects any land or water use or natural resource of the coastal zone.
NHTSA has, however, conducted a qualitative review in its SEIS of the related direct, indirect, and cumulative impacts, positive or negative, of all the alternatives on potentially affected resources, including coastal zones.
6. Endangered Species Act ESA
Under Section 7a2 of the ESA, Federal agencies must ensure that actions they authorize, fund, or carry out are not likely to jeopardize the continued existence of any federally listed threatened or endangered species or result in the destruction or adverse 566 16

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U.S.C. 1456c1A.

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