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Federal Register / Vol. 86, No. 169 / Friday, September 3, 2021 / Proposed Rules
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modification of the designated critical habitat of these species.567 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 Servicethe U.S. Fish and Wildlife Service of the Department of the Interior and/or the National Oceanic and Atmospheric Administrations National Marine Fisheries Service of the Department of Commerce, depending on the species involvedin order to ensure that the action is not likely to jeopardize the species or destroy or adversely modify designated critical habitat.568
Under this standard, the Federal agency taking action evaluates the possible effects of its action and determines whether to initiate consultation.569
Pursuant to Section 7a2 of the ESA, NHTSA has considered the effects of the proposed standards and has 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
has considered issues related to emissions of CO2 and other GHGs, and issues related to non-GHG emissions.
Based on this assessment, NHTSA
determines that the action of setting CAFE standards does not require consultation under Section 7a2 of the ESA. 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 longand 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 567 16

U.S.C. 1536a2.
50 CFR 402.14.
569 See 51 FR 9926, 19949 Jun. 3, 1986.
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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 proposal, NHTSA is not occupying, modifying, and/or encroaching on floodplains. NHTSA
therefore concludes that the orders do not apply to this proposal. NHTSA has, however, conducted a review of the alternatives on potentially affected resources, including floodplains, in its SEIS.
8. Preservation of the Nations Wetlands Executive Order 11990 and DOT Order 5660.1a These orders require Federal agencies to avoid, to the extent possible, undertaking or providing assistance for new construction located in wetlands unless the agency head finds that there is no practicable alternative to such construction and that the proposed action includes all practicable measures to minimize harms to wetlands that may result from such use. Executive Order 11990 also directs agencies to take action to minimize the destruction, loss, or degradation of wetlands in conducting Federal activities and programs affecting land use, including but not limited to water and related land resources planning, regulating, and licensing activities. DOT Order 5660.1a sets forth DOT policy for interpreting Executive Order 11990 and requires that transportation projects located in or having an impact on wetlands should be conducted to assure protection of the Nations 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 proposal.
NHTSA has, however, conducted a review of the alternatives on potentially affected resources, including wetlands, in its SEIS.
9. Migratory Bird Treaty Act MTBA, Bald and Golden Eagle Protection Act BGEPA, Executive Order 13186
The MTBA 16 U.S.C. 703712
provides for the protection of certain migratory birds by making it illegal for anyone to pursue, hunt, take, capture, kill, attempt to take, capture, or kill, possess, offer for sale, sell, offer for barter, barter, offer to purchase, purchase, deliver for shipment, ship, export, import, cause to be shipped, exported, or imported, deliver for
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transportation, carry or cause to be carried, or receive for shipment, transportation, carriage, or export any migratory bird covered under the statute.570
The BGEPA 16 U.S.C. 668668d makes it illegal to take, possess, sell, purchase, barter, offer to sell, purchase or barter, transport, export or import any bald or golden eagles.571 Executive Order 13186, Responsibilities of Federal Agencies to Protect Migratory Birds, helps to further the purposes of the MBTA by requiring a Federal agency to develop a Memorandum of Understanding MOU with the Fish and Wildlife Service when it is taking an action that has or is likely to have a measurable negative impact on migratory bird populations.
NHTSA concludes that the MBTA, BGEPA, and Executive Order 13186 do not apply to this proposal because there is no disturbance, take, measurable negative impact, or other covered activity involving migratory birds or bald or golden eagles involved in this rulemaking.
10. Department of Transportation Act Section 4f Section 4f of the Department of Transportation Act of 1966 49 U.S.C.
303, as amended, is designed to preserve publicly owned park and recreation lands, waterfowl and wildlife refuges, and historic sites. Specifically, Section 4f provides that DOT agencies cannot approve a transportation program or project that requires the use of any publicly owned land from a public park, recreation area, or wildlife or waterfowl refuge of national, State, or local significance, unless a determination is made that:
1 There is no feasible and prudent alternative to the use of land, and 2 The program or project includes all possible planning to minimize harm to the property resulting from the use.
These requirements may be satisfied if the transportation use of a Section 4f property results in a de minimis impact on the area.
NHTSA concludes that Section 4f does not apply to this proposal because this rulemaking is not an approval of a transportation program nor project that requires the use of any publicly owned land.
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