2011-11278. Notice of Intent To Prepare an Environmental Impact Statement for New Corporate Average Fuel Economy Standards

AGENCY:

National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).

ACTION:

Notice of intent; request for scoping comments.

SUMMARY:

Pursuant to the National Environmental Policy Act (NEPA), NHTSA plans to prepare an Environmental Impact Statement (EIS) to analyze the potential environmental impacts of the agency's Corporate Average Fuel Economy program for passenger automobiles (referred to herein as “passenger cars”) and non-passenger automobiles (referred to herein as “light trucks”). The EIS will consider the potential environmental impacts of new fuel economy standards for model years 2017-2025 passenger cars and light trucks that NHTSA will be proposing pursuant to the Energy Independence and Security Act of 2007.

This notice initiates the NEPA scoping process by inviting comments from Federal, State, and local agencies, Indian tribes, and the public to help identify the environmental issues and reasonable alternatives to be examined in the EIS. This notice also provides guidance for participating in the scoping process and additional information about the alternatives NHTSA expects to consider in its NEPA analysis. In preparing this notice, NHTSA has shared the document with the Council on Environmental Quality (CEQ), the Environmental Protection Agency (EPA), and the Department of Energy (DOE).

DATES:

The scoping process will culminate in the preparation and issuance of a Draft EIS, which will be made available for public comment. To ensure that NHTSA has an opportunity to fully consider scoping comments and to facilitate NHTSA's prompt preparation of the Draft EIS, scoping comments should be received on or before June 9, 2011. NHTSA will try to consider comments received after that date to the extent the rulemaking schedule allows.

ADDRESSES:

You may submit comments to the docket number identified in the heading of this document by any of the following methods:

• Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting comments.
• Mail: Docket Management Facility, M-30, U.S. Department of Transportation, West Building, Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590.
• Hand Delivery or Courier: U.S. Department of Transportation, West Building, Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m. Eastern time, Monday through Friday, except Federal holidays.
• Fax: [phone].

Regardless of how you submit your comments, you should mention the docket number of this document.

You may call the Docket at 202-366-9324.

Note that all comments received, including any personal information provided, will be posted without change to http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT:

For technical issues, contact Angel Jackson, Fuel Economy Division, Office of International Vehicle, Fuel Economy and Consumer Standards, telephone: [phone]; for legal issues, contact Carrie Gage, Legislation & General Law Division, Office of the Chief Counsel, telephone: [phone], at the National Highway Traffic Safety Administration, 1200 New Jersey Avenue, SE., Washington, DC 20590.

SUPPLEMENTARY INFORMATION:

In a forthcoming notice of proposed rulemaking (NPRM), NHTSA intends to propose Corporate Average Fuel Economy (CAFE) standards for model years (MYs) 2017-2025 passenger cars and light trucks pursuant to the Energy Policy and Conservation Act (EPCA), as amended by the Energy Independence and Security Act of 2007 (EISA).^[1] In connection with this action, NHTSA will prepare an Environmental Impact Statement (EIS) to analyze the potential environmental impacts of the proposed CAFE standards and reasonable alternative standards pursuant to the National Environmental Policy Act (NEPA) and implementing regulations issued by the Council on Environmental Quality (CEQ) and NHTSA.^[2] NEPA instructs Federal agencies to consider the potential environmental impacts of their proposed actions and those of possible alternative actions. To inform decisionmakers and the public, the EIS will compare the potential environmental impacts of the agency's Preferred Alternative and a spectrum of alternatives, including a “no action” alternative. As required by NEPA, the EIS will consider direct, indirect, and cumulative impacts of the proposed action and alternatives and will discuss impacts in proportion to their significance.

Background. EPCA, as amended by EISA, sets forth extensive requirements concerning the establishment of CAFE standards. It requires the Secretary of Transportation ^[3] to establish average fuel economy standards at least 18 months before the beginning of each model year and to set them at “the maximum feasible average fuel economy level that the Secretary decides the manufacturers can achieve in that model year.” ^[4] When setting “maximum feasible” fuel economy standards, the Secretary is required to “consider 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.” ^[5] NHTSA construes the statutory factors as including environmental and safety considerations.^[6]

As amended by EISA in December 2007, EPCA further directs the Secretary, after consultation with the Secretary of Energy and the Administrator of the Environmental Protection Agency (EPA), to establish average fuel economy standards separately for passenger cars and for light trucks manufactured in each model year beginning with MY 2011. In doing so, the Secretary of Transportation is required to comply with special provisions relating to the standards for model years 2011-2030. The Secretary is required to “prescribe annual fuel economy standard increases that increase the applicable average fuel economy standard ratably beginning with model year 2011 and ending with model year 2020,” ^[7] and those standards must “achieve a combined fuel economy average for model year 2020 of at least 35 miles per gallon for the total fleet of passenger and non-passenger automobiles manufactured for sale in the United States for that model year.” ^[8] For MYs 2021-2030, the passenger car and light truck standards must simply be the “maximum feasible” average fuel economy standard for each of those fleets for each model year.^[9] Additionally, the standards for passenger cars and light trucks must be “based on 1 or more vehicle attributes related to fuel economy” and expressed “in the form of a mathematical function,” and may be established for not more than five model years.^[10] EISA also mandates a minimum standard for domestically manufactured passenger cars.^[11]

On May 19, 2009, President Obama announced a new National Fuel Efficiency Policy for establishing consistent, harmonized, and streamlined requirements to improve fuel economy and reduce greenhouse gas (GHG) emissions for all new passenger cars and light trucks sold in the United States.^[12] Pursuant to that announcement, NHTSA and EPA finalized the first-ever joint rulemaking to establish fuel economy standards and GHG standards for light duty vehicles on April 1, 2010. NHTSA established CAFE standards under EPCA/EISA and EPA established GHG emissions standards under the Clean Air Act.^[13] The CAFE standards covered MY 2012-2016 passenger cars and light trucks and were estimated to require a combined average fleet-wide fuel economy of 34.1 mpg by 2016.^[14]

Following the first phase of the National Program, in a Presidential Memorandum issued May 21, 2010, President Obama requested that EPA and NHTSA build on the first joint rulemaking to continue a coordinated National Program to improve fuel efficiency and reduce greenhouse gas emissions of light-duty vehicles for MYs 2017-2025.^[15] The Memorandum stated that the National Program should seek to produce joint Federal standards that are harmonized with applicable State standards, achieve substantial annual progress in reducing transportation sector GHG emissions and fossil fuel consumption, and strengthen the industry and enhance job creation in the United States. As part of implementing this program, the President asked that the Administrators of EPA and NHTSA work with the State of California to develop a technical assessment to inform the rulemaking process.^[16] The President also requested that the two agencies issue a Notice of Intent to Issue a Proposed Rule that announces plans for setting stringent fuel economy and greenhouse gas emissions standards for light-duty vehicles for MY 2017 and beyond. On October 1, 2010, NHTSA and EPA jointly issued that notice concurrently with the Interim Joint Technical Assessment Report.^[17]

In response to the President's call to provide greater certainty and incentives for long-term innovation by manufacturers, NHTSA is planning to set CAFE standards for MY 2017-2025 passenger cars and light-duty trucks, and NHTSA intends to do this in a joint rulemaking with EPA, in which EPA will set GHG standards for the same model years and vehicles. As noted above, however, NHTSA's statutory authority allows the agency to take final action prescribing CAFE standards in increments of no more than five model years.^[18] In order to address this statutory limitation, NHTSA is considering proposing standards for the MY 2017-2025 timeframe, with the express condition that the standards for MYs 2022-2025 would be subject to a mid-term technology assessment and review. NHTSA would adopt standards for MYs 2017-2025, but standards for MYs 2022-2025 would not become effective at the established level unless and until NHTSA affirmed in a later rulemaking that they were, based on information available at the time of the later rulemaking, the maximum feasible standards for those model years. This condition would appear in the regulations. Because these two NHTSA actions would be proposed together to increase the efficiency of the light-duty fleet, and because they would be part of a joint NHTSA/EPA rulemaking for a coordinated National Program covering MYs 2017-2025, NHTSA plans to address the potential environmental impacts of the proposed alternatives for the full MY 2017-2025 period in a single EIS, notwithstanding the provision for a mid-term technology assessment and review.^[19] NHTSA specifically seeks comment on the agency's proposed approach of analyzing the action for the MY 2017-2025 period in a single EIS.

As required by statute, NHTSA's upcoming NPRM will propose separate attribute-based standards for MY 2017-2025 passenger cars and for MY 2017-2025 light trucks.^[20] As in the last CAFE rulemaking, NHTSA plans to propose vehicle footprint as the attribute. Each individual vehicle model would have a specific fuel economy target based on the fuel economy capability of those motor vehicles having the same footprint as that vehicle model.^[21] Fuel economy targets would reflect, in part, NHTSA's analysis of the technological and economic capabilities of the industry within the rulemaking timeframe. A manufacturer's CAFE standard, in turn, would be based on the target levels set for its particular mix of vehicles in that model year. Compliance would be determined by comparing a manufacturer's harmonically averaged fleet fuel economy levels in a model year with a required fuel economy level calculated using the manufacturer's actual production levels and the targets for each vehicle it produces.^[22]

Under NEPA, the purpose of and need for an agency's action inform the range of reasonable alternatives to be considered in its NEPA analysis.^[23] In developing alternatives for analysis in the EIS, NHTSA must consider EPCA's requirements for setting CAFE standards. As discussed above, EPCA requires the agency to determine what level of CAFE stringency would be the “maximum feasible” for each model year, a determination the agency makes based on the consideration of four statutory factors: technological feasibility, economic practicability, the effect of other standards of the Government on fuel economy, and the need of the United States to conserve energy.^[24]

The alternatives that NHTSA plans to consider are:

• A “no action” alternative, which assumes, for purposes of NEPA analysis, that NHTSA would not issue a rule regarding CAFE standards.^[25] NEPA requires agencies to consider a “no action” alternative in their NEPA analyses and to compare the effects of not taking action with the effects of the reasonable action alternatives in order to demonstrate the different environmental effects of the action alternatives. The recent EISA amendments to EPCA direct NHTSA to set new CAFE standards and do not permit the agency to take no action on fuel economy.^[26] This “No Action Alternative” is also referred to as the “baseline.”

• Alternatives calculated at the upper point and at the lower point of the range between 2% and 7%, representing annual fuel economy stringency increases from the MY 2016 standards, from 2017 through 2025. The calculations and the related evaluation of impacts would be performed separately for passenger cars and light trucks at each of these points so as to demonstrate their effects independently, since car and truck standards could increase at different rates from one another and at different rates in different years. These alternatives would bracket the range of actions the agency may select.
• The Preferred Alternative, reflecting annual stringency increases for both passenger cars and light trucks that fall at levels between the upper and lower bounds identified above. NHTSA has not yet identified its Preferred Alternative.

Thus, NHTSA plans to analyze the impacts of eight different standards for the DEIS: Two points bracketing the possible action alternatives for cars (2% per year and 7% per year) and two points bracketing the possible alternatives for trucks (2% per year and 7% per year), as well as a No Action Alternative and Preferred Alternative for cars and a No Action Alternative and Preferred Alternative for trucks.

NHTSA has tentatively concluded that this range of annual percentage increases would satisfy EPCA's requirement that the standards be “maximum feasible” for each model year, based on the different ways NHTSA could weigh EPCA's four statutory factors. For example, the most stringent average annual increase NHTSA is considering for both passenger cars and light trucks (7%) weighs energy conservation and climate change considerations more heavily and technological feasibility and economic practicability less heavily. In contrast, the least stringent annual increase NHTSA is considering (2%) places more weight on technological feasibility and economic practicability.

This range reflects differences in the degree of technology adoption across the fleet, in costs to manufacturers and consumers, and in conservation of oil and related reductions in greenhouse gases. For example, the most stringent average annual increase NHTSA is evaluating would require greater adoption of technology across the fleet, including more advanced technology, than the least stringent annual increase NHTSA is evaluating. As a result, the most stringent annual increase would impose greater costs and achieve greater energy conservation and related reductions in greenhouse gases.

This range of stringencies, along with the analysis for the Preferred Alternative, would provide a broad range of information for NHTSA to use in evaluating and weighing the statutory factors of technological feasibility, economic practicability, and energy conservation. It would allow for consideration of differences and uncertainties in the way in which key economic inputs (e.g., the price of fuel and the social cost of carbon) and technological inputs are estimated or valued.

The agency may select one of the above-identified levels of average increase for passenger cars and one for light trucks as its Preferred Alternative or it may select a level of stringency that falls between those extremes. The percentage increases in stringency are “average” increases and may either be constant throughout the period or may vary from year to year, but the average yearly increase over that period will equal the percentage increase selected.

Within the range identified above, NHTSA may consider setting more stringent standards for the earlier years of the rule than for the later years, or, alternatively, setting less stringent standards for the earlier years of the rule than for the later years, depending on our assessment of what would be “maximum feasible” for those time periods for each fleet. In addition, NHTSA may consider setting standards for passenger cars and light trucks that increase at different rates between the high and low levels the agency is considering, depending on the agency's determination of the maximum feasible level for each fleet over time.

Planned Analysis: While the main focus of NHTSA's prior CAFE EIS for light duty vehicles (i.e., the EIS for MYs 2012-2016) was the quantification of impacts to energy, air quality, and climate, and qualitative analysis of cumulative impacts resulting from climate change, it also addressed other potentially affected resources. NHTSA conducted a qualitative review of impacts of the alternatives on other potentially affected resources, such as water resources, biological resources, land use, hazardous materials, safety, noise, historic and cultural resources, and environmental justice.

Similar to past EIS practice, NHTSA plans to analyze environmental impacts related to fuel and energy use, emissions including GHGs and their effects on temperature and climate change, air quality, natural resources, and the human environment. NHTSA also will consider the cumulative impacts of the proposed standards for MY 2017-2025 automobiles together with any past, present, and reasonably foreseeable future actions.

NHTSA anticipates uncertainty in estimating the potential environmental impacts related to climate change. To account for this uncertainty, NHTSA plans to evaluate a range of potential global temperature changes that may result from changes in fuel and energy consumption and GHG emissions attributable to new CAFE standards. It is difficult to quantify how the specific impacts due to the potential temperature changes attributable to new CAFE standards may affect many aspects of the environment. NHTSA will endeavor to gather the key relevant and credible information.

NHTSA intends to rely upon the Intergovernmental Panel on Climate Change (IPCC) 2007 Fourth Assessment Report and subsequent updates, Reports of the U.S. Climate Change Science Program (CCSP) and the current U.S. Global Change Research Program (U.S. GCRP), National Academies and National Research Council assessments of climate impacts, and the EPA Endangerment and Cause or Contribute Findings for Greenhouse Gases under Section 202(a) of the Clean Air Act and the accompanying Technical Support Document (referred to collectively hereinafter as the EPA Endangerment Finding), as sources for recent “summar[ies] of existing credible scientific evidence which is relevant to evaluating the reasonably foreseeable significant adverse impacts on the human environment.” ^[27] NHTSA believes that the IPCC Fourth Assessment Report, the CCSP and U.S. GCRP Reports, the National Academies and National Research Council assessments, and the EPA Endangerment Finding are the most recent, most comprehensive summaries available, but recognizes that subsequent research may provide additional relevant and credible evidence not accounted for in these Reports. NHTSA may consider such subsequent information as well, to the extent that it provides relevant and credible evidence.

NHTSA expects to rely on previously published EISs, incorporating material by reference “when the effect will be to cut down on bulk without impeding agency and public review of the action.” ^[28] Therefore, the NHTSA NEPA analysis and documentation will incorporate by reference relevant materials, including portions of the agency's prior NEPA documents, where appropriate.

Scoping and Public Participation: NHTSA's NEPA analysis for the MY 2017-2025 CAFE standards will consider the direct, indirect and cumulative environmental impacts of proposed standards and those of reasonable alternatives. The scoping process initiated by this notice seeks public comment on the range of alternatives under consideration, on the impacts to be considered, and on the most important issues for in-depth analysis in the EIS.^[29]

NHTSA invites the public to participate in the scoping process^[30] by submitting written comments concerning the appropriate scope of the NEPA analysis for the proposed CAFE standards to the docket number identified in the heading of this notice, using any of the methods described in the ADDRESSES section of this notice. NHTSA does not plan to hold a public scoping meeting, because written comments will be effective in identifying and narrowing the issues for analysis.

All comments to the relevant scoping process are welcome. NHTSA is especially interested in comments concerning the evaluation of climate change impacts. In particular, NHTSA requests:

• Peer-reviewed scientific studies that have been issued since the EPA Endangerment Finding and that address or may inform: (a) The impacts of CO₂ and other GHG emissions that may be associated with any of the alternatives under consideration; (b) the impacts on climate change that may be associated with these emission changes; or (c) the time periods over which such impacts may occur. NHTSA is particularly interested in peer reviewed studies analyzing the potential impacts of climate change within the United States or in particular geographic areas of the United States.
• Comments on how NHTSA should estimate the potential changes in temperature that may result from the changes in CO₂ emissions projected from setting MY 2017-2025 CAFE standards, and comments on how NHTSA should estimate the potential impacts of temperature changes on the environment.
• Comments on how NHTSA should discuss or estimate any localized or regional impacts of potential increased penetration of alternative fuel vehicles, including upstream emissions and impacts regarding waste and disposal of advanced batteries.^[31]

• Comments on what timeframe NHTSA should use to evaluate the environmental impacts that may result from setting MY 2017-2025 CAFE standards.

NHTSA is also interested in comments on how the agency is planning to structure the proposed alternatives. Subject to the statutory constraints of EPCA/EISA, a variety of potential alternatives could be considered within the purpose and need for the proposed rulemaking, each falling along a theoretically infinite continuum of potential standards. As described above, NHTSA plans to address this issue by identifying alternatives at the upper and lower bounds of a range within which we believe the statutory requirement for “maximum feasible” would be satisfied, as well as identifying and analyzing the impacts of a preferred alternative. In this way, NHTSA expects to bracket the potential environmental impacts of the standards it may select.^[32]

NHTSA seeks comments on what criteria should be used to choose the Preferred Alternative, given the agency's statutory requirement of setting “maximum feasible” fuel economy standards that increase ratably.^[33] When suggesting an approach, please explain how it would satisfy EPCA's 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).^[34]

Two important purposes of scoping are identifying the significant issues that merit in-depth analysis in the EIS and identifying and eliminating from detailed analysis the issues that are not significant and therefore require only a brief discussion in the EIS.^[35] In light of these purposes, written comments should include an Internet citation (with a date last visited) to each study or report you cite in your comments if one is available. If a document you cite is not available to the public online, you should attach a copy to your comments. Your comments should indicate how each document you cite or attach to your comments is relevant to the NEPA analysis and indicate the specific pages and passages in the attachment that are most informative.

The more specific your comments are, and the more support you can provide by directing the agency to peer-reviewed scientific studies and reports as requested above, the more useful your comments will be to the agency. For example, if you identify an additional area of impact or environmental concern you believe NHTSA should analyze, or an analytical tool or model you believe NHTSA should use to evaluate these environmental impacts, you should clearly describe it and support your comments with a reference to a specific peer-reviewed scientific study, report, tool or model. Specific, well-supported comments will help the agency prepare an EIS that is focused and relevant and will serve NEPA's overarching aims of making high quality information available to decisionmakers and the public by “concentrat[ing] on the issues that are truly significant to the action in question, rather than amassing needless detail.” ^[36] By contrast, mere assertions that the agency should evaluate broad lists or categories of concerns, without support, will not assist the scoping process for the proposed standards.

Please be sure to reference the docket number identified in the heading of this notice in your comments. NHTSA intends to provide notice to interested parties by e-mail. Thus, please also provide an e-mail address (or a mailing address if you decline e-mail communications).^[37] These steps will help NHTSA manage a large volume of material during the NEPA process. All comments and materials received, including the names and addresses of the commenters who submit them, will become part of the administrative record and will be posted on the Web at http://www.regulations.gov.

Based on comments received during scoping, NHTSA expects to prepare a draft EIS for public comment by September 2011 and a final EIS by June 2012.^[38] The agency expects to issue a final rule in July 2012.

Separate Federal Register notices will announce the availability of the draft EIS, which will be available for public comment, and the final EIS, which will be available for public inspection. NHTSA also plans to continue to post information about the NEPA process and this CAFE rulemaking on its Web site (http://www.nhtsa.gov).

Issued: May 4, 2011.

Christopher J. Bonanti,

Associate Administrator for Rulemaking.

Footnotes

1.  EISA is Public Law 110-140, 121 Stat. 1492 (December 19, 2007). Portions of EPCA related to fuel economy are codified at 49 U.S.C. 32901 et seq.

2.  NEPA is codified at 42 U.S.C. 4321-4347. CEQ's NEPA implementing regulations are codified at 40 CFR Parts 1500-1508, and NHTSA's NEPA implementing regulations are codified at 49 CFR Part 520.

3.  NHTSA is delegated responsibility for implementing the EPCA fuel economy requirements assigned to the Secretary of Transportation. 49 CFR 1.50, 501.2(a)(8).

4.  49 U.S.C. 32902(a).

5.  49 U.S.C. 32902(f).

6.  For environmental considerations, see Center for Auto Safety v. NHTSA, 793 F.2d 1322, 1325 n. 12 (DCCir. 1986); Public Citizen v. NHTSA, 848 F.2d 256, 262-3 n. 27 (DCCir. 1988) (noting that “NHTSA itself has interpreted the factors it must consider in setting CAFE standards as including environmental effects”); Center for Biological Diversity v. NHTSA, 538 F.3d 1172, 1196 (9th Cir. 2008). For safety considerations, see, e.g., Competitive Enterprise Inst. v. NHTSA, 956 F.2d 321, 322 (DCCir. 1992) (citing Competitive Enterprise Inst. v. NHTSA, 901 F.2d 107, 120 n.11 (DCCir. 1990)).

7.  49 U.S.C. 32902(b)(2)(C).

8.  Id. § 32902(b)(2)(A).

9.  Id. §§ 32902(b)(2)(B), 32902(f).

10.  Id. §§ 32902(b)(3)(A), 32902(b)(3)(B).

11.  Id. § 32902(b)(4) (“each manufacturer shall also meet the minimum standard for domestically manufactured passenger automobiles, which shall be the greater of (A) 27.5 miles per gallon; or (B) 92 percent of the average fuel economy projected by the Secretary for the combined domestic and non-domestic passenger automobile fleets manufactured for sale in the United States by all manufacturers in the model year * * * .”).

12.  President Obama Announces National Fuel Efficiency Policy, The White House, May 19, 2009. Available at: http://www.whitehouse.gov/​the_​press_​office/​President-Obama-Announces-National-Fuel-Efficiency-Policy/​ (last visited Mar. 4, 2011).

13.  See 42 U.S.C. 7521(a).

14.  The EPA GHG standards were estimated to require a combined average fleet-wide level of 250 grams/mile CO₂-equivalent for MY 2016, which is equivalent to 35.5 mpg if all of the technologies used to reduce GHG emissions are tailpipe CO₂ reducing technologies. The 250 g/mi CO₂ equivalent level assumes the use of credits for air conditioning improvements worth 15 g/mi in MY 2016.

15.  See The White House, Office of the Press Secretary, Presidential Memorandum Regarding Fuel Efficiency Standards (May 21, 2010), available at http://www.whitehouse.gov/​the-press-office/​presidential-memorandum-regarding-fuel-efficiency-standards (last visited Mar. 8, 2011).

16.  See Interim Joint Technical Assessment Report, available at: http://www.nhtsa.gov/​staticfiles/​rulemaking/​pdf/​cafe/​2017+​CAFE-GHG_​Interim_​TAR2.pdf (Sept. 2010)

17.  See 75 FR 62739 (Oct. 13, 2010).

18.  49 U.S.C. 32902(b)(3)(B).

19.  See 40 CFR 1508.18(b)(3) (including as federal actions under NEPA “[a]doption of programs, such as a group of concerted actions to implement a specific policy or plan; systematic and connected agency decisions allocating agency resources to implement a specific statutory program or executive directive.”).

20.  See 49 U.S.C. 32902(b)(3)(A).

21.  Vehicle models made by different manufacturers would have the same fuel economy target if they had the same quantity of the attribute upon which the standards are based.

22.  While manufacturers may use a variety of flexibility mechanisms to comply with CAFE, including credits earned for over-compliance and production of flexible-fuel vehicles, NHTSA is statutorily prohibited from considering manufacturers' ability to use flexibility mechanisms in determining what level of CAFE standards would be maximum feasible. See 49 U.S.C. 32902(h).

23.  40 CFR 1502.13.

24.  See 49 U.S.C. 32902(f).

25.  See 40 CFR 1502.14(d).

26.  CEQ has explained that “[T]he regulations require the analysis of the no action alternative even if the agency is under a court order or legislative command to act. This analysis provides a benchmark, enabling decisionmakers to compare the magnitude of environmental effects of the action alternatives. . . . Inclusion of such an analysis in the EIS is necessary to inform the Congress, the public, and the President as intended by NEPA. [See 40 CFR 1500.1(a).]” Forty Most Asked Questions Concerning CEQ's National Environmental Policy Act Regulations, 46 FR 18026 (1981) (emphasis added).

27.  40 CFR 1502.22(b)(3); see 40 CFR 1502.21. IPCC reports are available at http://www.ipcc.ch/​ (last visited Mar. 8, 2011).

28.  40 CFR 1502.21.

29.  See 40 CFR 1500.5(d), 1501.7, 1508.25.

30.  Consistent with NEPA and implementing regulations, NHTSA is sending this notice directly to: (1) Federal agencies having jurisdiction by law or special expertise with respect to the environmental impacts involved or authorized to develop and enforce environmental standards; (2) the Governors of every State, to share with the appropriate agencies and offices within their administrations and with the local jurisdictions within their States; (3) organizations representing state and local governments and Indian tribes; and (4) other stakeholders that NHTSA reasonably expects to be interested in the NEPA analysis for the MYs 2017-2025 CAFE standards. See 42 U.S.C. 4332(2)(C); 49 CFR 520.21(g); 40 CFR 1501.7, 1506.6.

31.  In determining maximum feasibility, NHTSA may not consider the fuel economy of “dedicated vehicles,” including vehicles that operate only on natural gas, hydrogen, and electricity. 49 U.S.C. 32901(a); 49 U.S.C. 32902(h). NHTSA, however, recognizes that potential future increases in alternative fuel vehicle penetration could cause environmental impacts relevant to this EIS.

32.  Should NHTSA ultimately choose to set standards at levels other than the Preferred Alternative, we believe that this bracketing will properly inform the decisionmaker, so long as the standards are set within its parameters.

33.  See 49 U.S.C. 32902(f).

34.  Note that NHTSA is statutorily prohibited from considering flexibility mechanisms in determining what standards would be maximum feasible. In determining maximum feasibility, NHTSA also must consider dual fueled vehicles to be operated only on gasoline or diesel fuel and, as noted above, may not consider the fuel economy of “dedicated vehicles,” including vehicles that operate only on natural gas, hydrogen, and electricity. 49 U.S.C. 32901(a); 49 U.S.C. 32902(h).

35.  40 CFR 1500.4(g), 1501.7(a).

36.  40 CFR 1500.1(b).

37.  If you prefer to receive NHTSA's NEPA correspondence by U.S. mail, NHTSA plans to provide its NEPA publications via CD.

38.  40 CFR 1506.10.