State of New York v. National Highway Traffic Safet
Court Docket Sheet

2nd Circuit Court of Appeals

2017-02806 (ca2)

MOTION, for summary reversal, to stay, on behalf of Petitioner State of California in 17-2806, FILED. Service date 10/24/2017 by CM/ECF. [2155598] [17-2806, 17-2780] [Entered: 10/24/2017 04:21 PM]

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT Thurgood Marshall U.S. Courthouse 40 Foley Square, New York, NY 10007 Telephone: 212-857-8500 MOTION INFORMATION STATEMENT DocketNumber(s): 17-2780 (L), 17-2806 Caption [use short title J Motion for: Summary Vacatur or, in the Alternative, Stay Pending Review Set forth below precise, complete statement of relief sought: The Petitioner States request summary vacatur of the agency's Natural Resources Defense Council v. National Highway Traffic Safety Administration indefinite delay of the effective date of a final rule increasing the penalty for violations of the federal CAFE standards. In the alternative, Petitioners request that the Court stay the agency's delay action pending a decision on the merits. MOVING PARTY: See Motion for list of Petitioner States OPPOSING PARTY: National Highway Traffic Safety Admin. []Plaintiff []Defendant [Zl.Appellant/Petitioner 0Appellee/Respondent MOVING ATTORNEY: See Motion for list of counsel _____ ___~-------OPPOSING ATTORNEY: H. Thomas Byron __:_ Ill [name of attorn\)y, with ftrm, address, phone number and e-mail] United States Department of Justice. Room 7529, 950 Pennsylvania Ave., N.W., Washington, D.C. 20530-----------------------Tel: 202-616-5367, E-Mail: H.Thomas.Byron@usdoj.gov----------------------~ Court-Judge/Agency appealed from: National Highway Traffic Safety Administration Please check appropriate boxes: FOR EMERGENCY MOTIONS, MOTIONS FOR STAYS AND Has movant notified __gP,posing counsel (required by Local Rule 27.1): [Z}Yes LJNo(explain): Opposing counsel's position on motion:_" · INJUCTIONS PENDING APPEAL: Has this request for relief been made below? Has this relief been previously sought in this court? Requested return date and explanation of emergency: Petitioners are not seeking an emergency stay Yes [Z]No Yes [Z]No a Ounopposed [Z}opposedODon't Know Does opposi~.f couns(ll intend ~le a response: [ZjYes 0No f]Don'tKnow Is oral argument on motion requested? [l}Yes D o (requests for oral argument will not necessarily be granted) Has argument date of appeal been set? Oves[Z]No Ifyes, enter d a t e.: _----------------------Signature of Moving Attomey: _/_s_/_D_a_v_i_d_Z_a_ft_______ Date: October 24, 2017 Service by: [llcM/ECF O Other [Attach proof of service] Fo1m T-1080 (rev.12-13) ORAL ARGUMENT NOT YET SCHEDULED UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT Case Nos. 17-2780 (L), 17-2806 STATE OF NEW YORK, STATE OF CALIFORNIA, STATE OF VERMONT, STATE OF MARYLAND and COMMONWEALTH OF PENNSYLVANIA, Petitioners, v. NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION; JACK DANIELSON, in his capacity as Acting Deputy Administrator of the National Highway Traffic Safety Administration; and ELAINE L. CHAO, in her capacity as Secretary of the United States Department of Transportation, Respondents. MOTION FOR SUMMARY VACATUR OR, IN THE ALTERNATIVE, FOR STAY PENDING JUDICIAL REVIEW ERIC T. SCHNEIDERMAN XAVIER BECERRA Attorney General of the Attorney General of the State of New York State of California BARBARAD. UNDERWOOD DAVID ZONANA Solicitor General Supervising Deputy Attorney General STEVENC. Wu DAVIDZAFT Deputy Solicitor General Deputy Attorney General DA YID S. FRANKEL Office of the Attorney General Assistant Solicitor General 300 S. Spring St., Suite 1702 MONICA WAGNER Los Angeles, California 90013 Deputy Chief Tel: (213) 897-2607 Environmental Protection Bureau Email: David.Zaft@doj.ca.gov 120 Broadway New York, New York 10271 Additional Counsel Listed on Tel: (212) 416-6351 Following Page Email: Monica.Wagner@ag.ny.gov THOMAS J. DONOVAN, JR. JOSH SHAPIRO Attorney General of the Attorney General of the State of Vermont Commonwealth of Pennsylvania KYLE H. LANDIS-MARINELLO JON ATHAN SCOTT GOLDMAN Assistant Attorney General Executive Deputy Attorney General Office of the Attorney General Office of the Attorney General 109 State Street Strawberry Square, 15th Floor Montpelier, Vermont 05609-1001 Harrisburg, Pennsylvania 17120 Tel: (802) 828-3186 Tel: (717) 787-8058 Email: Kyle.Landis-Marinello Email: JGoldman@attorneygeneral.gov@vermont.gov Attorneys for Petitioner Commonwealth Attorneys for Petitioner State of ofPennsylvania Vermont BRIAN E. FROSH Attorney General of the State of Maryland STEVENM. SULLIVAN Solicitor General Office of the Attorney General 200 St. Paul Place Baltimore, MD 21202. Tel: (410) 576-6427 Email: S Sullivan@oag.state.md. us Attorneys for Petitioner State of Maryland TABLE OF CONTENTS Page PRELIMINARY STATEMENT....................................:.................... 1 BACI(GROUND.............................................................................:... 4 A. The CAFE Standards...................................................... 4 B. The Civil Penalties Rule................................................. 5 C. NHTSA's Indefinite Delay of the Civil Penalties Rule's Effective Date...................................................... 8 D. The States' Petition for Review.................................... 10 ARGUMENT..................................................................................... 11 I. NHTSA'S INDEFINITE DELAY OF THE CIVIL PENAL TIES RULE SHOULD BE SUMMARILY VACATED.................................................................... 11 A. NHTSA Lacked the Authority to Delay the Rule's Effective Date........................................... 11 B. NHTSA's Faill!-re to Comply with the AP A's Notice and Comment Requirements Was Unjustified and Unlawful..................................... 13 II. IN THE ALTERNATIVE, THE COURT SHOULD STAY NHTSA'S ACTION PENDING REVIEW....................................................................... 16 A. The Indefinite Delay Will Irreparably Harm the States.............................................................. 17 B. A Stay Will Not Harm Other Parties................... 20 C. The Public Interest Strongly Favors Staying NHTSA's Action.................................................. 21 CONCLUSION.................................................................................. 22 TABLE OF AUTHORITIES Page CASES American Federation of Government Employees v. Block 655 F.2d 1153 (D.C. Cir. 1981)........................................ 14, 15, 16 Atlantic City Elec. Co. v. FERC 295 F.3d 1 (D.C. Cir. 2002)...........................................·................. 12 Bradyv. NFL 640 F.3d 785 (8th Cir. 2011)......................................................... 20 Clean Air Council v. Pruitt 862 F.3d 1 (D.C. Circ. 2017)......................................................... 12 Council of Southern Mountains v. Donovan 653 F.2d 573 (D.C. Cir. 1981)...................................................... 16 Envt 'l. Def Fund, Inc. v. EPA 716 F.2d 915 (D.. C. Cir. 1983)...................................................... 14 GMC v. National Highway Traffic Safety Admin. 898 F.2d 165 (D.C. Cir. 1990)........................................................ 4 Hawaii Helicopter Operators Ass 'n v. FAA 51 F.3d 212 (9th Cir. 1995)........................................................... 15 Massachusetts v. EPA 549 U.S. 497 (2007)................................................................ 10, 20 Mohammed v. Reno 309 F.3d 95 (2d Cir. 2002)............................................................ 16 Nat'! Ass'n ofFarmworkers Orgs. v. Marshall 628 F.2d 604.................................................................................. 20 Natural Resource Defense Council v. Abraham 355 F.3d 179 (2d Cir. 2004)................................................... passim 11 TABLE OF AUTHORITIES (continued) Page Natural Resources Defense Council v. EPA 683 F.2d 752 (3d Cir. 1982).......................................................... 13 New Jersey v. EPA 626 F.2d 1038 (D.C. Cir. 1980).................................................... 14 Perez v. Mortgage Bankers Association 135 S.Ct 1199 (2015).................................................................... 14 Presault v. United States 100 F.3d 1525 (Fed. Cir. 1996)............................................... 20, 21 Snapp v. Puerto Rico ex rel. Barez 458 U.S. 592 (1982)...................................................................... 20 I Winter v. Natural Resources Defense Council 555 U.S. 7 (2008).......................................................................... 21 I Zhang v. Slattery 55 F.3d 732 (2d Cir. 1995)............................................................ 14 STATUTES I 5 United States Code § 551(5)................................................................·.......................... 14 § 553.............................................................................................. 13 § 553(b)(B)................................................................................ 9, 14 § 553(d).......................................................................................... 14 § 553(d)(3)................................... '.""""""""""""""'""'"""""' 9, 14 § 706(2)(C).............................................................................. ll, 13 § 706(2)(0).................................................................................... 13 42 United States Code § 7607(d)(7)(B).............................................................................. 12 111 TABLE OF AUTHORITIE·s (continued) Page 49 United States Code § 32901............................................................................................ 4 § 32902(a)........................................................................................ 4 § 32903............................................................................................ 5 § 32912(b)........................................................................................ 5 Bipartisan Budget Act of 2015, Pub. L. 114-74, 129 Stat. 584 (Nov.2,2015) § 701................................................................................................ 5 § 70l(b)(l)(A)................................................................................. 6 § 70l(b)(l)(D)........................................................................... 6, 11 § 70l(b)(2)(B)................................................................................_.. 6 COURT RULES Federal Rules of Appellate Procedure Rule 18............................................................................................. 1 Rule 27............................................................................................. 1 OTHER AUTHORITIES 49 Code of Federal Regulations§ 1.94(c).........................................;.. 4 77 Federal Register 62,623-63,200 (Oct. 15, 2012) 62,641............................................................................................ 18 63,060............................................................................................ 19 63,060-62.......................................................................................... 4 63,061-62....................................................................................... 19 63,062............................................................................................ 19 81 Federal Register 43,524-29 (July 5, 2016) 43,524........................................................................................ 6, 21 43,524-29......................................................................................... 6 43,526 ······························································································ 6 lV TABLE OF AUTHORITIES (continued) Page 81 Federal Register 95,489-92 (Dec. 28, 2016) 95,489 ·················································································· 2, 5, 7, 8 95,490-91.............................................:............................. 10, 17, 18 95,491·.................................................................................... 2, 7, 18 82 Federal Register 8694 (Jan. 30, 2017)............................................. 8 82 Federal Register 15,302 (March 28, 2017)...................................... 8 82 Federal Register 29,009-10 (June 27, 2017)................................... 8 82 Federal Register 32,139-40 (July 12, 2017) 32,139...:.................................................................................. 1, 2, 8 32,139-40...............................:...................................................... 8, 9 32,140....................................................................·...... 3, 8, 9, 12, 13 82 Federal Register 32,140-45 (July 12, 2017) 32,140 ······················································································· 2, 8, 9 32,141............................................................................................ 18 32,142................................... ~........................................................ 18 32,143.......................................................................................... 2, 9 v GLOSSARY OF ACRONYMS AND ABBREVIATIONS APA the Administrative Procedure Act CAFE standards corporate average fuel economy standards DOE Department of Energy EPCA the Energy Policy and Conservatio1?-Act of 1975 mmt million metric tons mpg miles per gallon NHTSA National Highway Traffic Safety Administration EPA United States Environmental Protection Agency Vl PRELIMINARY STATEMENT In July 2017, the National Highway Traffic Safety Administration ("NHTSA") announced that it was indefinitely delaying the effective date of a final rule that increases the penalty charged to vehicle manufacturers for violations of the corporate average fuel economy ("CAFE") standards. 82 Fed. Reg. 32,139 (July 12, 2017). That increase, mandated by Congress, promised to help restore the deterrent effect of a penalty eroded by decades of inflation, and thereby ensure manufacturers' compliance with standards that reduce emissions of greenhouse gases and other harmful pollutants. Because NHTSA lacked statutory authority to indefinitely delay the penalty increase, and because controlling precedent in this Court precludes NHTSA's bases for avoiding notice and comment procedures, the States of New York, California, Vermont and Maryland and the Commonwealth of Pennsylvania (collectively, the "States") move pursuant to Rule 18 and 27 of the Federal Rules of Appellate Procedure for summary vacatur ofNHTSA's delay action or, in the alternative, for a stay. The CAFE standards-fleet-wide motor vehicle fuel efficiency standards-are a critical tool in reducing emissions of conventional pollutants and greenhouse gases that harm the States and their residents. Manufacturers face financial penalties for failing to comply with the standards. But because the penalty rate, which was first established in 1975, was not indexed to inflation, the penalty has 1 become increasingly toothless, to the point that some manufacturers have found it cheaper to pay the penalty than to manufacture vehicles that comply with the CAFE standards. This problem also compromised many other federal civil penalties. In 2015 Congress took action to remedy this problem and directed federal agencies to adjust their penalties for inflation. NHTSA complied with that statutory mandate, promulgating a final rule on December 28, 2016 (the "Civil Penalties Rule") that increased the penalty for violations of CAFE standards from $5.50 to $14 for every tenth of a mile per gallon ("mpg") that a fleet is over the applicable CAFE standard, multiplied by the number of vehicles in the fleet. 81 Fed. Reg. 95,489 (Dec. 28, 2016). NHTSA found that the increased penalty would encourage manufacturers to comply with the CAFE standards. Id. at · 95,491. The Civil Penalties Rule's effective date was January 27, 2017, but NHTSA later announced that it was moving the date back to July 10, 2017. On July 12, 2017, more than six months after it promulgated the rule, NHTSA announced that it sua sponte was reconsidering the penalty increase, and it immediately and indefinitely delayed the rule's effective date and reinstated the $5.50 penalty. 82 Fed. Reg. at 32,139; 82 Fed. Reg. 32,140, 32,143 (July 12, 2017). NHTSA delayed the Civil Penalties Rule's effective date without notice or the opportunity for public comment, claiming that it had good cause to bypass 2 these steps because the effective date was imminent, it needed time to reconsider the penalty increase, and no one would be harmed by the delay. Id. at 32,140. NHTSA's delay action should be set aside. An agency has only the powers expressly granted to it by. Congress, and NHTSA lacked any statutory authority to indefinitely delay the effective date of the Civil Penalties Rule. To the contrary, Congress had directed NHTSA to update its penalties to account for inflation-a statutory mandate that NHTSA's indefinite delay illegally disregards. NHTSA's action was also procedurally improper. The agency lacked good cause to dispense with notice and comment because there was no emergency or other exceptional circumstance that made it necessary_ to do so. This Court made clear in Natural Resources Defense Council v. Abraham that the imminence of a regulation's effective date and the agency's intent to reconsider a regulation do not constitute good cause. 355 F.3d 179, 205-06 (2d Cir. 2004). If the Court does not summarily vacate the delay, it should stay NHTSA's delay pending judicial review. The States are likely to succeed on the merits, and the suspension of the new penalty is likely to reduce compliance with the CAFE standards, which will irreparably harm the States. 3 BACKGROUND A. The CAFE Standards In 1975, Congress enacted the Energy Policy and Conservation Act ("EPCA"), a comprehensive response to the energy crisis caused by the oil embargoes of the early 1970s. Among other things, EPCA established a program of mandatory fuel efficiency standards for vehicles. 49 U.S.C. §§ 32901-32919; see GMC v. National Highway Traffic Safety Admin., 898 F.2d 165, 167 (D.C. Cir. 1990). The CAFE program sets average fleet-wide fuel economy standards, measured in mpg, that different classes of vehicles must meet. The standards were initially aimed at reducing the nation's oil consumption but have had the additional effect of lowering tailpipe emissions of conventional pollutants and greenhouse gases. See 77 Fed. Reg. 62,623, 63,060-62 (Oct. 15, 2012). EPCA assigns the responsibility of administering the CAFE program to the Secretary of Transportation, who, in turn, has delegated this duty to NHTSA. 49 U.S.C. § 32902(a); 49 C.F.R. § l.94(c). To compel automakers to comply with the standards, EPCA imposes a civil penalty-initially set at $5. 00 in 197 5-for every ten!h of a mpg "by which the average fuel economy standard" for a fleet exceeds the applicable CAFE model 4 year standard, multiplied by the number of vehicles in that fleet. 1 49 U.S.C. § 32912(b). In 1997, NHTSA raised the penalty rate to $5.50 per tenth of a mpg in response to the 1990 Federal Civil Penalties Inflation Adjustment Act Improvements Act (the "Inflation Adjustment Act"). The penalty rate sat unchanged for the next two decades. 81 Fed. Reg. at 95,489. While the majority of vehicle manufacturers build fleets that comply with the CAFE standards, some European manufacturers chose to pay penalties rather than manufacture compliant vehicles. From 1983 to 2014, the companies that paid the highest amount of civil penalties were Mercedes-Benz, BMW, DaimlerChrysler, Volvo, Porsche and Jaguar-Land Rover. 2 B. The Civil Penalties Rule In 2015, Congress enacted the Bipartisan Budget Act of 2015, Pub. L. 114-74, 129 Stat. 584 (Nov. 2, 2015). This law included, at Section 701, amendments to the 1990 Inflation Adjustment Act that directed federal agencies to improve the effectiveness of their civil monetary penalties and maintain the deterrent effect of 1 In 2007, Congress amended the CAFE provisions in EPCA to permit vehicle manufacturers to earn credits for exceeding the established standard for a particular class of vehicles. See generally 49 U.S.C. § 32903. Manufacturers can either apply those credits to later model years that do not meet the standards or sell them to other manufacturers. 2 See NHTSA's "CAFE Public Information Center" at https://one.nhtsa.govIcafe_pic/CAFE_ PIC_Fines_LIVE.html (last checked October 24, 2017). 5 those penalties. See 81 Fed. Reg. 43,524 (July 5, 2016). First, the amendments directed each agency to issue an interim final rule making a "catch up adjustment" to its civil penalties to account for the change in the Consumer Price Index from the year when "the amount of such civil monetary penalty was established or adjusted under a provision of law other than this Act" through October 2015. Pub. L. 114-74 § 70l(b)(2)(B). This initial adjustment was to "take effect not later than August 1, 2016." Id. § 701(b)(l)(D). 3 Second, the amendments directed agencies to make subsequent annual adjustments to their civil penalties for inflation. Id. § 70l(b)(l)(A), (D). To comply with the statutory mandate, on July 5, 2016, NHTSA issued an interim final rule updating various civil penalty amounts, including an increase in the penalty for violating CAFE standards from $5.50 to $14 per tenth of a mpg. 81 Fed. Reg. 43,524-29. Although the change in the Consumer Price Index since 1975 (when the penalty was first established) would have led to an adjusted penalty of $22, a statutory cap prevented increases of more than 150%, resulting in the $14 penalty. Id. at 43,526; Pub. L. 114-74 § 701(b)(2)(B). The effective date for the new penalty was August 4, 2016. 81 Fed. Reg. at 43,524. 3 A copy of the guidance issued by the Office of Management and Budget regarding the implementation of the amendments is available at https://obamawhitehouse.archives.gov/omb/memoranda_ 2016 (Document M-16-06) (last checked Oct. 24, 2017). 6 Two vehicle manufacturer associations, the Alliance of Automobile Manufacturers and the Association of Global Automakers, submitted a petition for partial reconsideration to NHTSA (the "Industry Petition"). 4 While the industry petitioners acknowledged that "NHTSA is not empowered to exempt the CAFE program" from Congress's directive, they argued, among other things, that: (1) NHTSA should have found that the penalty increase would have a negative economic impact and imposed a smaller increase; (2) the increase should not apply to model years 2014 through 2016, because it was too late to make changes to those fleets; and (3) based on the eighteen-month lead time that is used for changes to the CAFE standards themselves, any penalty increase should not be imposed before model year 2019. Industry Petition at 1, 11-12. On December 28, 2016, NHTSA issued the Civil Penalties Rule. 81 Fed. Reg. 95,489. NHTSA affirmed the new $14 penalty rate but, based on the Industry Petition, applied it to model year 2019 and later fleets, thereby affording "a reasonable amount of lead time for manufacturers to adjust their plans and products to take into account the substantial change in penalty level." Id. at 95,491. 4 A copy of the Industry Petition is available at https://www.regulations.govI document?D=NHTSA-2016-007 5-0002 (last checked Oct. 24, 2017). 7 The Civil Penalties Rule took effect on January 27, 2017. Id. at 95,489. However, on January 30, 2017, NHTSA published a notice stating that the. effective date was temporarily delayed for 60 days, until March 28, 2017, in accordance with a general "regulatory freeze" issued by the new administration. 82 Fed. Reg. 8694 (Jan. 30, 2017). As a result of two subsequent temporary delays, NHTSA announced a new effective date for the Civil Penalties Rule of July 10, 2017. 82 Fed. Reg. 15,302 (March 28, 2017); 82 Fed. Reg. 29,009-10 (June 27, 2017). C. NHTSA's Indefinite Delay of the Civil Penalties Rule's Effective Date On July 12, 2017, NHTSA published two notices in the Federal Register, one declaring that it "sua sponte" was reconsidering the Civil Penalties Rule, and the other announcing that the effective date of the rule was "delayed indefinitely pending reconsideration." 82 Fed. Reg. 32,139, 32,140. 5 NHTSA cited no specific provision or statutory language authorizing the delay, stating only that the action was "consistent with NHTSA's statutory authority to administer the CAFE standards program and its inherent authority to do so efficiently and in the public interest." Id. at 32,140. NHTSAjusti:fied the delay as necessary because it "is reconsidering the final rule" and "is seeking comment on whether $14.per tenth of 5 A copy of the notice announcing NHTSA's delay action is attached as Exhibit 1. 8 an mpg is the appropriate penalty level for civil penalties for violations of CAFE standards[.]" Id. at 32,139-40. NHTSA also stated that it had "good cause to implement the delay without notice and comment under 5 U.S.C. 553(b)(B) and 553(d)(3) because those procedures are impracticable, unnecessary, and contrary to the public interest in these circumstances, where the effective date of the rule is imminent.".Id. at 32,140. NHTSA cited to the fact that it is "seeking out public comments on the underlying issues, which may be extensive, and additional time will be required to thoughtfully consider and address those comments before deciding on the appropriate course of regulatory action." Id. And it stated that "no party will be harmed by the delay" because "the delay will not affect the civil penalty amounts assessed against any manufacturer for violating a CAFE standard prior to the 2019 model year." Id. In the other notice announcing its reconsideration and requesting comments, NHTSA declared that "[d]uring reconsideration, the applicable civil penalty rate is $5.50 per tenth of a mile per gallon, which was the civil penalty rate prior to NHTSA's inflationary adjustment." Id. at 32,143. NHTSA set October 10, 2017 as the deadline for receiving comments. Id. at 32,140. NHTSA has not announced a deadline for the completion of its reconsideration of the Civil Penalties Rule. 9 D. The States' Interests The States bring this action in order to safeguard the public health of their citizens and the environment, both of which will be adversely impacted by NHTSA's indefinite delay of the Civil Penalties Rule and the reinstatement of the $5.50 penalty. As explained in Section II.A., infra, NHTSA's action directly affects vehicle manufacturers' current fuel efficiency planning for model year 2019 fleets and beyond, and this planning will determine the amount of tailpipe emissions those vehicles will emit. Both the manufacturers and NHTSA have acknowledged that planning decisions made now will be difficult to reverse, and an insufficiently high penalty therefore can "lock in" manufacturer decisions to not comply with the CAFE standards. See 81 Fed. Reg. at 95,490-91; Industry Petition at 5, 8. This, in turn, will lead to increased air pollution and greenhouse gases in future years. The States have a concrete and particularized interest in protecting their citizens and their environment from this outcome. See Massachusetts v. EPA, 549 U.S. 497, 520 (2007). 6 6 In addition, California has collaborated extensively with NHTSA and the United States Environmental Protection Agency ("EPA") on a program to harmonize NHTSA's CAFE standards and vehicle greenhouse gas emission standards. (Deel. of Joshua Cunningham (attached as Exhibit 2),,r,r 5-7.) NHTSA, EPA and the California Air Resources Board jointly developed the federal CAFE and greenhouse gas standards for vehicles for model years 201 7 through 2025. (Id.,r 7.) California therefore has an additional interest in ensuring (continued...) 10 ARGUMENT I. NHTSA'S INDEFINITE DELAY OF THE CIVIL PENALTIES RULESHOULDBESUMMARILYVACATED A. NHTSA Lacked the Authority to Delay the Rule's Effective Date. NHTSA lacked statutory authority to indefinitely postpone the Civil Penalties Rule's effective date. See 5 U.S.C. § 706(2)(C). Indeed, the indefinite delay directly conflicts with the 2015 amendments to the Inflation Adjustment Act. These amendments required that agencies enact an initial "catch up" penalty adjustment that would take effect "not later than August 1, 2016." Pub. L. 114-74 § 70l(b)(l)(D). The agency's initial adjustment to the CAFE penalty is now over fourteen months overdue, and NHTSA's "indefinite" postponement offers no guidance as to when the "catch up" adjustment will finally be made effective. NHTSA's delay action also interferes with its ability to fulfill the second directive in the amendments, namely the subsequent annual adjustments, which depend on a determination of the amount of the "catch up" adjustment. Accordingly, NHTSA's postponement disregards the mandate imposed by the Inflation Adjustment Act amendments and illegally leaves in place an outdated penalty, the effectiveness of which has been whittled away by decades of inflation. (... continued) that NHTSA's delay of the Civil Penalties Rule does not undermine this program. (Id.,r,r 18-21.) 11 Even ignoring the statutory mandate, the agency has identified no provision that authorizes it to indefinitely postpone the effective date of the Civil Penalties Rule. It is "axiomatic that administrative agencies may act only pursuant to authority delegated to them by Congress." Clean Air Council v. Pruitt, 862 F.3d 1, 9 (D.C. Circ. 2017) (internal quotation marks and citation omitted); see also Atlantic City Elec. Co. v. FERC, 295 F.3d 1, 8 (D.C. Cir. 2002) (federal agency is a "creature of statute" and has "only those authorities conferred upon it by Congress") (internal quotation omitted, emphasis in original). While Congress has permitted agencies to suspend or delay the effective date of certain promulgated regulations in narrowly defined circumstances, it has not given that authority to NHTSA with respect to penalty increases. Compare, e.g., 42 U.S.C. § 7607(d)(7)(B) (Clean Air Act provision permitting delay of effective date pending reconsideration "for a period not to exceed three months" in limited circumstances). In Abraham, this Court firmly rejected the proposition that federal agencies possess a generalized "inherent" power to delay and reconsider a final rule. Abraham, 355 F.3d at 202-03. That position was reaffirmed by the D.C. Circuit this year in an opinion citing this Court's reasoning. Clean Air Council, 862 F.3d at 9 (rejecting EPA's position that it had "inherent authority" to suspend a rule pending reconsideration). These precedents preclude NHTSA's attempt to justify its indefinite delay based on its general 12 "statutory authority to administer the CAFE standards program." 82 Fed. Reg. at 32,140. The reason that agencies do not possess an inherent right to delay and reconsider duly promulgated final rules is manifest in this case. If agencies could indefinitely suspend the effective date of a final rule outside of the process required to formally rescind that rule, "it would mean that an agency could guide a future rule through the rulemaking process, promulgate a final rule, and then effectively repeal it, simply by indefinitely postponing its operative date." Natural Resources Defense Council v. EPA, 683 F.2d 752, 762 (3d Cir. 1982). This is exactly the impermissible course of action that NHTSA has pursued here. In sum, NHTSA's delay action exceeded its statutory authority, see 5 U.S.C. § 706(2)(C)~ and should be invalidated. B. NHTSA's Failure to Comply with the APA's Notice and Comment Requirements Was Unjustified and Unlawful. Even ifNHTSA had the authority to delay the Civil Penalties Rule's effective date, by doing so without notice and comment NHTSA acted "without observance of procedure required by law," 5 U.S.C. § 706(2)(0). Its delay is invalid on this independent basis. The Administrative Procedure Act ("APA") generally requires agencies to publish a notice of proposed rulemaking and solicit public comment on all rulemakings. 5 U.S.C. § 553. A proposed rule must be published in the Federal 13 Register not less than thirty days before its effective date. Id. § 553(d). These requirements apply when an agency promulgates a rule, and when it amends, repeals, or suspends the effectiveness of a rule. See id. § 551(5); Perez v. Mortgage Bankers Association, 135 S.Ct 1199, 1206 (2015); Envt'l. Def Fund, Inc. v. EPA, 716 F.2d 915, 920 (D.C. Cir. 1983). Failure to comply with these procedural requirements requires invalidation of an agency's actions. Abraham, 355 F.3d at 206. Here, NHTSA attempted to avoid this result by citing the APA's narrow exception to notice-and-co11:ment procedures "when the agency for good cause finds" that such requirements "are impracticable, unnecessary, or contrary to the public interest." 5 U.S.C. § 553(b)(B); see also id. § 553(d)(3). However, this exception "should be narrowly construed and only reluctantly countenanced." Zhang v. Slattery, 55 F.3d 732, 744 (2d Cir. 1995) (internal quotation marks and citation omitted), superseded by statute on other grounds as stated in City ofNew York v. Permanent Mission ofIndia to United Nations, 618 F.3d 172 (2d Cir. 2010); see also New Jersey v. EPA, 626 F.2d 1038, 1045 (D.C. Cir. 1~80). It "should be limited to emergency situations" and is not an '"escape clause[]' that 14 may arbitrarily utilized at the agency's whims." American Federation of Government Employees v. Block, 655 F.2d 1153, 1156 (D.C. Cir. 1981). 7 Here, NHTSA has identified no genuine emergency warranting departure from the AP A's normal procedures. Instead, the agency found good cause. because the rule's effective date was imminent and the agency had decided to reconsider the penalty increase. This Court categorically rejected such grounds as insufficient to establish good cause in Abraham. There, this Court reviewed a decision by the Department of Energy ("DOE"), following a change in administration, to indefinitely suspend the effective date of a rule establishing new efficiency standards for air conditioners, pending the agency's reconsideration. 355 F.3d at 190. Like NHTSA in this case, DOE had found that there was good cause under the AP A because DOE wanted to '"review and consider[]' the new efficiency standards, and the effective date designated for those standards was imminent." Id. at 205. The Court explained, how;ever, that the effective date for the new efficiency standards was "an emergency ofDOE's own making" that could not "constitute good cause" for failing to provide notice and comment. Id. 7 For example, there was good cause to issue operating rules for airplane and helicopter tours without notice and comment in Hawaii Helicopter Operators Ass 'n v. FAA, 51 F.3d 212, 214 (9th Cir. 1995), because there had been a series of fatal crashes that required an immediate response. 15 The reasoning in Abraham squarely applies to NHTSA's indefinite delay of the Civil Penalties Rule. Like DOE, NHTSA's invocation of the good cause exception is based on the imminent effective date of a rule that it now wishes to reconsider. That does not constitute an emergency that justifies forgoing notice and comment. Indeed, if the mere imminence of a deadline were a valid basis for invoking the good-cause exception, an agency "could simply wait until the eve of' an effective date and "then raise up the 'good cause' banner and promulgate rules without following APA procedures." Council ofSouthern Mountains v. Donovan, 653 F.2d 573, 581 (D.C. Cir. 1981). To avoid notice and comment, an agency must identify truly exceptional circumstances that threaten real harm or create an emergency situation. Block, 655 F.2d at 1156. NHTSA failed to do this, and its delay action therefore violated the APA's requirements and should be summarily vacated. II. IN THE ALTERNATIVE, THE COURT SHOULD STAY NHTSA'S ACTION PENDING REVIEW If the Court does not summarily vacate NHTSA's delay action, it should stay the action pending review of the merits. The criteria for staying an agency's action are: "the likelihood of success on the merits, irreparable injury if a stay is denied, substantial injury to the party opposing a stay if one is issued, and the public interest." Mohammed v. Reno, 309 F.3d 95, 100 (2dCir. 2002). For the 16 reasons above, the States are likely to succeed on the merits, and for the reasons below, the States meet the other factors. A. The Indefinite Delay Will Irreparably Harm the States. The indefinite delay of the penalty increase will harm the States by reducing compliance with the CAFE standards for model year 2019 and later fleets, resulting in emissions of conventional pollutants and greenhouse gases that would not occur if automakers complied with the standards. Once these pollutants are emitted, the health and climate harms cannot be undone. It is undisputed that the amount of the penalty impacts manufacturers' fleet planning and thus, fleet average mpg and emissions. Indeed, the administrative record for both the Civil Penalties Rule and for NHTSA's delay action are premised on that fact. For example, when it published the Civil Penalties Rule, NHTSA found that automakers take the penalty amount into account when they establish their product and compliance plans, that planning is done well before the commencement of a model year, and that the planning is difficult to alter once complete. 81 Fed. Reg. at 95,490-91. NHTSA also recognized that some manufacturers had decided not to comply with the CAFE standards for model years before 2019 based on the former penalty of $5.50, and that it was too late for them to change their plans for those model years based on the $14 penalty. Id. Accordingly, NHTSA chose not to impose the $14 penalty on fleets until model 17 year 2019. Id. at 95,491. Similarly, when it announced its reconsideration, NHTSA stated that it "expects that increasing the level of the CAFE penalty will lead to... increased compliance with CAFE standards, which would result in greater fuel savings and other benefits." 82 Fed. Reg. at 32,142. According to the manufacturers' timeline, they are now planning for model years 2019 and later, including determining the technology to use for their fleets. See, 81 Fed. Reg. at 95,490-91. If manufacturers base those plans on the $5.50 penalty that NHTSA has reinstated rather than the indefinitely delayed $14 penalty, some manufacturers are likely to choose, as they have in the past, to pay. penalties instead of complying with the CAFE standards. See Industry Petition at 2, 5. This is especially likely, as NHTSA has acknowledged, given "the fact that CAFE standards are set to rise at a significant rate over the next several years." 82 Fed. Reg. at 32,141; see also 77 Fed. Reg. at 62,641 (showing 2017-2021 CAFE standards and the "augural" standards for 2022-2025). Moreover, ifNHTSA's delay action is not vacated or stayed, the automakers will undoubtedly argue when future penalty amounts are announced that they need additional lead time to plan for those new amounts, creating the possibility that NHTSA may try to further postpone the application of the new penalty beyond model year 2019. Nor can NHTSA dispute that reduced compliance with CAFE standards will lead to significant adverse consequences for the environment and public 18 health. When NHTSA established the CAFE standards for model years 2017 and later (including model year 2019), it "estimate[d] that total annual C02 emissions associated with passenger car and light truck use in the U.S. would decline by between 36 million metric tons (mmt) and 38 mmt in 2020," leading to "small but significant reductions in projected changes in the future global climate." 77 Fed. Reg. at 63,060. Among other impacts, NHTSA found that climate change is likely to decrease dairy production in New York and Vermont; lower crop yield in California; increase flooding in densely-populated New York City; reduce native tree species in Pennsylvania; increase heat-related illnesses and deaths in the Northeast (which includes all the States except California); reduce coastal land in· Maryland; and· cause droughts in California. 8 NHTSA further found that reductions in fuel use as a result of the CAFE standards would lead to a net decrease in the emissions of several conventional air pollutants. 77 Fed. Reg. at 63,061-62. NHTSA predicted that these emission reductions would result in hundreds fewer premature deaths, chronic bronchitis cases, and emergency room visits for asthma, as well as tens of thousands fewer lost work days. Id. at 63,062. 8 NHTSA, Final Environmental Impact Statement for CAFE Standards, § 5.5.2, available at https://one.nhtsa.gov/Laws-&-Regulations/CAFE-%E2%80%93-Fuel-Economy/Environmental-Impact-Statement-for-CAFE-Standards,-2017%E2%80%932025 (last checked Oct. 24, 2007). 19 In sum, reduced compliance with the CAFE standards caused by NHTSA's delay of the Civil Penalties Rule will irreparably harm the States' quasi-sovereign interests in the health and welfare of their residents and the environment, as well as the States' proprietary and financial interests. See Massachusetts, 549 U.S. at 520-21; Snapp v. Puerto Rico ex rel. Barez, 458 U.S. 592, 607 (1982). B. A Stay Will Not Harm Other Parties. As the agency charged with enforcing the CAFE standards, NHTSA will not be harmed by a stay of its delay action. A stay simply makes clear that while this action is pending the Civil Penalties Rule will be in effect. This does not burdenNHTSA. See Nat'! Ass'n ofFarmworkers Orgs. v. Marshall, 628 F.2d 604, 615 (D.C. Cir. 1980 ("consequences [that] are no different from [an agency's] burdens under the statutory scheme... do not constitute substantial harm for the purpose of delaying injunctive relief'). Nor will a stay cause substantial cognizable harm to vehicle manufacturers. Automakers can avoid paying the higher penalty rate simply by complying with the CAFE standards, as most already do. The need to comply with an indisputably valid law is not a cognizable injury. See Brady v. NFL, 640 F.3d 785, 795 (8th Cir. 2011) (Bye, J,, dissenting) (that a party "must comply with the law... does not constitute irreparable harm"); Presault v. United States, 100 F.3d 1525, 1539 (Fed. Cir. 1996) ("no one has a property right to violate otherwise 20 valid laws"). With the stay in place, manufacturers will be on notice that, unless NHTSA revises the Civil Penalties Rule as a result of reconsideration, the $14 penalty will apply to the fleets they currently are designing, and they will have the opportunity to plan accordingly. C. The Public Interest Strongly Favors Staying NHTSA's Action. "In exercising their sound discretion, courts of equity should pay particular regard for the public consequences" of an injunction. Winter v. Natural Resources Defense Council, 555 U.S. 7, 24 (2008) (internal quotation marks and citation omitted). The public benefits from granting the stay greatly outweigh any harm that might occur to NHTSA and the vehicle manufacturers from reinstating the modified penalty. As an initial matter, in promulgating the Civil Penalties Rule, NHTSA was complying with Congress's express direction to federal agencies to update their civil penalties in order to improve and maintain the deterrent effect of their civil monetary penalties. See 81 Fed. Reg. at 43,524. By contrast, NHTSA's delay action and its reinstatement of the outdated, lower penalty amount contravenes Congress's direction and undermines its goals. By granting the States' request for a stay, the Court will further Congress's objective to improve the deterrent effect of the penalty, a goal that Congress already determined serves,the public interest. 21 The updated penalty particularly serves the public interest because it helps to ensure that manufacturers produce vehicles that emit fewer health-harming conventional pollutants and greenhouse gases and save consumers money. In addition, compliance with the CAFE standards furthers the nation's energy conservation goals. All of these benefits-environmental benefits, consumer savings, and reduced reliance on foreign energy supplies-serve the public interest and substantially outweigh any theoretical harm that NHTSA or the vehicle manufacturers face from a stay. CONCLUSION For the reasons stated above, the Court should grant the States' motion, vacate NHTSA's indefinite delay action, and reinstate the Civil Penalties Rule's effective date. In the alternative, the Court should stay NHTSA's unlawful delay pending the Court's decision on the ·merits. 22 Dated: October 24, 2017 Respectfully submitted, ERIC T. SCHNEIDERMAN XAVIER BECERRA Attorney General of the Attorney General of the State of New York State of California BARBARAD. UNDERWOOD DAVID A. ZONANA Solicitor General Supervising Deputy Attorney General STEVENC. Wu Deputy Solicitor General By: Isl David Zaft DAVID S. FRANKEL DAVIDZAFT Assistant Solicitor General Deputy Attorney General Office of the Attorney General By: Isl Monica Wagner 300 S. Spring St., Suite 1702 MONICA WAGNER Los Angeles, California 90013 Deputy Chief Tel: (213) 897-2607 Environmental Protection Bureau Email: David.Zaft@doj.ca.gov 120 Broadway David.Zonana@doj.ca.gov New York, New York 10271 Tel: (212) 416-6351 Attorneys for Petitioner State of Email: Monica.Wagner@ag.ny.gov California Attorneys for Petitioner State of New York 23 THOMAS J. DONOVAN, JR. JOSH SHAPIRO Attorney General of the Attorney General of the State ofVermont Commonwealth of Pennsylvania By: Isl Kyle H Landis-Marinello By: Isl Jonathan Scott Goldman KYLE H. LANDIS-MARINELLO JONATHAN SCOTT GOLDMAN Assistant Attorney General Executive Deputy Attorney General Office of the Attorney General Office of the Attorney General 109 State Street Strawberry Square, 15th Floor. Montpelier, Vermont 05609-1001 Harrisburg, Pennsylvania 17120 Tel: (802) 828-3186 Tel: (717) 787-8058 Email: Kyle.Landis-Marinello Email: J Goldman@attorneygeneral.gov@vermont.gov Attorneys for Petitioner Commonwealth Attorneys for Petitioner State of ofPennsylvania Vermont BRIAN E. FROSH Attorney General of the State of Maryland I I By: Isl Steven M Sullivan STEVENM. SULLIVAN Solicitor General Office of the Attorney General 200 St. Paul Place Baltimore, MD 21202 Tel: (410) 576-6427 Email: S Sullivan@oag.state.md.us Attorneys for Petitioner State of Maryland 24 CERTIFICATE OF COMPLIANCE Pursuant to Federal Rule of Appellate Procedure 32(g), and based on the word count function in Microsoft Word 2016, I certify that this Motion for Summary Vacatur, or in the Alternative, Stay Pending Judicial Review complies with the type-volume limitations of Rule 27(d)(2)(a) because it contains 5,162 words, including footnotes and excluding the parts of the brief exempted by Rule 32(±), and it complies with the typeface and type style requirements of Rule 32(a)(5) and (a)(6). Dated: October 24, 2017 Isl David Zaft David Zaft 25 CERTIFICATE OF SERVICE I hereby certify that I electronically filed Petitioners' Motion for Summary Vacatur or, in the Alternative, for Stay Pending Judicial Review with the Clerk of the Court for the United States Court of Appeals for the Second Circuit via the Court's CM/ECF system on October 24, 2017. I further certify that participants in the case are registered CM/ECF users and that service will be accomplished by the Court's CM/ECF system. Isl David Zafi; David Zaft 26 Exhibit 1 (82 Fed. Reg. 32,139, July 12; 2017) I AUTIJaNTICATIID.? Ull.OOVERNMlNT!NfOIIMATION/Ol'q Federal Register/Vol. 82, No. 132/Wednesday, July 12, 2017/Rules and Regulations 32139 Review) defines a "significant approved this document on July 5, 2017, exceeding an applicable Corporate regulatory action," which requires for publication. Average Fuel Economy (CAFE) standard review by the Office of Management and was among the penalties adjusted for List of Subjects in 38 CFR Part 74 Budget, as "any regulatory action that is inflation in the interim final rule. In likely to result in a rule that may: (1) Administrative practice and accordance with the Inflation Have an annual effect on the economy procedures, Privacy, Reporting and Adjustment Act and guidance on of $100 million or more or adversely recordkeeping requirements, Small calculating the inflationary adjustment affect in a material way the economy, a business, Veteran, Veteran-owned small mandated by the Act issued by the sector of the economy, productivity, business, Verification. Office of Management and Budget, competition, jobs, the environment, Dated: July 7, 2017. NHTSA increased the civil penalty for public health or safety, or State, local, Michael Shores, failing to meet an applicable CAFE or tribal governments or communities; Director, Regulation Policy Pr Management, standard from $5.50 per tenth of a mile (2) Create a serious inconsistency or Office of the Secretary, Department of per gallon (mpg) to $14 per tenth of an otherwise interfere with an action taken Veterans Affairs. mpg. or planned by another agency; (3) The Auto Alliance and Global Materially alter the budgetary impact of PART 74-VETERANS SMALL Automakers jointly petitioned NHTSA entitlements, grants, user fees, or loan BUSINESS REGULATIONS for reconsideration of the interim final programs or the rights and obligations of rule regarding the inflationary recipients thereof; or (4) Raise novel Accordingly, the interim rule adjustment of CAFE non-compliance legal or policy issues arising out of legal amending 38 CFR part 74 which was penalties (hereafter, the Alliance and mandates, the President's priorities, or published at 82 FR 11154 on February Global petition will be referred to as the 21, 2017, is adopted as final without "Industry Petition") 1 on August 1, the principles set forth in this Executive Order." change. 2016. The Industry Petition argued that [FR Doc. 2017-14600 Filed 7-11-17; 8:45 am] NHTSA used the wrong base year to Th.e economic, interagency, budgetary, legal, a:nd policy BILLING CODE 8320-01-P calculate the inflationary adjustment to implications of this regulatory action the CAFE civil penalty and raised have been examined and it has been concerns about applying the adjusted DEPARTMENT OF TRANSPORTATION civil penalty retroactively. The Industry determined not to be a significant regulatory action under Executive Order National Highway Traffic Safety Petition also argued that in the event 12866. Administration that NHTSA chose not to adopt the base year suggested in the petition, NHTSA Unfunded Mandates should seek comment on whether 49 CFR Part 578 The Unfunded Mandates Reform Act NHTSA should adopt a lower penalty of 1995 requires, at 2 U.S.C. 1532, that [Docket No. NHTSA-2016-0136] level than the one in the interim final agencies prepare an assessment of RIN 2127-AL82 rule based on "negative economic anticipated costs and benefits before issuing any rule that may result in the Civil Penalties impacts," as permitted by the Inflation Adjustment Act. II expenditure by state, local, and tribal On December 28, 2016, NHTSA AGENCY: National Highway Traffic published a final rule in response to the governments, in the aggregate, or by the Safety Administration (NHTSA), private sector, of $100 million or more Industry Petition. 2 To address concerns Department of Transportation (DOT). raised in the Industry Petition about (adjusted annually for inflation) in any given year. This final rule has no such ACTION: Final rule; delay of effective applying the adjusted penalty effect on state, local, and tribal date. retroactively, NHTSA delayed governments, or on the private sector. application of the $14 per tenth of an SUMMARY: NHTSA is delaying the mpg penalty until the 2019 model year, Paperwork Reduction,Act effective date of the final rule entitled which begins in October 2018 for most "Civil Penalties," published in the manufacturers. The final rule did not This document contains no provisions Federal Register on December 28, 2016, address the other points raised in the constituting a collection of information because NHTSA is reconsidering the under the Paperwork Reduction Act of Industry Petition. appropriate level for CAFE civil The December 28, 2016 final rule is 1995 (44 u.s.c. 3501-3521). penalties. not yet effective and would currently Catalog of Federal Domestic Assistance DATES: As of July 7, 2017, the effective become effective on July 10, 2017.s date of the final rule published in the NHTSA is now reconsidering the final This final rule affects the verification guidelines of veteran-owned small Federal Register on December 28, 2016, rule because the final rule did not give at 81 FR 95489, is delayed indefinitely adequate consideration to all of the businesses, for which there is no Catalog pending reconsideration. relevant issues, including the potential of Federal Domestic Assistance program FOR FURTHER INFORMATION CONTACT: economic consequences of increasing number. Rebecca Schade, Office of Chief CAFE penalties by potentially $1 billion Signing Authority Counsel, at (202) 366-2992. per year, as estimated in the Industry Petition. Thus, in a separate document The Secretary of Veterans Affairs, or SUPPLEMENTARY INFORMATION: On July 5, designee, approved this document and 2016, NHTSA published an interim 1 Jaguar Land Rover North America, LLC also authorized the undersigned to sign and final rule updating the maximum civil filed a petition for reconsideration in response to submit the document to the Office of the penalty amounts for violations of the July 5, 2016 interim final rule raising the same Federal Register for publication statutes and regulations administered by concerns as those raised in the Industry Petition. electronically as an official document of NHTSA, pursuant to the Federal Civil Both petitions can be found in Docket No. NHTSA-2016-0075, accessible via www.regulations.gov. the Department of Veterans Affairs. Gina Penalties Inflation Adjustment Act 2 81 FR 95489. S. Farrisee, Deputy Chief of Staff, Improvements Act of 2015 (Inflation 3 82 FR 8694 (Jan. 30, 2017); 82 FR 15302 (Mar. Department of Veterans Affairs, Adjustment Act). The penalty for 28, 2017); 82 FR 29009 (June 27, 2017). 32140 Federal Register/Vol. 82, No. 132/Wednesday, July 12, 2017/Rules and Regulations published in this Federal Register, DEPARTMENT OF TRANSPORTATION Docket: For access to the docket to NHTSA is seeking comment on whether read background documents or $14 per tenth of an mpg is the National Highway Traffic Safety comments received, go to http://appropriate penalty level for civil Administration www.regulations.gov or the street penalties for violations of CAFE address listed above. NHTSA will standards given the requirements of the 49 CFR Part 578 continue to file relevant information in Inflation Adjustment Act and the Energy [Docket No. NHTSA-2017-0059] the Docket as it becomes available. Policy and Conservation Act (EPCA) of Privacy Act: In accordance with 5 1975, which authorizes civil penalties Civil Penalties U.S.C. 553(c). DOT solicits comments for violations of CAFE standards. 4 AGENCY: National Highway Traffic from the public to better inform its Because NHTSA is reconsidering the Safety Administration (NHTSA). rulemaking process. DOT posts these final rule, NHTSA is delaying the Department of Transportation (DOT). comments, without edit, including any effective date pending reconsideration. personal information the commenter ACTION: Reconsideration of final rule; provides, to http://www.regulations.gov, There is good cause to implement this request for comments. as described in the system of records delay without notice. and comment notice (DOT/ALL-14 FDMS), which can SUMMARY: NHTSA seeks comment on under 5 U.S.C. 553(b)(B) and 553(d)(3) be reviewed at https:/1 because those procedures are whether and how to amend the civil penalty rate for violations of Corporate. www.transportation.gov/privacy. impracticable, unnecessary, and Average Fuel Economy (CAFE) Anyone is able to search the electronic contrary to the public interest in these standards. NHTSA initially raised the form of all comments received into any circumstances, where the effective date civil penalty rate for CAFE standard of DOT's dockets by the name of the of the rule is imminent. Moreover, the violations for inflation in 2016, but individual submitting the comment (or agency is, through a separate document, upon further consideration, NHTSA signing the comment, if submitted on already seeking out public comments on believes that obtaining additional public behalf of an association, business, labor the underlying issues, which may be input on how to proceed with CAFE union, etc.). extensive, and additional time will be civil penalties in the future will be FOR FURTHER INFORMATION CONTACT: required to thoughtfully consider and helpful. Therefore, NHTSA is issuing Thomas Healy, Office of the Chief address those comments before deciding this document to seek public comment Counsel, NHTSA, telephone (202) 366-on the appropriate course of regulatory as it sua sponte reconsiders its final rule 2992, facsimile (202) 366-3820, 1200 action. A delay in the effective date is regarding the appropriate inflationary New Jersey Avenue SE., Washington, therefore consistent with NHTSA's adjustment for CAFE civil penalties. DC 20590. statutory authority to administer the DATES: Comments: Comments must be SUPPLEMENTARY INFORMATION: CAFE standards program and its received by October 10, 2017. See the inherent authority to do so efficiently SUPPLEMENTARY INFORMATION section I. Statutory and Regulatory Background and in the public interest. In addition, below for more information on NHTSA sets 1 and enforces 2 CAFE no party will be harmed by the delay in submitting comments. standards for the United States, and in the effective date of the rule. On the ADDRESSES: You may submit comments doing so, assesses civil penalties against contrary, the rule does not increase to the docket number identified in the vehicle manufacturers who fall short of CAFE penalties before Model Year 2019, heading of this document by any of the their compliance obligations and are and therefore, the delay will not affect following methods: unable to make up the shortfall with the civil penalty amounts assessed • Federal eRulemaking Portal: Go to credits,3 The amount of the civil penalty against any manufacturer for violating a http://www.regulations.gov. Follow the was originally set by statute in 1975, CAFE standard prior to the 2019 model online instructions for submitting and for most of the duration of the year at the earliest, i.e., until sometime comments. CAFE program, has been $5.50 per each in 2020. Therefore, the increased • Mail: Docket Management Facility, M-30, U.S. Department of tenth of a mile per gallon that a penalty rate set forth in the rule would Transportation, West Building, Ground manufacturer's fleet average CAFE level not be applied for current violations, so Floor, Room W12-140, 1200 New Jersey falls short of its compliance obligation, there is no immediate, concrete impact Avenue SE., Washington, DC 20590. multiplied by the number of vehicles in from the delay. • Hand Delivery or Courier: U.S. the fleet 4 that has the shortfall. The Department of Transportation, West basic equation for calculating a Authority: Pub. L. 101-410, Pub. L. 104-134; Pub. L. 109-59, Pub. L. 114-74, Pub L. Building, Ground Floor, Room W12-manufacturer's civil penalty amount is 114-94, 49 U.S.C. 32902 and 32912; 140, 1200 New Jersey Avenue SE., as follows: delegatJon of authority at 49 CFR 1.81, 1.95. Washington, DC, between 9 a.m. and 5 p.m. Eastern time, Monday through 149 u.s.c. 32902. Jack Danielson, 249 u.s.c. 32911, 32912. Friday, except Federal holidays. Acting Deputy Administrator. "Credits may be either earned (for over· • Fax: 202-493-2251. compliance by a given manufacturer's fleet, in a [FR Doc. 2017-14526 Filed 7-7-17; 11:15 am] Regardless of how you submit your given model year) or purchased (in which case, BILLING CODE 4910-59-P comments, you must include the docket another manufacturer earned the credits by over· number identified in the heading of this complying and chose to sell that surplus). 49 U.S.C. 32903; 49 CFR part 538. document. Note that all comments 4 A manufacturer may have up to three fleets of received, including any personal vehicles, for CAFE compliance purposes, in any information provided, will be posted given model year-a domestic passenger car fleet, without change to http://an imported passenger car fleet, and a light truck www.regulations.gov. Please see the fleet. Each fleet belonging to each manufacturer has its own compliance obligation, with the potential 4 NHTSA incorporates the discussions in the "Privacy Act" heading below. for either over-compliance or under-compliance. document seeking comment on the appropriate You may call the Docket Management There is no overarching CAFE requirement for a CAFE civil penalties level by reference. Facility at 202-366-9324. manufacturer's total production. Exhibit 2 (Declaration of Joshua. M. Cunningham) II DECLARATION OF JOSHUA M. CUNNINGHAM I, Joshua M. Cunningham, declare as follows: l. My name is Joshua M. Cunningham and I am Chief of the Advanced Clean Cars Branch of the California Air Resources Board (CARB). I make this declaration based upon my knowledge and expertise in the matters within, and upon my review of the relevant nllemakings, reports, and other documents discussed below. 2. My resume is,attached hereto. As Chief of the Advanced Clean Cars Branch since 2015, I am responsible for a broad regulatory program that includes emissions requirements for all new passenger vehicles sold in California. Prior to this work, I have been employed in a range of management and analytic positions at CARE since 2009. I have previously worked as a manager for the University of California at Davis's Institute of Transportation Studies, as a senior systems engineer for the United Technologies Corporations' Transportation Group, and as a product engineer for Delphi Chassis Systems. Additionally, I have broad experience in automotive engineering and policy and in greenhouse gas emissions and air pollutant reduction program design and management. CARE has recognized me with a sustained superior accomplishment award. My technical · work has also been recognized with an Outstanding Technical Paper of 2010 by SAE International, formerly known as the Society of Automotive Engineers, an engineering association for transportation fields. I hold a patent for fuel cell technology controls, and have also received fellowships from the U.S. government for my work. I have a Masters of Science in Transportation Technology and Policy from the University of California at Davis and Bachelor of Science in Mechanical Engineering from Michigan State University. DECLARATION OF JOSHUA M. CUNNINGHAM History of Regulation of Vehicle Emissions and CAFE Standards 3. Starting in 1966, prior to the first federal fuel efficiency standards, California became the first state in the country to regulate vehicle emissions. Since 1967, California's emissions standards have been administered by CARB. With the adoption of the 1970 Clean Air Act and the establishment of the United States' Environmental Protection Agency (U.S. EPA), the federal government began regulating vehicle emissions at the national level. Importantly, Congress preserved California's ability to adopt its own tougher emissions standards. 4. Starting with the model year (MY) 1978, vehicle manufacturers have been required to comply both with corporate average fuel economy (or "CAFE") standards administered by the National Highway Traffic Safety Administration ("NHTSA"), and with U.S. EPA and CARB emission standards that limit air pollutants from vehicles. 5. More recently, the U.S. EPA and CARB have established greenhouse gas emission standards for passenger, light-and medium-duty motor vehicles. 6. Under the one National Program for vehicle greenhouse gas emission standards, California's greenhouse gas regulations for MY 2017-2025 for light-duty vehicles accept compliance with the federal standards as an option for vehicle manufacturers. 1 CARB committed to this, initially in a letter to the U.S. EPA and then by adopting the so-called "deemed-to-comply" provision that put this decision into effect. 2 Because of California's unique ability under the federal Clean Air Act to adopt its own tougher emissions standards,' its decision to participate in the National Program with U.S. EPA gives it an important role in the program and a particular interest in ensuring the program is effective and is not undermined. 1 Cal. Code Regs., tit. 13, § 1961.3(c). 2 • See Air Resources Board Resolution 12-35,,November 15, 2012,,pp. 3-7, available at htt. s://www.arb.ca. ov/re:ract/2012/lev1udtcl2/resl2-35. dl; see also 76 Fed. Reg. 2 DECLARATION OF JOSHUA M. CUNNINGHAM 7. The federal greenhouse gas emission standards are harmonized to be consistent with the federal CAFE standards administered by NHTSA. 3 CARB, U.S. EPA and NHTSA recently jointly assessed the performance of the program in a 2016 Technical Assessment Report (TAR). Section 1.3 of the joint agency 2016 TAR further describes-the harmonization: 4 NHTSA and [U.S.] EPA have conducted two joint rulemakings to establish a National Program for corporate average fuel economy (CAFE) and GHG emissions standards. Together, the two rules established strong and coordinated Federal GHG and fuel economy standards for passenger cars, light-duty trucks, and medium-duty passenger vehicles (hereafter light-duty vehicles or LDVs). Each agency adopted standards covering MYs 2012-2016 in May 2010 and covering MY2017 and beyond in October 2012. The MYs 2012-2016 rule represented the first time [U.S.] EPA established standards for GHG emissions under its Clean Air Act authority. The Federal GHG and fuel economy standards for MY2017 and beyond were developed in a joint effort with CARB. And, subsequent to the adoption of California-specific GHG standards for MYs 2017-2025 and the adoption of the Federal standards for MY2017 and beyond, CARB adopted a "deemed to comply" provision whereby compliance with the II Federal GHG standards would be deemed as compliance with I California's GHG program in furtherance of a single National Program. I The National Program approach, combined with California standards, helps to better ensure that all manufacturers can build a single fleet of vehicles that satisfy all requirements under both federal programs and under California's program, which helps to reduce costs and regulatory complexity for auto manufacturers. In addition, the National Program provides significant environmental and climate benefits, energy security, and consumer savings to the general public. Most stakeholders strongly supported the National Program, including the 3 See 77 Fed.Reg. 62,624 (Oct. 15 2012) [EPA and NHTSAjointly issued final rule setting greenhouse gas and fuef economy standards for light-duty vehicles for MY 2017-2025]. 4 U.S. EPA, NHTSA, CARB. July 2016. Draft Technical Assessment Report: Midterm Evaluation of Light-Duty Vehicle Greenhouse Gas Emission Standards and Corporate Average Fuel Economy Standards for Model Years 2022-2025 (footnotes omitted). See https://ne12is.epa.gov/Exe/ZyPDF.cgi/PlOOOXEO.PDF?Dockey:·::::PlOOO~EO.PDF 3 DECLARATION OF JOSHUA M. CUNNINGHAM auto industry, automotive suppliers, state and local governments, labor unions, NOOs, consumer groups, veterans groups, and others. 8. Although the CAFE and emissions standards are generally complimentary, they are by no means duplicative. Each carries its own specific requirements, and its own penalties for violations. In general, a higher CAFE standard will lead to higher mileage vehicles that emit fewer greenhouse gases for every mile driven. For example, the CAFE standards help incentivize manufacturers to produce hybrid electric vehicles, which have higher mileage:figures than non-hybridized vehicles, and reduced greenhouse gas emissions-in some instances, zero emissions. Section 1.2 of the 2016 TAR states: The National Program is both needed and possible because the relationship between improving fuel economy and reducing C02 tailpipe emissions is very direct and close. The amount of those C02 · emissions is essentially constant per gallon combusted of a given type of fuel. Thus, the more fuel efficient a vehicle is, the less fuel it burns to travel a given distance. The less fuel it burns, the less C02 it emits in traveling that distance. While there are emission control technologies that reduce the pollutants (e.g., carbon monoxide) I produced by imperfect combustion of fuel by capturing or converting I them to other compounds, there is currently no such technology for C02. Further, while some of those pollutants can also be reduced by r achieving a more complete combustion of fuel, doing so only increases the tailpipe emissions of C02. Thus, there is a single pool of technologies for addressing these twin problems, i.e., those that reduce fuel consumption and thereby reduce C02 emissions as well. As noted in the 2012 final rule, the rates of increase in stringency for the CAFE standards are lower than EPA's rates of increase in stringency for OHO standards for purposes of harmonization and in reflection of several statutory constraints on the CAFE program. NHTSA's Indefinite Delay of the Civil Penalties Rule 9. On July 12, 2017, NHTSA announced that it was delaying indefinitely the effective date of the final rule increasing the penalty for vehicle fleets that do not comply with CAFE standards (Civil Penalties Rule). The Civil Penalties Rule 4 DECLARATION OF JOSHUA M. CUNNINGHAM increased this penalty from $5.50 for every tenth of a mile per gallon (mpg) that an automaker's fleet-wide average mpg falls below the applicable CAFE standard, to $14 per tenth of a mpg. NHTSA explained in its Civil Penalties Rule that this increase was required by a 2015 Act of Congress. 10. Prior to the Civil Penalties Rule, the penalty rate had been $5.50 since 1997. Prior to 1997, the penalty rate had been $5.00, which was the penalty rate first established in the 1970s. 11. When NHTSA announced that it was delaying the Civil Penalties Rule, it stated that it was reinstating the prior penalty rate of $5.50. 12. CAFE standards in place through 2021 and the augural CAFE standards for the years 2022 through 2025 increase each year. For instance, the CAFE standards for passenger cars will increase from 44 mpg today to 47 mpg in 2019, and to 49 mpg in 2020. Similarly, the CAFE standards for light trucks will increase from 36 mpg today to 38 mpg in 2019, and to 39 mpg in 2020. If the penalty rate is too low, automakers will not be adequately incentivized to build fleets that are fuel efficient and meet these increasing standards. NHTSA's Delay of the Civil Penalties Rule Undermines the National Program 13. The regulatory signals for the fuel economy standards need to be obvious to manufacturers and technology suppliers, and they need to know that the fuel economy and emission standards are stable and will be enforced, to have the confidence to invest the necessary resources to meet the standards. 14. The CAFE standards themselves, associated penalties for violating them, and the competitive advantages to the manufacturers and suppliers that meet them in a level marketplace are necessary to carry out the program directed by Congress to conserve fuel. 15. Based on past practice, and based on the increases in the CAFE standards scheduled for 2019 and 2020, it is reasonable to expect that some vehicle 5 DECLARATION OF JOSHUA M. CUNNINGHAM manufacturers will find it more profitable to pay the $5.50 penalty than to fully comply with the CAFE standards. 16. For example, in 2016, auto industry groups stated to NHTSA (in response to the agency's July 5, 2016 Interim Final Rule) that automakers had already set their CAFE compliance plans for MY 2017 and 2018 based on the former $5.50 penalty rate. NHTSA relied on this statement when it agreed that the Civil Penalties Rule would first apply to MY 2019 fleets. 17. Vehicle development cycles run 3-5 years from product design decisions, through engineering, testing, and manufacturing readiness development. These cycles can be shorter if the new vehicle is largely based on an existing platform, but longer where a new engine and base platform is being developed, leveraging systems and designs that have completed a company's basic research phase. New engines and platforms take time to develop given the complexity of many vehicle systems (e.g. electrical, engine, exhaust after-treatment, body, suspension, etc.). Every element of the vehicle must be individually designed and tested, commonly leveraging contracts with suppliers to do so. Systems and then full vehicles need to be built and tested for durability and performance, followed by crash testing, all of which can lead to design changes along the way. Finally, manufacturing processes and test assembly lines need to be developed, followed by sample cars off the assembly lines to identify errors in the process. 5 I have been a participant in these cycles in the course of my professional career. 18. Based on the observed past practice described above, I believe. the automakers are currently in the midst of planning and developing their MY 2019 through 2023 vehicles. Thus, the planning decisions that automakers are making 5 Edwards, M. et al "How Automakers Plan Their Products: A Primer for Policymakers on Automotive Industry Business Planning," Center for Automotive Research (CAR), July 2007. htt://www.caryrou..m·yf. ublication/how-automakers-)lan-their-. roducts-a-.rimer c nia <ers-on-aut6mot1ve.:fi1di::isfr---:'6usmess-p anning 6 DECLARATION OF JOSHUA M. CUNNINGHAM right now will impact whether or not the MY 2019-23 fleets comply with the CAFE standards. The automakers' decisions are directly impacted by the amount of the penalty rate, i.e., whether it is $14, as set forth in the Civil Penalties Rule, or $5.50, the prior rate that was set twenty years ago. Several companies historically have paid CAFE penalties for non-compliance in lieu ofbringing new technologies to market to meet CAFE standards. 6 NHTSA's reinstatement of the older $5.50 penalty creates an incentive for some companies to return to this non-compliant behavior. IfNHTSA's delay of the Civil Penalties Rule continues into next year, NHTSA's actions will also impact planning for fleets extending through MY 2024. 19. If the CAFE fines are reduced to levels that may be less expensive than complying through technology, some automakers may choose this path for CAFE compliance, though they would still need to comply with the U.S. EPA and California GHG regulations. However, given that the GHG regulations have flexibility for banking of emissions credits, a potential outcome would be a reduced pace of technology introduction as automakers use banked GHG credits and under-comply with CAFE. This has detrimental effects on California and other states. It slows technology progress, thereby making it harder to comply with future model year regulations, and inhibits cost reductions from mature technology on components for vehicles. This, in tum, affects consumer savings on vehicle prices and sends the wrong signals to automotive suppliers for their long-term investments in manufacturing and development of advanced components. 20. In addition, NHTSA's delay will have a direct impact on consumers. Lower fuel efficiency means that vehicles will use more gasoline, which will cost consumers more overall. The penalty paid by the automakers do not compensate the consumers for reduced fuel savings. 6 Refer to the NHTSA CAFE Civil Penalties public information site for et~~~~J10~1~~~h1~a~!(~~g~ta~:1B~~rtir18~Ff~es LIVE.html 7 DECLARATION OF JOSHUA M. CUNNINGHAM 21. In sum, relaxing CAFE penalties contributes to the weakening of the Natiot1al Program as a whole, and likely will lead to emissions increases and reduced benefits to consumers. _ I certify under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on OctoberZ:3, 2017 at acramento, California. 8 DECLARATION OF JOSHUA M. CUNNINGHAM joshua ® cu ningh PROFILE Manager and policy analyst with 17 years of engineering and environmental policy experience in automotive advanced technologies and fuels. Broad experience that includes work in both the private and public sectors. Strong background in collaborative programs, bringing multiple stakeholders together to tackle complex challenges. EXPERIENCE California Air Resources Board (CARS), Sacramento, CA (3/2009-present) Chief, Advanced Clean Cars Branch (4/1015-present) • Managing a broad program that includes the clean vehicle emission standards and electric vehicle requirements of all new cars sold in California • Program also includes engineering and planning support for hydrogen and electric vehicle charging infrastructure, as well as partnerships to address EV market barriers Manager, Transportation Systems Planning Section (4/2013-3/2015) • Managing a team focused on analyzing multi-sector strategies to achieve long-term (2030-2050) air quality and greenhouse gas emission reductions • Developing analytical tools (Vision emission projection model) to evaluate specific strategies, including vehicle technologies, alternative fuels, and travel behavior Director of Programs, Plug~in Electric Vehicle Collaborative (1/2011-3/2013) " Launched public-private··partnership and developed annual work-plan, managing topic working groups for this multi-stakeholder program focused on fostering the EV market " Lead coordinator and technical writer for a multi-stakeholder Strategic Plan for California on plug-in electric vehicles: The PEV Collaborative's "Taking Charge" Air Resources Engineer, ZEV Implementation Section {3/2009-12/2010) • Conducted economic and emissions impact analyses of the automotive industry from the Zero Emission Vehicle (ZEV) Regulation (regulation change, January 2012) • Contributed to the Governor's 2012 Zero Emission Vehicle Executive Order, and subsequent ZEV Action Plan, working on the Governor's Office inter-agency team Institute of Transportation Studies (UC Davis), Davis, CA (4/2005-02/2009) Program Mcmager, Sustainable Transportation Energy Pathways (STfPS) • Coordinated research priorities, developed sponsor relationships, formed research collaborations, led major proposals, and organized program events • Program budget of $1.3M/yr; 20 public & private sponsors; 40 researchers • Successfully led the effort to secure a $1M seed grant from the California Clean Energy Fund (CalCEF) to launch the UC Davis Energy Efficiency Center (EEC) United Technologies Corp (UTC), Fuel Cells Div., South Windsor, CT (9/2002-3/2005) Senior Systems Engineer, Transportation Group • Analyzed and designed fuel and air systems, and power controls, for the Hyundai Tucson fuel cell vehicle & California Bay Area AC Transit fuel cell bus • Project team leader, BMW fuel cell system designed for freezing conditions • Special assignments on Advanced Systems and Intellectual Property Teams Delphi Chassis Systems {General Motors), Dayton, OH (9/1996-8/1998) Product Engineer, Advanced Suspension Development • Lead engineer for air compressor in automatic leveling system for production vehicles " Extensive project management experience leading cross-functional product teams • Developed component technical specifications and design validation test plans EDUCATION Masters of Science (MS)~ Transportation Technology and Policy (rTP) University of California, Davis (Davis, California); Gradtmted 2001 Bachelor of Science (BS}-Mechanical Engineering Michigan State University (East Lansing, Michigan); Graduated 1996 National Science Foundation Overseas Study Program Rheinisch-Westfaelische Technische Hochschule (Aachen, Germany); Completed 1995 AWARDS • CARB Sustained Superior Accomplishment Award, Long-term emission planning (2016) • CARB Gold Superior Accomplishment Award, Advanced Clean Cars rulemaking (2011) • SAE Outstanding Technical Paper of 2010; selected for publication in an SAE international journal for passenger vehicles. Paper 2010-01-2306 (2010) • Patent award (#8, 124, 290) for fuel cell operation with cryogenic hydrogen storage (developed 2004, final patent awarded in 2012} • UTC FuelCells Senior Management Achievement Award (2004) • ENO Transportation Fellow, Center for Transportation Leadership Development (2000) • U.S. Department of Energy GATE Fellowship for graduate studies (1999-2000} PUBLICATIONS • PEV Collaborative, 11Taking Charge: Establishing California Leadership in the Plug-in Electric Vehicle Marketplace", UC Davis, December 2010 • Cunningham, J.M., "Achieving an 80% GHG Reduction by 2050 in California's Passenger Vehicle Fleet: Implications for the ZEV Regulation", SAE paper# 2010-01-2306, October 2010 II Cunningham, J.M., et al, "Why Hydrogen and Fuel Cells are Needed to Support California Climate Policy", ITS-Davis, UCD-ITS-RR-08-06, Davis CA (2008) • Cunningham, J.M., et al, 11A Comparison of High Pressure and Low Pressure Operation of PEM Fuel Cell Systems", SAE paper #2001-01-0538 (2001) II Cunningham, J.M., et al, "Requirements for a Flexible and Realistic Air Supply Model for Incorporation into a Fuel Cell Vehicle System Simulation", SAE paper #1999-01-2912 (1999) VOLUNTEER • Board member, Valley Climate Action Center: A non-profit corporation in SERVICE & partnership with the City of Davis to develop low-carbon strategies in the community ACTIVITIES • Board member, Air & Waste Management Association (AWMA), Sacramento Chapter (2015-2016) • Habitat for Humanity, Dayton Ohio chapter (1996-1998} • Operation Crossroads Africa: Volunteer service in Ghana assisting local non-profit organizations with community development (1996) • Musician (percussion) in competitive Drum and Bugle Corps, as well as Michigan State University marching band drumline (1992-1994)

NOTICE OF APPEARANCE AS ADDITIONAL COUNSEL, on behalf of Petitioner State of California, State of Maryland, State of New York, State of Pennsylvania and State of Vermont in 17-2806, 17-2780, FILED. Service date 03/14/2018 by CM/ECF. [2256692] [17-2806, 17-2780] [Entered: 03/14/2018 01:02 PM]

NOTICE OF APPEARANCE FOR SUBSTITUTE, ADDITIONAL, OR AMICUS COUNSEL Short Title: State of New York v. Nat'l Highway Traffic Safety_____ Admin. Docket No.: 17-2806 ________ Substitute, Additional, or Amicus Counsel's Contact Information is as follows: Name: David S. Frankel (REFILING TO CONFIRM REPRESENTATION OF ALL STATE PARTIES) Firm: New York Office of the Attorney General Address: 120 Broadway, 25th Floor, New York, New York 10271 Telephone: (212) 416-6197 ___________________________ Fax: (212) 416-8962 E-mail: david.frankel@ag.ny.gov Appearance for: All State Petitioners (New York, California, Vermont, Maryland, Pennsylvania) (party/designation) Select One: G Substitute counsel (replacing lead counsel:) (name/firm) G Substitute counsel (replacing other counsel: _______) (name/firm) ✔ G Additional counsel (co-counsel with: Monica Wagner, New York Office of the Attorney General) (name/firm) G Amicus (in support of:) (party/designation) CERTIFICATION I certify that: ✔ G I am admitted to practice in this Court and, if required by Interim Local Rule 46.1(a)(2), have renewed my admission on OR G I applied for admission on. Signature of Counsel: /s/ David S. Frankel Type or Print Name: David S. Frankel

NOTICE OF APPEARANCE AS ADDITIONAL COUNSEL, on behalf of Petitioner State of New York, State of California, State of Maryland, State of Pennsylvania and State of Vermont in 17-2806, 17-2780, FILED. Service date 04/04/2018 by CM/ECF. [2271784] [17-2806, 17-2780] [Entered: 04/04/2018 02:44 PM]

NOTICE OF APPEARANCE FOR SUBSTITUTE, ADDITIONAL, OR AMICUS COUNSEL Short Title: State of New York v. National Highway Traffic Safet _____ Docket No.: 17-2806 ________ Substitute, Additional, or Amicus Counsel's Contact Information is as follows: Name: Monica Blong Wagner (REFILING TO CONFIRM REPRESENTATION OF ALL STATE PARTIES) Firm: New York State Office of the Attorney General Address: 120 Broadway, 25th Floor Telephone: 212-416-6351 ___________________________ Fax: 212-416-6007 E-mail: Monica.Wagner@ag.ny.gov Appearance for: State of New York, State of California, State of Maryland, State of Pennsylvania, State of Vermont (party/designation) Select One: G Substitute counsel (replacing lead counsel:) (name/firm) G Substitute counsel (replacing other counsel: _______) (name/firm) ✔ G Additional counsel (co-counsel with: David S. Frankel, New York Office of the Attorney General) (name/firm) G Amicus (in support of:) (party/designation) CERTIFICATION I certify that: ✔ G I am admitted to practice in this Court and, if required by Interim Local Rule 46.1(a)(2), have renewed my admission on 1-21-2014 OR G I applied for admission on. Signature of Counsel: /s/ Monica Blong Wagner Type or Print Name: Monica Blong Wagner

ORDER, to recall mandate, FILED.[2366320] [17-2806, 17-2780] [Entered: 08/13/2018 01:43 PM]

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT ____________________________________________ At a Stated Term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 13th day of August, two thousand and eighteen, ____________________________________ State of New York, State of California, State of Vermont, ORDER State of Maryland, State of Pennsylvania, Docket No. 17-2780, 17-2806 lllllllllllllllllllllPetitioners, v. Jack Danielson, in his capacity as Acting Deputy Administrator of the National Highway Traffic Safety Administration, Elaine Chao, in her capacity as Secretary of the United States Department of Transportation, National Highway Traffic Safety Administration, lllllllllllllllllllllRespondents. _______________________________________ A mandate issued in error on in the above-referenced case. IT IS HEREBY ORDERED that the mandate in this case is recalled. For The Court: Catherine O'Hagan Wolfe, Clerk of Court

CERTIFIED ORDER, dated 08/13/2018, to NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION, ISSUED.[2366328] [17-2806, 17-2780] [Entered: 08/13/2018 01:49 PM]

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT ____________________________________________ At a Stated Term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 13th day of August, two thousand and eighteen, ____________________________________ State of New York, State of California, State of Vermont, ORDER State of Maryland, State of Pennsylvania, Docket No. 17-2780, 17-2806 lllllllllllllllllllllPetitioners, v. Jack Danielson, in his capacity as Acting Deputy Administrator of the National Highway Traffic Safety Administration, Elaine Chao, in her capacity as Secretary of the United States Department of Transportation, National Highway Traffic Safety Administration, lllllllllllllllllllllRespondents. _______________________________________ A mandate issued in error on in the above-referenced case. IT IS HEREBY ORDERED that the mandate in this case is recalled. For The Court: Catherine O'Hagan Wolfe, Clerk of Court CERTIFIED COPY ISSUED ON 08/13/2018

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63
10/24/2017
MOTION, for summary reversal, to stay, on behalf of Petitioner Center for Biological Diversity, Natural Resources Defense Council and Sierra Club in 17-2780, FILED. Service date 10/24/2017 by CM/ECF. [2155183] [17-2780, 17-2806] [Entered: 10/24/2017 12:42 PM]
67
10/24/2017
MOTION, for summary reversal, to stay, on behalf of Petitioner State of California in 17-2806, FILED. Service date 10/24/2017 by CM/ECF. [2155598] [17-2806, 17-2780] [Entered: 10/24/2017 04:21 PM]
114
03/06/2018
JOINT APPENDIX, volume 1 of 1, (pp. 1-93), on behalf of Petitioner Center for Biological Diversity, Natural Resources Defense Council and Sierra Club in 17-2780, FILED. Service date 03/06/2018 by CM/ECF.[2250913] [17-2780, 17-2806] [Entered: 03/06/2018 06:32 PM]
115
03/06/2018
BRIEF, on behalf of Petitioner State of New York in 17-2806, 17-2780, FILED. Service date 03/06/2018 by CM/ECF.[2250930] [17-2806, 17-2780] [Entered: 03/06/2018 08:29 PM]
125
03/14/2018
NOTICE OF APPEARANCE AS ADDITIONAL COUNSEL, on behalf of Petitioner State of California, State of Maryland, State of New York, State of Pennsylvania and State of Vermont in 17-2806, 17-2780, FILED. Service date 03/14/2018 by CM/ECF. [2256692] [17-2806, 17-2780] [Entered: 03/14/2018 01:02 PM]
156
04/04/2018
NOTICE OF APPEARANCE AS ADDITIONAL COUNSEL, on behalf of Petitioner State of New York, State of California, State of Maryland, State of Pennsylvania and State of Vermont in 17-2806, 17-2780, FILED. Service date 04/04/2018 by CM/ECF. [2271784] [17-2806, 17-2780] [Entered: 04/04/2018 02:44 PM]
186
08/13/2018
JUDGMENT MANDATE, ISSUED.[2365948] [17-2780, 17-2806] [Entered: 08/13/2018 11:08 AM]
187
08/13/2018
ORDER, to recall mandate, FILED.[2366320] [17-2806, 17-2780] [Entered: 08/13/2018 01:43 PM]
188
08/13/2018
CERTIFIED ORDER, dated 08/13/2018, to NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION, ISSUED.[2366328] [17-2806, 17-2780] [Entered: 08/13/2018 01:49 PM]
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