[00:00:01] Speaker 02: case number 16-1447, raising enthusiasts and suppliers coalition petitioner versus environmental protection agency and Michael S. Reagan. [00:00:11] Speaker 02: Ms. [00:00:12] Speaker 02: Broom for the petitioner, Ms. [00:00:13] Speaker 02: Chen for the respondents. [00:00:16] Speaker 04: Ms. [00:00:16] Speaker 04: Broom, please proceed. [00:00:19] Speaker 01: Good morning, Your Honors and may it please the court. [00:00:22] Speaker 01: My name is Shannon Broom and I represent the petitioner in this case. [00:00:25] Speaker 01: I would like to reserve four minutes for rebuttal, please. [00:00:30] Speaker 01: I'll cover in my [00:00:31] Speaker 01: Thank you. [00:00:32] Speaker 01: I will cover in my time two primary points. [00:00:36] Speaker 01: First, why this case is important, not just to my client, but to people across the country. [00:00:42] Speaker 01: And second, why EPA's action here constitutes a breathtaking effort by the agency to substantially expand its authority with no basis in law and wholly unsupported by the record that the agency purported. [00:00:57] Speaker 01: It is arbitrary and capricious. [00:00:59] Speaker 01: And of course, I'll answer any questions that the court may have along the way. [00:01:04] Speaker 01: First, motor sports are part of the fabric of this country. [00:01:08] Speaker 01: We need to look no further than the Formula One race in Miami last weekend to see who participates. [00:01:14] Speaker 01: A quarter of a million people were there in person, millions watched on TV. [00:01:19] Speaker 01: And unlike football, the spectators of the sport often also are participants. [00:01:24] Speaker 01: They are racers themselves. [00:01:27] Speaker 02: Just kind of as a background question, what have racing enthusiasts been doing since 2016? [00:01:34] Speaker 02: Are they still buying all the parts that they used to buy? [00:01:38] Speaker 02: Are all those parts still being sold or are these races still going on? [00:01:43] Speaker 01: Well, races are still going on all across the country, but EPA launched starting in 2016 after it issued its final rule. [00:01:52] Speaker 01: That's when it launched its enforcement initiative against the small businesses and other companies and some individuals, although we haven't found many cases at all. [00:02:06] Speaker 02: Is this the district court case that you cite? [00:02:10] Speaker 02: several times. [00:02:11] Speaker 01: That's one. [00:02:12] Speaker 01: There's there's an entire initiative. [00:02:14] Speaker 01: They have, you know, probably 50 cases going. [00:02:17] Speaker 02: So is my would I be right to say that companies that used to sell used to make and sell parts are no longer doing that? [00:02:32] Speaker 01: They Yes. [00:02:32] Speaker 01: So there are several enforcement actions ongoing, some [00:02:38] Speaker 01: I imagine some people are continuing. [00:02:42] Speaker 02: This doesn't matter. [00:02:43] Speaker 02: I'll drop it after this one last try. [00:02:44] Speaker 02: But I'm not asking what DOJ is doing. [00:02:46] Speaker 02: I'm asking what manufacturers and sellers are doing. [00:02:51] Speaker 02: Has their behavior changed at all? [00:02:53] Speaker 01: Yes, it has. [00:02:56] Speaker 01: Many have stopped selling because of the threat of the EPA enforcement and the cases that they see. [00:03:03] Speaker 01: Benny are subject to enforcement and EPA brought an injunction against Gearbox Z and, you know, others are looking at that and they have stopped and been deprived of the ability to sell their product. [00:03:19] Speaker 02: What if a baser just changed one small part of the emission system? [00:03:28] Speaker 02: That's all it changed. [00:03:29] Speaker 02: And they said, now it's a race car. [00:03:33] Speaker 02: Would they have broken any laws? [00:03:36] Speaker 01: It depends on how they use it. [00:03:39] Speaker 02: Let's say that only use it on the racetrack. [00:03:43] Speaker 01: Then then it is outside the ambit of the Clean Air Act. [00:03:51] Speaker 04: It is, but on your view, the amended regulations. [00:03:57] Speaker 01: Under the amended regulations, right? [00:03:59] Speaker 01: So under, um, under EPA's statement in the preamble, if EPA's view would be the fat is illegal and that they are violating the law. [00:04:11] Speaker 04: I don't really care about preamble. [00:04:13] Speaker 04: So regulatory text. [00:04:16] Speaker 04: What, what, what text in the new regulations do you think makes it illegal to [00:04:26] Speaker 04: take a regular motor vehicle and adjust it into a race car. [00:04:31] Speaker 01: Right, so in 85.1703A that used to say get [00:04:43] Speaker 01: It used to say that the indicia is that vehicle exhibits features which render its use on highway unsafe, impractical, or highly unlikely. [00:04:54] Speaker 01: Such features including but not being limited to track road contact means, et cetera. [00:05:00] Speaker 01: And now EPA has changed that to say prevents the use on the highway. [00:05:06] Speaker 01: So that's one. [00:05:11] Speaker 01: So they have changed it so that it's no longer a use-based, you know, you have to prevent the use. [00:05:22] Speaker 01: And it also, back to your question on the impact, people would need to even, anyway, I think that I covered it earlier. [00:05:32] Speaker 02: And the safety modification, clarification, whatever label we want to give it, how are you injured by that from an Article III standing perspective? [00:05:42] Speaker 01: So my clients would now have to track and have increased compliance costs in order to track how the vehicles are being used and that they comply with the safety exemption. [00:05:57] Speaker 01: And that's a significant cost because the way that this industry is set up, it's a vertically integrated industry. [00:06:05] Speaker 01: So you have manufacturers, distributors, and retailers. [00:06:09] Speaker 01: And the distribution system is a complex, [00:06:12] Speaker 01: electronic distribution system that is a centralized database that people subscribe to and you have to, you know, the ability for someone on the manufacturer side to trace through that system to how a part is actually being used would impose substantial new compliance costs. [00:06:39] Speaker 02: Where in the record would I find that you've laid out those compliance costs so that I can find that you've demonstrated standing? [00:06:49] Speaker 02: And if it's easier to come back to it and rebuttal, if the presiding judge allows, that's fine by me. [00:06:55] Speaker 01: Mr. Pooley stated in his declaration that he did have increased [00:07:01] Speaker 01: compliance costs. [00:07:03] Speaker 01: So that is in Mr. Pooley's declaration. [00:07:05] Speaker 01: I think it's in paragraphs 11 or six. [00:07:08] Speaker 01: And, you know, we'd be happy to supplement on that issue if the court would like that EPA did not question that. [00:07:17] Speaker 01: So we didn't add any supplement to that, but we're certainly able to do that. [00:07:22] Speaker 04: Sorry, increased compliance costs or just reduced sales? [00:07:29] Speaker 01: It's compliance costs. [00:07:31] Speaker 01: and reduce sales, but increase compliance costs. [00:07:36] Speaker 01: They have to, under EPA's view of the world, you know- Well, we'll check it. [00:07:41] Speaker 04: Short affidavit, but maybe I missed it. [00:07:43] Speaker 04: I thought it was about- Yes, paragraph 10 on page three. [00:07:48] Speaker 01: I apologize for misciting the paragraph. [00:07:52] Speaker 03: Frankly, except what you said about the regulation, changing in the regulation to preventing use on the highway, [00:08:00] Speaker 03: I haven't seen anything in the record to support anything else you've said today, including the pulley declaration. [00:08:08] Speaker 03: There's no, there are no, there's some conclude that's totally conclusory. [00:08:12] Speaker 03: We don't know anything about what people behave, what they'd be from this about what people are doing or what the effect is. [00:08:20] Speaker 03: Um, on the, uh, exactly. [00:08:23] Speaker 03: You're a member here. [00:08:24] Speaker 03: I guess it is Mr. Pulley. [00:08:26] Speaker 03: Um, [00:08:29] Speaker 03: This seems to be, you seem to have assumed that somehow we would be just taking into account the world of automobile racing about which I know nothing. [00:08:44] Speaker 01: Well, our brief included several references to information about the industry. [00:08:51] Speaker 01: And I guess you're making my point in many ways. [00:08:54] Speaker 03: I'm looking for some evidence that [00:08:59] Speaker 03: about this situation and I'm not finding anything. [00:09:03] Speaker 03: I mean, the allegations are broad and they're not supported with any exhibits or anything that would give them flesh them out so that I know what's going on. [00:09:13] Speaker 03: The sales may be down, but it doesn't say why or what people do with them as a result or what they do when they do buy these defeat parts and what they're doing when they don't. [00:09:25] Speaker 03: It's entirely vacuous. [00:09:30] Speaker 03: And there's nothing other than the pulley declaration on which to rely. [00:09:35] Speaker 01: Or is there? [00:09:38] Speaker 01: So, Your Honor, I think it is self-evident that if EPA says you can't sell parts and people have been selling them, that they will not be able to sell them anymore and they will be injured by that. [00:09:57] Speaker 03: somebody who can come in and say that's what's happened and was here affected me in some way that we can actually make sense of rather than just saying that's it, it's affected me. [00:10:15] Speaker 01: Well, I mean, we would be happy to provide a supplemental briefing on standing. [00:10:20] Speaker 01: Mr. Pooley can demonstrate that his sales are down. [00:10:24] Speaker 01: We could get other rest members to provide additional. [00:10:28] Speaker 03: We used to entertain supplemental papers on standing until 30 years ago. [00:10:33] Speaker 03: And Derek said, it's got to be in your first filing with the court, first substantive filing with the court. [00:10:41] Speaker 01: Well, it is in the per substantive filing, your honor. [00:10:45] Speaker 01: And I recall back in the E-15 case, I believe it's the chicken council case in, I want to say 2013 or 2014, your honors did have supplemental briefing on standing in a similar issue where the grocery manufacturers were charting [00:11:08] Speaker 01: claiming injury from the renewable fuel standard case. [00:11:16] Speaker 03: I have to see why we departed if we did from our practice in that case. [00:11:22] Speaker 01: But I mean, I think that it is clear that Mr. Pooley has submitted an affidavit that says under penalty of perjury that he has been injured in his sales [00:11:35] Speaker 01: and has experienced increased compliance costs and increased compliance costs have traditionally been considered to establish established standing and so. [00:11:48] Speaker 01: You know i'm not exactly sure what the court would. [00:11:54] Speaker 01: want beyond those increased compliance costs. [00:11:57] Speaker 01: He has to track EPA is saying that he has to track and show that they were necessary to prevent the operation on the street. [00:12:10] Speaker 03: Guess what we're lacking here is anything to do to tie this to the safety. [00:12:23] Speaker 01: Well, even the SEMA comments that were on the record in the administrative rulemaking stated that there were adverse effects on the industry and that is in the administrative record. [00:12:36] Speaker 01: And those comments are in the JA. [00:12:38] Speaker 01: I don't have it, that page. [00:12:48] Speaker 04: Isn't your position [00:12:51] Speaker 04: is on this point, it has to be that it is self evident. [00:13:00] Speaker 04: Just one of the exceptions to the rule Judge Ginsburg is citing. [00:13:05] Speaker 04: It is self evident that in order to convert motor vehicle into a race car, you remove a bunch of safety features and [00:13:17] Speaker 04: I don't know, maybe it is to racers, but I didn't know that when I started prepping. [00:13:24] Speaker 03: Also, if the rules change the baseline, then maybe you don't and racing is quite as fast as it used to be. [00:13:36] Speaker 05: I'm sorry. [00:13:36] Speaker 02: That would be an injury, right? [00:13:40] Speaker 02: Pardon me? [00:13:41] Speaker 02: Oh, I was going to ask this room, but what you just described, would that be an injury if it prevented race car drivers from driving as fast as they want to see? [00:13:49] Speaker 02: Why? [00:13:50] Speaker 02: As long as as long as it affects everybody. [00:13:53] Speaker 01: Right, so you know, there are things that you have to do in order to convert a car into race car, and we do list those in our brief. [00:14:01] Speaker 01: things like removing the seats. [00:14:06] Speaker 01: It's not just emissions. [00:14:07] Speaker 01: There are a number of indicia, but part of it is emissions because the emission controls, because the emission controls reduce the power. [00:14:17] Speaker 01: And it's not just removing them, but replacing them with the parts that make the vehicle function. [00:14:24] Speaker 01: And so in that case, those are the parts that are being sold. [00:14:30] Speaker 04: challenging is all about safety features. [00:14:34] Speaker 04: So you sort of have to connect your interest as a seller of parts for race cars, motor vehicles that are modified to become race cars to this safety feature regulation, which is maybe not so obvious to me. [00:15:00] Speaker 01: I'm not sure. [00:15:12] Speaker 01: Was that question to me? [00:15:13] Speaker 01: I wasn't able to hear it entirely. [00:15:21] Speaker 03: I wasn't. [00:15:21] Speaker 03: I didn't have a question. [00:15:22] Speaker 03: You didn't miss anything. [00:15:24] Speaker 03: Okay. [00:15:26] Speaker 01: But I guess I'm out of time, but I would like to. [00:15:32] Speaker 02: Let me ask one question for him. [00:15:35] Speaker 02: What's your response to the suggestion that the preamble doesn't do any work? [00:15:46] Speaker 01: I think the preamble states EPA's position [00:15:50] Speaker 01: which was the first time EPA ever stated publicly that it is illegal to convert a motor vehicle into a race car. [00:16:03] Speaker 01: And they stated there once a motor vehicle, always a motor vehicle view. [00:16:08] Speaker 01: Back in 1965, [00:16:10] Speaker 01: when the Cleaner Act was enacted, there was regulated and unregulated. [00:16:16] Speaker 01: Motor vehicles were regulated and everything else was unregulated. [00:16:19] Speaker 01: And then in 19, fast forward, and EPA accepted that. [00:16:24] Speaker 01: The non-road engines, the tractors, the snowmobiles and all that stuff were not regulated and so were competition vehicles not regulated. [00:16:33] Speaker 01: And that was how the world operated until 1990 when Congress decided to add non-road engines into the mix and regulate them. [00:16:43] Speaker 01: And non-roads are tractors and snowmobiles and other farm equipment and that type of thing. [00:16:51] Speaker 01: And Congress said, well, we've got to make sure that it's clear that we're not bringing in competition vehicles. [00:17:01] Speaker 04: Yes. [00:17:02] Speaker 04: I mean, that's a very odd thing for you to be challenging because the statements, the preamble statements that you're focused on are associated with the agencies declining to adopt a proposed regulation that would have made it crystal clear that you can't convert a motor vehicle into a race car. [00:17:29] Speaker 04: and declining to do so because the agency says we're not anti-racing. [00:17:35] Speaker 04: I mean, that aspect of the rule doesn't hurt you. [00:17:39] Speaker 04: That's actually helpful to you. [00:17:42] Speaker 01: Right. [00:17:43] Speaker 01: That is helpful. [00:17:44] Speaker 01: But then they created kind of a sleight of hand there. [00:17:47] Speaker 01: And they also said, but this change isn't needed because that's what it always was. [00:17:53] Speaker 04: Maybe, but that might be an argument [00:17:57] Speaker 04: That sleight of hand aspect of this might be an argument why adopting the change to the definition of motor vehicle is arbitrary, but it's not an argument that you were harmed by the failure to adopt a proposed rule that would have hurt your clients. [00:18:22] Speaker 01: It's what they said the final action that we challenge is this definitive statement that they made in the preamble and there is a lot of case law that we cite Whitman versus American trucking Appalachian power prop life versus EPA that that clearly establishes in the DC circuit that [00:18:43] Speaker 01: The preamble statements when definitive constitute final agency action. [00:18:47] Speaker 01: I mean, even a guidance document can be a final agency action. [00:18:51] Speaker 01: That's the Appalachian power case. [00:18:54] Speaker 03: If there's any final agency action, it was the decision not to do anything. [00:18:58] Speaker 01: No, it was the respectful, Your Honor. [00:19:01] Speaker 01: No, it was the it was the statement that it is now illegal to convert race cars in [00:19:10] Speaker 01: motor vehicles into race cars, into competition vehicles. [00:19:15] Speaker 01: That is the final agency action. [00:19:18] Speaker 01: And we know it is because now EPA said in the gearbox Z briefing that it had effectuated that change, that it may take them off. [00:19:28] Speaker 03: It's bringing cases that it could well have brought before. [00:19:31] Speaker 03: It seems to me what you've outlined is that for a long time, they decided not to enforce the regulations as they were since 2011. [00:19:40] Speaker 03: And then they decided they would. [00:19:43] Speaker 01: If this was an exercise in enforcement discretion, we have numerous indicia in the brief that show that the EPA had never taken that position before. [00:19:56] Speaker 01: And we have the Congressional Research Service Report. [00:20:00] Speaker 01: We have EPA's Green Racing Initiative. [00:20:04] Speaker 01: We have 50 years of conduct since [00:20:07] Speaker 01: 1965 where they never did anything. [00:20:09] Speaker 01: And if that was, and it was happening right in front of them, EPA was engaging with the race and community all along. [00:20:17] Speaker 01: And if they thought that that was illegal, they should have said something. [00:20:21] Speaker 01: And if you look at what they cite in their brief. [00:20:24] Speaker 03: No, administration's enforcement policy changes as long as it's consistent with what the law authorizes. [00:20:32] Speaker 01: This was not an administration change [00:20:37] Speaker 03: Policy change. [00:20:39] Speaker 01: It wasn't an administration policy change issue because if you look at it, it happened under, it started at the end of the Obama administration and then continued in through the Trump administration. [00:20:49] Speaker 01: So I don't think it's fair to say that that's the case. [00:20:52] Speaker 03: Just saying, policies change. [00:20:54] Speaker 03: One reason is sometimes the administration changes. [00:20:56] Speaker 03: Sometimes they simply reevaluate and change their position without a change of administration. [00:21:03] Speaker 01: Can I ask you one? [00:21:05] Speaker 01: That's not what happened. [00:21:06] Speaker 01: This was not a 50-year exercise in enforcement discretion. [00:21:10] Speaker 01: If it was, when EPA exercises enforcement discretion, they make a big deal about it. [00:21:16] Speaker 01: They blast it from the rooftops. [00:21:17] Speaker 01: You look at the COVID-19 situation, they issued an enforcement discretion policy, and they listed all the criteria that you had to meet. [00:21:26] Speaker 01: If EPA really thought this was an exercise in enforcement discretion, [00:21:31] Speaker 01: then they would have been talking about it right and left. [00:21:35] Speaker 01: Instead, what was happening is what the law was, which is that competition vehicles were not regulated under the motor vehicle provisions. [00:21:45] Speaker 01: And the EPA never thought that they were. [00:21:48] Speaker 04: Can I ask you just briefly on the other regulation that you challenge, the competition exemption, how are you harmed by that one? [00:22:01] Speaker 04: There are two provisions in this regulation. [00:22:06] Speaker 04: One of them applies to manufacturers of motor vehicles, and your clients are not manufacturers. [00:22:18] Speaker 04: And the other applies to people who make changes to non-road engines, which [00:22:26] Speaker 04: I don't know, your clients may or may not do that, but the changes to that regulation are wholly cosmetic. [00:22:34] Speaker 04: So what injury flows to your clients from these changes? [00:22:43] Speaker 04: This is 40 CFR 1068, which has an A and a B. And A is the rule for manufacturers and B is [00:22:57] Speaker 04: E is the rule for modifiers with holy point 235. [00:23:02] Speaker 01: Yes. [00:23:04] Speaker 01: Yes. [00:23:05] Speaker 01: Okay. [00:23:05] Speaker 01: Thank you. [00:23:06] Speaker 01: Um, on that one, uh, what EPA did there is, um, is they said following provisions apply for non road engines and equipment, but not for motor vehicles or for stationary applications there. [00:23:22] Speaker 01: They, um, [00:23:23] Speaker 01: and they have taken the position and you see what they said they were doing in the gearbox seat brief, they say that that provision effectuated their change to make it illegal for motor vehicles. [00:23:36] Speaker 01: That is how EPA has interpreted that provision since that time. [00:23:43] Speaker 01: That is their position. [00:23:46] Speaker 04: Look at A. [00:23:48] Speaker 04: talks it is addressed to people who produce non road engines or equipment. [00:23:56] Speaker 03: Any of those in the uh balance group here? [00:24:03] Speaker 01: Excuse me your honor I just I have just the excerpted provision in front of me. [00:24:11] Speaker 04: My understanding is your your declarant [00:24:15] Speaker 04: represents sellers in the after markets, not motor vehicle manufacturers. [00:24:23] Speaker 01: Correct. [00:24:23] Speaker 01: We also have that's our declarant. [00:24:25] Speaker 01: We also have members who are manufacturers of aftermarket parts. [00:24:30] Speaker 03: That's useful to add something from them. [00:24:36] Speaker 03: All right. [00:24:37] Speaker 04: Well, it's like I can tell you, it seems to me that first [00:24:44] Speaker 04: that Clause A doesn't seem to apply to at least to Mr. Pooley or his organization. [00:25:03] Speaker 04: Anything else, Judge Walker, Judge Ginsburg? [00:25:06] Speaker 04: No, thank you. [00:25:07] Speaker 04: Okay, thank you. [00:25:08] Speaker 04: We'll give you minutes on rebuttal. [00:25:10] Speaker 04: Thank you. [00:25:11] Speaker 04: And we'll hear from the government [00:25:14] Speaker 04: Whenever you're ready, Ms. [00:25:16] Speaker 04: Chen. [00:25:18] Speaker 00: Thank you, Your Honor. [00:25:18] Speaker 00: Good morning and may it please the court, Sue Chen for the United States. [00:25:23] Speaker 00: The Clean Air Act prohibits tampering with emissions controls on motor vehicles, even if they're used solely for competition. [00:25:30] Speaker 00: That follows from the statute's text and structure through which Congress set up a program to regulate motor vehicle emissions. [00:25:37] Speaker 00: That program treats motor vehicles used solely for competition no differently than other motor vehicles. [00:25:44] Speaker 00: And Congress chose to stick to that approach, even as it exempted other kinds of vehicles from the prohibition against tampering with emissions. [00:25:52] Speaker 00: I'd like to start with this statute and then briefly address why there was no new interpretation in 2016, and finally respond to petitioner's point about the impact of this case. [00:26:05] Speaker 00: Under the Clean Air Act, motor vehicles used solely for racing are still motor vehicles, and they're still subject to the tampering prohibition. [00:26:13] Speaker 00: The statutory motor vehicle definition has no exit ramp based on competition use and that, of course, stands in sharp contrast to the non-road definition where Congress did put in an exit ramp. [00:26:27] Speaker 00: But I want to be clear that the non-road definition does not apply to this case. [00:26:32] Speaker 00: because everybody agrees that the vehicle that we're starting out with is a certified motor vehicle. [00:26:38] Speaker 00: And the question is, is that vehicle still a motor vehicle when you use it solely for competition? [00:26:44] Speaker 04: The motor vehicle- Seems to me the statute is ambiguous. [00:26:49] Speaker 04: It's key to design, but it doesn't address any question of redesign and it doesn't [00:27:00] Speaker 04: dress, whether you're talking about design at the moment of manufacture or at any later point seems to me statute could readily bear either meaning. [00:27:15] Speaker 00: So the design that matters in the statutory scheme is the automakers design because that's what determines whether what you have is a vehicle and is a motor vehicle and that is regulated under the Clean Air Act. [00:27:27] Speaker 00: But for us to win, you don't need to hold that the design of a motor vehicle never changes because the kind of competition use and convergence slash redesign that the coalition is talking about [00:27:44] Speaker 00: does not exempt you from the tampering prohibition. [00:27:48] Speaker 00: And let me just specifically address the redesign question. [00:27:52] Speaker 00: I think there are three big problems with it. [00:27:55] Speaker 00: The first is that I think it's significant that Congress did not expressly exempt competition conversions from the tampering prohibition, even as they've exempted alternative fuel conversions, as we discussed in our brief. [00:28:08] Speaker 00: The second problem is that this redesign theory [00:28:13] Speaker 00: would lead to an outcome that even petitioner concedes is wrong. [00:28:18] Speaker 00: So the way I understand the design theory works is that you make all these modifications to your motor vehicle, you add the roll cages, you add competition cameras, and it becomes something other than a motor vehicle. [00:28:31] Speaker 00: And it becomes, I guess, what they call a competition use only vehicle. [00:28:36] Speaker 00: And at that point. [00:28:38] Speaker 04: At some point, [00:28:40] Speaker 04: the changes are substantial enough to impose on the object a new design. [00:28:48] Speaker 00: Well, let's just assume that that's true for the second. [00:28:52] Speaker 00: At that point, the theory is that you can tamper away with that vehicle's emissions control, but you would also be able to drive that vehicle all over public roads. [00:29:04] Speaker 00: There's no use-based limitation [00:29:07] Speaker 00: to the redesign theory. [00:29:09] Speaker 00: And the problem there is that on page 12 of the opening brief, the coalition says that if you drive your race car on public roads, it's still illegal to tamper with them. [00:29:20] Speaker 00: So that's a big problem with that theory. [00:29:23] Speaker 00: The other problem is that I think it leads to this. [00:29:27] Speaker 02: Why wouldn't what you just said make it, I guess, legal to drive [00:29:35] Speaker 02: a formula one race car that was manufactured as a race car and not compliant with emission systems. [00:29:42] Speaker 02: Why wouldn't what you just said make it legal to drive that on the road? [00:29:45] Speaker 00: Well, the Clean Air Act does not regulate driving. [00:29:50] Speaker 02: But if your theory is once a motor vehicle, always a motor vehicle, why doesn't it stand to reason that once a race car, always a race car? [00:30:03] Speaker 00: Because I think what your hypothetical presents is a fundamentally different concept. [00:30:10] Speaker 00: You're talking about the relationship between something that does not start out as a motor vehicle. [00:30:18] Speaker 00: Does that stay a non-motor vehicle? [00:30:20] Speaker 00: Does it become a motor vehicle? [00:30:22] Speaker 00: Is there an on-ramp into the motor vehicle world? [00:30:25] Speaker 00: But the issue here is, [00:30:28] Speaker 00: Once, I mean, everybody agrees that we're starting out with motor vehicles and is there an exit ramp from the motor vehicle world and that touches on a different set of considerations. [00:30:42] Speaker 02: I'm not sure we get into it because you might win on standing. [00:30:46] Speaker 02: So if I could ask, give you a hypothetical about standing and then I'm gonna ask you what you think of it and then I'm gonna ask you [00:30:54] Speaker 02: To do what I think a lot of attorneys always want to do when they get a hypothetical, I want you to tell me how my hypothetical is different from this case. [00:31:01] Speaker 02: But first, I want you to answer the hypothetical. [00:31:04] Speaker 02: Imagine EPA just went on its website. [00:31:07] Speaker 02: And on Monday, none of this stuff had happened in 2015-16, this rule. [00:31:13] Speaker 02: None of it's happened. [00:31:14] Speaker 02: And on a Monday, it says the Clean Air Act prohibits converting a motor vehicle to a race car [00:31:24] Speaker 02: when you tamper with the emission systems. [00:31:28] Speaker 02: And then they get some angry calls. [00:31:31] Speaker 02: And so on Tuesday, they take that down and they say, what we posted Monday, we took down. [00:31:39] Speaker 02: It was not intended to represent a change in the law or in policies or practices. [00:31:48] Speaker 02: Then they say, period. [00:31:51] Speaker 02: It wasn't necessary to post it on Monday because it's always [00:31:54] Speaker 02: been illegal to do it under the statute. [00:31:56] Speaker 02: It's all on the website. [00:31:57] Speaker 02: And then the racing enthusiasts come and they bring an APA claim and they say, not only are you wrong on the merits, but you know, this was this needed to go through notice of comment. [00:32:11] Speaker 02: Would they have standing to bring that APA claim? [00:32:19] Speaker 00: If they can show that during [00:32:24] Speaker 02: They say you have now put us through through your Tuesday statement where you said we never needed to post. [00:32:30] Speaker 02: We posted on Monday because it's always been illegal. [00:32:33] Speaker 02: You've now put us to a dilemma, comply or risk prosecution. [00:32:40] Speaker 02: And that's enough injury for us to bring this APA claim to what we'll call an interpretive rule that didn't go through notice and they have standing there. [00:32:52] Speaker 00: If they can provide specific evidence that they're somehow injured by this, but even if they have standing, they file a declaration, maybe unlike this case. [00:33:03] Speaker 02: Okay. [00:33:03] Speaker 02: I mean, I'm not saying that this is a winner. [00:33:06] Speaker 02: Unlike this case, they file a declaration. [00:33:08] Speaker 02: They say we used to be doing this all the time. [00:33:10] Speaker 02: And after what you said on Tuesday, well, starting Wednesday, we stopped and we don't want to stop. [00:33:16] Speaker 02: You've put us to a dilemma. [00:33:17] Speaker 02: You put us to the choice of either comply or risk prosecution. [00:33:21] Speaker 02: And that constitutes final agency action. [00:33:24] Speaker 02: That's enough for standing and we get to challenge the merits. [00:33:26] Speaker 02: And we get to bring our notice and comment claim. [00:33:30] Speaker 00: So they may have standing in that case, but I don't know if the Tuesday action is going to be a final agency act. [00:33:37] Speaker 02: So what's the difference? [00:33:38] Speaker 02: So you said they may have standing there. [00:33:40] Speaker 02: What's the difference between that and this? [00:33:42] Speaker 02: What are the substantive differences? [00:33:44] Speaker 02: What are the differences that matter? [00:33:46] Speaker 00: Well, there are two main differences. [00:33:47] Speaker 00: The first is we are not challenging their general standing to sue on the 2016 clarifications. [00:33:56] Speaker 00: We are just making a very limited standing challenge on their ability to challenge the adequacy of the explanation there. [00:34:03] Speaker 00: The second problem is that the premise of your question is just not true here because EPA has stated its view [00:34:13] Speaker 00: that motor vehicles used solely for competition are not exempt from the tampering provision. [00:34:19] Speaker 00: And our footnote seven or brief is examples that goes back decades. [00:34:24] Speaker 00: And in the regulations before 2016, EPA also made clear that the competition exemption applies only to the non-road world. [00:34:39] Speaker 00: And I think the thing to remember here is that [00:34:42] Speaker 00: The default rule is the tampering prohibition. [00:34:45] Speaker 00: You cannot tamper with emissions controls. [00:34:48] Speaker 00: And if you want to get out of that prohibition, you need an exemption. [00:34:54] Speaker 00: And the only competition exemption around was the one for non-road vehicles. [00:35:00] Speaker 00: And in 2011, EPA amended the competition exemption at 1068.235 subsection B to add the word non-road. [00:35:12] Speaker 00: Neither the competition exemption nor any other regulation ever offered an exemption to motor vehicles that were used solely for racing. [00:35:20] Speaker 00: And without an exemption, those vehicles are subject to the tampering prohibition. [00:35:26] Speaker 00: And that was true before 2016 and it was true after. [00:35:29] Speaker 00: So that's why I say the premise of your hypothetical is wrong. [00:35:32] Speaker 00: And that's a big difference with this case. [00:35:35] Speaker 03: In the real world, in this case, [00:35:37] Speaker 03: the announcement that we're not going forward with the regulation because the law has always been thus, was also, I guess, we're told, accompanied by a new enforcement initiative that had never been taken before. [00:35:53] Speaker 00: That's not true. [00:35:54] Speaker 00: In our brief, in the background section of our brief, we cited examples of enforcement actions that predate the 2016 rule. [00:36:03] Speaker 00: So EPA has this, you know, across- [00:36:07] Speaker 03: fall into the period, are they in the period between 2011 and 2016? [00:36:13] Speaker 00: I think there was one example before 2011, but the point is they're not challenging the 2011 regulations. [00:36:23] Speaker 00: And EPA has focused on going after these defeat device manufacturers and distributors for years. [00:36:31] Speaker 00: It's not like it snapped its fingers in 2016 and says, oh, we're going to go after them now. [00:36:38] Speaker 00: And if you look at the, so in, but no seven or brief, we also give an example of EPA's presentation at one of the major aftermarket trade shows where EPA got up in front of all these aftermarket producers and said, no, you cannot tamper with motor vehicles and claims are racing only do not shield you from the tampering prohibition. [00:37:08] Speaker 04: You have another regulation which allows motor vehicles to be redesigned into non-road vehicles. [00:37:26] Speaker 04: How is that possible? [00:37:29] Speaker 04: Why is it permissible to do that, but to go from motor vehicles to non-road vehicles? [00:37:36] Speaker 04: if you can never go from motor vehicles to race cars. [00:37:42] Speaker 00: I'm sorry, which regulation are you referring to? [00:37:45] Speaker 04: It is 40 CFR 1039.8012. [00:37:49] Speaker 04: It says an engine originally manufactured as a motor vehicle engine [00:38:04] Speaker 04: or a stationary engine that is later used or intended to be used in a piece of non-road equipment is no longer a motor vehicle or stationary engine and becomes a new non-road engine. [00:38:20] Speaker 04: So if you're talking about non-road engines, it is not the case that once a motor vehicle, always a motor vehicle. [00:38:30] Speaker 00: I, well, I'm not familiar with that provision, but I would, what I would say is, I mean, yes, that is talking about engines and it's the new engine, the engine would, I guess, be regulated as a new, as something else, but we're not, again, we don't need you to hold that the design of a motor vehicle never changes. [00:38:51] Speaker 00: What we're talking about here is the kind of [00:38:54] Speaker 00: competition conversions that the coalition wants to do don't get you out of the tampering privilege. [00:39:03] Speaker 00: And I just want to go back to the point about redesign, which I think they seem to be focusing on instead of the competition use. [00:39:11] Speaker 00: And the other problem with the design, the redesign is that it leads to this absurd outcome. [00:39:18] Speaker 00: where the order in which you make changes really matters. [00:39:24] Speaker 00: So under their theory, if you first add the roll cages, add the competition camera, and then you remove the catalytic converter, that's okay. [00:39:36] Speaker 00: But if you flip the order and remove the catalytic converter first, and then add the competition camera, the roll cages, that's still illegal tampering. [00:39:48] Speaker 00: can't be right. [00:39:49] Speaker 00: I mean, Congress was not putting form over substance when it was regulating tampering. [00:39:58] Speaker 00: Unless the court has any more questions. [00:39:59] Speaker 04: Could you read this just as a factual question? [00:40:02] Speaker 04: Could you turn a motor vehicle into a non-road vehicle without tampering? [00:40:18] Speaker 00: I don't know. [00:40:19] Speaker 00: I don't know because, I mean, non-road vehicles are so different from motor vehicles. [00:40:27] Speaker 00: I think you would probably have to do an extensive amount of work. [00:40:30] Speaker 00: So I don't know. [00:40:35] Speaker 00: But again, the coalition is not talking about changing their motor vehicles into non-road vehicles, because non-road vehicles also happen. [00:40:46] Speaker 04: I understand that, but it does probably just goes to standing. [00:40:53] Speaker 04: There are things in your regulations which tend to at least suggest that before these amendments, the kind of conversion that we're talking about [00:41:07] Speaker 04: was permissible, at least under the regulations. [00:41:10] Speaker 00: Well, I do want to clear that there are some regulations that talk about rebuilding engines. [00:41:16] Speaker 00: And so that's meant to basically allow you to extend the life of the engine. [00:41:23] Speaker 00: But there are rules about what kind of configurations you have to leave your emissions controls in. [00:41:35] Speaker 04: Just one question on the merits, if we get there. [00:41:43] Speaker 04: So your position before us is that this kind of conversion is unlawful. [00:41:55] Speaker 04: But when you adopted these amendments, you declined to adopt [00:42:03] Speaker 04: a regulation that would have made crystal clear that you can't tamper, you can't change a motor vehicle into a race car. [00:42:14] Speaker 04: You declined to adopt that. [00:42:16] Speaker 04: And you said the reason you're not adopting that is that EPA supports racing. [00:42:25] Speaker 04: Which would see, you know, so I mean, that's very clear statement. [00:42:31] Speaker 04: in a very clear proposal that would have made this unlawful. [00:42:36] Speaker 04: And now you've sort of, you know, through this elliptical interpretation of another reg that's about safety, you're saying, well, we did it anyway. [00:42:51] Speaker 04: We did it through changing the definition of a motor vehicle. [00:42:56] Speaker 04: We have to [00:42:57] Speaker 04: jump through a lot of hoops to get to the merits. [00:43:00] Speaker 04: But if we get to the merits, that would seem to be a pretty good indicia that your explanation is lacking here. [00:43:10] Speaker 00: So a few points. [00:43:11] Speaker 00: The first is you're right. [00:43:14] Speaker 00: EPA did not finalize the longer statement because people, I think, were confused. [00:43:23] Speaker 00: And so EPA just [00:43:26] Speaker 04: Because EPA supports motorsports. [00:43:30] Speaker 04: Its focus is not, nor has it ever been, on vehicles built or used exclusively for racing. [00:43:41] Speaker 00: That is true as a matter of its enforcement discretion on what to focus on in terms of building. [00:43:47] Speaker 00: But well, let me just also say to be clear, EPA does not regulate and has never regulated professional race cars like Formula One, like NASCAR cars. [00:43:59] Speaker 00: That has never been under the Clean Air Act. [00:44:01] Speaker 00: What EPA is talking about here is if you want to use your motor vehicle for racing, [00:44:10] Speaker 00: That's fine because Clean Air Act does not prohibit racing. [00:44:14] Speaker 00: What you cannot do is tamper with it. [00:44:18] Speaker 00: Now, I think as a matter of enforcement discretion, the agency does not focus on individual car owners who want to race. [00:44:26] Speaker 00: It focuses its enforcement efforts on the feed device manufacturers and distributors. [00:44:35] Speaker 03: So is it fair to say then that in the past, [00:44:39] Speaker 03: racing was conducted by by using automobiles that were stock cars when bought and had been modified to tampering and racing going forward will be changed in that they will be unmodified. [00:45:00] Speaker 00: So it's it's true that in the professional racing circuits many many decades ago started out as you know production cars but [00:45:10] Speaker 00: For a long time now, if you look at NASCAR, you'll see that those are specifically built for racing, not just for racing, but for specific circuits rules. [00:45:19] Speaker 00: There are NASCAR rules, there are Formula One rules. [00:45:22] Speaker 00: And those cars are nothing like the vehicles you see on [00:45:28] Speaker 00: on street. [00:45:29] Speaker 03: I mean, you know, they're not manufactured by the same companies that manufacture the street vehicles. [00:45:35] Speaker 00: They are sometimes. [00:45:36] Speaker 00: Yes, they are manufactured by the same companies, but they use completely different designs. [00:45:41] Speaker 00: So for example, um, I think the latest NASCAR series have Toyota Camry. [00:45:48] Speaker 00: Um, they're the cup series Camrys and they're designed differently. [00:45:51] Speaker 00: They don't have doors, for example, because [00:45:54] Speaker 00: Doors are apparently a big liability in high speed crashes. [00:45:59] Speaker 00: And so that's why you see NASCAR drivers getting in and out through the window. [00:46:03] Speaker 00: Well, that's not going to work in your street car because you're using your cars to transport people and things on public roads and you need doors. [00:46:11] Speaker 00: So that's one example of how very different these professional race cars are from the cars that you and I drive on the streets. [00:46:21] Speaker 03: So those cars, when they are first built, are certified motor vehicles or not? [00:46:26] Speaker 03: Which cars? [00:46:28] Speaker 03: Ones you're describing with, let's say, no doors. [00:46:31] Speaker 00: Those are not certified at all. [00:46:34] Speaker 00: They're not regulated by the act because they're not designed for transport on public roads. [00:46:40] Speaker 03: Those have been used until now for the change in enforcement policy and they will continue to be used. [00:46:47] Speaker 03: Is that correct? [00:46:49] Speaker 00: NASCAR cars will continue. [00:46:51] Speaker 00: I mean, I guess unless Congress amends the Clean Air Act, NASCAR cars have never been regulated under the Clean Air Act. [00:47:01] Speaker 03: So what is it? [00:47:02] Speaker 03: What set of vehicles is it that are experiencing a change in enforcement policy? [00:47:09] Speaker 00: I don't think there is a change in enforcement policy. [00:47:12] Speaker 00: EPA has been looking. [00:47:14] Speaker 03: What is the nature of the cars that you're concerned about if it's not the ones that were built for and are used for racing? [00:47:24] Speaker 03: There's another set, apparently, of things that were more like stock cars and then were adapted, or is it the ones that were built for racing and were changed? [00:47:33] Speaker 00: I see. [00:47:33] Speaker 00: Okay, let me just explain what we're actually disputing here. [00:47:36] Speaker 00: We're not disputing the NASCAR cars and the Formula One cars, because those are out of the clean air. [00:47:41] Speaker 03: Formula one cars, I've seen, they don't even look like cars. [00:47:44] Speaker 00: I know, exactly. [00:47:46] Speaker 03: They couldn't go on the road. [00:47:47] Speaker 03: They go, I don't know, a few hundred meters or something. [00:47:50] Speaker 00: Well, there are probably state laws about what kind of cars you can actually drive on the road. [00:47:54] Speaker 00: We, you know, under the Cleaner Act, they're not regulated. [00:47:58] Speaker 00: Formula one cars, NASA cars, not certified. [00:48:00] Speaker 00: They don't have to have emissions control, period. [00:48:03] Speaker 00: Now, what we're talking about [00:48:07] Speaker 00: Is a certain a very small group of things called motor vehicles right, those are things that you generally see on streets that there are your passenger cars or pickup trucks that sort of thing. [00:48:17] Speaker 00: And everybody here agrees that, as a general matter it's illegal to tamper with motor vehicles vast majority which don't race at all and are properly subject to the tampering. [00:48:30] Speaker 00: The coalition also agrees that a motor vehicle is not exempt from the tampering prohibition just because it competes in races. [00:48:39] Speaker 00: If they go on public roads at all, it's illegal to tamper with them. [00:48:43] Speaker 00: So the only kind of vehicles that the coalition says it cares about are motor vehicles, so like your, you know, Camrys and Accords and whatnot, that are used solely in competition and that never drive on public roads. [00:48:59] Speaker 00: Now there's just no indication. [00:49:02] Speaker 03: And these are cars that were designed as you were describing never to go on public roads? [00:49:08] Speaker 00: No, these are these start out as motor vehicles. [00:49:12] Speaker 00: They're like you're the passenger cars you buy from your dealer that you use for commuting for or, you know, picking up the kids. [00:49:21] Speaker 00: And, you know, on page 11 of the opening brief, the coalition makes clear that that's the kind of cars we're we're starting with. [00:49:28] Speaker 00: And that's the kind of car they want to convert into race cars were used solely for racing. [00:49:34] Speaker 00: And we're saying, no, those cars, those kind of use the kind of conversion they want to do does not exempt that motor vehicle from the tampering prohibition. [00:49:44] Speaker 03: So Miss Broome started out telling us about a recent race in Florida, which kind of cars would have been involved. [00:49:50] Speaker 00: Those are Formula One cars. [00:49:52] Speaker 00: They are professional race cars that never regulated by the Clean Air Act. [00:49:57] Speaker 03: Totally unaffected by the discussion we're having. [00:50:00] Speaker 03: Correct. [00:50:02] Speaker 04: What's your policy concern if you're willing to allow Formula One cars that presumably spew massive amounts of gasoline into the air? [00:50:15] Speaker 04: What do you care? [00:50:16] Speaker 04: Why would you care if someone takes an ordinary car and turns it into something a little bit more like that? [00:50:26] Speaker 04: Is it that that vehicle will can then be used on the roads after the race? [00:50:32] Speaker 00: Yes, well, that is one concern. [00:50:35] Speaker 00: Yes, because I mean, frankly, you can convert [00:50:39] Speaker 00: you can race your passenger car and make some convergence, say I'm racing, but there's nothing to stop you from taking it onto public roads again. [00:50:48] Speaker 00: And I think there are two issues here. [00:50:56] Speaker 00: One is that just if you consider the statute structure, there's really a pretty specific mechanism by which Congress [00:51:07] Speaker 00: that Congress used to regulate motor vehicle emissions. [00:51:10] Speaker 00: And that's in two stages. [00:51:11] Speaker 00: So on the front end, you have the burden that's put on the automaker to meet the emissions standards. [00:51:21] Speaker 00: They have to install emissions controls and show that those controls work. [00:51:26] Speaker 00: And then on the back end, Title II safeguards, the automakers up front work. [00:51:33] Speaker 00: by telling everyone they can't tamper with those controls. [00:51:38] Speaker 00: And so this back end protection is really crucial to the regulation of motor vehicle emissions. [00:51:44] Speaker 00: The other thing I'll say is that it's not just our policy, it's Congress's decision. [00:51:49] Speaker 00: I mean Congress has had [00:51:51] Speaker 00: multiple opportunities to regulate motor vehicles differently from non-road vehicles to shield motor vehicles that are used solely for racing from the competition exempt from, excuse me, from the tampering prohibition. [00:52:05] Speaker 00: And it never did that. [00:52:07] Speaker 00: And so we have to, we have to follow Congress's policy on this. [00:52:13] Speaker 02: Let me, I was intrigued by Judge Katz's question a few minutes ago, the statement that the EPA supports [00:52:21] Speaker 02: amateur racers. [00:52:26] Speaker 02: If you view them as lawbreakers polluting the environment and defying the will of Congress, why do you support them? [00:52:35] Speaker 00: We support racing. [00:52:37] Speaker 00: We do not support tampering. [00:52:42] Speaker 02: Would it have been more accurate to say the EPA supports amateur auto racers who race in a way that currently no amateur auto racers race? [00:52:52] Speaker 00: I don't think that's true that currently no auto racers race without tampering. [00:52:58] Speaker 00: I think there are races that set rules about what kind of emissions controls you have. [00:53:08] Speaker 00: But I think the bottom line is EPA supports racing. [00:53:12] Speaker 00: That's what it was trying to say in that statement. [00:53:15] Speaker 00: And I think our rule, I think as Judge Ginsburg points out, it doesn't disadvantage [00:53:23] Speaker 00: um, race car drivers as to each other. [00:53:25] Speaker 00: It doesn't tell some people you can't tamper with your, with your motor vehicles and others. [00:53:30] Speaker 02: It does tell people who want to drive really fast that they can't drive as fast as they want. [00:53:36] Speaker 02: I mean, the whole point of racing is to, to drive as fast as is to drive fast. [00:53:43] Speaker 02: I mean, they could have chosen, they could have chosen to play like dice if all they cared about was competition. [00:53:48] Speaker 00: Well, even NASCAR has a lot of rules about what you can do to your cars. [00:53:53] Speaker 00: And there are safety rules for those cars as well. [00:53:56] Speaker 00: So it's not true that, you know, the only thing that everybody cares about is to drive as fast as possible. [00:54:02] Speaker 04: No, but I mean, this statement was made in the context of explaining rejection of a rule that would have clearly resolved this precise question about tampering. [00:54:19] Speaker 00: Well, I think, you know, there are there are comments where people were confused about that rule. [00:54:25] Speaker 00: And he said, All right, let's just we don't need this rule. [00:54:28] Speaker 00: Let's not make things worse. [00:54:31] Speaker 00: And if they wanted to clarify that for people who thought that it was cracking down against racing as such, or, you know, professional racing that no, it was not doing that. [00:54:46] Speaker 00: Thank you, Mr. Thank you. [00:54:51] Speaker 04: Miss Broom, we'll give you two minutes. [00:54:54] Speaker 01: Thank you, Your Honor. [00:54:56] Speaker 01: So I do want to just briefly touch back on standing and refer the court to Grocery Manufacturers Association versus EPA. [00:55:06] Speaker 01: And in that case, the court said that standing, where standing is self-evident that we do not need to do that. [00:55:16] Speaker 01: If you look at Mr. Pooley's declaration, [00:55:19] Speaker 01: And you look at 1068.2 35, uh, which is redlined at page 29 of our opening brief. [00:55:27] Speaker 01: Um, they say, but not for motor vehicles. [00:55:30] Speaker 01: And that is Mr. Cooley's business. [00:55:32] Speaker 01: And he was harmed by that addition to the regulations. [00:55:37] Speaker 01: Um, I would also know. [00:55:39] Speaker 01: Yes. [00:55:39] Speaker 03: I said earlier that the court accepted or requested supplemental information about standing. [00:55:47] Speaker 01: Pardon me? [00:55:48] Speaker 03: You say earlier that the court received some accepted supplemental. [00:55:52] Speaker 01: I'm sorry. [00:55:54] Speaker 01: That was in the Chicken Council case. [00:55:56] Speaker 01: And I can get you the site on that. [00:56:00] Speaker 01: I don't think that was also in grocery manufacturers. [00:56:04] Speaker 01: But I can get you that information, your honor. [00:56:08] Speaker 01: I think we can find it. [00:56:12] Speaker ?: OK. [00:56:13] Speaker 01: With respect to Ms. [00:56:16] Speaker 01: Chen's statements about the 2011 rule, in 2011, EPA part 1068 only addressed, had only addressed non-road vehicles. [00:56:29] Speaker 01: So that explains why that change was made then. [00:56:33] Speaker 01: And it was not addressing converting motor vehicles into race cars. [00:56:40] Speaker 01: So that's a red herring. [00:56:42] Speaker 01: I would also say that this is not a case about tampering, it's about the definitions. [00:56:50] Speaker 01: And so, and her view that, and EPA's view that it's NASCAR and Formula One, and that's it, it's an elitist view [00:57:00] Speaker 01: of the world. [00:57:02] Speaker 01: The vast majority of racers in this country are working on their stock cars. [00:57:06] Speaker 01: And if you think about what Congress said, which I'm so glad that Ms. [00:57:10] Speaker 01: Chen raised back in 1965, NASCAR was production vehicles, as your honors pointed out. [00:57:19] Speaker 01: And so it makes no sense to say that Congress prohibited this. [00:57:23] Speaker 01: in 1965 in the face of they are arguing with reality and so substantively I respectfully submit that what they have done is is inconsistent with what Congress intended and what Congress said. [00:57:44] Speaker 04: On the statutory question I was kind of focused on the word design and thinking [00:57:52] Speaker 04: Just as a conceptual matter, it's perfectly plausible to imagine a redesign. [00:57:59] Speaker 04: But what's your response to EPA's point about the tampering rules and that the tampering rules prevent by their terms exactly what it is you would have to do in order to effectuate a redesign? [00:58:23] Speaker 04: That's not so much. [00:58:24] Speaker 04: It's not so much that conceptually you can't read is you can't redesign a motor vehicle into a race car. [00:58:31] Speaker 04: It's just that you can't. [00:58:32] Speaker 04: You can't do that under the tampering rules. [00:58:35] Speaker 01: I mean, I think those are issues that EPA could have discussed if it was having a non arbitrary and non capricious rule making it. [00:58:43] Speaker 01: There's none of that. [00:58:45] Speaker 04: That's that's just statute does and has all the stuff in the record exactly. [00:58:50] Speaker 01: And also that they [00:58:53] Speaker 01: You know the fact is is once you once you decide to make it to make it a race car, then you can't drive it on the street anymore and there are objective indicia of that. [00:59:07] Speaker 01: And so, there, there are things that EPA. [00:59:10] Speaker 01: could bring in an enforcement case, but what it wants to do is not to have to prove any of that in the enforcement case. [00:59:18] Speaker 01: And instead, just say that if I offer for sale a part that could be used on a vehicle that has a certification, then that puts me in the position of effectively a distributor of illegal parts, and that's prohibited under Clean Air Act Section 203, [00:59:40] Speaker 04: A three B. Okay, thank you very much. [00:59:46] Speaker 04: The case is submitted.