MacK Trucks, Inc. v. Environmental Protection Agency , 682 F.3d 87 ( 2012 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 14, 2012 Decided June 12, 2012
No. 12-1077
MACK TRUCKS, INC. AND VOLVO GROUP NORTH AMERICA,
LLC,
PETITIONERS
v.
ENVIRONMENTAL PROTECTION AGENCY,
RESPONDENT
NAVISTAR, INC.,
INTERVENOR
Consolidated with 12-1078, 12-1099
On Petitions for Review of a Final Rule of the
United States Environmental Protection Agency
Christopher T. Handman argued the cause for petitioners.
With him on the briefs were R. Latane Montague, Sean
Marotta, Timothy K. Webster, Samuel I. Gutter, Karen K.
Mongoven, Alec C. Zacaroli, and Julie R. Domike.
Michele L. Walter, Attorney, U.S. Department of Justice,
argued the cause and filed the brief for respondent.
2
Cary R. Perlman and Laurence H. Levine were on the
brief intervenor Navistar, Inc. in support of respondents.
Before: SENTELLE, Chief Judge, BROWN and GRIFFITH,
Circuit Judges.
Opinion for the Court filed by Circuit Judge BROWN.
BROWN, Circuit Judge: In January 2012, EPA
promulgated an interim final rule (IFR) to permit
manufacturers of heavy-duty diesel engines to pay
nonconformance penalties (NCPs) in exchange for the right to
sell noncompliant engines. EPA took this action without
providing formal notice or an opportunity for comment,
invoking the “good cause” exception provided in the
Administrative Procedure Act (APA). Because we find that
none of the statutory criteria for “good cause” are satisfied,
we vacate the IFR.
I
In 2001, pursuant to Section 202 of the Clean Air Act
(“the Act”), EPA enacted a rule requiring a 95 percent
reduction in the emissions of nitrogen oxide from heavy-duty
diesel engines. 66 Fed. Reg. 5,002 (Jan. 18, 2001). By
delaying the effective date until 2010, EPA gave industry nine
years to innovate the necessary new technologies. Id. at
5,010. (EPA and manufacturers refer to the rule as the “2010
NOx standard.” 77 Fed. Reg. 4,678, 4,681 (Jan. 31, 2012).)
During those nine years, most manufacturers of heavy-duty
diesel engines, including Petitioners, invested hundreds of
millions of dollars to develop a technology called “selective
catalytic reduction.” This technology converts nitrogen oxide
into nitrogen and water by using a special aftertreatment
system and a diesel-based chemical agent. With selective
3
catalytic reduction, manufacturers have managed to meet the
2010 NOx standard.
One manufacturer, Navistar, took a different approach.
For its domestic sales, Navistar opted for a form of “exhaust
gas recirculation,” but this technology proved less successful;
Navistar’s engines do not meet the 2010 NOx standard. All
else being equal, Navistar would therefore be unable to sell
these engines in the United States—unless, of course, it
adopted a different, compliant technology. But for the last
few years, Navistar has been able to lawfully forestall that
result and continue selling its noncompliant engines by using
banked emission credits.1 Simply put, it bet on finding a way
to make exhaust gas recirculation a feasible and compliant
technology before its finite supply of credits ran out.
Navistar’s day of reckoning is fast approaching: its
supply of credits is dwindling and its engines remain
noncompliant. In October 2011, Navistar informed EPA that
it would run out of credits sometime in 2012. EPA,
estimating that Navistar “might have as little as three to four
months” of available credits before it “would be forced to stop
introducing its engines into commerce,” leapt into action.2
Resp’t Br. at 2–3. Without formal notice and comment, EPA
hurriedly promulgated the IFR on January 31, 2012, pursuant
1
We have discussed EPA’s emissions credits system more fully in
National Petrochemical & Refiners Association v. EPA, 287 F.3d
1130, 1148 (D.C. Cir. 2002).
2
At oral argument, EPA and counsel for Navistar indicated that
now, seven months after it notified EPA of its credit shortage,
Navistar still has and successfully uses credits to sell some
noncompliant engines. Oral Arg. Recording at 32:35–33:15.
Navistar also avails itself of the NCPs authorized by the IFR in
other markets. Navistar, Inc.’s Motion for Leave to Intervene at 3
(Feb. 28, 2012) [“Navistar Motion”].
4
to its authority under 42 U.S.C. § 7525(g), to make NCPs
available to Navistar.3
To issue NCPs under its regulations, EPA must first find
that a new emissions standard is “more stringent” or “more
difficult to achieve” than a prior standard, that “substantial
work will be required to meet the standard for which the NCP
is offered,” and that “there is likely to be a technological
laggard.” 40 C.F.R. § 86.1103-87. EPA found these criteria
were met. The 2010 NOx standard permits a significantly
smaller amount of emissions than the prior standard, so the
first criterion is easily satisfied. As for the second, EPA
simply said that, because compliant engines (like Petitioners’)
use new technologies to be compliant, “[i]t is therefore logical
to conclude . . . that substantial work was required to meet the
emission standard.” 77 Fed. Reg. at 4,681. Finally, EPA
determined that there was likely to be a technological laggard
because “an engine manufacturer [Navistar] . . . has not yet
met the requirements for technological reasons” and because
“it is a reasonable possibility that this manufacturer may not
be able to comply for technological reasons.” Id.
Having determined that NCPs are appropriate, EPA
proceeded to set the amount of the penalty and establish the
“upper limit” of emissions permitted even by a penalty-paying
manufacturer. The IFR provides that manufacturers may sell
heavy-duty diesel engines in model years 2012 and 2013 as
long as they pay a penalty of $1,919 per engine and as long as
3
The NCP is theoretically available to any heavy-duty diesel
engine manufacturer, but by discussing only Navistar’s predicament
in its brief and in the IFR, EPA all but concedes that it issued the
IFR for solely Navistar’s benefit. See Resp’t Br. at 11–13; 77 Fed.
Reg. at 4,681. Navistar similarly averred in its motion to intervene
that “there is no doubt that the engine manufacturer described in
EPA’s Interim Final Rule is Navistar.” Navistar Motion, at 3.
5
the engines emit fewer than 0.50 grams of nitrogen oxide per
horsepower-hour. Id. at 4,682–83. This “upper limit” thus
permits emissions of up to two-and-a-half times the 0.20
grams permitted under the 2010 NOx standard with which
Navistar is meant to comply and with which Petitioners do
comply. See id. at 4,681.
EPA explained its decision to forego notice and comment
procedures by invoking the “good cause” exception of the
APA, id. at 4,680, which provides that an agency may
dispense with formal notice and comment procedures if the
agency “for good cause finds . . . that notice and public
procedure thereon are impracticable, unnecessary, or contrary
to the public interest,” 5 U.S.C. § 553(b)(B). EPA cited four
factors to show the existence of good cause: (1) notice and
comment would mean “the possibility of an engine
manufacturer [Navistar] . . . being unable to certify a
complete product line of engines for model year 2012 and/or
2013,” (2) EPA was only “amending limited provisions in
existing NCP regulations,” (3) the IFR’s “duration is limited,”
and (4) “there is no risk to the public interest in allowing
manufacturers to certify using NCPs before the point at which
EPA could make them available through a full notice-and-
comment rulemaking.” 77 Fed. Reg. at 4,680.
Petitioners each requested administrative stays of the
IFR, protesting that EPA lacked good cause within the
meaning of the APA. Petitioners also objected to the
substance of the NCP, arguing that EPA misapplied its own
regulatory criteria for determining when such a penalty is
warranted, and that EPA arbitrarily and capriciously set the
amount of the penalty and the “upper limit” level of
permissible emissions. EPA denied those requests.
Petitioners promptly filed an emergency motion with this
Court to expedite review, which we granted.
6
II
Navistar, which has intervened on behalf of EPA, claims
Petitioners lack standing to challenge the IFR. EPA does not
make such a claim but, of course, we have the independent
“obligation to satisfy [ourselves]” of our own jurisdiction
before proceeding to the merits. Dominguez v. UAL Corp.,
666 F.3d 1359, 1362 (D.C. Cir. 2012).
Navistar’s sole argument is that Petitioners’ lack
procedural standing. We have no need to reach this question,
however, since Petitioners clearly have standing as direct
competitors of Navistar: they allege the IFR “authorizes
allegedly illegal transactions that have the clear and
immediate potential to compete with [their] own sales.”
Sherley v. Sebelius, 610 F.3d 69, 72–73 (D.C. Cir. 2010).
Navistar admits it is using NCPs to sell competitive engines,
see Navistar Motion, at 3, so this injury is anything but
conjectural. Petitioners’ injury is also “clear[ly]” traceable to
the IFR which authorizes that allegedly illegal competition,
and is redressable by a vacatur of the IFR. Sherley, 610 F.3d
at 72. Finally, because “NCP provisions mandate that
penalties . . . remove any competitive disadvantage to
manufacturers whose engines or vehicles achieve the required
degree of emission reduction,” Petitioners’ “interest in
avoiding anticompetitive injury plainly falls within the zone
of interests Congress sought to protect.” Nat’l Petrochem. &
Refiners Ass’n, 287 F.3d at 1148. Even Navistar does not
suggest otherwise in its brief.
We therefore proceed to the merits.
7
III
Petitioners argue first that Section 206 of the Act requires
notice and comment; alternatively, they claim EPA lacked
good cause in any event. The APA provides that, “[e]xcept
when notice or hearing is required by statute,” an agency is
relieved of its obligation to provide notice and an opportunity
to comment “when the agency for good cause finds (and
incorporates the finding and a brief statement of reasons
therefor in the rules issued) that notice and public procedure
thereon are impracticable, unnecessary, or contrary to the
public interest.” 5 U.S.C. § 553(b)(B).4
4
The APA provides a second exception to the notice-and-comment
requirement: the requirement is lifted when “persons subject thereto
are named and either personally served or otherwise have actual
notice thereof in accordance with law.” 5 U.S.C. § 553(b).
Navistar, and only Navistar, argues that Petitioners had such actual
notice of the IFR, but Petitioners knew only that EPA was
gathering information for a possible NCP and merely orally
supplied some information they thought might be relevant to setting
the levels of the penalty and upper limit. EPA did not provide a
draft of the IFR, did not advise Petitioners of the levels, did not
explain or discuss its methodology, and did not ask Petitioners to
discuss whether NCPs were justified in the first place. Jorgensen
Aff. ¶ 15; Kayes Aff. ¶¶ 12–17; Greszler Aff. ¶¶ 11–13. In fact,
according to Petitioners’ affidavits, EPA suggested the information
was being gathered to develop a proposal which would in turn be
subject to ordinary notice and comment—not that this was the end
of the road. E.g., Greszler Aff. ¶ 13. EPA has not argued to the
contrary before this Court, and Navistar offers no support for its
position that such scant and misleading notice is sufficient. It
certainly pales in comparison to what the APA requires of formal
notice. See 5 U.S.C. § 553(b)(3) (notice shall include “the terms or
substance of the proposed rule or a description of the subjects and
issues involved”); Small Refiner Lead Phase-Down Task Force v.
EPA, 705 F.2d 506, 549 (D.C. Cir. 1983) (“Agency notice must
8
A
Is notice or hearing expressly required by statute?
Section 206(g)(1) of the Act, 42 U.S.C. § 7525(g)(1), says
that NCPs shall be provided “under regulations promulgated
by the Administrator after notice and opportunity for public
hearing.” According to Petitioners, this is an express
requirement of notice and comment that bars EPA from even
invoking the good cause exception in this case. Read alone,
this language seems to support their argument. But we cannot
read one subsection in isolation. Davis v. Mich. Dep’t of
Treasury, 489 U.S. 803, 809 (1989). The rest of Section
206(g) clearly reveals, as EPA points out, that this
requirement applies only to the very first NCP rule—which
set out the regulatory criteria governing future NCPs—not for
each and every NCP subsequently promulgated. Because
EPA’s position is clearly correct, we have no need to invoke
any rule of deference. Chevron, U.S.A., Inc. v. NRDC, 467
U.S. 837, 843–44 (1984).
Subsection (g)(2), the very next paragraph, says that “no
[NCP] may be issued under paragraph (1) . . . if the degree by
which the manufacturer fails to meet any standard . . . exceeds
the percentage determined under regulations promulgated by
the Administrator to be practicable. Such regulations . . .
shall be promulgated not later than one year after August 7,
1977.” 42 U.S.C. § 7525(g)(2) (emphasis added). The
regulations to which subsection (g)(2) refers are clearly the
regulations promulgated under subsection (g)(1). Subsection
(g)(2) explains they are of a guiding nature and, importantly,
describe the range of alternatives being considered with reasonable
specificity. Otherwise, interested parties will not know what to
comment on, and notice will not lead to better-informed agency
decisionmaking.”). It would be wholly illogical to require any less
from actual notice.
9
that they must be issued by certain a date in 1977. This
language cannot possibly be read to describe each and every
NCP. Petitioners’ interpretation of subsection (g)(1),
suggesting that it does refer to every NCP, would render
subsection (g)(2) not just superfluous, but impossible—a
result we must avoid. Motor & Equip. Mfrs. Ass’n, Inc. v.
EPA, 627 F.2d 1095, 1108 (D.C. Cir. 1979). Subsection
(g)(3) makes the flaw in Petitioners’ interpretation even
clearer: “The regulations promulgated under paragraph (1)
shall, not later than one year after August 7, 1977, provide for
nonconformance penalties in amounts determined under a
formula established by the Administrator.” 42 U.S.C. §
7525(g)(3). Once again, this provision and its deadline reveal
that subsection (g)(1) refers to a one-time promulgation of a
formula that governs future penalty applications. Reading
Section 206(g) as a whole, it is clear nothing in that provision
requires EPA to provide notice and comment every time it
applies the original formula to the establishment of specific
penalties.
Contrary to Petitioners’ fears, the Act’s lack of a notice
and comment requirement does not mean that no procedures
are statutorily required when NCPs are issued. The APA’s
general rule requiring notice and comment—absent identified
exceptions—still obviously applies. Indeed, EPA has always
argued that the IFR is justified under the good cause
exception, not that it is justified because notice and comment
is never required. See 77 Fed. Reg. at 4,680.
B
Because the Act does not contain any notice-and-
comment requirement applicable to the IFR, EPA may invoke
the APA’s good cause exception. We must therefore
determine whether notice and comment were “impracticable,
10
unnecessary, or contrary to the public interest.” 5 U.S.C. §
553(b)(B). On that question, it would appear we owe EPA’s
findings no particular deference. See Jifry v. FAA, 370 F.3d
1174, 1178–79 (D.C. Cir. 2004) (finding good cause without
resorting to deference); Util. Solid Waste Activities Grp. v.
EPA, 236 F.3d 749, 754 (D.C. Cir. 2001) (finding no good
cause without invoking deference). But we need not decide
the standard of review since, even if we were to review EPA’s
assertion of “good cause” simply to determine if it is arbitrary
or capricious, 5 U.S.C. § 706(2)(A), we would still find it
lacking.
We have repeatedly made clear that the good cause
exception “is to be narrowly construed and only reluctantly
countenanced.” Util. Solid Waste Activities Grp., 236 F.3d at
754; Tenn. Gas Pipeline Co. v. FERC, 969 F.2d 1141, 1144
(D.C. Cir. 1992); New Jersey v. EPA, 626 F.2d 1038, 1045
(D.C. Cir. 1980); see also Jifry, 370 F.3d at 1179 (“The
exception excuses notice and comment in emergency
situations, or where delay could result in serious harm.”); Am.
Fed. of Gov’t Emps. v. Block, 655 F.2d 1153, 1156 (D.C. Cir.
1981) (“As the legislative history of the APA makes clear,
moreover, the exceptions at issue here are not ‘escape clauses’
that may be arbitrarily utilized at the agency’s whim. Rather,
use of these exceptions by administrative agencies should be
limited to emergency situations . . . .”).
First, an agency may invoke the impracticability of notice
and comment. 5 U.S.C. § 553(b)(B). Our inquiry into
impracticability “is inevitably fact- or context-dependent,”
Mid-Tex Electric Coop. v. FERC, 822 F.2d 1123, 1132 (D.C.
Cir. 1987). For the sake of comparison, we have suggested
agency action could be sustained on this basis if, for example,
air travel security agencies would be unable to address threats
posing “a possible imminent hazard to aircraft, persons, and
11
property within the United States,” Jifry, 370 F.3d at 1179, or
if “a safety investigation shows that a new safety rule must be
put in place immediately,” Util. Solid Waste Activities Grp.,
236 F.3d at 755 (ultimately finding that not to be the case and
rejecting the agency’s argument), or if a rule was of “life-
saving importance” to mine workers in the event of a mine
explosion, Council of the S. Mountains, Inc. v. Donovan, 653
F.2d 573, 581 (D.C. Cir. 1981) (describing that circumstance
as “a special, possibly unique, case”).
By contrast, the context of this case reveals that the only
purpose of the IFR is, as Petitioners put it, “to rescue a lone
manufacturer from the folly of its own choices.” Pet. Br. at
29; see 77 Fed. Reg. at 4,680 (expressing EPA’s concern that
providing notice and comment would mean “the possibility of
an engine manufacturer [Navistar] . . . being unable to certify
a complete product line of engines for model year 2012 and/or
2013”). The IFR does not stave off any imminent threat to
the environment or safety or national security. It does not
remedy any real emergency at all, save the “emergency”
facing Navistar’s bottom line. Indeed, all EPA points to is
“the serious harm to Navistar and its employees” and “the
ripple effect on its customers and suppliers,” Resp’t Br. at 28,
but the same could be said for any manufacturer facing a
standard with which its product does not comply.
EPA claims the harm to Navistar and the resulting up-
and down-stream impacts should still be enough under our
precedents. The only case on which it relies, however, is one
in which an entire industry and its customers were imperiled.
See Am. Fed. of Gov’t Emps., 655 F.2d at 1157. Navistar’s
plight is not even remotely close to such a weighty, systemic
interest, especially since it is a consequence brought about by
Navistar’s own choice to continue to pursue a technology
which, so far, is noncompliant. At bottom, EPA’s approach
12
would give agencies “good cause” under the APA every time
a manufacturer in a regulated field felt a new regulation
imposed some degree of economic hardship, even if the
company could have avoided that hardship had it made
different business choices. This is both nonsensical and in
direct tension with our longstanding position that the
exception should be “narrowly construed and only reluctantly
countenanced.” Util. Solid Waste Activities Grp., 236 F.3d at
754.
Second, an agency may claim notice and comment were
“unnecessary.” 5 U.S.C. § 553(b)(B). This prong of the good
cause inquiry is “confined to those situations in which the
administrative rule is a routine determination, insignificant in
nature and impact, and inconsequential to the industry and to
the public.” Util. Solid Waste Activities Grp., 236 F.3d at
755. This case does not present such a situation. Just as in
Utility Solid Waste, the IFR is a rule “about which these
members of the public [the petitioners] were greatly
interested,” so notice and comment were not “unnecessary.”
Id. EPA argues that since the IFR is just an interim rule, good
cause is satisfied because “the interim status of the challenged
rule is a significant factor” in determining whether notice and
comment are unnecessary. Resp’t Br. at 35; 77 Fed. Reg. at
4,680 (finding good cause because the IFR’s “duration is
limited”). But we held, in the very case on which EPA relies,
that “the limited nature of the rule cannot in itself justify a
failure to follow notice and comment procedures.” Mid-Tex
Electric Coop., 822 F.2d at 1132. And for good reason: if a
rule’s interim nature were enough to satisfy the element of
good cause, then “agencies could issue interim rules of
limited effect for any plausible reason, irrespective of the
degree of urgency” and “the good cause exception would
soon swallow the notice and comment rule.” Tenn. Gas
Pipeline, 969 F.2d at 1145.
13
EPA’s remaining argument that notice and comment
were “unnecessary” is that the IFR was essentially ministerial:
EPA simply input numbers into an NCP-setting formula
without substantially amending the NCP regime. Resp’t Br.
at 36; 77 Fed. Reg. at 4,680. But even if it were true that EPA
arrived at the level of the penalty and the upper limit in this
way (and Petitioners strenuously argue that EPA actually
amended the NCP regime in order to arrive at the upper limit
level in the IFR5), that argument does not account for how
EPA determined NCPs were warranted in this case in the first
place—another finding to which Petitioners object. EPA’s
decision to implement an NCP, perhaps even more than the
level of the penalty itself, is far from inconsequential or
routine, and EPA does not even attempt to defend it as such.
Finally, an agency may invoke the good cause exception
if providing notice and comment would be contrary to the
public interest. 5 U.S.C. § 553(b)(B). In the IFR, EPA says it
has good cause since “there is no risk to the public interest in
allowing manufacturers to [use] NCPs before the point at
which EPA could make them available through a full notice-
and-comment rulemaking,” 77 Fed. Reg. at 4,680, but this
misstates the statutory criterion. The question is not whether
dispensing with notice and comment would be contrary to the
public interest, but whether providing notice and comment
would be contrary to the public interest. By improperly
framing the question in this way, the IFR inverts the
presumption, apparently suggesting that notice and comment
is usually unnecessary. We cannot permit this subtle
malformation of the APA. The public interest prong of the
5
EPA admits in its brief that “Petitioners are correct that in past
rules, EPA based the penalty rates [on certain factors]” and that
“that was not the case for the Interim Rule.” Resp’t. Br. at 52.
14
good cause exception is met only in the rare circumstance
when ordinary procedures—generally presumed to serve the
public interest—would in fact harm that interest. It is
appropriately invoked when the timing and disclosure
requirements of the usual procedures would defeat the
purpose of the proposal—if, for example, “announcement of a
proposed rule would enable the sort of financial manipulation
the rule sought to prevent.” Util. Solid Waste Activities Grp.,
236 F.3d at 755. In such a circumstance, notice and comment
could be dispensed with “in order to prevent the amended rule
from being evaded.” Id. In its brief, EPA belatedly frames
the inquiry correctly, but goes on to offer nothing more than a
recapitulation of the harm to Navistar and the associated
“ripple effects.” Resp’t Br. at 38. To the extent this is an
argument not preserved by EPA in the IFR, we cannot
consider it, see SEC v. Chenery Corp., 332 U.S. 194, 196
(1947), but regardless, it is nothing more than a reincarnation
of the impracticability argument we have already rejected.
IV
Because EPA lacked good cause to dispense with
required notice and comment procedures, we conclude the
IFR must be vacated without reaching Petitioners’ alternative
arguments. We are aware EPA is currently in the process of
promulgating a final rule—with the benefit of notice and
comment—on this precise issue. However, we strongly reject
EPA’s claim that the challenged errors are harmless simply
because of the pendency of a properly-noticed final rule.
Were that true, agencies would have no use for the APA when
promulgating any interim rules. So long as the agency
eventually opened a final rule for comment, every error in
every interim rule—no matter how egregious—could be
excused as a harmless error.
15
We do recognize the pending final rule means our vacatur
of the IFR on these procedural grounds will be of limited
practical impact. Before the ink is dry on that final rule, we
offer two observations about the parameters of this
rulemaking. First, NCPs are meant to be a temporary bridge
to compliance for manufacturers that have “made every effort
to comply.” United States v. Caterpillar, Inc., 227 F. Supp.
2d 73, 88 (D.D.C. 2002). As EPA itself has explained, NCPs
are not designed to bail out manufacturers that voluntarily
choose, for whatever reason, not to adopt an existing,
compliant technology. See 77 Fed. Reg. 4,736, 4,739 (Jan.
31, 2012) (“NCPs have always been intended for
manufacturers that cannot meet an emission standard for
technological reasons rather than manufacturers choosing not
to comply.”); 50 Fed. Reg. 35,402, 35,403 (Aug. 30, 1985)
(stating that NCPs are inappropriate “if many manufacturers’
vehicles/engines were already meeting the revised standard or
could do so with relatively minor calibration changes or
modifications”). Based solely on what EPA has offered in the
IFR, it at least appears to us that NCPs are likely
inappropriate in this case.
Second, we emphasize that “no legislation pursues its
purposes at all costs,” Rodriguez v. United States, 480 U.S.
522, 525–26 (1987), especially when Congress explicitly says
as much in the legislation. Though the Clean Air Act requires
EPA to issue NCPs when it determines the necessary criteria
are satisfied, it also expressly demands that EPA “remove any
competitive disadvantage to manufacturers whose engines or
vehicles achieve the required degree of emission reduction.”
42 U.S.C. § 7525(g)(3)(E). As it is presented in the IFR, we
are highly skeptical that the penalty and upper limit provided
for in this NCP satisfy this congressional demand to protect
compliant manufacturers.
16
That being said, EPA is certainly free to make whatever
findings it deems appropriate in the pending final
rulemaking—subject, of course, to this Court’s review. For
now, therefore, we simply hold that EPA lacked good cause
for not providing formal notice-and-comment rulemaking,
and accordingly vacate the IFR and remand for further
proceedings.
So ordered.