# Appendix — General Motors Corp. v. Costle > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1697%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1980 - **Citation:** 446 U.S. 952 ## Text IN THE Supreme Court of the Gnited States OCTOBER TERM, 1979 No. 7997 QO = 1 2 62 GENERAL Motors CORPORATION, et al., Petitioners, Vv. DouGias M. Costie, Administrator of the Environmental Protection Agency, ENVIRONMENTAL PROTECTION AGENCY, AND STATE OF CALIFORNIA, Respondents. Appendix To Petition For A Writ Of Certiorari To The United States Court Of Appeals For The District Of Columbia Circuit Petitioners General Motors Corporation Chrysler Corporation Motor and Equipment Manufacturers Association Automobile Importers of America, Inc. Automotive Service Industry Association, ef al. Of Counsel: WILLIAM T. COLEMAN, JR. Otis M. SMITH DONALD T. BLISS General Counsel CARL R. SCHENKER, JR. WILLIAM L. WEBER, JR. O’MELVENY & MYERS MAYNARD L. TIMM 1800 M Street, N.W. GENERAL MOTORS Suite 500 South CORPORATION Washington, D.C. 20036 3044 West Grand Blvd. (202) 457-5300 Detroit, Michigan 48202 Counsel for General Motors Corporation Additional Counsel Listed on Inside Cover PRESS OF BYRON S. ADAMS PRINTING. INC. WASHING EON, DC HRA D. ANDERSON, JR. MICHAEL W. GRICE Office of the General Attorney CHRYSLER CORPORATION P.O. Box 1919 Detroit, Michigan 48121 (313) 956-2075 Counsel for Chrysler Corporation MARK R. JOELSON MARC L. FLEISCHAKER ARENT, FOX, KINTNER, PLOTKIN & KAHN 1815 H Street, N.W. Washington, D.C. 20006 (202) 857-6053 Counsel for Motor and Equipment Manufacturers Association MILTON D. ANDREWS DONALD M. SCHWENTKER DENNIS A. ADELSON RIVKIN SHERMAN and LEVY 900 17th Street, N.W. Washington, D.C. 20006 (202) 347-6007 Counsel for Automobile Importers of America, Inc. HAROLD T. HALFPENNY JAMES F. FLANAGAN HALFPENNY, HAHN & ROCHE 111 West Washington Street Chicago, Illinois 60602 (312) 782-1829 Counsel for Automotive Service Industry Association, et al. A. TABLE OF CONTENTS PAGE Opinion of the United States Court of App-als for the Dis- trict of Columbia Circuit, The Motor and Equipment Manufacturers Association, Inc. v. Costle and Con- solidated Cases, No. 78-1896 et al., Aug. 3, 1979..... 1 Order of Aug. 7, 1979 Making Formal Amendments in SIE MERGE 55s wiv os ek See bos beac teks 67a Order of Sept. 17, 1979 Denying Petition for Rehearing ORs We va ae ener ere ee eras 70a Order of Sept. 17, 1979 Denying Suggestion for Rehearing I a A Gio i oo oo VRS FOS u Se rh oe Bee Tla Order by Mr. Chief Justice Burger Extending Until Feb. 14, 1980 the Time Within Which to File a Petition for ee os ee a a eA 72a Decision of the Administrator of the Environmental Pro- tection Agency Granting Waiver of Federal Preemp- tion for California’s Original In-Use Maintenance Regulations, 43 Fed. Reg. 32182 (July 25, 1978) ..... 73a Letter of Mar. 8, 1979 From Marvin B. Durning (EPA) to Thomas C. Austin (ARB) Addressing California’s PROBUNRIONS OS AMIORGOE |. in ick cok eiseciosss 86a Relevant Constitutional Provisions, Statutes, and Regula- tions First Amendment to United States Constitution ..... 88a Fourteenth Amendment to United States Constitution 88a Section 207 of the Clean Air Act, 42 U.S.C. § 7541 .. 88a Section 209 of the Clean Air Act, 42 U.S.C. § 7543 .. 94a California Exhaust Emission Standards and Test Pro- cedures for 1980 Model Passenger Cars, Light- Duty Trucks, and Medium-Duty Vehicles (In-Use Maintenance Regulations as Originally Adopftd) 96a Amendments to California Exhaust Emission Stand- ards and Test Procedures for 1980 Model Passen- ger Cars, Light-Duty Trucks, and Medium-Duty Vehicles (In-Use Maintenance Regulations as’ ERR er aS aire ieee on ne) ar Cet ea 100a Ab Sa AIS te) er aetna ~ eee la Notice: This opinion is subject to formal revision before publication in the Federal Reporter or U.S.App.D.C. Reports. Users are requested to notify the Clerk of any formal errors in order that corrections may be made before the bound volumes go to press. United States Court of Ayyrals FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 78-1896 THE MOTOR AND EQUIPMENT MANUFACTURERS ASSOCIATION, INC., PETITIONER V. ENVIRONMENTAL PROTECTION AGENCY and DOUGLAS COSTLE, Administrator, Environmental Protection Agency, RESPONDENTS AUTOMOBILE IMPORTERS OF AMERICA and STATE OF CALIFORNIA, INTERVENORS No. 78-1901 AUTOMOTIVE SERVICE INDUSTRY, ET AL., PETITIONERS Vv. ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT STATE OF CALIFORNIA and AUTOMOBILE IMPORTERS OF AMERICA, INTERVENORS Bills of costs must be filed within 14 days after entry of judgment. The court looks with disfavor upon motions to file bills of costs out of time. 2a No. 78-1931 MOTOR VEHICLE MANUFACTURERS ASSOCIATION OF THE UNITED STATES, INC., PETITIONER V. DouGLas M. CosTLe, Administrator of the Environmental Protection Agency Environmental Protection Agency, RESPONDENTS STATE OF CALIFORNIA and AUTOMOBILE IMPORTERS OF AMERICA, INTERVENORS No. 78-1943 CHRYSLER CORPORATON, PETITIONER ¥. ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT . STATE OF CALIFORNIA and UTOMOBILE IMPORTERS OF AMERICA, INTERVENORS No. 78-1944 GENERAL MOTORS CORPORATION, PETITIONER Vv. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY and DouGLas M. Coste, Administrator of the United States Environmental Protection Agency RESPONDENTS ; STATE OF CALIFORN IA and AUTOMOBILE IMPORTERS OF AMERICA, INTERVENORS ——————— AE APTN hrs POE 3a Petitions for Review of Orders of the Environmental Protection Agency Argued March 26, 1979 Decided August 3, 1979 John H. Pickering, with whom Timothy N. Black and Charles H. Lockwood were on the brief, for petitioner in No. 78-1931. William T. Coleman, Jr. with whom Richard C. War- mer, Donald T. Bliss, Jr. and William L. Weber, Jr. were on the brief, for petitioner in No. 78-1944. Mark R. Joelson, with whom Marc L. Fleischaker and Lawrence P. Postol were on the brief, for petitioner in No. 78-1896. James F. Flanagan, with whom Harold T. Halfpenny was on the brief, for petitioner in No. 78-1901. Victor C. Tomlinson was on the brief, for petitioner in No. 78-1943. James McNab, III, Attorney, Environmental Protec- tion Agency, a member of the bar of the Supreme Court of California, pro hac vice, by special leave of court, Bruce I. Bertelsen, Attorney, Environmental Protection Agency, a member of the bar of the Supreme Court of Michigan, pro hac vice, by special leave of court, and David Dearing, Attorney, Department of Justice, with whom Sanford Sagalkin, Acting Assistant Attorney Gen- eral, Joan Z Bernstein, Genera’ Counsel, and Gerald K. Gleason, Attorney, Department of Justice, were on the brief, for respondent. James Moorman and Lloyd Guerct, Attorneys, Department of Justice, also entered appear- ances for respondents. Joel S. Moskowitz, Deputy Attorney General of the State of California, for intervenor State of California. 4a Milton D. Andrews, Dennis M. Schwentker, and Lance E. Tunnick were on the brief for intervenor Automobile Importers of America, Inc. Before WRIGHT, Chief Judge, and MacKINNON and Ross, Circuit Judges. Opinion for the Court filed by Circuit Judge MAC- KINNON. MACKINNON, Circuit Judge: Section 209 of the Clean Air Act, 42 U.S.C. § 7543 (Supp. I 1977), requires the Administrator of the Environmental Protection Agency (EPA) to waive federal preemption. of motor vehicle emission control regulations for the State of California unless he makes certain findings that a waiver is inap- propriate.’ In July 1978 the Administrator waived fed- 1 Section 209 as amended in 1977 provides: (a) Prohibition No State or any political subdivision thereof shall adopt or attempt to enforce any standard relating to the control of emissions from new motor vehicles or new motor vehicle engines subject to this part. No State shall require certification, inspection, or any other approval relating to the control of emissions from any new motor vehicle or new motor vehicle engine as condition preced- ent to the initial retail sale, titling (if any), or registra- tion of such motor vehicle, motor vehicle engine, or equip- ment. (b) Waiver (1) The Administrator shall, after notice and oppor- tunity for public hearing, waive application of this sec- tion to any State which has adopted standards (other than crankcase emission standards) for the contro] of emissions from new motor vehicles or new motor vehicle engines prior to March 30, 1966, if the State determines that the State standards will be, in the aggregate, at least as protective of public health and welfare as applicable Federal standards. No such waiver shall be granted if the Administrator finds that— [Continued] Sa eral preemption for California regulations limiting the amount of maintenance that a manufacturer can require of motor vehicle purchasers in the written instructions which accompany new motor vehicles sold in that State. 1 [Continued] (A) the determination of the State is arbitrary and capricious. (B) such State does not need such State stand- ards to meet compelling and extraordinary condi- tions, or (C) such State standards and accompanying en- forcement procedures are not consistent with section 7521 (a) of this title. (2) If each State standard is at least as stringent as the comparable applicable Federal standard, such State standard shall be deemed to be at least as protective of health and welfare as such Federal standards for pur- poses of paragraph (1). (3) In the case of any new motor vehicle or new motor vehicle engine to which State standards apply pursuant to a waiver granted under paragraph (1), compliance with such State standards shall be treated as compliance with applicable Federal standards for purposes of this subchapter. (c) Certification of vehicle parts or engine parts Whenever a regulation with respect to any motor ve- hicle part or motor vehicle engine part is in effect under section 7541(a) (2) of this title, no State or political subdivision thereof shall adopt or attempt to enforce any standard or any requirement of certification, inspection, or approval which relates to motor vehicle emissions and is applicable to the same aspect of such part. The pre- ceding sentence shall not apply in the case of a State with respect to which a waiver is in effect under subsection (b) of this section. (d) Control, regulation, or restrictions on registered or licensed motor vehicles [Continued] 6a The issue in these cases? is whether the Administrator’s decision to do so was arbitrary, capricious, or otherwise not in accordance with law. We answer that question in 1 [Continued] Nothing in this part shall preclude or deny to any State or political subdivision thereof the right otherwise to control, regulate, or restrict the use, operation, or movement of registered or licensed motor vehicles. 42 U.S.C. § 7548 (Supp. I 1977). California is the only state which had adopted emission control standards (other than crankcase emission standards) before March 30, 1966. It is thus the only state eligible for a waiver. ? This opinion disposes of the petitions filed in Docket Nos. 78-1896, 78-1901, 78-1931, 78-1948, and 78-1944, each of which challenges the Administrator’s July 1978 decision to waive federal preemption for California’s in-use maintenance regulations. Petitioners in Docket Nos. 78-1896, 78-1931, 78- 19438, and 78-1944 include The Motor & Equipment Manufac- turers Association, the Automotive Service Industry Associ- ation, the Motor Vehicle Manufacturers Association of the United States, the Chrysler Corporation, and the General Motors Corporation. These petitioners jointly raise all the issues discussed herein except for those relating to the Ad- ministrator’s obligation to consider the antitrust implications of the waiver. The antitrust implications of the waiver is the concern of the petition filed in Docket No. 78-1901. Peti- tioners in that case are The Automotive Service Industry Association and the Motor & Equipment Manufacturers Asso- ciation, Inc. For ease of reference, we refer to the propon- ents of the waiver denial as “petitioners” throughout this opinion, but we wish to make clear that not all the parties join in the argument about the antitrust implications of the Administrator’s decision to waive preemption. Argued with the foregoing petitions was the petition filed in Docket No. 78-1794. Although this petition challenges a different waiver decision, it raises essentially the same issues discussed herein. We dispose of it as a companion to this opinon. Motor & Equipment Manufacturers Assn. v. EPA — F.2d —— (D.C. Cir. Docket No. 78-1794 decided Au- gust 3, 1979). Ta the negative, and we accordingly deny the petition to set aside the Administrator’s order.’ I BACKGROUND The federal program for the control of motor vehicle emissions is the product of the Clean Air Act as amended, 42 U.S.C. $$ 7401 et seg. (Supp. I 1977).* Section 202 of this statute establishes nationwide motor vehicle emis- sion standards applicable to certain model years for three major pollutants, carbon monoxide, hydrocarbons, and oxides of nitrogen. Jd. § 7521(b). It also sets long-term goals for the control of emissions, and authorizes the EPA Administrator to prescribe standards consistent with those goals for model years not covered by the statute. Id. § 7521(a). These regulations can take effect at such time as the Administrator finds them to be technologically feasible, giving appropriate consideration to the costs of compliance. /d. ’Qur jurisdiction derives from 42 U.S.C. § 7607 (b) (1) (Supp. I 1977). 4 The Clean Air Act includes the basic legislation enacted as The Clean Air Act of 1963, Pub. L. No. 88-206, 77 Stat. 392, as well as amendments made by The Motor Vehicle Air Pollu- tion Control Act, Pub. L. No. 89-272, 79 Stat. 992 (1965) ; The Clean Air Act Amendments of 1966, Pub. L. No. 89-675, 80 Stat. 954; The Air Quality Act of 1967, Pub. L. No. 90-148, 81 Stat. 485; The Clean Air Act Amendments of 1970, Pub. L. No. 91-604, 84 Stat. 1676; The Comprehensive Health Manpower Training Act, Pub. L. No. 92-157, 85 Stat. 431 (1971); The Energy Supply & Environmental Coordination Act, Pub. L. No. 93-319, 86 Stat. 248 (1974) ; The Safe Drink- ing Water Act of 1977, Pub. L. No. 95-190, 91 Stat. 1399; and The Clean Air Act Amendments of 1977, Pub. L. No. 95- 95, 91 Stat. 685. 8a Section 206 requires the Administrator to test or to have tested any new motor vehicle or new motor vehicle engine submitted by a manufacturer to determine whether the vehicle or engine conforms to the standards con- tained in section 202 and in the regulations promulgated under it. Jd. §7525(a).5 This “certification process” consists of various procedures which enable a manufac- turer to demonstrate by use of a prototype that it has designed a class of motor vehicle which complies with the standards. One feature of this certification process is a durability test to determine the effects of deterioration on the functioning of the emission control system.® The Ad- ministrator limits by regulation the amount of “scheduled maintenance” that can be performed on the prototype vehicle during this durability test.’ If the Administrator finds that the new motor vehicle will meet the applicable emissions standards he issues a certificate of conformity to cover the class of motor vehicles represented by the prototype. Jd. at 7525(a). This certificate is a condition precedent to the initial retail sale of new motor vehicles.® 5 Whenever the statute refers to “new motor vehicle” the phrase is followed by “or new motor vehicle engine.” We hereafter refer to “new motor vehicle” as including “new motor vehicle engine.” ® The regulations governing the federal certification pro- gram are found in 40 C.F.R. § 86.078 (1978). 7 See id. § 86.078-25. The durability test is designed to en- sure that a vehicle’s emission control system will retain its control capacity, a purpose obviously frustrated if the manu- facturer is permitted to repair the system at will. As will in- evitably happen on occasion, if a part fails before maintenance is scheduled, “unscheduled maintenance” must be undertaken. 8 Section 203 prohibits a manufacturer from introducing into commerce a new motor vehicle not covered by a certificate of conformity. 42 U.S.C. § 7522(a) (1) (Supp. I 1977). Sec- tion 205 provides for the imposition of a civil penalty of up to a) sepmresetaromene am were nae 9a Section 207 imposes two types of warranty obligations on manufacturers which are directly related to the stand- ards issued in section 202. First it requires manufac- turers to warrant to purchasers that each new motor ve- hicle is designed, built, and equipped to conform to the section 202 standards, and further to warrant that each is free of defects in materials and workmanship which cause a motor vehicle to fail to conform to the standards for their useful life. Jd. § 7541(a).®° This is the defect warranty. Second, it provides that the Administrator shall impose a “performance warranty” on manufacturers whereby manufacturers will bear the costs of remedying any nonconformity with section 202 emission standards on vehicles maintained in accordance with the written maintenance instructions required by the statute. Jd. § 7541(b).2° The written maintenance instructions, which $10,000 for violations of this prohibition. Jd. § 7524. In addi- tion to prescribing the certification process, section 206 au- thorizes the Administrator to develop “test procedures” to determine whether motor vehicles under production actually conform to the standards pursuant to which the certificate of conformity was issued. If these tests reveal that the manu- factured vehicles do not so conform, the Administrator is em- powered to suspend, revoke, or modify the certificate. Jd. 7525 (b). ®*Section 207 refers to section 202 for its definition of “useful life.” 42 U.S.C. § 7541(a) (Supp. I 1977). Section 202 defines the useful life of light duty vehicles (and engines) and of “other motor vehicles” (and engines) as five years or fifty thousand miles, whichever first occurs. Jd. § 7521(d). The Administrator can make an upward adjustment in the useful life of “other motor vehicles” if he determines that a period of greater duration or mileage is appropriate. Jd. 10 Before imposing a performance warranty the Adminis- trator must first determine that there are methods and pro- cedures which accord with good engineering practices and which are capable of correlation to the certification process that can ascertain whether new motor vehicles in actual use comply with the section 202 standards for their useful life. 10a manufacturers must furnish with each new motor vehicle, must conform to regulations promulgated by the Admin- istrator. Id. §7541(c)(3). If the purchaser fails to comply with the written instructions it relieves the manu- facturer of his performance warranty obligations.” By virtue of the unique status it enjoys under section 209 of the Clean Air Act, California has an emissions control program that parallels the federal program in many respects. This litigation grew out of a decision made by the California Air Resources Board (CARB), which is California’s version of the federal EPA in the area of emissions control regulations. In May 1977, the CARB adopted regulations limiting the amount of sched- uled maintenance that can be performed on the proto- type used in the durability testing during California’s certification process."* No party in this court challenges 42 U.S.C. §7541(b) (Supp. I 1977). The performance warranty like its counterpart runs to the ultimate and any subsequent purchaser. Jd. Whereas section 202’s defi- nition of useful life governs the duration of the defect warranty, however, the performance warranty applies to the entire “emission control device or system” only for twenty- four months or twenty-four thousand miles, whichever first occurs. Jd. The performance warranty thereafter applies only to “a catalytic conveter, thermal reactor, or other component installed on or in a vehicle for the sole or primary purpose of reducing vehicle emissions.” 7d. 11 At the time this controversy arose, the Administrator had not yet made the requisite findings and thus had not pro- mulgated regulations governing maintenance instructions. See 43 Fed. Reg. 32182, 32184 (1978). 12 The regulations restrict the scheduled maintenance to the inspection, replacement, cleaning, adjustment, or service, at specified intervals, as follows: drive belt tension (at 30,000 miles), exhaust gas sensor (30,000), spark plugs (30,000), choke lubrication (30,000), and valve lash (15,000). If the manufacturer can show that such maintenance is actually done in use, it may additionally schedule maintenance for the OES cAI rs ere ee ete me ae lla the application of these maintenance restrictions to the certification process. Rather the object of challenge is the CARB’s simultaneous decision to limit the maintenance a manufacturer can require of purchasers in the written instructions manufacturers must furnish with each new motor vehicle. Under these “in-use maintenance regula- tions,” a manufacturer cannot require a purchaser to per- form maintenance beyond that which a manufacturer can perform during the certification process.'* The furnishing of written instructions which abide by the in-use main- tenance regulations is a condition precedent to the initial retail sale of new motor vehicles in California. The regulations also define the manufacturers’ warranty obligations. Foreshadowing the CARB’s decision to adopt the regu- lations was a series of public hearings and workshops the CARB held to discuss proposed regulations limiting certification and in-use maintenance. At the first of these meetings, held in November 1976, the major topic was a engine idle speed, the valve lash, and the engine bolt torque at 5,000 miles. California Exhaust Emission Standards & Test Procedures {| 3f (1978), reprinted in Joint Appendix Statutory Supplement (J.A.S.S.) at 263-65. These regula- tions apply to 1980 and subsequent model year gasoline- powered passenger cars and to 1981 and subsequent model year gasoline-powered light duty trucks and medium duty vehicles. Jd. The regulations are incorporated by reference in 13 Cal. Admin. Code § 1960(c). 8 See note 12 supra. The one difference is that for in-use maintenance the CARB’s Executive Officer can approve addi- tional in-use maintenance requirements which he finds neces- sary to account for extreme driving conditions or to ensure safe operation. California Exhaust Emission Standards & Test Procedures {| 3g (1978), reprinted in J.A.S.S. at 267-68; see Amendments to California Exhaust Emission Standards & Test Procedures, "1 (1979), reprinted in Joint Appendix (J.A.) at A110; note 18 infra. 12a CARB staff report which stated that “[d]ata available from emissions testing of in-use vehicles show that the degree of emission control which was demonstrated dur- ing the certification program is not being realized.” " The staff contended that one of the reasons the emissions systems on in-use vehicles were not controlling emissions as they had during certification was improper mainte- nance on emission-related parts. The staff suggested that by lowering the amount of maintenance that needed to be done on in-use vehicles, the CARB could reduce the risks of improper maintenance and encourage the production of more durable emission-related parts. This staff report contained recommendations on the amount of maintenance that ought to be allowed, but owing to objections by manufacturers the CARB deferred any decision on the proposals. Over the next six months, the CARB staff studied the problem further, -concentrat- ing particularly on the questions raised by manufactur- ers about the technological feasibility of limiting main- tenance on various parts.’® The final recommendations 14 California Air Resources Board, Staff Report No. 76-22-2 (b), 1 (November 23, 1976), reprinted in J.A. at 102. 15 In December 1976, the CARB conducted workshops for members of its staff and representatives of the motor vehicle manufacturers and parts and services industry. Although the staff concluded after these workshops that the statements of manufacturers “support most of the reduction in allowable maintenance... proposed by the staff,” it concluded that addi- tional study on technological feasibility and related problems was necessary before any final decision on the proposals. Cali- fornia Air Resources Board, Supplement to Staff Report No. 76-22-2(b), 10-11 (December 14, 1976), reprinted in J.A. at 124. Many of the manufacturers’ objections related to the CARB staff’s use of a study on technological feasibility based only on mileage (as opposed to mileage and time) intervals. See text accompanying notes 62-63 infra. Acting on the staff recommendation, the CARB postponed consideration of the in-use maintenance regulations. California Air Resources A AO ts NACA BA ai on the at 13a the staff made to the CARB significantly altered the staff’s earlier recommendations on the amount of main- tenance a manufacturer could require of motor vehicle purchasers.'* The CARB solicited comments from manu- facturers and other interested parties on these proposals. After formally adopting the regulations the CARB wrote to the EPA requesting a waiver pursuant to sec- tion 209. In accordance with the statute the Administra- tor conducted a public hearing at which all interested parties were invited to offer testimony for and against the waiver request. After this hearing was held, Con- gress amended the Clean Air Act, altering among other things the waiver provision.” The Administrator an- nounced that he would conduct another hearing to ex- plore the implications of these amendments for the CARB’s regulations. In the interim, the CARB adopted a resolution in which it found that the maintenance reg- Board, Minutes of Meeting 76-23, 1 (December 14, 1976), reprinted in J.A. at 112. In January 1977, the CARB staff sent out questionnaires soliciting information on technological feasibility. In April, the staff issued another report in which it significantly altered the proposed maintenance restrictions. See note 16 infra. Pub- lic hearings were held on the proposals in April and in May. '® See California Air Resources Board, Staff Report No. 77-12-1, 17 (May 26, 1977), reprinted in J.A. at 178. These recommendations did not significantly differ from those ad- vanced in Apri]. See California Air Resources Board, Staff Report No. 77-9-2, 17 (April 28, 1977), reprinted in J.A. at 142. The original staff recommendations would have limited maintenance to the adjustment of the valve lash at 15,000 miles and the air filter at 30,000 miles. See California Air Resources Board, Staff Report No. 76-22-2(b), 8 (November 23, 1976), reprinted in J.A. at 109. ‘Clean Air Act Amendments of 1977, Pub. L. No. 95-95, § 207, 91 Stat. 755. The 1977 amendments applied to pending waiver requests. See 42 Fed. Reg. 45942 (1977), reprinted in J.A. at 52-54. 14a ulations “individually and collectively” met the require- ments imposed by the amendments.’* The CARB intro- duced this resolution and the accompanying staff report at the secofd EPA hearing on the waiver request. 18 California Air Resources Board, Resolution No. 77-48, 4 (September 29, 1977), reprinted in J.A. at 279. This resolu- tion was based on a staff report which concluded that the in- use maintenance regulations, when coupled with other revi- sions in the State’s emissions control program, would result in identifiable emissions benefits. California Air Resources Board, Staff Report No. 77-20-2, 24 (September 12, 1977 3 reprinted in J.A. at 229. See note 59 infra. A large portion of the manufacturers’ complaints about the in-use maintenance regulations rested on the CARB’s original decision to restrict what a manufacturer could recommend to —as opposed to require of—motor vehicle purchasers. The manufacturers reasoned that they ought to be able to suggest any maintenance they believed reasonable and necessary. In response to these criticisms, the CARB in February 1979 de- cided to adopt emergency amendments to its in-use mainte- nance regulations to clarify what a manufacturer could and could not include in the written instructions. See California Air Resources Board, Notice of Public Hearing, 1 (February 22,1979), reprinted in J.A. at A104. These regulations permit the manufacturers to recommend additional maintenance as long as they make clear that this recommended maintenance is not required. Amendments to California Exhaust Emission Standards & Test Procedures § 1 (1979), reprinted in J.A. at A110; see California Air Resources Board, Staff Report [Un- numbered], 2-3 (March 2, 1979), reprinted in J.A. at A117-18. The regulations were formally confirmed by the CARB after oral argument in these cases. See Joint Supp. Memo of Peti- tioners at 5-6. As the dates indicate, the emergency amendments post-dated the Administrator’s waiver decision and thus obviously played no part in it. Some of the petitioners therefore argue that the regulations are not properly before this court. It is basic that agency action cannot be sustained on the basis of information not relied upon by the agency or disclosed in its record of consideration. Gulf State Utilities Co. v. FPC, 411 U.S. 747, 764 (1973). Although this court has sanctioned at nt se Bae aerate naeen AOS ate ER A SO SE BA Set 15a Nine months after the second hearing the Adminis- trator announced his decisicn to waive federal preemp- tion of the in-use maintenance regulations. He offered two basic reasons for his decision. First, he said, there was no plausible evidence in the record to indicate that California’s new in-use maintenance regulations would impair the ability of California’s emission standards— for which a waiver had already been granted—to protect the public health and welfare at least as ably as the cor- responding federal standards. Second, he said, the manu- facturers had failed to show that adherence to the regula- tions would be technologically infeasible, the costs of com- pliance considered. The Administrator concluded that lacking such evidence he had no alternative but to grant the waiver request. These petitions ensued. supplementation of the record in certain circumstances, see Amoco Oi] Co. v. EPA, 501 F.2d 722, 729 n.10 (D.C. Cir. 1974), the practice decidedly is the exception not the rule. The problem here, however, is very different from the situa- tion in which the agency seeks to support an unchanged agency rule or order of continuing effect with new evidence never tested in the administrative process. Rather here there is a fundamental change in the state of affairs: the regulations to which petitioners primarily object no longer exist. A cor- nerstone of our jurisprudence is that an Article III court does not sit to issue advisory opinions on abstract questions. Were we to ignore the public record of the CARB’s amend- ments we would in effect be deciding a hypothetical question Consequently, taking judicial notice of the CARB amendments, we hold that insofar as petitioners’ claims pivot on the ear- lier restrictions on what manufacturers could recommend to (as opposed to require of) vehicle owners, these claims are moot. Cf. EPA v. Brown, 431 U.S. 99, 103 (1977) (per curiam) (subsequent change in effect of regulati controversy moot). ulations renders 16a II STANDARD OF REVIEW At the outset we note the modest scope of our inquiry. Three points bear emphasis. First, our review here is of the Administrator’s decision to waive federal pre- emption for the State of California, not of California's decision to adopt the in-use maintenance regulations. Our concern is whether a federal officer properly dis- charged his responsibilities under a federal statute. If petitioners dislike the substance of the CARB’s regula- tions, or if they believe the procedures the CARB used to enact them were unsatisfactory, then they are free to challenge the regulations in the state courts of Cali- fornia. Second, section 706 of the Administrative Procedure Act, 5 U.S.C. § 706 (1976), governs our examination of whether the Administrator properly discharged his re- sponsibilities under section 209. Ascaro v. Environmental Protection Agency, 578 F.2d 819, 325 (D.C. Cir. 1978) ; National Association of Demolition Contractors, Inc. v. Costle, 565 F.2d 748, 750 n.1 (D.C. Cir. 1977). This means we must uphold the Administrator’s action un- less we find that it is “ ‘arbitrary and capricious, ae or otherwise not in accordance with law’ or if [it] fails to meet statutory, procedural, or constitutional require- ments.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 414 (1971) (quoting 5 U.S.C. $706). We cannot substitute our judgment for that of the Administrator. Ethyl Corp. v. Environmental Protection Agency, 541 F.2d 1, 34 (D.C. Cir.) (en banc), cert. denied, 426 U.S. 941 (1976). We must instead pre- sume that the Administrator acted lawfully and so con- clude unless our thorough inspection of the record yields no discernible rational basis for his action. See Barrier Industries Inc. v. Eckard, 584 F.2d 1074, 1079 (D.C. Cir. 17a 1978) ; Appalachian Power Co. v. Environmental Pro- tection Agency, 579 F.2d 846, 851 (4th Cir. 1978). The Administrator must give reasoned consideration to the issues before him and reach a result which rationally flows from this consideration. If he does so, and pre- sents that rational basis in his decision, then his decision is not arbitrary and capricious. National Association of Food Chains, Inc. v. ICC, 585 F.2d 1808, 1314 (D.C. Cir. 1978) (per curiam) ; Greater Boston Television Corp. v. FCC, 444 F.2d 841, 851 (D.C. Cir. 1970), cert. denied, 403 U.S. 923 (1971). Third, aware of the technical expertise and need for flexibility of administrative agencies, courts typically de- fer to a nearly contemporaneous construction of a statute by an agency charged with administering it. See Inter- national Brotherhood of Teamsters v. Daniel, 99 S.Ct. 790, 800 n.20 (1979); United States v. National Asso- ciation of Securities Dealers, 422 U.S. 694, 719 (1975). Applying this principle the Supreme Court has held that the EPA’s interpretation of the Clean Air Act is en- titled to considerable respect. Union Electric Co. v. Environmental Protection Agency, 427 U.S. 246, 256 (1978); Train v. Natural Resources Defense Council, Inc., 421 U.S. 60, 75 (1975). “The construction of a statute by those charged with its execution should be followed unless there are compelling indications that it is wrong.” Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 381 (1967); accord, Beal v. Doe, 482 U.S. 488 (1977) ; United States v. Burlington & Missouri River Railroad Co., 98 U.S. (8 Otto) 334, 341 (1879). For us to conclude that the Administrator misconstrued sec- tion 209 petitioners must show by clear and convincing evidence that his construction is unreasonable. Thus mindful of our restricted role, we turn to con- sider petitioners’ claims. Petitioners posit five basic ques- tions for decision. First, does section 209(b) empower the Administrator to consider a waiver of federal pre- 18a ° emption for the CARB’s in-use maintenance regulations? Second, if it does, what questions must the Administrator address before granting the waiver? Third, assuming the Administrator addressed the correct questions, how must he go about dealing with them? Fourth, if the Adminis- trator properly addressed the correct questions, 1s there a discernible rational basis for the decision he reached? Finally, does the Administrator’s decision to walve violate constitutional requirements? We examine these questions in turn. III THE SCOPE OF THE WAIVER POWER The first question for decision is whether section 209 empowers the Administrator to consider a waiver of federal preemption for California’s in-use maintenance regulations. Petitioners argue that the in-use mainte- nance regulations are not aimed at emissions control per- formance of new motor vehicles but instead purport to regulate in-use performance and post-sale obligations of manufacturers. As such, they contend, the regulations in- trude on the pervasive federal regulatory scheme em- bodied in section 207, 42 U.S.C. § 7541 (Supp. I 1977), and are not subject to waiver under subsection (b) of section 209. Petitioners acknowledge that absent some provision for waiver the regulations are preempted by subsection (a) of section 209. They thereby avoid any explicit suggestion that section 207 alone effects a pre- emption of the CARB’s in-use maintenance regulations and exclusively rely on a theory that subsection (b)’s waiver power is circumscribed by section 207. The Administrator rejected this claim on the ground that the only relevant preemption provision is the ex- press terms of subsection (a) and that whatever is pre- empted therein is subject to waiver under subsection (b). We agree. 19a Nothing in section 209 supports petitioners’ one-way approach to waiver of federal preemption for California. Subsection (b) provides that unless the Administrator makes certain findings he must “waive application of this section” to California. 42 U.S.C. $ 7548(b) (1) (Supp. I 1977) (emphasis added), reprinted in note 1 supra. The underscored phrase has no conceivable mean- ing other than to refer to subsection (a).’® Subsection (a) forbids any state from “adopt[ing] ,or attempt[ing] to enforce” standards relating to emissions from new motor vehicles, and from imposing any requirements re- lating to same as a “condition precedent” to the initial retail sale of motor vehicles. Jd. § 7543(a). California’s in-use maintenance regulations are attempts to enforce California’s emission standards, and compliance with the regulations is a condition precedent to the initial retail sale of motor vehicles in California. The in-use main- tenance regulations are, therefore, preempted by sub- section (a). Subsection (b) authorizes the Administra- tor to waive application of subsection (a) for California; it contains no suggestion that the scope of this authority ® Section 209 contains a subsection (c) and subsection (qd). See note 1 supra. Subsection (c) preempts states from cer- tifying automotive parts, 42 U.S.C. § 7543(c) (Supp. I 1977), which is part of Congress’ effort to lessen the anticompetitive consequences of the warranty obligations, see H.R. Rep. No. 294, 95th Cong., Ist Sess. 293-94 (1977). By its own terms subsection (c) does not apply to California. If anything, this tends to belie petitioners’ claims that Congress did not intend California to regulate in the post-sale warranty area as an incident to its power to adopt and enforce its own emission standards. Subsection (d) makes clear that the preemption provision is not intended to preempt state regulation other than as expressed in subsection (a). 42 U.S.C. § 7548(d) (Supp. I 1977). This too has consequences for petitioners’ argument. Petitioners suggest that the in-use maintenance regulations are not aimed at controlling emissions from new motor vehicles, but if this is so (and we hold it is not), then California need not even seek a waiver because subsection (d) preserves the field of regulation of old motor vehicles to state control ad initio. 20a is something other than that defined by subsection (a). Hence the Administrator is empowered to waive federal preemption for California’s in-use maintenance regulations. The plain meaning of the statute indicates that Con- gress intended to make the waiver power coextensive with the preemption provision. Petitioners’ efforts to re- duce the phrase “of this section” to a truism would, if successful, render the California waiver provision either meaningless or inffectual. First, if only the pervasiveness of section 207’s regu- lation of in-use performance is sufficient to restrict the Administrator’s waiver authority, there is no rea- son why on the same reasoning a comparable limi- tation could not be found in section 202’s pervasive reg- ulation of national motor vehicle emission standards or section 206’s pervasive regulation of the federal certifica- tion process. Sections 202, 206 and 207 are all integral parts of a comprehensive federal program; all three are equally treated in section 209(a). Yet were the Ad- ministrator to regard sections 202 and 206 as petitioners urge him to regard section 207, he would be powerless to consider waiving federal preemption for California's emission standards and certification process. This lack of power would render the waiver provision—and indeed the express preemption provision—mere surplusage.”° It 20 Petitioners’ argument about section 207 circumscribing the waiver power avoids, as noted, any direct suggestion that section 207 alone achieves an implied preemption of the in- use maintenance regulations. The argument, however, can fairly be characterized as an implied preemption claim in masquerade, and indeed the Administrator and the State of California understandably interpreted it as such in their submissions to this court. See Br. for Respondents at 29-32; Br. for Intervenors at 25-34. The obstacles facing a straight- forward implied preemption claim are formidable. First, there being an express preemption provision that clearly covers the challenged regulations, no need exists to turn to a theory of implication. Cf. City of Burbank v. Lockheed Air 2la is axiomatic that a statute must be construed to avoid that result so that no provision will be inperative or superfluous. See United States v. Menasche, 348 US. 528 (1955). Second, if instead petitioners divine the limit on the waiver authority from section 207’s particular area of regulation—in-use performance—then their argument is that Congress did not intend California to have any in- terest in emissions control once new motor vehicles leave the assembly line. Certainly section 209 makes no distinc- tion among different types of in-use performance regula- tion which operate as enforcement procedures and condi- tions precedent.*! Thus on petitioners’ reading the statute permits California to establish emission standards and certification procedures, but forbids it from ensuring that the standards are effective once the motor vehicle leaves the showroom. Yet the only time that a new motor ve- hicle is capable of polluting the environment is when it Terminal, Inc., 411 U.S. 624, 633 (1977) (examining implied preemption only after noting absence of express provision). - Second, the burden of demonstrating preclusion of state regu- lation by implication from federal regulation is a heavy one, see Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 146-47 (1963), and cannot be met by a mere showing of “the comprehensive character” of the federal scheme, see New York Dept. of Social Services v. Dublino, 413 U.S. 405, 415 (1973). Third, that burden is rendered ever more difficult here because section 116 of the Clean Air Act lists those pro- visions of the statute which Congress intended to reserve for exclusive federal regulation, and section 207 is not among them. 42 U.S.C. § 7416 (Supp. I 1977). Section 116 is not germane to our inquiry because it does list section 209 among those provisions preempting state regu- lation. The cases on implied preemption are relevant only in bolstering our conclusion that subsection (b) contains no im- plied restrictions on the Administrator’s power to consider waiver requests. 21 See note 19 supra. 22a is out on the road. The purpose of the Clean Air Act is to reach precisely that kind of pollution. Our duty is to “favor an interpretation wich would render the statu- tory design effective in terms of the policies behind its enactment and to avoid an interpretation which would make such policies more difficult of fulfillment, particu- larly where, as here, that interpretation is consistent with the plain language of the statute.” National Petro- leum Refiners Association v. FTC, 482 F.2d 672, 689 (D.C. Cir. 1973), cert. denied, 415 U.S. 951 (1974). The legislative history of section 209 supports the Administrator’s interpretation that the waiver provision is coextensive with the preemption provision, thereby per- mitting the Administrator to consider waiving preemp- tion of California’s entire program of emissions control.” No federal statute purported to regulate emissions from motor vehicles until 1965, when Congress enacted The Motor Vehicle Air Pollution Control Act, section 202 of which authorized the Secretary of Health, Education, and Welfare to prescribe emission standards.” Although signs appear in the legislative history that this enactment was intended to enhance uniformity in national efforts at 22 Petitioners complain that the Administrator cites no leg- islative history to support his use of the waiver power to permit the California in-use maintenance regulation. It is, however, the petitioners who bear the burden of demonstrat- ing that the Administrator’s interpretation of section 209 is unreasonable. It is true that the legislative history of the waiver provision contains no direct reference to the issue of waiving in-use maintenance regulations, but legislative his- tory is not required to cover every aspect of a statute’s appli- cation. As we show, there are overwhelming indications in the legislative history that Congress intended California to enjoy the broadest possible discretion in selecting a complete program of emissions control, and not the slightest indication that it intended section 207 to qualify that discretion. 23 Pub. L. No. 89-272, § 202, 79 Stat. 992 (1965). ith ghia 23a pollution control,” the statute contained no express pre- emption provision. Consequently States generally felt free to adopt regulations in the field, and several states fol- lowed up the federal statute with regul their own.”® gulatory schemes of The states acting after 1965 were Johnnies-come-lately to the field compared to California, which had undertaken Statewide efforts as early as 1958.°° Congress’ entry into the field and the heightened state activity after 1965 *4 See, e.g., S. Rep. No. 192, 89th Con , . ; ; g., lst Sess. 5- ba H.R. Rep. No. 899, 89th Cong., Ist Sess. 5 pe A ee on H.R. 463 Before the Subcomm. on Public Health elfare of the House Comm. on Interstate & Foreign Com- mer Payer 89th Cong., Ist Sess. 281 (1965) (statement of Mr. *5 See generally Currie, Motor Vehicle Ai ion: Authority and Federal Preemption, 68 Mich. or a on (1971). As Professor Currie notes, these efforts were partly ya by the Supreme Court’s decision in Huron Port- and Cement Co. v. City of Detroit, 362 U.S. 440 (1960), which rejected an implied preempti ’ regulation of air pollution. Pp ption claim based on federal ° California’s interest in pollution co ntrol from m i- Pas dates to 1946. Stevens, Air Pollution and a ro em: Responses to Felt Necessities, 22 Hastings L.J. 661 we ( bien Comprehensive statewide efforts began in 1957, piers bend aed incor — Pan apace control boards the \ prescribe standards for emission control i digg ping Pe 7 of unapproved devices. otnary a p. , (former Cal. Health & S ; § 24263.7). This was followed b j a \ ( y the authorizati oe of statewide standards, 1959 sity oA Me 200 (former Cal, Health & Safety Code § 426.5), anda cer. ure, al. Stats., chap. 23, $1 an ie ee eek 24386). The Senate Noho ; or | > Air Pollution Control Act ob California “leads in the establishment of Preset omar lation of automotive pollutan Foc} ” 89th Cong., 1st Sess. § (1968 ‘ emissions.” S. Rep. No. 192, 24a raised the spectre of an anarchic patchwork of federal and state regulatory programs, a prospect which threat- ened to create nightmares for the manufacturers.** Act- ing on this concern, Congress in 1967 expressed its in- tent to occupy the regulatory role over emissions control to the exclusion of all the states—all, that is, except California. As originally introduced in the Senate the Air Quality Act of 1967 did not contain an express preemption provision,“* though the topic of preemptien quickly arose and immediately became the object of intense de- bate.2” The debate sharpened the differences between the states, which wanted to preserve their traditional role in regulating motor vehicles, and the manufacturers, which wanted to avoid the economic disruption latent in having to meet fifty-one separate sets of emissions con- trol requirements. The bill that emerged from the Senate Committee contained a compromise: Subsection (a) pre- empted state programs of emissions control for new motor vehicles; subsection (b) provided an exception for Cali- fornia if that State determined that its standards would be “more stringent” than applicable federal standards.® The Senate Committee explained: On the question of preemption, representatives of the State of California were clearly opposed to dis- placing the State’s right to set more stringent stand- 27 This prospect never materialized. The federal govern- ment did not make its first standards applicable until the 1968 — model year. 45 C.F.R. § 85.1-.87 (1967). By that time, Con- gress had already enacted the express preemption provision. 28 See Hearings on Automotive Air Pollution Before the Subcomm. on Air and Water Pollution of the Senate Comm. on Public Works, 90th Cong., Ist Sess. 8 (1967). 2® Jd. at 13-14 (statement of W. Donn); id. at 107 (state- ment of D. Coston); id. at 403 (statement of T. Mann). 30S. Rep. No. 403, 90th Cong., Ist Sess. 81 (1967). 25a ards to meet peculiar local conditions. The auto in- dustry conversely was adamant that the nature of their manufacturing mechanism required a single national standard in order to eliminate undue eco- nomic strain on the industry. The committee has taken cognizance of both of these points of view. Senator Murphy convinced the committee that California’s unique problems and pioneering efforts justified a waiver of the pre- emption section to the State of California. S. Rep. No. 403, 90th Cong., 1st Sess. 338 (1967) (em- phasis added). Thus the Committee that formulated the waiver pro- vision understood the costs involved in making an excep- tion for California and decided to recommend that these costs be absorbed by allowing a waiver not of part of the preemption provision, but of the entire subsection (a). According to the Committee, the advantages of the Cali- fornia exception included the benefits for the Nation to be derived from permitting California to continue its experi- ments in the field of emissions control—benefits the Com- mittee recognized might “require new control systems and design,” id.—and the benefits for the people of Cali- fornia to be derived from letting that State improve on “its already excellent program” of emissions control, id. (emphasis added). There is no intimation in the Senate Committee report that the waiver provision was de- signed to permit California to adopt only a portion of such a program. The House accepted the Senate version.® 31 Not without a fight. See text accompanying note 51 infra. The battle over the waiver provision in the House did not turn on the scope of the waiver power, however, and the de- bate on the floor of the House indicates that the members shared the Senate’s conviction that the waiver provision was intended to permit California to adopt an entire program of emissions control. See, e.g., 1138 Cong. Rec. 30950 (1967) 26a Congress had an opportunity to restrict the waiver provision in making the 1977 amendments, and it instead elected to expand California’s flexibility to adopt a com- plete program of motor vehicle emissions control. Under the 1977 amendments, California need only determine that its standards will be “in the aggregate, at least as pro- tective of public health and welfare than applicable Fed- eral standards,” rather than the “more stringent” stand- ard contained in the 1967 Act.** This change originated in the House. The House Committee Report explained: (remarks of Rep. Springer); id. at 30948 (remarks of Rep. Staggers). When the Senate considered the conference version of the Air Quality Act of 1967, only one comment was directed at the waiver provision, and this by its original sponsor: It was concern for allowing California to continue its pioneering efforts in the field of air pollution that led to the amendment [on waiver]... . . .. I am firmly convinced that the United States as a whole will benefit by allowing California to continue setting its own more advanced standards for control of motor vehicle emissions. In a sense, our State will act as a testing agent for various types of controls and the country as a whole will be the beneficiary of this re- search... . Our State intends to continue its efforts to eliminate air pollution without letup and asks only that no roadblocks be put in its path. Id. at 32478 (remarks of Sen. Murphy). 82 Clean Air Act Amendments of 1977, Pub. L. No. 95-95, § 207, 91 Stat. 755. The intent of the 1977 amendment was to accommodate California’s particular concern with oxides of nitrogen, which the State regards as a more serious threat to public health and welfare than carbon monoxide. Califor- nia was eager to establish oxides of nitrogen standards con- siderably higher than applicable federal standards, but tech- nological developments posed the possibility that emissicn control devices could not be constructed to meet both the high California oxides of nitrogen standard and the high federal 27a The Comrnittee amendment is intended to ratify and strengthen the California waiver provision and to affirm the underlying intent of that provision, i.e., to afford California the broadest possible discretion in selecting the best means to protect the health of its citizens and the public welfare. H.R. Rep. No. 294, 95th Cong., 1st Sess. 301-02 (1977) (emphasis added). This language appears in the same House Report that elaborately describes section 207’s regu- latory format. The Report is barren of an indication that Congress intended to confine California’s discre- tion to the adoption of emission standards, certification processes, and test procedures.** Since the inception of the federal government’s emis- sions control program it has drawn heavily on the Cali- fornia experience to fashion and to improve the nationa! efforts at emissions control.** The history of congressional consideration of the California waiver provision, from its original enactment up through 1977, indicates that Con- carbon monoxide standard. Under the 1967 waiver provision, each California standard had to be “more stringent” than the corresponding federal standard. Hence Congress amended the waiver provision to require only that the California stand- ards in the aggregate were at least as protective of public health and welfare as applicable federal standards. This per- mits the State to maintain a high standard for oxides of nitro- gen but a standard for carbon monoxide somewhat lower than the federal standard. 33 See note 19 supra. %* The first federal emission standards were largely bor- rowed from California, for example. See S. Rep. No. 403, 90th Cong., Ist Sess. 32 (1967) ; Willens, The Regulation of Motor Vehicle Emissions, 3 Nat. Res. Lavryer 120, 123-24 (1970). The 1977 standards also drew heavily on the California ex- perience in the ten years since enactment of the first waiver provision. See 123 Cong. Rec. H4852 (daily ed. May 21, 1977) ; id. at H5061 (daily ed. May 25, 1977). 28a gress intended the State to continue and expand its pioneering efforts at adopting and enforcing motor ve- hicle emission standards different from and in large measure more advanced than the corresponding federal program; in short, to act as a kind of laboratory for in- novation. Had Congress wanted to limit California’s role to forbid its adoption of any program comparable to the federal scheme in section 207, it could have easily done so. It did not. For a court to do so despite the absence of such an indication would only frustrate the congressional in- tent. We therefore are unable to find compelling indications in the text of the statute, in its legislative history, or in its underlying intent that the Administrator’s interpre- tation of the waiver provision is wrong. We accordingly hold that section 209(b) empowers the Administrator to consider a waiver request for in-use maintenance regula- tions. IV WAIVER CONSIDERATIONS The second question for decision requires us to deter- mine the substantive matters the Administrator must address in considering a request for a waiver of in-use maintenance regulations. It is the petitioners’ view that the Administrator neglected to address certain statutor- ily-prescribed matters, and, in addition, that he improp- erly declined to examine the constitutional and antitrust implications of the in-use maintenance regulations. The Administrator contends that he addressed all questions the statute requires him to address, and that the con- stitutional and anti-trust implications of the CARB reg- ulations are beyond the scope of his review in a waiver proceeding. We essentially agree with the Administra- tor’s position. 29a A. Section 209(b) Considerations As noted, subsection(b) requires the Administrator to waive application of subsection (a) if California deter- mines that its standards are at least as protective of the public health and welfare as applicable federal standards. A grant of the waiver is not necessarily automatic, how- ever. Subsection (b) says that the Administrator shall not grant the waiver request if he finds (1) that Cali- fornia’s determination of protectiveness was arbitrary and capricious; (2) that California does not need the standards to meet compelling and extraordinary circum- stances; and (8) that the standards and accompanying enforcement procedures are inconsistent with section 202 (a) of the Clean Air Act, which as indicated requires the Administrator’s standards to be technologically feasible. The parties agree that if the Administrator makes any one of these findings with respect to a waiver request involving California “standards” he must deny the re- quest. In his waiver decision, however, the Administrator characterized the in-use maintenance regulations as “ac- companying enforcement procedures” rather than as “standards.” According to him, the word “standards” connotes a numerical value setting the quantitative level of permitted emissions of pollutants by a new motor ve- hicle. Thus for example a regulation limiting motor ve- hicle emissions of carbon monoxide to 3.4 grams per mile is in his view a “standard.” The Administrator says that “accompanying enforce- ment procedures,” on the other hand, are criteria de- signed to determine compliance with applicable standards, and that the in-use maintenance regulations, being rele- vant to the manufacturers’ ability to produce motor vehicles which will comply with the standards for their useful life, are properly classified as enforcement meas- ures. The Administrator notes that section 209(b) re- fers to accompanying enforcement procedures only in the context of consistency with section 202(a). On this 30a basis he concludes that in a waiver proceeding involving enforcement procedures tied to standards for which a waiver has already been granted the only questions he must address are (1) whether the enforcement procedures are so lax that they threaten the validity of California’s determination that its standards are as protective of public health and welfare as applicable federal standards and (2) whether the enforcement procedures are con- sistent with section 202(a). Petitioners insist that the in-use maintenance regula- tions are “standards.” They say that a “standard” re- fers to any criteria with which the manufacturers must comply. Alternatively, they contend that however the in- use maintenance regulations are labeled, the Adminis- trator must address each of the three statutory questions in every waiver proceeding. Thus they believe that the Administrator must deny the waiver if he finds that Cal- ifornia acted unreasonably in concluding that the in-use maintenance regulations were as protective of the public health and welfare as federal regulations, or that the in- use maintenance regulations are not needed to meet com- pelling and extraordinary local conditions. We need not resolve here the meaning of the word “standards” as it is used in every section of the Clean Air Act; our inquiry is confined to its use in section 209.*° In that setting we believe that the Administrator 85 For this reason we find unpersuasive petitioners’ sug- gestion that section 302(k) of the Clean Air Act, 42 U.S.C. § 7602(k) (Supp. I 1977), which contains a definition of “emission standards,” controls our examination of the mean- ing of the word “‘standards” in section 209. Section 302(k)’s definition was not enacted until ten years after the original waiver provision, and it was developed in the context of regulating emissions from stationary sources. The Conference Report on the 1977 amendments, which explained many of the differences between the Senate and House versions of the 1977 bill, strongly intimates that the definition applies only in the stationary source context. See H.R. Rep. No. 564, 95th Cong., 3la correctly classified the in-use maintenance regulations as “accompanying enforcement procedures” rather than as “standards.” Petitioners’ definition would eliminate the concept of enforcement regulations as something distinct from a standard. Congress, however, clearly intended to make such a distinction in section 209. As noted, subsection (b) refers to “standards” and to “accompanying enforcement procedures.” Subsection (a) provides that no state shall “adopt or attempt to enforce standards.” These refer- ences to efforts at enforcement would have been unneces- sary if Congress intended that “standards” meant any regulation relating to motor vehicle emissions control. The legislative history also indicates that Congress in- tended the word “standards” in section 209 to mean quantitative levels of emissions rather than regulations involving certification or in-use maintenance restrictions. The Senate Report on the Air Quality Act of 1967, dis- cussing the preemption provision, mentions “standards” for hydrocarbons, nitrogen oxides, and carbon monoxide in obvious reference to the numerical limitations on those pollutants. S. Rep. No. 408, 90th Cong., 1st Sess. 32 (1967). In describing the changes made in the waiver provision in 1977, the House Report explains why dif- ferent quantitative “standards” might be necessary for California. H.R. Rep. No. 294, 95th Cong., 1st Sess. 302 (1977). This same report refers to the Administrator’s power to review California’s protectiveness determination, a determination which under the statute pertains to “standards,” as limited to determining whether “the State acted unreasonably in evaluating the relative risks Ist Sess. 172 (1977) (Conference Report). Moreover, as we explain, classifying the in-use maintenance regulations as “standards” would make it virtually impossible for California to enact such regulations, and this in turn would frustrate Congress’ intent to provide California with the broadest possible discretion in selecting the best means for protecting the public health and welfare. 32a of various pollutants in light of air quality, topography, photochemistry and climate in the State.” Jd. Numeri- cal values on allowable emissions allocate the relative risks of pollutants; regulations on allowable maintenance do not. The Administrator has consistently made a distinc- tion between standards and accompanying enforcement procedures, confining the former to regulations on quan- titative levels of emissions.** In construing the word “standards” in another section of the Clean Air Act, the Supreme Court defined the term as “a quantitative ‘level’ to be attained by the use of ‘techniques,’ ‘controls,’ and ‘technology.’”’ Adamo Wrecking Co. v. United States, 434 U.S. 275, 290-91 (1978). In light of these consider- ations, we cannot conclude that the Administrator’s defini- tion is unreasonable. We also agree with the Administrator that the distinc- tion between standards and accompanyinging enforcement procedures is a meaningful one in a waiver proceeding, at least when the latter relate to standards for which a waiver has already been granted. The statute itself only refers to enforcement procedures in connection with the consistency finding. Congress was certainly capable of adding the phrase “accompanying enforcement pro- 86 Petitioners claim otherwise, contending that the Adminis- trator in fact considered whether the in-use maintenance regulations were as protective of public health and welfare as applicable federal standards, an inquiry inappropriate under the Administrator’s analysis here. Petitioners misin- terpret what the Administrator did, however. He did not examine whether the in-use maintenance regulations were themselves as protective of public health and welfare as applicable federal standards. Rather he explored whether the procedures had a negative effect on the protectiveness of the California standards for which a waiver had already been granted. See 43 Fed. Reg. 32188 (1978), reprinted in J.A. at 56. This inquiry is perfectly consistent with the Adminis- trator’s past practice and his position in this court. 33a cedures” wherever the word “standards” appeared if it desired the statutory findings to apply to both. We see no reason to assume that its failure to do so is attributable to sloppy draftsmanship, particularly in light of indica- tions in the legislative history that the failure was a de- liberate one.*" Moreover, the differing treatment accorded standards and enforcement procedures in subsection (b) makes sense, and is consistent with the congressional intent to pro- vide California with the broadest possible discretion in adopting and attempting to enforce emissions standards. The protectiveness determination California must make to request a waiver and the rn ed finding the Administrator must make to deny one are both logically tied to air quality—that is, to conditions in the air which require the regulation of emissions in the first instance. These considerations are prerequisites to California’s establish- ment of its own program of emissions control. The only species of emissions control regulation which directly ad- dresses air quality is a standard. Only a standard de- scribes pollutants and allocates the various risks thereof. An enforcement procedure, by contrast, does not directly relate to air quality. A certification process without standards cannot protect public health; a particular spark plug change can never be justified by conditions in the en- vironment it does not alone directly affect. If the Admin- istrator was entitled to deny a waiver upon a finding that California did not need a particular enforcement pro- cedure to meet compelling and extraordinary conditions in California, it is unlikely that a contested waiver re- quest would ever be granted. Of course the absence or in- 87 The Senate Report on the original waiver provision, for example, explained that the only ground on which a waiver for accompanying enforcement procedures could be denied was if the procedures “are in conflict with the intent of Sec- vee 202(a).” S. Rep. No. 408, 90th Cong., 1st Sess. 33-34 1967). 34a effectiveness of an enforcement program might endanger the ability of the standards to accomplish the levels of emissions they seek, and thus an indirect relationship exists between enforcement procedures and the public health and welfare. Yet the relationship turns on the im- pact of the enforcement procedures on the effectiveness of the standards. Similarly, the imposition of enforcement procedures that cannot be met in light of technological de- velopments affects the manufacturers’ ability to certify motor vehicles that will control pollution for their useful lives. It is therefore logical to condition California’s flex- ibility to adopt enforcement procedures on the manufac- turers’ capacity to comply with the regulations the State prescribes. The Administrator has consistently treated standards differently than enforcement procedures in waiver pro- ceedings, and his decision to do so here thus comes as no surprise.** This differing treatment antedated the 1977 amendments, and it is noteworthy that Congress expressed general approval of the Administrator’s subsection (b) decisions in revising the waiver power. In light of these factors, we are unable to conclude that the Administrator acted unreasonably in limiting the considerations he must address. We accordingly hold that when considering a re- quest for waiver of in-use maintenance regulations per- taining to standards for which a waiver has already been granted the Administrator is not required to consider whether California reasonably determined that the regu- lations themselves are as protective of public health and welfare as applicable federal standards or whether the regulations themselves are needed to meet compelling and extraordinary conditions in California. His failure to 58 See, e.g., 43 Fed. Reg. 9244, 9345 (1978) ; 42 Fed. Reg. 3192, 3194 (1977) ; 41 Fed. Reg. 44209 (1977) ; 86 Fed. Reg. 17458 (1971). 3° H.R. Rep. No. 294, 95th Cong., 1st Sess. 301 (1977). 35a consider the factors here, therefore, is no basis for setting aside his decision.*® B. Constitutional Considerations Petitioners complain that the in-use maintenance regu- lations unconstitutionally burden their right to communi- cate with vehicle purchasers. They also maintain that the regulations alter statutory defenses and impose liabil- ity on manufacturers without fault in violation of the due process clause. We address the substance of these arguments at a later point, see Part VIII infra, and for now are concerned only with petitioners’ contention that the Administrator had an obligation to consider these contentions in considering whether to grant the waiver. It is petitioners’ position that the general principles of administrative law and procedure obligate the Adminis- trator to obey the Constitution and to be mindful of constitutional goals. According to petitioners, these ob- 40 Petitioners suggest that the Administrator was obligated to conduct a cost-effectiveness study on the in-use mainte- nance regulations as part of his examination of the “cost of compliance.” We disagree. As we note below, the “cost of compliance” consideration relates to the timing of standards and procedures. Here the Administrator noted on the record that the manufacturers did not challenge “[t]he CARB esti- mat[e] that the regulations would... resul[t] in a net cost benefit.” 43 Fed. Reg. 32184 (1978), reprinted in J.A. at 57. This is sufficient for the “cost of compliance” inquiry. In Portland Cement Co. v. Ruckleshaus, 486 F.2d 375, 394 (D.C. Cir. 1973), cert. denied, 417 U.S. 921 (1974), we rejected the cost-effectiveness requirement with these words: However desirable in the abstract, such a [study] re- quirement would conflict with the specific time con- straints imposed on the Administrator. The difficulty, if not the impossibility, of quantifying the benefit of ambient air conditions, further miltates against the im- position of such an imperative on the agency. This reasoning applies here as well. 36a ligations require the Administrator to pass on consti- tutionally-based challenges to the CARB regulations in deciding whether to waive federal preemption for them. As noted, the Administrator regards these constitutional issues as beyond the scope of his review. We think the Administrator was entitled to refuse to pass on petitioners’ constitutional claims.** That he like every other administrative officer owes allegiance to the Constitution does not mean that he is required to issue rulings of constitutional dimension. Resolving questions of constitutional scope is the most important of judicial functions, “one that even the judiciary is reluctant to exercise.” Panitz v. District of Columbia, 112 F.2d 39, 41 (D.C. Cir. 1940). Here the Administrator operates in a narrowly circumscribed proceeding requiring no broad policy judgments on constitutionally sensitive matters. Nothing in section 209 requires him to consider the con- stitutional ramifications of the regulations for which California requests a waiver. Cf. 47 U.S.C. § 326 (1976) (“no regulation or condition shall be promulgated or fixed by the [Federal Communications] Commission which shall interfere with the right of free speech’). Nor need he as an incident to his regulatory authority determine the constitutional applicability of the in-use regulations to particular individuals or circumstances. Compare Eisen v. Eastman, 421 F.2d 560 (2d Cir. 1969), cert. denied, 400 U.S. 841 (1970) with Plano v. Baker, 504 F.2d 595 (2d Cir. 1974). It is generally considered that the constitutionality of Congressional enactments is beyond the jurisdiction of ad- ministrative agencies. Weinberger v. Salfi, 422 U.S. 749, 765 (1975); Johnson v. Robinson, 415 U.S. 361, 368 41 We need not decide here whether the Administrator is authorized to deny a waiver on the ground that the proposed Cailfornia regulations are on their face violative of the Con- stitution. 37a (1974) ; L. Jaffe, Judicial Control of Administrative Ac- tion 438 (ab. ed. 1965). Although petitioners’ objections are not directed at the Clean Air Act,*? the rationale un- derlying the cases dealing with administrative power to consider challenges to statutes is useful in this context as well. The waiver proceeding produces a forum ill-suited to the resolution of constitutional claims. While nothing in section 209 categorically forbids the Administrator from listening to constitutionally-based challenges, petitioners are assured through a petition for review here that their contentions will get a hearing. Exhaustion of consti- tutional claims may on occasion be required by statute, see Weinberger v. Salfi, supra, or by principles of admin- istrative procedure if there is a possibility that the agency will decide in the litigant’s favor on nonconstitutional grounds, see Public Utilities Commission v. United States, 355 U.S. 534, 539-40 (1958). But when, as here, peti- tioners have exhausted their administrative remedies, a failure to have raised the constitutional claims before the Administrator would not bar them from asserting the claims to this court. We conclude that it was not error for the Administra- tor to decline to examine petitioners’ constitutional argu- ments against the in-use maintenance regulations. *2 This is only partly true. As noted, section 207 gives the Administrator the power to issue regulations governing in-use maintenance. 42 U.S.C. § 7541(c) (Supp. I 1977). The Ad- ministrator has not promulgated such regulations, and hence any constitutionally-based attack on section 207 and its offspring would be premature. Yet were the Administrator to pass on the constitutionality of the CARB’s in-use mainte- nance regulations, he would necessarily be passing on the constitutionality of the power Congress delegated to him in section 207. Thus if the Administrator accepted petitioners’ invitation, he would be indirectly violating the principle that administrative agencies generally have no jurisdiction to con- sider the constitutionality of their organic statutes, supra. Shey Petitioners additionally complain that the Administrator did not provide a “meaningful explanation” of his reasons for 38a C. Antitrust Considerations Petitioners ** insist that the in-use maintenance regula- tions are anticompetitive because they are designed to reduce the business available to the automotive parts and services industry and because they allegedly create a fi- nancial and psychological tie-in (via the warranty pro- visions) between vehicle purchasers and franchised deal- erships in the performance of in-use maintenance. They contend that the Administrator has a duty arising out of the Clean Air Act and general principles of administra- tive law to consider these claims of anticompetitiveness, and that his decision is unlawful owing to his failure to abide by that duty. As noted, the Administrator held that the antitrust implications of the in-use maintenance regulations were beyond the scope of his review. He did note, however, that the regulations were consistent with section 207, which contains expressions of congressional concern about certain potentially anticompetitive prac- tices.*5 ing on the constitutionally-based claims. This claim sy ielaeenne The Administrator stated that the cod tional arguments “are beyond the scope of my review, an e waiver hearing is not a proper forum in which to raise them. 43 Fed. Reg. 32185 (1978), reprinted in J.A. at 58 (citation omitted). Although succinct, this statement certainly ie municates the basis for the Administrator’s decision. m Belco Petroleum Corp. v. FERC, 589 F.2d 680, 686 n.6 (D. Cir. 1978). He was not required to insert an elaborate lega brief defending his position into the waiver decision. 44 See note 2 supra. 4543 Fed. Reg. 32184 (1978), reprinted in J.A. at 57-58. The strongest expression of the Administrator's concern ap- pears in his letter denying a request for reconsideration of another waiver decision. This letter is part of the record in these cases. Letter from Douglas Costle to Mark Joelson (No- vember 1, 1978), reprinted in J.A. at 1853-55. 39a Although we think the Administrator must be sensitive to section 207 concerns in approaching a waiver decision, we agree that he has no duty beyond that to consider claims of anticompetitiveness in a waiver proceeding. We base our agreement on three grounds. First, there is no such thing as a “general duty” on an administrative agency to make decisions based on fac- tors other than those Congress expressly or impliedly in- tended the agency to consider. The general principles of administrative law and procedure call upon an agency to give reasoned consideration to all facts and issues rele- vant to the matter at hand, but the determination of what is relevant turns in the first instance on analysis of the express language of the statute involved and the con- tent given that language by implication from the struc- ture of the statute, its legislative history, and the gen- eral course of administrative practice since its enactment. An administrative agency has no charter apart from the framework constructed by that analysis to enforce or otherwise consider whatever suits its or someone else’s fancy. See generally International Brotherhood of Team- sters v. Daniel, supra. Second, there is no express provision in section 209 or elsewhere in the Clean Air Act requiring the Ad- ministrator to assess general claims of anticompetitive- ness in his consideration of waiver requests. Section 209 nowhere explicitly refers to anticompetitiveness concerns. Elsewhere in the statute, section 317, 42 U.S.C. § 7617 (Supp. I 1977), requires the Administrator to prepare an economic impact statement investigating anticompetitive concerns before taking certain prescribed actions, but a _ Section 209 waiver is not included among these actions.“ ** Section 317 provides in pertinent part: Notice of proposed rulemaking; substantial revisions (a) This section applies to action of the Administrator in promulgating or revising— [Continued] 40a Even if it were, section 317 provides that nothing therein shall be construed to alter the basis on which any regu- lation is promulgated, to preclude the Administrator from carrying out his responsibilities to protect the public #6 [Continued] (1) any new source standard of performance un- der section 7411 of this title, (2) any regulation under section 7411(d) of this title, (3) any regulation under part B of subchapter I of this chapter (relating to ozone and stratosphere ' protection), (4) any regulation under part C of subchapter I of this chapter (relating to prevention of significant deterioration of air quality), (5) any regulation establishing emission stand- ards under section 7521 of this title and any other regulation promulgated under that section, (6) any regulation controlling or prohibiting any fuel or fuel additive under section 7545(c) of this title, and (7) any aircraft emission standard under section 7571 of this title. Nothing in this section shall apply to any standard or regulation described in paragraphs (1) through (7) of this subsection unless the notice of proposed rulemaking in connection with such standard or regulation is pub- lished in the Federal Register after the date ninety days after August 7, 1977. In the case of revisions of such standards or regulations, this section shali apply only to revisions which the Administrator determines to be sub- stantial revisions. Preparation of assessment by Administrator (b) Before publication of notice of proposed rulemak- ing with respect to any standard or regulation to which this section applies, the Administrator shall prepare an economic impact assessment respecting such standard or regulation. Such assessment shall be included in the 4la health and welfare, or to authorize a court to set aside an action of the Administrator on the ground that he failed to assess the economic impact of the action. Jd. § 7617(e). This last particularly signifies Congress’ intent that the docket required under section 7607(d) (2) of this title and shall be available to the public as provided in section 7607 (d) (4) of this title. Notice of proposed rulemaking shall include notice of such availability together with an explanation of the extent and manner in which the Ad- ministrator has considered the analysis contained in such economic impact assessment in proposing the action. The Administrator shall also provide such an explanation in his notice of promulgation of any regulation or standard referred to in subsection (a) of this section. Each such explanation shall be part of the statements of basis and purpose required under sections 7607 (d) (3) and 7607 (d) (6) of this title. Analysis (c) Subject to subsection (d) of this section, the as- sessment required under this section with respect to any standard or regulation shall contain an analysis of — (1) the costs of compliance with any such stand- ard or regulation, including extent to which the costs of compliance will vary depending on (A) the effec- tive date of the standard or regulation, and (B) the development of less expensive, more efficient means or methods of compliance with the standard or regu- lation; (2) the potential inflationary or recessionary ef- fects of the standard or regulation; (3) the effects on competition of the standard or regulation with respect to small business; (4) the effects of the standard or regulation on consumer costs; and (5) the effects of the standard or regulation on energy use. Nothing in this section shall be construed to provide that the analysis of the factors specified in this subsection affects or alters the factors which the Administrator is 42a Administrator’s decisions on air quality standards and related matters be immune from attacks like the one at bar. Third, nothing in section 209 or elsewhere in the Clean Air Act can fairly be read to imply a duty on the Ad- ministrator to deny a waiver on the basis of the anti- trust implications of California regulations. Petitioners profess to find such a duty in the “public health and welfare” language of sections 209 and 202(a) and in section 202’s requirement that. the Administrator give appropriate consideration to the “cost of compliance” with the standards. The “public health” provision, they insist, poses a duty comparable to that found in other ad- ministrative statutes that require agencies to take ac- required to consider in taking any action referred to in subsection (a) of this section. Extensiveness of assessment (d) The assessment required under this section shall be as extensive as practicable, in the judgment of the Administrator taking into account the time and resources available to the Environmental Protection Agency and other duties and authorities which the Administrator is required to carry out under this chapter. Limitations on construction of section (e) Nothing in this section shall be construed— (1) to alter the basis on which a standard or reg- ulation is promulgated under this chapter; (2) to preclude the Administrator from carrying out his responsibility under this chapter to protect public health and welfare; or (3) to authorize or require any judicial review of any such standard or regulation, or any stay or in- junction of the proposal, promulgation, or effective- ness of such standard or regulation on the basis of failure to comply with this section, 42 U.S.C. § 7617 (Supp. I 1977). * 43a count of the “public interest” in making decisions. The “cost of compliance” provision, they say, compels ap- propriate consideration of the “social costs” of pollu- tion control. We think these contentions stretch the effec- tive scope of those provisions well beyond their reason- ably inferrable reach. As our earlier discussion of the content of the word “standards” in section 209 intimated, the phrase “public health and welfare” is directly related to the effects of pollution on the environment. Congress enacted the Clean Air Act as an attempt to improve the quality of the air. This concern with pollution was not confined to its adverse effects on humans, but extended as well to its impact on the economy.*? The terms “public health and welfare” thus encompass economic values, but only to reflect the economic costs of pollution, not the social costs of pollu- tion control. This is evident in every context in which the terms appear. See, e.g., 42 U.S.C. § 7521(a) (Supp. I 1977) ; id. § 7543(b) ; id. § 7409(b) (2) ; id. § 7571 (a) (2); id. § 7401; id. § 7403(f) ; id. § 7405 (a); id. $ 7408 (a); wd. $7450. When Congress intended the Adminis- trator to go beyond the effects of pollution and examine as well the effects of pollution control it made its intent apparent. This is strikingly evident in section 317, which ‘7 The House Report on the 1977 amendments nc‘*ed: The committee recognizes that air pollution causes significant economic costs to the public by damaging health and welfare. Such costs include an increased in- cidence of illness, premature death, increased expendi- tures for health care and insurance and loss of tax reve- nues. Additionally, it causes damage to real estate and crops {and other vegetation), and could result in huge economic losses for tourist-related industries. While quantifications of these losses is obviously difficult, some estimates range as high as $16.1 billion annually (in 1968 dollars). H.R. Rep. No. 294, 95th Cong., Ist Sess. 34 (1977). ~~ _———_-s -_ -_—— » ——e lh _—_- ee Aaa carefully distinguishes between protection of the public health and welfare and concern with anticompetitiveness. See id. § 7617(e). Similarly, there is-no indication that Congress intended section 202’s “cost of compliance” consideration to em- body “social costs” of the type petitioners advance. Every effort at pollution control exacts social costs. Congress, not the Administrator, made the decision to accept those costs. Section 202’s “cost of compliance” concern, juxta- posed as it is with the requirement that the Adminis- trator provide the requisite lead time to allow techno- logical developments, refers to the economic costs of motor vehicle emission standards and accompanying enforce- ment procedures. See S. Rep. No. 192, 89th Cong., Ist Sess. 5-8 (1965); H.R. Rep. No. 728, 90th Cong., Ist Sess. 23 (1967). It relates to the timing of a particular emission control regulation rather than to its social im- plications. Congress wanted to avoid undue economic disruption in the automotive manufacturing industry and also sought to avoid doubling or tripling the cost of motor vehicles to purchasers. It therefore requires that emission regulations be technologically feasible within economic parameters. Therein lies the intent of the “cost of compliance” requirement. The cases petitioners cite in which the Supreme Court has imposed a duty to consider anticompetitive effects under general statutory directives to protect the “public interest” are inapposite here. Indeed they confirm our view that the general terms of a statute derive their content from the context in which the terms appear. The Supreme Court’s decision in Gulf States Utilities Co. v. Federal Power Commission, 411 U.S. 747 (1973), is instructive. That case involved section 204 of the Federal Power Act, which provides that no public utility _ shall issue a security “unless and until, and then only to 45a the extent that” the Federal Power Commission approved. 16 U.S.C. § 824e(a).** The Commission is authorized to approve an issue “only ‘if it finds that such issue... is for some lawful object, within the corporate purposes of the applicant and compatible with the public inter- est.’” 411 U.S. at 756 (quoting 16 U.S.C. § 824¢(a) ) (emphasis in original). Stressing this language, the Su- preme Court rejected the Commission’s view that it need not consider anticompetitive implications. The Federal Power Act, the Court explained, “was passed in the con- text of, and in response to, great concentrations of eco- nomic and even political power vested in public trusts, and the absence of antitrust enforcement to restrain the growth and practices of public utility holding companies.” Id. at 758. The Commission’s power was correspondingly “broad and impressive” and was intended to “curb abu- sive practices” and to “provide effective federal regula- tion of the expanding business” of selling electric power. Id. at 756, 758. Likewise, in Federal Maritime Commission v. Aktie- bolaget Svenska Amerika Linien, 390 U.S. 238 (1968), another case on which petitioners chiefly rely, the Su- preme Court approved the Federal Maritime Commis- sion’s reliance on antitrust policy to regulate shipping conference agreements under a public interest standard only after finding that reliance appropriate in light of the expressed congressional intent. Section 15 of the Shipping Act gives the Commission broad power to “dis- approve, cancel or modify any agreement, or any modi- fication thereof . . . that it finds to be unjustly discrimi- natory or unfair . .. or to operate to the detriment of the commerce of the United States, or to be contrary to ‘8 The Federal Power Commission is no longer in existence. Its responsibilities have been transferred to the Secretary of Energy, 42 U.S.C. § 7151 (Supp. I 1977), and the Federal Energy Regulatory Commission, id. § 7172. 46a the public interest.” 46 U.S.C. § 814. Agreements ap- proved by the Commission are exempt from the antitrust laws. Id. Taking its cue from the legislative history, the Supreme Court explained that Congress had concluded that the advantages of regular shipping service, uniform and stable rates, and efficient service could not be achieved in the face of unrestricted competition and had there- fore created the exemption. But, the Court said, the exemption was not an unqualified gift to the shipping industry; that is, it did not amount to 2 license to vio- late the antitrust laws when the object of the unlawful activity was unrelated to the goals the exemption was intended to serve. The Court said that Congress had authorized the Commission to disapprove agreements un- der the public interest standard on the ground that their anticompetitive implications outweigh benefits related to the statutory goals. Jd. at 242-46.* The EPA Administrator does not have authority to regulate either the motor vehicle manufacturing industry or the State of California under a broad charter to ad- vance the public interest. The phrase “the public in- terest” does not even appear in sections 202 and 209. The Clean Air Act does not have its genesis in congres- sional concern about business competition or antitrust matters. The motor vehicle manufacturers enjoy no ex- emption from the antitrust laws. As the Administrator has consistently held since first vested with the waiver authority, his inquiry under section 209 is modest in scape. He has no “broad and impressive” authority to modify California regulations. 49 The other cases to which petitioners refer do not warrant extended discussion. Like Amerika Linien, United States Lines, Inc. v. FMC, 584 F.2d 519 (D.C. Cir. 1978), involved the Shipping Act; like Gulf State Utilities, Northern Natural Gas Co. v. FPC, 399 F.2d 953 (D.C. Cir. 1968), involved the - Federal Power Act. Each of these cases turned on the broad “public interest” standard under which the FMC and the FPC 47a The Administrator’s decision to waive federal preemp- tion for the in-use maintenance regulations does no vio- lence to the concerns about anticompetitiveness reflected in section 207. Nothing in that section forbids encourag- ing the production of more durable emission-related parts. Congress’ intent was to prohibit manufacturers from re- quiring that maintenance on warranted parts be done by the manufacturer and franchised dealerships.*° The CARB’s regulations do not favor one segment of the parts and services industry over another; they are neu- tral on where the maintenance will be done. They will therefore have no direct effect on the vehicle owner’s decision to patronize the original equipment manufacturer or the aftermarket industry at the time any component needs to be replaced. Petitioners’ complaint is really with (now FERC) operate and on the legislative history of the statutes indicating congressional intent to include antitrust policy within the scope of that standard. McLean Trucking Co. v. United States, 321 U.S. 67 (1944), is clearly inapposite, for in that case the Court did not even have to imply the content of the ICC’s “public interest’? standard from the structure of the statute or its legislative history; Congress had expressly declared that antitrust policy was to be a fac- tor in the ICC’s determinations. See 321 U.S. at 82 & n.16. 50 The CARB’s regulations do not violate section 207 (c) (3) (B), which directs that the written instructions shall not include any condition on the ultimate pur- chaser’s using, in connection with such vehicle or engine, any component or service (other than < component or service provided without charge under the terms of the purchase agreement) which is identified by brand, trade, or corporate name; or directly or indirectly distinguish- ing between service performed by the franchised dealers of such manufacturer or any other service establishments with which such manufacturer has a ‘commercial rela- tionship, and service performed by independent automo- tive repair facilities with which such manufacturer has no commercial relationship. rs! U.S.C. § 7541(c)(3)(B) (Supp. I 1977); see note 68 infra. 48a the warranty obligations themselves, and they must ad- dress those complaints to Congress, which created the obligations, rather than to the Administrator. V THE WAIVER PROCEEDING We have determined that in a section 209 proceeding involving accompanying enforcement procedures relating to standards for which a waiver has already been granted the Administrator must address (1) whether the proce- dures endanger the protectiveness of California’s stand- ards and (2) whether the procedures are consistent with the intent of section 202(a). The next question for de- cision requires us to resolve how the Administrator must go about addressing these concerns. On petitioners’ analysis, section 209(b) imposes on California the burden of demonstrating that the waiver is lawful and further requires the Administrator to find on the record that California has met this burden. This last requirement, say petitioners, requires the Adminis- trator to find that the California regulations are not arbi- trary and capricious and are consistent with section 202 (a) before granting the waiver. The Administrator con- tends that those favoring denial of the waiver carry the burden of demonstrating that the waiver should not be granted, and that his obligation is to grant the waiver if that burden is not met. Our starting point is the statute. Subsection (b) be- gins: “The Administrator shall, after notice and public hearing, waive application” of federal preemption for California “if the State determines that the State stand- ards will be, in the aggregate, at least as protective of public health and welfare as applicable Federal stand- ards.” 42 U.S.C. §7543(b) (Supp. I 1977) (emphasis added). The only pre-waiver conditions this language 49a imposes are that the Administrator find that California has made a protectiveness determination and that he hold a public hearing. It does not require him to find that the standards are at least as protective of public health and welfare as applicable federal standards. It does not say he “may” grant a waiver once California makes the determination and he holds a public hearing. It instead contains an imperative to do an act—grant the waiver after a hearing—once California has made the protective- ness determination. The requirement of a public hearing is a clue that his task is something more than ministerial. The second sentence of subsection (b) confirms the suspicion. It provides that the Administrator must deny the waiver if he makes one of three findings—that the protectiveness determination (as opposed to the regulations which pro- tect) was arbitrary and capricious; that the State does not need the standards; or that the standard and en- forcement procedures are inconsistent with section 202 (a). It is not necessary for the Administrator affirma- tively to find that these conditions do not exist before granting a waiver. The statute does not say “the Ad- ministrator shall grant a waiver only if” he makes the negative of these findings. That he must deny a waiver if certain facts exist does not mean that he must in- dependently proceed to make the opposite of those findings before he grants the waiver regardless of the state of the record. If the Administrator has an obligation to deal with these factual findings it must arise out of the public hearing held to discuss them. The language of the statute and its legislative history indicate that California’s regu- lations, and California’s determination that they comply with the statute, when presented to the Administrator are presumed to’Satisfy the waiver requirements and that the burden of proving otherwise is oa whoever attacks them. California must present its reguletions and find- ings at the hearing, and thereafter the parties opposing 50a the waiver request bear the burden of persuading the Administrator that the waiver request should be denied. As noted, the legislative hirtory makes clear that the burden of proof lies with the parties favoring denial of the waiver. Petitioners lost the battle they now wage twelve years ago when Congress specifically declined to adopt a provision which would have imposed on Cali- fornia the burden to demonstrate that it met the waiver requirements. As noted, the Senate version of the Air Quality Act of 1967 contained the language which was ultimately adopted by Congress. It vested the power to make the protectiveness determination in California and sharply restricted the Secretary’s role in a waiver proceeding. The Senate Report explained that under the proposal the “Secretary is required to waive application unless he finds” one the factual circumstances set out in section 209(b) (1) (A)-(C). S. Rep. No. 403, 90th Cong., 1st Sess. 83 (1967) (emphasis added). The House Committee changed this arrangement. It was persuaded by the comments of manufacturers that the separate administration of two different sets of emis- sion regulations would unduly burden the industry. H.R. Rep. No. 728, 90th Cong., Ist Sess. 21-22 (1967). It therefore amended the Senate’s language to provide that the Secretary “may” waive application of the preemption provision “upon a showing by California” that its stand- ards were more stringent than applicable federal stand- ards. Id. at 22; see id. at. 69. In a separate statement accompanying the House Committee Report which ex- plained this amendment, two Representatives vigorously protested this chenge, complaining that it improperly placed the burden on California to demonstrate the value of the waiver and thereby undermined the importance of the California exception. Jd. at 96 (separate views of - Reps. Moss and Van Deerlin). Sla On the floor of the House one of these dissenting Com- mittee members offered an amendment to the bill which replaced the Committee language with the Senate pro- posal. 113 Cong. Rec. 30975 (1967) (remarks of Rep. Moss). The ensuing debate focused on the wisdom and need of requiring California to justify each of its emis- sion control regulations to a federal officer.*! At the close of the debate, the House adopted the amendment, there- by rejecting language which would have imposed the burden on California and accepting language which places the burden on those who allege, in effect, that the na- *t In their reply brief, petitioners suggest that the history of the 1967 enactment “is ambiguous on the question of the burden of persuasion,” citing one remark of “a supporter of the version of Section 209(b) adopted in 1967” to the effect that “California ‘would have the burden of proof.’” Joint Reply Br. of Petitioners at 19 n.12 (citing 113 Cong. Rec. 30979 (1967) (remarks of Rep. Harvey)). In fact, while remarks of some Congressmen are not always authoritative, the legislative history could not be less ambiguous on this question. The precise issue of the difference between the Senate and House versions of the bill as it related to the bur- © den of persuasion was carefully explained on the floor. See 113 Cong. Rec. 30950 (1967) (remarks of Rep. Holifield). After Rep. Moss offered his amendment to the House Com- mittee version, explaining that it contained “the same lan- guage, word for word, as was adopted unanimously by [the Senate],” td. at 30975, several other members again explained the difference between the House Committee version and the Senate version, specifically emphasizing that California car- ried the burden under the former but not the latter, see, €.9., 113 Cong. Rec. 30976 (1967) (remarks of Rep. Wilson); id. at 30977 (remarks of Rep. Roybal). The comment to which petitioners advert was made during the debate on the Moss amendment by a member who rose in opposition to that amendment, id. at 30979 (remarks of Rep. Harvey), and was part of his persistent effort to minimize the difference be- tween the two versions, see id. at 40952 (remarks of Rep. Harvey). The House found those efforts unconvincing, and we must abide by that judgment. 52a tional program is adequate to California’s needs. The Administrator has consistently adhered to that choice since then, see, e.g., 40 Fed. Reg. 30311, 30314 (1975), and Congress expressed general approval of the Adminis- trator’s waiver decisions in amending section 209 in 1977, see H.R. Rep. No. 294, 95th Cong., Ist Sess. 301 (1977). Petitioners have an opportunity to meet this burden at the hearing the Administrator must conduct before granting a waiver. If they have a case—if in fact the circumstances exist in which Congress declared that “no such waiver shall be granted”—then petitioners have nothing to fear, for the hearing cannot be and is not an idle exercise. The Administrator is not entitled to ignore the evidence adduced at the hearing. He must consider all evidence that passes the threshold test of materiality and he must thereafter assess such material evidence against a standard of proof to determine whether the parties favoring a denial of the waiver have shown that the factual circumstances exist in which Congress in- tended denial of the waiver. The standard of proof must take account of the nature of the risk of error involved in any given decision, and it therefore varies with the finding involved.** We need 52 It is noteworthy that this allocation of the persuasion burden is consistent with general principles governing allo- cation of burdens. Because section 209 requires the Adminis- trator to grant a waiver unless he makes certain findings, the denial of the waiver is the order to be promoted in a waiver proceeding. Proponents of an order usually bear the burden of showing the order is appropriate. See K. Davis, Adminis- trative Law Treatise § 6:15 (2d ed. 1978). Here petitioners are the proponent of the order denying the waiver. Similarly, the burden of proof typically follows the party in control of the relevant information. When technological feasibility is in issue, the manufacturers are the ones in possession of the relevant information. 88 International Harvester Co. v. Ruckelshaus, 478 F.2d 615, 642 (D.C. Cir. 1973) ; K.C. Davis, supra note 52, § 6:15. 53a not decide how this standard operates in every waiver proceeding. Since this proceeding involved enforcement procedures, the only findings of relevance are whether the procedures impact on California’s protectiveness determi- nation and whether they are consistent with section 202’s concern with technological feasibility. The Administrator held that there must be “clear and compelling evidence” to show that proposed procedures undermine the pro- tectiveness of California’s standards, and this holding has strong support in the legislative history.** It also accords with the congressional intent to provide California with the broadest possible discretion in setting regulations it finds protective of the public health and welfare. The Administrator did not expressly describe a standard of proof for the section 202(a) inquiry, but we have else- where held that the “preponderance of the evidence” standard governs inquiry into technological feasibility, and we do not understand the Administrator to dispute that measurement here. This standard accords with Con- gress’ intent to minimize economic disruption in manu- facturing. The public hearing on California’s waiver request, and the record displaying the evidence adduced therein, ensure that a court will be able to conduct meaningful review of the Administrator’s waiver decisions. This is the concern animating our decision in International Har- 54 The House Report on the 1977 amendments cautioned: The Administrator . . . is not to overturn California’s judgment ligntly. Nor is he to substitute his judgment for that of the State. There must be clear and compelling evidence that the State acted unreasonably in evaluating the relative risks of various pollutants in light of the air quality, topography, photochemistry, and climate in the State, before the EPA may deny a waiver. H.R. Rep. No. 294, 95th Cong., Ist Sess. 302 (1977). 55 International Harvester Co. v. Ruckelshaus, 478 F.2d 615, 642 (D.C. Cir. 1978). S4a vester Co. v. Ruckelshaus, 478 F.2d 615 (D.C. Cir. 1973), which each of the parties attempt to embrace as their own. In that case, the EPA denied an application for ion of emission standards sought under a pro- vision of the Clean Air Act which imposed on the ap- plicant the burden of demonstrating the unavailability of effective control technology. The statute explicitly placed the burden of persuasion on the applicants. The stand- ard of proof the applicants had to meet was a preponder- ance of the evidence. Noting that the applicants had submitted all the data in their possession and that the Administrator did not ask for more, the court was dis- turbed by the fact the Administrator had relied on his own methodology and predictions in arriving at a factual determination contrary to the applicants’ data. Believ- ing that the applicants had met the standard of proof with their data, the court held that the burden of proof shifted to the Administrator to demonstrate that his methodology and predictions were reliable. Jd. at 642-43. International Harvester’s reasoning represented neither a substantive judgment that the emission standards were in fact beyond current and projected technological capa- bilities nor a strictly procedural judgment that the burden shifts as it might in a normal civil trial setting. Rather the use of the burden of proof was meant to structure and facilitate judicial review. The burden “shifted” to the agency as a necessary incident of its obligation to give reasoned consideration to the issues before it. The Administrator, the court said, must sustain the “burden of adducing a reasoned presentation supporting the re- liability of the EPA’s methodology.” Id. at 643. That is, he had to explain why his methods were superior to the data the applicants had submitted and thereby ade- quate to support the agency’s rejection of the applicant’s data. Only with such an explanation could the court determine whether the Administrator had acted rea- sonably. 55a Here, too, if the Administrator ignores evidence dem- onstrating that the waiver should not be granted, or if he seeks to overcome that evidence with unsupported assertions of his own, he runs the risk of having his waiver decision set aside as arbitrary and capricious. His “burden” is the burden of acting reasonably.** *6 As we noted in the preface to our analysis, the Adminis- trator like every other administrative officer must give rea- soned consideration to the issues before him, but the extent of the consideration he is required to give depends on the statute under which he is operating. This principle explains why this case differs from those petitioners cite in support of their argument that the Administrator has an affirmative obligation to make negative findings. Thus, for example, our holdings that agencies required to prepare environmental impact statements under the National Environmental Policy Act cannot sit back, “like an umpire, and resolve adversary contentions” presented to them turn on the fact that NEPA places primary responsibility for its enforcement in the hands of the agencies. See State of Alaska v. Andrus, 580 F.2d 465, 473 (D.C. Cir. 1978) ; Calvert Cliffs’ Coordinating Committee, Inc. v. AEC, 449 F.2d 1109, 1119 (D.C. Cir. 1971). NEPA “states that every federal agency shall consider ecological factors when dealing with activities which may have an im- pact on man’s environment.” Zabel v. Tabb, 430 F.2d 199, 211 (5th Cir. 1970) (emphasis added). Similarly, in the other case petitioners cite, Citizens Committee to Save WEFM v. FCC, 506 F.2d 252 (D.C. Cir. 1974) (en banc), we held that the FCC’s performance of its regulatory role did not depend “upon the assiduousness” of private parties because the agency had a “mandate to approve applications consistent with the public interest.” Jd. at 262 n.21. These cases do not hold that regardless of the statute involved the agency always bears the burden of demonstrating a particular state of facts exist. Rather they turn on the special mandate involved. Here the Administrator has no broad mandate to assure that Cali- fornia’s emissions control program conforms to the Adminis- trator’s perceptions of the public interest. Absent the con- tingency that he is able to make contrary findings, his role with respect to the California program is largely ministerial. 56a VI THE WAIVER DECISION It remains to be seen whether there is a discernible rational basis for the Administrator’s decision to waive federal preemption for the in-use maintenance regula- tions. In light of the foregoing, this leaves two matters for consideration. First, did the Administrator reason- ably conclude that there was no clear and compelling evidence to show that the regulations would undermine the protectiveness determination California made with respect to the standards to which the regulations relate? Second, did the Administrator reasonably conclude that petitioners failed to meet their burden of demonstrating that the in-use maintenance regulations were inconsistent with the intent of section 202 (a) ? A. The Protectiveness Determination Almost all petitioners’ assertions on this point relate to the Administrator’s failure to explore whether the in- use maintenance regulations were themselves arbitrary and capricious, which as noted is not a question for the Administrator or this court. Once California has come forward with a finding that the procedures it seeks to adopt will not undermine the protectiveness of its stand- ards, parties opposing the waiver request must show that this finding is unreasonable. Petitioners claim to have done so, but we can find no evidence in the record to support that assertion. Petitioners refer to four documents in the record os- tensibly related to the effect of the standards on public health and welfare. The first is a letter from a rep- resentative of General Motors Corporation to the EPA which declares that the major issue in the waiver pro- ceeding ought to be whether California needed the in-use 57a maintenance regulations.” Setting aside the fact that this assertion relates to an inquiry not relevant to a waiver involving enforcement procedures, the statement itself is not evidence but an argument. The letter ad- vances General Motors’ “belief” that the in-use regula- tions might imperil the protectiveness of California’s standards, but it offers no evidence to support that belief. In light of the voluminous record developed before the CARB and the EPA, it is not unreasonable, if the claim were true, to expect that petitioners should be able to point to some data backing up that assertion. The second documert is also a product of General Motors and also predominately relates to the “need’’ in- quiry that is inapplicable to this proceeding.®* This docu- ment too fails to point to any evidence regarding the risks ostensibly attending the regulations and instead focuses on the allegedly flawed studies the CARB undertook to demonstrate the public health benefits of the in-use main- tenance regulations. There is certainly room for disagree- ment about the potential benefits of the in-use main- tenance regulations; the CARB staff conceded that it could not precisely identify the emissions-related benefits to be derived from the regulations alone.*® Moreover, 5? Letter from T.M. Fisher to Benjamin R. Jackson (August 26, 1977), reprinted in J.A. 1281-82 (cited in Joint Br. for Petitioners at 59, 65). 58 Genera] Motors Corp., Analysis of Reports Used by the California Air Resources Board to Support the Restricted Maintenance Regulations 5-8 (submitted to the EPA Febru- ary 1978), reprinted in J.A. at 1803-06 (cited in Joint Br. for Petitioners at 59, 65). 5° See California Air Resources Board, Staff Report No. 77-12-1, 19-28 (May 26, 1977), reprinted in J.A. at 180-89; California Air Resources Board, Staff Report No. 77-9-2, 21- 28 (April 28, 1977), reprinted in J.A. at 146-53. Coupling the other new regulations (such as inspection procedures) 58a there is room for disagreement about the exact meaning of the studies used by the CARB. But we cannot sub- stitute our judgment about this data for that of the offi- cials charged with interpreting it. The other two documents petitioners cite are similarly inadequate. One is an unsupported assertion made by a representative of the Ford Motor Company relating to the potential public health effects of the in-use main- tenance regulations.” The other has nothing to do with with its new maintenance regulations, the CARB staff pre- dicted a reduction in: hydrocarbons by 4 tons/day, carbon monoxide by 73 tons/day, and oxides of nitrogen by 8 tons/day in the South Coast Air Basin in 1990. These reductions repre- sent 1.5%, 2.59, and 0.5% of the total motor vehicle emissions at that time... . In addition, the proposed maintenance regulations will strongly enhance public acceptance for the [Motor Vehicle Inspection Program], and increase the chances for its success. California Air Resources Board, Staff Report No. 77-12-1, supra, at 28, J.A. at 189. We have no basis other than peti- tioners unsubstantiated say-so that this prediction is not trustworthy. 6o Environmental Protection Agency, Transcript of Public Hearing on California Waiver Request 133 (Aug. 3, 1977) (statement of Ms. Petrauskas), reprinted in J.A. at 3413 (cited in Joint Br. for Petitioners at 59). The following colloquy appears in the record immediately following this statement: MR. KRUSE [Member, EPA Hearing Panel]: What is your reaction to the data CARB presented which in- dicates your recommended maintenance is not being per- formed by the vehicle owners? MR. WEAVER [Emissions Planning Associate, Ford Motor Co.]: I guess we have to accept that some of that is true, and where it has been demonstrated that this lack of maintenance is contributing to air quality problems, 59a public health at all, but instead appears to be an exami- nation of the technological feasibility of the proposed regulations.” The Administrator did not specifically discuss any of these documents in: his waiver decision; he simply held that there was no evidence in the record to support a finding that the regulations undermined the protective- ness of the California standards. Having reviewed the documents petitioners insist suggest otherwise, we agree - with the Administrator. B. Technological Feasibility We find it necessary to address only three of the claims . petitioners advance under this heading.” we are doing everything we can to produce maintenance- free parts. MR. KRUSE: Do you have any data of your own which you can supply? MR. WEAVER: No. 61 General Motors Corp., Statement to the California Air Resources Board on Proposed Changes in Allowable Mainte- nance 8-10 (May 26, 1977), reprinted in J.A. at 3310-12 (cited in Joint Br. for Petitioners at 65). 82 We have already disposed of petitioners’ argument that the “cost of compliance” consideration requires the Adminis- trator to develop a cost-effectiveness study of the in-use main- tenance regulations. See note 40 supra. In a separate brief, intervenor The Automobile Importers of America (“AIA”) argues that the Administrator ignored the need of manufacturers of imported motor vehicles for adequate lead time to complv with the regulations. Its com- plaint is based on the fact that most importers have not yet begun to use breakerless high-energy ignition systems, which are important in extending the useful life of spark plugs and otherwise reducing the maintenance needed for other igni- tion parts. AIA refers to no evidence supporting its asser- tion that it will not have the adequate lead time to incor- 60a First, petitioners complain that the Administrator “failed to consider—and certainly did not address—the fundamental technological issue raised by the manufac- turers: the reliability of [the C]ARB’s methodology.” Joint Br. for Petitioners at 72. It is important in under- standing this claim to appreciate petitioners’ dilemma: The restrictions on allowable maintenance are the same in-use as they are during the certification process. Yet petitioners do not here challenge the applicability of the regulations to certification. They thus are in the posi- tion of having to argue that while it is technologically feasible to construct a prototyp [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1697%3A2. Public record. Not legal advice.