# Appendix — Chrysler Corp. v. United States Environmental Protection Agency

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1980
- **Citation:** 449 U.S. 1021

## Text

80-378 WT pmoets
No. SEP8 1980

i

{ MAICHAEL RODAK, Ji.
IN THE '

Supreme Court of the United States

OCTOBER TERM, 1980

CHRYSLER CORPORATION,
Petitioner,
V.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
and DouGLAs M. COSTLE, Administrator,
Respondents.

APPENDIX TO
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

JAMES A. HOURIHAN
GAIL STARLING MARSHALL
HOGAN & HARTSON
815 Connecticut Avenue, N.W.
Washington, D.C. 20006
(202) 331-4500

September 8, 1980 Attorneys for Petitioner

WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

INDEX TO APPENDIX

APPENDIX A

Opinion of the United States Court of Appeals for
the District of Columbia Circuit dated June 19,
1980, affirming the Decision and Order of the Ad-
ministrator of the United States Environmental
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APPENDIX B

The Decision and Order of the Administrator
of the United States Environmental Protection
Agency dated November 20, 1978, affirming the
Administrative Law Judge’s Order requiring
Chrysler to submit a plan for remedying the car-
bon monoxide nonconformities in the recall class
WO Sie iiss fDi aed fC Re aM Ne PRR

APPENDIX C

The Initial Decision, Findings of Fact and Conclu-
sions of Law and Order of the Administrative Law
Judge of the United States Environmental Pro-
tection Agency dated February 10, 1978 ................

APPENDIX D

Judgment of the United States Court of Appeals
for the District of Columbia Circuit dated June 19,
1980, affirming the November 20, 1978 order of the
Administrator of the United States Environmental
Po | REE Se Rae Peer ne oat ec ee

APPENDIX E

Relevant Provisions of Title 42 of the United
States Code (Clean Air Act):

Clean Air Act §202, 42 U.S.C. § 1857f-1
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Clean Air Act § 203, 42 U.S.C. § 1857f-2
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125a

212a

ii

INDEX TO APPENDIX—Continued

Clean Air Act §204, 42 U.S.C. § 1857f-3
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Clean Air Act § 205, 42 U.S.C. § 1857f-4
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Clean Air Act § 207, 42 U.S.C. § 1857f-5a
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139a

From the above, it is clear that the only maintenance
required of the owner’s new vehicle at 5,000 miles is a
change in engine oil and to check and reset as necessary
at 5,000 miles the engine idle speed and fast idle speed.
EPA contends that even if this were not done at 5,000
miles, such an omission would not affect whether the
vehicle was “properly maintained” with regard to the
idle mixture.

The critical or relevant “proper maintenance” as EPA
contends is the idle mixture adjustment at 15,000 miles.

I agree.

EPA further maintains that the idie mixture adjust-
ment is checked by Chrysler:

1. Before the vehicle leaves the assembly plant.
2. At the New Car Prep Center, if utilized.

38. At the Chrysler dealership before delivery to pur-
chaser.

And, therefore, the idle mixture should be properly
adjusted upon delivery of the new vehicle to the owner
and, in accordance with the Owner’s Manual, should not
require adjustment to remain in conformance with the
emission standard until the vehicle has been driven
15,000 miles.

The only exception to this would be if a malfunction is
observed or suspected, at which time the Owner’s Manual
instructs the owner to have the vehicle inspected and
serviced and to “Retain receipts for all vehicle emis-
sion services to protect your emission warranty.”

The vehicles tested in the Portland, Oregon, State
Inspection Maintenance Program numbered 19 of the
360 CID engine, with an average mileage of 3,091 and
an average idle CO of 1.9%; 7 vehicles of the 400 CID

Chrysler 1975 recall class vehicles manufactured for sale
only in California were equipped with air pumps and met the
more stringent emission standards of the State of California.
These were the only recall class vehicles equipped with air
pumps.

18la

above it must be found that Chrysler’s lack of effort in
this regard constitutes a “defect in design.”

The starting point for all product liability law is the
existence of something in a product which can be charac-
terized as a “defect” either in design or manufacture.
That is, the product must exhibit some type of defective
condition. The question of what constitutes a “defect”
is not capable of a precise answer in all cases, and there
is no single defir'tion which is universally agreed upon
by the courts. A defective product can be one which fails
to match the quality of most similar products, or one
which deviates from the norm. E.g., Jiminez v. Sears,
Roebuck & Co., 4 Cal. 3d 379, 383, 482 P.2d 681, 684,
93 Cal. Rptr. 769, 772 (1971); Baker v. Chrysler Corp.,
55 Cal. App. 3d 710, 715, 127 Cal. Rptr. 745, 748 (1976).
“Defectiveness” can be determined without a defined set
of standards, and a product can be considered defective
if it does not fulfill its intended purpose. Cronin v. J.B.E.
Olson Corp., 8 Cal. 3d 121, 125-26, 501 P.2d 1156-57,
104 Cal. Rptr. 433, 486-37 (1972). As stated by the
Supreme Court of New Jersey, “A product is defective
if it is not fit for the ordinary purposes for which such
articles are sold and used. .. Establishing this element
requires only proof, in a general sense and as understood
by a layman, that ‘something was wrong’ with the
product.” Scanlon v. General Motors Corp., 65 N.J. 582,
591, 326 A.2d 6738, 677 (1974). In Scanlon, the court
went on to state that a defect can be proved by expert
testimony. 7d. at 591, 326 A.2d at 678.

In the area of product liability law involving defects
in design, the question of whether a manufacturer will
be liable for injury caused by the defective design de-
pends upon the use to which the product has been sub-
jected by the owner or other persons. In general a manu-
facturer is responsible for designing a product for which
its use is reasonably foreseeable, including foreseeable

182a

misuse. E.g., Thomas v. General Motors Corp., 13 Cal.
App. 3d 81, 91 Cal. Rptr. 301, 306 (1970).

To the above applications of product liability law, there
must be added those areas where new laws are enacted.
In this proceeding the first opportunity has been pre-
sented to the court for a determination as to whether or
not such an application of law should be made.

The Clean Air Act imposes a statutory obligation
upon the manufacturer to design and produce a vehicle
emission system which will, [sic, during?] its useful life,
conform to the applicable emission standards. Any fail-
ure to do so is noncompliance with the Act. The stand-
ards set forth in the Act are intended for the purpose
of cleaning up the nation’s air quality for the benefit of
man and the environment. Any failure to accomplish
such purpose by any means, including a “defect in de-
sign” carburetor, as here, constitutes a violation of the
intended purposes of the Act for which liability attaches.
Chrysler has admitted in its letter to the State of New
Jersey that the carburetor does contain shortcomings
which are concerned with design.

As to foreseeability, it does not seem plausible to ac-
cept the argument that a manufacturer could foresee
that mechanics employed by Chrysler dealers, with all
the service manuals at their disposal, the training pro-
grams available to them and a carburetor certified by
EPA as being capable of conforming to the standard
would have any reason to not properly adjust the vehicle.

However, EPA has shown through the State I/M Pro-
grams, the MSED Surveys, the Emission Factors Pro-
gram and the Olson Program that even in spite of all
of these efforts, whether fully utilized or not on behalf
of Chrysler, the fagt remains that the design of the emis-
sion control system, inc uding the carburetor, encourages
or fosters the gross misadjustments which have been
shown to exist and therefore should have been foreseen.

183a

I also place great weight upon the evidence adduced
by EPA to the effect that the infrared analyzers, used
to adjust the system to Chrysler’s specifications while
probably available in late 1974 and early 1975, were not,
in fact, in widespread use in automotive repair shops
during that time, or even as late as September 1975.
EPA-49.

Having found that a “defect in design” did exist and
that misadjustments should have been foreseen, it is not
necessary to determine whether Chrysler dealers are
agents of Chrysler. However, since the question is pre-
sented and briefed, I will discuss my opinion in this re-
gard.

Agency

EPA contends that regardless of the interpretation of
the term “proper maintenance”, the manufacturer is re-
sponsible for misadjustments caused by dealers during
servicing since the dealers are agents of the manufac-
turer for the purpose of emissions related servicing of
the manufacturer’s vehicles, when the manufacturer has
the right to control or controls the method and manner
of performing emissions related services and since Chrys-
ler has an express statutory duty under the Act to assure
that vehicles meet emission standards at the time of sale
which Chrysler may not delegate.

EPA alleges that this contention is supported by most
courts who have analyzed the automobile dealer-manu-
facturer relationship. Such courts have employed the
“right to control” test to determine whether an agency
relationship is established. That the “right to control”
is demonstrated by control of the method and manner of
the performance of the agent’s business and not merely
by control of the end results.

EPA concedes that many cases establish that dealers
are not “general” agents of the manufacturer. But as-

184a

sert, however, that these cases do not address the question
of whether dealers were agents for the limited purpose
of vehicle emissions related servicing. Virtually all of
the cases holding that dealers were not agents involved
either instances where dealers were being used to estab-
lish jurisdiction in suits against the manufacturer (“‘do-
ing business” standard applied) or situations where the
manufacturer was being sued in connection with the sale
of dealership vehicles. In contrast, however, EPA alleges,
the case law establishes that the dealers are agents of
Chrysler for the purpose of emissions related servicing
of Chrysler vehicles, which includes dealer preparation
and warranty work.’ I agree.

Courts have concluded that facts demonstrating a
“right to control” the manner of performing the service
work establish an agency relationship. Yale & Towne,
Inc. V. Sharpe, 118 Ga. App. 480, 164 S.E. 2d 318, 323,
324 (Ga; Ct. App. 1968) found an agency relationship
for the purpose of making repairs where the manufac-
turer “retained the control and manner of making re-
pairs, conducted training programs for this purpose
several times a year, [and] had the right to require the
discharge of Ogden [dealership] employees for deficiencies
in the service department, ... .” The court did not
examine whether Yale & Towne, Inc., controlled each
aspect of the dealership operation, but found an agency
relationship solely with regard to making repairs. Lia-
bility was based upon this narrowly defined agency.
Similarly, Jackson v. Standard Oil Co. of California, 8
Wash. App. 838, 505 P.2d 1389, 144 (Wash. Ct. App.

15 Vernon V. Lake Motors, 26 ne 269, 488 P.2d 302,
806 (Utah 1971) held the dealers are agents for the purpose
of warranty work. Ford Motor Co. v. Pittman, 227 So. 2d 246,
250 (Fla. Dist. Ct. App. 1969) described the dealer as an
agent of Ford where Ford “[relied] on the dealer as an pre-
delivery service check.”

185a

1972) held that “It should be sufficient that plaintiff
present substantial evidence of Standard’s control or
right of control over those activities from whence the
actionable negligence flowed. If the rule were otherwise,
then a person wishing to accomplish a certain result
through another could declare the other to be an inde-
pendent contractor generally, and yet retain control over
a particularly hazardous part of the undertaking without
incurring liability for acts arising out of that part.
Such a result would effectively thwart the purpose of the
rule of vicarious liability.” Accord, Texas v. Wheat, 140
Tex. 468, 168 S.W. 2d 632, 685 (Tex. 1943). This court
found that the oil company would be liable for the failure
of its distributor to adhere to the company’s safety prac-
tices, resulting in personal injury, if the jury found that
the company controlled or had the right to control the
training and operation of the distributor’s employees in
the safe handling of its products. A prima facie case of
liability was established by the detailed safety procedures
in the “Market Operating Manual,” a requirement that
the Manual must be read and understood and that the
distributor maintain Standard’s property in a “safe,
efficient and presentable condition,” and periodic inspec-
tions of the distributor by Standard.

Where a bus distributor negligently repaired the manu-
facturer’s bus, and the distributor was not required to
make repairs in accordance with the manufacturer’s
manual, nor were any training requirements imposed by
the manufacturer, no agency relationship was found.
Quijada Corp. v. General Motors, 253 A.2d 538, 541
(D.C. Ct. App. 1969). Therefore, based upon the above
line of cases EPA alleges that Chrysler’s control over the
training of dealership service employees and the service
procedures to be used by them rather than control over
the entire dealership enterprise, creates a limited agency
for the purpose of servicing vehicles and is sufficient to

186a

attach liability to Chrysler for dealer service perform-
ance,

This right to control theory extends more explicitly to
the performance of emission related services. Under the
Chrysler dealership franchise agreements, the Chrysler
dealers are required to perform pre-sale adjustments and
inspections prior to delivery to the consumer. These pro-
cedures include inspection and adjustment of the emission
systems of the vehicles, and particularly readjustment (if
required) of the fuel/air mixture. These procedures are
explicitly detailed in Chrysler’s manual entitled “Pre-
delivery Procedures”, EPA 12, which is provided to all
dealers. Dealers must adhere strictly to these detailed
procedures and prepare inspection forms, EPA 183A, 13B,
which verify that all the work was properly performed.

Chrysler dealers are also required to provide certain
prescribed warranty services at no cost to the customer
in order to fulfill Chrysler’s warranty obligations to the
customer. The Direct Dealer Agreement, EPA-11A, re-
quires that dealers provide to owners of Chrysler pas-
senger cars “all warranty service to which they may be
entitled under the terms of such warranty in accordance
with the policies and procedures set forth in [Chrysler’s]
Warranty Policy and Procedure Manual and in bulletins
and documents relating to warranty service that [Chrys-
ler] may, from time to time, supply the Direct Dealers”.
The warranty services must be provided in accordance
with the detailed service procedures set forth in Chrys-
ler’s service manual and its technical service bulletins.
The Warranty Policy and Procedure Manual, EPA-15,
and Warranty Bulletins contain an extensive compilation
of some of the policies and procedures required in the
administration of Chrysler’s warranty obligations. The
Warranty Policy and Procedure Manual provides that
Chrysler has the right to observe, supervise or verify the
performance of warranty repairs by Chrysler dealerships.

187a

Chysler reserves the right to instruct dealership person-
nel in proper warranty service. These services include
readjustment of the carburetor where required under the
emission or general waranty."®

With regard to general emissions related servicing,
Chrysler requires that dealers follow the Chrysler speci-
fied service procedures to adhere to the proper servicing
requirement of the Direct Dealer Agreement. Numerous
Chrysler communications to dealerships in the form of
technical service bulletins, letters and training manuals
remind the dealers and their mechanics to adhere strictly
to the manufacturer’s emissions related service proce-
dures and Chrysler specifications.

Chrysler contends, however, that its dealers need not
follow the procedures set out in its service manuals and
technical service bulletins. It states that the dealer is
“free to reject, follow or modify these recommended pro-
cedures.”

EPA contends that this contention is completely con-
trary to the previously discussed contractual require-
ments. I agree. Chrysler provides a detailed procedures
manual, an extensive training program and paragraph 7
of the dealership agreement explicitly requires that all
recommended pre-delivery services be performed. Para-
graph 7 also specifies that all warranty services must be
performed in accordance with the Chrysler service manual
and its technical service bulletins. The Warranty Manual

16 Under Sec. 207(a) of the Clean Air Act, Chrysler pro-
vides an emission warranty to owners that each “vehicle or
engine is (1) designed, built, and equipped so as to conform
at the time of sale with applicable regulations under Sec. 202,
and (2) free from defects in materials and workmanship
which cause such vehicle or engine to fail to conform with
applicable regulations for its useful life (as determined
under Sec. 202(d)).”

188a

gives Chrysler the right to observe and supervise the
performance of warranty repairs. Mr. Hetherly, Chrys-
ler’s witness on the area of agency, agreed that pre-
delivery services and warranty services must be per-
formed in accordance with Chrysler’s procedures. With
regard to the specific idle adjustment procedure in this
case, Chrysler has indicated on at least three occasions
that the Chrysler specified procedure is the only accept-
able procedure.

Additional controls on dealership servicing are present
in the franchise agreement. Chrysler requires its dealers
to “provide and maintain, for servicing [Chrysler] vehi-
cles, adequate facilities equipped with the basic tools and
equipment peculiar to [Chrysler] products and necessary
for proper and efficient servicing and repairing of
[Chrysler] cars.” Chrysler service representatives moni-
tor the adequacy of dealership facilities and tools and
the training of dealership mechanics. Chrysler may ter-
minate a dealer franchise with 90 days written notice on
the failure of the dealer to perform fully any of its obli-
gations regarding adequate facilities, pre-delivery serv-
ices, warranty services.

Additional facts provide support for the contention
that Chrysler has the right to control its dealers in
emission control related servicing. Dealers are required
to provide proper servicing of Chrysler vehicles. Secondly,
as in the case of Yale & Towne, supra, Chrysler does
conduct extensive training programs for dealership em-
ployees, which include programs in carburetor and emis-
sion control servicing. Thirdly, the manufacturer may
require that dealership mechanics receive training in
pre-delivery service, warranty service and general serv-
ice, and may terminate a dealership for improper serv-
icing due to a lack of training. The required training
and the required procedures alone create an agency re-
lationship under the case law. Jackson v. Standard Oil

189a

Co. of California, supra; Yale & Towne, Inc. v. Sharpe,
supra.

In summary, the above facts establish that Chrysler
has the right to control dealership performance of pre-
delivery and warranty services and all emissions related
services. Since the “right to control” test is satisfied,
Chrysler dealers are agents of Chrysler in the perform-
ance of these services.”

Furthermore, any failure by Chrysler to effectively
exercise its control, which apparently occurred in this
case, does not affect the agency status of the dealers. It
is the “right to control,” rather than the effective exer-
cise of the authority that is determinative. Quijada,
supra at 540; Joiner v. Sinclair Refining Co., 48 Ga.
App. 365, 172 S.E. 754, 755 (Ga. Ct. App. 1934). Chrys-
ler’s attempt to disclaim any agency relationship with
the dealers or any degree of control over the dealers is
also totally ineffective. Many courts have held that writ-
ten disclaimers of agency or control will be ignored if
the facts indicate otherwise. The relationship of the
parties, as amplified by the operating manual, the na-

17 Jackson V. Standard Oil Co. of California, 8 Wash. 83, 505
P.2d 139, 144 (Wash. Ct. App. 1972) ; Yale & Towne, Ine. Vv.
Sharpe, 118 Ga. App. 480, 164 E.2d [sic] 318, 323, 324 (Ga. Ct.
App. 1968); Vernon v. Lake Motors, 26 Utah 2d 269, 488
P.2d 302, 306 (Utah 1971) (warranty service); Fort [sic]
Motor Co. Vv. Pittman, 227 So.2d 246, 250 (Fla. Dist. Ct. App.
1969) (pre-delivery services) ; Cf., Rager v. Superior Coach
Sales and Service of Arizona, 111 Ariz. 204, 526 P.2d 1056,
1063 (Ariz. 1974) (warranty service) ; Quijada Corp. v. Gen-
eral Motors Corp., 253 A.2d 538, 540 (D.C. Ct. App. 1969) ;
Vandermark v. Ford Motor Co., 37 Cal. Rptr. 896, 391 P.2d
168 (Cal. 1964) (pre-delivery service) ; Ford Motor Co. v.
Poeschl, 21 Cal. App. 3d 694, 98 Cal. Rptr. 702, 704 (Cal. Ct.
App. 1971) (pre-delivery service) ; Goodrich v. Ford Motor
Co., 525 P.2d 130, 184 (Ore. 1974).

190a

ture of the undertaking itself, and the amount of control
actually exercised in performance of the undertaking are
the determinative factors. Jackson, supra at 145; accord,
Pagarigan v. Phillips Petroleum Co., 552 P.2d 1065,
1068. (Wash. Ct. App. 1967)

EPA further contends that the manufacturer is re-
sponsible for misadjustments caused by dealers during
servicing since the dealers are apparent agents of the
manufacturer for the purpose of servicing the manufac-
turer’s vehicles.

Apparent agency requires two elements: (1) a repre-
sentation by the “principal” that a person is his agent
and (2) justifiable reliance upon that representation by
a third person. Gizzi v. Texaco, Inc., 487 F.2d 308, 309
(8d Cir. 1971), cert. denied, 404 U.S. 829 (1971);
Apple v. Standard Oil, 307 F. Supp. 107, 111 (N.D. Cal.
1969).

“One who represents that another is his servant or
other agent and thereby causes a third person justi-
fiably to rely upon the care or skill of such apparent
agent is subject to liability to the third person for
harm caused by the lack of care or skill of the one
appearing to be a servant or other agent as if he
were such.” RESTATEMENT (SECOND) OF AGENCY
SEc. 267 (1958).

Chrysler dealerships are held out as the representatives
of Chrysler for the purpose of servicing Chrysler vehi-
cles.

The facts in this case support a finding that Chrysler
dealers are held out by Chrysler and its dealers to be its
agents, for the purposes of servicing the vehicles, includ-
ing dealer preparation work, and that consumers do justi-
fiably rely on these representations. Chrysler vehicles
are sold at the Chrysler dealerships, the pre-delivery
checks and adjustments are made by the dealers, and all

19la

warranty work is performed by the dealers. Chrysler’s
owner’s manual encourages owners to utiliza_Chrysler
authorized dealerships for their service requiréjpents.
The owner’s manual advises owners to speak to Chrysler
service representatives regarding complaints on dealer
servicing. The national advertising by Chrysler and the
dealerships using the various Chrysler trade names adds
to the association of Chrysler and its authorized dealers.
Dealerships are encouraged to advertise by stressing the
Chrysler affiliation and advantages of Chrysler affiliation,
such as Chrysler training, parts, tools, and equipment.

Chrysler dealerships are also listed in the local phone
books, identified by Chrysler emblems and signs, and
benefit from Chrysler’s nationwide advertising cam-

paigns.
(1) Every vehicle owner possesses a manual which as-

sociates Chrysler and the dealerships for service
purposes.

(2) The owner can only obtain the benefit of Chrysler
training and expertise at these dealerships.

(3) The owner can only get warranty service free of
charge at these dealerships.

(4) The owner is advised to forward dealership serv-
ice complaints directly to Chrysler service per-
sonnel.

Therefore, the average owner has no reason to doubt that
Chrysler authorized service facilities are representatives
of Chrysler for servicing purposes.

Since the public reasonably relies on the dealers’ skill
and Chrysler’s representations in servicing Chrysler cars,
Chrysler is responsible for the carburetor misadjust-
ments caused by its agents, the dealers, during the serv-
icing of the vehicles. Gizzi v. Texaco, Inc., 437 F.2d 308,
309 (8d Cir. 1971), cert. denied, 404 U.S. 829 (1971).

192a

See also the case of N.L.R.B. v. Sachs, 503 F.2d 1229
(7th Cir. 1974) wherein it was held that the common
law of agency is applicable in cases arising under the
National Labor Relations Act. Here again, in a case
holding that a relationship of “independent contractors”
did not exist, the court in citing Frito-Lay, Inc. V.
N.L.R.B., 385 F.2d 180, 187 (7th Cir. 1967) stated:

[2] Whether the Sachs brothers were “independent
contractors” depends upon whether Peko and Sav-Co.

had the right to control the way the brothers man-
aged Phil’s:

In determining the status of persons alleged to
be independent contractors, the Act requires the
application of the “right to control” test. Where
the person for whom the services are performed
retains the right to control the manner and
means by which the result is to be accomplished,
the relationship is one of employment. On the
other hand, where control is reserved only as to
the result sought the relationship is that of in-
dependent contractor. The resolution of this
question depends upon the facts of each case
and no one factor is determinative.

And further:

It is, of course, the right to control and not the
actual exercise of that right which is the decisive
element. United Insurance Co. of America v. NLRB,
304 F.2d 86, 89 (7th Cir. 1962).

Contentions and allegations not specifically discussed
herein have been considered and rejected.

D. Findings of Fact

1. Respondent Chrysler Corporation (Chrysler) is
organized under the laws of the State of Delaware and
is engaged in the manufacture and sale of new motor
vehicles in the United States.

198a

2. Chrysler submitted to the Administrator of the
Environmental Protection Agency (EPA) an application
for a Certificate of Conformity in order to manufacture
and sell its 1975 model-year motor vehicles, pursuant to
Title II of the Clean Air Act and the regulations there-
under.

3. On August 9, 1974, the Administrator of EPA is-
sued a Certificate of Conformity to Respondent Chrysler
for its F-LA2L-C engine family, including the 360 CID
engines for use in various Plymouth, Dodge, and Chrys-
ler vehicles. C-89(a).

4. On August 12, 1974, the Administrator of EPA is-
sued a Certificate of Conformity to Respondent Chrysler
for its F-B2-C engine family, including the 400 CID en-
gines for use in various Plymouth, Dodge, and Chrysler
vehicles. C-89(b).

5. The Certificate of Conformity states that it covers
“only those new motor vehicles or new motor vehicle
engines which conform, in all material respects, to the
design specifications described in the application(s) for
[these] certificates and which are produced during the
1975 model-year production period of said manufac-
turer... .”

6. During the production period for 1975 model-year
vehicles, Respondent Chrysler manufactured and de-
livered into commerce approximately 150,000 Plymouth,
Dodge, and Chrysler vehicles of the 360 CID engine
family and approximately 58,000 Plymouth, Dodge, and
Chrysler vehicles of the 400 CID engine family.

7. On December 8, 1976, the Administrator of EPA,
pursuant to Sec. 207(c) (1) of the Clean Air Act, gave
notice to Chrysler of his determination that a substan-
tial number of properly maintained and used 1975 model
vehicles of the 360 and 400 CID 2-barrel catalytic con-
verter engine families manufactured by Chrysler were

194a

in nonconformity with the Clean Air Act and ordered
Chrysler to submit a plan for remedying the alleged non-
conformity. EPA-141.

8. The notice of the Administrator further stated
that EPA data indicated that carburetor idle CO misad-
justment was the primary cause of the nonconformity
of these vehicles.

9. On January 19, 1977, Chrysler Corporation, by let-
ter addressed to the Administrator, pursuant to Sec. 207
(c)(1) of the Clean Air Act and EPA Regulations, 40
C.F.R. 85.1801 et seg., requested a hearing to review the
Administrator’s determination.

10. The Administrator’s recall order covered Chrys-
ler’s 1975 F-B2-C and F-LA2L-C, CII and CIII* engine
families.

11. These vehicles represent Chrysler’s 1975 models
equipped with 360 and 400 CID 2-barrel carburetors.

12. The Administrator’s order found that the iden-
tified Chrysler engine families were exceeding the 1975
Federal carbon monoxide standard of 15 grams per
vehicle (gm/mi) mile.

13. This finding was based on data from State In-
spection/Maintenance programs, EPA’s MSED Surveys,
EPA’s Emission Factor Program, and EPA’s confirma-
tory test program at Olson Laboratories.

Federal Test Procedure

14. The 1975 Federal emission standard for light duty
vehicles (hereinafter “standard’”’) is 15 grams per vehi-
cle mile for carbon monoxide (CO).

*There were no Certificates of Conformity received in
evidence for engine families numbered F-LA2L-CII and CIII
which were included in the Olson Test Program Contract
Scope of Work. EPA-62.

195a

15. The Federal Test Procedure (FTP) for measur-
ing evaporative and exhaust emissions from light duty
motor vehicles is set forth in 40 CFR 85.075-9 through
85.075-27.

Olson Test Program FTP Testing

16. Exhaust emission tests were conducted on 20 ve-
hicles of the recall class (ten 360 CID and ten 400 CID
vehicles) in the Olson Test Program in Livonia, Michi-
gan. These measurements of exhaust emissions were
conducted in accordance with the FTP.

Emission Factor Program FTP Testing

17. Exhaust emission measurements were conducted
on 26 vehicles of the recall class (18 360 CID and 8 400
CID vehicles) in the Emission Factor Program in Phoe-
nix, Arizona; Chicago, Illinois; Houston, Texas; St. Louis,
Missouri, and Washington, D.C. The procedures for the
emissions testing did not include procedures for measure-
ment of evaporative emissions.

18. The deletion of the procedures for measuring
evaporative emissions in the Emission Factor Program
had no significant impact on the measurements of the
exhaust emissions. The procedures for measuring ex-
haust emissions were in accordance with the FTP.

19. The test procedures in the Emission Factor Pro-
gram were properly carried out and the tests were con-
ducted in an accurate manner.

Olson Program and Emission Factor Program FTP Re-
sults

20. Ninety percent of the recall class vehicles tested
in the Olson Program exceeded the standard (10 out of
10 for the 360 CID and 8 out of 10 for the 400 CID
vehicles) .

196a

21. Average emissions of the 360 CID vehicles tested
in the Olson Program was 69.0 gm/mi CO. The average
emissions of the 400 CID vehicles was 33.6 gm/mi CO.

22. Eighty-five percent of the recall class vehicles
tested in the Emission Factor Program exceeded the
standard (15 out of 18 for the 360 CID and 7 out of 8
for the 400 CID).

23. The average emissions of the 360 CID vehicles
tested in the Emission Factor Program was 48.0 gm/mi
CO. The average emissions of the 400 CID vehicles
tested was 49.4 gm/mi CO.

Projections of FTP Nonconformities Based on Olson and
Emission Factor Programs

24. Based on the Olson Program and Emission Factor
Program, which comprise tests on 46 recall class vehicles
in six different locations, 93% of the 360 CID vehicles
tested and 83% of the 400 CID vehicles tested exceeded
the standard.

25. From these results, it can be projected with 95%
confidence that not less than 79% of all 360 CID vehi-
cles and not less than 62% of all 400 CID vehicles are
exceeding the standard in use.

26. If only the results from the Olson Program are
relied on, it can be projected with 95% confidence that
not less than 79% of all [sic, 3607] CID vehicles and
not less than 49% of all 400 CID vehicles are exceeding
the standards in use.

27. The statistical techniques used in making projec-
tions from the Olson and Emission Factor Programs to
the entire population of recall class vehicles are standard
accepted techniques, done in the accepted statistical man-
ner.

28. Measurements of idle CO concentration were taken
at the tailpipe on 26 vehicles of the recall class in the

197a

Portland, Oregon, I/M Program (19 360 CID and 7 400
CID vehicles). These measurements were conducted by
state I/M personnel with calibrated and properly func-
tioning idle CO analyzers and were accurate measure-
ments of idle CO concentrations. Sixty-eight percent of
the 360 CID vehicles tested had idle CO concentrations
greater than 1.0% and 71% of the 400 CID vehicles
tested had idle CO concentrations greater than 1.0%,
which is the equivalent of approximately 17 gm/mi.

29. Measurements of idle CO concentration were taken
at the tailpipe on 30 vehicles of the recall class (28 360
CID vehicles and 2 400 CID vehicles) during the MSED
Tampering Survey in the Cincinnati, Chicago, and New
Jersey I/M programs. The measurements were con-
ducted by state I/M personnel and EPA contractors and
were accurate measurements using calibrated, properly
functioning idle CO infrared analyzers. Sixty-four per-
cent of the 360 CID vehicles and 50% of the 400 CID
vehicles had idle CO concentrations greater than 1.0%.

30. Measurements of idle CO concentration were
taken at the tailpipe on 18 vehicles of the recall class
(11 360 CID vehicles and 7 400 CID vehicles) in Wash-
ington, D.C., in the MSED New Car Survey. These
measurements were taken by EPA personnel and were
accurate measurements using a calibrated and properly
functioning idle CO infrared analyzer. Seventy-three per-
cent of the 360 CID vehicles and 71% of the 400 CID
vehicles had idle CO concentrations greater than 1.0%.
The vehicles were recently purchased vehicles obtained
from a list of owners provided by Chrysler to EPA. Any
engine maintenance performed on these vehicles had been
performed exclusively by Chrysler dealerships.

31. Measurements of idle CO concentration were taken
at the tailpipe on 26 vehicles of the recall class (18 360
CID vehicles and 8 400 CID vehicles) in the Emission
Factor Program in Phoenix, Chicago, Houston, St. Louis,

198a

and Washington, D.C. These measurements were con-
ducted under laboratory conditions. Seventy-eight per-
cent of the 860 CID vehicles and 68% of the 400 CID
vehicles had idle CO concentrations greater than 1.0%.

32. Measurements of idle CO concentration were taken
at the tailpipe on 20 vehicles of the recall class (10 360
CID vehicles and 10 400 CID vehicles) in the Olson Pro-
gram in Livonia, Michigan. These measurements were
conducted under laboratory conditions. One hundred per-
cent of the 360 CID vehicles and 50% of the 400 CID
vehicles had idle CO concentrations greater than 1.0%.

33. Measurements of idle CO concentration taken at
the tailpipe in the Short Test during state I/M programs,
MSED Tampering Survey, and MSED New Car Survey,
while indicating that some recall class vehicles exceed
1.0% idle CO concentration, may not be used to corre-
late to an FTP failure for those same vehicles for lack
of the establishment by EPA of a cut point for the recall
class vehicles and, likewise, such data may not be used
to support the Sec. 207(c) (1) criterion of “substantial
number” since no “cutpoint” has been established upon
which to base such a correlation.

34. The Short Test Data of the State I/M Programs,
MSED New Car and Tampering Surveys do provide a
basis upon which to conclude that a problem does exist
nationwide with excessive emissions in recall class vehi-
cles upon which the Administrator may conclude that an
investigation is warranted.

35. The projections made from the results of the Olson
and Emission Factor Programs are valid projections
based on a representative sample of recall class vehicles.

86. The Emission Factor and Olson Program data, in
the absence of any data to the contrary, demonstrate that
a substantial number of all recall class vehicles in use are
not in conformity with standard.

199a

37. Based on the sampling procedures, and review of
all available information and data, in the Emission Fac-
tor and Olson Programs, no significant bias towards
higher emissions was introduced into the results.

88. There were no biases in emissions measurements
caused by the geographical locations in which the vehicles
were tested.

39. The primary cause of the failure of a substantial
number of recall class vehicles tested in the Olson and
Emission Factor Programs to meet the standard is a
condition of overly rich idle air-fuel mixtures.

40. The primary cause of the overly rich idle air-fuel
mixtures in a substantial number of recall class vehicles,
in the Olson and Emission Factor Programs, is a con-
dition of misadjustment of the idle mixture.

41. The primary cause of a substantial number of
recall class vehicles in nonconformity with the standard
in use is a condition of misadjustment of idle mixture.

42. Chrysler sets forth instructions for the mainten-
ance and use of Chrysler recall class vehicles in the
Owner’s Manual.

43. The maintenance instructions set forth in the
Owner’s Manual instruct the owner as to the items that
should be maintained and the intervals at which such
maintenance should be performed.

44, The only scheduled maintenance instruction in the
Owner’s Manual which is relevant to the cause or pre-
vention of a condition of idle mixture misadjustment is
the one which reads:

“Ignition, Timing, Idle Speed, Idle Mixture, Check
and Adjust as Required at 15,000, 30,000 and 45,000
miles,”

ee

200a

45. A vehicle owner, in bringing his vehicle to a
Chrysler dealership or other bona fide service facility at
the relevant maintenance intervals specified by Chrysler,
or at any time for unscheduled maintenance when drivea-
bility or performance problems are apparent, is justi-
fied in assuming that such dealership or service facility
will correctly perform service and maintenance opera-
tions on his vehicle.

46. Of the 46 recall class vehicles tested in the Olson
and Emission Factor Programs, 37 had not yet reached
the 15,000 mile scheduled maintenance interval and there-
fore had not reached any relevant maintenance intervals.

47. The 37 vehicles under 15,000 miles were properly
maintained by owners.

48. Of the 46 recall class vehicles tested in the Olson
and Emission Factor Programs, nine exceeded the 15,000
mile point and therefore had reached the scheduled rele-
vant maintenance interval requiring idle mixture check
and adjustment as required by the Owner’s Manual.

49. Owners of nine vehicles over 15,000 miles indi-
cated that they had brought their vehicles in to bona
fide service organizations for service at the required
15,000 mile interval. Such action in and of itself does
not justify the conclusion that the vehicles were properly
maintained.

50. Of the 18 recall class vehicles tested in the MSED
New Car Survey, none exceeded 15,000 miles and there-
fore had not reached any relevant maintenance intervals.
In the absence of evidence to the contrary these vehicles
were properly maintained.

51. Of the 26 recall class vehicles tested in the Port-
land I/M Program, none exceeded 15,000 miles and
therefore had not reached any relevant maintenance in-
tervals. In the absence of evidence to the contrary these
vehicles were properly maintained.

201la

52. Of the 30 vehicles tested in the MSED Tampering
Survey, 18 were under 15,000 miles and therefore had
not reached any relevant maintenance interval. In the
absence of evidence to the contrary these vehicles were
properly maintained.

53. The only recommendation concerning vehicle use
specified in Chrysler’s owners manual which is relevant
to the cause or prevention of overly rich idle mixture is
the recommendation to use unleaded fuel.

54. The owners of the vehicles tested in the Olson
and Emission Factor Programs indicated that the ve-
hicles were operated on unleaded fuel; therefore, the
vehicles were properly used.

55. Recall class vehicles are designed to only accept
unleaded fuel dispensing nozzles which are smaller in
diameter than leaded fuel dispensing nozzles. Labels in-
forming the owner to use unleaded fuel are located on
the instrument panel and adjacent to the fuel filler cap
or door.

56. Federal regulations prohibit the dispensing by a
retail service station of leaded fuel into a vehicle labeled
“unleaded gasoline only.”

57. In light of the design features on the vehicles
which prevent the vehicles’ accepting leaded fuel nozzles,
the legal proscriptions against dispensing leaded gasoline
and the data in the Emission Factor Program and Olson
Program indicating the use of unleaded fuel, the ve-
hicles tested in the Portland, Oregon, I/M, MSED
Tampering Survey, and MSED New Car Survey were
operated with unleaded fuel and were properly used.

58. Chrysler audits very few vehicles for proper ad-
justment prior to shipment to dealerships.

59. Data submitted by Chrysler to EPA on Chrysler
recall class production vehicles indicate that of 67 360

2024

CID vehicles tested, 46% were in a condition of misad-
justment and 27% exceeded 1.0% idle CO. Of 78 400
CID vehicles tested, 27% were in a condition of misad-
justment and 17% exceeded 1.0% idle CO.

60. Data submitted by Chrysler to EPA indicate that
of 48 360 CID vehicles tested by Chrysler at Chrysler’s
new car preparation center in Chicago, 33% were mis-
adjusted and 27% were in excess of 1.0% idle CO. Of
38 400 CID vehicles tested, 18% were misadjusted and
all 18% were in excess of 1.0% idle CO.

61. The data indicate that a significant percentage of
recall class cars are misadjusted at the factory and/or at
Chrysler’s new car preparation centers prior to delivery
to the owners.

62. Data submitted to EPA by Chrysler indicate that
of 29 recall class vehicles tested at five Chrysler dealer-
ships in Chicago, 28% were at or exceeded 1.0% idle
Co.

63. Data recorded by EPA in the MSED New Car
Survey indicate that 10 recall class vehicles had not
been returned for any engine maintenance and were
therefore tested in the condition of idle mixture adjust-
ment as delivered by dealerships to the owners. Ninety
percent were misadjusted with an average idle CO con-
centration of 3.2%.

64. Of the 36 vehicles tested in the Emission Factor
Program and Olson Program which were in a condi-
tion of misadjustment for idle CO, nine had not had
any idle mixture related maintenance performed on their
vehicles prior to the EPA test. These nine vehicles were
either misadjusted during assembly or during pre-
delivery maintenance at Chrysler dealerships.

65. The data from Chrysler, the MSED New Car
Survey, and the Emission Factor and Olson Programs

203a

indicate that a significant number of recall class vehicles
are misadjusted during assembly and calibration and/or
at Chrysler dealerships.

66. Of the eight vehicles tested in the MSED New
Car Survey which had been returned exclusively to
dealerships for engine warranty work, after sale to the
owners, 50% were in a condition of misadjustment.

67. Of the 36 vehicles tested in the Emission Factor
and Olson Programs which were in a condition of mis-
adjustment for idle mixture, 27 had been returned for
carburetor-related maintenance. Of those 27 vehicles, 25
had been maintained exclusively by Chrysler dealerships.

68. The only procedure for adjusting idle mixture
specified by Chrysler for recall class vehicles requires the
use of a properly functioning and calibrated Exhaust
CO Infrared Analyzer attached to the tap upstream of
the catalyst.

69. As of September, 1975 only 43.6% of Chrysler
dealerships had infrared CO analyzers which were speci-
fied by Chrysler for use in setting emissions to Chrysler’s
specifications.

70. Chrysler’s own survey indicates that of 39 dealer-
ships in the Chicago area, a significant number of ex-
haust CO analyzers have leaks in the sampling systems
large enough to cause incorrect idle CO readings and/or
are not calibrated.

71. Chrysler’s own survey indicates that most of
Chrysler’s dealers do not use the upstream tap for
adjustment.

72. When Chrysler’s recommended procedure for idle
mixture adjustment is not used, or if it is used with an
improperly functioning or miscalibrated analyzer, it is
unlikely that the idle mixture would be adjusted to
Chrysler’s specification.

204a

73. Of 27 dealerships surveyed in Houston and Chi-
cago by EPA, 16 indicated that an alternate procedure
of idle adjustment is used instead of Chrysler’s proce-
dure, 12 indicated that they do not use the upstream
tap for adjusting the carburetor and 5 indicated that
they sometimes use the upstream tap.

74. Chrysler requires its dealers to perform all pre-
delivery and make-ready services in accordance with the
detailed specifications outlined in the Customer Assur-
ance manual entitled “Pre-Delivery Procedures” which
includes adjustments to idle mixture screws to conform
to emission standards.

75. Dealers are required to complete pre-delivery in-
spection forms to indicate that the new vehicle prepara-
tion procedures have been performed.

76. Chrysler offers an extensive pre-delivery training
program including carburetor adjustment emission con-
trol and may require mechanics performing such service
to receive such training.

77. Chrysler employees review the performance of the
new vehicle preparation procedures as part of the Dealer
Parts and Service Evaluation Guide.

78. Chrysler provides two warranties to vehicle own-
ers: a basic vehicle warranty (12,000 miles/12 months)
and an emissions warranty required by the Clean Air
Act (5 years/50,000 miles).

79. Chrysler requires its dealers to provide warranty
service to the owners of Chrysler vehicles in accordance
with the policies and procedures set forth in the War-
ranty Policy and Procedure Manual.

80. Chrysler dealers perform the warranty services to
meet Chrysler’s warranty obligations and Chrysler reim-
burses the dealers for the services performed in | accord:
ance with its policies and procedures.

205a

81. Chrysler reserves the right to instruct dealer per-
sonnel in proper warranty service.

82. The performance of warranty service under the
emission or basic warranties may include adjustment of
the idle mixture setting.

83. Chrysler requires its dealers to provide and main-
tain, for servicing Chrysler vehicles, adequate facilities
equipped with the basic tools common to the trade and
with special tools and equipment peculiar to Chrysler
products and necessary for properly and efficiently servic-
ing and repairing Chrysler cars.

84. Chrysler requires that dealers sfollow the emis-
sions related servicing procedures to adhere to the proper
servicing requirement of the Direct Dealer Agreement.

85. Chrysler may terminate a dealership with 90 days
notice for the failure of the dealer to perform fully any
of its obligations regarding adequate facilities, pre-
delivery services, warranty services or general services.

86. Chrysler may terminate a dealership for inade-
quate servicing caused by a lack of training.

87. Chrysler and its authorized dealers, at the direc-
tion of Chrysler, hold out the dealerships as representa-
tives of Chrysler to Chrysler vehicle owners for the pur-
pose of providing service, including emissions related
service, for Chrysler vehicles.

88. Of 27 mechanics surveyed in Houston and Chicago,
15 mechanics stated it was not possible to achieve ac-
ceptable engine smoothness and driveability when ad-
justing according to Chrysler’s procedure and specifica-
tion and six mechanics stated that it was not possible
all of the time.

89. Vehicles of the recall class experience rough en-
gine idling with the air conditioners on which would

206a

cause owners to return vehicles to dealerships for
correction.

90. In the Olson and Emission Factor Programs, 58%
of owners contacted indicated that problems in drive-
ability and idle roughness had been observed on their
vehicles and 43% of the owners stated that they had
returned their vehicles for service to correct the problems.

91. Warranty records indicate that 55% of the ve-
hicles tested in the Olson and Emission Factor Programs
were returned for warranty repairs or unscheduled main-
tenance relating to carburetor or tune-ups.

92. Chrysler carburetor warranty repair records in-
dicate that 144,891 warranty claims were submitted with
respect to the carburetor, indicating that a large per-
centage of vehicles were returned during warranty period
(12 months/12,000 miles) for repairs.

93. Mechanics are motivated to misadjust vehicles be-
cause use of Chrysler’s procedure results in unacceptable
idle quality causing the customer to return.

94. One method of improving driveability and idle
quality is to adjust the idle mixture to a setting richer
than Chrysler’s specification.

95. The idle mixture adjustment range of recall class
vehicles permits adjustment up to 8.0% idle CO with best
idle quality occurring between 5.0 and 8.0% idle CO at
the tailpipe.

96. Chrysler’s idle mixture adjustment specification is
0.3% idle CO measured upstream of the catalyst.

97. At idle CO concentrations in excess of 1.0% CO,

the ability of the catalyst to function is impaired because
the overly rich fuel-air mixture causes an insufficiency

of oxygen.

207a

98. The catalyst is the primary device relied on by
Chrysler to enable recall class vehicles to meet the 1975
Federal emissions standards for CO.

99. In light of the operational dependency of catalytic
converters on the precise lezn adjustment to specifica-
tion, Chrysler’s design of the recall class vehicles is de-.
fective in not providing a means to limit the idle CO
concentration which could result from idle mixture
misadjustment.

100. Chrysler did not consider the impact on catalyst
efficiency of a mixture setting above Chrysler’s idle CO
adjustment specification of 0.83% CO when designing the
carburetor.

101. The only means of limiting the idle mixture ad-
justment provided on recall class vehicles was the in-
stallation of external limiter caps on the idle mixture
screws.

102. The limiter caps installed by Chrysler on recall
class vehicles are deficient in limiting the range of idle
CO adjustment because the limiter caps are placed so as
to permit adjustment beyond Chrysler’s 0.3% idle CO
specification up to 2.5% idle CO with measurements
taken at the catalyst tap.

103. At the time the recall class vehicles’ were designed
and produced, Chrysler was aware of the fact that with-
in the constraints of the limiter caps, the idle mixture
could be adjusted to a point that would cause the catalyst
to cease functioning.

104. The placement of limiter caps by other major
domestic manufacturers did not permit the adjustment
screws to be adjusted beyond the manufacturer’s adjust-
ment point or specification.

105. Air pumps provide sufficient oxygen to allow the
catalyst to function at peak efficiency when the idle mix-

208a

ture is misadjusted to an overly righ fuel-air mixture
and thereby limits the maximum idle CO concentration
at the tailpipe regardless of the adjustment of the mix-
ture screws.

106. Chrysler did not use air pumps on catalyst-
equipped recall class vehicles.

107. Chrysler did use air pumps on catalyst-equipped
vehicles manufactured for California in 1975 which met
that state’s more stringent emission standard.

108. Chrysler manufactured vehicles in 1966-1968
which implemented designs to limit the maximum idle
CO concentration by means of internal idle mixture cir-
cuit calibrations.

109. Chrysler discontinued the 1968 internal limiter
designs and decided to use external limiter caps and per-
formed no further development work on designs to in-
ternally limit idle CO concentrations in the years 1972-
1975.

110. Tests by EPA on two in-use 1968 model year
vehicles with two of Chrysler’s 1968 idle-limiting devices
demonstrated that the designs were still effective in 1977
in limiting idle CO concentrations below 1.5% CO at the
tailpipe with no manifest driveability or idle quality
problems.

111. The tip angle of the mixture screw in recall class
vehicles is 25 degrees as opposed to the tip angles of
screws used by the other major domestic manufacturers
in 1975 of between 12 and 15 degrees.

112. Chrysler used designs with 12 degrees tip angles
in 1968-1970.

118. A larger tip angle increases sensitivity of vehicle
idle CO response to mixture screw turns.

209a

114. There were no technical reasons which precluded
use of reduced tip angles on recall class vehicles.

115. Information and data were available in the years
1966-1974 and at the time the recall class vehicles were
designed and produced, which indicated that misadjust-
ments of idle mixtures were prevalent on vehicles in use
and that limitations on the range of idle mixture were
needed in order to assure compliance with emissions
standards.

116. The Federal emission standard for CO was low-
ered from 39 grams per vehicle mile in 1974 to 15
grams per vehicle mile in 1975.

117. At the time recall class vehicles were designed
and produced, Chrysler was aware that misadjustments
of idle mixture within the ranges permitted by Chrys-
ler’s design of the idle mixture circuit would cause the
vehicles to exceed the standard.

118. Chrysler testing of catalyst prototype vehicles
in early 1974, prior to production of recall class vehicles,
showed the existence of a carburetor misadjustment prob-
lem at low mileages in use and demonstrated the extreme
effect of these misadjustments on CO emissions from
catalyst equipped vehicles in the absence of air pumps.

119. Chrysler failed to implement available technology
to limit idle adjustment range by means of air pumps.

120. Chrysler failed to implement available technology
to limit idle adjustment range by means of internal limit-
ing devices or calibrations.

121. Chrysler failed to implement available technology
to reduce sensitivity of vehicle idle CO response by speci-
fying a reduced tip angle.

122. Chrysler failed to place limiter caps so as to
preclude adjustment richer than Chrysler’s specification.

210a

123. Chrysler failed to conduct any evaluations of the
availability, use and state of repair of exhaust analyzers
at dealerships and at non-dealerships prior to recom-
mending the use of the analyzer as the only procedure
for correct idle mixture adjustments.

124. Chrysler failed to adequately enforce the pro-
visions under paragraph 7(b) of the Direct Dealer
Agreement requiring a dealer to perform service on
vehicles, including recall class vehicles, in accordance with
procedures specified in Chrysler service manuals.

125. Chrysler failed to reimburse dealers for idle mix-
ture adjustments on recall class vehicles as part of other
carburetor adjustments or repairs performed under
warranty.

126. Chrysler failed to adequately enforce the pro-
visions of paragraph 7(b) of the Direct Dealer Agree-
ment requiring its dealers to perform all Pre-delivery
Services in accordance with procedures set forth in the
“Pre-delivery Procedures” manual.

211a:
ORDER

Findings having been made that a substantial num-
ber of vehicles in Chrysler’s 1975 F-B2-C and F-LA2L-C,
CII, and CIII engine families (comprised of vehicles
equipped with 360 and 400 cubic inch displacement
(CID), 2 barrel carburetors and catalytic converters)
do not conform to the 1975 Federal emission standard
of 15 grams per vehicle mile for carbon monoxide (CO),
(40 CFR 85.075-1(a) (ii) (b)), although properly main-
tained and used, when in actual use throughout their use-
ful life, it is hereby ordered that Chrysler Corporation
submit a plan for remedying the nonconformity to the
Administrator in accordance with 40 CFR 85.1803 with-
in 30 days from the date of this order.

/s/ Edward B. Finch
EDWARD B., FINCH

Administrative Law Judge
February 10, 1978

212a
APPENDIX D

UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA

September Term, 1979
No. 78-2273
[Filed June 19, 1980]

CHRYSLER CORPORATION,
Petitioner
Vv.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
and DouGLAS M. CosTLE, ADMINISTRATOR,

Respondents

APPEAL FROM AN ORDER OF THE ADMINISTRATOR OF THE
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

Before: WRIGHT, Chief Judge, and McGOWAN and
MIKVA, Circuit Judges

JUDGMENT

This cause came on to be heard on the appeal from
an order of the Administrator of the United States En-
vironmental Protection Agency and was argued by coun-
sel. On consideration of the foregoing, it is

ORDERED AND ADJUDGED by this Court, that the
order of the United States Environmental Protection

213a

Agency under review is hereby affirmed, in accordance
with the opinion of this Court filed herein this date.

Per Curiam

For the Court

/s/ George A. Fisher
GEORGE A. FISHER
Clerk
Date: June 19, 1980

Opinion for the Court filed by Chief Judge Wright

214a
APPENDIX E

Clean Air Act § 202, 42 U.S.C. § 1857f-1 (1976 (now
42 U.S.C. § 7521).

§ 1857f-1. Establishment of standards

(a)

Air pollutant emissions

Except as otherwise provided in subsection (b) of this
section—

(b)

(1) The Administrator shall by regulation pre-
scribe (and from time to time revise) in accordance
with the provisions of this section, standards ap-
plicable to the emission of any air pollutant from any
class or classes of new motor vehicles or new motor
vehicle engines, which in his judgment causes or con-
tributes to, or is likely to cause or to contribute to,
air pollution which endangers the public health or
welfare. Such standards shall be applicable to such
vehicles and engines for their useful life (as deter-
mined under subsection (d) of this section), whether
such vehicles and engines are designed as complete
systems or incorporated devices to prevent or control
such pollution.

(2) Any regulation prescribed under this subsec-
tion (and any revision thereof) shall take effect
after such period as the Administrator finds neces-
sary to permit the development and application of
the requisite technology, giving appropriate consider-
ation to the cost of compliance within such period.

Reduction requirements for model years 1975 to
1978; promulgation; report to Congress; suspension
of standards; interim standards.

(1) (A) The regulations under subsection (a) of this
section applicable to emissions of carbon monoxide and
hydrocarbons from light-duty vehicles and engines manu-
factured during model years 1975 and 1976 shall con-

2154

tain standards which are identical to the interim stand-
ards which were prescribed (as of December 1, 1973)
under paragraph (5) (A) of this subsection for light-duty
vehicles and engines manufactured during model year
1975. The regulations under subsection (a) of this sec-
tion applicable to emissions of carbon monoxide and hy-
drocarbons from light duty vehicles and engines manu-
factured during or after model year 1977 shall contain
standards which require a reduction of at least 90 per
centum from emissions of carbon monoxide and hydro-
carbons allowable under the standards under this section
applicable to light duty vehicles and engines manufac-
tured in model year 1970.

(B) The regulations under subsection (a) of this sec-
tion applicable to emissions of oxides of nitrogen from
light-duty vehicles and engines manufactured during
model years 1975 and 1976 shall contain standards which
are identical to the standards which were prescribed (as
of December 1, 1973) under subsection (a) of this sec-
tion for light-duty vehicles and engines manufactured
during model year 1975. The regulations under subsec-
tion (a) of this section applicable to emissions of oxides
of nitrogen from light-duty vehicles and engines manu-
factured during model year 1977 shall contain standards
which provide that such emissions from such vehicles
and engines may not exceed 2.0 grams per vehicle mile.
The regulations under subsection (a) of this section ap-
plicable to emissions of oxides of nitrogen from light duty
vehicles and engines manufactured during or after model
year 1978 shall contain standards which require a re-
duction of at least 90 per centum from the average of
emissions of oxides of nitrogen actually measured from
light duty vehicles manufactured during model year 1971
which are not subject to any Federal or State emission
standard for oxides of nitrogen. Such average of emis-
sions shall be determined by the Administrator on the
basis of measurements made by him.

216a"

(2) Emission standards under paragraph (1), and
measurement techniques on which such standards are
based (if not promulgated prior to December 31, 1970),
shall be prescribed by regulation within 180 days after
such date.

(3) For purposes of this part—

(A) (i) The term “model year” with reference to
any specific calendar year means the manufacturer’s
annual production period (as determined by the
Administrator) which includes January 1 of such
calendar year. If the manufacturer has no annual
production period, the term “model year” shall mean
the calendar year.

(ii) For the purpose of assuring that vehicles and
engines manufactured before the beginning of a
model year were not manufactured for purposes of
circumventing the effective date of a standard re-
quired to be prescribed by subsection (b) of this
section, the Administrator may prescribe regulations
defining ‘model year” otherwise than as provided in
clause (i).

(B) The term “light duty vehicles and engines”
means new light duty motor vehicles and new light
duty motor vehicle engines, as determined under reg-
ulations of the Administrator.

(4) On July 1 of 1971, and of each year thereafter,
the Administrator shall report to the Congress with re-
spect to the development of systems necessary to imple-
ment the emission standards established pursuant to this
section. Such reports shall include information regard-
ing the continuing effects of such air pollutants subject
to standards under this section on the public health and
welfare, the extent and progress of efforts being made
to develop the necessary systems, the costs associated with
development and application of such systems, and follow-

217a

ing such hearings as he may deem advisable, any recom-
mendations for additional congressional action necessary
to achieve the purposes of this chapter. In gathering in-
formation for the purposes of this paragraph and in con-
nection with any hearing, the provisions of section 1857h-
5(a) of this title (relating to subpenas [sic] ) shall apply.

(5) (A) At any time after January 1, 1975, any manu-
facturer may file with the Administrator an application
requesting the suspension for one year only of the effec-
tive date of any emission standard required by para-
graph (1)(A) with respect to such manufacturer for
light-duty vehicles and engines manufactured in model
year 1977. The Administrator shall make his determina-
tion with respect to any such application within sixty
days. If he determines, in accordance with the provisions
of this subsection, that such suspension should be granted,
he shall simultaneously with such determination pre-
scribe by regulation interim emission standards which
shall apply (in lieu of the standards required to be pre-
scribed by paragraph (1) (A) of this subsection) to emis-
sions of carbon monoxide or hydrocarbons (or both)
from such vehicles and engines manufactured during
model year 1977.

(B) Any interim standards prescribed under this
paragraph shall reflect the greatest degree of emission
control which is achievable by application of technology
which the Administrator determines is available, giving
appropriate consideration to the cost of applying such
technology within the period of time available to
manufacturers.

(C) Within 60 days after receipt of the application
for any such suspension, and after public hearing, the
Administrator shall issue a decision granting or refus-
ing such suspension. The Administrator shall grant such
suspension only if he determines that (i) such suspension
is essential to the public interest or the public health

218a

and welfare of the United States, (ii) all good faith
efforts have been made to meet the standards established
by this subsection, (iii) the applicant has established
that effective control technology, processes, operating
methods, or other alternatives are not available or have
not been available for a sufficient period of time to
achieve compliance prior to the effective date of such
standards, and (iv) the study and investigation of the
National Academy of Sciences conducted pursuant to sub-
section (c) of this section and other information avail-
able to him has not indicated that technology, processes,
or other alternatives are available to meet such standards.

(D) Nothing in this paragraph shall extend the effec-
tive date of any emission standard required to be pre-
scribed under this subsection for more than one year.

(c) Feasibility study and investigation by National
Academy of Sciences; reports to Administrator and
Congress; availability of information

(1) The Administrator shall undertake to enter into
appropriate arrangements with the National Academy
of Sciences to conduct a comprehensive study and investi-
gation of the technological feasibility of meeting the emis-
sions standards required to be prescribed by the Admin-
istrator by subsection (b) of this section.

(2) Of the funds authorized to be appropriated to the
Administrator by this chapter, such amounts as are re-
quired shall be available to carry out the study and in-
vestigation authorized by paragraph (1) of this sub-
section.

(8) In entering into any arrangement with the Na-
tional Academy of Sciences for conducting the study and
investigation authorized by paragraph (1) of this sub-
section, the Administrator shall request the National
Academy of Sciences to submit semiannual reports on
the progress of its study and investigation to the Ad-

219a

ministrator and the Congress, beginning not later than
July 1, 1971, and continuing until such study and investi-
gation is completed.

(4) The Administrator shall furnish to such Academy
at its request any information which the Academy deems
necessary for the purpose of conducting the investigation
and study authorized by paragraph (1) of this subsec-
tion. For the purpose of furnishing such information,
the Administrator may use any authority he has under
this chapter (A) to obtain information from any person,
and (B) to require such person to conduct such tests,
keep such records, and make such reports respecting re-
search or other activities conducted by such person as
may be reasonably necessary to carry out this subsection.

(d) Useful life of vehicles

The Administrator shall prescribe regulations under
which the useful life of vehicles and engines shall be
determined for purposes of subsection (a) (1) of this
section and section 1857f-5a of this title. Such regula-
tions shall provide that useful life shall—

(1) in the case of light duty vehicles and light
duty vehicle engines, be a period of use of five years
or fifty thousand miles (or the equivalent), which-
ever first occurs; and

(2) in the case of any other motor vehicle or
motor vehicle engine, be a period of use set forth in
paragraph (1) unless the Administrator determines
that a period of use of greater duration or mileage
is appropriate.

(e) New power sources or propulsion systems

In the event of a new power source or propulsion sys-
tem for new motor vehicles or new motor vehicle engines
is submitted for certification pursuant to section 1857f-
5(a) of this title, the Administrator may postpone cer-

220a

tification until he has prescribed standards for any air
pollutants emitted by such vehicle or engine which cause
or contribute to, or are likely to cause or contribute to,
air pollution which endangers the public health or wel-
fare but for which standards have not been prescribed
under subsection (a) of this section.

Clean Air Act § 203, 42 U.S.C. § 1857f-2 (1976) (now
42 U.S.C. § 7522)

§ 1857f-2. Prohibited acts

(a) Manufacture, sale, or importation of vehicles or en-
gines not in conformity with regulations; failure to
make reports or provide information; removal of
devices installed in conformity with regulations; pro-
hibited sale or lease of vehicles or engines

The following acts and the causing thereof are
prohibited—

(1) in the case of a manufacturer of new motor
vehicles or new motor vehicle engines for distribu-
tion in commerce, the sale or the offering for sale,
or the introduction, or delivery for introduction, into
commerce, or (in the case of any person, except as
provided by regulation of the Administrator), the
importation into the United States of any new motor
vehicle or new motor vehicle engine, manufactured
after the effective date of regulations under this
part which are applicable to such vehicle or engine
unless such vehicle or engine is covered by a cer-
tificate of conformity issued (and in effect) under
regulations prescribed under this part (except as
provided in subsection (b) of this section) ;

(2) for any person to fail or refuse to permit
access to or copying of records or to fail to make
reports or provide information, required under sec-
tion 1857f-6 of this title;

221a

(3) for any person to remove or render inopera-
tive any device or element of design installed on or
in a motor vehicle or motor vehicle engine in com-
pliance with regulations under this subchapter prior
to its sale and delivery to the ultimate purchaser,
or for any manufacturer or dealer knowingly to
remove or render inoperative any such device or ele-
ment of design after such sale and delivery to the
ultimate purchaser ; or

(4) for any manufacturer of a new motor vehicle
or new motor vehicle engine subject to standards
prescribed under section 1857f-1 of this title—

(A) to sell or lease any such vehicle or en-
gine unless such manufacturer has compiled
[sic] with the requirements of section 1857f-5a
(a) and (b) of this title with respect to such
vehicle or engine, and unless a label or tag is
affixed to such vehicle or engine in accordance
with section 1857f-5a(c) (3) of this title, or

(B) to fail or refuse to comply with the re-
quirements of section 1857f-5a(c) or (e) of this
title.

(b) Authority of Administrator to make exemptions; re-
fusal to admit vehicle or engine into United States;
vehicles or engines intended for export

(1) The Administrator may exempt any new motor
vehicle or new motor vehicle engine, from subsection (a)
of this section, upon such terms and conditions as he
may find necessary for the purpose of research, investi-
gations, studies, demonstrations, or training, or for rea-
sons of national security.

(2) A new motor vehicle or new motor vehicle engine
offered for importation or imported by any person in
violation of subsection (a) of this section shall be re-

222a

fused admission into the United States, but the Secretary
of the Treasury and the Administrator may, by joint
regulation, provide for deferring final determination as
to admission and authorizing the delivery of such a
motor vehicle or engine offered for import to the owner
or consignee thereof upon such terms and conditions (in-
cluding the furnishing of a bond) as may appear to them
appropriate to insure that any such motor vehicle or
engine will be brought into conformity with the stand-
ards, requirements, and limitations applicable to it un-
der this part. The Secretary of the Treasury shall, if
a motor vehicle or engine is finally refused admission
under this paragraph, cause disposition thereof in ac-
cordance with the customs laws unless it is exported,
under regulations prescribed by such Secretary, within
ninety days of the date of notice of such refusal or such
additional time as may be permitted pursuant to such
regulations, except that disposition in accordance with
the customs laws may not be made in such manner as
may result, directly or indirectly, in the sale, to the
ultimate consumer, of a new motor vehicle or new motor
vehicle engine that fails to comply with applicable stand-
ards of the Administrator under this part.

(3) A new motor vehicle or new motor vehicle engine
intended solely for export, and so labeled or tagged on
the outside of the container and on the vehicle or en-
gine itself, shall be subject to the provisions of subsec-
tion (a) of this section, except that if the country of
export has emission standards which differ from the
standards prescribed under subsection (a) of this sec-
tion, then such vehicle or engine shall comply with the
standards of such country of export.

(ec) Exemptions; annual report of exemptions to Congress

Upon application therefore, the Administrator may
exempt from subsection (a) (3) of this section any ve-
hicles (or class thereof) manufactured before the 1974

223a

model year from subsection (a) (3) of this section’ for
the purpose of permitting modifications to the emission
control device or system of such vehicle in order to use
fuels other than those specified in certification testing
under section 1857f-5(a)(1) of this title, if the Ad-
ministrator, on the basis of information submitted by the
applicant, finds that such modification will not result
in such vehicle or engine not complying with standards
under section 1857f-1 of this title applicable to such
vehicle or engine. Any such exemption shall identify (1)
the vehicle or vehicles so exempted, (2) the specific na-
ture of the modification, and (3) the person or class of
persons to whom the exemption shall apply.

Clean Air Act § 204, 42 U.S.C. § 1857f-3 (1976) (now
42 U.S.C. § 7523)

§ 1857f-3. Jurisdiction of district court to restrain vio-
lations; actions brought by or in name of United
States; territorial scope of subpenas [sic] for
witnesses

(a) The district courts of the United States shall have
jurisdiction to restrain violations of paragraph (1), (2),
(3), or (4) of section 1857f-2(a) of this title.

(b) Actions to restrain such violations shall be brought
by and in the name of the United States. In any such
action, subpenas [sic] for witnesses who are required to
attend a district court in any district may run into any
other district.

Clean Air Act § 204, 42 U.S.C. § 1857f-3 (1976) (now
42 U.S.C. § 7524)

§ 1857f-4. Penalties for violations; separate offences
[sic]

Any person who violates paragraph (1), (2), (3), or
(4) of section 1857f-2(a) of this title shall be subject
to a civil penalty of not more than $10,000. Any such
violation with respect to paragraph (1), (2), or (4) of
section 1857f-2(a) of this title shall constitute a separate

1 So in original.

224a

offense with respect to each motor vehicle or motor vehicle
engine.

Clean Air Act § 206, 42 U.S.C. § 1857f-5 (1976) (now
42 U.S.C. § 7525)

§ 1857f-5. Motor vehicle and motor vehicle engine com-
pliance testing and certification

(a) Testing and issuance of certificate of conformity

(1) The Administrator shall test, or require to be
tested in such manner as he deems appropriate, any new
motor vehicle or new motor vehicle engine submitted by
a manufacturer to determine whether such vehicle or
engine conforms with the regulations prescribed under
section 1857f-1 of this title. If such vehicle or engine
conforms to such regulations, the Administrator shall
issue a certificate of conformity upon such terms, and for
such period (not in excess of one year), as he may
prescribe.

(2) The Administrator shall test any emission control
system incorporated in a motor vehicle or motor vehicle
engine submitted to him by any person, in order to de-
termine whether such system enables such vehicle or en-
gine to conform to the standards required to be pre-
scribed under section 1857f-1(b) of this title. If the Ad-
ministrator finds on the basis of such tests that such
vehicle or engine conforms to such standards, the Ad-
ministrator shall issue a verification of compliance with
emission standards for such system when incorporated
in vehicles of a class of which the tested vehicle is rep-
resentative. He shall inform manufacturers and the Na-
tional Academy of Sciences, and make available to the
public, the results of such tests. Tests under this para-
graph shall be conducted under such terms and condi-
tions (including requirements for preliminary testing by
qualified independent laboratories) as the Administrator
may prescribe by regulations.

225a

(b) Testing procedures; hearing; judicial review; addi-
tional evidence

(1) In order to determine whether new motor vehicles
or new motor vehicle engines being manufactured by a
manufacturer do in fact conform with the regulations
with respect to which the certificate of conformity was
issued, the Administrator is authorized to test such ve-
hicles or engines. Such tests may be conducted by the
Administrator directly or, in accordance with conditions
specified by the Administrator, by the manufacturer.

(2) (A) (i) If, based on tests conducted under para-
graph (1) on a sample of new vehicles or engines covered
by a certificate of conformity, the Administrator deter-
mines that all or part of the vehicles or engines so cov-
ered do not conform with the regulations with respect
to which the certificate of conformity was issued, he may
suspend or revoke such certificate in whole or in part,
and shall so notify the manufacturer. Such suspension
or revocation shall apply in the case of any new motor
vehicles or new motor vehicle engines manufactured after
the date of such notification (or manufactured before
such date if still in the hands of the manufacturer), and
shall apply until such time as the Administrator finds
that vehicles and engines manufactured by the manu-
facturer do conform to such regulations. If, during any
period of suspension or revocation, the Administrator
finds that a vehicle or engine actually conforms to such
regulations, he shall issue a certificate of conformity ap-
plicable to such vehicle or engine.

(ii) If, based on tests conducted under paragraph (1)
on any new vehicle or engine, the Administrator deter-
mines that such vehicle or engine does not conform with
such regulations, he may suspend or revoke such cer-
tificate insofar as it applies to such vehicle or engine
until such time as he finds such vehicle or engine ac-

226a

tually so conforms with such regulations, and he shall
so notify the manufacturer.

(B) (i) At the request of any manufacturer the Ad-
ministrator shall grant such manufacturer a hearing as
to whether the tests have been properly conducted or any
sampling methods have been properly applied, and make
a determination on the record with respect to any sus-
pension or revocation under subparagraph (A) ; but sus-
pension or revocation under subparagraph (A) shall not
be stayed by reason of such hearing.

(ii) In any case of actual controversy as to the va-
lidity of any determination under clause (i), the manu-
facturer may at any time prior to the 60th day after
such determination is made file a petition with the United
States court of appeals for the circuit wherein such
manufacturer resides or has his principal place of busi-
ness for a judicial review of such determination. A copy
of the petition shall be forthwith transmitted by the clerk
of the court to the Administrator or other officer desig-
nated by him for that purpose. The Administrator
thereupon shall file in the court the record of the proceed-
ings on which the Administrator based his determina-
tion, as provided in section 2112 of title 28.

(iii) If the petitioner applies to the court for leave
to adduce additional evidence, and shows to the satisfac-
tion of the court that such additional evidence is ma-
terial and that there were reasonable grounds for the
failure to adduce such evidence in the proceeding before
the Administrator, the court may order such additional
evidence (and evidence in rebuttal thereof) to be taken
before the Administrator, in such manner and upon such
terms and conditions as the court may deem proper. The
Administrator may modify his findings as to the facts,
or make new findings, by reason of the additional evi-
dence so taken and he shall file such modified or new

227a

findings, and his recommendation, if any, for the modifi-
cation or setting aside of his original determination, with
the return of such additional evidence.

(iv) Upon the filing of the petition referred to in
clause (ii), the court shall have jurisdiction to review
the order in accordance with chapter 7 of title 5 and to
grant appropriate relief as provided in such chapter.

(c) Inspection

For purposes of enforcement of this section, officers or
employees duly designated by the Administrator, upon
presenting appropriate credentials to the manufacturer
or person in charge, are authorized (1) to enter, at rea-
sonable times, any plant or other establishment of such
manufacturer, for the purpose of conducting tests of ve-
hicles or engines in the hands of the manufacturer, or
(2) to inspect at reasonable times, records, files, papers,
processes, controls, and facilities used by such manufac-
turer in conducting tests under regulations of the Ad-
ministrator. Each such inspection shall be commenced
and completed with reasonable promptness.

(d) Rules and regulations

The Administrator shall by regulation establish methods
and procedures for making tests under this section.

(e) Publication of test results

The Administrator shall announce in the Federal Reg-
ister and make available to the public the results of his
tests of any motor vehicle or motor vehicle engine sub-
mitted by a manufacturer under subsection (a) of this
section as promptly as possible after December 31, 1970,
and at the beginning of each model year which begins
thereafter. Such results shall be described in such non-
technical manner as will reasonably disclose to prospec-
tive ultimate purchasers of new motor vehicles and new
motor vehicle engines the comparative performance of the

228a

vehicles and engines tested in meeting the standards pre-
scribed under section 1857f-1 of this title.

Clean Air Act §207, 42 U.S.C. § 1857f-5a (1976)
(now 42 U.S.C. § 7541)

§ 1857f-5a. Compliance by vehicles and engines in ac-
tual use

(a) Warranty

Effective with respect to vehicles and engines manu-
factured in model years beginning more than 60 days
after December 31, 1970, the manufacturer of each new
motor vehicle and new motor vehicle engine shall war-
rant to the ultimate purchaser and each subsequent pur-
chaser that such vehicle or engine is (1) designed, built,
and equipped so as to conform at the time of sale with
applicable regulations under section 1857f-1 of this title,
and (2) free from defects in materials and workmanship
which cause such vehicle or engine to fail to conform
with applicable regulations for its useful life (as deter-
mined under section 1857f-1(d) of this title).

(b) Testing methods and procedures

If the Administrator determines that (i) there are
available testing methods and procedures to ascertain
whether, when in actual use throughout its useful life
(as determined under section 1857f-1(d) of this title),
each vehicle and engine to which regulations under sec-
tion 1857f-1 of this title apply complies with the emis-
sion standards of such regulations, (ii) such methods
and procedures are in accordance with good engineering
practices, and (iii) such methods and procedures are rea-
sonably capable of being correlated with tests conducted
under section 1857f-5(a) (1) of this title, then—

(1) he shall establish such methods and proce-
dures by regulation, and

229a

(2) at such time as he determines that inspection
facilities or equipment are available for purposes of
carrying out testing methods and procedures estab-
lished under paragraph (1), he shall prescribe regu-
lations which shall require manufacturers to war-
rant the emission control device or system of each
new motor vehicle or new motor vehicle engine to
which a regulation under section 1857f-1 of this title
applies and which is manufactured in a model year
beginning after the Administrator first prescribes
warranty regulations under this paragraph (2). The
warranty under such regulations shall run to the
ultimate purchaser and each subsequent purchaser
and shall provide that if—

(A) the vehicle or engine is maintained and
operated in accordance with instructions under
subsection (c) (3) of this section.

(B) it fails to conform at any time during
its useful life (as determined under section
1857f-1(d) of this title) to the regulations pre-
scribed under section 1857f-1 of this title, and

(C) such nonconformity results in the ulti-
mate purchaser (or any subsequent purchaser)
of such vehicle or engine having to bear any
penalty or other sanction (including the denial
of the right to use such vehicle or engine) un-
der State or Federal law,

then such manufacturer shall remedy such noncon-
formity under such warranty with the cost thereof
to be borne by the manufacturer.

(ec) Nonconforming vehicles; plan for remedying non-
conformity; instructions for maintenance and use

Effective with respect to vehicles and engines manu-
factured during model years beginning more than 60 days
after December 31, 1970—

230a

(1) If the Administrator determines that a sub-
stantial number of any class or category of vehicles
or engines, although properly maintained and used,
do not conform to the regulations prescribed under
‘gection 1857f-1 of this title, when in actual use
throughout their useful life (as determined under
section 1857f-1(d) of this title), he shall immedi-
ately notify the manufacturer thereof of such non-
conformity, and he shall require the manufacturer
to submit a plan for remedying the nonconformity
of the vehicles or engines with respect to which such
notification is given. The plan shall provide that the
nonconformity of any such vehicles or engines which
are properly used and maintained will be remedied
at the expense of the manufacturer. If the manu-
facturer disagrees with such determination of non-
conformity and so advises the Administrator, the
Administrator shall afford the manufacturer and
other interested persons an opportunity to present
their views and evidence in support thereof at a
public hearing. Unless, as a result of such hearing
the Administrator withdraws such determination of
nonconformity, he shall, within 60 day after the com-
pletion of such hearing, order the manufacturer to
provide prompt notification of such nonconformity
in accordance with paragraph (2).

(2) Any notification required by paragraph (1)
with respect to any class or category of vehicles or
engines shall be given to dealers, ultimate purchasers,
and subsequent purchasers (if known) in such man-
ner and containing such information as the Admin-
istrator may by regulation require.

(8) The manufacturer shall furnish with each
new motor vehicle or motor vehicle engine such
written instructions for the maintenance and use of
the vehicle or engine by the ultimate purchaser as

23la

may be reasonable and necessary to assure the
proper functioning of emission control devices and
systems. In addition, the manufacturer shall indi-
cate by means of a label or tag permanently affixed
to such vehicle or engine that such vehicle or engine
is covered by a certificate of conformity issued for
the purpose of assuring achievement of emissions
standards prescribed under section 1857f-1 of this
title. Such label or tag shall contain such other in-
formation relating to control of motor vehicle emis-
sions as the Administrator shall prescribe by
regulation.

(d) Dealer costs borne by manufacturer

Any cost obligation of any dealer incurred as a re-
sult of any requirement imposed by subsection (a), (b),
or (c) of this section shall be borne by the manufac-
turer. The transfer of any such cost obligation from a
manufacturer to any dealer through franchise or other
agreement is prohibited.

(e) Cost statement

If a manufacturer includes in any advertisement a
statement respecting the cost or value of emission con-
trol devices or systenis, such manufacturer shall set
forth in such statement the cost or value attributed to
such devices or systems by the Secretary of Labor
(through the Bureau of Labor Statistics). The Secretary
of Labor, and his representatives, shall have the same
access for this purpose to the books, documents, papers,
and records of a manufacturer as the Comptroller Gen-
eral has to those of a recipient of assistance for pur-
poses of section 1857] of this title.

(f) Inspection after sale to ultimate purchaser

Any inspection of a motor vehicle or a motor vehicle
engine for purposes of subsection (c) (1) of this section,

232a

after its sale to the ultimate purchaser, shall be made
only if the owner of such vehicle or engine voluntarily
permits such inspection to be made, except as may be
provided by any State or local inspection program.

Clean Air Act §210, 42 U.S.C. §1857f-6b (1976)
(now 42 U.S.C. § 7544) *

§ 1857f-6b. Federal assistance in developing and main-
taining vehicle emission devices and systems inspec-
tion and emission testing and control programs

The Administrator is authorized to make grants to
appropriate State agencies in an amount up to two-thirds
of the cost of developing and maintaining effective vehicle
emission devices and systems inspection and emission
testing and control programs, except that—

(1) no such grant shall be made for any part of
any State vehicle inspection program which does not
directly relate to the cost of the air pollution control
aspects of such a program;

(2) no such grant shall be made unless the Sec-
retary of Transportation has certified to the Ad-
ministrator that such program is consistent with any
highway safety program developed pursuant to sec-
tion 402 of title 23; and

(3) no such grant shall be made unless the pro-
gram includes provisions designed to insure that
emission control devices and systems on vehicles in
actual use have not been discontinued or rendered
inoperative.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0397%3A2. Public record. Not legal advice.