# Appendix — General Motors Corp. v. Thomas

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1985
- **Citation:** 471 U.S. 1074

## Text

: ee ice - Supreme
84-1098 [77m]

No.
———— ———_

In THE CLERK

JAN 7 1985

ALEXANDER L STEVAS,

Supreme Court of the Gnited States

OcTOBER TERM, 1984

GENERAL Motors CORPORATION,
Petitioner,

V.
Lee M. THomAsS, ACTING ADMINISTRATOR,

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,
Respondent.

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

William L. Weber, Jr. Theodore Souris

George F. Ball James A. Smith

Thomas L. Arnett Terrence B. Larkin

GENERAL Morors Robert M. Spence
CORPORATION BopMAN, LONGLEY &

3044 West Grand Blvd. DAHLING

Detroit, Michigan 48202 34th Floor

(313) 556-4009 100 Renaissance Center

Detroit, Michigan 48243
(313) 259-7777

Edward W. Warren

(Counsel of Record)
David G. Norrell
Attorneys for Petitioner KIRKLAND & ELLis
General Motors 655 Fifteenth Street, N.W.
Corporation Washington, D.C. 20005
January 7, 1985 (202) 879-5018
I saaemneeneeseenieimeineimeenmsenimeneemmmminiee enim
PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203 g
WV

Appendix A:
Appendix B:

Appendix C:

Appendix D:
Appendix E:

Appendix F:

Appendix G:

Appendix H:

INDEX TO APPENDIX

D. C. Circuit En Bane Opinions, Sep-
tember 7, 1984.

D. C. Circuit Panel Opinions, December
16, 1983.

D. C. Circuit Order Granting Rehearing
En Banc, March 22, 1984.

D. C. Circuit Supplemental Briefing
Order on Rehearing En Banc, April 3,
1984.

D. C. Circuit Judgment.

EPA “Interpretative Rule” Concerning
Motor Vehicle Recalls Under the Clean
Air Act, 45 Fed. Reg. 36396 (May 30,
1980).

EPA Final Action Letter on 1975 Cadil-
lac Recall (June 23, 1980).

Clean Air Act Sections 202(a), 202(d),
207, 301. 307(b)(e).

S. Rep. No. 1196, 91st Cong., 2d Sess.
29-31, reprinted in 1 1970 Legislative
History of the Clean Air Act 429-31.
Section 207 as provided in proposed S.
4358, 91st Cong., 2d Sess. (1970).

EPA Memorandum on Factual Back-
ground Supporting Need for Inter-
pretative Rule on Motor Vehicle Manu-
facturers’ Liability for Repair of Recall
Vehicles (May 9, 1980) (Attachments 1-7
omitted).

Page
A-l

APPENDIX A

A-1

Notice: This opinion is subject to formal revision defore 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.

Buited States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 80-1868

GENERAL MOTORS CORPORATION,
a Delaware Corporation, PETITIONER

v.
WILLIAM D. RUCKELSHAUS, ADMINISTRATOR,

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,
RESPONDENT

No. 80-2027

GENERAL MOTORS CORPORATION,
a Delaware Corporation, PETITIONER

v.

WILLIAM D. RUCKELSHAUS, ADMINISTRATOR,
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,
RESPONDENT

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.

A-2
No. 81-1029

GENERAL MOTORS CORPORATION,
a Delaware Corporation, PETITIONER

Vv.

WILLIAM D. RUCKELSHAUS, ADMINISTRATOR,
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,
RESPONDENT

Petitions for Review of an Order of the
Environmental Protection Agency

Argued April 25, 1984
Decided September 7, 1984

Theodore Souris and George F. Ball, with whom
Michael B. Lewiston, James A. Smith, Terrance B.
Larkin, Frederick J. Dindoffer and William L. Weber,
Jr. were on the brief, for petitioner in Nos. 80-1868,
80-2027 and 81-1029.

Jose R. Allen, Attorney, Department of Justice, with
whom A. James Barnes, General Counsel, Gerald K.
Gleason, Assistant General Counsel, Robert A. Weissman,
Samuel I. Gutter, Attorneys, Environmental Protection
Agency, David E. Dearing and John Wittenborn, At-
torneys, Department of Justice, were on the brief, for
respondent. Angus MacBeth, Donald W. Stever, Jr. and
Rosanne Mayer, Attorneys, Department of Justice also
entered appearances for respondent.

Before: ROBINSON, Chief Judge, WRIGHT, TAM™M,
WILKEY, WALD, Mikva, EDWARDS, GINSBURG,
SCALIA and STARR, Circuit Judges, and BAZE-
LON, Senior Circuit Judge.

A-3

Opinion for the Court filed by Circuit Judge WALD.

Dissenting opinion filed by Senior Circwt Judge
BAZELON in which Circuit Judges TAMM and WILKEY
join.

WALD, Circuit Judge: In this appeal, the General
Motors Corporation (GM) challenges the authority of the
Environmental Protection Agency (‘EPA or Agency) to
require manufacturers, as a part of a recall pursuant
to the Clean Air Act, to repair cars and engines, which
are members of the reca!! class, but which have exceeded
their statutory “useful lives” of five years or 50,600 miles
at the time of repair. In 1980, the EPA promulgated
what it termed an “interpretive rule,”embodying its con-
sistent regulatory practice since the enactment of the
Clean Air Act Amendments of 1970, requiring manu-
facturers to repair all members of a recall class, re-
gardless of their age or mileage at the time of repair.
Soon thereafter, in accordance with. the interpretative
rule, the agency ordered GM to submit a remedial plan
for a class of recalled Cadillacs that included all class
members regardless of age or mileage. In its petitions
to this court, GM contends that (1) the EPA rule is a
legislative, not interpretative, rule, and therefore the
rule is void for failure to comply with the notice and
comment procedures set down by the Administrative Pro-
cedure Act, and {2) in any event, the rule runs counter
to the recall provision of the Clean Air Act and therefore
is an invalid interpretation of the statute. GM conse-
quently challenges the validity of both the interpretative
rule and the agency order that applied the rule to the
recall of GM automobiles. For the reasons stated below.
we hold that the EPA rule is a valid interpretative rule,
supported by the language, purpose and legisiative his-
tory of section 207(c) of the Clean Air Act Amendments
of 1970. We accordingly deny GM’s petitions.

A-4

I. BACKGROUND

On March 21, 1977, after an EPA investigation and
testing by both EPA and GM, the Administrator of the
EPA notified GM pursuant to section 207(c) (1) of the
Clean Air Act that the class of 1975 Cadillacs with
type 230-carburetors did not conform with federal stand-
ards for carbon monoxide emission, and ordered GM to
“submit a plan for recalling and remedying the noncon-
formity of the vehicles.”' At the same time, the Ad-
ministrator expressed concern that another set of 1975
Cadillacs—with type 193-carburetors—also exhibited non-
conformity with the carbon monoxide standards, but he
refrained from initiating 2 formal recall of that class in
order to give GM an opportunity to sustantiate its
“strong protestations” that this latter class did not vio-
late the standards. See Letter from Douglas M. Costle.
EPA Administrator, to E.M. Estes, President of GM
(March 21, 1977), reprinted in Joint Appendix (J.A.)
at 122-24.

Five weeks later, GM filed a proposed remedial pian
for the 230-carburetor Cadillacs, and as a part of the
plan offered to recall the 193-carburetor Cadillacs volun-
tarily.* See J.A. at 126-27. EPA did not approve the

1 Letter from Douglas M. Costle, EPA Administrator, to
E.M. Estes, President of GM (March 21, 1977), reprinted in
Joint Appendix (J.A.) at 122-24. While it was and is the
agency’s policy to encourage voluntary recalls, the Adminis-
trator “fe[lt] compelled to issue th[e] order’ because “Gen-
eral Motors’ acquiescence to recall comes at the end of more
than two years of EPA investigation and GM opposition, and
after assemblage of the most convincing case yet for recail.”
Id. Moreover, the Administrator expressed “some concern
over the likelihood of actual implementation by dealers of the
remedy proposed by General Motors and wish[ed] to preserve
[the] right to approve the remedy to be actually pursued.” /d.

2 The remedial plan initially submitted by GM covered “all
1975 Cadillac models except those built with California Emis-
sion Controls.” Remedial Plan for 1975 Cadillacs (April 27,

A-5

plan, however, and negotiations continued for two years
between the agency and GM over the effectiveness of the
proposed repairs and the manufacturer’s obligation to
audit the performance of completed repairs. Finally, on
December 26, 1979, the EPA withdrew its demand that
GM conduct an audit, deciding instead to conduct the
audit itself, and approved GM’s amended remedial plan.°

At that time, however, GM urged the EPA to cancel
the recall, arguing that “as a direct result of the delays
incurred since our first remedial plan was submitted,
a point of drastically diminished returns has been
reached.” Letter from T.M. Fisher, Automotive Emis-
sion Control Director for GM, to Benjamin R. Jackson,
EPA Deputy Assistant Administrator for Mobile Source
and Noise Enforcement (Feb. 5, 1980), reprinted in J.A.
at 258. More specifically, GM contended for the first
time that “only those vehicles within the lesser of five
years or 50,000 miles of operation at the time of pre-
sentation to the dealer for repairs will receive the [re
medial repairs] at General Motors [sic] expense.” ‘ Jd.,
reprinted in J.A. at 259. GM thus believed that so few
Cadillacs in the class would be subject to recall because
of their age or mileage that the recall should not be
implemented at all.

1977), reprinted in J.A. at 129. The plan specifically provided
that “[{a] vehicle affected will be eligible for repair under the
remedial plan, regardless of vehicle age, mileage, or owner.”
Id., reprinted in J.A. at 181.

3 See Letter from Benjamin R. Jackson, Deputy Assistant
Administrator for Mobile Source and Noise Enforcement, to
T.M. Fisher, Director of GM Automotive Emission Control
(Dec. 26, 1979), reprinted in J.A. at 252-55.

* GM contends that its 1980 letter merely restated a position
it had taken a year earlier in negotiations with the EPA. See
GM Brief at 5. EPA, however, asserts that the letter repre-
sents “the first time that GM had proposed to impose a 5,50
{useful life] limitation on a remedial pian.” EPA Brief at 11.
Nothing in the record shows that GM presented this limitation
prior to its 1980 letter.

On May 30, 1980, the EPA promulgated the rule at
the center of dispute in this case. See 45 Fed.
36,396 (May 30, 1980). Under the rule, all remedial
plans filed under section 207(c) of the Clean Air Act
“shall provide that the manufacturer will remedy, at the
manufacturer's expense, all properly maintained and
used vehicles which experienced the nonconformity during
their useful lives regardless of their age or mileage at
the time of repair.” 40 C.F.R. Subpart S App. A ‘em-

t

added). Applying this rule to the recall of the
5 Cadillacs, the EPA on June 23, 1980 approved GM's
Cadillac remedial plan insofar as it applied to vehicles
within their useful lives at the time of repair, and or-
dered GM to submit a plan for the repair of automobiles
within the recall class “which failed or will fail to con-
form to applicable emission standards during their use-
ful lives but will be beyond their useful lives at the
time of repair.” Letter from Charlies N. Freed, EPA
Acting Assistant Deputy Administrator for Mobile
Source, Noise and Radiation Enforcement, to T.M.
Fisher, Director of Automotive Emission Control for GM
(June 23, 1980), reprinted in J.A. at 263.

GM then petitioned this court, challenging both the
May 30 rule and the June 30 recall determinations.’
GM argues that ‘1) the May 30 rule constituted a legis-
lative rulemaking, despite EPA’s characterization of the
rule as “interpretive,” and therefore the EPA failed to
foilow the notice and comment procedures required be-
fore such rules may be promulgated, and (2) by requir-
ing the repair of automobiles beyond their useful lives,
the rule exceeds the EPA’s authority under section

&

*On November 26, 1980, the EPA published a notice in the
Federal Register declaring ite partial approval and partial
disapproval of GM’s remedial plan to be “final.” See 45 Fed.
Reg. 78798 (Nov. 26, 1980). GM subsequently filed a protec-
tive petition, consolidated with its previous appeals, seeking
review of this Federal Register notice.

A-7

207(c) of the Clean Air Act. For the reasons explained
below, we disagree with both of GM’s contentions.

Il. Tse EPA Rute Is AN INTERPRETATIVE RULE

EPA styled its May 30 rule as an “interpretive
rule.” See 45 Fed. Rez. 36,396 (May 30, 1980). As a
preliminary matter, GM challenges this characterization.

that the May 30 rule is, on the contrary, a
“legislative rule” and is consequently void for failure
to follow the notice and comment procedures required
for the promulgation of such rules. See 5 U.S.C. § 553.
Because we find that EPA properly categorized the Ma’
30 rule, we conclude that notice and comment procedures
were not required. See id. § 553(b) (A).*

In a turn of phrase particularly apt in this case. the
distinction between legislative and nonlegislative rules
has been described as “enshrouded in considerable smog.”
American Bus Association v. ICC, 627 F.2d 525, 529
(D.C. Cir. 1980) ‘quoting Noel v. Chapman, 508 F.2d
1023, 1030 (2d Cir. 1975) ‘discussing definition of “gen-
eral statement of policy”)!. Nonetheless, there are cer-
tain general principles that aid reviewing courts in
making the determination whether a given rule is
legislative or interpretative. First. the agency's own
label, while relevant, is not dispositive. See, ¢.g., Cham-
ber of Commerce v. Occupational Safety and Health
Administration, 636 F.2d 464, 468 (D.C. Cir. 1980);
Citizens to Save Spencer County v. EPA, 600 F.2d 84-41,
879 n.171 (D.C. Cir. 1979). An interpretative rule

* The APA exempts from its notice and comment procedures
“interpretative rules, general statements of policy, or rules of
agency organization, procedure, or practice.” 5 U.S.C. £ 553
(b) (A). Similarly, the Clean Air Act exempts from its special
rulemaking procedures “any rule or circumstance, referred to
in subparagraphs (A) or (B) of subsection 553(b) of title 5.”
42 U.S.C. § 7607(d) (1). Accordingly, interpretative rules are
not subject to the procedural requirements set down by either
the APA or the Clean Air Act.

A-8

simply states what the administrative agency thinks the
statute means, and only “ ‘reminds’ affected parties of
existing duties.” Citizens to Save Spencer County, 600
F.2d at 876 & n.153; see also Chamber of Commerce, 636
F.2d at 469. On the other hand, if by its action the
agency intends to create new law, rights or duties, the
rule is properly considered to be a legislative rule. See,
¢.g., American Postal Workers Union v. United States
Postal Service, 707 F.2d 548, 568-59 (D.C. Cir. 1983);
Citizens to Save Spencer County, 600 F.2d at 876.

In light of these general principles, we find that the
May 30 rule constitutes an interpretative rule. We note,
to begin with, that the agency regarded its rule as in-
terpretative. See 45 Fed. Reg. 36,2396 (May 30, 1980)
(“Action: Interpretive Rule’). Moreover, EPA’s entire
justification for the rule is comprised of reasoned statu-
tory interpretation, with reference to the language, pur-
pose and legislative history of section 207(c). See id.
at 36397-98. Indeed, the language of the rule itself in-
dicates its interpretative nature. See 40 C.F.R. Subpart
S App. A (“The purpose of this rule is to set forth
EPA’s interpretation ... under wction 207(c) (1) of the
Clean Air Act... .”) Finally, and most importantly,
the rule did not create any new rights cr duties; instead,
it simply restated the consistent practice of the agency
in conducting recalls pursuant to section 207 (c).’

’ The dissent contests this proposition, and calls it “a propo-
sition upon which the majority places substantial weicht.”
Diss. Op. at 3. At the outset, it should be made clear that this

proposition is significant primarily in support of the conclu-
sion that the EPA rule is interpretative, and not legislative.
& proposition with which the dissent agrees. See Diss. Op.
at 1 &n.3.

In its attempt to make light of the EPA’s historical ad-
herence to its current interpretation, the dissent asserts that
the EPA interpretation has only “a lifespan barely exceeding
one year” because the sole controversy over the interpretation
occurred in 1979. See Diss. Op. at 3 n.11. However, as the
EPA observed when it issued its interpretative rule “[i]n

|

A-9

Accordingly, we hold that the May 30 rule was an in-
rule. The EPA therefore was not required

to follow notice and comment procedures prior to the
adoption of the rule. See 5 U.S.C. § 553/b) (A). We now

the past, manufacturers have not conditioned a vehicle’s eligi-
bility for recall repair . . . on the basis of the vehicle’s age or
mileage.” 45 Fed. Reg. at 36,397. Rather than diminishing
the rule’s status as a longstanding EPA interpretation, the
absence of any prior controversy over the repair of cars ex-
ceeding their useful lives demonstrates the reasonableness of
the EPA’s interpretation of its own regulatory scheme. See,
¢.g., Esquire, Inc. v. Ringer, 591 F.2d 796, 801 (D.C. Cir.
1978) (Bazelon, J.) (administrative interpretation deserves
“controlling weight,” particularly when it “has been con-
sistently followed for a significant period of time”), cert.
denied, 440 U.S. 908 (1979); DeLano v. United States, 393
F.2d 517, 521 (Ct Cl. 1968) (“A strong indication of the
reasonableness of that [administrative] construction is the
fact that (the regulated parties] never challenged it” even
though it was “consistently maintained by the agency.”).
Apparently, virtually every manufacturer engaging in a recall
has voluntarily included older cars in its own remedia! plans.

The dissent mistakenly speculates that “manufacturers in
previous recalls have failed to raise the question of liability for
repair of cars beyond their useful lives because the involve-
ment of such vehicles in the recalls has been de minimis.”
Diss. Op. at 4112. The dissert here loses sight of the facts.
Despite its view that “virtually all” of the recalls involved tiny
percentages of older cars, in six out of the fifteen recalls
described in detail in the record, see J.A. at 278-96, the EPA
issued a recall notice to the manufacturer 34-55 months after
the cars were on the market. Under EPA’s method of cal-
culating the percentage of cars recalled that were beyond
their useful lives, see J.A. at 275, these recalls involved large
quantities of older cars. For example, the Pontiac recall.
initiated in 1979, involved 1975 model year cars, 547 of
which were beyond their useful lives. See J.A. at 293. More-
over, almost 30% of the 1976 Pontiacs involved in that recall
had exceeded their useful lives at the time of manufacturer
notice. Similarly, in 1978 EPA initiated a recall that included
1975 Fords, approximately 28° of which had exceeded their
useful lives. See J.A. at 289. Also, in 1978 the EPA began a
recall that included 1974 AMC cars sold in California, approxi-

A-10

consider whether the interpretative rule is valid under
section 207(c) of the Clean Air Act. -

mately 56% of which were beyond their useful lives. See J.A.
at 291-92. Any manufacturer who “prophetically foresaw”
the dissent’s position, Diss. Op. at 4 n.12, believing these re-
calls exceeded the legal scope of coverage, could reasonably
have been expected to make an objection.

Moreover, at least three other recalls included substantial
numbers of olders cars. See J.A. at 280 (1974 Pontiacs: ap-
proximately 22% beyond useful lives); J.A. at 288 (1975
Fords; approximately 16% beyond useful lives); J.A. at 296
(1977 Buicks ; approximately 28.5% beyond useful lives).

The dissent obfuscates the issue by claiming that the above
discussion “neglect{s] the fact” that some of these recalls in-
cluded younger cars in addition to older cars, and that the
“AMC recall was complicated by the more stringent emissions
standards” applicable only in California. Diss. Op. at 4 n.12.
However interesting, these details are irrelevant to the dis-
sent’s assertion that the manufacturers “failed to raise the
question of liability for repair of cars beyond their useful
lives because the involvement of such vehicles in the recalls
has been de minimis.” Id. The recall of younger cars in addi-
tion to older cars in no way detracts from the fact that there
were substantial numbers of older cars involved in these
recalls. The relevance of the California air emission stand-
ards to the dissent’s position is at best obscure.

In a final aside, the dissent invokes the fact that “owner
responses to recalls drop dramatically with the age of the
vehicle.” Jd. Such statistical sport, however, ignores the fact
that the manufacturer incurs heavy costs—both financial and
good will—simply by issuing its notice to owners. Moreover,
while the response rate declines as time goes by, the per-
centage of older cars in the recall sales rises commensurately.
See J.A. at 275, 298. Therefore, whatever the age of the recal!
class, the manufacturer would still have a substantial stake
and ample incentive to raise the useful life issue.

In sum, the dissent fails in its attempts to transmogrify the
absence of controversy over the EPA’s policy into the absence
of any EPA policy on the useful life limitation. Taken indi-
vidually or cumulatively, the dissent’s efforts to invent post
hoc rationalizations for the manufacturers’ failure to chal-
lenge the EPA’s policy are similarly unconvincing. The EPA

A-l1l

III. THe EPA Rute Is A PERMISSIBLE INTERPRETATION
OF SECTION 207 :

The EPA’s May 30 rule finds substantial support, and
no contradiction, in the language and legislative history
of section 207 of the Clean Air Act. Moreover, the May
30 rule effectuates important public policy goals em-
bodied in the Act. Accordingly, we uphold the validity
of the EPA rule at issue in this case.

The Supreme Court has recently outlined our proper
task in reviewing an administrative construction of a
statute that the agency administers. First, we must de-
termine whether Congress “has directly spoken to the
precise question at issue.” Chevron, U.S.A. v. National
Resources Defense Council, No. 82-1005, slip op. at 4
(June 25, 1984). If the administrative construction runs
counter to clear congressional intent, then the reviewing
court must reject it. See id. at 4 n.9; see also FEC v.
Democratic Senatorial Campaign Committee, 454 U.S.
27, 32 (1981). On the other hand, if the administra-
tive construction does not contravene clearly discernible
legislative intent, then the reviewing court “does not
simply impose its own construction on the statute.”
Chevron, slip op. at 5. Instead, we then must conduct
the “narrower inquiry into whether the [agency’s] con-
struction was ‘sufficiently reasonable’ to be accepted by
a reviewing court.”* Democratic Senatorial Campaign
Committee, 454 U.S. at 39; see Chevron, slip op. at 5.

has consistently approved only those remedial plans that in-
cluded all cars and engines in the recall] class, regardless of
their age or mileage. It therefore constitutes a longstanding
administrative policy.

*It is difficult to square the dissent’s position with these
recent pronouncements by the Supreme Court. Although the
dissent attempts to invoke the “plain meaning of the statute,”
Diss. Op. at 8, in truth it argues only that the useful life
limitation should be imported into the recall provision. See
id. at 7-8. However, nothing in the language or legislative
history of the recall provision compels this result. See infra

A-12

We begin our review with an examination of the stat-
ute. Section 207(c) (1) provides, in pertinent part:

If the Administrator determines that a substantial
number of any class or category of vehicles or en-
gines, although properly maintained and used. do
not conform to the [EPA emission standards],
when in actual use throughout their useful life (as
determined under section 7521(d) of this title), he
shall immediately notify the manufacturer thereof
of such nonconformity, and he shall require the man-
ufacturer to submit a plan for remedying the non-
conformity of the vehicles or engines with respect
to which such notification is given.

42 U.S.C. § 7541(c) (1). The EPA interprets this pro-
vision to authorize the recall of all members of a non-
conforming class, except those not “properly maintained
and used,” regardless of the age or mileage of any given
member. We think the statute provides ample support
for such an interpretation.

The statute requires manufacturers to submit remedial
plans for “vehicles or engines with respect to which...
notification is given,” and directs the EPA Administra-
tor to give such notification with respect to a “class or

at pp. 13-16. The absence of a useful life limitation in the recall
provision should be compared with the express limitation of
the manufacturer’s liability under the warranty provision to
emissions violations occurring during a vehicle's “useful life.”
Compare 42 U.S.C. § 7541(c) (1) (recall provision) with id.
§ 7541(a) (warranty provision). See infra at pp. 19-20.

Similarly, the dissent’s extensive dicta, setting out what it
dubs “some reascus le alternatives,” see Diss. Op. at 20-24, is
particularly inappropriate in light of the Supreme Court’s
recent warning that reviewing courts should respect the
policy choices of administrative agencies. See Chevron, slip
op. at 27-28. The question presented today is whether the
agency’s action is a reasonable one in light of the existing
statutory constraints, and it is not the job of the courts to
propose rules that they would prefer the agency to adopt.

A-13

category of vehicles or engines,” a substantial number
of which exhibited nonconformity durmg their useful
lives. The statute thus provides for notice on a class-
wide basis and further requires the manufacturer to
remedy all cars with respect to which such notice is
given. In light of this class-based orientation of section
207(c) (1), we think the EPA reasonably mandated that
remedial plans be designed to cover all members of a
recall class. The agency reasonably required the manu-
facturers to include a car or engine in their remedial
plans if (1) a substantial number of cars within a given
class exhibited nonconformity during their useful lives,
and (2) the car is a member of that class. Section 207
(c) affords an ample basis for this requirement.

GM nevertheless argues that individual vehicles and
engines that have exceeded their useful lives cannot pos-
sibly exhibit a “nonconformity,” because the Clean Air
Act’s emission standards apply only to vehicles and en-
gines within their useful lives. See 42 U.S.C. § 7521
fa) (1). Since section 207(c) requires manufacturers to
devise remedial plans so that a recall will “remedy the
nonconformity” cf the class, GM concludes that its re-
medial obligations extend only to those members of a
recall class that are within their useful lives at the
time of repair.

However, while it is true that the emission standards
apply only to individual cars and engines during their
useful lives, it does not follow that only those cars and
engines within their useful lives may be recalled. [n-
deed, the question presented by this case is whether a
member vehicle or engine of a recall class that has ex-
ceeded its useful life should nevertheless be repaired un-
der section 207/c! at the manufacturer’s expense. That
question is not settled by the definition of “useful life”;
rather, it turns on the intended scope and purpose of the
recall provision. As we have explained above, section 207
(ec) provides for classwide remedies of classwide defects.

A-14

Accordingly, :’PA reasonably reads the section to require
the manufacturers to submit plans to “remedy the non-
conformity” of the recall class. After all, a defective
class—the members of which do not satisfy the emission
standards during their useful lives—can be considered
“nonconforming.” Hence the May 30 rule is not pre
cluded by the statute’s definition of “useful life.”

Moreover, assuming arguendo that only individual cars
and vehicles within their useful lives could exhibit a “non-
conformity,” a plan “for remedying the nonconformity”
could still include cars or engines beyond their useful
lives at the time of repair. Through the recall scheme,
Congress obviously intended the EPA to conduct tests on
representative samplings of cars and engines, and to base
its decision to recall on such tests.? Unless Congress

*The dissent erroneously concludes that the EPA rule
“would expose the manufacturer to liability for repair vir-
tually indefinitely.” Diss. Op. at 13. The statute, however,
authorizes the Administrator to institute a recall. only after
determining that a substantial number of vehicles or engines
in the class “do not conform to the [emission .tandards] when —
in actual use throughout their useful life.” 42 U.S.C. § 7541
(c) (1) (emphasis added). Since cars and engines oldvr than
five years of age are no longer within their useful! lives, this
statutory condition cannot be met “indefinitely.” There is, at
the very least, this definite time limitation on the Administra-
tor: he must conclude his testing before the entire recall
class has exceeded five years of age.

Moreover, special problems might arise when a proposed
recall class includes nurnerous model years of a particular car
or engine, some of which have entirely exceeded their useful
lives at the time the EPA conducts its testing. See Diss. Op.
at 14-15 (hypothesizing such a class). The design of some
features of a class of cars or engines might be a!tered from
one model year to another. If these changes could affect the
level of auto emissions, then the EPA’s testing of only the
models within their useful lives might not be conclusive as to
the nonconformity of the entire class proposed for recall.
However, since the recall class presented in this case does not
raise this problem, we need not decide this hypothetical.
Suffice it to say that our reading of the statute amply permits

A-15

wanted the EPA to test every car in a class—an absurd
prospect—it was willing to allow a statistical inference
from representative testing that all members of the class
exhibit a nonconformity during their useful lives. Once
it is established that a car was out of compliance with
emission standards during its useful life, a reasonable
remedy could include the repair of the car to compensate
for the pollution caused during the time of its violation.
Therefore, once the EPA establishes that members of a
recall class were generally nonconforming during their
useful lives, a reasonable method of “remedying the non-
conformity” includes the repair of all members of the
class, even if some had exceeded their useful lives.'°° We
note that under the EPA rule, if a certain car or sub-
class of cars were in compliance during the five year
or 50,000 mile period. then the manufacturer need not
repair that car or subclass of cars."1 See 45 Fed. Reg.

the EPA to recall cars and engines regardless of their age at
the time of recall. We do not address today the possible
contraints upon the EPA in defining the reasonable scope of
a recall class.

10 At oral argument and in its supplemental brief, the EPA
attested to its flexibility in devising appropriate and reason-
able remedial schemes for older cars and engines. We do not
find, and GM does not contend, that the remedy proposed for
the Cadillacs in this case is unreasonable.

12 The dissent complains that “the EPA’s rule establishes an
absolute and irrebutable presumption that all older cars were
among the precentage failing to meet standards during their
useful lives.” Diss. Op. at 19-20. However, it is the statute
that establishes the presumption that the cars and engines
within a class exhibiting substantial nonconformity are in-
dividually nonconforming. Moreover, this presumption is not
“absolute and irrebuttable”; the manufacturer is free tc come
forward with evidence that an individual car or engine, or 2
particular subclass of cars and engines, were in fact conform-
ing during their useful lives. The results of on-the-road
testing would be particularly relevant to this inquiry.

This same proof problem, of course, would be present in the
implementation of the dissent’s proposal to permit the Ad-

A-16

36,397 n.2 (May 30, 1950) (“the manufacturer is not
responsible to remedy the nonconformity of a vehicle
which, although part of the recall class, experienced the
nonconformity only after expiration of the vehicle’s use-
ful life’’).

The legislative history similarly supports EPA’s in-
terpretative rule. The Report of the Senate Public Works
Committee—upon which GM heavily relies, see infra at
p. 18—refers to the recall of an entire “model or class”
of vehicles or engines. S. Rep. No. 1196, 91st Cong., 2d
Sess. 29 (1970). The Senate Committee bill designed
two methods for EPA to assure in-use compliance with
emission standards. First, after the development of 2
“quick test” method, the EPA could test the continuing
compliance of “individual vehicles on the road.” Jd. Al-
ternatively, the EPA could conduct more intensive ex-
aminations of “representative sample{s] of a model or
class,” and, after a finding of classwide noncompliance,
EPA “could require the manufacturer to recal] that
model or class.” Jd.; see id. at 111 (section 207 of S.
4358) (if EPA finds that “statistically representative
samples of any class or category of vehicles or vehicle
engines . . . do not conform,” then all “vehicle enzines
included within the class or category” should be noti-
fied) ; id. at 62-63 (section-by-section analysis) after the
EPA “discovers defects through testing’ of a class of
' vehicles or engines, it “shall order the manufacturer to
notify . . . purchasers of the defect’) (emphasis added).

ministrator to recall cars and engines that were within their
useful lives at the time of the notice of nonconformity.. Under
this proposal, manufacturers would be required to repair
cars and engines exceeding their useful lives without any
showing that the particular cars or engines had violated the
emission standards during their useful lives. The dissent’s
proposal, to be practical, must also follow the statutory pre-
sumption that members of the recall class were nonconform-
ing during their useful lives.

A-17

Furthermore, when Congress revisited section 207/c)
in 1977, the discussion assumed that the recall provi-
sion extended to all member vehicles or engines of the
nonconforming classes. See, ¢.g., H. Rep. No. 294, 95th
Cong., 1st Sess. 497 (“if a substantial number of sys-
tems fail during their on-the-road operation, the EPA
can recall the entire lot for repair at the manufacturer’s
expense”) ; id. at 498 (noting the possibility of ‘“‘a recall
of all of that model vehicle or engine type”) ; 6 Environ-
mental Policy Division of the Congressional Research
Service of the Library for the Comm. on Environment
and Public Works, 95th Cong.. 2d Sess. 4540 (1978)
(preliminary statement of Sen. Bentsen) (“section 207
(ec) authorizes the Agency to require the automaker to
recall a given model run for needed repairs if the Agency
determines that a substantial number of that model or
engine type do not conform to the standards when in
actual use”) (emphasis added) ; id. at 1220 (preliminary
statement of Sen. Riegle) (“If a substantia] number
of systems fail during their on-the-road operation, the
EPA can recall the entire lot for repair at the manu-
facturer’s expense”). Given these indicia of the congres-
sional understanding of section 207/c), and the contem-
poraneous administrative policy (as evidenced by manu-
facturers’ remedial plans, see supra at p. 4', it is rea-
sonable to assume that Congress reaffirmed the EPA’s
understanding of its recall authority when it revisited
and ratified the recall provision in 1977. There is not a
shred of evidence to the contrary.”

12 In addition, EPA’s class-based interpretation of section
207 enjoys precedential support. This court, in one of the few
judicial cases to construe the recall provision, observed that
“Cu]nlike the discovery and cure of nonconformity of indi-
vidual vehicles under the warranty provisions, the remedy at
this stage is recall of the entire class of vehicles in order to
correct the design, material, or workmanship defect.” Chrysler
Corp. v. EPA, 631 F.2d 865, 868 (D.C. Cir.) (emphasis in
original), cert. denied, 449 U.S. 1021 (1980).

A-18

Nonetheless, GM contends that one bit of legislative
history contradicts the EPA’s interpretation. Specifically,
GM heavily relies upon one passage from the Report
of the Senate Public Works Committee. In discussing
a provision that was the precursor to section 207 as
finally enacted, the Report said:

The Committee also recognizes the difficulty in any
recall provision of notifying the owners of vehicles.
The Committee expects that the manufacturer would
not only depend on the files of the franchise dealer,
but would, to the extent practicable, use State motor
vehicle department registration files to obtain the
names and addresses of subsequent purchasers of
ears. By establishing a 50,000 mile, no year life-
time for the purpose of warranty, the Committee
did not intend to relieve the automobile manufac-
turers of their responsibility to notify owners of
older cars. The 50,000-mile period cun be assumed
to be 4 to 5 years and the manufacturer should be
expected to notify any owner of a vehicle that is
five years old or less as to failure to continue to
perform to the standard. A decision not to re-
' quire the manufacturer to repair the vehicle could
be made after notice and after finding that the ve-
hicle had exceeded the 50,000-mile warranty period.

S. Rep. No. 1196, supra, at 31. GM believes that this
passage constitutes a clear indication that Congress in-
tended to limit the manufacturers’ recall obligations to
exclude cars and engines beyond their useful lives.

We disagree. In the first place, we would be very
hesitant to overrule a reasonable agency interpretation,
which enjoys support in the statutory language and other
portions of legislative history, on the basis of a single,
and rather ambiguous, passage from a committee re-
port.“ Furthermore, as explained below. we find that

13 As this court, sitting en banc, observed:

[I]t must be remembered that committee reports are not
the law; they are only aids in interpreting statutory

A-19

this passage in no way undermines the EPA’s interpre-
tation of section 207, because the Senate bill under con-
sideration at the time the Committee wrote its report
did not contain a recall provision similar to the pro-
vision finally embodied in section 207. Accordingly, we
conclude that nothing in the legislative history runs coun-
ter to the EPA’s May 30 rule.

The Senate bill did not impose upon manufacturers
any recall repair obligation; it provided only for the
warranty repair obligation. Section 207(d)(2) of the
bill merely directed the EPA to “order the manufacturer
to provide prompt notification . . . [to] purchasers of
all . . . vehicles or vehicle engines included in the class
or category” that the EPA found to be in noncompliance
with emission standards. See S. Rep. 1196, supra, at 111.
Once the purchaser received such a notice, he could have
sought repair at the manufacturer’s expense only under
the warranty mandated by section 207/c) of the bill.
See id. at 110. As in the final Act, the bill expressly
limited the life of the warranty to the useful life of the
vehicle or engine. See id. (section 207(c) or S. 4358) ;
see also 42 U.S.C. $7541(a) (“the manufacturer...
shall warrant ... that such vehicle or engine is... .
_ free from defects in materials and workmanship which
cause such vehicle or engine to fail to conform with ap-
plicable regulations for its useful life”) (emphasis sup-
plied). Thus, the Senate bill’s so-called “recall” provision-
merely required manufacturers to notify purchasers of
a class of vehicles of a defect, and relied on the war-
ranty repair obligation—-which was expressly limited in

language and are useful only to the extent they fairly
reflect congressional intent. Sometimes committee re-
ports are not reliable guides to legislative intent. as, for
example, where they contain statements that contradict
the plain meaning of the statutory language or that con-
flict with the expressed purpose of the statute.

Jordan v. United States Dep’t of Justice, 591 F.2d 753, 767
(D.C. Cir. 1978) (en banc) (footnotes omitted).

A-20

duration to the useful life of the vehicle or engine—to
require the manufacturers to pay for repairs. Under this
scheme, it might well have been reasonable to limit the
“recall” repair obligation to include only cars and en-
gines within their useful lives.

standards “for [the individual vehicle or engine's) use-
ful life,” 42 U.S.C. § 7541/a), the recall repair obliga-
tion contains no such limitation. and can reasonably be

The EPA's rule also furthers the purposes of the
Congress. The Clean Air Act’s unequivocal! directive is
“to protect and enhance the quality of the Nation's air
resources so as to promote the public health and wel-
fare and the productive capacity of its population.” 42

S 7401(bi (1). The May 30 rule obviously effectu-
ates this purpose. When the EPA discovers a defect that

. that the manufacturey must fash-
ion a remedy to fit the violation: the remedial plan must
include “all properly used and maintained nonconforming
vehicles in the subject class regardless of their age or
mileage at the time of repair.” 45 Fed. Reg. 36,397
(May 30, 1980).

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“The EPA explained with specificity the purposes of sec-
tion 207 when it promulgated the interpretative rule and
wamek Gat Chess parpeses could be undermined ie the abeenee

The recall program has two objectives: 1) To assure
that manufacturers repair vehicles which are exceeding
the emission standards if maintained and used and the
non-conformity occurs within the useful life of the ve-
hicles, and 2) to encourage manufacturers to build dur-
able emission-related components to assure that vehicles
will not manifest excessive emissions during their usefu!
lives. Both of these objectives are frustrated by an inter-
pretation of useful life which limits manufacturers’ lia-
bility only to vehicles which are within their useful life
at the time of repair.

45 Fed. Reg. at 36,397. As this court stressed only recently,
“(we cannot interpret section 207 ‘in a manner which runs
counter to the broad goals which Congress intended it to
effectuate.” Chrysler Corp. v. EPA, 631 F.2d at 888 (quoting
FTC v. Fred Meyer, Inc., 390 U.S. 341, 349 (1968) ).

* As the EPA emphasized when issuing the interpretative
rule, “interpreting section 207(c) (1) as imposing a useful life
limitation on vehicles eligible for repair under a remedial plan
could severely limit the number of nonconforming vehicles
repaired pursuant to recal] orders, could seriously impact
ambient air quality, and would frustrate the intent of Con-
gress.” 45 Fed. Reg. 36,398.

The dissent argues that the EPA could have devised an
alternative administrative scheme, using its legislative rule-
making powers, to “toll” the useful life of vehicles either at
the time the EPA initiates the recall] or during any period
of delay that could be attributed to manufacturer failure to

A-23

IV. CONCLUSION

For the reasons stated above, we hold that the EPA’s
May 30 rule is am interpretative rule. This rule enjoys
support in the language, purpose and legisla-
tive history of the Clean Air Act. GM’s petitions are
therefore denied.

So ordered.

comply in a timely manner with its statutory or regulatory
obligations. See Diss. Op. at 21-22. Under such a scheme, only
those cars within their useful lives at the time of the initial
EPA notice of recall] would be repaired at the manufacturer’s
expense. However, under the scheme, manufacturers could
not cause attrition in the class size by engaging in dilatory

We decline to enter into the inquiry of which regulatory
scheme would best balance all the interests in this field. Our
task here is merely to determine whether the agency’s inter-
pretation is “sufficiently reasonable,” and we conclude that it
certainly is. See FEC v. Democratic Senatorial Campaign
Comm., 454 U.S. 27, 39 (1981). Regardless of whether such
interpretations as the dissent suggests would be permissibie—
an issue we need not reach today—they are in fact not the
interpretation that has been adopted by the agency. More-
over, courts should pay special deference to an agency’s
interpretation when, as here, (a) the agency is interpreting
a statute it is charged with administering, (b) the interpreta-
tion has been consistently adhered to, (c) Congress has ac-
quiesced to the administrative interpretation, and (d) the
statute gives the agency substantial discretion in adminis-
tering and designing an enforcement scheme. See National
Wildlife Fed’n v. Gorsuch, 693 F.2d 156, 166-69 (D.C. Cir.
1982).

A-24

BAZELON, Senior Circuit Judge, with whom Tamm
and WILKEY, Circuit Judges, join, dissenting: The in-
terpretative rule upheld by the court today enjoys the
virtues of simplicity, administerability, and apparent con-
gruence with powerfully attractive ideals of public pol-
icy Regrettably, however, it suffers from the vices of
administrative overreaching and a marked incongruence
with the language and history of the statute it purports
to interpret. Because the “principal dispute relates to
the meaning of the statutory term” and “does not sig-
nificantly engage the agency’s expertise,”* and because
the EPA in this case promulgated an interpretative rule
with far-reaching implications for the fair administra-
tion of the Clean Air Act without sufficient statutory
grounds for so doing, I am troubled by the majority’s _
extreme deference to the EPA’s actions. Therefore, I
respectfully dissent.

I. “USEFUL LIFE” AND THE LImMITs OF INTERPRETATION

A. The Standard of Review

We are called upon in this case to review an interpre-
tative, not a legislative rule.* The distinction between the

‘Through the Clean Air Act, Congress sought “to protect
and enhance the quality of the Nation’s air resources so as
to promote the public health and welfare and the productive
capacity of its population... .” Clean Air Act § 101(b) (1),
42 U.S.C. §7401(b)(1) (Supp. V 1981) [hereinafter cited
as the Act].

2 Wilderness Soc’y v. Morton, 479 F.2d 842, 866 (D.C.
Cir.), cert. denied, 411 U.S. 917 (1973) (quoting Barlow v.
Collins, 397 U.S. 159, 166 (1970); see also Citizens to Pre-
serve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415 (1971).

+ From the outset, as the majority notes, EPA characterized
the rule as “interpretive.” See 45 Fed. Reg. 36,396 (May 30,
1980); Majority opinion at 7, 8 [hereinafter cited as Maj.
op.]. For the reasons cited by the majority cpinion and
based upon those same authorities, I agree. Jd.

A-25

two can be of great moment, since one of the distinguish-
ing features of an interpretative rule is its lack of bind-
ing force upon courts; such rules are always subject to
challenge in later judicial proceedings. Even though
courts often properly defer to an agency’s interpretation
of a statute for which it has been assigned enforcement
responsibility, a court clearly has the power to substitute
its judgment for that of the agency in the case of an
interpretative rule*® But “neither this court nor the
agency is free to ignore the plain meaning of the statute
and to substitute its policy judgment for that of Con-
gress.”* I fear that in this instance the EPA has done
precisely that.

The Supreme Court has pointed out that “(o] rdinarily,
administrative interpretations are given important but
not controlling significance.”* The precise weight to be
accorded an interpretative rule promulgated by an
agency “in a particular case will depend upon the
thoroughness evident in its consideration, the validity of
its reasoning, its consistency with earlier and later pro-
nouncements, and all those factors which give it power

* See, ¢.g., Batterton v. Francis, 432 U.S. 416, 425 n.9
(1977) (“({A] court is not required to give effect to an inter-
pretative regulation.”) ; Citizens to Save Spencer County v.
EPA, 600 F.2d 844, 876 (D.C. Cir. 1979): Joseph v. United
States Civil Serv. Comm’n, 554 F.2d 1140, 1153 n24, 1154
n.26 (D.C. Cir. 1977) ; Gibson Wine Co. v. Snyder, 194 F.2d
329, 331-32 (D.C. Cir. 1952): see generally 2 K. Davis. AD-
MINISTRATIVE LAW TREATISE §§ 7:8, 7:13 (2d ed. 1979 &
Supp. 1982).

5 See Batterton v. Francis, 432 U.S. 416, 425 n.9 (1977);
General Elec. Co. v. Gilbert, 429 U.S. 125, 141-42 (1976);
Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944); 2 K.
DAVIS, supra, at § 7:8, 7:13.

* Alabama Power Co. v. Costle, 636 F.2d 323, 365 (D.C.
Cir. 1979).

’ Batterton, 432 U.S. at 424.

A-26

to persuade, if lacking power to control.”* A court must
consider “such factors as the timing and consistency of
the agency’s position and the nature of its expertise.” °

The EPA rule does not “receive high marks when
judged by [these] standards... .” The rule was not
a contemporaneous interpretation of the Clean Air Act,
and there is no evidence that it reflects a longstanding
interpretation of the Act by the agency." Nor, in my
view, did the rule “simply restate[] the consistent prac-
tice of the agency in conducting recalls pursuant to sec-
tion 207(c)”—a proposition upon which the majority
places substantial weight.“ Finally—and this point can

® General Elec. Co., 429 U.S. at 142 (quoting Skidmore, 323
U.S. at 140).

* Batterton, 432 U.S. at 424 19.
10 General Elec. Co., 429 U.S. at 143.

11 EPA argues, and the majority agrees, that its interpre-
tation is “longstanding.” Maj. op. at 11 n.7. Yet, with the
exception of the dispute with GM leading to the promulgation
of the May 30 rule, the agency can point to only one contro-
versy, a Chrysler recall] in 1979, during which the “useful life”
issue arose. See EPA Brief at 5 & n5. In that case, by
EPA’s own admission, the agency did not press the issue
with Chrysler, because the question of nonconformity was
itself being litigated. See id. Thus, even assuming that a
lifespan barely exceeding one year suffices to render an inter-
pretation longstanding, it would appear that the public was
never placed on notice with respect to EPA’s interpretation.
To the extent to which the Supreme Court has required that
courts scrutinize the timing of an agency’s interpretative
rulemaking, EPA’s promulgation of the May 30 rule while in
the heat of regulatory battle with GM deserves close and
critical attention.

12 Maj. op. at 8; see also id. at 3; 8 n.7; 17 n.12. This con-
clusion lacks sufficient specific support in the record. Outside
of the instant dispute, as noted supra, the EPA can point to
only the Chrysler recall in February 1979, and there the use-
ful life issue was conceded by the EPA. See EPA Brief at 5
& n.5. Thus, in the only two specific instances in which the
useful life limitations were at issue, the EPA ultimately ac-

A-27

scarcely be overemphasized—the interpretative rule at
issue in this case does not involve the kind of fact-
intensive questions concerning which great deference need
be given the agency’s technical expertise; rather, as the

ceded to the limitation in the Chrysler recall, choosing for the
first time to contest the limitation in this present Cadillac

The majority also speculates that the EPA’s practice must
have been consistent because the “manufacturers have not
conditioned a vehicle’s eligibility for recall repair ... on the
basis of the vehicle’s age or mileage.” Maj. op. at 9 n.7
(citing 45 Fed. Reg. at 36,397). The record simply fails to
substantiate directly that the manufacturers’ behavior was
the result of the imposition of the EPA’s practice. The ma-
jority’s speculation in fact appears to presume that manu-
facturers (1) somehow foresaw EPA’s heretofore unannounced
interpretation of their liability for repair of vehicles beyond
their useful lives; (2) conceded the “reasonableness” of EPA’s
position ; and (3) therefore, “voluntarily” included older ve-
hicles in their remedial plans, refraining from challenging
this manifestly “reasonable” interpretation.

A more plausible explanation suggests itself. With the « ex-
ception of the Chrysler and Cadillac recalls in which the use-
ful life disputes did arise, virtually all completed emission
recalls have involved vehicle classes less than three years of
age at the time of owner notification of nonconformity by the
manufacturer. See J.A. 278-96. The owner response rates
drop substantially for vehicles more than four years old.
See id. at 298. This information forms a strong basis for the
inference that both the EPA and manufacturers in previous
recalls have failed to raise the question of liability for repair
of cars beyond their useful lives because the involvement of
such vehicles in the recalls has been de minimis. It would
not have been economical for manufacturers to have expended
the resources necessary to identify those vehicles beyond their
useful lives or to risk owner alienation by refusing to repair
the smal] percentage of older cars which might have found
their ways to dealerships in response to a recall.

When the “six out of fifteen recalls described in detail] in
the record” and cited by the majority, Maj. op. at 9 n.7, are
closely examined, this conclusion is reinforced. The percent-
ages relied upon neglect the fact, for example, that the recalls
of 1975 and 1976 Pontiacs, 1975 Fords, and 1974 AMCs in-

A-28

agency itself concedes. “[sJince the rule simply ex-
preases an interpretation of the law based on the lan-
guage, legislative history and policy of the Clean Air
Act, no factual data need be analyzed or commented

volved vehicles that were part of a much larger (and younger)
recall class ; that the AMC recall was complicated by the more
stringent emissions standards applicable uniquely to vehicles
sold in California; that the manufacturers included older
vehicles voluntarily; that owner responses to recalls drop
dramatically with the age of the vehicle; and that the idio-
syncracies of particular recalls and of negotiations between
EPA and manufacturers on a case-by-case basis render the
statistics relied upon by the majority unrepresentative and
misleading. See J.A. at 278-96.

For example, the majority writes that “in 1978 the EPA
began a recall that included 1974 AMC cars sold in California,
approximately 56% of which were beyond their useful lives.”
Maj. op. at 9 m7 (emphasis in original). A close look at the
facts of that recall, however, is illuminating. EPA ordered
the recall of all 1976 AMC cars in May 1978. At that point,
the model was approximately two-and-a-half years old and
fewer than 20° of the vehicles could have been expected to
have exceeded their useful lives. We are told that AMC
“indicate{d] it [would] include 1974, 1975, and 1976 AMC
cars sold in California in its plan.” J.A. 291. The exact motive
for this inclusion is not disclosed by the record, but it is clear
that AMC included these vehicles voluntarily, perhaps out of
a concern for their ability to meet more stringent California
state emissions requirements. However, the majority points
to the 1974 AMCs included in this recall] as evidence of a class
involving large numbers of cars beyond their useful lives for
which the manufacturers did not impose a five year or 50,000
mile limitation. I would suggest, with respect, that such use
of data is inappropriate because (1) only California vehicles
from the 1974 and 1975 AMC model-years were included in
the recal], thus making them a relatively small proportion of
the recall class which was overwhelmingly composed of 1976
AMCs, and (2) these vehicles were included voluntarily, thus
indicating the manufacturer's willingness to go beyond EPA’s
requirements.

The majority’s reliance upon a few other recalls involving

some percentage of olders cars is similarly misplaced, but no
constructive purpose would be served by here disputing the

_—~

A-29

on.” * Conseouently, although some deference is to be
accorded the May 30 rule, our inquiry must focus on
whether EFA’s interpretation is reasonable and sup-
portable in light of the statutory language and legisla-
tive history. And our final determination should reflect,
if required by that language and history, the Supreme
Court’s reminder that “{a] court is not required to give
effect to an interpretative regulation.” “*

B. Statutory Language

In reviewing an agency’s interpretation of a statute,
a court should first examine the language of that statute
to determine whether the interpretation falls within the

numbers offered by the majority or by enumerating the special
circumstances involved in each case. The fact remains that
nine of the fifteen recalls involved no older vehicles, J.A. at
278-96, and that only the Chrysler and Cadillac recails mean-
ingfully presented the useful life issue, an issue which, in the
Chrysler case, was not pursued by EPA. See supra note 11.
Such a history hardly “constitutes a longstanding adminis-
trative policy.” Maj. op. at 11 17.

Judicial deference to an agency’s “consistent” interpreta-
tion should not be based on the fact that the issue at stake
simply has not previously arisen. Such deference is appropri-
ate if an administrative interpretation has been consistently
asserted in the face of a long series of challenges, see, e.g.,
Esquire, Inc. v. Ringer, 591 F.2d 796, 801 (D.C. Cir. 1978),
or if the policy had been publicly announced and implemented
for a long time, see, e.g., DeLano v. United States, 393 F.2d
517, 521-22 (Ct. Cl. 1968). In the instant case, however, the
EPA has previously announced its position only once and, in
that instance, “did not proceed” on behalf of that position.
EPA Brief at 5 1.5. We are pointed to no other occasion on
which the EPA affirmatively required manufacturers to in-
clude vehicles beyond their useful lives in their remedial plans;
the issue simply was never raised by either party.

13 EPA Brief at 41.
4 Batterton, 432 U.S. at 425 n.9.

A-30

statute’s plain meaning.’* Section 207(c) of the Clean
Air Act reads in relevant part as follows: _

If the Administrator determines that a substan-
tial number of any class or category of vehicles or
engines, although properly maintained and used, do
not conform to the regulations prescribed under sec-
tion 7521 of this title [emissions standards} when
in actual use throughout their useful life (as deter-
mined under section 7521(d) of this title), he shall
immediately notify the manufacturer thereof of such
nonconformity, and he shall require the manufac-
turer to submit a plan for remedying the noncon-
formity of the vehicles or engines with respect to
which such notification is given. The plan shall pro-
vide that the nonconformity of any such vehicles or
engines which are properly used and maintained will
be remedied at the expense of the manufacturer."*

The majority relies upon “this class-based orientation
of section 207(c)(1)” in concluding that “the EPA rea-
sonably mandated that remedial plans be designed to
cover all members of a recal! class,” regardless of the
age or mileage of any individual vehicle at the time it is
brought in for repair, “if (1) a substantial number of
cars within a given class exhibited nonconformity during
their useful lives, and (2) the car is a member of that
class.” '7 GM focuses instead upon the concept of non-
conformity, arguing essentially that although classes of
vehicles can be recalled, and remedial plans can be pre-
pared on a class-wide basis, a manufacturer can be liable

18 See Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc.,
447 U.S. 102, 108 (1980); Touche Ross & Co. v. Redington,
442 U.S. 560, 568 (1979); Caminetti v. United States, 242
U.S. 470, 485 (1917) ; Symons v. Chrysler Corp. Loan Guar-
antee Bd., 670 F.2d 238, 241 (D.C. Cir. 1981); Higgins v.
Marshall, 584 F.2d 1035, 1037 (D.C. Cir. 1978), cert. denied.
441 U.S. 931 (1979).

16 As amended, 42 U.S.C. § 7541(c) (1) (Supp. V 1981).
17 Maj. op. at 13.

A-31

to “remedy” only those nonconforming members of a re-
call class that are within their useful lives at the time
of repair.“ Each of these approaches to the statute has
a superficial appeal, but neither constitutes a “sufficiently
reasonable” interpretation of the legislation to which this
court must look for guidance.’®

To some extent, of course, the plain language of a
statute and the legislative history which resulted in that
language are inextricable; 7° but even a casual reader of
the Clean Air Act’s text, without reference to legislative
intent, could not help but be struck by the significance
of the concept of “useful life.” At the outset, the Act
makes clear that emissions standards prescribed by the
Administrator are applicable to the vehicles throughout
their “useful lives.”= It explicitly defines the useful
life of automobiles as “a period of use of five years or
fifty thousand miles (or the equivalent), whichever first
occurs... .”*™ In the recall and remedy provision at
the heart of the instant controversy, the statute not only
refers to “useful life’ but directs readers to the statu-
tory definition of the term by section number.* More-
over, without resort to the term or definition, the Act
utilizes the five year or fifty thousand mile “useful life”
concept in no fewer than four different statutory enforce-

18GM Brief at 20, 23-26; Petitioner's Supplemental Brief
on Rehearing En Banc, April 12, 1984 at 5 [hereinafter cited
as GM Supp. Br.; (“Because no emissions standard applies to
a vehicle beyond 5 years or 50,000 miles, there can be no non-
conformity which the manufacturer can be required to remedy
under § 207(c) (1).”) * see Maj. op. at 13.

1® See FEC v. Democratic Senatorial Campaign Comm.,
454 U.S. 27, 39 (1981).

*° The legislative history is explored infra pp. 11-19.
21 42 U.S.C. § 7521(a) (1) (Supp. V 1981).
22 42 U.S.C. § 7521(d) (1) (Supp. V 1981).

3 42 U.S.C. § 7521(c) (1) (Supp. V 1981); see szpra note
16 and accompanying text.

A-32

ment provisions.* To interpret section 207(c) in such a
way as to eliminate, for all practical purposes, any “use-
ful life” limitation on the EPA’s authority to require
manufacturers to remedy nonconforming vehicles, would
be manifestly unreasonable, an evident attempt to cir-
cumvent the plain meaning of the statutory language.
Yet, it is precisely such an interpretation that the ma-
jority today condones, emphasizing that the question pre-
sented by this case “is not settled by the definition of
‘useful life’; it turns on the intended scope and purpose
of the recall provision.” *

But if defining the concept of “useful life’ cannot
settle this question, neither will minimizing that concept’s
- obvious importance contribute to the correct resolution
of this case. Indeed, it is likely that the “intended scope
and purpose of the recall provision” can only be arrived

*% For example:

1. Section 206(a) requires EPA to certify, on the basis of
extensive testing of prototypes, that each new vehicle pro-
duced will conform to emissions standards for five years or
50,000 miles. No manufacturer may produce or market ve-
hicles not covered by such a certificate. 42 U.S.C. § 7525(a)
(Supp. V 198).

2. Section 206(b) authorizes the EPA to conduct pro-
duction line testing to determine whether vehicles being manu-
factured will conform to emissions standards for 50,000 miles.
Suspension of the certificate of conformity is authorized if
vehicles fail such tests. 42 U.S.C. § 7525(b) (Supp. V 1981).

3. Section 207(a) requires a manufacturer to warrant that
each vehicle sold is designed and built to conform to emissions
standards and that its materials and workmanship are free
from any defect which will cause it to fail to conform to
emissions standards during its useful life. 42 U.S.C. § 7541 (a)
(Supp. V 1981).

4. Section 207(b) further requires a manufacturer to war-
rant that performance of major emissions components of

each vehicle will conform to emissions standards for five years
or 50,000 miles. 42 U.S.C. $ 7541(b) (Supp. V 1981).

3 Maj. op. at 13.

A-33

at and fully appreciated by attempting to define, under-
stand, and reasonably apply that critical statutory term.
A good place to begin is with the argument urged upon
this court by GM, the bulk of which the majority prop-
erly rejects.

In asserting that “the statute does not authorize EPA
to order recall and repair of vehicles beyond their use-
ful lives, ignoring their age and mileage at the time of
repair,” ** GM confusingly intermingles the EPA’s au-
thority “to order recall and repair” of vehicles with its
own duty to perform any necessary repair, implying that
the time and mileage parameters of “useful life’ are
somehow to be applied “at the time of repair.” There
is no support for such an interpretation in the statutory
language. Indeed, that language suggests, if anything,
that the definition of useful life applies when “the Ad-
ministrator determines” that a nonconformity exists and
notifies the manufacturer “immediately.” In addition,

36 GM Supp. Br. at 5.

27 GM essentially ignores the language of section 207(c)
itself, which plainly invokes the “useful life’ concept in con-
nection with the EPA’s pre-notice determination of noncon-
formity. The company argues instead that vehicles beyond
their useful lives when brought in for repair cannot be, at
that time, “nonconforming,” since emissions standards can
only apply to vehicles during their useful lives. GM Brief at
19-20, 23-26. If accepted as a reasonable interpretation of the
statute, EPA would be required, before issuing a notice of non-
conformity to a manufacturer, to estimate and take into
account potentially long lag times between that notice and the
date tha* ‘+. entire class of vehicles would be brought in for
inspection. .nd repair. In practical administrative terms, the
five year element of “useful life’ might mean 4!. years in
some cases, two years or less in others. Section 207(c) would
become an uncertain and inconsistent mechanism at best, a
nullity at worst. Reading the statute, instead, to mean what
it plainly seems to mean—i.e., that a manufacturer must recall
and repair vehicles that are within their useful lives at the
time that the agency’s notice of nonconformity first issues—
would be at once administerable and reasonable. See infra
pp. 21-22.

A-34

to accept GM’s interpretation would be, in practice, to
undercut the central point of section 207(c', even as to
accept EPA’s and the majority's interpretation would
be to destroy its explicitly delineated outer boundaries.
If the nonconformity of a class of vehicles were dis-
covered relatively late in a vehicle’s useful life, or if
protracted negotiations, litigation, and appeals combined
to place all or most vehicles involved in a recall beyond
their useful lives by the time members of the recall
class were brought in for necessary service, GM’s inter-
pretation could regularly, even totally, frustrate the pur-
pose of the recall provision. On the other hand, the in-
terpretation offered by the EPA and accepted by the ma-
jority flies just as surely in the face of the statute’s
plain meaning and similarly frustrates the intent of Con-
gress. Somewhere between these two extreme readings
of the statutory language, the path of reasonableness
lies.

C. The Legislative History

Even where. as here, the statutory language appears
clear, the plain meaning rule is only a primary and not
a conclusive source of understanding and must yield on
occasion to other indicia of legislative intent, including
legislative history.** The majority rightly looks to such
history for guidance, but looks, I believe, in the wrong
places and with the wrong emphasis. The crucial point
to be made about the recall provision is not that Congress’
intended it to apniy to a “model” or “class” or “cate-
gory” of vehicles or engines. but that it intended any
delineation of a “given model run” or an “entire lot” to

*8 See Chesapeake & Ohio Ry. Co. v. United States, 571 F.2d
1190, 1194 (D.C. Cir. 1977) ; see also Watt v. Alaska, 451 U.S.
259, 266 & n.9 (1981); Aaron v. SEC, 446 U.S. 680, 705-08
(1980) (Blackmun, J., concurring in part and dissenting in
part).

A-35

depend upon its deliberately created concept of “useful
life.” *

If little else is crystal clear from the complex legisla-
tive history of the Clean Air Act, one thing is: despite
evidence that the actual life of an automobile is closer
to ten years or one hundred thousand miles than it is
to five years or fifty thousand miles, Congress inten-
tionally limited the duration of a manufacturer’s /iabil-
ity for a vehicle’s nonconformity with emissions stand-
ards to a five-year/fifty-thousand mile period. For ex-
ample, Senator Muskie, one of the bill’s prime sponsors,
remarked that “({flifty thousand miles is not all their
life, 100,000 miles being nearer to a measure of the life
of a motor vehicle, but we have taken 50,000 miles.” ”
During the debate on the 1977 Clean Air Act Amend-
ments, Senator Muskie reemphasized this conscious choice:

The actual life of a car is more than 50,0Uu miles.
We all know that. It approaches 100,000 miles, I
think, increasingly, but it was our feeling that a
50,000-mile warranty would put sufficient pressure
on the manufacturers to meet the standards so that
if they met them for 50,000 miles, the chances were
that the standards would be met pretty closely .. .
even... beyond 50,000 miles.”

The considerations underlying the “useful life” limi-
tations were equally straightforward. As the Senate
Committee Report noted in 1970:

2 The majority devotes much effort to establishing that
recalls must be class-wide, but sheds no light on the role of
“useful life’ in defining the “class” to be recalled. See Maj.
op. at 12-14.

116 CONG. REC. 33,094 (1970), reprinted in 1 SENATE
ComMM. ON Pus. Works, 93rd CONG., 2d SEssS., A LEGISLATIVE
HISTORY OF THE CLEAN AIR AMENDMENTS OF 1970, at 430
(1974) (hereinafter cited as 1979 Levislative History).

31 122 Conc. REC. 24,302 (1976), reprinted in 6 SENATE
COMM. ON ENVIRONMENT & Pus. Works, 95th CONG., 2d
Sess., A LEGISLATIVE HISTORY OF THE CLEAN AIR AMEND-

MENTS OF 1977, at 5145 (1978).

A-36

The manufacturers informed the Committee that
they would not be able to guarantee conformity with
emissions standards for the anticipated 10-year life
of a vehicle. The committee bill provides that 50,000
miles would be the maximum that a vehicle would
be required to conform to the standards for which
it was certified.

Where Congress has so explicitly and deliberately consid-
ered, and then rejected, a more expansive requirement
than that ultimately enacted, it is not for the agency to
exceed the statutory limits under the guise of “inter-
pretation.” *

Nevertheless, the majority argues at considerable
length that some of the 1970 legislative history is “ir-
relevant” because

the law as finally enacted, in contrast to the Senate
bill, creates an independent recall repair obligation
in addition to the warranty ovligation. Section 7541
(ce) of title 42 requires the manufacturer of a re-
called class to submit and comply with a remedial
plan for that class. Unlike the warranty repair ob-
ligation, which covers only failure to conform with
emission standards “for [the individual vehicle or
engine’s] useful life.” 42 U.S.C. §$ 7541/a), the re-
call repair obligation contains no such limitation,

@S. Rep. No. 1196, 91st Cong., 2d Sess. 30 (1970). re-
printed in 1 1970 Legislative History, supra note 30, at 430.

33 The Supreme Court has recently reaffirmed that “{[w]hen
@ court reviews an acency’s construction of the statute which
it administers, .. . the court, as well as the acency, must
give effect to the unambicuously expressed intent of Conzress.”
This is so because “[t]he judiciary is the final authority on
issues of statutory construction and must reject administra-
tive constructions which are contrary to ciesr concressional
intent ....If a court, employing traditional tools of statutory
construction, ascertains that Congress had an intention on the
precise question at issue, that intention is the law and must be
given effect.” Chevron U.S.A. v. Natural Res. Ref. Council,
52 U.S.L.W. 4845, 4847 & n.9 (U.S. June 26, 1984).

tet.

A-37

and can reasonably be considered to extend to all
vehicles or engines in the recall class.*

With respect, such exertions in response to GM’s reliance
upon a particular passage from a committee report
hardly seems worth the candle.= Ultimately, the ma-
jority’s dismissal of the Senate Committee Repor' rests
on the dubious assumption that the Conference Commit-
tee, without comment or explanation, added to the recail
provision of the Senate bill an “independent” recall re-
pair obligation in addition to the warranty obligation.
Any such new recall repair obligation, however, vould
expose the manufacturer to liability for repair virtually
indefinitely, in dramatic ‘and unexplained) contrast to
the warranty repair obligation, which limited the manu-
facturer’s liability for repair to a vehicle’s useful life.
Unlike the majority. I do not see, try as I might. how
the recall repair obligation “can reasonably be extended”
so far.**

* Maj. op. at 20 (emphasis in original).

33 See Maj. op. at 18. I do not find this particular passage
either as ambiguous as the majority appears to believe or as
dispositive as GM claims on the issue of congressional intent.
Most importantly. I find it completely consistent with “the
plain meaning of the statutory language” and “the expressed
purpose of the statute” insofar as it reinforces the evident
desire of Congress to place some reasonable limitation upon
the liability of manufacturers. See id. at 15 n.10: Jordan v.
Department of Justice, 591 F.2d 753, 767 (D.C. Cir. 1978)
(en banc) (footnotes omitted).

36 At one point the majority appears to modify its own
“classwide” analysis, arguing that “[(t]here is, at the very
least, this definite time limitation on the Administrator: he
must conclude his testing before the entire recall class has
exceeded five years of age.” Maj. op. at 14n.9. While I agree
that this would be a slightly more reasonable interpretation
of the EPA’s statutory authority, it is not the authority
asserted by the EPA in this case, and no hint of such a limi-
tation is contained in the plain language of the interpretative
rule, the validity of which is here at issue. Additionally, it

A-38

To appreciate how unreasonable such an interpreta-
tion would be, it is important to bear in mind that a
recall class may include vehicles or engines of more than
one model year. For example, the same carburetor or
engine component may be used in vehicles over the course
of four or five model years. Under the interpretation
espoused by EPA and the majority, the manufacturer
would be liable for the repair of all vehicles ever pro-
duced with that component, provided a sample of defec-
tive vehicles or engines still within their useful lives
could be assembled for testing. If the processes of the
initial EPA investigation and of approving a remedial
plan were to require as much time as they did in the
present case, that liability would be extended even fur-
ther.” And taking the process of owner notification into
account, compounded not infrequently by appeals to the
agency or the courts, manufacturers could and certainly
would be compelled to remedy at their own expense the
“nonconformity’” of vehicles that were more than a dec-

does not avoid the unreasonable result illustated infra notes
37-41 and accompanying text.

7 Ser, e.g., J.A. 293 (recall of 1975-1978 Pontiacs with
EGR back pressure transducers).

*8 Thus, if the Pontiac engine defect, supra, for instance,
had been discovered during the fourth year of the useful lives
of the 1978 model Pontiacs, ail Pontiacs manufactured with
the suspect transducer would be subject to recall. The manu-
facturer would have been required to repair not only the
four-year old 1978 but also the 1975 Pontiacs, which, at the
time the EPA would have issued its notification of noncon-
formity, would have been between nine and ten years old.

39 Months may be consumed in testing and investigating a
potentially nonconforming class prior to the issuance of a re-
cail order. EPA approximates the average time spent in such
investigations as nine months. See J.A. 268 & n.d. In this case
the EPA investigation began in May 1975, issued its notice
of nonconformity in March 1977, and negotiated the details
of GM’s remedial plan through December 1979. See J.A. 1,
123, 137, 142, 145, 170, 182, 203, 224, 226, 230, 236, 247,
252.

A-39

ade old.” The emissions standards to which those ten-
year old vehicles would be required to conform, moreover,
would be standards that Congress explicitly intended to
apply exclusively to vehicles half that age or younger.*

“EPA estimates that the “average time from recall order
to owner notification is 814 months.” EPA Brief at 28 n.33;
J.A. 268 & n.6. As to appeals, EPA found “the recall of cer-
tain 1975 Chryslers ordered recalled on December 8, 1976”
to be “[o]f particular note” :

Although the recall was ordered relatively early in the
life of the vehicles, Chrysier requested an administrative
hearing on the Administrator's determination of noncon-
formity. The Administrative Law Judge upheld the deter-
mination in a decision filed on February 10, 1978. Sub-
sequent appeals to the Administrator and this Court also
resulted in decisions favorable to EPA. Chrysler Corp. v.
EPA, (631 F.2d 865 (D.C. Cir. 1980)] .... Certiorari
was denied by the U.S. Supreme Court on December 1,
1980 ..., when few, if any, of the 208,000 vehicles sub-
ject to the recall order were still within their useful lives.

EPA Brief at 28 n.35.

*1 If the EPA and this court had interpreted the statute to
require the manufacturer to recall and bring into conformity
with “useful life” standards all cars which were within their
useful lives at the time the notice of nonconformity issued to
manufacturers, or even on the date the manufacturer and EPA
agreed on an appropriate remedial plan, that interpretation
would, I believe, have been a reasonable one. This is so even
though, as developed infra note 58 and accompanying text,
such an interpretation might require sonw vehicles to be
brought into conformity with such standards despite their
having exceeded their useful lives at the time of repair. By
limiting, ab initio, the recall authority to the class of vehicles
within their useful lives at the time the nonconformity is first
established by the agency and communicated to the manu-
facturer, the agency would have been acting, in my opinion,
within its reasonable discretion under the statute. See infra
pp. 21-23.

Taken on its face, however, the EPA rule simply goes too
far, and does raise the specter of a manufacturer being re-
quired to remedy decade-old cars at its own expense, a
result that Congress clearly intended to avoid. The EPA

A-40

One would have expected such a drastic extension of
the manufacturer's repair obligztion to have attracted at
least some debate. Certainly there were those in the
Senate who believed even the limited five-year liability
imposed by the warranty provision to have been exces-
sive.* Particularly in the House, where the original bill
to amend the Clean Air Act contained neither a recall
nor a warranty repair obligation, some comment on such
a sweeping new imposition of repair liability would
surely have arisen.* Yet, no such comment was made

attempted at oral argument to salvage the rule from this
conspicuous defect by asserting that the agency will not in
fact require such vehicles to be brought into compliance with
inapplicable standards but will instead require the same “re-
pair’ to be made on older and younger vehicles. The difficulty
with this approach is that the Act requires not that a “repair”
be performed but that a nonconformity be remedied.

Similarly, the majority’s attempt to save this interpreta-
tive rule by reading a modest limitation into its facially
limitles: language, Maj. op. at 14 n.9, ought to be unavailing.
Even if the recall action in this case can and should be uphe'd,
see infra at p. 25, the rule itself, as promulgated, is clearly
and unambiguously contrary to the statute’s language and
history.

Under our cases, if the agency wishes to fill in interstices
created by a possible congressional failure to anticipate all the
possible consequences of the statutory scheme, the proper
recourse is a legislative, not an interpretative rule. See
Chamber of Commerce v. OSHA, 636 F.2d 464, 469-70 (D.C.
Cir. 1980).

42 See, e.g., 116 CONG. REC. 33,083, 33,093 (1970), reprinted
in 11970 Legislative History, swpra note 29, at 307-08, 330-31
(remarks of Senator Griffin); id. at 33,097, reprinted in 1
1970 Legislative History, swpra note 29 at 338 (remarks of
Senator Cooper) : sce also Administration’s Letter to Confer-
ence Committee Recommending Certain Provisions (Nov. 17,
1970), reprinted in 1 1970 Legislative History, swpra note 29,
at 212-13 (expressing view of executive branch that 50,000-
mile warranty was “inappropriate and unrealistic in the light
of known technology and experience”).

43 See H.R. REP. No. 1146, 91st Cong., 2d Sess. 11-13, 38-40
(1970).

A-41

during either the House or the Senate debates on the
Conference Committee Report; instead, the only discus-
sion of amendments to § 207 of the Act focused exclu-
sively on the House’s acquiesence in the Senate’s pro-
posed warranty repair obligation, which as the majority
admits, was limited to the five-year/50,000-mile useful
life of the recalled vehicle.

My own reading of the legislative history leads me
to conclude that any alterations made in the Senate bill
by the Conference Committee were merely “technical,
clarifying, and conforming changes,” and that the
warranty repair obligation and the recall repair obliga-
tion are essentially coterminous.** Although they do dif-
fer in their triggering agents—the individual consumer
in the case of warranty repairs or the agency in the
case of recalls—both obligations are limited in duration
to the five years or 50,000 miles of a vehicle’s useful
life.

If this reading of the legislative history (and, as dem-
onstrated earlier, of the plain meaning of the statutory

* See 116 CONG. REC. 42,520 (1970), reprinted in 1 1970
Legislative History, supra note 29, at 112 (House debate)
(remarks of Representative Staggers) ; id. at 42,382, 42,385,
reprinted in 1 1970 Legislative History, supra note 29, at 126,
134-35 (Senate debate) (remarks of Senator Muskie).

46 H.R. REP. No. 1783, 91st Cong., 2d Sess. 42 (1970),
reprinted in 1 1970 Legislative History, supra note 29, at 192.
No mention of any extension of a manufacturer’s liability for
repair of nonconforming vehicles beyond the five-year, 50,000-
mile limits of the warranty period is made anywhere in the
Conference Committee Report.

46 As the Supreme Court has recently reaffirmed in another
context: “Had Congress intended so fundamental a dis:inc-
tion, it would have expressed that intent cleariy in the svatu-
tory language or the legislative history.” Securities Indus.
Ass’n v. Board of Governors of the Fed. Reserve Sys., 52
U.S.L.W. 4943, 4948 (U.S. June 26, 1984) (quoting American
Tobacco Co. v. Patterson, 456 U.S. 63, 72 0.6 (1982) ).

A-42

language with which the history is thoroughly consistent,
is correct, just one task remains: the determination ot
the precise point in the recall process at which the all-
important “useful life” limitation should apply. That
determination, of course, is for the agency, so long as
its action is “sufficiently reasonable.” **7 In this case,
the majority concludes that “it certainly is.” Reluc-
tantly, as sympathetic as I am with the EPA’s chafing
at the bit of its statutory authority in promulgating the
instant rule, I cannot agree.”

II. THE REASONABLENESS INQUIRY

A. The Language of the May 30 Rule and its
Implications

By requiring “manufacturers to submit a plan to
remedy all vehicles within the class or category of ve-
hicles subject to an ordered recall which experienced the
nonconformity during their useful lives regardless of
their age or mileage at the time of repair,” * the agency
did at least use the words “useful life.” But it did so in
such a way as, in practice, to read the useful life limita-
tion out of the statute. As the foregoing discussion has
demonstrated, Congress clearly contemplated some in-
crease in a car’s emissions once a vehicle has surpassed
its useful life. Correspondingly, and just as clearly, Con-
gress provided for a limitation on a manufacturer’s ob-

*7 FEC v. Democratic Senatorial Campaign Comm., 454 U.S.
27, 39 (1981).

48 Maj. op. at 23 n.16.

“© Nor can I agree, as noted supra pp. 10-11, with the
interpretation of the recall provision offered by GM. As this
opinion goes on to suggest, EPA’s enforcement authority need
not.be constrained significantly, if at all, by my reading of the
Clean Air Act’s recall provisions. See infra pp. 21-25.

53°45 Fed. Reg. 36,396-97 (May 30, 1980) (presently codi-
fied at 40 C.F.R. § 85.1803, App. A to subpart S (1982) ).

A-43

ligation to recall and repair nonconforming cars that had
exceeded their useful lives. The question presented by
this case is thus whether, as the majority asserts, the
recall repair obligation “can reasonably be considered to
extend to all vehicles or engines in the recall class’ *
which, in the language of the rule, “experienced the non-
conformity during their useful lives.” To my mind, what
is unreasonable about the EPA rule is not that some
vehicles may be compulsorily repaired at a manufac-
turer’s expense “regardless of their age or mileage at the
time of repair’ (GM’s position), but that in many cases
a manufacturer will be unable reasonably to determine
whether a particular vehicle became noncomplying dur-
ing its useful life or long after.”

Under the May 30 rule as promulgated, whenever a
car brought in for repair has exceeded its useful life, the
manufacturer will be unable to demonstrate whether a
present emissions excess is attributable to the sanctioned
erosion of performance after 5 years or 50,000 miles,
which Congress so clearly acknowledged as likely and
explicitly provided for through the concept of useful life.
or to a nonconformity which did in fact exist during the
vehicle’s useful life.** In essence, the EPA’s rule estab-
lishes an absolute and irrebuttable presumption that all
older cars were among the percentage failing to meet
standards during their useful lives. In practice, the lan-
guage of the statute—“If the Administrator determines
that a substantial number . . . do not conform”—would
be rewritten to read “did not conform” or “might not
have conformed.” Even if the establishment of such a
presumption or the enforcement of such a construction

51 Maj. op. at 20.
52 See supra pp. 15-16.

SS At best, manufacturers would be forced to indulge in
expensive, unwieldy, customer-alienating, fact-specific contro-
versies concerning when a given car, beyond its useful life
when presented for repair, first exhibited excessive emissions.

A-44

were within the EPA’s authority, such actions go beyond
mere statutory interpretation. Even if, 4s the majority
suggests, the May 30 rule “makes good practical sense”
and is “sensible” in light of the Clean Air Act’s pur-
pose, its evident disparity with the plain meaning of the
statutory language and legislative history would seem to
require, at a minimum, legislative rulemaking with at-
tendant notice and comment procedures.”

B. Some Reasonable Alternatives

In concluding that the agency acted unreasonably in
promulgating its May 30 interpretative rule, I wish to
emphasize that the interpretation urged upon this court
by GM seems to me at least equally unreasonable, and
that EPA could, in my view, readily remedy the defect
by one of three alternative approaches.*

First, EPA might reword its interpretative rule in
such a way as to reasonably interpret the language and
history of the recall provision. If, for example, the rule
were to provide for the recall and repair of vehicles
within their useful lives at the time the notice of non-

% Maj. op. at 21.
55 See supra pp. 10-11.

56 The majority has, in a sense, suggested a fourth. See
supra note 36; Maj. op. at 14 n.9. In so doing, however, the
majority opinion insists that “it is not the job of the courts
to propose rules that they would prefer the agency to adopt.”
Maj. op. at 12 n.8. That is true, of course, but it is equally true,
and this court has recently reemphasized, that where the
adoption of a particular rule is beyond the agency’s statutory
authority, it is our obligation to vacate the rule in question.
Cf. Union of Concerned Scientists v. Nuclear Regulatory
Comm’n, 735 F.2d 1437, 1451 (D.C. Cir. 1984) (Wald, J.)
(little deference accorded agency’s interpretation of pro-
cedural requirements, normally the area in which an agency
deserves the most deference, because “Congress did not grant

. the Commission discretion to remove so material an issue

era |

|

RM aesintA is Hectic srs We oh on A

A-t9

conformity issued to manufacturers, the intent of Con-
gress would be vindicated, and manufacturers would have
little or no incentive to delay a valid recall by means of
strategic lawyering. Quite to the contrary, any frivolous
or bad-faith delay would be penalized not only by its
inherent expense but by the fact that any nonconforming
vehicles ultimately requiring repair would be older and,
presumably, more expensive to bring into conformity with
emissions standards.

The reasonableness of such an interpretative rule would
be underscored by an important passage of the Act’s
legislative history. The comments of the House managers
of the 1970 bill, included in the Conference Committee
Report, explicitly state:

The Senate [bill] . . . authorized the Administra-
tor, if he determined that any class or category of
vehicles or engines did not conform with applicable
emission standards, to require manufacturers to
notify purchasers of such nonconformity. Moreover.
if a manufacturer discovered such noneomfornity
during the term of any warranty required under the
Senate [bill], he was required to notify purchasers
of the nonconformity and to remedy such noncon-
formity at no cost to the owner.”

Even as to the warranty provision, then, and a fortion
as to the recall provision ‘if, as the majority believes,
there is any distinction between the two!, Congress con-
templated that the notion of “useful life’ was to be ap-
plied at the time the manufacturer became aware of a
nonconformity.*

37H. Rep. No. 1783, 91st Cong., 2d Sess. 50 (1970), re-
printed in 1 1970 Legislative History, supra note 30, at 200
(emphasis added).

58 If, as suggested here, the manufacturer’s obligation to
recall and repair a nonconforming vehicle attaches at the time
the agency makes a determination of nonconfcrmity and gives
notice, some cars may be beyond their useful iives by the time

A-46

A second alternative open to the agency, as noted,
would be a full legislative rulemaking. [f,- after hearing
all sides and making a record, the agency believed that
the language of its May 30 rule remained justifiable, it
would be sustained on judicial review unless it were
found to be “a: >itrary, capricious, or manifestly con-
trary to the statute.” Any rule promulgated in the
wake of such full procedural safeguards would, of course,
be entitled to more weight than the interpretative rule
to which the majority—inappropriately, I believe—tuday
defers.

In this context I would note, as well, that the Ad-
ministrator has substantial discretion in defining by reg-
ulation the useful lives of vehicles under the Act. Sec-
tion 202(d) defines the useful lives of “light duty ve-
hicles” as “a period of use of five years or fifty thou-
sand miles for the equivalent), whichever first occurs

...’® The parenthetical phrase, “or the equivalent, ta
surely authorizes the Administrator to establish, in es-
sence, a “constructive useful life,” by promulgating legis-
lative regulations prescribing how the five-year/50,000
mile useful life will be measured for recall purposes. For
example, a vehicle’s age and mileage could be “tolled”
whenever the EPA issues a recall order for vehicles of its
class. Such a tolling provision would protect the recall
system from manufacturer-induced delays. The majority
acknowledges this possibility but “decline[s] to enter into
the inquiry of which regulatory scheme would best bal-

they are repaired. If a particular vehicle’s status at the time
of the determination were contested, however, its age could
be easily ascertained by reference to the bill of sale, and its
mileage could be rebuttably presumed to have increased uni-
formly throughout its period of ownership. Such a presump-
tion would need to be resorted to only rarely, and would be
reasonable under the circumstances.

5° Chevron U.S.A. v. Natural Res. Def. Council, 52 U.S.L.W.
4845, 4847 (U.S. June 26, 1984).

42 U.S.C. § 7521(d) ‘1) (Supp. V 1981).

A-47

ance all the interests on this field.” I agree that it is
the role of the agency, and not of the courts, to make
such a determination. But it is the role of the courts to
“reject administrative constructions which are contrary
to clear congressional intent.”@ Especially where, as
here, an agency promulgates an interpretative, rather
than a legislative, rule, and where it relies not on its
technical expertise but on statutory interpretation alone,
the Supreme Court has made it abundantly “clear...
that deference is not to be a device that emasculates the
significance of judicial review.” *

Finally, of course, the EPA and other advocates of a
more far-reaching recall authority than that provided by
Congress in the Act as amended may seek fresh con-
gressional attention to the issues raised by this case.
A more reasonable interpretative rule, crafted along the
lines suggested in this opinion, may be deemed inade-
quate; similarly, the alternative of legislative rulemaking
may prove somehow unsatisfactory. If so, those who
would impose a more far-reaching burden upon auto-
mobile manufacturers to ensure the purity of our na-
tion’s air will have recourse to our nation’s legislators.
It may well be desirable to hold manufacturers liable to
recall and repair every vehicle ever produced that may
have violated emissions standards many years before in
order “to compensate for the pollution caused during the
time of its violation.” I fear, however, that in this
case the majority has forgotten that “[i]t is not for an
administrative agency . . . to preempt congressional ac-
tion or to ‘fill in’ where it believes some federal action
is needed.” ©

#1 Maj. op. at 23 n.16.
6 Chevron, 52 U.S.L.W. at 4847 n.9.

83 Securities Indus. Ass’n v. Board of Governors of the Fed.
Reserve Sys., 52 U.S.L.W. 49438, 4945 (U.S. June 25, 1984).

* Maj. op. at 15.

6 Office of Consumers’ Counsel v. Federal Enerzy Regula-
tory Comm’n, 655 F.2d 1132, 1152 (D.C. Cir. 1980).

A-48

III. CONCLUSION

For the reasons discussed in this opinion, I would va-
cate EPA’s May 30, 1980 interpretative rule. I would
affirm, however, that part of the June 23, 1980 order
finding that GM had failed to submit a satisfactory re-
medial plan with respect to certain 1975 Cadillacs within
their useful lives as of March 21, 1977, the date on
which the Administrator officially notified GM of the non-
conformity of a substantial number of those vehicles.

APPENDIX B

EDITOR'S NOTE

PAGES 8] +hau BG] ERE POOR
HARD COPY AT THE TIME OF FILMING.

IF AND WHEN A BETTER COPY CAN BE
OBTAINED, A NEW FICHE WILL BE
ISSUED,

b-1

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.

Anited States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 80-1868
GENERAL MOTORS CORPORATION,
A DELAWARE CORPORATION, PETITIONER
Vv.

WILLIAM D. RUCKELSHAUS, ADMINISTRATOR,
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,
RESPONDENT

No. 80-2027
GENERAL MOTORS CORPORATION,
A DELAWARE CORPORATION, PETITIONER
Vs

WILLIAM D. RUCKELSHAUS, ADMINISTRATOR,
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,
RESPONDENT

No. 81-1029
GENERAL MOTORS CORPORATION,
A DELAWARE CORPORATION, PETITIONER
Ve

WILLIAM D. RUCKELSHAUS, ADMINISTRATOR,
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,
RESPONDENT

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.

B-2

Petitions for Keview of an Order of the
Environmental Protection Agency

Argued January 13, 1983
Decided December 16, 1983

George F. Ball and Theodore Souris, with whom Wu-
liam L. Weber, Jr., Michael B. Lewiston, James A. Smith,
Terrence B. Larkin, and Frederick J. Dindoffer, were on
the brief, for petitioner.

Samuel I. Gutter, Attorney, Environmental Protection
Agency, with whom Angus MacBeth, Acting Assistant
Attorney General, Gerald K. Gleason, Assistant General
Counsel, Robert A. Weissman, Attorney, Environmental
Protection Agency, Donald W. Stever, Jr., and Rosanne
Mayer, Attorneys, Department of Justice, were on the
brief, for respondent.

Before: WILKEY and WALD, Circuit Judges, and BAZE-
LON, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge
BAZELON.

Concurring opinion filed by Circuit Judge WILKEY.
Dissenting opinion filed by Circuit Judge WALD.

BAZELON, Senior Circuit Judge: Petitioner General
Motors Corporation (GM) brings three consolidated peti-
tions for review of final actions of the Environmental
Protection Agency (EPA) under the Clean Air Act, as
amended.! In these petitions we are asked to decide
whether the recall provision of section 207(c) (1) of the
Act? permits the EPA to require automobile manufac-

1 42 U.S.C. §§ 7401 et seg. (Supp. V 1981) [hereinafter “the
Act’).

2 42 U.S.C. § 7541(c) (1) (Supp. V 1981).

B-3

turers to recall and repair at their own expense all mem-
bers of a class of vehicles—a substantial number of which
have been found to be in nonconformity with applicable
emissions standards during their useful lives—regardless
of the age or mileage of any individual vehicle when
presented for repair. We take jurisdiction under section
307(b) (1) of the Act.* For reasons detailed below, we
reverse the actions of the Administrator.

BACKGROUND

Through the Clean Air Act, Congress sought “to pro-
tect and enhance the quality of the Nation’s air resources
so as to promote the public health and welfare and the
productive capacity of its population ....”* To this
end, Title II of the Act* establishes a comprehensive
program for the control of motor vehicle emissions. The
Act authorizes the Administrator to prescribe standards
for motor vehicle emissions within the broad guidelines
set out by the statute.* Such standards are applicable to
the vehicles throughout their “useful lives.’”’7 The useful
life of light duty vehicles, such as automobiles, is defined
by statute as “a period of use of five years or fifty thou-
sand miles (or the equivalent), whichever first oc-
Pe ae

342 U.S.C. § 7607(b) (1) (Supp. V 1981).

*Clean Air Act §101(b)(1), 42 U.S.C. § 7401(b) (1)
(Supp. V 1981).

542 U.S.C. §§ 7521-7574 (Supp. V 1981).

®*Clean Air Amendments of 1970 § 6(a), 84 Stat. 1676,
1690 (1970) (current version at 42 U.S.C. § 7521 (Supp. V
1981) ).

T Id. § 6(a) (1), 84 Stat. 1676, 1690 (1970) (current version
at 42 U.S.C. § 7521(a) (1) (Supp. V 1981)).

SId. §6(a), 84 Stat. 1676, 1692 (1970) (current version
at 42 U.S.C. § 7521(d) (1) (Supp. V 1981) ).

B-4

The Act also provides an elaborate enforcement sys-
tem designed to ensure that vehicles comply with emis-
sions standards, not only when they leave the assembly
line but also while in actual use.* Among the enforce-
ment mechanisms at the disposal of the EPA is the au-
thority to order manufacturers to recall and repair at
their own expense an entire class or model of vehicles
or engines should the Administrator determine that a
substantia! number of vehicles in that class, although
properly used and maintained, have failed to meet ap-
plicable emissions standards during their useful lives.'’
The precise scope and application of this recall authority
are at issue in this lawsuit.

In May 1975, the EPA began an investigation " of the
emissions performance of 1975 Cadillacs of the 60V42°
engine family.* On March 21, 1977, following a pro-
gram of testing fifteen sample vehicles by both EPA and
GM, the Administrator officially notified GM that he had

* Id. § 8(a), 84 Stat. 1676, 1694-98 (1970) (current version
at 42 U.S.C. §§ 7525, 7541 (Supp. V 1981) ).

10 Clean Air Act § 207(c) (1), 42 U.S.C. 7541(c) (1) (Supp.
V 1981).

Other aspects of the enforcement mechanism require pre-
sale and assembly line testing and certification, see id. § 206,
42 U.S.C. § 7525 (Supp. V 1981), and warranties for the
repair of isolated, individual vehicle failures, see id. § 207(a),
(b), 42 U.S.C. § 7541(a), (b) (Supp. V 1981).

11 The investigation was initiated in response to data from
state emissions inspections and GM assembly line audits indi-
cating significant hydrocarbon and carbon monoxide problems.
See Joint Appendix (J.A.) 1.

12 The 60V43 engine family consisted of approximately
220,000 vehicles equipped with carburetor part number 7045230
or 7045198 [hereinafter referred to as the 230-carburetor or
193-carburetor, respectively]. See EPA Brief at 5 n.6.

B-5

determined that a substantial number of 1975 Cadillacs
equipped with the 230-carburetor, although properly
maintained and used, failed to meet federal emissions
standards during their useful lives.‘* The Administrator
ordered GM to submit a plan for the recall and repair
of the 230-carburetor class.’* He also indicated that the
EPA staff would continue its investigation of emissions
problems in 193-carburetor Cadillacs and urged GM to
recall these vehicles voluntarily.*®

GM did not contest the finding of nonconformity and
“volunteered” to recall the 198-carburetor vehicles.'*
Nevertheless, negotiations concerning GM’s proposed re-
medial plan '*’ dragged on from May 1977 until December

18 See J.A. 123. This determination was based on EPA or-
dered testing of 15 sample vehicles, permitting the EPA to
project with 95 percent statistical confidence that at least 68
percent of the vehicles in the class were exceeding standards.
See id. at 122-23, 125. Earlier projections estimated a 43 per-
cent nonconformity rate. See J.A. 35.

14 See J.A. 123.
16 See J.A. 123-24.

16 See J.A. 126. GM’s agreement to recall! vehicles equipped
with 193-carburetors was not purely altruistic. Although GM
continued to contend that the 193-carburetor vehicles complied
with emissions standards, there was no practical method of
determining which of the carburetors was installed in a given
1975 Cadillac until it had been brought into the repair shop.
See id.

17 A manufacturer notified of a determination of noncorn-
formity is required to submit a remedial plan for the Admin-
istrator’s approval. See Clean Air Act § 207(c) (1), 42 U.S.C.
§ 7541(c) (1) (Supp. V 1981); 40 C.F.R. §§ 85.1803-85.1804
(1982). The manufacturer must demonstrate both that the
proposed remedy is technically sound and that it can and will
be properly implemented. See 40 C.F.R. §§ 85.1803-85.1804
(1982).

B-6

1979."* Finally, on December 26, 1979, EPA withdrew
one of its principal objections and agreed to approve a

1# See J.A. 137, 142, 145, 170, 182, 208, 224, 226, 280, 236,
247, 252.

Much has been made by both parties of the time lag between
initial notification of nonconformity and the EPA’s ultimate
approval of the remedial plan and of the appropriate alloca-
tion of blame for the delay. The EPA maintains that its origi-
nal refusal to approve GM’s proposed remedial plan was
premised on two principal concerns. First, GM had failed to
demonstrate that the repair proposed for the 198-carburetor
would actually remedy the nonconformity in those vehicles.
Second, the adjustment’s actual or perceived adverse effect on
the drivability of the Cadillacs might induce mechanics, fear-
ing customer dissatisfaction, to refuse to perform the repair
properly. See J.A. 137-38, 142. GM tested the 193-carburetor
vehicles and discovered that its proposed repair did not in fact
remedy the nonconformity, yet did not submit a revised
remedial plan until January 30, 1978. See J.A. 203. A few
minor modifications to this plan were made at the request
of the EPA and were incorporated in a new revised remedial
plan submitted on February 15, 1978. See J.A. 224. This is
the plan that was ultimately approved by the EPA. See J.A.
252-55, 261-64. GM attempts to excuse its delay on the ground
that the 193-carburetor recall was voluntary and did not re-
quire EPA approval. See GM Reply Brief at 12-13. However,
once GM’s own testing had revealed that half of the sampie
of eight vehicles failed to meet carbon monoxide emissions
standards and that the repair originally proposed failed to
remedy this problem, see J.A. 170, it seems fair to assume
that the EPA refrained from ordering a recall of the 193-
carburetor class only because the details of the “voluntary”
recali were currently being negotiated.

To alleviate its concerns with respect to mechanics’ motiva-
tion to perform the repairs properly, EPA proposed, among
other measures, that GM conduct a performance audit. See
J.A. 142-48. GM agreed to some of the measures but refused
to assume responsibility for an audit, arguing both that an
audit was unnecessary and that it would place GM in an ad-
versary relationship with its own dealers. See J.A. 203-06.
Although EPA continued to insist on its authority to require
GM to perform the audit, EPA ultimately dropped its demand

B-7

modified plan that had been submitted by GM on Feb-
ruary 15, 1978."*

At this point, however, GM informed: the EPA that
“Ta]bout forty percent of the subject vehicles are beyond
five years old and many more will have accumulated
more than 50,000 miles.” *? GM urged the Administrator
to cancel the recall and averred that, if the EPA were
to go forward with the recall, “only those vehicles within
the lesser of five years or 50,000 miles of operation at
the time of presentation to the dealer for repairs will re-
ceive the campaign adjustments at General Motors (sic)
expense.” *? EPA responded on May 30, 1980 by promul-

that GM conduct the audit and decided instead to conduct an
audit itself. See J.A. 254. GM argues that, because EPA’s
insistence on a GM-conducted audit which “it had no right to
demand and which it dropped in the final approval” was the
real cause of the delay, see GM Reply Brief at 12, “it is arbi-
trary and capricious for EPA to assert in 1980 that GM now
should repair vehicles which have exceeded their useful lives.”
GM Brief at 35.

Because of our disposition of EPA’s interpretative rule and
order on other grounds, we need not reach the question of
EPA’s authority to require manufacturers to conduct recall
audits nor need we assign to either party full responsibility
for the delay that resulted in the vast majority of the vehicles
having exceeded their useful lives by the time the recall plan
was approved. See J.A. 258, 261 (estimating only 52,000 of
the 220,000 vehicles remained within their useful lives at the
time of conditional approvai of the remedial pian). We do
note, however, that the audit issue was not a frivolous ques-
tion, that it was hotly contested by both parties for some time
in what we can presume to have been good faith, and that it
is illustrative of the type of controversy that can prolong ap-
proval negotiations despite the best intentions and cause the
“useful life’ problem to arise again in the future.

19 See J.A. 252-55. See supra note 18.
20 J.A. 257.

21 J.A. 259. GM maintains that this statement, contained in
a letter to the EPA dated February 5, 1980, merely reiterated
the position GM had first taken in January 1979. See GM
Brief at 5. EPA insists that the February 1980 letter “was

B-&

gating what it labelled an “interpretive rule” setting
out the EPA’s position that the Clean Air Act requires

the first time that GM had proposed to impose a 5/50 limita-
tion on a remedial plan.” EPA Brief at 11. Whether there
was verbal communication between GM and EPA on this is-
sue before February 1980 we cannot say; there is, however,
nothing in the record before this court to document any ex-
change between GM and EPA concerning the 5-year/50,000-
mile limitation prior to the February 1980 letter.

After the February letter, GM imposed but later withdrew
5-year /50,000-mile limitations in several other pending re-
calls. See EPA Brief at 11 & nn. 17-18. Consequently, the
1975 Cadillac recall] is the only situation which to the court’s
knowledge presently involves a dispute between the EPA and
@ manufacturer concerning the extent of a manufacturer's
liability to recall and repair vehicles beyond their useful lives.

% Section 307(d) (2)-(6) of the Clean Air Act, 42 U.S.C.
§ 7607 (d) (2)-(6) (Supp. V 1981), establishes certain proce-
dural requirements in connection with agency promulgation of
rules. The Act requires, inter alia, establishment of a rule-
making docket, publication of notice of proposed rulemaking
in the Federal Register, a specified period for receipt of pub-
lic comment, public access to the docket materials, and re-
sponse by EPA to each significant comment, criticism, and
submission of data. Jd. However, section 307(d)(1) of the
Act provides, in relevant part: “This subsection shall not
apply in the case of any rule or circumstance, referred to in
subparagraphs (A) or (B) of subsection 553(b) of title 5
{of the United States Code].” 42 U.S.C. § 7607(d) (1) (Supp.
V 1981). The relevant provision of title 5 provides in turn
that rulemaking procedures need not be applied “to inter-
pretative rules, general statements of policy, or rules of
agency organization, procedure, or practice... .” 5 U.S.C.
§ 553(b) (A) (1982). Thus, by casting the regulation as an
interpretative rule, the agency was able to circumvent most
of the rulemaking requirements of the Clean Air Act. The
EPA did create and provide access to a public docket in con-
nection with the promulgation of the May 30 rule (although
the utility of even that exercise must be questioned in light
of the absence of the public comments that would normally
arouse interest in the docket), but none of the other rule-
making procedures were observed. Sec 45 Fed. Reg. 36,396,
36,397 (May 30, 1980).

B-9

“manufacturers to submit a plan to remedy all vehicles
within the class or category of vehicles subject to an or-
dered recall which experienced the nonconformity during
their useful lives regardless of their age or mileage at
the time of repair.” * Shortly thereafter, the EPA wrote
to GM, refusing to withdraw the recall order.* The EPA
letter formally approved GM’s remedial plan of Febru-
ary 15, 1978 insofar as it applied to vehicles stil] within
their useful lives at the time of repair.* But, relying on
the May 30 rule, the agency disapproved the plan insofar
as it related to vehicles beyond their useful lives.** The
letter also reflected EPA’s finding that, at least with
respect to vehicles beyond their useful lives, GM had
“failed to submit a [remedial] plan as required by sec-
tion 207(c) (1) of the Act... .”*7 GM petitioned this
court, seeking review of both the May 30 rule and EPA’s
partial disapproval of GM’s remedial plan.**

= 45 Fed. Reg. 36,396, 36,396-97 (May 30, 1980) (presently
codified at 40 C.F.R. § 85.1803, app. A to subpart S (1982) ).

* See J.A. 261-64 (EPA Letter dated June 23, 1980).

% Id. GM agreed to proceed with the recall of these ve-
hicles. See J.A. 308.

* See J.A. 261-64.

37 J.A. 263. The Administrator warned GM that “[t]he
failure to submit a plan for these vehicles is considered to be
* separate offense under sections 203(a)(4)(B) and 205 of
the Act for each vehicle and can potentially subject GM to
fines of up to $10.000 per vehicle.” Jd.: see Clean Ai, Act
§§ 203(a)(4)(B), 205, 42 U.S.C. §§ 7522(a)(4)(B), 7524
(Supp. V 1981).

**On November 26, 1980, EPA published a notice in the
Federal Register declaring its partial approval and partial
disapproval of GM’s remedial plan to be “final.” See 45 Fed.
Reg. 78,798, 78,798 (Nov. 26, 1980). GM subsequently filed a
protective petition, consolidated with its previous appeals,
seeking review of this Federal Register notice.

B-10

ANALYSIS

A. Standard of Review

is tells tee atin ils Wo re aid upon in this case
to review an interpretative, not a legislative, rule. While
this observation may seem apparent, the nature of the
May 30 rule has been hotly contested by the parties. Al-
though EPA has from the start characterized the rule as
“interpretive,” * GM argues that, because the rule sub-
stantially expands the scope of a manufacturer’s liability
under the recall provisions of the Act, the rule should be
viewed instead as an improperly promulgated legislative
rule.”

® See 45 Fed. Reg. 36,396, 36,396-97 (May 30, 1980).
* GM Brief at 12-22.

GM also argues that the rule must be considered legislative
because of the limitations on judicial review imposed by the
Act. GM Brief at 21-22. One of the distinguishing features
of an interpretative rule is its lack of binding force upon
courts; such rules are always subject to challenge in later
judicial proceedings. See, ¢e.g., Batterton v. Francis, 432 U.S.
416, 425 n.9 (1977) (“[A] court is not required to give effect
to an interpretative regulation.”): Citizens to Save Spencer
County v. EPA, 600 F.2d 844, 876 (D.C. Cir. 1979); Joseph
v. United States Civil Serv. Comm'n, 554 F.2d 1140, 1153
n.24, 1154 n.26 (D.C. Cir. 1977) ; Gibson Wine Co. v. Snyder,
194 F.2d 329, 331-32 (D.C. Cir. 1952); see generally 2 K.
DAVIS, ADMINISTRATIVE LAW TREATISE §§ 7:8, 7:13 (2d ed.
1979 & Supp. 1982). However, section 307(b) (1) of the Act
provides in relevant part:

A petition for review of ... any other nationzlly ap-
plicable regulations promulgated, or final action taken,
by the Administrator under this chapter may be filed
only in the United States Court of Appeals for the Diz-
trict of Columbia .... Any petition for review under
this subsection shall be filed within sixty days from the
date notice of such promulgation, approval, or action ap-
pears in the Federal Register...
42 U.S.C. § 7607(b) (1) (Supp. V 1981) (emphasis supplied).
Section 307(b)(2) goes on to provide that any “[a]ction
of the Administrator with respect to which review could have
been obtained under paragraph (1) shall not be subject to

—————

Nears EE

B-67

sional enactments should be interpreted to avoid impedi-
ments to clear congressional purpose. Section 207 accord-
ingly should be interpreted in a way that can sustain a
workable recall] system: classes and categories of cars
that have exhibited substantial nonconformity during
their useful lives shoyld be subject to recall’

To sum up, I find nothing in the plain language, nor in
the legislative history of the Clean Air Act Amendments
to contradict the EPA’s reasonable interpretative rule.
The EPA rule presents a practical solution to the im-
plementation of the clear congressional purpose of achiev-
ing effective automotive emission controls. The majority
opinion. by its own admission, seriously detracts from this
overarching purpose.“* Accordingly, I believe the ma-
jority, in invalidating the EPA rule, has transgressed the
appropriate standards that limit judicial interference
with an agency’s reasonable actions to effectuate an im-

portant national policy.
I respectfully but emphatically dissent.

“In a final assault, the majority peremptorily declares this
to be “virtually moot.” Maj. Op. at 42 n.81. The meaning

mysterious; for if this case were “truly moot,” the entire
ty opinion would be dictum. In any case, the majority
teases the auto manufacturers with yet another legal doctrine

Air Act. This final aside, id., seems particularly inappropriate

APPENDIX C

Gnited States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

September Term, 1983

No. 80-1868

General Motors Corporation,
a Delaware Corporation
Petitioner

V.

William D. Ruckelshaus, Administrator
United States Environmental! Protection
Agency,

Respondent

And Consolidated Case Nos. 80-2027 and 81-1029

BEFORE: Robinson, Chief Judge; Wright, Tamm, Wilkey,
Wald, Mikva, Edwards, Ginsburg, Bork, Scalia and
Starr, Circuit Judges

United States Court of Appeals

for the District of Columbia Circuit

FILED MAR 22 1984

GEORGE A. FISHER
CLERK

C-2

ORDER

Respondent's sugges -ion for rehearing en banc, filed Febru-
ary 29, 1984, has been circulated to the full Court. A majority of
the Judges in regular active service have voted in favor of the
suggestion. Accordingly, it is

ORDERED by the Court en banc that Respondent’s sugges-
tion for rehearing en banc is granted and it is

FURTHER ORDERED by the Court en banc that the
Judgment and Opinions filed December 16, 1983 be, and the
same hereby are, vacated.

A future Order will govern further proceedings in this case.
Per Curiam
For the Court:
GEORGE A. FISHER, Clerk

BY: Robert A. Bonner
Chief Deputy Clerk

Circuit Judges Tamm and Wilkey would deny the suggestion
for rehearing en banc.

Circuit Judge Bork did not participate in this Order.

C-3

Gnited States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT
September Term, 1983

No. 80-1868

General Motors Corporation,
a Delaware Corporation
Petitioner

V.

William D. Ruckelshaus, Administrator
United States Environmental Protection
Agency,

Respondent

AND CONSOLIDATED CASES

United States Court of Appeals

for the District of Columbia Circuit

FILED APR 3 1984

GEORGE A. FISHER
CLERK

ORDER

This Court, by order dated March 22, 1984, vacated the
earlier judgment and opinion filed herein and granted respon-
dent’s suggestion for rehearing en banc. Upon consideration
thereof, it is

ORDERED, by the Court, en banc, that this case shall be
argued before the Court, sitting en banc, at 10:00 A.M. on
April 25, 1984. The parties shall furnish an additional 25 copies
of their briefs previously filed herein within nine days from the

C-4

date of this order. In addition, the parties shall file supplemen-
tal briefs focusing on the following:

(1) indications in the language and legislative history of sec-
tion 207(c) of the Clean Air Act that support or run
counter to the EPA rule, and

(2) the comparative benefits or deficits of the remedial
schemes set forth in the EPA rule, and Judge Wilkey’s
and Judge Bazelon’s panel opinions, in light of the stat-
utory language and purpose.

These briefs shall be filed by the parties on or before April 12,
1984 and shall not exceed 20 pages in length. An original and 30
copies shall be tendered to the Court.

For the Court:

George A. Fisher
Clerk

APPENDIX D

D-1

Gnited States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT
UNITED STATES COURTHOUSE
333 CONSTITUTION AVENUE, N.W.
WASHINGTON, D.C. 20001-2866

September 7, 1984

RE: Nos. 80-1868 et al. - General Motors Corporation, a Dela-
ware corporation v. William D.
Ruckelshaus, Administrator, U.S.
Environmental

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1964%3A2. Public record. Not legal advice.