GENERAL MOTORS CORP. v. RUCKELSHAUS

42 U.S.C. §§ 7401 et seq. (Supp. V 1981) [hereinafter "the Act"].

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

42 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).

42 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)).

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

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

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

Clean Air Act § 207(c)(1), 42 U.S.C. § 7541(c)(1) (Supp. V 1981).
Other aspects of the enforcement mechanism require presale 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).

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

The 60V43 engine family consisted of approximately 220,000 vehicles equipped with carburetor part number 7045 230 or 7045 193 [hereinafter referred to as the 230-carburetor or 193-carburetor, respectively]. See EPA Brief at 5 n. 6.

See J.A. 123. This determination was based on EPA ordered 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 percent nonconformity rate. See J.A. 35.

See J.A. 123.

See J.A. 123-24.

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.

A manufacturer notified of a determination of nonconformity is required to submit a remedial plan for the Administrator'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).

See J.A. 137, 142, 145, 170, 182, 203, 224, 226, 230, 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 allocation of blame for the delay. The EPA maintains that its original 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 193-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, fearing 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 require EPA approval. See GM Reply Brief at 12-13. However, once GM's own testing had revealed that half of the sample 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" recall were currently being negotiated.
To alleviate its concerns with respect to mechanics' motivation to perform the repairs properly, EPA proposed, among other measures, that GM conduct a performance audit. See J.A. 142-43. 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 adversary 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 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 arbitrary 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 approval of the remedial plan). We do note, however, that the audit issue was not a frivolous question, 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 approval negotiations despite the best intentions and cause the "useful life" problem to arise again in the future.

See J.A. 252-55. See supra note 18.

J.A. 257.

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 the first time that GM had proposed to impose a 5/50 limitation on a remedial plan." EPA Brief at 11. Whether there was verbal communication between GM and EPA on this issue before February 1980 we cannot say; there is, however, nothing in the record before this court to document any exchange 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 recalls. 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 a 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 procedural 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 public comment, public access to the docket materials, and response by EPA to each significant comment, criticism, and submission of data. Id. 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 interpretative 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 connection 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 rulemaking procedures were observed. See 45 Fed.Reg. 36,396, 36,397 (May 30, 1980).

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 vehicles. See J.A. 308.

See J.A. 261-64.

J.A. 263. The Administrator warned GM that "[t]he failure to submit a plan for these vehicles is considered to be a 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." Id.; see Clean Air 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.

See 45 Fed.Reg. 36,396, 36,396-97 (May 30, 1980).

See Citizens to Save Spencer County v. EPA, 600 F.2d 844, 873-74 (D.C. Cir. 1979).

Chamber of Commerce v. Occupational Safety and Health Admin., 636 F.2d 464, 468 (D.C. Cir. 1980) (opinion of the court); id. at 471 (Bazelon, J., concurring opinion).

Id. at 468; Joseph v. United States Civil Serv. Comm'n, 554 F.2d 1140, 1153 n. 24 (D.C. Cir. 1977); see generally 2 K. DAVIS, supra note 30, at §§ 7:8-7:13, 7:15.

See Columbia Broadcasting Sys., Inc. v. United States, 316 U.S. 407, 416, 62 S.Ct. 1194, 1199, 86 L.Ed. 1563 (1942); Chamber of Commerce, 636 F.2d at 468; Citizens to Save Spencer County, 600 F.2d at 879 n. 171.

See Chamber of Commerce, 636 F.2d at 468; see also Udall v. Tallman, 380 U.S. 1, 16-17, 85 S.Ct. 792, 801-802, 13 L.Ed.2d 616 (1965); Energy Reserves Group, Inc. v. Department of Energy, 589 F.2d 1082, 1092 (Em.App. 1978).

When the rule was first published it was classified as "interpretive" and described as

set[ting] forth EPA's interpretation regarding one aspect of a motor vehicle or motor vehicle engine manufacturer's recall liability under section 207(c)(1) of the Clean Air Act . . . . EPA interprets this section as requiring manufacturers to submit a plan to remedy all vehicles within the class or category of vehicles subject to an ordered recall . . . regardless of their age or mileage at the time of repair. The interpretation set out in this rule will provide guidance to vehicle and engine manufacturers to better enable them to submit acceptable remedial plans.

Batterton v. Francis, 432 U.S. 416, 424. 97 S.Ct. 2399, 2405, 53 L.Ed.2d 448 (1977).

General Elec. Co. v. Gilbert, 429 U.S. 125, 142, 97 S.Ct. 401, 411, 50 L.Ed.2d 343 (1976) (quoting Skidmore v. Swift Co., 323 U.S. 134, 140, 65 S.Ct. 161, 164, 89 L.Ed. 124 (1944); see id. 429 U.S. at 141-42, 151-53, 97 S.Ct. at 410-11, 415-16; Batterton, 432 U.S. at 425 n. 9, 97 S.Ct. at 2405 n. 9 ("[A] court is not required to give effect to an interpretative regulation. Varying degrees of deference are accorded to administrative interpretations, based on such factors as the timing and consistency of the agency's position and the nature of its expertise.").

General Elec. Co., 429 U.S. at 143, 97 S.Ct. at 411.

EPA argues that its interpretation is long-standing. 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 controversy, the Chrysler recall in February 1979, during which the useful life issue arose. See EPA Brief at 5 n. 5. However, by the 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 interpretation longstanding, it would appear that the public was never placed on notice with respect to EPA's interpretation.
The dissent contends that, nevertheless, the EPA interpretation should be considered longstanding precisely because the question of a manufacturer's liability for repair of vehicles beyond their useful lives has never previously arisen. See Dissenting Opinion at 1003 n. 5. Yet, this novel approach to defining "longstanding" interpretations is not supported by the cases on which the dissent relies. In Esquire, Inc. v. Ringer, 591 F.2d 796, 801 (D.C. Cir. 1978), we did hold that an administrative interpretation that "has been consistently followed for a significant period of time" is entitled to judicial deference. Yet we found that the administrative interpretation under review in that case was longstanding, because it had been consistently asserted and followed by the agency since 1909 in the face of a long series of challenges. Id. at 802 nn. 19-20. Similarly, in DeLano v. United States, 393 F.2d 517, 521-22, 183 Ct.Cl. 379 (1968), the railroad's failure to challenge overtime billing for customs inspections performed on board trains was seen as indicative of the "reasonableness" (not the longstanding nature) of the Immigration Service's interpretation of its overtime regulations. There, the agency's policy had been publicly announced and implemented for over 15 years. Id. 393 F.2d at 521. Railroads had been affirmatively required to pay on the basis of the agency's overtime interpretation. In the instant case, however, the EPA has previously announced its position only once and, in that instance, recanted. We are pointed to no other occasion on which the EPA required manufacturers to include vehicles beyond their useful lives in their remedial plans; the issue simply was never raised by either party.
Judge Wald's view of the EPA's position as "longstanding" apparently presumes that manufacturers (1) prophetically 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 vehicles in their remedial plans, refraining from challenging this manifestly "reasonable" interpretation. A far more plausible explanation for the lack of 5/50 controversies avails itself. The statistical data supplied by the EPA indicates that, with the exception of the Chrysler and Cadillac recalls in which useful life disputes did arise, virtually all completed emissions 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 median class age is approximately 2.5 years; the mean, slightly less than 2.6 years, and the mode, less than one year. EPA data also reveal that, at an age of one year, only 2% of vehicles are likely to have exceeded 50,000 miles; at age 2, 6%; at age 3, 20%; at age 4, 39%; and at age 5, 60%. J.A. 274. Finally, EPA statistics indicate that the owner response rates drop substantially for vehicles more than four-years old (median owner response for vehicles between four and five years of age is between 20 and 30%, and no owner response is indicated for vehicles more than five years of age). See J.A. 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. Few vehicles beyond their useful lives were putatively subject to recalls; of these, only a handful could have been expected actually to have been presented for repair. It simply 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 and possible reaction from the EPA (although the EPA's position concerning such matters was at the time unknown) by refusing to repair the tiny percentage of older cars which might have found their ways to dealerships in response to a recall.
In contrast, in the two major recalls in which 5/50 limitations were imposed, a substantial percentage of the vehicles in the class were beyond their useful lives. The EPA recalled 1975 Chryslers in December 1976. J.A. 281. After a hotly contested dispute over the existence of the emissions nonconformity, Chrysler imposed a 5/50 limitation in December 1978. Id. At that point, the class was 51 months old and over 40% of the vehicles had exceeded their useful lives. Moreover, since Chrysler's appeal of the EPA's recall order was still pending in this court, virtually the entire class could have been expected to have exceeded their useful lives before owner notification took place. Similarly, in this case, the model was beyond the five-year point by February 1980 when, after a prolonged and often hostile negotiation process, GM finally imposed a 5/50 limitation on repair of its 1975 Cadillacs. See J.A. 286.
The dissent responds that "in six out of the fifteen recalls described in detail in the record, . . . the EPA issued a recall notice to the manufacturer 34-55 months after the cars were on the market." Dissenting Opinion at 1003 n. 5. However, we believe that the dissent's method of computation produces an inflated picture of the average age of recall classes. For example, the dissent includes two recalls which were incomplete at the time the record in this case was submitted. However, it is impossible to tell, until owner notification has begun, whether a manufacturer will ultimately assert a 5/50 limitation. For example, in this case GM submitted several remedial plans without asserting such a limitation; indeed, the 5/50 limitation was not imposed until after the EPA had approved GM's remedial plan. Thus, incomplete recalls are useless for purposes of discerning why manufacturers failed to impose 5/50 limitations prior to the Cadillac recall.
The dissent also presents figures on three recalls that "involved" large numbers of older vehicles (1975 and 1976 Pontiacs, 1975 Fords, 1974 AMCs); yet, in each case, these vehicles were part of a larger recall class, spanning several model years, in which the majority of the cars involved were younger. We respectfully suggest that employing the mean age of the recall class as a whole would present a more accurate picture of the proportion of older cars in a given recall that the manufacturer might have had to fix without a 5/50 limitation. For example, 54% of the 1975 model Pontiacs may have been beyond their useful lives in 1979, yet 1975 Pontiacs represented only one-quarter of the cars involved in the Pontiac recall which included model years 1975-1978. Similarly, the 1978 Ford recall to which the dissent refers included 1975 and 1976 Fords, and the 1978 AMC recall spanned the model-years 1974 through 1976.
The AMC recall points to another flaw in the dissent's statistical formulation. In that recall, the 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 dissent 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 5/50 limitation. We would suggest, with all due deference, that such use of data is inappropriate (1) because only California vehicles from the 1974 and 1975 AMC model-years were included in the recall, 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.
Finally, the dissent presents its data only in terms of the percentage of older cars it contends were present in the recall class; however, that figure must be multiplied by the projected owner response rate to determine the percentage of cars the manufacturer would have anticipated actually having to fix. Thus, even if 20% of the cars in a given class were beyond their useful lives at the time of owner notification, and a 20% owner response rate could be expected for those cars, only 4% of the cars presented for repair could be expected to be beyond their useful lives. (This figure, of course, would have to be adjusted by the response rates for vehicles of varying ages within their useful lives.) In fact, as indicated above, the response rate for vehicles beyond their useful lives approaches zero. Therefore, even assuming the statistical validity of the dissent's calculations, manufacturers in past recalls would have had to repair few, if any, vehicles beyond their useful lives, whether or not 5/50 limitations had been imposed.
In the few recalls, other than the Chrysler and Cadillac recalls, in which significant numbers of vehicles beyond their useful lives were involved, potent reasons existed for the manufacturers to refrain from invoking 5/50 limitations. One manufacturer "requested additional time to develop a durable replacement component to use in a recall campaign." J.A. 268. The manufacturer's failure to adhere to its own production timetable resulted in approximately 70,000 vehicles (most of them apparently from earlier model years voluntarily included in the recall, see J.A. 291) having exceeded their useful lives by the time owner notification began. J.A. 268. Similarly, another manufacturer requested additional time to develop a less expensive remedial repair part, resulting in savings to the manufacturer of $3.2 million. J.A. 269. A third carmaker convinced the EPA to consent to two audited sample recalls in an unsuccessful attempt to demonstrate that defective carburetors could be repaired instead of replaced; the delays consumed three years. Id. Manufacturers who hope to call upon the EPA's good graces in the future are hardly in a position to invoke 5/50 limitations when the delays they have asked the EPA to tolerate in order to mitigate the expense of a recall result in large numbers of vehicles having exceeded their useful lives when presented for repair.
Indeed, EPA provides information on only two completed recalls in which large numbers of vehicles beyond their useful lives could have been expected to have been presented for repair and special circumstances militating against a manufacturer's invocation of a 5/50 limitation were not involved. These were the Chrysler and the Cadillac recalls. In both, the manufacturers imposed 5/50 limitations. In the former, the EPA ultimately acceded to the limitation; in the latter, obviously, it has not. Such a history does not a "longstanding" interpretation make.

EPA Brief at 41.

Whirlpool Corp. v. Marshall, 445 U.S. 1, 11, 100 S.Ct. 883, 890, 63 L.Ed.2d 154 (1980); Southeastern Community College v. Davis, 442 U.S. 397, 411, 99 S.Ct. 2361, 2369, 60 L.Ed.2d 980 (1979).

See Consumer Prod. Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980); Touche Ross Co. v. Redington, 442 U.S. 560, 568, 99 S.Ct. 2479, 2485, 61 L.Ed.2d 82 (1979); Caminetti v. United States, 242 U.S. 470, 485, 37 S.Ct. 192, 194, 61 L.Ed. 442 (1917); Symons v. Chrysler Corp. Loan Guar. 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, 99 S.Ct. 2051, 60 L.Ed.2d 659 (1979).

See EPA Brief at 22 n. 26.

The dissent, like the EPA, makes much of the classwide nature of the manufacturer's remedial obligation. See Dissenting Opinion at 1002-1005, 1006, 1007 nn. 11 12, 18-19; see also infra note 50. Yet, assuming arguendo that it is the nonconformity of the class — and not the nonconformity of individual vehicles — that the statute requires manufacturers to remedy, see Dissenting Opinion at 1007 n. 11 ("Congress intended to provide classwide remedies for classwide . . . defects that showed up during the useful life of the cars listed as representative samples of the class. A defective class — its members ( sic) — can therefore be deemed `nonconforming.'"), a manufacturer still need not "repair" vehicles beyond their useful lives to effect a remedy of the class. If a class is nonconforming when a representative sample of its members demonstrates nonconformity with emissions standards during the useful lives of the sample vehicles, then it follows that a class is restored to conformity when the EPA can no longer muster such a sample. Since vehicles beyond their useful lives can never form part of the sample upon which an inference of class conformity or nonconformity is founded, "repair" of such vehicles, as noted above, contributes nothing to the remedy of the class.

See 45 Fed.Reg. 36,396, 36,397 n. 2 (May 30, 1980); EPA Brief at 20 n. 25.

45 Fed.Reg. 36,396, 36,397 n. 2 (May 30, 1980).

The dissent's apparent approval of EPA's concession, see Dissenting Opinion at 1007 n. 12, is similarly inconsistent with the dissent's position that all vehicles which are part of a nonconforming class are subject to repair at manufacturer expense, see id. at 1002-1005, 1007 n. 12. If, as the dissent believes, the "statute . . . require[s] the manufacturers to include a car in their remedial plans if (1) a substantial number of cars exhibit nonconformity during their useful lives, and (2) the car is a member of that class," id. at 1002; see id. at 1006 n. 10, then the time of the onset of nonconformity in a particular vehicle should be irrelevant to the manufacturer's liability for repair of that car. Indeed, the dissent's analysis produces the "bizarre result," id. at 1002, that even the existence of an individual vehicle's conformity or nonconformity is beside the point; class conformity is all that matters! Id. at 1007 n. 11 ("Congress intended to provide classwide remedies for classwide design or performance defects that showed up during the useful life of the cars listed as representative samples of the class. A defective class — its members ( sic) — can therefore be deemed `nonconforming.'" (emphasis supplied)); id. at 1008-1009 ("The statute thus mandates classwide notice without limitation, and requires the manufacturer to repair all cars and engines `with respect to which [such] notice is given.'" (emphasis and alteration in original)); id. at 1009 ("The statute may fairly be read to require classwide notice regardless of whether some members of the class have exceeded their useful lives."); see generally id. at 1002-1005. Yet, pragmatically, the only way to remedy class nonconformity is by repairing individual vehicles. And, to paraphrase the familiar adage, "if it ain't broke, you can't fix it."

In this case, the samples appear to have been 14 or 15 cars of the 230-carburetor family and 8 of the 193-carburetor family. See J.A. 125, 170.

See J.A. 35.

See J.A. 123.

Thus, contrary to the contention of the dissent, better than half of the cars in the class may not "have been riding the roads for years in violation of pollution standards." Dissenting Opinion at 1001. Moreover, whatever "public benefit" might be derived from improving the emissions performance of vehicles beyond their useful lives, see id. at 1001-1002, may not be achieved by imposing on manufacturers a liability beyond that which Congress has seen fit to prescribe.

See S.REP. No. 1196, 91st Cong., 2d Sess. 30 (1970), reprinted in 1 SENATE COMM. ON PUB. WORKS, 93RD CONG., 2D SESS., A LEGISLATIVE HISTORY OF THE CLEAN AIR AMENDMENTS OF 1970, at 430 (1974) [hereinafter cited as 1970 Legislative History]. Indeed, Congress reduced the useful life to which emissions standards would apply from 10 years to 50,000 miles in response to industry representations that manufacturers could not guarantee conformity for a 10-year useful life. See id.

See J.A. 165-67.

See Chrysler Corp. v. EPA, 631 F.2d 865, 870-71 (D.C. Cir. 1980).

The dissent complains that the "majority, in hypothesizing about possible future problems in the implementation of EPA's rule, exceeds the proper scope of an inquiry into the validity of a rule." Dissenting Opinion at 1008 n. 13. The dissent's concern for limiting the scope of our inquiry to the facts of this particular case might be well placed had the GM recall order alone been brought before this court for review. However, the dissent seems to have forgotten that we have also been called upon to review the validity of EPA's interpretative rule itself. See supra text accompanying note 28. It is clear beyond peradventure that the validity of a rule can be ripe for review whether or not it has actually been improperly applied and enforced in a concrete factual setting. See, e.g., FCC v. WNCN Listeners Guild, 450 U.S. 582, 585-86, 101 S.Ct. 1266, 1269-70, 67 L.Ed.2d 521 (1981) (reviewing the validity of a Policy Statement not then applied to any particular set of facts); Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 301-03, 99 S.Ct. 2301, 2310-11, 60 L.Ed.2d 895 (1979) (statutory procedures, restrictions, and penalties, though not invoked, are ripe for review); Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 81-82, 98 S.Ct. 2620, 2634-2635, 57 L.Ed.2d 595 (1978) (constitutionality of statutory limitation of liability for nuclear accidents ripe for review before any nuclear disaster occurs); National Wildlife Fed. v. Snow, 561 F.2d 227, 236-37 (D.C. Cir. 1976); Continental Air Lines, Inc. v. CAB, 522 F.2d 107, 124-26, 128 (D.C. Cir. 1975) (en banc); see generally 4 K. DAVIS, ADMINISTRATIVE LAW TREATISE §§ 25:6 — 25:10 (2d ed. 1983).
Taken on its face, the EPA rule would require cars beyond their useful lives to be brought into conformity with standards which do not apply to them. The EPA 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 "repair" to be made on older and younger vehicles. If we have in any way "exceed[ed] the scope of [our] proper inquiry," it has been by giving any consideration to this post hoc rationalization of the agency's actions. See, e.g., Citizens To Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 419, 91 S.Ct. 814, 825, 28 L.Ed.2d 136 (1971); Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168-69, 83 S.Ct. 239, 245-46, 9 L.Ed.2d 207 (1962); SEC v. Chenery Corp., 332 U.S. 194, 196-97, 67 S.Ct. 1575, 1577-78, 91 L.Ed. 1995 (1947); SEC v. Chenery Corp., 318 U.S. 80, 87, 63 S.Ct. 454, 459, 87 L.Ed. 626 (1943); Tabor v. Joint Bd. For the Enrollment Of Actuaries, 566 F.2d 705, 709-12 (D.C. Cir. 1977); KIRO, Inc. v. FCC, 545 F.2d 204, 208 (D.C. Cir. 1976). Nevertheless, out of deference to the agency we did consider EPA's extra-record gloss on its rule, but we found the modification to be as fatally flawed as is the rule itself. The fundamental difficulty with the "same repair" explanation, as discussed in text below, is its inconsistency with the statute: the Act requires not that a "repair" be performed, but that a nonconformity be remedied. Nearly as compelling, however, is the fact that EPA's modification will not alter the impermissible effect of the rule in many of the recalls to which the rule can reasonably be expected to apply. We have not had to "conjure up" or "hypothesize" situations in which the EPA's modified interpretation collapses. Indeed, we have had to look no farther than the last major EPA recall reviewed by this court, see Chrysler Corp. v. EPA, 631 F.2d 865, 870-71 (D.C. Cir. 1980), to discover that requiring older vehicles to conform to inapplicable standards and requiring them to be subjected to "the same repair" as younger vehicles may amount to the same thing. In situations in which the required repair involves a fine-tuning process rather than a "fixed number of turns of the screwdriver," the EPA's modification represents, with respect to the rule itself, a distinction without a difference.
The rule before us purports to require all manufacturers to include cars beyond their useful lives in their remedial plans. Were this court to uphold that rule, the rights of manufacturers would be "prejudiced prior to judicial review . . . of some future recall." See Dissenting Opinion at 1008 n. 13. The age and mileage of a car would become irrelevant to the question of a manufacturer's liability for its repair in all future recalls. The EPA asks us to affirm such a blanket imposition of liability on the pretext that the manufacturer will be able to negotiate with the EPA the kind of repair for which liability may be imposed in the context of a particular recall. This so-called "flexibility," see id., will be scant help to manufacturers who would be estopped from contesting their liability for making some kind of repair on older cars in future recalls should this court approve EPA's interpretation of the recall provisions in this case.
The EPA's interpretative rule, both on its face and as subsequently qualified by the agency, is clearly inconsistent with the statute. We need not wait to see the precise repair required in every future recall to declare as a general principle that the statute does not impose on manufacturers liability for repair of vehicles beyond their useful lives.

Even if the statutory language appeared 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. See Chesapeake O. 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, 101 S.Ct. 1673, 1678 n. 9, 68 L.Ed.2d 80 (1981); Aaron v. SEC, 446 U.S. 680, 705-08, 100 S.Ct. 1945, 1960-62, 64 L.Ed.2d 611 (1980) (Blackmun, J., concurring in part and dissenting in part).

The dissent also argues that the above-quoted language of the Senate Committee Report is irrelevant, see Dissenting Opinion at 1006, but on grounds which EPA failed to raise and to which, as a result, GM has been permitted no opportunity to respond. However, the dissent's discourse on the distinctions between the Senate bill and the Act as finally adopted falls far short of establishing the irrelevance of the Senate Report. To the contrary, the extended legislative history exhumed by the dissent lends further support to the conclusion that Congress did not intend that manufacturers be held liable for repair of vehicles beyond their useful lives. Judge Wald correctly observes that the Senate bill imposed no explicit repair obligation in its class notification provision; recall of the class was effectuated once the manufacturer notified the owners of all vehicles presumed to be within their useful lives. See id. at 1005-1006; see also S. 4358, 91st Cong., 2d Sess. § 8 (1970), reprinted in 1 1970 Legislative History, supra note 55, at 574, 594-96 (amending § 207(d) (now § 207(c)) of the Act). Instead, the Senate version relied for a remedy upon the exercise of the bill's warranty provisions by the vehicles' purchasers in response to the class notification. See Dissenting Opinion at 1005-1006; see also S. 4358, 91st Cong., 2d Sess. § 8 (1970), reprinted in 1 1970 Legislative History, supra note 55, at 574, 593-94 (amending § 207(c) (now § 207(a)) of the Act). The warranty section of the bill, in turn, provided that

[e]very new vehicle or new vehicle engine . . . shall be warranted by the manufacturer to . . . remain in conformity with [emissions] regulations for the lifetime of such vehicles or engines if properly maintained, serviced, and operated. Operation for fifty thousand miles shall be taken as the basis for the lifetime of a vehicle or engine under this section.

The Senate [bill] . . . authorized the Administrator, 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 nonconformity during the term of any warranty required under the Senate [bill], he was required to notify purchasers of the nonconformity and to remedy such nonconformity at no cost to the owner.

The conference substitute adopts substantially the provisions of the House bill relating to prototype and production line testing and the provisions of the Senate [bill] . . . relating to compliance after sale and warranty.

See S. 4358, 91st Cong., 2d Sess. § 8 (1970), reprinted in 1 1970 Legislative History, supra note 55, at 574, 595-96 (amending § 207(d)(2) (now § 207(c)(1)) of the Act).

EPA Brief at 35 n. 44.

EPA estimates that the "average time from recall order to owner notification is 8 1/2 months." EPA Brief at 28 n. 33; J.A. 268 n. 6. However, this computation apparently includes time consumed in administrative and judicial challenges to the recall order. See EPA Brief at 28.

EPA approximates the average time spent in such investigations as nine months. See J.A. 268 n. 5.

EPA provides no estimate of the average amount of time consumed in such appeals. However, the agency did note one recent recall in which nearly four years were expended in appeals:

Of particular note is the recall of certain 1975 Chryslers ordered recalled on December 8, 1976 . . . . Although the recall was ordered relatively early in the life of the vehicles, Chrysler requested an administrative hearing on the Administrator's determination of nonconformity. The Administrative Law Judge upheld the determination in a decision filed on February 10, 1978. Subsequent 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 subject to the recall order were still within their useful lives.

See S. 4358, 91st Cong., 2d Sess. § 8 (1970), reprinted in 1 1970 Legislative History, supra note 55, at 574, 594-96 (amending § 207(d) (now § 207(c)) of the Act) (actual use testing); id., reprinted in 1 1970 Legislative History, supra note 55, at 574, 595-96 (amending § 207(d)(2) (now § 207(c)(1)) of the Act) (administrative hearings and review); id. § 11(b), reprinted in 1 1970 Legislative History, supra note 55, at 612, 619-20 (inserting § 308 (now § 307(b)) of the Act) (judicial review); Administrative Procedure Act § 10 (presently codified as amended at 5 U.S.C. §§ 702, 704 (1982)) (judicial review).

"A decision not to require the manufacturer to repair the vehicle could be made after notice and after finding that the vehicle had exceeded the 50,000-mile warranty period." S.REP. No. 1196, 91st Cong., 2d Sess. 31 (1970), reprinted in 1 1970 Legislative History, supra note 55, at 431.

"The 50,000-mile period can 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 . . . ." Id. (emphasis supplied).
Of course, this language, standing alone, might permit an interpretation under which the manufacturer could be held liable for repair of vehicles which were within their useful lives at the time EPA notified the manufacturer of nonconformity but had exceeded their useful lives by the time they were presented for repair. Since EPA has not put forward such an interpretation, we have no occasion to rule on it. We do note, however, that legislative rulemaking might be required to resolve a number of implementation problems ( e.g., a method for determining when a given car exceeded its useful life) before such an interpretation could be given effect.

See Chamber of Commerce v. OSHA, 636 F.2d 464, 469-70 (D.C. Cir. 1980).

See Energy Consumers Producers Ass'n v. Department of Energy, 632 F.2d 129, 142 (Em. App. 1980).

Chamber of Commerce, 636 F.2d at 469.

See EPA Brief at 30-33.

The Senate Committee Report noted:

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.

According to EPA estimates, vehicles involved in recalls average 20,000 miles of use at the time of the recall order. See J.A. 268 n. 4.

By acknowledging this "worst case" scenario, we do not, however, intimate that the EPA will be totally hamstrung in its efforts to enforce vehicle emissions standards. To begin, the EPA can minimize the degree of delay by expediting agency response at each stage of the administrative process. The agency can also seek early judicial enforcement of its recall orders when confronted with recalcitrance or foot-dragging on the part of manufacturers. See Clean Air Act §§ 203(a)(4)(B), 204, 205, 42 U.S.C. §§ 7522(a)(4)(B), 7523, 7524 (Supp. V 1981).
Moreover, however significant the recall apparatus may be, it is not the only tool at EPA's disposal capable of inducing manufacturers to design vehicles which conform to emissions standards throughout their useful lives. The Act provides a number of alternative enforcement mechanisms; for example:

1. Section 206(a) requires EPA to certify, on the basis of extensive testing of prototypes, that each new vehicle produced will conform to emissions standards for five years or 50,000 miles. No manufacturer may produce or market vehicles not covered by such a certificate. 42 U.S.C. § 7525(a) (Supp. V 1981).

2. Section 206(b) authorizes the EPA to conduct production line testing to determine whether vehicles being manufactured 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 warrant 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).

5. Sections 203(a) and 205 authorize imposition of penalties of up to $10,000 per vehicle against a manufacturer which violates any of these requirements or which fails to perform warranty repairs. 42 U.S.C. §§ 7522(a), 7524 (Supp. V 1981).

We note, for example, that the Administrator has substantial discretion in defining by regulation the useful lives of vehicles under the Act. See Clean Air Act § 202(d), 42 U.S.C. § 7521(d) (Supp. V 1981). Perhaps a legislative regulation providing that the useful life of vehicles in a class be tolled at the time the Administrator notifies the manufacturer of the nonconformity of that class would protect the recall system from manufacturer-induced delays.
The dissent expends considerable effort attempting to demonstrate the infeasibility of this suggestion. See Dissenting Opinion at 1001 n. 3, 1007-1010. The short answer seems obvious: if this particular proposal will not work, then the agency will have to devise an alternative regulatory solution, make do with presently available enforcement mechanisms, see supra note 78, or turn to Congress for remedial legislation. The failure of one regulatory alternative does not license the agency to disregard the limits Congress has imposed on its authority.
We cannot, of course, prejudge the validity of a regulation that is not before this court. We would, however, point out that a tolling provision is not as clearly precluded by the statute, nor by the reasoning of our opinion, as the dissent would have us believe. It is true that Congress has fixed the useful life of light-duty vehicles, such as automobiles, at five years or 50,000 miles. See Clean Air Act § 202(d)(1), 42 U.S.C. § 7521(d)(1) (Supp. V 1981); Dissenting Opinion at 3 n. 3. That the EPA may not alter that limitation by regulatory fiat is the point of our opinion. However, § 202(d) director the Administrator to "prescribe regulations under which the useful life of vehicles may be determined for purposes of . . . section 7541 of this title." 42 U.S.C. § 7521(d) (Supp. V 1981). This language may be sufficiently elastic to permit the EPA to promulgate regulations prescribing how the five-year/50,000-mile useful life will be measured for recall purposes. If so, a vehicle's age and mileage could be tolled whenever the EPA issues a recall order for vehicles of its class.
The dissent suggests that even if a tolling provision were permissible under the statute, such a regulation would suffer the same flaw as does the rule before us in this case — "[e]ither one would require the repair of vehicles beyond the age limits set by Congress . . . ," i.e., vehicles to which emissions standards no longer apply. Dissenting Opinion at 1001; see id. at 1007-1010. This contention is difficult to comprehend. Under a tolling provision, a vehicle's constructive life, not its actual life, would govern its eligibility for recall and repair. Thus, if a car were two-years old when the EPA issued a recall order, but was six-years old by the time the recall was ultimately put into effect by the manufacturer, the vehicle's constructive age would be two years. Such a vehicle would be subject to the same standards that applied to it at (actual) age two.
We offer the suggestion of a tolling provision, not out of a sense that it is the only way — or even the best way — for the agency to administer the recall provision. Rather, we are sympathetic to the predicament of the agency which may be hampered in its exercise of its recall powers should manufacturers take advantage of this loophole in the Act to evade their recall repair obligations. Ultimately, however, it is not the responsibility of this court to provide "a principled exception" to a limitation established by Congress. See Dissenting Opinion at 1007. If, indeed, a "statutory straightjacket" is involved in this case, see id., it is one into which the EPA has been laced by Congress, not by this court. It is to Congress that the agency will have to turn for relief.

Office of Consumers' Counsel v. Federal Energy Regulatory Comm'n, 655 F.2d 1132, 1152 (D.C. Cir. 1980).

Even if it were allowed to stand, the GM order would by now be virtually moot. The class as a whole is nine-years old, and, by EPA's own admission there is little likelihood that owners would respond to a recall order at this point. See EPA Brief at 29 n. 37; see also J.A. 298.