Interpretation ID: aiam2154
Vice President
Motor Vehicle Manufacturers Association
320 New Center Building
Detroit
Michigan 48202;
Dear Mr. Hanna: This is in further response to your letter of November 12, 1975, askin whether this agency considers Standard 105-75 on hydraulic braking systems to be preemptive of State regulations concerning brake wear warning devices. You asked the question in light of the proposed uniform State regulation requiring such devices recently adopted by the Vehicle Equipment Safety Commission.; There are presently no requirements in the Federal motor vehicle safet standards dealing directly with the subject of brake wear indicators or warning devices. The question, therefore, becomes whether the Federal safety standards on braking performance were intended generally to cover this aspect of performance, analogously o the situation in which Standard 108 was held to be preemptive in *Motorcycle industry Council v. Younger*, No. CIV S74-126 (E.D. cal. 1974). The guiding rule, as set forth by the U.S. Supreme Court in *Florida Lime & Avocado Growers v. Paul*, 373 U.S. 132, 141-142 (1963), is 'whether both regulations can be enforced without impairing federal superintendence of the field.' Under the accepted doctrines as set forth in cases such as *Thorpe v. Housing Authority of Durham*, 393 U.S. 268 (1969), and *Chrysler v. Tofany*, 419 F.2d 499, %11-12 (2d Cir. 1969), the interpretation of this question by the administering agency is 'of controlling weight unless it is plainly erroneous or inconsistent with the regulation.'; the NHTSA has determined that the issuing of requirements for brak wear indicators by the States does not conflict with or otherwise impair our present regulation of braking systems, and that brake wear indicators are not within the intended scope of the present Federal safety standards. We therefore conclude that the existing standards are not preemptive of such State regulations. You should be aware that the agency is actively proceeding with rulemaking development work in this area, and may within the next year issue requirements that would alter these legal relationships.; Sincerely, Frank A. Berndt, Acting Chief Counsel