Interpretation ID: nht73-2.17

DATE: 11/08/73

FROM: AUTHOR UNAVAILABLE; James B. Gregory; NHTSA

TO: Department of California Highway Patrol

TITLE: FMVSS INTERPRETATION

TEXT: This is in response to your letter of October 1, 1973, in which you asked that we review an enclosed opinion by the California Attorney General on the question of preemption of California motor vehicle regulations by Federal standards. The opinion concluded that the California requirement that motorcycles be wired so that their headlamps are lit whenever their engines are running was not preempted. This conclusion was contrary to the position taken in an NHTSA letter of November 14, 1972, to Mr. Edward Kearney.

We adhere to the position stated in the November 14, 1972, letter that the California requirement is preempted, and consider the legal opinion by the California Attorney General to be an erroneous view of the Federal law.

The opinion properly viewed the question as turning on the application of the phrase in @ 103(d) of the National Traffic and Motor Vehicle Safety Act, 15 U.S.C. 1392(d), "applicable to the same aspect of performance." If the Federal standard (Standard No. 108, 49 CFR 571.108) covers a given aspect of performance, any State requirement must be identical to it. The California opinion relied on the language in the main opinion of one of the Super Lite cases, Chrysler Corp. v. Tofany, 419 F.2d 499 (1969), that preemption should be "narrowly construed", and went on to find that since Standard 108 does not specifically address the matter of wiring the headlamps when the engine is running, that aspect of performance is not covered by the standard and the California law is valid.

More important, however, than the nebulous concept of whether preemption is "narrowly" construed (a concept with which Judge Friendly, concurring in Chrysler, did not agree) is the point made at the end of the main opinion, that the administering Federal agency was supporting the State's position regarding the scope of the Federal regulation. The Court quoted the U.S. Supreme Court in Thorpe v. Housing Authority of Durham, 393 U.S. 268, 276 (1969):

[W]hen construing an administrative regulation,'a court must necessarily look to the administrative construction of the regulation if the meaning of the words used is in doubt. . . .[T]he ultimate criterion is the administrative interpretation, which becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation.'

In this case the situation is the opposite of that in the Super Lite cases. The NHTSA's position is that the standard does cover the aspect of performance in question. As stated in the NHTSA letter of November 14, 1972, the standard "establishes requirements for motorcycle headlighting, along with special wiring requirements for motorcycles and other vehicles." It is the intent of the NHTSA that its requirements for headlamp performance, configuration, and wiring cover all aspects of performance directly involving headlamps, and thus preempt any non-identical State Standards relating to headlamps.

The implication of the California opinion is that any mode of design or performance that is not expressly dealt with in the Federal standard is open to regulation by the States. Such a position is impractical, where the agency's intent is to have a comprehensive, uniform regulation in a given area. In order to preempt the field it would be necessary for a Federal agency to anticipate the imaginative regulatory impulses of future State agencies or legislatures and include in a standard such provisions as, "It is not required that motorcycle headlamps be wired to operate when the engine is running." Congress clearly intended the NHTSA to establish a single set of uniform standards to which manufacturers must comply, and that intent would tend to be defeated by the position taken in the California opinion. Federal regulation has a negative as well as a positive aspect: in determining that there should be certain requirements in an area, we also are deciding against imposing others. The only way to effectuate such a decision is to declare, as we have done here, that our regulation is intended to be exclusive, and to describe as necessary its outer limits.

The California opinion's factual comparison with the Super Lite cases is also inapt. The Super Lite itself was a new type of lighting equipment, a supplementary lamp, for which Standard 108 contained no requirements. Headlamps, by contrast, are comprehensively regulated by the standard.

For these reasons, we conclude that the California requirement that motorcycle headlamps be wired to operate when the engine is running is preempted by Standard 108, and void.

While we feel constrained by law to so conclude, I want you to know that I have instructed my staff to consider the merit of amending the Federal lighting standard to include the California requirement in 108.

Sincerely,

October 1, 1973

James B. Gregory -- Administrator, U. S. Dept. of Transportation, National Highway Traffic Safety Administration

Dear Dr. Gregory:

A copy of Mr. Douglas Toms' letter of November 14, 1972, to Mr. Edward Kearney expressing his opinion that a recently passed California law relative to motorcycle headlamps was preempted by Federal Standard 108, was received by this Department on November 20, 1972.

The opinion expressed by Mr. Toms prompted a request by this Department to the Office of the Attorney General of the State of California for an opinion on the question of federal preemption as related to this recently enacted statute. A copy of the Attorney General's Opinion on this matter is enclosed for your review.

You will notice that the Attorney General's Opinion is not in accord with that expressed by Mr. Toms; therefore, we are proceeding on the premise that all motorcycles first manufactured and registered in California after January 1, 1975, will be required to meet these headlamp requirements.

After your review of the enclosed material, I would appreciate your comments on this very important issue.

Thank you for your cooperation in this matter.

Sincerely,

W. PUDINSKI Commissioner--Dept. of California Highway Patrol

Enclosure

cc: Senator Donald L. Grunsky; Edward Kearney

OFFICE OF THE ATTORNEY GENERAL

DEPARTMENT OF JUSTICE

SAN FRANCISCO

September 13, 1973

W. Pudinski, Commissioner-- Department of California Highway Patrol

Dear Commissioner Pudinski:

You have requested the opinion of this office on the question of whether California Vehicle Code sections 25650.5 and 24253 are pre-empted by the National Traffic and Motor Vehicle Safety Act of 1966.

We conclude that these Vehicle Code provisions are not pre-empted by that Federal Act.

Our conclusion is based upon the following analysis:

In 1966 the Federal Government assumed a paramount role in the field of motor vehicle safety with the passage of the National Traffic and Motor Vehicle Safety Act. 15 U.S.C. @ 1381 et seq. (hereafter Federal Act). Basically this Act establishes a comprehensive system for the formulation and implementation of safety standards for the performance and equipment of new motor vehicles.

The enactment of such an extensive federal law naturally gave rise to the question of whether State legislation in the same field was pre-empted. n1E. g., see Chrysler Corporation v. Rhodes, 416 F.2d 319 (1969); Chrysler Corporation v. Tofany, 419 F.2d 499 (1969).

n1 See U.S. Const. art. VI, @ 2, the so-called Supremacy Clause.

Congress anticipated the question in their enactment of a provision in the Federal Act expressly dealing with issue of pre-emption, 15 U.S.C. @ 1392(d). It provides: "(d) Whenever a Federal motor vehicle safety standard established under this subchapter is in effect, no State or political subdivision of a State shall have any authority either to establish, or to continue in effect, with respect to any motor vehicle or item of motor vehicle equipment any safety standard applicable to the same aspect of performance of such vehicle or item of equipment which is not identical to the Federal standard. Nothing in this section shall be construed to prevent the Federal Government or the government of any State or political subdivision thereof from establishing a safety requirement applicable to motor vehicles or motor vehicle equipment procured for its own use if such requirement imposes a higher standard of performance than that required to comply with the otherwise applicable Federal standard."

This pre-emption provision (15 U.S.C. @ 1392(d)) was succinctly summarized by the United States Court of Appeals in Chrysler Corporation v. Tofany, supra, 419 F.2d 499 (1969). In that case the Court declared:

"This provision indicates that state regulation of an item of motor vehicle equipment will be preempted only if the following factors appear in combination: (1) a federal standard in effect which covers that item of equipment; (2) a state safety standard . . . for the item which is not identical to the federal standard; and (3) application of the state and federal regulations to 'the same aspect of performance' of the item of equipment." 419 F.2d at 506.

In connection with the present inquiry, the question of federal pre-emption has arisen with respect to two provisions in the State Vehicle Code: Vehicle Code section 25650.5 (relating to the activation of motorcycle headlights) and Vehicle Code section 24253 (relating to the duration of tail lamp illumination). It is noted that there are federal standards issued pursuant to the Federal Act which are (1) applicable to the same "items of equipment" (viz., motor cycle headlights and tail lamps); and (2) which are "not identical" to the State regulations. Hence in determining whether or not the State regulations are preempted, the specific question here is whether the State and federal regulations apply to "the same aspect of performance" of these specified items of equipment. In making this determination, it would be appropriate to first ascertain whether the phrase "same aspect of performance" is to be given a narrow or broad construction; i.e., whether the pre-emptive effect of the Federal Act is to be narrowly or broadly applied.

This specific point was considered by the United States Court of Appeals in Chrysler Corporation v. Tofanv, supra, 419 F.2d 499. In evaluating Congressional intent with respect to the Federal Act's pre-emptive effect, the Court noted that "uniformity through national standards" was merely "a secondary objective." 419 F.2d at 511. On the other hand, the Court declared that "the clear expression of purpose in section 1381 and other evidence of legislative intent indicate that the reduction of traffic accidents was the overriding concern of Congress. We think that these expressions of legislative purpose should govern our assessment of the preemptive effect of the Act and the standards issued under it." 419 F.2d at 508. (See also Chemical Specialties Mfrs. Ass'n, Inc. v. Lowery, 452 F.2d 431, 438 (1971), where the Court reiterates this conclusion.) Accordingly, the Court determined that "the 'aspect of performance' language in the preemption section of the Act must be construed narrowly." 419 F.2d at 510. The Court further stated: "If traffic safety is furthered by a traditional type of state regulation under the police power, . . . a narrow construction of the preemptive effect of the federal Act and [the standards issued pursuant thereto] is required." 419 F.2d at 511. n2.

n2 See Allway Taxi, Inc. v. City of New York, 340 F.Supp. 1120, 1124 (1972), which cites Chrysler Corporation v. Tofanv, supra, for the proposition that "[w]here exercise of the local police power serves the purpose of a federal Act, the preemptive effect of that Act should be narrowly construed." See also Chrysler Corporation v. Rhodes, supra, 416 F.2d 319, 324, n. 8 (1969).

Thus in view of the judicial constraint upon the scope of the Federal Act's pre-emption provisions, it is apparent that the states are still afforded substantial leeway in the enactment of vehicle equipment safety regulations.

In this light we now compare the State statutes in question with the pertinent federal standards issued pursuant to the Federal Act to determine if they cover the "same aspect of performance."

With respect to motorcycle headlamps:

(1) State Law

Vehicle Code section 25650.5 provides that after January 1, 1975, all motorcycle headlamps shall "automatically turn on when the engine of the motorcycle is started and which remain lighted as long as the engine is running."

(2) Federal Standards

The standard pertinent to motorcycle headlamps is found in 49 CFR section 571.108, Standard 108, subsection S4.5.7(b). This standard provides: "When the headlamps are activated in a steady-burning state, the taillamps, parking lamps, license plate lamps and side marker lamps shall also be activated."

In comparing these two provisions, it can be seen that the State law relates to the mechanism or event of activation and duration of activation of the headlamps. The federal standard, on the other hand, is unconcerned with these factors. It merely constitutes a designation of other lamps whose activation is to accompany the activation of headlights. It would appear reasonable to conclude that these two provisions apply to different aspects of performance of motorcycle headlamps and that, accordingly, the State provision is not pre-empted. As will be seen, our conclusion is the same as to State law regulating taillamps.

With respect to taillamps:

(1) State Law

Vehicle Code section 24253 provides in essence that all motor vehicles and motorcycles shall be equipped with taillamps that will remain lighted at least one-quarter hour if the engine stops.

(2) Federal Standards

49 CFR section 571.108, Standard 108, subsections S4.5.3 and S4.5.7(b) provide that the taillamps shall be activated upon the activation of the headlamps. Subsection S4.5.7(a) provides that the taillamps shall be activated upon the activation of the parking lamps.

Thus the State law is solely concerned with the duration of illumination, while the federal standards are directed to the event of activation. Again, it would appear that, just as in the case of headlamps, these State and federal regulations are each addressed to separate and distinct aspects of taillamps performance. Accordingly then, the State provision is not pre-empted by the Federal Act.

Our conclusion that the State headlamp and taillamp regulations relate to aspects of performance different from those covered by federal standards, is fortified by the analysis engaged in by the Court in Chrysler Corporation v. Tofanv, supra, as it compared the state and federal standards at issue in that case. There state law prohibited a type of auxiliary headlight because of its unacceptable glare and dazzle effect (419 F.2d at 502, n. 5, 503) and because it emitted a blue light, a color of light which the states had reserved for emergency vehicles (419 F.2d at 503). The pertinent federal standards prohibited such auxiliary headlights only if they impaired the effectiveness of the required lights (419 F.2d at 506). The Court concluded that the federal standard applied to the impairment of light emission from the required headlights to the extent that such impairment affected the visibility of the driver of the car (419 F.2d at 511). On the other hand, the Court determined that the state provisions purported to regulate the effects of the light upon drivers of oncoming cars. The Court concluded that this was "a different aspect of performance" and thus the states' "attempts at regulation are not preempted." (Ibid.)

Thus we have a case where even though the state and federal regulations both related to the quality of the illumination itself which was emitted by the headlight, the Court nonetheless found that these regulations were directed to "different aspects of performance," because of the distinction between the effect of the illumination upon the driver of the car in question, and the effect upon drivers of oncoming cars.

If such closely related factors are deemed to constitute "different aspects of performance," a fortiori, such manifestly distinct elements of operation as the event or mechanism of light activation on the one hand, and the duration of illumination on the other hand, must be deemed to constitute "different aspects of performance."

In view of the explicit quality of this difference, our conclusion that it constitutes a different "aspect of performance" would appear to be warranted whether the phrase "aspect of performance," as used in the pre-emptive provisions of the Federal Act (viz., 15 U.S.C. @ 1392(d)), is given a narrow or broad construction. n3 It is thus our opinion that Vehicle Code sections 25650.5 and 24253 are not pre-empted.

n3 The concurring opinion in Chrysler Corporation v. Tofanv, supra, 419 F.2d at 512-515, argued that the pre-emptive provisions of the Federal Act should be broadly construed (419 F.2d at 512-513). Yet it concluded that the state regulations were not pre-empted because one of the basis for restricting the auxiliary headlight was the fact that it emitted light of a blue color (a color reserved for emergency vehicles), and that this was an aspect of performance different from that encompassed by the federal standard; viz., impairment of the effectiveness of the required lights (419 F.2d at 515). It would appear that the aspects of performance under consideration here are at least as distinct as those aspects of performance found to be different under the concurring opinion's broad construction of the Federal Act's pre-emption provisions.

Very truly yours,

EVELLE J. YOUNGER --

Attorney General,

VICTOR D. SONENBERG --

Deputy Attorney General