Interpretation ID: nht73-3.40

DATE: 03/08/73

FROM: AUTHOR UNAVAILABLE; Lawrence R. Schneider; NHTSA

TO: Dow Corning Corporation

TITLE: FMVSS INTERPRETATION

TEXT: This is in response to your letter of February 26, 1973, in which you inquired whether our brake fluid standard, No. 116, has preempted State regulation with respect to silicone-based brake fluids.

As you know, Standard No. 116 does not presently contain any performance requirements for silicone-based brake fluids. The recent amendment of January 31, 1973 (38 FR 2981) only establishes labeling requirements for these fluids.

Section 103(d) of the National Traffic and Motor Vehicle Safety Act, 15 U.S.C. 1392(d), states that no State shall have a safety standard "applicable to the same aspect of performance" as a Federal standard that is not identical to the Federal standard. In this case, no "aspects of performance" at all, other than labeling, are covered by the Federal standard, so the State performance standards other than labeling cannot be said to cover the same aspects of performance. For these reasons the State performance requirements are not preempted by Standard No. 116. To hold otherwise would have the effect of voiding all State regulation of this product, leaving nothing in its place, until a Federal standard came into effect. No such results were intended by the issuance of the labeling amendment.

Work is in process to propose performance standards for silicone-based brake fluids and we plan to have requirements in effect before very much more time passes. At that time, of course, all State regulations will have to be identical to the Federal standard.