                       The Attorney              General of Texas
                                          July    7,    1980

MARK WHITE
Attorney General

                   Honorable James B. Adams                    Opinion No. Mw-2 0 3
                   Director
                   Department of Public Safety                 Re: Whether Texas precertifica-
                                                                                          -
                   5805 N. Lamar Boulevard                     tion enforcement system for brake
                   P. 0. Box 4087                              fluid standards has been preempted
                   Austin, Texas 78773                         by the Federal Government

                   Dear Colonel Adams:

                          You request our opinion es to whether the Texas precertification
                   enforcement system for brake fluid standards has been preempted by the
                   Federal Brake Fluid Act as found in the National Traffic and Motor Safety
                   Act of 1966, 15 U.S.C. 51381 et seq.         We are informed that the Texas
                   Standards for brake fluid are identical to the federal standards for brake
                   fluid, but that the Texas rules call for pie-sale enforcement of the standards
                   while the federal scheme is based on past-sale enforcement of the standards.

                          The federal program is based on a self-certification          system.
                   Manufacturers certify compliance with the standards after the required
                   testing, laboratory reports, and other data are compiled. If equipment is
                   later discovered to be substandard or not in compliance, corrective action is
                   ge~;taby the NHTSA; failing that, the problem is referred to the Attorney
                            . Remedies enforced under the Safety Act mclude substantial
                   penalties and recall campaigns.

                          Enforcement of the same brake fluid standards under the Texas plan
                   require that the manufacturer, or their egents, furnish a sample of the fluid
                   and file an application for registration of the brake fluid for marketing in
                   Texas. The application includes either a test report from an independent
                   laboratory showing compliance with the federal standard or a current copy
                   of an American Association of Motor Vehicle Administrators         equipment
                   approval certificate for brake fluid. Your office informs us that the Texas
                   registration takes less than two weeks upon receipt of the proper materials.

                         To determine whether the federal enforcement         plan preempts the
                   state enforcement      plan, it must be determined whether the Texas law
                   “stands as an obstacle to the accomplishment        and execution of the full
                   purposes end objectives of Congress.” Hines v. Davidowitz, 312 U.S. 52,67
                   (1941). Different jurisdictions have reached different conclusions with regard
                   to whether their state standards were preempted depending on the details of




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Honorable James B. Adams - Page Two (m-20          3)




the various states’ statutes. Compare California Attorney General Memorandum, Feb.
1, 1968 (state standards held enforceable) with Truck Safety Equipment Institute v.
Kane, 466 F. Supp. 1242 (M.D., Pa. 1979) aniklahoma      Attorney General Opinion 79-
312980).

      In Pennsylvania v. Nelson, 350 U.S. 497 (19561, the Supreme Court held that the
prohibitions of the federal Smith Act superseded Pennsylvania’s proscription of the
same conduct by that state’s Sedition Act. The following guide lines were set forth:

                1. Is the scheme of federal regulation so pervasive as to
            make reasonable the inference that Congress left no room for
            the States to supplement it?

               2. Does the federal statute touch a field in which the
           federal interest is so dominant that the federal system must be
           assumed to preclude enforcement of state laws on the same
           subject?

              3. Would enforcement of the state statute present a serious
           danger of conflict with administration of the federal programs?

      In applying such general considerations, the Court has consistently required a
clear indication of congressional intent to displace state regulation.   Where a state’s
police power in involved, preemption is not presumed. Maurer v. Hamilton, 309 U.S.
598 (1940); Chrysler Corporation v. Tofany, 419 F. 2d 499 (2nd Cir. 1969).

       Congressional  intent is particularly   important    in answering   the   first   two
guidelines set out above. 15 U.S.C. 51392(d) provides that:

                Whenever     a Federal     motor vehicle     safety  standard
           established under this s&chapter        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 . . . .

The language of section 1392(d) expresses a congressional intent to allow the states to
enact identical safety standards applicable to the same vehicles or items of equipment,
and to subject such standards to both federal and state control. There is a clear intent
that the states shall enforce an identity in the standards themselves, so that
compliance with the federal standards will necessarily constitute compliance with
state standards, if any. Identity in the process or means of enforcement is impossible,
but is not required to accomplish the intent of obtaining uniformity in the standards
themselves and thus relieving the manufacturers of the burden of conforming to more
than a single set of standards.




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Honorable James B. Adams - Page Three             (MW-203)




       Even after finding that Congress did not intend to preclude state enforcement of
the brake fluid standard, the state plan must still be found not to be so burdensome
that it presents a serious danger of conflict with the administration of the federal
program. The state plan does not require registration fees or a lengthy registration
process that would interfere with the sale of brake fluids in Texas. It does require that
the brake fluid be independently certified to meet federal standards before it is sold
rather than after sale or after an accident. Any brake fluid that is shown to meet the
federal standard can be marketed in Texas. A brake fluid that cannot be shown to
meet the federal standard is considered unsafe for marketing purposes in Texas. The
state plan does not appear to prevent a serious danger to the administration of the
Federal program.

                                    SUMMARY

               The State of Texas is not preempted by federal law from
           engaging in pie-sale enforcement       of regulations which are
           identical to the federal regulations and applicable to the same
           item of equipment or vehicle.      Enforcement may include the
           requirement    that brake fluid be tested by m independent
           laboratory and that a sample be submitted for testing to the
           Department of Public Safety for its approval prior to the brake
           fluid being sold in this state.




                                              MARK      WHITE
                                              Attorney General of Texas

JOHN W. FAINTER, JR.
First Assistant Attorney General

TED L. HARTLEY
Executive Assistant Attorney General

Prepared by Peter Nolan
Assistant Attorney General

APPROVED:
OPINION COMMlTTEE

C. Robert Heath, Chairman
Susan Garrison
Rick Gilpin
Peter Nolan




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