Untitled Texas Attorney General Opinion

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.

P. 657
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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