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September 16, 1976

TRUCK SAFETY EQUIPMENT INSTITUTE, an Illinois not-for-profit Corporation, et al., Plaintiffs,
Robert KANE, Attorney General, Commonwealth of Pennsylvania, et al., Defendants

The opinion of the court was delivered by: HERMAN


Presently before the court are cross motions for summary judgment filed by plaintiffs and defendants in the above-captioned case in which plaintiffs seek declaratory and injunctive relief. Both motions are filed pursuant to Federal Rule of Civil Procedure 56 together with supporting affidavits *fn1" and relate only to Count 1 of plaintiffs' two-count complaint, concerning an issue of preemption under the Supremacy Clause of the Constitution, Article VI, Clause 2.

 Jurisdiction in federal court in this case is predicated upon 28 U.S.C. § 1334 providing for jurisdiction in the district courts for civil actions arising under acts of Congress regulating commerce. See, General Motors Corp. v. Volpe, 321 F.Supp. 1112 (D.Del.1970), modified on other grounds, 457 F.2d 922 (3d Cir. 1972), and 28 U.S.C. § 1331 governing matters of a federal question. It has also been recently established that this court may properly consider the statutory preemption claim set forth in Count 1 and arising under the Supremacy Clause prior to convening a three-judge court under 28 U.S.C. § 2281, as it existed at the time of the filing of this suit, for the purpose of deciding the constitutional claim involving the Commerce Clause which is contained in Count 2. Hagans v. Lavine, 415 U.S. 528, 94 S. Ct. 1372, 39 L. Ed. 2d 577 (1974).

 The pertinent section of the Safety Act governing the preemptive effect of the motor vehicle safety standards issued by the Secretary under that Act is § 1392(d) of the Act which states:

"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."

 Section 1397(b) further provides that the Federal standards are designed to apply to motor vehicles prior to and at the time of their initial sale and introduction into the market in interstate commerce; that is, to manufacturers, distributors and dealers, and that state standards are to be effective and enforced as to used motor vehicles in the possession of consumers in order to assure a continuing and effective national traffic safety program.

 In light of these express terms establishing the scope and breadth of the Federal regulatory scheme of motor vehicle equipment, defendants concede that to the extent the State's standards regulating motor vehicle equipment are not identical to lawfully adopted Federal standards, they are null and void and unenforceable. Defendants maintain, however, that the State's standards in their entirety are non-identical with the corresponding Federal standards and that the State has recognized this fact and chosen to treat its own divergent standards as if they were identical to the Federal standards and to informally enforce these "conformed" standards without having actually formally enacted or issued either through the legislative branch or the administrative branch "identical" standards. While defendants represent that such identical standards are in the making and when enacted will be enforced independently of the Federal enforcement effort but with due regard to the Federal standards while the State enforcement procedures are being completed, they contend that at this time there is no viable case or controversy which could establish jurisdiction of the Federal courts. And in the event that this court does find the existence of a concrete case or controversy underlying this present action, defendants finally maintain that the State has made no effort to impose civil sanctions or otherwise enforce the State standards against plaintiffs and that, accordingly, any case or controversy is not ripe for adjudication by this court.

 We agree that to the extent the State standards governing aspects of performance for equipment on motor vehicles are co-extensive with Federal standards and non-identical such State standards are null and void and unenforceable. In view of the comprehensive nature of the Federal and State standards encompassing nearly the same motor vehicle equipment and covering many of the same aspects of performance however, it would be incredible that some of the standards were not identical. In many respects, the two sets of standards do contain different criteria as well as different standards of performance for like types of equipment, but in certain areas basic types of equipment are included in both sets of standards and are subject to identical standards. For instance, as plaintiffs point out both the Federal and State standards require that certain vehicles be equipped with two red taillights mounted on the rear; two stoplights, one mounted on each side of the rear; four red reflectors, with two mounted on the rear and one mounted on each side near the rear; two amber reflectors, mounted on the sides near the front; and four signal lights, two mounted on the front and two mounted on the rear. Compare, Pennsylvania Motor Vehicle Code, 75 P.S. §§ 801(d), (e), (f); 802(c)(1) and (c) (2) with Federal Motor Vehicle Safety Standard 108, 49 C.F.R . § 571.108, Tables I-IV. Cf. Appendix Vol. I, pp. 303, 307, 317, 347, 367, plaintiffs' motion for summary judgment. Adopting the same narrow construction of the "aspect of performance" language in the preemption section of the Act as was utilized in Chrysler Corp. v. Tofany, 419 F.2d 499 (2d Cir. 1969), we are nevertheless compelled to conclude that an actual case and controversy does in fact exist in this case upon which to establish jurisdiction in the Federal courts. *fn3"

 Furthermore, defendants admittedly are informally enforcing the State standards as they exist at present while construing them so that they are in "conformity" with the Federal standards. Defendants have also indicated their intention to enact identical State standards in the future and to enforce them independently of but in conjunction with Federal enforcement procedures. While defendants contend they do not intend to prosecute under the present State standards and that they merely seek the voluntary cooperation of manufacturers and distributors, plaintiffs remain subject to the State standards and accordingly, under these circumstances, we believe there is a ripe, justiciable controversy at hand. Cf., Appendix Vol. I, pp. 422-423, plaintiffs' motion for summary judgment.

 Recognizing that certain factual disputes apparently are raised in the briefs and affidavits submitted by both parties in support of their respective motions for summary judgment, we conclude that these disputed facts are neither critical to nor dispositive of the preemption issue posed before the court and, accordingly, we shall reach our decision in this case without having to resolve these matters. Confining our attention to the preemption issue, therefore, we further conclude that while neither express nor clear, the nature, scope and circumstances underlying the enactment of the Safety Act and the issuance of the related Federal motor vehicle safety standards necessarily imply that such provisions were intended to preempt both the creation and the enforcement of identical standards by the state concerning motor vehicle equipment up until the time of the vehicle's first purchase.

 The Federal program for enforcing the duly promulgated motor vehicle safety standards essentially consists of a self-certification process by each motor vehicle manufacturer, distributor or dealer in which they are required to certify that each vehicle or item of motor vehicle equipment subject to the standards are in compliance prior to the first purchase of the item. The Safety Act makes it unlawful to certify that an item of motor vehicle equipment conforms to an applicable Federal standard if the manufacturer in the exercise of "due care" has reason to know that such certification is false or misleading in any material respect. 15 U.S.C. § 1397 (a)(1)(C). The Act is administered by the National Highway Traffic Safety Administration (NHTSA) of the United States Department of Transportation and the Secretary is afforded broad investigative powers to aid in enforcement of the Act's provisions. 15 U.S.C. § 1401. NHTSA enforces the Act by requiring, inter alia, detailed recordkeeping and data submission evidencing the manufacturer's compliance with the Act and the basis for their self-certification. 15 U.S.C. §§ 1418. In addition, NHTSA conducts compliance testing of equipment with the Federal standards on a random basis and also authorizes recall campaigns where equipment is not in conformity with the Federal standards or where it contains a safety-related defect. The Safety Act provides for civil penalties, 15 U.S.C. § 1398, and the United States is also permitted to seek injunctive relief in Federal district courts to restrain violations of the Act, 15 U.S.C. § 1399.

 The Pennsylvania enforcement scheme of provisions in the Vehicle Code regulating motor vehicle equipment, on the other hand, entails the "approval" of each regulated item of equipment prior to its sale or use and also requires such approval prior to the sale, use or inspection of any vehicle on which such equipment is installed. See, 75 P.S. §§ 807, 808, 812 and 819(e). Approval must be sought either through the State itself by the filing of the necessary materials, or through the American Association of Motor Vehicle Administrators (AAMVA), Pennsylvania's recognized equipment approval agent. In either event neither Pennsylvania nor the AAMVA conducts compliance tests themselves, but rather they require the submission of test reports from approved laboratories upon which each relies in establishing the manufacturer's compliance with the applicable State safety standards. The AAMVA also periodically re-tests the equipment and spot-checks the market for unapproved equipment. Whether approval is obtained through the State or through the AAMVA, however, compliance with the Federal enforcement procedure and self-certification by the manufacturer that its equipment conforms to the effective Federal standards is not sufficient in and of itself to assure compliance with the State standards and receipt of the necessary "approval" under the corresponding State enforcement program. The State Vehicle Code provides criminal sanctions for violations of the equipment approval provisions, 75 P.S. §§ 807, 808, and also restricts the titling, registration or issuance of a certificate of inspection to motor vehicles containing unapproved equipment, 75 P.S. §§ 819(e).

 In view of the comprehensive nature of the Federal standards for the quality of motor vehicle equipment prior and up to the time of the first purchase of such equipment, we are constrained to conclude that the Pennsylvania motor vehicle equipment approval program is preempted by the Safety Act of 1966 to the extent the State program reaches federally-regulated equipment. Defendants appear to acknowledge that the preemption section contained in 15 U.S.C. § 1392(d) preempts and precludes any State standards which are "not identical" to corresponding Federal standards. The thrust of their primary argument in opposition to complete preemption is, however, that by virtue of the fact the states were enabled to retain "identical" standards it must necessarily follow that Congress intended that the states be allowed to observe different enforcement procedures, pre-sale and post-sale, provided that manufacturers be allowed to market their equipment where they have obtained compliance with the Federal procedures and are awaiting pending state "approval" . In support of this argument, defendants emphasize that the primary purpose of the Safety Act as expressly set forth in 15 U .S.C. § 1381 is the reduction of "traffic accidents and deaths and injuries to persons resulting from traffic accidents" and not the countervailing policy of uniformity in enforcement. Defendants stress the experience and expertise which the various states have acquired in regulating motor vehicle equipment and contend that their diverse enforcement practices would ...

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