an otherwise burdensome task on a national scale; independent state enforcement procedures are deemed to be encouraged by the Act in order to advance the uniform Federal standard and the policy of less traffic accidents at the expense of uniform regulation, which is considered only a secondary consideration underlying the standards.
Assuming, arguendo, that the intent of Congress as evidenced by § 1392(d) and the legislative history of the Act was to establish a uniform national standard which was to be implemented and enforced pre-sale not only by the NHTSA but by independent enforcement programs of the states as well according to their particularized customs and means, we do not believe that this scheme could be effectuated without necessarily resulting in either pointless duplicative efforts on the part of the states or, in the alternative, the institution of a different, "non-identical" standard by the states. To afford the states the authority to enact enforcement programs which are compatible but not necessarily identical to the Federal enforcement scheme in order to account for Congress' implied permission to the states to adopt "identical" standards appears to mask a distinction without a difference; where motor vehicle equipment is ultimately subject to the same identical standard whether scrutinized under both a state and a Federal enforcement scheme or solely under the Federal scheme, it does not appear that a separate state enforcement program, pre-sale, could be of benefit or legitimatized in any way.
For instance, in the situation where a manufacturer has properly self-certified compliance with the Federal standards under the Federal enforcement procedure and is marketing the product while awaiting approval by the state on a pending application, can the state do otherwise than grant the approval without necessarily establishing or invoking a different "standard" by reason of its different enforcement procedure and thereby rendering the Federal enforcement procedure a nullity? Congress intended a uniform minimum national standard for specified aspects of motor vehicle equipment performance which would ensure that the vehicle would be admitted for market in all states, and it provided a comprehensive enforcement system under which all manufacturers, distributors and dealers are to certify compliance with this standard. Cf., Appendix Vol. II, pp. 786, 664, plaintiffs' motion for summary judgment. Under these circumstances, to allow a state's enforcement procedures to be more strict than the Federal enforcement scheme must do injustice to a uniform and identical Federal standard.
We believe that the language of § 1392(d) by its express terms cannot be construed to have a pre-emptive effect within the meaning of the Supremacy Clause, but in light of the fact that a uniform Federal standard pre-sale can only be maintained if identical enforcement procedures are employed, and adoption of such procedures would merely constitute a duplicative effort, we are constrained to conclude that preemption is implicit in the enactment of the Safety Act and the promulgation of extensive pre-sale motor vehicle equipment safety standards. Under the test enunciated in Florida Lime & Avocado Growers v. Paul, 373 U.S. 132, 83 S. Ct. 1210, 10 L. Ed. 2d 248 (1963) and Hines v. Davidowitz, 312 U.S. 52, 61 S. Ct. 399, 85 L. Ed. 581 (1941) for determining when Federal preemption is necessary and justified,
it is evident that both the state and the Federal enforcement procedures cannot be executed pre-sale without creating doubts and confusion as to the applicable and required standard and thereby impairing the effectiveness of the Federal standard and the Federal method of enforcement, and frustrating the accomplishment of the Safety Act's full purposes and objectives. Cf., Motor Coach Employees v. Lockridge, 403 U.S. 274, 91 S. Ct. 1909, 29 L. Ed. 2d 473 (1971); Campbell v. Hussey, 368 U.S. 297, 82 S. Ct. 327, 7 L. Ed. 2d 299 (1961).
The Federal enforcement scheme relies on a self-certification process, and because of the comprehensive nature and national application of the Federal standards the NHTSA is understandably unable to conduct actual tests on each item of equipment and verify its compliance with the Federal standards prior to its entrance into the market for sale. Clearly there is room for additional, stricter enforcement on a more localized basis and this we believe was the role intended by Congress to be given to the states as to post-sale enforcement of the Federal standards during use of the equipment by the consumer.
Congress' desire to involve the states in a consultative role during the formulation of the individual Federal standards, its express delegation to the states of the function of inspecting used motor vehicles; that is, motor vehicles after the first purchase, and its implied intention of allowing the states to have "identical" standards to the Federal standards can all be understood and given harmonious, coherent meaning if it is recognized that the Federal standard was intended to be enforced by the Federal authorities at the manufacturer, distributor and dealer's level and by the states in a complimentary fashion on a post-sale basis in order to assure a continuing and effective national traffic safety program. Cf., Appendix Vol. II, p. 664, plaintiffs' motion for summary judgment. Moreover, it would appear that the Federal scheme entailing self-certification would be more proper and suitable at the manufacturing and distributing level which is more of a national character and scope and encompasses manufacturers and distributors dealing in a large volume of goods and engaged in interstate commerce, while regulation of motor vehicle equipment at the consumer level would be particularly conducive to localized state enforcement. Cf., Appendix Vol. II, pp. 624-625, plaintiffs' motion for summary judgment.
Furthermore, the Safety Act expressly reserves common law liabilities, warranty obligations and consumer remedies in 15 U.S.C. §§ 1397(c) and 1420, not as further evidence of the states' role in pre-sale regulation of motor vehicle equipment but rather as an indication that compliance with the Federal standards is no guarantee that safety-related or other defects do not exist in the equipment and to avoid foreclosure of remedies where defects do in fact exist.
Finally, defendants contend that this court should accord great weight to prior administrative constructions of the presumption section provided in the Safety Act in discerning the intent of Congress in adopting the language used in that section as finally enacted. Defendants particularly rely on an interpretation of the limits of state enforcement procedures prepared by Douglas W. Toms, Acting Administrator for the NHTSA, on May 13, 1971, and published in the Federal Register, Vol. 36, No. 106, June 2, 1971. In that opinion Mr. Toms states, in part, as follows:
"Although this section (1392(d)) makes it clear that state standards must be 'identical' to the Federal standards to the extent of the latter's coverage, the procedural relationship between State and Federal enforcement of the standards is not explicitly stated in the Act. It has been the position of this agency that the Act permits the States to enforce the standards, independently of the Federal enforcement effort, since otherwise there would have been no reason for the act to allow the states to have even 'identical' standards. . . . (A) State requirement of obtaining prior approval before a product may be sold conflicts with the Federal regulatory scheme (in that there is a difference in the lead time between the state's approval process and the Federal method of self-certification)."