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February 26, 1979

TRUCK SAFETY EQUIPMENT INSTITUTE, an Illinois not-for-profit Corporation, Abex Corporation, Signal-Stat Division, a Delaware Corporation, R. E. Dietz Company, a New York Corporation, Grote Manufacturing Company, a Kentucky Corporation, Plaintiffs,
Robert KANE, Attorney General, Commonwealth of Pennsylvania, James B. Wilson, Secretary, Pennsylvania Department of Transportation, Seymore G. Heyison, Director, Bureau of Traffic Safety, Pennsylvania Department of Transportation, Ward B. Baumbach, Chief, Inspection Division, Bureau of Traffic Safety, Pennsylvania Department of Transportation, Caroline Gardner, Supervisor, Automotive Equipment Section, Bureau of Traffic Safety, Pennsylvania Department of Transportation, individually and in their official capacities, Defendants

The opinion of the court was delivered by: HERMAN

In 1975 Truck Safety Equipment Institute, a trade association for manufacturers of lighting equipment and three manufacturers of such lighting equipment instituted this action challenging the enforcement of Pennsylvania's program for approval of certain types of lighting equipment regulated by the National Traffic and Motor Vehicle Safety Act of 1966, 15 U.S.C. § 1381 et seq.

At that time, on summary judgment motions, we entered a declaratory judgment in favor of the Plaintiffs, holding that the enforcement by Pennsylvania of the identical standards regulated by the National Traffic and Motor Vehicle Safety Act (hereinafter the "National Safety Act") was preempted by the said Act pursuant to the Supremacy Clause of the United States Constitution (Article VI, cl. 2). *fn1"

 The Pennsylvania Law with which this Court was concerned at that time *fn2" was repealed, the new law to become effective July 1, 1977. On appeal from this Court's decision the United States Court of Appeals for this Circuit vacated and remanded the case for further consideration in the light of the New Vehicle Code which had not been in effect when our judgment was entered.

 After a supplemental complaint and answer were filed the parties agreed upon a detailed statement of facts and thereafter both Plaintiffs and Defendants again sought summary judgment on the preemption claim set forth in Count I of the complaint. *fn3"

 The agreed statement of facts sets forth in some detail the new provisions of the law that are attacked and the regulations that were promulgated pursuant to the new state law as well as the regulations covering the same lighting equipment in effect under the National Safety Act.

 Plaintiffs again seek a declaratory judgment that under the New Vehicle Code and regulations, Pennsylvania's program for approval of federally regulated items of the subject motor vehicle lighting equipment is preempted by the National Safety Act and is therefore invalid and unenforceable. Plaintiffs further seek to enjoin the Defendants from taking any actions to implement the State's equipment approval program. Defendants ask that we declare the Pennsylvania Law not preempted.

 The stipulated facts reveal that the National Safety Act, 15 U.S.C. § 1381 et seq., became law on September 9, 1966 because among other reasons of the need to establish and insure compliance with uniform national safety standards for motor vehicles and motor vehicle equipment in interstate commerce. *fn4" With the passage of this Act Congress created a comprehensive federal motor vehicle safety program which involves promulgation of detailed performance standards for certain items of motor vehicle equipment and self-certification by manufacturers that their equipment conforms to these standards.

 The National Safety Act makes it unlawful to sell or offer to sell in interstate commerce any new item of motor vehicle equipment which is covered by a federal motor vehicle safety standard (FMVSS) unless it conforms to the applicable standard and the manufacturer or distributor so certifies. The Act provides penalties up to $ 800,000 for violations of the Act and injunctive relief. Both manufacturers and distributors are subject to the statutory repurchase and replacement of items of equipment which are found to contain safety defects or are otherwise not in conformity with the applicable FMVSS. Manufacturers are also required to give detailed notice, repair, replace and refund money for nonconforming equipment. The federal enforcement of motor vehicle safety standards is directed only to manufacturers and distributors and not to the purchaser. 15 U.S.C. § 1397(b)(1).

 The National Safety Act is administered by the National Highway Traffic Safety Administration ("NHTSA") of the United States Department of Transportation. The Secretary of the Department is given broad investigative powers under the Act to aid in the enforcement of its provisions as well as the power to establish appropriate Federal standards. Detailed record keeping and data submission requirements are imposed upon manufacturers. The operation of NHTSA in the enforcement of safety standards is a multi-million dollar operation. FMVSS compliance tests are made by many laboratories approved by and operating for NHTSA.

 Statutory penalties in over a million dollars have been collected from manufacturers.

 NHTSA also conducts recall campaigns covering both nonconformance with FMVSS and safety-related defects. Over 12 million vehicles were recalled in 1977 and some two and one-half million equipment items have been recalled over the years.

 Standards Nos. 108 and 125 apply to lighting equipment sold by the Plaintiff manufacturers. Standard No. 108 specifies among other things the requirements for original and replacement lamps for automobiles, and Standard No. 125 pertains to reflective triangles or warning devices without self-contained energy sources.

 The federal standards are periodically reviewed and amended, No. 108 for example has been amended many times.

 These facts have been set down in some detail to indicate the comprehensive nature and the pervasiveness of the federal scheme.

 Under this federal regulatory scheme, NHTSA does not Approve *fn5" vehicles or equipment as complying with safety standards; instead, manufacturers certify that their products comply. The manufacturer is not required to pay government fees, submit samples or laboratory test reports or obtain product approval from states or their agents.

 The National Safety Act provides that where a federal motor vehicle safety standard is in effect every state standard is preempted unless it is identical to the federal one; and while the extent to which states may Enforce identical standards is not Expressly covered by the Act it appears to us to be evident from the language Congress used, the pervasiveness of the Act and the legislative history that the type of enforcement attempted by Pennsylvania here cannot stand.

 With this explanation of the federal regulatory scheme, we turn now to the stipulated facts concerning the New Vehicle Code and the regulations promulgated thereunder.

 The Pennsylvania law and regulations establishing identical standards, 75 Pa.C.S.A. § 4101 et seq. and 67 Pa. Code Ch. 410 now require that items of vehicle safety equipment be "submitted for approval" as a condition precedent to the lawful sale of such equipment in the Commonwealth. *fn6" Many of these items of equipment which are subject to Pennsylvania approval are also regulated by the FMVSS and are manufactured by the Plaintiff manufacturers.

 If such items of equipment are not Submitted for approval or submitted and subsequently disapproved by the Commonwealth the sale of such items (or of the vehicle to which the item is attached) in the Commonwealth even though they comply with the applicable federal standards and are so certified by the manufacturer cannot be lawfully sold or offered for sale here, and it is unlawful to operate a vehicle equipped with such equipment.

 If state approval is denied for any reason, even though the item of equipment has been certified as meeting all federal standards, the manufacturer must "assure" that such item of equipment is not offered for sale in the Commonwealth and must obtain from the wholesalers and dealers all unsold inventory of the item which had been distributed after approval was sought and before it was denied. After state ...

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