Chrysler Corporation brings this petition for rehearing asking that we reconsider our holding in Chrysler Corporation v. Rhodes, No. 7283 (1st Cir., June 26, 1969), that the National Traffic and Motor Vehicle Safety Act of 1966, 15 U.S.C. § 1381 ff., does not preempt New Hampshire's regulation of Chrysler's "Super Lite".
Chrysler makes a two-fold argument: first, it is contended that we did not define the phrase "aspect of performance", and second, that we did not give due consideration to the decisions in Chrysler Corp. v. Malloy, 294 F. Supp. 524 (D. Vt. 1968), and Chrysler Corp. v. Tofany, 305 F. Supp. 971 (N.D.N.Y. 1969). We shall consider these points in the order raised above.
Chrysler asserts that we misrepresented its argument as to section 1 of Federal Motor Vehicle Safety Standard No. 108. For Chrysler contends that its position is not that section 1 is itself a standard, but that it defines the "aspect of performance" of standard No. 108. That being so, the argument continues, the New Hampshire regulations relate to the same "aspect of performance" as the federal standard, and are therefore preempted under § 103(d) of the Act, 15 U.S.C. § 1392(d).
We cannot accept the premise that "aspect of performance" is defined solely by section 1 of standard No. 108. While the purpose and scope section of a federal safety standard may well be the starting point in defining "aspect of performance", the inquiry cannot end there. In our view, resort must be had to the specific requirements and categories of the standard in order to give meaning to the vaguely-worded purpose and scope provision.1
At no point does standard No. 108 purport to cover a category of lighting equipment which would encompass "Super Lite". We therefore fail to see how the standard could be read to relate to any "aspect of performance" of "Super Lite".2 We believe that our approach is consistent with both the language and the legislative history of § 103(d) of the Act, 15 U.S.C. § 1392(d). Nor does it do violence to the Congressional desire for uniformity. Whenever a federal standard deals with an item or category of equipment, non-identical state regulation is precluded and uniform regulation is assured. Such a result would follow if, for example, standard No. 108 were amended to provide coverage for a category of auxiliary lighting equipment which would encompass "Super Lite".
Acceptance of Chrysler's position might well be contrary to the central purpose of the Act -- the promotion of safety on the nation's highways. To hold that the mere promulgation of a general purpose sought to be achieved by a federal safety standard would preempt all state regulation in a vaguely described area would result in a "no man's" land with respect to categories of equipment which the federal standard does not yet seek to regulate. On the other hand, should state regulation prove to be undesirable, preemption may easily be accomplished by the amendment of federal standards to extend their coverage.
Finally, Chrysler complains that we did not give sufficient consideration to the opinions in Chrysler Corp. v. Malloy, supra, and Chrysler Corp. v. Tofany, supra. We have subjected those decisions to careful analysis, and with all respect to those courts, we cannot accept their reasoning. In Chrysler Corp. v. Tofany, supra, the district court struggled with the phrase "aspect of performance" but did not reach a conclusion, and in Chrysler Corp. v. Malloy, supra, the court expressly disclaimed any attempt to define this critical language. Thus, neither case resolved the issue which forms the basis for this petition.3
Petition for rehearing denied.
1. This in fact appears to be the approach adopted in Chemical Specialties Manufacturers Association, Inc. v. Conner, CA No. TCA-1422 (N.D. Fla. July 23, 1968).
2. We reaffirm our belief that section 3.1.2 of standard no. 108 is not a standard for "Super Lite." As we stated in our opinion, section 3.1.2 recognizes that the federal standard does not cover all categories of lighting equipment.
3. We are impelled to add that the stridency of the petition calls for comment. Vigorous contention on hard fought issues in important cases is part of the life of both lawyers and judges. But effective advocacy is exceeded, we think, by such charges as that the court "skirts [a] central issue" with "apparently studied silence." Nor is petitioner's case advanced by other personal references, such as asserting that a district judge whom we did not choose to follow is "experienced and respected." We do not doubt that he is, but we do not approve of such argumentation.