# Appendix — United States v. Locke

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0274%3A03

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2000
- **Citation:** 529 U.S. 89

## Text

it te Supreme Court, U.S.
2 PILED

7

981701 f 23 U%0

OFFICE OF THE CLERK

In the Supreme Court of the United States
OCTOBER TERM, 1998

UNITED STATES OF AMERICA, PETITIONER
D.

GARY LOCKE, GOVERNOR, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

APPENDIX TO THE
PETITION FOR A WRIT OF CERTIORARI

SETH P. WAXMAN
Solicitor General
Counsel of Record

DAVID W. OGDEN
Acting Assistant Attorney
General

EDWIN S. KNEEDLER
Deputy Solicitor general
DAVID C. FREDERICK
Assistant to the Solicitor
General

DOUGLAS N. LETTER

MICHAEL JAY SINGER

H. THOMAS BYRON IIT
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

N

TABLE OF CONTENTS

Appendix A (opinion of the court of appeals, filed
June 18, 1998)

Appendix B (order of the court of appeals denying
petitions for rehearing and rejecting sug-
gestions for rehearing en banc, filed Nov. 24,
1998)

Appendix C (opinion of the district court, filed
Nov. 18, 1996)

Appendix D (constitutional provision)

Appendix E (international treaty provisions)

Appendix F (statutory provisions)

Appendix G (federal regulatory provisions)

Appendix H (state regulatory provisions)

APPENDIX A

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

No. 97-35010

THE INTERNATIONAL ASSOCIATION OF INDEPENDENT
TANKER OWNERS (INTERTANKO), PLAINTIFF-
APPELLANT

AND

UNITED STATES OF AMERICA, INTERVENOR-
APPELLANT

.

GARY LOCKE, GOVERNOR OF THE STATE OF
WASHINGTON; CHRISTINE O. GREGOIRE, ATTORNEY
GENERAL OF THE STATE OF WASHINGTON; BARBARA J.
HERMAN, ADMINISTRATOR OF THE STATE OF
WASHINGTON OFFICE OF MARINE SAFETY; DAVID
MACEACHERN, PROSECUTOR OF WHATCOM COUNTY;
K. CARL LONG, PROSECUTOR OF SKAGIT COUNTY;
JAMES H. KRIDER, PROSECUTOR OF SNOHOMISH
COUNTY; NORMAN MALENG, PROSECUTOR OF KING
COUNTY, DEFENDANTS-APPELLEES

AND

NATURAL RESOURCES DEFENSE COUNCIL;
WASHINGTON ENVIRONMENTAL COUNCIL;
OCEAN ADVOCATES, INTERVENORS-APPELLEES

APPEAL FROM THE UNITED STATES DISTRICT
COURT FOR THE WESTERN DISTRICT OF
WASHINGTON

(la)

2a

[Argued and Submitted Feb. 4, 1998
Decided June 18, 1998]

JOHN C. COUGHENOUR, District Judge, Presiding.
D.C. No. CV-95-1096 JCC,

Before: BROWNING and O’SCANNLAIN, Circuit
Judges, and MARQUEZ,” District Judge.
O’SCANNLAIN, Circuit Judge:

We must decide whether Washington’s Best
Achievable Protection Regulations, which impose
requirements on oil tankers to prevent oil spills, are
preempted by comparable federal legislation under the
Supremacy Clause or otherwise violate the United
States Constitution.

In the aftermath of the Exxon Valdez oil spill in 1989,
the State of Washington enacted laws to protect its
waters from pollution by oil tankers. See Wash. Rev.
Code §§ 88.46.010, et seg.; Wash. Admin. Code §§ 317-
21-010, et seg. These provisions require that, in order to
transport oil in state waters, tanker operators must: (1)
file oil-spill prevention plans with the state, and (2)
comply with the state’s Best Achievable Protection
(“BAP”) Regulations, which are promulgated by the
Washington Office of Marine Safety. See Wash. Rev.
Code § 88.46.040. The International Association of
Independent Tanker Owners (“Intertanko”) maintains
that sixteen of these regulations are unconstitutional.

* The Honorable Alfredo C. Marquez, Senior Judge, United
States District Court for the District of Arizona, sitting by

designation.

3a

The district court summarized the challenged regula-
tions as follows:

1. Event Reporting—WAC 317-21-130. Re-
quires operators to report all events such as
collisions, allisions and near-miss incidents for the
five years preceding filing of a prevention plan, and
all events that occur thereafter for tankers that
operate in Puget Sound.

2. Operating Procedures—Watch Practices—
[WAC 317-21-200].' Requires tankers to employ
specific watch and lookout practices while navigat-
ing and when at anchor, and requires a bridge
resource management system that is the “standard
practice throughout the owner’s or operator’s fleet,”
and which organizes responsibilities and coordinates
communication between members of the bridge.

3. Operating Procedures—Navigation—WAC
317-21-205. Requires tankers in navigation in state
waters to record positions every fifteen minutes, to
write a comprehensive voyage plan before entering
state waters, and to make frequent compass checks
while under way.

4. Operating Procedures—Engineering—W AC
317-21-210. Requires tankers in state waters to
follow specified engineering and monitoring prac-
tices.

The district court misidentified this regulation as “WAC 317-
21-130.” International Association of Independent Tanker
Owners (Intertanko) v. Lowry, 947 F. Supp. 1484, 1488 (W. D. Wa.
1996).

4a

5. Operating Procedures—Prearrival Tests and
Inspections—WAC 317-21-215. Requires tankers to
undergo a number of tests and inspections of
engineering, navigation and propulsion systems
twelve hours or less before entering or getting
underway in state waters.

6. Operating Procedures—Emergency Proce-
dures—WAC 317-21-220. Requires tanker masters
to post written crew assignments and procedures
for a number of shipboard emergencies.

7. Operating Procedures—Events—WAC 317-
21-225. Requires that when an event transpires in
state waters, such as a collision, allision or near-miss
incident, the operator is prohibited from erasing,
discarding or altering the position plotting records
and the comprehensive written voyage plan.

8. Personnel Policies—Training—WAC 317-21-
230. Requires operators to provide a comprehensive
training program for personnel that goes beyond
that necessary to obtain a license or merchant

marine document, and which includes instructions
on a number of specific procedures.

9. Personnel Policies—Illicit Drugs and Alcohol
Use—WAC 317-21- 235. Requires drug and alcohol

testing and reporting.

10. Personnel Policies—Personnel Evaluation—
WAC 317-21-240. Requires operators to monitor
the fitness for duty of crew members, and requires
operators to at least annually provide a job per-
formance and safety evaluation for all crew

5a

members on vessels covered by a prevention plan
who serve for more than six months in a year.

11. Personnel Policies—Work Hours—WAC 317-
21-245. Sets limitations on the number of hours
crew members may work.

12. Personnel Policies—Language—W AC 317-21-
250. Requires all licensed deck officers and the
vessel master to be proficient in English and to
speak a language understood by subordinate officers
and unlicensed crew. Also requires all written
instruction to be printed in a language understood
by the licensed officers and unlicensed crew.

13. Personnel Policies Record Keeping—WAC
317-21-255. Requires operators to maintain training
records for crew members assigned to vessels
covered by a prevention plan.

14. Management—WAC 317-21-260. Requires
operators to implement management practices that
demonstrate active monitoring of vessel operations
and maintenance, personnel training, development,
and fitness, and technological improvements in

navigation.

15. Technology WAC 317-21-265. Requires
tankers to be equipped with global positioning
system receivers, two separate radar systems, and
an emergency towing system.

16. Advance Notice of Entry and Safety
Reports—WAC 317-21-540. Requires at least
twenty-four hours notice prior to entry of a tanker
into state waters, and requires that the notice

6a

report any conditions that pose a hazard to the
vessel or the marine environment.

International Association of Independent Tanker
Owners (Intertanko) v. Lowry, 947 F. Supp. 1484, 1488-
89 (W.D. Wa. 1996). Failure to comply with the BAP
Regulations subjects tanker owners to the following:
(1) assessment of civil penalties, see Wash. Rev. Code §
88.46.090; (2) criminal prosecution, see Wash. Rev. Code
§ 88.46.080; and (3) denial of entry into state waters, see
Wash. Admin. Code § 317-21-020.

Seeking both a declaration that the above-mentioned
BAP Regulations are unconstitutional and a permanent
injunction against their enforcement, Intertanko filed
suit in federal district court.’ Intertanko alleged that
the requirements imposed by the regulations on tanker
manning, training, management, safety, and on-board
equipment were preempted by various federal statutes,
including the Oil Pollution Act of 1990, the Port and
Tanker Safety Act of 1978, the Ports and Waterways
Safety Act of 1972, and the Tank Vessel Act of 1936.
Intertanko also maintained that several of the BAP
Regulations were preempted by Coast Guard regula-
tions and by various international treaties. In addition
to asserting that the BAP Regulations are invalid
under the Supremacy Clause, Intertanko argued that
the regulations violate the Commerce Clause and
impermissibly infringe upon the foreign affairs power of
the federal government.

The district court granted the State’s motion for
summary judgment and upheld every one of the

* Intertanko named as defendants the Governor of Washington
and various other state and local officials responsible for the pro-
mulgation and enforcement of the regulations.

7a

challenged regulations. See Intertanko, 947 F. Supp. at
1500-01. Intertanko filed a timely appeal. Three
environmental organizations—the Washington En-
vironmental! Council, the Natural Resources Defense
Council, and Ocean Advocates—have intervened on
behalf of the state defendants, while the United States
has intervened on behalf of Intertanko.

Intertanko’s primary contention on appeal is that the
BAP Regulations are preempted by federal law. Article
VI of the Constitution provides that the laws of the
United States “shall be the supreme Law of the Land;
. . . any Thing in the Constitution or Laws of any
State to the Contrary notwithstanding.” U.S. Const.
art. VI, cl. 2. Consideration of preemption issues
“start(s] with the assumption that the historic police
powers of the States [are] not to be superseded b)
Federal Act unless that [is] the clear and manifest
purpose of Congress.” Rice v. Santa Fe Elevator Corp.,
331 U.S. 218, 230, 67 S. Ct. 1146, 91 L.Ed. 1447 (1947).
Accordingly, t he purpose of Congress is the ultimate
touchstone’” of preemption analysis. Malone v. White
Motor Corp., 435 U.S. 497, 504, 98 S. Ct. 1185, 55
L.Ed.2d 443 (1978) (quoting Retail Clerks v. Schermer-
horn, 375 U.S. 96, 103, 84 S. Ct. 219, 11 L.Ed.2d 179
(1963)).

The state defendants maintain that Congress ex-
pressly indicated its intent not to preempt state law in
the field of oil-spill prevention when it passed § 1018 of
the Oil Pollution Act of 1990 (“OPA 90”). See Pub. L.
No. 101-380, 104 Stat. 484 (codified at 33 U.S.C. § 2701,
et seq.). That provision states, in pertinent part:

8a

(a) Preservation of State authorities. Nothing
in this Act or the Act of March 3, 1851 shall

(1) affect, or be construed or interpreted as
preempting, the authority of any State or
political subdivision thereof from imposing
any additional liability or requirements with
respect to—

(A) the discharge of oil or other pollution
by oil within such State

(e) Additional requirements and liabilities; penal-
ties Nothing in this Act, the Act of March 3, 1851 (46
U.S.C. 183 et seq.) or section 9509 of the Internal
Revenue Code of 1986 (26 U.S.C. 9509), shall in any
way affect, or be construed to affect, the authority of
the United States or any State or political sub-
division thereof —

(1) to impose additional liability or add-
itional requirements; or

(2) to impose, or to determine the amount of,
any fine or penalty (whether criminal or civil
in nature) for any violation of law;

relating to the discharge, or substantial threat of a
discharge, of oil.

33 U.S.C. § 2718(a) (emphasis added).

3 When OPA 90 was codified, all references to “Act” became
“chapter.”

9a

The state defendants maintain that, by providing
that nothing in OPA 90 preempts states from imposing
“additional liability or requirements with respect to the
discharge of oil or other pollution by oil,” 33 U.S.C.
§ 2718(a); see also 33 U.S.C. § 2718(c), § 1018 grants
states broad authority to enact oil-spill prevention
regulations. In response, Intertanko argues that the
savings clause of § 1018, which is located in Title I of
OPA 90, applies only to that Title. Therefore, Inter-
tanko asserts, § 1018 is limited in its application to state
laws concerning liability and penalties, the subjects
covered by Title I. Intertanko claims that the savings
clause does not apply to the other eight Titles of OPA
90, including Title IV, which concerns oil-spill preven-
tion.“ Therefore, Intertanko contends, the savings
clause contained in Title I does not preclude the oil-spill
prevention provisions included in Title IV from
preempting the oil-spill prevention provisions included
in the BAP Regulations. In support of this argument,
Intertanko notes that § 1018’s savings clause is located
not in a preamble to OPA 90, but instead near the end
of Title I. Intertanko further observes that the lan-
guage of § 1018 is consistent with the subject matter of
Title I, which concerns oil-spill liability and penalties,

* OPA 90 contains nine Titles. These include: Title I, Oil
Pollution Liability and Compensation; Title II, Conforming
Amendments; Title III, International Oil Pollution Prevention and
Removal; Title IV, Prevention and Removal; Title V, Prince
William Sound Provisions; Title VI, Miscellaneous Provisions; Title
VII, Oil Pollution Research and Development Program; Title VIII,
Trans-Alaska Pipeline System; and Title IX, Oil Spill Fund
Transfers. See 33 U.S.C. § 2701, et seq.

10a

but inconsistent with the subject matter of Title IV,
which concerns oil-spill prevention.“

Intertanko’s argument that § 1018’s savings clause
applies only to Title I is at odds with that clause’s plain
language. Section 1018(a) provides that “[njothing in
this Act” preempts states from “imposing any
requirements with respect to the discharge of oil or
other pollution by oil.” 33 U.S.C. 2718(a) (emphasis
added). By its plain language, § 1018 applies not only to
Title I but to the other eight Titles of OPA 90 as well.
Accordingly, because the oil-spill prevention require-
ments set forth in the BAP Regulations clearly
“respect” the discharge of oil, they are not preempted
by anything in OPA 90.

® Intertanko also points out that Title I of OPA 90 is labeled
“Liability and Compensation.” However, § 6001(c) of OPA 90
states that Jan inference of legislative construction shall not be

drawn by reason of the caption or catch line of a provision enacted
by this Act.” 33 U.S.C. § 2751(c).

Like the phrase “relating to” employed in § 1018(c), the
phrase “with respect to” used in § 1018(a) is “clearly expansive.”
De Buono v. NYSA-ILA Medical & Clinical Servs. Fund, — U.S.
, 117 S. Ct. 1747, 1751, 138 L.Ed.2d 21 (1997) (discussing
“relate to” language of Employee Retirement Income Security Act
of 1974). However, we decline to read § 1018’s language “according
to its terms . since, as many a curbstone philosopher has
observed, everything is related to everything else.” California
Div. of Labor Standards Enforcement v. Dillingham Constr. N.A.,
519 U.S. 316, 117 S. Ct. 832, 843, 136 L.Ed.2d 791 (Scalia, J., con-
curring). Rather, in determining whether state oil-spill prevention
laws “respect” or “relate to” the “discharge of oil,” we must look to
the “objectives” of OPA 90. See New York State Conference of
Blue Cross & Blue Shield Plans v. Travelers Ins., 514 U.S. 645,
655-56, 115 8. Ct. 1671, 131 L.Ed.2d 695 (1995) (in determining
scope of clause preempting “all state laws insofar as they
relate to any employee benefit plan,” courts must “look to the

_

—_

——

lla

III

OPA 90 is not the only federal statute that regulates
tanker vessels, however. Other such statutes inelude
the Port and Tanker Safety Act of 1978 (PTSA“), see
Pub. L. No. 95-474, 92 Stat. 471, the Ports and Water-
ways Safety Act of 1972 (PWSA“), see Pub. L. No. 92-
340, 86 Stat. 424, and the Tank Vessel Act of 1936, see
Pub. L. No. 74-765, 49 Stat. 1889. The United States
contends that even if OPA 90 does not preempt the
challenged BAP Regulations because of the savings
clause in § 1018, these other federal statutes do.

In response, the state defendants maintain that, by
its plain language, the savings clause of § 1018 applies
not only to OPA 90 but to the other federal tanker
regulation statutes as well. The plain language of §
1018 cannot bear this interpretation. Section 1018 says
that nothing “in this Act“ preempts state authority to
impose additional requirements. See 33 U.S.C. §
2718(a), (c). Thus, § 1018 does not explicitly address
whether state oil-spill prevention rules may be pre-
empted by federal “Acts” other than OPA 90.

objectives of the ERISA statute as a guide to the scope of the state
law that Congress understood would survive”) (emphasis added).
Because one of the explicit “objectives” of OPA 90 is oil-spill pre-
vention, see OPA 90 §§ 2701-2718 (Title IV- Oil Spill Prevention),
§ 1018 prevents anything in OPA 90 from preempting state laws in
this field.

7 Section 1018 refers to “the Act of March 3, 1851” as well as
“this Act.” The 1851 Act is a limitation of liability statute that
permits a party to enjoin all pending suits and to compel them to
be filed in a special limitation proceeding. It is undisputed that the
1851 Act is not relevant to this appeal.

12a

The state defendants also contend that, because OPA
90 amends the PWSA, the PTSA, and the Tank Vessel
Act, the savings clause of § 1018 need not expressly
refer to those Acts to prevent them from preempting
state law. However, the state defendants do not, and
could not, offer any authority for the proposition that a
savings clause in an Act that amends another Act
necessarily applies to the amended Act, even when the
savings clause expressly refers to “this Act.” Although
OPA 90 amended prior federal statutes, § 1018 by its
plain language has no automatic impact on preemption
caused by those statutes.

IV

Because § 1018 of OPA 90 does not by its plain
language affect preemption by federal Acts other than
OPA 90, we must determine whether such Acts
otherwise impliedly or expressly preempt the BAP
Regulations. The Supreme Court has recognized three
types of preemption: conflict preemption, field pre-
emption, and express preemption.” See Cipollone v.
Liggett Group, Inc., 505 U.S. 504, 516, 112 S. Ct. 2608,
120 L.Ed.2d 407 (1992). Conflict preemption occurs
“when compliance with both state and federal law is
impossible, or when the state law ‘stands as an obstacle
to the accomplishment and execution of the full
purposes and objectives of Congress.’” California v.
ARC America Corp., 490 U.S. 93, 100-01, 109 S. Ct.
1661, 104 L.Ed.2d 86 (1989) (citations omitted) (quoting
Hines v. Davidowitz, 312 U.S. 52, 67, 61 S. Ct. 399, 85

As the Supreme Court observed in English v. General
Electric Co., 496 U.S. 72, 110 S. Ct. 2270, 110 L.Ed.2d 65 (1990),
these categories are not “rigidly distinct.” Id. at 79 n.5, 110 S. Ct.
2270.

13a

L. Ed. 581 (1941). Field preemption exists when
federal law so thoroughly occupies a legislative field “as
to make reasonable the inference that Congress left no
room for the States to supplement it.” Fidelity Fed.
Sav. & Loan Ass’n. v. de la Cuesta, 458 U.S. 141, 153,
102 S. Ct. 3014, 73 L.Ed.2d 664 (1982) (quoting Rice v.
Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S. Ct.
1146 (1947)). Finally, express preemption exists when
Congress explicitly states its intent to displace state
law in the statute’s language. See Cipollone, 505 U.S.
at 516, 112 S. Ct. 2608. The issues of conflict, field, and
express preemption were all raised by Intertanko in
district court and are raised again on appeal.

A

We first examine whether the BAP Regulations are
subject to conflict preemption. Conflict preemption
exists “when compliance with both state and federal
law is impossible, or when the state law ‘stands as an
obstacle to the accomplishment and execution of the full
purposes and objectives of Congress.’” California v.
ARC America Corp., 490 U.S. at 100-01, 109 S. Ct. 1661
(quoting Hines, 312 U.S. at 67, 61 S. Ct. 399). Inter-
tanko does not argue that compliance with both federal
law and the BAP Regulations is impossible; rather,
Intertanko contends that the BAP Regulations inter-
fere with “the full purposes and objectives of Con-
gress.” Hines, 312 U.S. at 67, 61 S. Ct. 399.

1

Congress's first effort in the field of tanker regula-
tion was the Tank Vessel Act, passed in 1936. See Pub.
L. No. 74-765, 49 Stat. 1889. The Tank Vessel Act
“sought to effect a reasonable and uniform set of rules
and regulations concerning ship construction. . „“

14a

Ray v. Atlantic Richfield Co., 435 U.S. 151, 166, 98 8.
Ct. 988, 55 L.Ed.2d 179 (1978) (quoting H.R. Rep. No.
74-2962, at 2 (1936)).

In 1972, the Tank Vessel Act was significantly
expanded by the Ports and Waterways Safety Act
(“PWSA”), see Pub. L. No. 92-340, 86 Stat. 424, which
“subjects to federal rule the design and operating
characteristics of oil tankers.” Ray, 435 U.S. at 154, 98
S.Ct. 988. The PWSA contains two Titles. Title I is
concerned with controlling tanker traffic. See id. at 161,
98 S. Ct. 988. Title I authorizes the Coast Guard to
“specify[] the times for vessel movement, [to]
establish{] size and speed limitations and vessel
operating conditions, and [to] restrietſ] vessel operation
to those vessels having the particular operating
characteristics which [it] considers necessary for safe
operation under the circumstances.” Jd. at 169-70, 98
S.Ct. 988. Whereas Title I of the PWSA focuses on
tanker traffic, Title II of the Act is concerned with
tanker design, construction, and operation. As the
Supreme Court explained in Ray, whereas Title I can
be “compare[d] to ‘providing safer surface highways
and traffic controls for automobiles,’. . . Title Li [may
be] likened to ‘providing safer automobiles to transit
those highways.” Id. at 161 n.9, 98 S. Ct. 988 (quoting
S. Rep. No. 92-724, at 9-10 (1972), reprinted in 1972
U.S. C. C. A. N. 2766, 2769).

In 1978, the PWSA and Tarik Vessel Act were
supplemented by the Port amd Tanker Safety Act
(“PTSA”). See Pub. L. No. 95-474, 92 Stat. 1471. The
PTSA requires the Secretary of Transportation to
establish regulations addressing vessel management,
drug and alcohol testing, seafarer training and qualifica-
tions, casualty reporting, seafarer discipline, manning,

15a

work hours, pilotage, and language requirements. See
46 U.S.C. §§ 9101, 9102.

The federal tanker regulation scheme was again
substantially altered when Congress passed OPA 90.
See Pub. L. No. 101-380, 104 Stat. 484. Enacted follow-
ing the Exxon Valdez oil spill, OPA 90 addresses oil-
pollution prevention, removal, liability, and compen-
sation. See 33 U.S.C. § 2701, et. seg. OPA 90 imposed a
number of new federal oil-spill prevention require-
ments, including: random drug and alcohol testing, see
46 U.S.C. § 7702; a provision mandating that working
hours on a tanker be no more than 15 hours in any 24-
hour period, or more than 36 hours in any 72-hour
period, see 46 U.S.C. § 8104(n); and a requirement that
tankers be equipped with double hulls, see 46 U.S.C.
§ 37038a.

Intertanko maintains that the BAP Regulations
frustrate the purposes and objectives of Congress in
adopting this legislative scheme. We disagree. In
determining “the full purposes and objectives of
Congress,” Hines, 312 U.S. at 67, 61 S. Ct. 399, we must
look not to the purposes and objectives of any single
Act, but instead to Congress’s overarching purposes
and objectives in the relevant legislative field. See
California v. ARC America Corp., 490 U.S. at 102, 109
S.Ct. 1661 (“Appellees’ only contention is that state
laws permitting indirect purchaser recoveries pose an
obstacle to the accomplishment of the purposes and
objectives of Congress. State laws to this effect are
consistent with the broad purposes of the federal
antitrust laws. . . ) (citing cases involving both
Sherman Act and Clayton Act) (emphasis added). In
the field of tanker regulation, the overarching purposes

l6a

of Congress are best revealed by OPA 90. As the most
recent federal statute in the field, OPA 90 reflects “the
full purposes and objectives of Congress,” Hines, 312
U.S. at 67, 61 S. Ct. 399 (emphasis added), better than
the PWSA, the PTSA, or the Tank Vessel Act, all of
which OPA 90 was designed to complement.

As explained above, § 1018 of OPA 90 does not
expressly apply to other federal Acts.“ However, the
enactment of a new federal statute in a particular
legislative field may influence whether state laws in
that field “frustrate the full purposes and objective of
Congress.” Hines, 312 U.S. at 67, 61 S. Ct. 399
(emphasis added). This is true even if the new statute
contains a non-preemption clause which does not
address other statutes in the field, cf. Freightliner
Corp. v. Myrick, 514 U.S. 280, 288, 115 S. Ct. 1483, 131
L.Ed.2d 385 (1995) (existence of statutory provision
containing “express definition of the pre-emptive reach
of a statute . . . does not mean that the express clause
entirely forecloses any possibility of implied pre-
emption”), or does not contain a non-preemption clause
at all, see California v. ARC America Corp., 490 U.S. at
102, 109 S.Ct. 1661. Section 1018 of OPA 90 sheds
considerable light upon the purposes and objectives of
Congress in effectuating a federal scheme of tanker
regulation. That provision demonstrates Congress’s
willingness to permit state efforts in the areas of oil-
spill prevention, removal, liability, and compensation.
Accordingly, we decline Intertanko’s invitation to
strike down the challenged BAP Regulations in their
entirety on the ground that they frustrate Congress’s
purposes and objectives in enacting OPA 90, the
PWSA, the PTSA, and the Tanker Safety Act.

17a

Intertanko next contends that the BAP Regulations
frustrate the purposes and objectives of Congress be-
cause they conflict with various international treaties.
These treaties include: the International Convention
for the Safety of Life at Sea, Nov. 1, 1974, 32 U.S.T. 47;
the Protocol of 1978 Relating to the International
Convention for the Prevention of Pollution from Ships,
Feb. 17, 1978, 17 I.L.M. 546; the Multilateral Inter-
national Regulations for Preventing Collisions at Sea,
Oct. 20, 1972, 28 U.S.T. 3459; the Agreement for a
Cooperative Vessel Traffic Management System for the
Juan de Fuca Region, Dec. 19, 1979, 32 U.S.T. 377; and
the United Nations Convention on the Law of the Sea,
Dec. 10, 1982, 21 I. L. M. 1261.”

As the Supreme Court observed in Hines, in
determining whether a state law “stands as an obstacle
to the accomplishment and execution of the full
purposes and objectives of Congress . it is of
importance that [the state] legislation is in a field which
affects international relations, the one aspect of our
government that from the first has been most generally
conceded imperatively to demand broad national
authority.” Hines, 312 U.S. at 67-68, 61 S. Ct. 399.
States have no power to override international agree-
ments entered into by the federal government. See
Zschernig v. Miller, 389 U.S. 429, 441, 88 S. Ct. 664, 19
L.Ed.2d 683 (1968).

Intertanko’s argument that the BAP Regulations are
preempted by these international treaties is under-

Despite being a signatory, the United States has not ratified
the United Nations Convention on the Law of the Sea.

18a

mined by our decision in Chevron U.S.A., Inc. v.
Hammond, 726 F.2d 483 (9th Cir. 1984). In Chevron,
we held that an Alaska statute that prohibited tankers
from discharging ballast into the territorial waters of
Alaska was not preempted by either federal statute or
international agreement. See Chevron, 726 F.2d at 485.
We stated:

[The PWSA/PTSA does not mandate strict inter-
national uniformity. Although the legislative
history of the PWSA/PTSA refers to congressional
intent to abide by international agreements
regarding the regulation of tankers, the statute
nonetheless gives the Coast Guard specific authority
to establish stricter requirements than those set by
international agreements. This indicates Congress’
view that the international agreements set only
minimum standards, that strict international
uniformity was unnecessary, and that standards
stricter than the international minimums could be
desirable in waters subject to federal jurisdiction.

Id. at 493-94 (citations omitted) (emphasis added).

Passage of OPA 90 by Congress only reinforces this
court’s conclusions in Chevron that “strict international
uniformity” with respect to the regulation of tankers is
not “mandate[d]” by federal law and that “international
agreements set only minimum standards.” Id. at 493.
To reach any other conclusion, we would have to read
§ 1018 to provide that the Act permits state tanker
regulation only when the field in question is not subject
to international regulation. However, § i018 plainly
states that nothing in the Act shall be interpreted to
prohibit states from imposing “any additional liability
or requirements,” 33 U.S.C. § 2718(a) (emphasis added),

19a

not merely “additional liability or requirements where
such requirements would not conflict with an
international treaty.”

The United States raises for the first time on appeal
two arguments concerning specific conflicts between
the BAP Regulations and international treaties. These
arguments are: (1) that the BAP Regulations interfere
with the international right of “innocent passage,” see
United Nations Convention on the Law of the Sea, Dec.
10, 1982, § 3, arts. 17-25, 21 I. L. M. 1261, 1273- 75; and (2)
that the BAP Regulations conflict with a bilateral
agreement between the United States and Canada
concerning traffic in the Strait of Juan de Fuca at the
entrance to Puget Sound, see The Agreement for a
Cooperative Vessel Traffic Management System for the
Juan de Fuca Region, Dec. 19, 1979, 32 U.S.T. 377.
Generally, we will not consider arguments that are
raised for the first time on appeal. See Self Directed
Placement Corp. v. Control Data Corp., 908 F.2d 462,
466 (9th Cir. 1990); Abex Corp. v. Ski’s Enters., Inc., 748
F.2d 513, 516 (9th Cir. 1984). The court has discretion
to address such arguments only: (1) “in the ‘excep-
tional’ case in which review is necessary to prevent a
miscarriage of justice or to preserve the integrity of the
judicial process,” Bolker v. Commissioner, 760 F.2d
1039, 1042 (9th Cir. 1985) (quoting United States v.
Greger, 716 F.2d 1275, 1277 (9th Cir. 1983)); (2) “when a
new issue arises while appeal is pending because of a
change in the law,” id.; or (3) “when the issue presented
is purely one of law and either does not depend on the
factual record developed below, or the pertinent record
has been fully developed,” id.

20a

In support of its claim that we may exercise our
discretion to address its new arguments, the United
States cites our decision in Kimes v. Stone, 84 F.3d 1121
(9th Cir. 1996), in which we considered a Supremacy
Clause argument raised for the first time on appeal. See
id. at 1126. In Kimes, however, we noted that the issue
was “purely a question of law” and that “consideration
of the issue would not prejudice [the opposing party’s]
ability to present relevant facts that could affect our
decision.” Id. By contrast, the state defendants have
not had the opportunity to develop the record con-
cerning whether the BAP Regulations practically
impair the right of innocent passage or are enforced in a
manner that is inconsistent with the bilateral
agreement with Canada covering traffic in the Strait of
Juan de Fuca. Accordingly, we do not consider the
United States’s new treaty-based arguments on

appeal.

Intertanko next argues that federal regulation of vil
tankers by OPA 90, the PWSA, the PTSA, and the
Tank Vessel Act is so comprehensive as to preempt
impliedly the field of tanker regulation. Field pre-
emption exists when federal law so thoroughly occupies
a legislative field “‘as to make reasonable the inference
that Congress left no room for the States to supplement
it. Fidelity Fed. Sav. & Loan Assn., 458 U.S. at 153,
102 S. Ct. 3014 (quoting Rice v. Santa Fe Elevator
Corp, 331 U.S. at 230, 67 S. Ct. 1146). The leading case
on the subject of field preemption of state statutes that

“ The nited States does not assert that we have discretion to
entertain its new arguments on miscarriage-of-justice grounds or

because of u post- appeal change in the law.

21a

regulate tankers is Ray v. Atlantic Richfield Co., 435
U.S. 151, 98 S.Ct. 988, 55 L.Ed.2d 179 (1978). In Ray,
the Supreme Court examined the preemptive effect of
the PWSA on the Washington Tanker Law, 1975 Wash.
Laws ch. 125, a statute that required various design-
safety features for tankers operating in Puget Sound.
The Court found that certain safety features imposed
by the Washington Tanker Law were preempted, but
that others were not. See Ray, 435 U.S. at 160, 168,
173, 178, 180, 98 S. Ct. 988.

1

One of the provisions of the Washington Tanker Law
addressed in Ray required oil tankers weighing
between 40,000 and 125,000 deadweight tons to possess
certain safety features, including a minimum amount of
horsepower, twin screws, two radars, and double hulls.
See id. at 160, 98 S. Ct. 988. After a thorough examina-
tion of the regulatory scheme established by Title II of
the PWSA, the Court found that these state require-
melits were impliedly preempted. See id. at 168, 98 S.
Ct. 988. However, this finding of implied preemption
was limited to the field of tanker “design and con-
struction.” Jd. at 163- 64, 98 S. Ct. 988. The Court
stated:

This statutory pattern shows that Congress, insofar
as design characteristics are concerned, has en-
trusted to the Secretary the duty of determining
which oil tankers are suffic.ently safe to be allowed
to proceed in the navigable waters of che United
States. This indicates to us that Congress intended
uniform national standards for design and con-
struction of tankers that would foreclose the imposi-
tion of different or more stringent state require-

22a

ments. In particular, as we see it, Congress did not
anticipate that a vessel found to be in compliance
with the Secretary’s design and construction
regulations and holding a Secretary’s permit, or its
equivalent, to carry the relevant cargo would
nevertheless be barred by state law from operating
in the navigable waters of the United States on the
ground that its design characteristics constitute an
undue hazard.

Id. (emphasis added); see also id. at 165, 98 S. Ct. 988
(“Enforcement of the state requirements would at least
frustrate what seems to us to be the evident con-
gressional intention to establish a uniform federal
regime controlling the design of oil tankers.”) (emphasis
added); id. at 166, 98 S. Ct. 988 (“That the Nation was to
speak with one voice with respect to tanker-design
standards is supported by the legislative history of
Title II. .”) (emphasis added); id. at 166 n.15, 98
S.Ct. 988 (“The Court has previously observed that ship
design and construction are matters for national
attention.”) (emphasis added); id. at 168 n.19, 98 S. Ct.
988 (“Here it is sufficiently clear that Congress directed
the promulgation of standards on the national level, as
well as national enforcement, with vessels having de-
sign characteristics satisfying federal law being privi-
leged to carry tank-vessel cargoes in United States
waters.”) (emphasis added).

The Ray Court next proceeded to examine a
provision of the Washington Tanker Law mandating
tug escorts for any vessel that did not have the safety
features required by the Tanker Law’s other pro-
visions. See id. at 171, 98 S. Ct. 988. The Court began
its analysis of the tug-escort requirement by observing

23a

that a tanker’s certification “under federal law as a
vessel safe insofar as its design and construction
characteristics are concerned does not mean that it is
free to ignore otherwise valid state or federal rules or
regulations that do not constitute design or con-
struction specifications.” Jd. at 168-69, 98 S. Ct. 988.
The Court noted that the Washington Tanker Law’s
tug escort provision was “not a design requirement,”
but instead was “more akin to an operating rule arising
from the peculiarities of local waters that call for special
precautionary measures.” Id. at 171, 98 S. Ct. 988. The
Court further observed that “(t]he relevant inquiry

. with respect to the State’s power to impose a tug-
escort rule is . . . whether the [Coast Guard] has
either promulgated [its] own tug requirement for Puget
Sound tanker navigation or has decided that no such
requirement should be imposed at all.” Id. at 171-72, 98
S. Ct. 988. The Court concluded that because the
Secretary had not imposed such a requirement, “the
State’s requirement need not give way under the
Supremacy Clause.“ Id. at 172, 98 S. Ct. 988. These
excerpts from Ray teach that “operating rule[s],” id. at
171, 98 S. Ct. 988, unlike design and construction re-
quirements, are not automatically subject to field
preemption by the PWSA. Attempting to distinguish
Ray, Intertanko argues that Ray’s analysis of “operat-
ing rule[s], id., applies only to those requirements that
“aris[e] from the peculiarities of local waters.“ Id. This
argument fails to recognize, however, that the operat-
ing requirements imposed by the BAP Regulations are
designed for the same local waters,“ namely Puget
Sound, as was the Washington Tanker Law contested
in Ray.

24a

Intertanko also maintains that Ray used the phrase
“design and construction” as a “shorthand” for all Title
Il PWSA matters, which include tanker operations as
well as design and construction. Intertanko’s inter-
pretation of Ray, however, is plainly inconsistent with
our own interpretation of the same case in Chevron. In
Chevron, we stated:

The [Ra] Court’s finding of preemption is specifi-
cally limited to the regulation of vessel “design
characteristics” and thus does not control the out-
come of the present case involving ocean pollutant
discharges. As a matter of fact, the court specifi-
cally explained that tankers must meet “otherwise
valid state or federal rules or regulations that do
not constitute design or construction specifica-
tions.”

Chevron, 726 F.2d at 487 (citations omitted) (quoting
Ray, 435 U.S. at 168-69, 98 S. Ct. 988) (emphasis
added). We concluded in Chevron that “deballasting”
does not qualify as “design or construction” and that,
consequently, deballasting regulations were not auto-
matically preempted under Ray. Jd. Because the
discharge of ballast involves an “operation” directly
related to the sailing of a tanker, Chevron undermines
Intertanko’s argument that the Ray Court used “design

As we observed in Chevron:

Unloaded oil tankers must take on seawater for ballast to
ensure proper submergence and vessel stability. Upon arrival
in port, the tankers must then discharge this ballast—i.e.,
“deballast”—before loading their cargo tanks with oil.

Chevron, 726 F. 2d at 485.

25a

and construction” as “shorthand” for “design, construc-
tion, and operations.”

Virtually all of the challenged BAP Regulations
impose operational requirements rather than design
and construction requirements. These operational
requirements include: accident reporting, see Wash.
Admin. Code § 317-21-130; watch practices, see Wash.
Admin. Code § 317-21-200; navigation procedures, see
Wash. Admin. Code § 317-21-205; engineering proce-
dures, see Wash. Admin. Code § 317-21-210; prearrival
tests and inspections, see Wash. Admin. Code § 317-21-
215; emergency procedures, see Wash. Admin. Code
§ 317-21-220; rules against altering or destroying
records, see Wash. Admin. Code § 317-21-225; training
programs, see Wash. Admin. Code § 317-21-230; illicit
drugs and alcohol use, see Wash. Admin. Code § 317-21-
235; personnel evaluation, see Wash. Admin. Code §
317-21-240; work hours, see Wash. Admin. Code § 317-
21-245; language requirements, see Wash. Admin. Code
§ 317-21-250; training records for crew members, see
Wash. Admin. Code § 317-21-255; management, see
Wash. Admin. Code § 317-21-260; and advance notice of
entry and safety reports, see Wash. Admin. Code § 317-
21-540. Because these regulations do not qualify as
“design and construction” requirements, they are not
automatically subject to field preemption under Ray.

26a

We reach a different conclusion with respect to
Wash. Admin. Code § 317-21-265, however.” The first

Wash. Admin. Code § 317-21-265 provides, in full:
(1) Navigation Equipment. An oil spill prevention plan for

a tank vessel must describe navigation equipment used on a
vessel covered by the plan which includes:

(a) Global positioning system (GPS) receivers; and

(b) Two separate radar systems, one of which is
equipped with an automated radar planning aid
(ARPA).

(2) Emergency towing system. Tankers must be equipped
with an emergency towing system on both the bow and stern
within two years from the effective date of this chapter. The
emergency towing system comprises:

(a) Designated strong points able to withstand the
load to which they may be subjected during a towing
operation in maximum sustained winds of forty knots
and sea or swell heights of five and a half meters (18
feet);

(b) Appropriate chafing chains, towing pennant, tow
line and connections of a size and strength to tow the
tanker fully laden in maximum sustained winds of forty
knots and sea or well heights of five and a half meters
(18 feet); and

(e) Appropriately sized and colored marker buoys
attached to the towing pennants.

(3) The emergency towing system must be deployable:
(a) In 15 minutes or less by at most two crew
members;

(b) From the bridge or other safe location when the
release points are inaccessible; and

(e) Without use of the vessel's electrical power.

27a

subsection of that provision, entitled “Navigation
Equipment,” requires tankers to possess global
positioning system (“GPS”) receivers, as well as two
separate radar systems. See Wash. Admin. Code § 317-
21-265(1). The navigational equipment requirements
imposed therein are virtually indistinguishable from the
radar and navigation devices that the Ray Court found
to be regulated preemptively by the PWSA. The
Washington Tanker Law challenged in Ray required
At wo radars in working order and operating, one of
which must be collision avoidance radar.” Ray, 435
U.S. at 160, 98 S. Ct. 988. The Ray Court, after
reviewing the requirements of the Washington Tanker
Law, including the radar and navigational equipment
requirements, stated that “the foregoing design
requirements, standing alone, are invalid in light of the
PWSA and its regulatory implementation.” Id. at 160-
61, 98 S.Ct. 988 (emphasis added). Because the GPS
and radar requirements are virtually identical to the
navigational equipment required by the Washington
Tanker Law, Ray dictates that Wash. Admin. Code
§ 317-21-265(1) must also be classified as a “design
requirement.“ Jd. at 160-61, 98 S. Ct. 988. Applying
Ray, we hold that Wash. Admin. Code § 317-21-265(1) is
preempted by the PWSA.

In support of its conclusion that the navigational
equipment rules imposed by Wash. Admin. Code § 317-
21-265(1) are not “design requirements” subject to
preemption under Ray, the district court stated that
“[t]he requirements for global positioning system
receivers and two separate radar systems under WAC
317-21-265 should be considered equipment necessary
for vessel operating procedures under 33 U.S.C.
§ 1223,” and therefore “are not subject to implied pre-

28a

emption.” IJntertanko, 947 F. Supp. at 1495 n.9.
Regardless of whether radar and other navigational
systems “should” be considered “equipment necessary
for vessel operating procedures,” the Supreme Court
considered them “design requirements.” Ray, 435 U.S.
at 160-61, 98 S. Ct. 988. We are bound by the Ray
Court’s classification of these devices as “design
requirements,” and by its conclusion that, as such, they
are impliedly preempted by the PWSA. See id.

The second requirement imposed by Wash. Admin.
Code § 317-21-265 is that all ships be equipped with an
emergency towing package. See Wash. Admin. Code
§ 317-21-265(2). The state defendants contend that the
towing package provision is “not a design or con-
struction requirement,” but rather a “requirement to
have certain equipment installed on a tanker,” and that,
consequently, this provision is not preempted under
Ray. However, the state defendants’ argument fails to
recognize that “design requirements” and “equipment
requirements” are not mutually exclusive. See
Chevron, 726 F.2d at 500 (“Alaska has left all designing
of vessels and equipment to the Coast Guard and has
only prohibited the discharge of polluted ballast.”)
(emphasis added). Section 317-21-265(2) provides that
towing equipment must meet several specific design
standards. These standards include Adlesignated
strong points,” Wash. Admin. Code § 317-21-265(2)(a),
and “[a]ppropriate chafing chains, towing pennant, tow
line and connections,” Wash. Admin. Code § 317-21-
265(2)(b), all of which must be capable of withstanding
“sustained winds of forty knots and sea or swell of five
and a half meters,” Wash. Admin. Code § 317-21-
265(2)(a), (b). Because such design requirements are
preempted by the PWSA, see Ray, 435 U.S. at 160-61,

98 S. Ct. 988, we hold that the emergency towing
package requirement, like the GPS and radar require-
ments, is invalid under the Supremacy Clause.

Cc

We finally address whether any of the BAP
Regulations are expressly preempted by federal law.
In Ray, the Supreme Court held that, because the
challenged tug-escort rule was not a design or
construction requirement, t he relevant inquiry
with respect to the State’s power to impose [the] tug-
escort rule is . whether the Secretary has either
promulgated his own tug requirement for Puget Sound
tanker navigation or has decided that no such
requirement should be imposed at all.” Ray, 435 U.S. at
171-72, 98 S. Ct. 988. Ray thus teaches that once a
court has determined that state tanker regulations are
not subject to implied preemption as “design and con-
struction” requirements, the court still must examine
whether the state regulations are expressly preempted.
Accordingly, having determined that all of the BAP
Regulations except Wash. Admin. Code § 317-21-265
are not subject to implied preemption as design and
construction requirements, we must now inquire
whether those regulations are subject to express

preemption.

Intertanko contends that some of the BAP Regu-
lations are expressly preempted not by any federal
statute but by a variety of federal regulations issued by
the Coast Guard. A federal agency, acting through its
rulemaking processes, can effect preemption of state
law. See Fidelity Fed. Sav. & Loan Ass u, 458 U.S. at
153-54, 102 S.Ct. 3014. Indeed, “[flederal regulations
have no less pre-emptive effect than federal statutes.”

30a

Id. at 153, 102 S8. Ct. 3014. According to Intertanko,
certain of the BAP Regulations are expressly pre-
empted by Coast Guard statements accompanying the
issuance of federal regulations concerning watch prac-
tices, see 58 Fed. Reg. 27,268, 27,632 (1993); steering
gear for vessels underway, see 60 Fed. Reg. 24,767,
24,771 (1995); and drug and alcohol testing, see 58 Fed.
Reg. 68,274, 68,277 (1993).”

Preemption by regulations enacted by a federal
agency does not occur if that agency is acting beyond
the scope of its delegated powers. As the Supreme
Court explained in Louisiana Pub. Serv. Comm'n v.
FCC, 476 U.S. 355, 106 S8. Ct. 1890, 90 L.Ed.2d 369
(1986):

[A] federal agency may preempt state law only
when and if it is acting within the scope of its
congressionally delegated authority. . . . [AJn
agency literally has no power to act, let alone pre-
empt the validly enacted legislation of a sovereign
State, unless and until Congress confers power upon
it.

An agency may not confer power upon itself. To
permit an agency to expand its power in the face of
a congressional limitation on its jurisdiction would

“ Intertanko also contends that Wash. Admin. Code § 317-21-
265 (navigation equipment and emergency towing system) is pre-
empted by a Coast Guard regulation concerning on-board towing
equipment. See 58 Fed. Reg. 67,988, 67,993 (1993). Because we
hold that Wash. Admin. Code § 317-21-265 is invalid under Ray, we
need not address this argument.

3la

be to grant to the agency power to override Con-
gress. This we are both unwilling and unable to do.

Id. at 374-75, 106 S. Ct. 1890; see also United States v.
Shimer, 367 U.S. 374, 381-82, 81 S. Ct. 1554, 6 L.Ed.2d
908 (1961) (administrative agency cannot preempt state
law if “it appears from the statute or its legislative
history that the accommodation is not one that Con-
gress would have sanctioned”).

Louisiana Public Service Commission teaches that
the relevant inquiry in determining whether a federal
regulation preempts state law is whether the agency “is
acting within the scope of its congressionally delegated
authority.” Id. at 374, 81 S. Ct. 1554. When it passed
OPA 90, Congress required the Coast Guard to imple-
ment a wide range of oil-spill prevention rules. See 33
U.S.C. §§ 2701-2718. sy Hi Congress did —
e or delegate to the Coast Guard
—— to — — law. Indeed, § 1018 of OPA
90 establishes that nothing in OPA 90 may be construed
as impairing the ability of the states to impose their
own oil-spill prevention requirements." See 33 U.S.C. §
2718. In view of Congress’s unwillingness to preempt
state oil-spill prevention efforts on its own, we find

implausible the argument that it intended to delegate

„Although § 1018 expressly applies only to OPA 90, it shapes
the “full purposes and objectives” of Congress, Hines, 312 U.S. at
67, 61 S. Ct. 399, with respect to the entire legislative field of oil-
spill prevention. See Part IV. A. I. infra. Accordingly, we hold that
the Coast Guard impermissibly acts beyond its “congressionally
delegated authority,” Louisiana Pub. Serv. Comm'n, 476 U.S. at
374, 106 S. Ct. 1890, not only when it purports to preempt state oil-
spill prevention laws under the authority of OPA 90, but also when
it purports to do so under the authority of other federal statutes.

32a

power to the Coast Guard to do so. Therefore, we
reject Intertanko’s position that the Coast Guard was
“acting within the scope of its congressionally delegated
authority,” Louisiana Pub. Serv. Comm'n, 476 U.S. at
374, 106 S.Ct. 1890, in enacting regulations that purport
to preempt state law.

U

Intertanko next contends that the BAP Regulations
violate the Commerce Clause. The Commerce Clause
provides that At he Congress shall have Power . . .
To regulate Commerce . . . among the several states.
... US. Const., art. I. § 8. Although this clause by
its express terms serves only as an affirmative grant to
the federal government of the power to regulate
interstate commerce, it has also been interpreted by
the Supreme Court to impose limits on the ability of the
states to do so. See Canps Newfound/Owatonna, Inc.
v. Town of Harrison, 520 U.S. 564, 117 S. Ct. 1590, 1596,
137 L.Ed.2d 852 (1997).

The Supreme Court has distinguished between two
types of impermissible state regulations that inciden-
tally burden interstate commerce. A facially nondis-
criminatory regulation supported by a legitimate state
interest which incidentally burdens interstate com-
merce is constitutional unless the burden on interstate
trade is clearly excessive in relation to the local
benefits. See Pike v. Bruce Church, Inc., 397 U.S. 137,
142, 90 S. Ct. 844, 25 L.Ed.2d 174 (1970). However,
when a regulation “clearly” discriminates against inter-
state commerce, it violates the Commerce Clause
unless the discrimination is demonstrably justified by a
valid factor unrelated to state protectionism. See
Wyoming ». Oklahoma, 502 U.S. 437, 454, 112 S. Ct.

789, 117 L.Ed.2d 1 (1992). In Pacifie Northwest Veni-
son Producers v. Smitch, 20 F.3d 1008 (9th Cir. 1994),
this court summarized the proper analysis as follows:

If the regulations discriminate in favor of in-state
interests, the state has the burden of establishing
that a legitimate state interest unrelated to
economic protectionism is served by the regulations
that could not be served as well by less dis-
criminatory alternatives. In contrast, if the
regulations apply evenhandedly to in-state and out-
of-state interests, the party challenging the
regulations must establish that the incidental
burdens on interstate and foreign commerce are
clearly excessive in relation to the putative local
benefits.

Id. at 1012 (citations omitted).

Intertanko asserts that the cost for a tanker operator
to develop an oil-spill prevention plan that meets the
standards established by the BAP Regulations is
approximately $12,000. However, Intertanko fails to
point to any evidence in the record to establish that this
“incidental burden] on interstate and foreign com-
merce [is] clearly excessive in relation to the putative
local benefits.” Jd. Nor does Intertanko even argue
that the BAP Regulations “discriminate in favor of in-
state interests.” Id. Therefore, Intertanko’s contention
that the BAP Regulations violate the Commerce Clause
is without merit.

34a

VI

Finally, Intertanko maintains that the BAP Regu-
lations impermissibly intrude upon the foreign affairs
power of the federal government. The Constitution
entrusts the administration of foreign affairs to the
President and to Congress. See Zschernig v. Miller,
389 U.S. 429, 432, 88 S. Ct. 664, 19 L.Ed.2d 683 (1968).
Accordingly, “any state law that involves the state in
the actual conduct of foreign affairs is unc astitutioaal.”
Id.

The only case in which the Supreme Court has struck
down a state statute as violative of the foreign affairs
power is Zschernig v. Miller, 389 U.S. 429, 88 S. Ct. 664,
19 L.Ed.2d 683 (1968). Zschernig involved an Oregon
statute providing that a nonresident alien could not
inherit from an Oregon decedent unless certain con-
ditions were met. See id. at 440, 88 S. Ct. 664. The
Supreme Court struck down the Oregon statute on the
ground that it had “more than ‘some incidental or
indirect effect in foreign countries.“ Id. at 434, 88 S. Ct.
664 (quoting Clark v. Al’en, 331 U.S. 503, 516-17, 67 8.
Ct. 1431, 91 L.Ed. 1633 (1947)).

By their own terms, the BAP Regulations apply only
to vessels operating within Washington’s territorial
limits. See Wash. Rev. Code § 88.46.010. Intertanko
objects to the potential extraterritorial impact of
requirements that: (1) owners report hazardous events
regardless of whether the events occur outside of
Washington, see Wash. Admin. Code § 317-21-130; (2)
crew training and drill programs be conducted, see
Wash. Admin. Code § 317-21- 230; (3) personnel and
record keeping procedures be administered, see Wash.

35a

Admin. Code § 317-21-255; and (4) owner and operations
management programs be followed, see Wash. Admin.
Code § 317-21-260. However, Intertanko has failed to
demonstrate that, even if these regulations have some
extraterritorial impact, that impact is more than
“incidental or indirect.” Zschernig, 389 U.S. at 434, 88
S. Ct. 664. Accordingly, we reject Intertanko’s argu-
ment that the BAP Regulations infringe upon the
foreign affairs power of the federal government.

VII

We affirm in part and reverse in part the district
court's grant of summary judgment in favor of the
State of Washington. We reverse the district court’s
holding that Wash. Admin. Code § 317-21-265 is not
preempted by federal law. However, we affirm the
district court’s judgment as to all other challenged BAP
Regulations. Each side shall bear its own costs on

appeal.

AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED.

36a

APPENDIX B

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

No. 97-35010

THE INTERNATIONAL ASSOCIATION OF INDEPENDENT
TANKER OWNERS (INTERTANKO), PLAINTIFF-
APPELLANT

AND

UNITED STATES OF AMERICA, INTERVENOR-
APPELLANT

U.

GARY LOCKE, GOVERNOR OF THE STATE OF
WASHINGTON; CHRISTINE O. GREGOIRE, ATTORNEY

GENERAL OF THE STATE OF WASHINGTON; BARBARA J.

HERMAN, ADMINISTRATOR OF THE STATE OF
WASHINGTON OFFICE OF MARINE SAFETY; DAVID
MACEACHERN, PROSECUTOR OF WHATCOM COUNTY;
K. CARL LONG, PROSECUTOR OF SKAGIT COUNTY;
JAMES H. KRIDER, PROSECUTOR OF SNOHOMISH
COUNTY; NORMAN MALENG, PROSECUTOR OF KING
COUNTY, DEFENDANTS-APPELLEES

AND

NATURAL RESOURCES DEFENSE COUNCIL;
WASHINGTON ENVIRONMENTAL COUNCIL;
OCEAN ADVOCATES, INTERVENORS-APPELLEES

APPEAL FROM THE UNITED STATES DISTRICT
COURT FOR THE WESTERN DISTRICT OF
WASHINGTON

37a

[Nov. 24, 1998]

ORDER

Before: BROWNING and O’SCANNLAIN, Circuit
Judges, and MaRQuEz,” District Judge.

Prior report: 148 F.3d 1053

The panel has unanimously voted to deny the
petitions for rehearing. Judge Browning and Judge
O’Scannlain have voted to reject the suggestions for
rehearing en banc, and Judge Marquez so recommends.

The full court was advised of the suggestions for
rehearing en banc. An active judge requested a vote on
whether to rehear the matter en banc. The matter
failed to receive a majority of the votes of the
nonrecused judges in favor of en bance consideration.
Fed. R. App. P. 35.

The petitions for rehearing are DENIED and the
suggestions for rehearing en banc are REJECTED.

GRABER, Circuit Judge, dissenting:

I respectfully dissent from the court’s decision not to
rehear this case en banc.

This is the first published appellate decision inter-
preting the preemptive effect of the Oil Pollution Act of

The Honorable Alfredo C. Marquez, Senior Judge, United
States District Court for the District of Arizona, sitting by

designation.

38a

1990 (OPA 90). The preemptive effect of OPA 90 is an

issue of exceptional importance to the coastal states

within the Ninth Circuit. See Fed. R. App. P. 35(a)(2)
(providing that en bane consideration is appropriate
“when the proceeding involves a question of exceptional
importance“).

See also Sarah A. Loble, /ntertanko v. Lowry: An Assessment
of Concurrent State and Federal Regulation Over State Waters, 10
U.S.F. Mar. L.J. 27, 72 (1997) (“The Ninth Circuit has the
opportunity to remedy the imbalance created by the district court,
which favored Washington state regulation at the expense of
federal interests.”); Charles L. Coleman, III, Federal Preemption
of State “BAP” Laws: Repelling State Borders in the Interest of
Uniformity, 9 U.S. F. Mar. L. J. 305, 356 (1997) (“To the extent that
the recent decision of the U.S. District Court for the Western
District of Washington in Intertanko v. Lowry is inconsistent with
the foregoing conclusions, it is wrong in this author’s view, and
should be overturned in the pending appeal to the Ninth Circuit
Court of Appeals.”) (footnote omitted); Robert E. Falvey, A Shot
Across the Bow: Rhode Island's Oil Spill Pollution Prevention
and Control Act, 2 Roger Williams U. L. Rev. 363, 396 (1997) (“The
court attempted to counter Intertanko’s preemption argument by
simply asserting that Intertanko’s theory was largely foreclosed
by the nonpreemptive language of OPA ‘90. In light of the pre-
ceding discussion this reasoning seems unpersuasive.”) (citation,
footnote, and internal quotation marks omitted); Matthew P.
Harrington, Necessary and Proper, but Still Unconstitutional:
The Oil Pollution Act's Delegation of Admiralty Power to the
States, 48 Case W. Res, L. Rev. 1, 17 n.59 (1997) (“Congress seems
to have had a somewhat more restrictive view of what was being
preempted than did the district court in Jntertanko.”); Michael P.
Mullahy, States’ Rights and the Oil Pollution Act of 1990: A Sea of
Confusion?, 25 Hofstra L. Rev. 607, 636-37 (1996) (“The issue of
whether Washington state has the power to enact the BAP
Standards will most likely be decided by the Supreme Court.
[Tme Washington BAP Standards should survive the consti-
tutional analysis the Court will most likely perform.”) (footnote
omitted); Laurie L. Crick, The Washington State BAP Standards:

39a

Additionally, although I do not suggest that the
Washington regulations necessarily are invalid, the
opinion’s analysis is incorrect in two exceptionally
important respects: (1) The opinion places too much
weight on two clauses in Title I of OPA 90 that limit
OPA 90's preemptive effect. (2) Portions of the opinion
that discuss the Coast Guard regulations are incon-
sistent with Ninth Circuit and Supreme Court prece-
dent. Those issues warrant en banc consideration even
if the opinion’s ultimate result proves to be correct, a
question as to which I express no view.

APPLICATION OF OPA 90’S PREEMPTION CLAUSES

Congress enacted OPA 90 in response to the Exxon
Valdez oil spill. OPA 90 combined numerous bills into
one comprehensive Act with nine titles. Title IV
contains measures designed, in part, to prevent oil
spills, while Title I regulates liability and compensa-
tion for oil spills. Congress placed the two pertinent
preemption provisions in Title I. Those provisions
state:

Nothing in this Act or the Act of March 3, 1851
shall—

(1) affect, or be construed or interpreted as
preempting, the authority of any State or

A Case Study in Aggressive Tanker Regulation, 27 J. Mar. L. &
Com. 641, 646 (1996) (AI is possible that most, if not all, of the
BAP Standards will be upheld.”); Marva Jo Wyatt, Navigating the
Limits of State Spill Regulations: How Far Can They Go?, 8
U.S. F. Mar. L. J. 1, 26 (1995) (“The current controversy over
Washington’s navigational regulations affecting oil pollution
i some of the most fundamental principles of our republic
and foreshadows an age-old conflict between federalism and states’

rights.”).

40a

political subdivision thereof from imposing any
additional liability or requirements with
respect to—

(A) the discharge of oil or other pollution
by oil within such State; or

(B) any removal activities in connection
with such a discharge; or

(2) affect, or be construed or interpreted to
affect or modify in any way the obligations or
liabilities of any person under the Solid Waste
Disposal Act (42 U.S.C. 6901 et seq.) or State
law, including common law.

Section 1018(a) of OPA 90 (codified at 33 U.S.C. §
2718(a)).

Nothing in this Act, the Act of March 3, 1851 (46
U.S.C. 183 et seq.), or section 9509 of the Internal
Revenue Code of 1986 (26 U.S.C. 9509), shall in any
way affect, or be construed to affect, the authority
of the United States or any State or political
subdivision thereof—

(1) to impose additional liability or additional
requirements; or

(2) to impose, or to determine the amount of,
any fine or penalty (whether criminal or civil in
nature) for any violation of law;

relating to the discharge, or substantial threat
of a discharge, of oil.

4la

Section 1018(c) of OPA 90 (codified at 33 U.S.C. §
2718(c)).

The opinion reasons that the “plain language” of
those preemption clauses indicates that Congress
intended for them to apply to the oil spill prevention
measures in Title IV. See The International Assoc. of
Indep. Tanker Owners (Intertanko) v. Locke, 148 F.3d
1053, 1060 (9th Cir. 1998) (“By its plain language, § 1018
applies not only to Title I but to the other eight Titles
of OPA 90 as well.“). See also Sloan v. West, 140 F.3d
1255, 1261 (9th Cir. 1998) (“If the intent of Congress is
clear from the face of the statutory language, we must
give effect to the unambiguously expressed Congres-
sional intent.”). The opinion bases its “plain language”
holding on Congress’ use of the term “this Act” in
discussing the reach of the clauses. Jntertanko, 148 F.3d
at 1060. That reasoning is incomplete.

The term “this Act” does plainly indicate Congress’
intention to embrace all of OPA 90. However, examin-
ing the term “this Act” does not end the analysis.
Grammatically, because of its placement in the
sentences that comprise the preemption clauses, the
term says only that In jothing in this Act” shall affect
certain things—but we still must consider the meaning
of those certain things that Inlothing in this Act” is
allowed to affect. At their broadest, the preemption
clauses provide that “[njothing in this Act . . . shall
in any way affect . . . the authority of . . . any State

to impose additional liability or additional
requirements relating to the discharge, or
substantial threat of a discharge, of oil.“ § 1018(c).

That phrase, read as a whole, is ambiguous, because
it plausibly can be understood in two ways. One

42a

plausible way to read the phrase is that any state
regulation designed to prevent an oil spill is a
“requirement[] . . . relating to the discharge, or
substantial threat of a discharge, of oil,” because in the
broadest sense a preventive measure “relates” to the
thing being prevented. Another plausible way to read
the phrase, however, is to embrace only state regula-
tions that impose “requirements” pertaining specifically
“to the discharge, or substantial threat of a discharge,
of oil” once it has occurred. That is, if a discharge is
being prevented, there never comes into being a
“discharge, or substantial threat of a discharge, of oil.”
Under the latter, narrower reading, a preventive
measure does not relate to an oil “discharge, or
substantial threat of a discharge,” because its very
purpose is to avert an oil discharge, or substantial
threat of discharge, and the specified condition of the
sentence is never met.

In summary, Congress could have intended to allow
any state regulation that might prevent an oil spill, or
Congress could have intended a more limited reach.
The opinion acknowledges the ambiguity in this
provision, which it resolves by analyzing the objectives
of Congress. See Intertanko, 148 F.3d at 1060 n.6
(“Like the phrase ‘relating to’ employed in § 1018(c),
the phrase ‘with respect to’ used in § 1018(a) is clearly
expansive. However, we decline to read § 101878
language according to its terms . . . since, as many a
curbstone philosopher has observed, everything is
related to everything else. Rather, in determining
whether state oil-spill prevention laws ‘respect’ or
‘relate to’ the ‘discharge of oil,’ we must look to the
objectives of OPA 90. Because one of the explicit
objectives of OPA 90 is oil-spill prevention, § 1018

43a

prevents anything in OPA 90 from preempting state
laws in this field.”) (citations and internal quotation
marks omitted).

Contextual clues suggest, however, that Title I’s
preemption clauses do not apply to Title IV’s pre-
vention provisions. See Duffield v. Robertson Stephens
& Co., 144 F.3d 1182, 1198 (9th Cir. 1998) (“the meaning
of statutory language, plain or not, depends on con-
text”) (citation and internal quotation marks omitted),
cert. denied, 1998 WL 467389 (U.S. Nov. 9, 1998) (No.
98-237). First, Congress placed these preemption
clauses in a Title that addresses only liability and
compensation for oil spills that actually occur. That
placement (especially considering the full wording of
the clauses) suggests that Congress intended for the
clauses to apply only to the provisions in that Title. A
second contextual clue strengthens that inference: A
separate section in Title IV contains its own pre-
emption clause. See § 4202(c) (Title IV), codified at 33
U.S.C. § 1321(0)(2).* Moreover, sections in other Titles
of OPA 90 include their own preemption provisions as
well. See § 5002(n) (Title V), codified at 33 U.S.C

1

® In section 420 e), OPA 90 amended 33 U.S.C. § 13210 % ), a
preexisting provision of the Federal Water Pollution Control Act.
The amendment is emphasized below.

Nothing in this section shall be construed as preempting any
State or political subdivision thereof from imposing any
requirement or liability with respect to the discharge of oil or
hazardous substance into any waters within such State, or with
respect to any removal activities related to such discharge.

dda

2732" § 8202 (Title VIII), codified at 43 U.S.C.
§ 1656(e).' There would have been little or no need for
additional preemption clauses if the clauses in Title I
were comprehensive. Indeed, the opinion’s broad
reading of the preemption clauses in § 1018 would
render the other OPA 90 preemption provisions largely
superfluous, a result that this court generally avoids.
See Northwest Forest Resource Council v. Glickman,
82 F.3d 825, 834 (9th Cir. 1996) (“We have long followed
the principle that statutes should not be construed to
make surplusage of any provision.”) (citation and
internal quotation marks omitted).

Context, however, does not resolve the textual
ambiguity definitively. In the face of an ambiguity not
resolved by examining text and context, this court
generally turns to a statute’s legislative history. See

Section 5002(n) provides in part:

Nothing in this section shall be construed as modifying,
repealing, superseding, cr preempting any municipal, State or
Federal law or regulation, or in any way affecting litigation
arising from oil spills or the rights and responsibilities of the
United States or the State of Alaska, or municipalities thereof,
to preserve and protect the environment through regulation of
land, air, and water uses, of safety, and of related development.
Section &202(e) provides:

(1) Nothing in thi. section shall be construed or inter-
preted as preempting any State or political subdivision thereof
from imposing any additional liability or requirements with
respect to the discharge, or threat of discharge, of oil or other
pollution by oil.

(2) Nothing in this section shall affect or modify in any way
the obligations or liabilities of any person under other Federal
or State law, including common law, with respect to discharges
of oil.

45a

Auburn v. United States, 154 F.3d 1025, 1029 (9th Cir.
1998), as amended 1998 WL 727476, at *3 (9th Cir.
1998) (in construing a federal statute’s preemptive
effect, noting the general principle that resort to
legislative history is appropriate when Congress’ intent
is not clear from an examination of the statutory text).
See also Moyle v. Director, Office of Workers’ Com-
pensation Programs, 147 F.3d 1116, 1120 (9th Cir. 1998)
(Af the statute is ambiguous, we consult the
legislative history, to the extent that it is of value, to
aid in our interpretation.”) (citation and internal quota-
— marks omitted). Here, the legislative history is of
value.

OPA 90's preemption clauses originated in the
Senate’s Oil Pollution Liability and Compensation Bill
of 1989.“ The Senate intended for that bill to con-

® The original draft provided:

(a) Nothing in this Act shall be construed or interpreted as
preempting any State from imposing any additional liability or
requirements with respect to the discharge of oil or other
pollution by oil within such State. Nothing in this Act shall
affect or modify in any way the obligations or liabilities of any
person under other Federal or State law, including common
law, with respect to discharges of oil. |

(b) Nothing in this Act or in section 9507 of the Internal

Revenue Code of 1954 shall in any way affect, or be construed
to affect, the authority of any State—

(1) to establish, or to continue in effect, a fund any purpose
of which is to pay for costs or damages arising out of, or
directly resulting from, oil pollution or the substantial threat of
oil pollution; or

(2) to require any person to contribute to such a fund.

46a

solidate and improve Federal laws providing
compensation and establishing liability for oil spills.” S.
Rep. No. 101-94, at 1 (1989), reprinted in 1990
U.S.C.C.A.N. 722, 723. That bill did not include Title
Iv's oil pollution prevention provisions at all. See 135
Cong. Rec. S324 1-46 (daily ed. Apr. 4, 1989).

The Senate drafted a separate bill, the Oil Tanker
Navigation Safety Bill of 1989, that included provisions
regarding the prevention of oil spills, including some
provisions similar to those that eventually appeared in
Title IV. See S. Rep. No. 101-99, 3-4 (1989), reprinted

(c) A State may enforce, on the navigable waters of such
State, the requirements for evidence of financial responsibility
applicable under section 104 of this Act.

d) The President shall consult with the affected State or
States on the appropriate removal action to be taken. Removal
with respect to any discharge or incident shall be considered
completed when so determined by the President and the
Governor or Governors of the affected State or States.

(e) Nothing in this Act, the Act of March 3, 1851, as
amended (46 U.S.C. 183 et seq.), or section 9507 of the Internal
Revenue Code of 1954, shall in any way affect, or be construed
to affect, the authority of the United States or any State or
political subdivision thereof—

(1) to impose additional liability or additional
requirements, or

(2) to impose, or to determine the amount of, any fine or
penalty (whether criminal or civil in nature) for any violation
of law,

relating to the discharge, or substantial threat of a discharge,

of oil.
135 Cong. Rec. $8245 (daily ed. Apr. 4, 1989).

47a

in 1990 U.S.C.C.A.N. 752.° That bill contained its own
preemption clause. See 135 Cong. Rec. 89332 (daily ed.
Aug. 2, 1989).’ See also S. Rep. No. 101-99, at 21,
reprinted in 1990 U.S.C.C.A.N. at 770.

The Senate added some of the preventive provisions
from the Oil Tanker Navigation Safety Bill to the Oil
Pollution Liability and Compensation Bill. See 135
Cong. Rec. 89678 (daily ed. Aug. 3, 1989); 135 Cong.
Rec. 810406-07 (daily ed. Aug. 15, 1989). Specifically,
the Senate added the provisions relating to alcohol
testing and crew placement, which it put in Title III.
See 135 Cong. Rec. 810406. The Senate also added the
preemption clause from the Oil Tanker Navigation
Safety Bill to that Title (§ 310), and it limited the reach
of the preemption clause to the oil spill prevention
provisions in that Title. See id. at S10415-S10417.*
That modified bill did not alter the Oil Pollution Liabil-
ity and Compensation Bill’s preexisting preemption
clauses found in the oil spill liability and compensation

® Specifically, Title III of that bill included provisions requiring
(a) alcohol testing of tanker personnel and (b) the placement of four
crew members on the navigation bridge of a tanker. /d.

That clause provided:

Nothing in this Act shall be construed or interpreted as
changing, diminishing, or preempting in any way the authority
of a State, or any political subdivision thereof, to regulate oil
tankers or to provide for oil spill liability or contingency
response planning and activities in State waters.

Section 310 provided:

Nothing in this title shall be construed or interpreted as
changing, diminishing, or preempting in any way the authority
of a State, or any political subdivision thereof, to regulate oil
tankers in State waters.

Id. at 810417.

48a

title of the amended bill (Title I, Section 106). Jd. at
810412.

Although the Senate's final bill contained some oil
spill prevention measures, Title IV originated in the
House of Representatives in the Oil Pollution, Preven-
tion, Response, Liability and Compensation Bill of 1989.
In drafting that bill, the House generally chose to
preempt, rather than to allow, state regulation. See
Congressional Quarterly Almanac, 102d Cong., 2d Sess.,
p. 283 (1990) (noting the “House’s insistence on a pro-
vision to pre-empt strict state laws”). Specifically, the
House’s preemption provision allowed states only to
establish or maintain an oil spill fund and “to impose, or
to determine the amount of, any fine or penalty.” See
Cong. Rec., 101st Cong., Vol. 135, part 20, 27827, 27947
(bound ed. Nov. 8, 1989).“

® Section 1018 of the House version provided:
(a) PREEMPTION

(1) ACTIONS PREEMPTED.—Except as provided in this
Act and the Solid Waste Disposal Act (42 U.S.C. 6901 et seq.),
no action arising out of a discharge of oil, or a substantial
threat of a discharge of oil, from a vessel or facility into or
upon the navigable waters or adjoining shorelines or the
exclusive economic zone (other than an action for personal
injury or wrongful death), may be brought in any court of the
United States or of any State or political subdivision thereof.

(2) STATE FUNDS AND ACCOUNTS.—Nothing in this Act
or in sections 4611 and 9509 of the Internal Revenue Code cf
1986 shall affect the authority of any State (A) to establish or
continue in effect an oil spill fund or account; or (B) to require
any person to contribute to that fund or account.

(b) NO PREEMPTION OF PENALTIES.—Nothing in this
Act or section 9509 of the Internal Revenue Code of 1986 shall
affect the authority of the United States or any State or

49a

After vigorous debate, the House eventually
amended its preemption provisions and adopted word-
ing similar to that found in the Senate’s § 106 pre-
emption clauses." See 135 Cong. Rec. H8165 (daily ed.
Nov. 8, 1989). However, the debate made clear that the
House intended for the preemption clauses to apply

political subdivision thereof to impose, or to determine the
amount of, any fine or penalty for any violation of law relating
to an incident.

(e) LIMITATION OF LIABILITY ACT.—The Act of March
8, 1851, shall not apply to removal costs and damages that
directly result from an incident involving the discharge or
substantial threat of discharge of oil.

' The amended House version of § 1018 provides in part:
(a) PRESERVATION OF STATE AUTHORITIES.—

(1) Notwithstanding any other provision, nothing in this
Act or the Act of March 3, 1851 shall—

(A) be construed or interpreted as preempting any state or
political subdivision thereof from imposing any additional

liability or requirements with respect to the discharge of oil or
other pollution by oil within such state; or

(B) affect or modify in any way the obligations or liabilities
of any person under the Solid Waste Disposal Act (42 U.S.C.
6901 et seq.) or state law, including common law.

(2) Nothing in this Act or in sections 4611 or 9509 of the
Internal Revenue Code of 1986 shall affect or be construed to
affect the authority of any state or political subdivision
thereof—

(A) to establish or to continue in effect a fund any purpose
of which is to pay for costs or damages arising out of, or

directly resulting from, oil pollution or the substantial threat of
oil pollution; or
(B) to require any person to contribute to such a fund.
135 Cong. Rec. 156 H8128-29 (daily ed. Nov. 8, 1989).

50a

only to OPA 90’s oil spill liability and compensation
provisions. Compare id. at H8129 (Nov. 8, 1989)
(statement of Rep. Miller) (“The amendment that I am
offering on behalf of myself and the gentleman from
Massachusetts [Mr. Studds] is an amendment to correct
a glaring flaw in H.R. 1465, by preserving the rights of
States to set higher standards for oil pollution liability
and more complete systems of compensation than are
allowed under this bill or under current law.”) (empha-
sis added) with id. (statement of Rep. Hammerschmidt)
(“I had thought that the issue of concern centered
around whether State liability laws should be pre-
empted. That is not the only issue presented by this
amendment. This amendment goes much further. It
would remove provisions in the bill addressing the need
for a uniform system of financial responsibility. The
system of liability and compensation in the bill is
intended to be comprehensive and definite.”) (emphasis
added).

In summary, before Congress held its Conference
Committee, the Senate had a bill with: (a) a preemption
clause in its oil pollution liability and compensation title
(Title I, § 106); and (b) some oil spill prevention pro-
visions in Title III, which had their own specific
preemption provision (§ 310). The House, where most
of Title IV originated, had only one preemption pro-
vision (§ 1018), which was similar to the Senate’s § 106
and which the House intended to apply only to oil spill
liability and compensation.

The Conference Committee deleted the Senate’s
§ 310 preemption clause that applied to oil spill pre-
vention measures. Moreover, the Conference Commit-
tee relied only on the Senate’s § 106 and the House’s

5la

§ 1018 when drafting the final preemption clauses. See
H.R. Conf. Rep. No. 101-653, pp. 121-22 (1989),
reprinted in 1990 U.S.C.C.A.N. 722, 799-800 (“Section
106 of the Senate amendment and section 1018 of the
House bill are generally similar provisions. . . The
Conference substitute blends the provisions of the
House and Senate bills, and adds a new subsection (d)
pertaining to the liability of Federal employees.”)."
The Conference Committee’s deletion of the only pre-
emption clause that applied specifically to oil spill
prevention, and its reliance instead on two provisions
that never applied to prevention provisions, together
suggest that Congress did not intend its final version of
§ 1018 to apply to OPA 90’s oil spill prevention pro-
visions (Title IV).

Under all the circumstances, Congress’ choice of
wording and its decision to place the preemption
clauses in Title I suggest that it intended for those
clauses to apply only to Title I and its liability and
compensation provisions. See, e.g., National Shipping
Co. of Saudi Arabia (NSCSA) v. Moran Mid-Atlantic
Corp., 924 F.Supp. 1436, 1448 (E.D.Va.1996) (“The pur-
pose behind the savings clause is to allow the states to
impose liability upon oil polluters above the liability
imposed through OPA. Congress wanted to give the
states the power to force polluters to cleanup com-
pletely oil spills and to compensate the victims of oil
spills, even if their liability for these remediation
expenses is limited under OPA.”), aff'd, 122 F.3d 1062
(4th Cir. 1997) (Table), cert. denied, — U.S. ——, 118 S.

The Conference Committee also indicated its intent “not to
disturb the Supreme Court's decision in Ray v. Atlantic Richfield
Co., 435 U.S. 151, 98 S. Ct. 988, 55 L.Ed.2d 179 (1978).” Id.

52a

Ct. 1301, 140 L.Ed.2d 467 (1998). The opinion’s method
of analyzing Congress’ intent is incomplete and, thus,
the opinion’s conclusion fails accurately to identify that
intent.

PREEMPTIVE EFFECT OF COAST GUARD
REGULATIONS

Relying on Louisiana Pub. Serv. Comm’n v. FCC,
476 U.S. 355, 106 S. Ct. 1890, 90 L.Ed.2d 369 (1986), the
Intertanko opinion refuses to give preemptive effect to
various Coast Guard regulations, because (1) Congress
did not expressly delegate to the Coast Guard the
power to preempt state law, and (2) OPA 90’s pre-
emption clauses implied the opposite Congressional
intent. See Intertanko, 148 F.3d at 1068 (“Congress did
not explicitly or impliedly delegate to the Coast Guard
the authority to preempt state law. Indeed, § 1018 of
OPA 90 establishes that nothing in OPA 90 may be
construed as impairing the ability of the states to
impose their own oil-spill prevention requirements. In
view of Congress’s unwillingness to preempt state oil-
spill prevention efforts on its own, we find implausible
the argument that it intended to delegate power to the
Coast Guard to do so.”) (citations and footnote omitted)
(emphasis added). That analysis is inconsistent with
Ninth Circuit and Supreme Court precedent.

Generally, an administrative agency’s regulations
have preemptive effect whenever Congress has author-
ized the agency to enact such regulations, not merely
when Congress expressly has authorized the agency to
preempt state law. See City of New York v. FCC, 486
U.S. 57, 64, 108 S. Ct. 1637, 100 L.Ed.2d 48 (1988) (JAA
pre-emptive regulation’s force does not depend on
express congressional authorization to displace state

53a

law. Instead, the correet focus is on the federal agency
that seeks to displace state law and on the proper
bounds of its lawful authority to undertake such action.
The statutorily authorized regulations of an agency will
pre- empt any state or local law that conflicts with such
regulations or frustrates the purposes thereof.”)
(citation and internal quotation marks omitted); Fidel-
ity Fed. Sav. & Loan Ass’n v. de la Cuesta, 458 U.S.
141, 154, 102 S. Ct. 3014, 73 L.Ed.2d 664 (1982) (making
the same point).

Louisiana Pub. Serv. Comm’n is not to the contrary.
There, the Supreme Court refused to give preemptive
effect to an administrative agency’s regulations, be-
cause Congress had expressly denied the administra-
tive agency the power to enact the regulations. See 47
U.S.C. § 152(b) (Nothing in this chapter shall be
construed to apply to or give the Commission [FCC]
jurisdiction with respect to . . . intrastate com-
munication service.”); Louisiana Pub. Serv. Comm’n,
476 U.S. at 360, 106 S. Ct. 1890 (“[T]he Act grants to
the FCC the authority to regulate interstate and
foreign commerce in wire and radio communication,
while expressly denying that agency jurisdiction with
respect to . . . intrastate communication service.“
(citation and internal quotation marks omitted).

By contrast, OPA 90 did not deny the Coast Guard
power to enact the regulations at issue here. Rather,
Congress “required the Coast Guard to implement a
wide range of oil-spill prevention rules” when it passed
OPA 90. Intertanko, 148 F.3d at 1068 (emphasis
added). See 33 U.S.C. §§ 2701-18 (so providing). Be-
cause the Coast Guard acted within its authority when
it enacted the regulations, those regulations can have

54a

preemptive effect, even though Congress did not
expressly authorize the Coast Guard to preempt state
law.

OPA 90’s preemption clauses, allowing for some state
involvement, do not alter that analysis. In Chevron
US. A., Inc. v. Hammond, 726 F.2d 483 (9th Cir. 1984),
this court similarly faced a Congressional statute that
allowed state involvement. Id. at 489 (“The above
authorities demonstrate a congressional intent that
there be joint federal/state regulation of ocean waters
within three miles of shore.”). Even though Congress
had allowed state involvement, this court still analyzed
whether the Coast Guard’s regulations preempted state
law. See id. at 499 (“Although we conclude that the
objectives of the Alaska statute do not conflict with
those of the Coast Guard regulations .. ., we must
nevertheless determine whether the facts of this case
as alleged or conceded by appellees reveal an irreconcil-
able conflict when the Alaska statute and Coast Guard
regulations are applied concurrently in Alaska territo-
rial waters.”). Accord Beveridge v. Lewis, 939 F.2d 859,
864 (9th Cir. 1991). In summary, the opinion’s treat-
ment of the regulations is inconsistent with precedent.

CONCLUSION

For the foregoing reasons, I dissent from the court’s
decision to decline the suggestion for a rehearing en
banc.

55a

APPENDIX C

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WASHINGTON

No. C95-1096C

THE INTERNATIONAL ASSOCIATION OF
INDEPENDENT TANKER OWNERS (INTERTANKO),
PLAINTIFF

V.
MIKE LOWRY, ET AL., DEFENDANTS

[Nov. 18, 1996]

ORDER
COUGHENOUR, District Judge.

This matter comes before the Court on cross-motions
for summary judgment filed by plaintiff, defendants and
intervenors. Having heard oral argument, and having
reviewed the pleadings, memoranda, exhibits and other
oo on file, the Court now finds and concludes as
ollows:

I. Background

This is a lawsuit brought by the International As-
sociation of Independent Tanker Owners (“Intertanko”)
against Washington State, certain state officials, and
four county prosecutors. Intertanko seeks an order

56a

declaring that certain Washington statutes and regula-
tions pertaining to the operation of oil tankers in state
waters are unconstitutional. Three environmental
groups, the National Resources Defense Council, the
Washington Environmental Counsel and Ocean Advo-
cates, Inc., have intervened.

The marine waters of Washington include a rocky
ocean coastline, the “inland sea” of Puget Sound, and
the Strait of Juan de Fuca. These waters host eco-
systems that are as rich and diverse as any in the
world. These waters are also highly susceptible to
damage from oil pollution. Puget Sound is particularly
vulnerable because it is relatively confined and shallow.
Puget Sound is also difficult to navigate due to vessel
traffic, fog and natural obstructions.

Intertanko is a trade association with approximately
253 members and 152 associate members who own or
operate tankers. Intertanko’s members represent on a
tonnage basis, approximately 80 percent of the world’s
independently owned tanker fleet. Intertanko
members call at oil facilities in Puget Sound, and travel
along the Columbia River to reach ports in Oregon.

Intertanko challenges several statutes and regula-
tions that have been implemented by the state to
prevent oil spills and thereby protect Washington
waters. See RCW 88.46.010, et seq., and WAC 317-21-
010, et seq. Intertanko specifically asserts that RCW
88.46.010(2)-(3), and RCW 88.46.040(3) are preempted
or otherwise invalidated by federal law. In order to
transport oil in state waters, these statutes require
tank vessel operators to file oil spill prevention plans.
These plans must provide for the best achievable
protection from damages caused by the discharge of oil,

57a

and must comply with regulations adopted by the Stat
Office of Marine Safety (“OMS”). : <

Intertanko also asserts that 16 regulations promul-
gated by the OMS are invalid. These regulations lay
out specific requirements that tanker vessel operators
must satisfy to meet the best achievable protection
standards in their prevention plans. These regulations
may be summarized as follows:

1, Event Reporting—WAC 317-21-130. Requires
operators to report all events such as collisions,
allisions and near-miss incidents for the five years
preceding filing of a prevention plan, and all events
that occur thereafter for tankers that operate in
Puget Sound.

2. Operating Procedures—Watch Practices—
WAC 317-21-130. Requires tankers to employ spe-
cific watch and lookout practices while navigating
and when at anchor, and requires a bridge resource
management system that is the “standard practice
throughout the owner’s or operator’s fleet,” and
which organizes responsibilities and coordinates
communication between members of the bridge.

3. Operating Procedures—Navigation—WAC
317-21-205. Kequires tankers in navigation in state
waters to record positions every fifteen minutes, to
write a comprehensive voyage plan before entering

state waters, and to make uent ch
— freq compass checks

4. Operating Procedures—Engineering—WAC
317-21-210. Requires tankers in state waters to

58a

follow specified engineering and monitoring prac-
tices.

5. Operating Procedures—Prearrival Tests and
Inspections—WAC 317-21- 215. Requires tankers
to undergo a number of test» wid inspections of
engineering, navigation and propulsion systems
twelve hours or less before entering or getting
underway in state waters.

6. Operating Procedures—Emergency Proce-
dures—WAC 317-21-220. Requires tanker masters
to post written crew assignments and procedures
for a number of shipboard emergencies.

7. Operating Procedures—Events—WAC 317-
21-225. Requires that when an event transpires in
state waters, such as a collision, allision or near-miss
incident, the operator is prohibited from erasing,
discarding or altering the position plotting records
and the comprehensive written voyage plan.

8. Personnel Policies—Training—WAC 317-21-
230. Requires operators to provide a comprehensive
training program for personnel that goes beyond
that necessary to obtain a license or merchant
marine document, and which includes instructions
on a number of specific procedures.

9. Personnel Policies—lIllicit Drugs and Alcohol
Use—WAC 317-21-235. Requires drug and alcohol
testing and reporting.

10. Personnel Policies—Personnel Evaluation—

WAC 317-21-240. Requires operators to monitor
the fitness for duty of crew members, and requires

59a

operators to at least annually provide a job per-
formance and safety evaluation for all crew mem-
bers on vessels covered by a prevention plan who
serve for more than six months in a year.

11. Personnel Policies—Work Hours—WAC 317-
21-245. Sets limitations on the number of hours crew
members may work.

12. Personnel Policies—Language—W AC 317-21-
250. Requires all licensed deck officers and the
vessel master to be proficient in English and to
speak a language understood by subordinate officers
= n requires all written
ns printed in a language understood
by the licensed officers and unlicensed crew.

13. Personnel Policies—Record Keeping—WAC
317-21-255. Requires operators to maintain training
records for crew members assigned to vessels
covered by a prevention plan.

14. Management—WAC 317-21-260. Requires
operators to implement management practices that
1 active monitoring of vessel operations

maintenance, personnel training, development
and fitness, and technological improvements in
navigation.

15. Technology WAC 31721-2865. Requires
tankers to be equipped with global positioning
system receivers, two separate radar systems, and
an emergency towing system.

16. Advance Notice of Entry and Safety Re-
ports WAC 317-21-540. Requires at least twenty-

60a

four hours notice prior to entry of a tanker into state
waters, and requires that the notice report any
conditions that pose a hazard to the vessel or the
marine environment.

Intertanko relies on a number of federal statutes,
regulations and international treaty obligations to
assert that the state statutes and regulations im-
properly intrude into a field controlled by the federal
government. Most of the federal law relied on by
Intertanko is derived from the Tank Vessel Act of 1936,
the Ports and Waterways Safety Act of 1972
(“PWSA”), the Port and Tanker Safety Act of 1978
(“PTSA”)', and the Oil Pollution Act of 1990 (“OPA
90”). The progressive passage of these acts by Con-
gress either added to or amended prior law regarding
the regulation of oil tankers. The provisions of these
acts are largely found in Titles 33 and 46 of the United
States Code. These laws impose specific requirements
for tankers or delegate to the Coast Guard the
responsibility for promulgating specific standards.

Intertanko also relies on a handful of treaties to
which the United States has acceded. These include the
International Convention for the Safety of Life at Sea,
1974 (“SOLAS”), the International Convention for the
Prevention of Pollution from Ships, 1973, and the
Protocol of 1978 (“MARPOL”), the International Con-
vention on Standards of Training, Certification, and
Watchkeeping for Seafarers, 1978 (“STCW”), and the
International Regulation for Preventing Collisions at

1 These two acts are often referred to together as the
“PWSA/PTSA..”
2 Pub. L. No. 101-380, 104 Stat. 486 (August 18, 1990).

6la

Sea, 1973 (““COLREGS”). These treaties have all been
signed and ratified by the United States.’

II. Discussion

This case tests the extent to which Washington State
may protect its marine environment by regulating oil
tankers in the areas of operations, personnel, manage-
ment, technology and information reporting. Although
protection of the marine environment has historically
been within the reach of the police powers of the states,
shipping has traditionally been governed by federal
law. Thus the Washington oil spill prevention statutes
and regulations overlap requirements imposed by the
federal government. This overlap creates a tension
between the power of the state and the power of the
federal government.

Intertanko seeks to resolve this tension. Intertanko
argues that the Washington oil spill prevention statutes

A treaty cannot, however, have any impact on domestic laws
unless it is self-executing, or unless its terms are enacted as parts
of statutes or administrative regulations. Islamic Republic of Iran
v. Boeing Co., 771 F.2d 1279, 1283 (9th Cir. 1985). There are at
least four relevant factors to be considered when determining
whether a treaty is self-executing: “(1) ‘the purposes of the treaty
and the objectives of its creators,’ (2) ‘the existence of domestic
procedures and institutions appropriate for direct implementation,’
(3) ‘the availability and feasibility of alternative enforcement
methods,’ and (4) ‘the immediate and long range social conse-
quences of self. or non-self-execution.’” Id. (quoting People of
Saipan v. United States Department of Interior, 502 F.2d 90, 97
(9th Cir. 1974), cert. denied, 420 U.S. 1003, 95 S. Ct. 1445, 43
L.Ed.2d 761 (1975)). Intertanko has not addressed these four
factors in asserting that the treaties it relies upon are self-
executing. Intertanko has, however, identified where these
treaties have been implemented by federal statute and regulation.

62a

and regulations are preempted by federal statutes and
regulations, and by federal treaty obligations through
the Supremacy Clause of the United States Consti-
tution. It also argues that the oil prevention statutes
and regulations violate the Foreign Affairs Clause of
the Constitution and the Commerce Clause of the
Constitution. In addition, it asserts that the regulations
are invalid because they reach beyond the three mile
territorial limit of the navigable waters of Washington
State.

Intertanko moves for summary judgment and asks
the Court to enjoin the enforcement of the oil spill
prevention laws. Defendants and intervenors move for
summary judgment dismissing Intertanko’s complaint.
Because the resolution of this case depends almost
exclusively on questions of law, there are no genuine
issues of material fact and Intertanko’s claims may be
fully litigated on summary judgment. Fed. R. Civ. P.
56.

A. Preemption

“(W]hen a State’s exercise of its police power is
challenged under the Supremacy Clause, ‘we start with
the assumption that the historic police powers of the
States were not to be superseded by the Federal Act
unless that was the clear and manifest purpose of
Congress.“ Ray v. Atlantic Richfield Co., 435 U.S.
151, 157, 98 S. Ct. 988, 994, 55 L.Ed.2d 179 (1978).
Explicit preemption is present when Congress so
declares. Jd. Implicit preemption is present if the
scheme of federal regulation is so pervasive as to
indicate that Congress left no room for state action. Id.
It may also be inferred when “the federal interest is so
dominant that the federal system will be assumed to

63a

preclude enforcement of state laws on the same
subject.” Rice v. Santa Fe Elevator Corp., 331 U.S.
218, 230, 67 S. Ct. 1146, 1152, 91 L.Ed. 1447 (1947).

In these cases where Congress has not totally
foreclosed state regulation, a state statute is preempted
if it conflicts with a federal statute. Ray, 435 U.S. at
158, 98 S. Ct. at 994. “A conflict will be found ‘where
compliance with both federal and state regulations is a
physical impossibility . „ or where the state ‘law
stands as an obstacle to the accomplishment and execu-
tion of the full purposes and objectives of Congress.“
Id. (quoting Florida Lime & Avocado Growers, Inc. v.
Paul, 373 U.S. 132, 142-43, 83 S. Ct. 1210, 1217, 10
L.Ed.2d 248 (1963); Hines v. Davidowitz, 312 U.S. 52
67, 61 S. Ct. 399, 404, 85 L.Ed. 581 (1941)).

Express and implied preemption do not
state and federal rules — A state — 4
preempted under these theories when it is different
than the federal rule. The state and federal rule must,
however, be at odds for conflict preemption to apply.

1. Oil Pollution Act of 1990

As an initial matter, defendants and intervenors
assert that OPA 90 expressly prohibits the preemption
of state oil spill prevention laws. Congress passed OPA
90 soon after the Exxon Valdez oil spill in Prince
William Sound. The Act addresses oil pollution
liability, compensation, prevention and removal.

Defendants and intervenors rely on OPA 90 § 1018
which is codified at 33 U.S.C. $2718. Section 1018 of
the Act states in relevant part:

64a

(a) PRESERVATION OF STATE AUTHORITIES;
SOLID WASTE DISPOSAL ACT—Nothing in this
Act.. . shall—

(1) affect, or be construed or interpreted as
preempting, the authority of any State or
politica: division thereof from imposing
any additional liability or requirements with
respect to—

(A) the discharge of oil or other
pollution by oil within such State; or

(B) any removal activities in connection
with such a discharge;

R R K K * *

(e) ADDITIONAL REQUIREMENTS AND LI-
ABILITIES, PENALTIES—Nothing in this Act
. . . Shall in any way affect, or be construed to
affect, the authority of the United States or any
State or political subdivision thereof—

(1) to impose additional liability or additional
requirements; or

(2) to impose, or to determine the amount of,
any fine or penalty (whether criminal or civil
in nature) for any violation of law;

relating to the discharge, or substantial threat of a
discharge, of oil.

Defendants and intervenors claim that this language
recognizes thé right of states to impose additional
requirements to prevent oil spills. The starting point

65a

for statutory interpretation is consideration of the
language employed by Congress, and consideration of
the statute as a whole, including its history and pur-
poses. United States v. van den Berg, 5 F.3d 439, 442
(9th Cir. 1993).

The language of section 1018 is best understood when
the Act as a whole is considered. Section 1018 of OPA
90 is located in “Title I—Oil Pollution Liability and
Compensation.” Title I of OPA 90 sets the standards
for liability and damages for the discharge of oil or the
substantial threat of discharge of oil into the navigable
waters of the United States. The Act also includes
“Title IV- Prevention and Removal.” This title sets
standards for tanker personnel qualifications, manning,
operations, design and construction. It also directs the
President to prepare a National Contingency Plan for
the removal of oil, and to require tank vessel operators
to prepare individual response plans for the removal of
oil.

The language of the savings clause relied on by
defendants and intervenors applies broadly to “this
Act,” which includes oil pollution liability, compensa-
tion, prevention and removal requirements. It makes
clear that states are not preempted from adding
additional “requirements with respect to . . the
discharge of oil,” or “relating to the discharge. . of
oil.“ Because the Act comprehensively addresses oil |
discharge liability, compensation, prevention and
removal, all provisions of the Act must be “with respect
to” or “relating to” the discharge of oil. See Ingersoll-
Rand Co. v. McClendon, 498 U.S. 133, 139, 111 S. Ct.
478, 483, 112 L.Ed.2d 474 (1990) (a law relates to a
subject when it has a connection with or reference to

66a

that subject). Pursuant to the broad language of
section 1018, it follows that none of the provisions of
OPA 90 preempt the ability of the states to add to
federal requirements in the areas addressed by the Act.

Intertanko’s assertion that the savings clause is
limited to liability, compensation, and removal, but not
prevention, is not supported by the broad language

employed in section 1018. Moreover, Intertanko’s —

assertion that the nonpreemption language is limited in
its application by its placement in Title I is refuted by
the explicit allowance in section 1018 for additional
state regulation of “removal activities.” Removal
activities are regulated not in Title I, but in Title IV
along with prevention standards. Thus the savings
clause cannot be limited to Title I, but must also include
Title IV.

In addition, Intertanko’s assertion that applying the
savings clause to the prevention requirements would
run afoul of international standards is undermined by
other provisions in the Act. Foremost is the require-
ment that oil tankers have double hulls. 46 U.S.C.
§ 3703a. This contradicts the international standards
imposed by Regulation 13F to Annex I of MARPOL,
and demonstrates that Congress was not overly con-
cerned with maintaining uniformity with such stan-
dards. In addition, the Act clearly states that it is in
the best interests of the United States to participate in
an international regime “that is at least as effective as
Federal and State laws in preventing incidents . . .”
OPA 90 § 3001.“ This anticipates that federal and state

* Although this statement relates only to liability and removal
regimes, it supports the view that Congress did not intend the
provisions of OPA 90 to be limited by international standards.

67a

laws may be more effective than international
standards.

The application of the savings clause to prevention
regulations is also supported by the legislative history
of OPA 90. The Conference Report on the final version
of OPA 90 explains the preemptory effect of the Act:

Thus, subsection (a) of section 1018 of the substitute
states explicitly that nothing in the substitute [bill]

. Shall affect in any way the authority of the
State or local government to impose additional
liability or other requirements with respect to oil
pollution or to the discharge of oil within the State
or with respect to any removal activities in
connection with such discharge.

H.R. Conf. Rep. No. 101-653, 101st Cong., Ist Sess., p.
121 (1990), reprinted in 1990 U.S.C.C.A.N. 800 (em-
phasis added). This language reemphasizes that the
Act broadly saves to states the ability to impose
additional “requirements with respect to oil pollution.”

The impact of the savings clause on prevention
standards is further highlighted by a letter to the Coast

5 The Conference Report also stated that OPA 90 “does not
disturb the Supreme Court’s decision in Ray v. Atlantic Richfield
Company, 435 U.S. 151, [98 S. Ct. 988, 55 L.Ed.2d 179] (1978).”
The citation to Ray may mean that there was an intention not to
eradicate the Court’s holding that federal law impliedly preempted
state tanker design and construction regulations. Ray, 435 U.S. at
163-64, 98 S. Ct. at 997-98. That would not create an issue in this
case because none of the Washington regulations control design
and construction. Moreover, if there is a conflict between a statute
and legislative history, the statute prevails. Jn re the Matter of
Sinclair, 870 F.2d 1340, 1344 (7th Cir. 1989).

68a

Guard Commandant from the Washington State Con-
gressional Delegation dated September 28, 1993. That
letter concerned the application of Washington's regu-
lations to vessels passing through state waters to reach
Canada. The delegation said (wle are extremely
concerned with the Coast Guard’s threats to void state
oil prevention standards for these Canada-bound
vessels. In the Oil Pollution Act of 1990 Congress pro-
vided that state laws, requirements and jurisdiction
would not be preempted by federal law. The U.S. Coast
Guard should not be obstructing the state’s efforts to
protect state waters.”

The only other court to address the nonpreemption
language of OPA 90 also concluded that the Act saved
to states the ability to impose additional requirements
with regard to all aspects of oil pollution liability, com-
pensation, prevention and removal. In Berman Enter-
prises, Inc. v. Jorling, 793 F.Supp. 408, 414-16
(E.D.N.Y. 1992), aff’d, 3 F.3d 602 (2nd Cir. 1993), cert.
denied, 510 U.S. 1073, 114 S. Ct. 883, 127 L.Ed.2d 78
(1994), the court examined a New York statute that
required vessels to obtain a state license that among
other things necessitated a showing that the vessel
“‘can provide necessary equipment to prevent, contain
and remove discharges of petroleum.“ Id. at 411 (citing
New York Navigation Law § 174(3)). The Court
concluded that the OPA 90 savings clause made clear
that the New York statute was not preempted. It
concluded that the statute was actually an acceptance of
“the federal government’s invitation to provide addi-
tional means of enforcing the federal policy favoring
clean water.” Id. at 416.

69a

In similar fashion, upon a review of the language,
structure and legislative history of the Act, the Court
concludes that OPA 90’s express nonpreemption
language applies to the Washington State regulations,
which govern tanker operations, personnel, manage-
ment, technology and information reporting. These
regulations cover much of the same ground addressed
by the prevention provisions of OPA 90, which set
standards for tanker personnel qualifications, manning,
operations, design and construction. The Act made
clear that Congress places a high priority on reducing
the threat of oil pollution, and that states may impose
additional requirements to meet these goals.

2. Implied Field Preemption.

Intertanko’s assertion that a majority of the
challenged regulations are invalid under the theory of
implied field preemption is largely foreclosed by the
nonpreemption language of OPA 90. Implied field pre-
emption is present if the scheme of federal regulation is
so pervasive as to indicate that Congress left no room
for state action, or if the federal interest is so dominant
that the federal system will be assumed to preclude
enforcement of state laws on the same subject. Ray,
435 U.S. at 157, 98 S. Ct. at 994.

Intertanko primarily asserts that the comprehensive
regulation of oil tankers by the Federal government
leaves no room for state regulation, which is thus
preempted. There can be no doubt that the areas
addressed by the Washington oil spill prevention rules,
which generally cover tanker operations, personnel,
management, technology and information reporting, are
also comprehensively regulated by federal statutes,
regulations and treaty obligations. Comprehensive

70a

regulation of an area alone, however, is not enough to
infer preemption. Hillsborough County, Fla. Auto-
mated Med. Labs., Inc., 471 U.S. 707, 716-18, 105 S.Ct.
2371, 2376-78, 85 L.Ed.2d 714 (1985). There must be
some additional showing that Congress intended the
comprehensive nature of the regulation to foreclose
state action.

In Ray the Supreme Court held that Congress
impliedly occupied the field in the area of tanker design
and construction. Among other things, the Court
examined a Washington statute that required all oil
tankers entering state waters to have certain standard
safety features, including a minimum amount of horse-
power, twin screws, and double hulls. Ray, 435 U.S. at
160, 98 S. Ct. at 995-96. The Court found that these
state law requirements were impliedly preempted
under the regime imposed by Title II of the PWSA.° It
specifically examined 46 U.S.C. § 391a (1970 Ed., Supp.
V), the provisions of which are now largely codified at
46 U.S.C. § 3703. With language similar to the current
statute, the former version of section 3703 required the
Coast Guard to issue regulations regarding the “design,
construction, and operation” of tankers in order to pro-
tect “life, property, and the marine environment from
harm.” Ray, 435 U.S. at 161, 98 S. Ct. at 996.

Based on this statutory scheme the Court concluded
that “Congress, insofar as design characteristics are
concerned, has entrusted to the Secretary the duty of
determining which oil tankers are sufficiently safe to be
allowed to proceed in the navigable waters of the

6 Title I is now codified as amended in 33 U.S.C. §§ 1221-1232,
and Title II is now codified as amended at 46 U.S.C, §§ 3701-3718.

71a

United States.” Id. at 163, 98 S. Ct. at 997. As a result,
Congress intended uniform national standards for
design and construction of tankers that would foreclose
the imposition of different or more stringent state
requirements.” Id. at 163-64, 98 S. Ct. at 997.

The Court also noted that states have more latitude
outside the area of tanker design and construction. “Of
course, that a tanker is certified under federal law as a
safe vessel insofar as its design and construction
characteristics are concerned does not mean that it is
free to ignore otherwise valid state or federal rules or
regulations that do not constitute design or construc-
tion specifications.” Id. at 168-69, 98 S. Ct. at 1000.

In this regard, the Ray Court addressed the im

of Title I of the PWSA on a Washington State hem
tion that required tug escorts for tankers over 40,000
DWT when certain design requirements were not met.
The Court noted that Title I of the PWSA provided
that the Coast Guard “may” promulgate vessel operat-
ing requirements, which could impose certain vessel
traffic services and systems, could require equipment
a to pn — services and systems, could

vessel traffic by among other things specifying
2 bo “oy —— and could restrict vessel

ons ose the particular operating
characteristics that are necessary for safety. Id. at 169-
70, 98 S. Ct. at 1000. This authorization for Coast
ag ＋ 1 — at 33 U.S.C. § 1221 (1970 ed.,

p. V), currently located in lar

US.C. § 1223. 2 4c

The Court concluded that a tug escort provision was
not a design requirement that would be subject to
implied field preemption, but was instead an operating

72a

rule “arising from the peculiarities of local waters that
call for special precautionary measures.” Id. at 171, 98
S. Ct. at 1001. Because with regard to operating rules,
the PWSA authorized but did not require the Coast
Guard to issue controlling regulations, the Court found
no implied field preemption. Id. It also concluded that
because the Coast Guard had not promulgated tug
escort provisions for Puget Sound, there was no conflict
between the state rule and federal law. Id. at 172, 98 8.
Ct. at 1001-02.’

The Ninth Circuit has also examined the preemptive
effect of federal shipping regulations. In Chevron
LS. A., Inc. v. Hammond, 726 F.2d 483 (9th Cir. 1984),
cert. denied, 471 U.S. 1140, 105 S. Ct. 2686, 86 L.Ed.2d
703 (1985), the court examined an Alaska statute that
prohibited oil tankers from discharging ballast water
that had been stored in oil tanker holds. Instead, the
state statute required tankers to discharge such ballast
water into on-shore processing facilities. Chevron
claimed that the statute was preempted by title II of
the PWSA/PTSA, which required the Coast Guard to
issue regulations concerning deballasting. That
authority exists today under 46 U.S.C. § 3703(a)(7)."

The Ray Court also made clear that certain environmental
laws were not preempted by federal shipping laws and regulations.
It explained that states can still require federally certified vessels
to conform to “reasonable, nondiscriminatory conservation and en-
vironmental protection measures Id. (quoting Douglas v. Sea-
coast Products, Inc., 431 U.S. 265, 277, 97 S. Ct. 1740, 1748, 52
L.Ed.2d 304 (1977)); see also Askew v. American Waterways
Operators, Inc, 411 U.S. 325, 343, 93 S. Ct. 1590, 1601, 36 L.Ed.2d
280 (1973) (“sea-to-shore pollution [has been] historically within
the reach of the police power of the States”).

It should be noted that section 3703(a)(7) is the successor to
the statute that required the Coast Guard to promulgate regula-

73a

The Coast Guard regulations concerning deballasti
were less stringent than the Alaska statuts —

The Ninth Circuit held that the federal statute and
regulatory scheme did not impliedly preempt the state

which were found to preempt state law in Ra

federal regulation of “pollutant — y
mond, 726 F.2d at 488. It noted that the Supreme
Court in Ray concluded that “ship design and con-
struction standards are matters for national attention,
but that t he subject matter of environmental regu-
lation, on the other hand, has long been regarded by the
Court as particularly suited to local regulation.” Id.
(quoting Ray, 435 U.S. at 166 n.15, 98 S. Ct. at 998 n. 15).
The N inth Circuit classified the Alaska statute con-
cerning the disposal of ballast water as an environ-
mental regulation limiting the discharge of pollutants
from tankers. Id. It concluded that while the statute
was not subject to implied field preemption, it could be,
— was not, subject to conflict preemption. Id. at 495,

The Ninth Circuit also addressed the degree to which
federal shipping regulations preempted state law in
Beveridge v. Lewis, 939 F.2d 859 (9th Cir. 1991). At
issue there was a municipal ordinance regulating

moorage and anchorage in Santa Barbara Harbor. The
court concluded that while the Coast Guard had

tions for the design and construction of tankers in Ray, which

requirements were found to preempt Washington law. Thus a

regulation mandated by 46 U.S.C. § 3708 does not autcmati
— automatically

74a

extensive authority to regulate the anchoring, mooring
and movement of vessels under 33 U.S.C. § 1223, that
was not enough to create implied preemption. It

explained:

Just as Ray refused to find implicit preemption and
proceeded to discuss the actual conflicts between
Washington’s Tanker Law and federal regulations,
we cannot hold that the PWSA occupies the entire
field of regulation of anchorage and mooring. We
cannot distinguish tanker (Ray) and pollution
(Chevron) regulations from mooring restrictions. If
both the Supreme Court and this circuit did not find
Congress to have intended to preempt all local
regulation by the PWSA in those areas, it is difficult
to conceive how it could be found here.

Id. at 863. Moreover, the Court recognized that there is
“congressional intent that ‘there be joint federal/state
regulation of ocean waters within three miles of
shore. Id. at 864 (quoting Chevron, 726 F.2d at 489).
The Court went on to find that there was no actual
conflict between the municipal ordinance and federal
law. Id. at 864-65.

From Ray and its progeny two levels of preemption
for statutes and regulations like those at issue here may
be distilled. These categories depend on the subject
matter that is being regulated. State regulation of oil
tanker design and construction is impliedly preempted
by federal law. Ray, 435 U.S. at 163-64, 98 S. Ct. at 997-
98. State regulation of tanker operations “arising from
the peculiarities of local waters that call for special
precautionary measures” is not subject to implied field
preemption, but may not actually conflict with federal
regulation. Ray, 435 U.S. at 171, 98 S. Ct. at 1001.

75a

State regulation of water pollution is also not subject to
implied field preemption, but may not actually conflict
with federal regulation. Chevron, 726 F. 2d at 495.

Here, the Washington regulations govern vessel
operations in order “to protect the state’s natural
resources and waters . . -” RCW 88.46.010. To do so
standards are imposed in the areas of tanker opera-
tions, personnel, management, technology and informa-
tion reporting. These areas are much more akin to the
operational tug escort provisions upheld in Ray, than to
the design and construction requirements that were
struck down in that case.’ The state regulations arise
“from the peculiarities of local waters that call for

special precautionary measures.” Ray, 435 U.S.
98 S. Ct. at 1001. : *

Moreover, these standards are intended to protect
the environment, and thus are an exercise of the state’s
police powers. When vessels are involved, however,
there is an unavoidable overlap between state and
federal regulation. But when the concern is pollution,

A portion of the state statute struck down in Ra

y did include
radar and navigational position locating systems. Ray, 435 U. S. at
160, 98 S. Ct. at 995-96. Such requirements are more aptly in-

traffic services in navigable waters of the United States, and in
doing so “may require vessels to install and use specified naviga-

two separate radar systems under WAC 317-21-265 should be
considered equipment necessary for vessel operating procedures
under 33 U.S.C. § 1223. These requirements are not subject to
implied preemption.

76a

the Ninth Circuit has recognized the need for “joint
federal/state regulation of ocean waters within three
miles of shore.” Chevron, 726 F.2d at 489. This
partnership was further verified by the nonpreemption
clause of OPA 90. As such, the Court cannot conclude
that the Washington oil spill prevention statutes and
regulations are impliedly preempted.”

3. Express Preemption.

Intertanko hinges its claim of express preemption on
several federal regulations issued by the Coast Guard,
in which it is state

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0274%3A03. Public record. Not legal advice.