Amicus Curiae Brief — Van Rijk v. United States

MAY 26 2002

No. 01-706

IN THE

Supreme Court of the Anited States

REX R. SPRIETSMA, ADMINISTRATOR

OF THE ESTATE OF JEANNE SPRIETSMA,

Petitioner,

V.

MERCURY MARINE, A DIVISION

OF BRUNSWICK CORPORATION,

Respondent.

On Writ of Certiorari to the

Supreme Court of Illinois

BRIEF FOR THE CHAMBER OF COMMERCE

OF THE UNITED STATES OF AMERICA AS AMICUS

CURIAE IN SUPPORT OF RESPONDENT

ROBIN S. CONRAD JOHN G. ROBERTS, JR.*

NATIONAL CHAMBER CATHERINE E. STETSON

LITIGATION CENTER, INC. HOGAN & HARTSON L.L.P.

1615 H Street N.W. 555 Thirteenth Street, N.W.

Washington, }).C. 20062 Washington, D.C. 20004

(202) 463-5337 (202) 637-5810

* Counsel of Record Counsel for Amicus Curiae

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 -— WASHINGTON, D. C. 20001

BEST AVAILABLE COPY

TABLE OF CONTENTS

Page

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IED TEP MRIIIIIIET icerrnncecncnscesonsansnecsécunindmsccencsnntensea l

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IIIT ‘scsiescinisipubeesiaepuanienduetiadsataloenshicladidiniiadninimiieienpideuiiinentenestite 4

PETITIONER’S ACTION IS PREEMPTED BY FED-

ERAL MARITIME LAW AND THE BOAT SAFETY

Sia cdieshiaiiadainidiigiatiiainnsaiicinaecbacieaiaianianignepenaniaimmmetesniaiainennsenceens 4

A. The Boat Safety Act Was Intended To Promote

Uniform Regulation In This Traditionally Federal

SITET ETTIIT iciew> <iciincusiinniissnsssestiteddienbinianientonnenmeninnsiensen 5

B. State Tort Actions Against Boat Manufacturers

Conflict With The Express Provisions Of The

BI ID cecestiicncnoecncnnndincnsenicdniniieententinndeanmescenpnesees 8

C. The Coast Guard’s Unambiguous And Informed

Determination Not To Require Propeller Guards Is

Entitled To Preemptive Effect ..............:cccccsceeeeeeeeeeeees 1}

D. Petitioner’s “Federalism” Concerns Are Misplaced..... 2.

UES consnsesecesunstcsnccsnmmmmnennneesnmnnsssanenescesnsresmsneenineeteseite 26

li

TABLE OF AUTHORITIES

Cases:

Allis-Chalmers Corp. v. Lueck, 471 U.S. 202

( PIII p -ccvcccencccosseconssnnssstiisatiinimmmaiiaiumnaninanenaaann

American Airlines, Inc. vy. Wolens, 513 U.S.

il, EE

American Horse Protection Ass'n v. Lyng, 812

Pas E GAG. Gas. GB i xisccsciecncaneaaeene

American Pub. Health Ass'n vy. Butz, 511 F.2d

S08 GAL, Cae, BID nccccsivistsensusemiiaaaenneeen

Arkansas Elec. Coop. Corp. v. Arkansas Pub.

Serv. Comm'n, 461 U.S. 375 (1983) ...cccccccccssceeceeseees

Becker v. U.S. Marine Co., 943 P.2d 700

(Wash. Ct. App. 1997), review denied, 958

Fd SED CURE, POTD crccnenessinsniiocdanameaiauidaaa

Bethlehem Steel Co. v. New York State Labor

Relations Bd., 330 U.S. 767 (1947) ....cccccccccccsssceeeeees

Board of Governors of Fed. Reserve Sys. v.

Dimension Fin. Corp., 474 U.S. 361 (1986)........0.00.

Boulahanis vy. Prevo’s Family Market, Inc.,

583 N.W.2d 509 (Mich. Ct. App. 1998), cert.

denied, 530 U.S. 1203 (2000) .........ccsssseseseeeeseseereeesees

Boyle v. United Techs. Corp., 487 U.S. 500

( SSEED ..csccessesevscnccsesssentetenenaipinimiaaaiiiadiaaa

Calhoun v. Yamaha Motor Corp., USA, 216

F.3d 338 (3d Cir.), cert. denied, 531 U.S.

06D F CRIDED cncrecccssctssisientiasianpaiee

Chao v. Mallard Bay Drilling Co., 122 S. Ct.

TE GREED ancecacecnesescenssccsenciittiitiasillieiiaiaaaiemiaamaliae

Crosby v. National Foreign Trade Council,

FOO UB. FED Gee cccserscccnctecieciipmidiiaiaieain

English v. General Elec. Co., 496 U.S. 72

ill

TABLE OF AUTHORITIES—Continued

Page

Cases:

Fidelity Fed. Sav. & Loan Ass'n v. De la

Chemetn, GSB UD. 041 (IDEZ) .2.0<ccecccccsccccesscccccssccccscscceeees 17

FMC Corp. v. Holliday, 498 U.S. 52 (1990) ........ccccceeeee

Foremost Ins. Co. v. Richardson, 457 U.S. 668

TIED wcencescssesssensccecsessesczcsssesnenescsnessscescecssesscsecsessccsesscsecees

Fox Television Stations, Inc. v. FCC, 280 F.3d

NGZT (D.C. Cir. 2002) ......ccrercrerrccrrcccecrecscccsecesserseecseesenss 23

Freightliner Corp. v. Myrick, 514 U.S. 280

TT sienssteereeeemminncentqnensstnanamnennseceeananenctensesecceceseneesee 20, 21

Garner v. Teamsters, Chauffeurs & Helpers

Local No. 776, 346 U.S. 485 (1953) .......cccccccceceeeeeeeeeeees 15

Geier v. American Honda Motor Co., 529 U.S. |

BD GI cceccccenccccccccescscccssccssccsscccsccsscccseccescccssocosees passim

Ingersoll-Rand Co. v. McClendon, 498 U.S.

I I wexeescccsenacccnsnsessenencssesczecevcossssccenceseoseceocsensecceooeee

LaPlante v. Wellcraft Marine Corp., 114 Cal.

Rptr. 2d 196 (Cal. Ct. App. 2001), review

PIED ccecenconssscncssnesssectneveecevenceonvesesensescceeccceecneeees 20

NLRB v. Nash-Finch Co., 404 U.S. 138 (1971).......... 15,17

Powers v. Bayliner Marine Corp., 83 F.3d 789

(6th Cir.), cert. denied, 519 U.S. 992 (1996) ..........0006 10

Puerto Rico Dep't of Consumer Affairs v. ISLA

Petroleum Corp., 485 U.S. 495 (1988) ..........0: 17, 18, 19

Ray v. Atlantic Richfield Co., 435 U.S. 151

FFP ccecescescesserensescenssecsenseensccenssecescssccscceoncecsecs 5, 7,17, 19

Retail Clerks Int'l Ass'n, Local 1625 v. Scher-

merhorn, 375 U.S. 96 (1963) ........ccccccccceeesseceeeeeeeeeeeeneeees

Rice v. Santa Fe Elevator Corp., 331 U.S. 218

iV

TABLE OF AUTHORITIES—Continued

Page

Cases:

Rodriguez v. United States, 480 U.S. 522

8 10

Sissoa ¢. Ruby, 497 U.S. 358 (1990).............ccccccecseceesseeeeees 5

Stanicy v. Bertram-Trojan, Inc., 855 F. Supp.

8 rT OE 19, 20

Transcontinental Pipe Line Corp. v. State Oil

& Gas Bd., 474 U.S. 409 (1986) .........cccccccccceeceseeeeeeeeees 17

United States v. Locke, 529 U.S. 89 (2000)............... 2, 5,6

Statutes:

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Ba Sin 0 SII crncsninenenneseniineianinenmeninuapninnianniitiiiaias 20

ins I cicriicunccnnnnceniinininiinnianiiiaiianimmsiiaiils 21

Se icrierinctniicennnantinninnimnininiaiaeiaitsinaaiiiiaias 9

Ses SE ccnrnnsncsniestnnitnnnsieaapidanmnnnenmiiaiiiiatin 9

46 U.S.C. § 13110 seeueneaenmnnennmennneaneinnienmanmmmanntetin 13

Constitution:

es SED. GR BG Fi cenrerncnecesmensantntnenemintenenciinniitis 6

ee Sets IR, Se i cceeennseerenennnssitencitininiceiedeiiahitliiais 4, 16

Rule:

Ss GS, SI So ee cerercneniccrnccssonsisianiecsiteintiasiiinamaaaeanitiantiaaaaitaies l

Regulations:

49 Fed. Reg. 28962 (July 17, 1984) ..0........cccccccceeeeeeees 11

49 Fed. Reg. 28990 (July 17, 1984) 00.0... ccccccceeceeeeeeees 12

49 Fed. Reg. 28992-93 (July 17, 1984) .............ccccceeeeeeee 12

61 Fed. Reg. 13123 (Mar. 26, 1996) .................cccccessceeeeees 16

61 Fed. Reg. 13125 (Mar. 26, 1996) .............cccscseeseeeeeees 16

Vv

TABLE OF AUTHORITIES—Continued

Page

Regulations:

65 Fed. Reg. 30680 (May 12, 2000) .............:cccccesseeeeeeeees 12

65 Fed. Reg. 30681-82 (May 12, 2000) .............:ecceeeeeeee 12

Legislative Materials:

H.R. Rep. No. 92-324 (1971) ....cssseessseessssesssneecsneersneessnessnes O

S. Rep. No. 92-248 (1971) .........cccccceceseeeeeeeeeeneeneenneees passim

IN THE

Supreme Court of the Anited States

No. 01-706

REX R. SPRIETSMA, ADMINISTRATOR

OF THE ESTATE OF JEANNE SPRIETSMA,

Petitioner,

Vv.

MERCURY MARINE, A DIVISION

OF BRUNSWICK CORPORATION,

Respondent.

On Writ of Certiorari to the

Supreme Court of Illinois

BRIEF FOR THE CHAMBER OF COMMERCE

OF THE UNITED STATES OF AMERICA AS AMICUS

CURIAE IN SUPPORT OF RESPONDENT

STATEMENT OF INTEREST

The Chamber of Commerce of the United States of Amer-

ica (“Chamber”) is the world’s largest business federation. !

! No counsel for any party authored this brief in whole or in part,

and no person or entity, other than the amicus curiae and its mem-

bers, made a monetary contribution to the preparation or submis-

sion of this brief. S. Ct. Rule 37.6. The brief is filed with the

2

It represents an underlying membership of more than three

million businesses and organizations, with 140,000 direct

members, in every industrial sector and geographic region of

the country. The Chamber has participated as amicus curiae

in several hundred cases before this Court, including numer-

ous cases addressing the subject of federal preemption. See,

e.g., Geier v. American Honda Motor Co., 529 U.S. 861

(2000); United States v. Locke, 529 U.S. 89 (2000); Ameri-

can Airlines, Inc. v. Wolens, 513 U.S. 219 (1995).

SUMMARY OF ARGUMENT

Petitioner’s tort claim is preempted. To begin with, his

claim arises in the uniquely federal field of maritime law.

When Congress legislates in the maritime field, it customar-

ily imposes uniform rules of conduct, safety standards, and

design requirements on boats and maritime activities subject

to federal jurisdiction. The Federal Boat Safety Act is no

exception; Congress confirmed throughout the Act its intent

that recreational boats be subject to uniform design and

safety standards. Tort claims like petitioner’s, however,

would result in state-court juries articulating a welter of

different safety and design standards, undermining both

Congress’s general intent consistently to regulate maritime

activities and its specific intent in the Boat Safety Act to

regulate recreational boat safety and design under uniform

federal standards.

In the Boat Safety Act itself, moreover, Congress expressly

balanced the goal of the statute—increasing boat safety

through uniform standards—against the countervailing need

for restraint before imposing onerous design changes on boat

and equipment manufacturers. The Act specifically prohibits

the Coast Guard from requiring manufacturers to substan-

tially alter their existing stock and prohibits the agency from

consent of the parties, and copies of the consent letters have been

filed with the Clerk.

3

requiring even insubstantial alterations unless the benefits

from those alterations far outweigh their attendant costs.

State tort actions against manufacturers have no such limita-

tions. Once a jury sets a safety standard, manufacturers must

design to that standard or face the consequences. Similarly,

with respect to prospective alterations, the Boat Safety Act

grants manufacturers a generous grace period to bring their

production in line with new federal requirements. State tort

_judgments make no such dispensation. Petitioner’s tort suit

thus conflicts not only with the purpose and intent of the

Boat Safety Act, but with the Act’s express terms.

Petitioner’s tort claim, which depends on the allegation that

propeller guards are required on outboard motors like Mer-

cury Marine’s, also conflicts with the Coast Guard’s consid-

ered decision not to require propeller guards. The Coast

Guard reached its conclusion after consulting with its expert

advisory committee—as the Boat Safety Act requires—and

after considering the Committee’s submission regarding the

prohibitive costs and dubious benefits of propeller guards.

The Coast Guard’s decision should be accorded preemptive

effect. The agency was not required to give notice and seek

comment before conflicting state law would be preempted;

its considered decision, made after a year’s worth of public

inquiry and on the unanimous recommendation of its expert

advisory panel, is quite sufficient—particularly in this federal

field—to preempt conflicting state requirements.

Finally, petitioner’s concerns about federalism and state

sovereignty are overwrought. When Congress legislates in

the maritime field, the federal interest in preserving uniform-

ity controls, and neither States nor their juries have a role in

developing or implementing their own several standards of

maritime law.

4

ARGUMENT

PETITIONER’S ACTION IS PREEMPTED

BY FEDERAL MARITIME LAW AND THE

BOAT SAFETY ACT.

We agree with the Illinois Supreme Court that this is an

admiralty case, Pet. App. 6, and we likewise agree with

petitioner’s amicus ATLA that federal maritime law controls

the outcome of this case. See ATLA Br. 21. The question

whether state law is preempted therefore need not be de-

cided; rather, this Court can simply hold that federal mari-

time law provides the applicable rule of decision and does

not impose a duty to install propeller guards. The expert

agency charged with reviewing the utility of propeller guards

has concluded that they may pose more safety problems than

they solve, and it would undermine the national uniformity

so prized in maritime law to allow state-court juries to sec-

ond-guess that studied determination.

If this Court does reach the preemption issue, it should hold

that the Federal Boat Safety Act preempts petitioner’s state

tort action. As Mercury Marine has explained in its brief,

that decision can properly be grounded in any of the preemp-

tion doctrines that have grown up around the Supremacy

Clause: express, field, or implied preemption. Further, as

this Court has observed, the three categories of preemption

are not “rigidly distinct.” Crosby v. National Foreign Trade

Council, 530 U.S. 363, 5/2 n.6 (2000) (quoting English v.

General Elec. Co., 496 U.S. 72, 79 n.5 (1990)). Above all,

the “ultimate touchstone” of preemption analysis, Retail

Clerks Int'l Ass'n, Local 1625 v. Schermerhorn, 375 U.S. 96,

103 (1963), is congressional intent. See Allis-Chalmers

Corp. v. Lueck, 471 U.S. 202, 208 (1985). To discern that

intent, this Court examines both the express language and the

“structure and purpose” of the statute at issue. /ngersoll-

Rand Co. v. McClendon, 498 U.S. 133, 138 (1990); FMC

Corp. v. Holliday, 498 U.S. 52, 56-57 (1990).

5

This unified theory of preemption is particularly appropri-

ate when examining whether state tort law is preempted

under the Federal Boat Safety Act. The matter at stake im-

plicates maritime law, a field of uniquely federal interest

from the time of the Founding. Congress similarly con-

firmed that federal interest in the Boat Safety Act itself,

demonstrating a strong interest in maintaining uniform de-

sign standards for boats that may be used in navigable wa-

ters. Congress made its iftent to preserve uniform design

standards clear through its express preemptive language,

through its delegation of rulemaking authority to experts in

the field, and in the exacting provisions of the Act that reflect

a careful balancing at the national level of the need for safe

boats against the costs of making them safe.

A. The Boat Safety Act Was Intended To Promote Uni-

form Regulation In This Traditionally Federal

Maritime Field.

This Court has recognized that there are some areas of

regulation that implicate a “unique[ly] federal concern.”

Boyle v. United Techs. Corp., 487 U.S. 500, 508 (1988).

Maritime law is one such area. United States v. Locke, 529

U.S. 89, 99 (2000). The reason: the acknowledged need for

uniformity of regulation of maritime vessels operating in the

United States’ navigable waters. See id. at 109. The need for

uniform regulation applies regardless of whether the mari-

time activity being regulated is commercial, see Ray v. Atlan-

tic Richfield Co., 435 U.S. 151 (1978), or primarily recrea-

tional, see Foremost Ins. Co. v. Richardson, 457 U.S. 668,

674-675 (1982) (“The federal interest in protecting maritime

commerce * * * can be fully vindicated only if a// operators

of vessels on navigable waters are subject to uniform rules of

conduct”) (emphasis in original). See also Sisson v. Ruby,

497 U.S. 358, 367 (1990) (“[T]he need for uniform rules of

maritime conduct and liability is not limited to navigation,

but expands at least to any other activities traditionally un-

dertaken by vessels”); Calhoun v. Yamaha Motor Corp.,

6

USA, 216 F.3d 338, 350 (3d Cir.) (“Creating a uniform sys-

tem by which activities and events on the waters of the

United States would be adjudicated was such a matter of

concern to the Framers that they placed admiralty as among

the powers of the newly-created federal government’) (citing

U.S. Const. art. 1, § 8, cl. 10), cert. denied, 531 U.S. 1037

(2000).

The federal government’s “uniqu[e] * * * concern” in the

maritime area manifests itself in two related ways. First, no

presumption of state primacy arises in a preemption case

presenting maritime issues. See Locke, 529 U.S. at 108.

Second, where uniquely federal concerns are implicated, a

lower threshold for conflict preemption applies, such that

“[t]he conflict with federal policy need not be as sharp as that

which must exist for ordinary pre-emption when Congress

legislates ‘in a field which the States have traditionally occu-

pied.’” Boyle, 487 U.S. at 507 (quoting Rice v. Santa Fe

Elevator Corp., 331 U.S. 218, 230 (1947)). As this Court put

it in Boyle, “the fact that the area in question is one of unique

federal concern changes what would otherwise be a conflict

that cannot produce pre-emption into one that can.” 487 U.S.

at 507-508. See also U.S. Br., Buckman Co. v. Plaintiff's

Legal Committee, No. 98-1768, at 10 (“when state law in-

trudes on an area of preeminent federal concern, the pre-

sumption against preemption disappears, and the danger of a

fatal conflict significantly increases”).

The federal government’s “long history of preemption in

maritime safety matters” is reflected in Congress’s expressed

intent in the Boat Safety Act to create uniform standards of

boat and equipment design. S. Rep. No. 92-248, at 20

(1971). In describing the purpose of the Act, the House

Report accompanying the bill stated that it was “time that

recreational boats be built in accordance with standards

prescribed by one Federal agency,” and that the bill was

intended to “preemp[t] the field on boating standards or

regulations.” H.R. Rep. No. 92-324, at 2, 11 (1971). The

7

Senate Report similarly noted that “[t]he need for uniformity

in standards if interstate commerce is not to be unduly im-

peded supports the establishment of uniform construction and

equipment standards at the Federal level.” S. Rep. No. 92-

248, at 14; see also id. at 15 (Act intended to “authoriz[e] the

establishment of national construction and performance

standards for boats and associated equipment” and “en-

courag[e] uniformity among boating laws”); id. at 17 (Act

“intended to ensure that virtually all boats are manufactured

in compliance with federal safety standards whether or not

they will be operated within the federal maritime jurisdic-

tion”). Just as “Congress intended uniform national stan-

dards for design and construction of tankers” in the Ports and

Waterways Safety Act, Ray, 435 U.S. at 163, it intended

through the Boat Safety Act to impose similarly uniform

requirements for recreational boat design.

Petitioner’s state tort action rests on the allegation that

Mercury Marine should have included a piece of equipment

on its outboard motor that the federal government expressly

declined to require. State tort suits like this one by their

nature perpetuate nonuniform standards. Juries in different

States presented with the same liability issue (e.g., whether

and what kind of propeller guards should have been installed)

will deliver verdicts that articulate widely different safety and

design standards—and all those different standards will apply

to national boat manufacturers who sell products in, or whose

products are operated in, those different States. See Geier v.

American Honda Motor Co., 529 U.S. 861, 871 (2000) (“the

rules of law that judges and juries create or apply in [tort]

suits may themselves * * * create uncertainty and even con-

flict, say, when different juries in different States reach dif-

ferent decisions on similar facts”). The cacophony of equip-

ment and design “standards” created in such tort suits thus

conflicts with the uniquely federal interest in uniformity of

regulation as a general principle of maritime jurisprudence,

and stands as an obstacle to Congress’s effort to achieve

8

= of boat equipment regulation in the Boat Safety

ct.

Petitioner argues that Congress’s goal was not to foster uni-

formity of regulation in this federal field, but simply to “im-

prove boat safety,” and that allowing tort actions like this one

furthers that goal. See Pet. Br. 33, 38-39; see also ATLA Br.

15-17. That is wrong on two counts. First, the purpose of

the Boat Safety Act was not just to “improve boat[] safety”;

it was to “improve boating safety by requiring manufacturers

to provide safer boats and boating equipment to the public

through compliance with safety standards to be promulgated

by the [Coast Guard].” S. Rep. No. 92-248, at 6 (emphasis

added). Second, tort actions claiming a failure to install

propeller guards do nothing to promote boat safety. The

Propeller Guard Subcommittee concluded—after a year of

study and in a recommendation adopted by the Coast

Guard—that the risks caused by propeller guards at least

counterbalanced their questionable safety benefit. See J.A.

39 (“The development and use of devices such as ‘propeller

guards’ can, therefore, be counter-productive and can create

new hazards of equal or greater consequence”). Petitioner’s

and amicus ATLA’s arguments that a de facto propeller

guard requirement imposed by a jury promotes boat safety

ignore the Subcommittee’s unvebutted expert conclusion that

spe guards pose at least as many dangers as they might

ward off.

B. State Tort Actions Against Boat Manufacturers

Conflict With The Express Provisions Of The Boat

Safety Act.

Allowing state juries to impose tort liability on manufac-

turers for purported design flaws conflicts not only with the

federal interest in uniform maritime regulation and the con-

gressional purposes behind the Boat Safety Act, but also with

the Act’s express terms. The Act prohibits the Coast Guard

from “compel[ling] substantial alteration of a recreational

9

vessel or item of associated equipment that is in existence, or

the construction or manufacture of which is begun before the

effective date of the regulation.” 46 U.S.C. § 4302(c)(3).

Indeed, the Coast Guard may not require any alterations to

existing equipment unless those alterations are necessary to

“avoid a substantial risk of personal injury to the public” and

“appropriate in relation to the degree of hazard that the com-

pliance will correct.” /d. Even with prospective changes in

safety or equipment standards, the Act requires the Coast

Guard to allow a six-month grace period before new regula-

tions become effective, “unless * * * there exists a recrea-

tional vessel safety hazard so critical as to require an earlier

effective date.” Jd. § 4302(b). The Coast Guard may extend

the minimum six-month grace period to two full years, if the

regulation “involve[s] major product design, retooling, or

major changes in a manufacturing process.” Jd.

Section 4302 of the Boat Safety Act demonstrates that

Congress balanced its strong interest in national boat equip-

ment design and safety standards against the recognized need

gradually to assimilate standard changes into commerce. See

S. Rep. No. 92-248, at 18 (noting concern that “the specifica-

tion of an earlier effective [compliance] date may result in

serious dislocation of manufacturing procedures and sched-

ules and [a]n increased cost to the consumer”); id. at 19

(“great caution [must] be exercised in applying standards to

existing boats because of the great burden this can create on

both manufacturers and the boating public”). In setting a

high threshold for requiring changes to existing stock, Con-

gress ensured that the Coast Guard’s regulatory actions

would be prospective only, except where it could be shown

that the immediate safety benefits from requiring insubstan-

tial alterations to existing boats or equipment far outweighed

the burdens imposed on manufacturers of retrofitting those

products. And Congress ensured that the effect on commerce

of even prospective design and equipment requirements

would be mitigated by granting manufacturers a liberal statu-

10

tory grace period to bring their products into compliance with

the new standards.

Section 4302’s firm restrictions on requiring alterations and

its generous grace periods establish that Congress was not

willing to achieve boat safety at all costs; rather, Congress

understood that issues of manufacturing feasibility, financial

considerations, and the need to implement change gradually

in a national market all necessarily tempered the Act’s goals.

As this Court has recognized, such restrictive statutory terms

may not be disregarded in favor of carrying out the Act’s

broader purpose; to do so would be to

ignore{] the complexity of the problems Congress is

called upon to address and the dynamics of legislative ac-

tion. Congress may be unanimous in its intent to stamp

out some vague social or economic evil; however, be-

cause its Members may differ sharply on the means for

effectuating that intent, the final language of the legisla-

tion may reflect hard-fought compromises. [Board of

Governors of Fed. Reserve Sys. v. Dimension Fin. Corp.,

474 US. 361, 373-374 (1986). ]

See also Rodriguez v. United States, 480 U.S. 522, 526

(1987) (per curiam) (“[I]t frustrates rather than effectuates

legislative intent simplistically to assume that whatever

furthers the statute’s primary objective must be law.”) (Em-

phasis in original).

Allowing state-court juries to impose tort liability on

manufacturers for failing to install propeller guards would

frustrate the careful balance Congress struck in Section 4302

of the Boat Safety Act. A finding of tort liability—and a

damage award—amounts to a finding that a manufacturer

should have installed a guard on a piece of equipment cur-

rently in use. See Geier, 529 U.S. at 881. Once a jury hands

down a liability verdict, manufacturers must either take steps

to alter their stock currently in use—by, for instance, con-

ducting a recall or retrofit campaign, see Powers v. Bayliner

11

Marine Corp., 83 F.3d 789, 792 (6th Cir.) (explaining the

difference between the two actions), cert. denied, 519 U.S.

992 (1996)—or risk another adverse judgment in the same or

another State for failing to retrofit that equipment. See Geier,

529 U.S. at 881 (rule of state tort law establishing duty to

install airbags “would have required all manufacturers to

have installed airbags” in all cars sold in that State); id. at

882 (“this Court’s pre-emption cases ordinarily ussume

compliance with the state-law duty in question”) (emphasis

in original). The action-forcing nature of a state tort verdict

simply does not comport with Congress’s express intent that

retrofitting boats be required only under carefully limited

circumstances.

C. The Coast Guard’s Unambiguous And Informed

Determination Not To Require Propeller Guards Is

Entitled To Preemptive Effect.

1. The intent of Congress to preempt state tort actions

imposing new boat design standards can also be seen in its

exacting delegation of authority to the Coast Guard and an

advisory panel of maritime and boat design experts. See

S. Rep. 92-248, at 17 (administrative rather than statutory

safety standards “take advantage of the expertise and flexibil-

ity available in the administrative process”). An expert

subcommittee of the National Boat Safety Advisory Board

issued a detailed and unanimous recommendation to the

Coast Guard that it take no regulatory action to require pro-

peller guards, and the Coast Guard implemented that recom-

mendation. Its informed decision pursuant to congressional

mandate should be accorded heavy weight.

Although it involved a different preemptive statute and did

not touch on the federal field of maritime law, the Court’s

recent decision in Geier is instructive on this question. This

Court held in Geier that a state tort action against an automo-

bile manufacturer for failing to install an airbag was impli-

edly preempted by a safety standard promulgated under the

12

National Traffic and Motor Vehicle Safety Act of 1996. The

1984 standard at issue in that case, Federal Motor Vehicle

Safety Standard (FMVSS) 208, directed automobile manu-

facturers gradually to phase in passive restraint devices in

their vehicles. 49 Fed. Reg. 28962 (July 17, 1984). When

the Department of Transportation promulgated FMVSS 208,

it noted that “passive restraint systems had their own disad-

vantages” and that airbags in particular posed “special risks

to safety,” including the risk of injury to children occupying

the front seat of a small car. 529 U.S. at 877 (citing 49 Fed.

Reg. 28962, 28992-93 and 65 Fed. Reg. 30680, 30681-82

(May 12, 2000)). The Department also recognized that

airbags were “ ‘significantly more expensive than other

passive restraint devices’” such as seatbelts; a mandatory

airbag requirement could potentially have cost manufacturers

and consumers upwards of a billion dollars. 529 U.S. at 878

(citing 49 Fed. Reg. 28990 (1984)). The Department accord-

ingly established a standard pursuant to which manufacturers

could choose among various forms of passive restraint de-

vices (e.g., automatic seatbelts), and could bring their fleets

into compliance with the flexible standard gradually over a

period of time. 529 U.S. at 881.2

This Court concluded that FMVSS 208 preempted a state

tort action that “depend[ed] upon [a] claim that manufactur-

ers had a duty to install an airbag when they manufactured

the 1987 Honda Accord.” Jd. That “state law—i.e., a rule of

state tcrt law imposing such a duty—y its terms would have

required manufacturers of a// similar cars to install airbags

rather than other passive restraint systems” in their vehicles,

2 In Geier, the Department of Transportation had approved air-

bags as one form of passive restraint device, to be introduced

gradually over time. In this case, in contrast, the Coast Guard

adopted the recommendation of its expert advisory committee and

concluded that, because propeller guards did not satisfy the Boat

Safety Act’s stringent statutory standards, it would not require

manufacturers to install such devices, on any boat, at any pace.

13

in tension with the Department’s goal of achieving a mix of

devices, and would have required the entire portion of the

fleet sold in the State to carry airbags, in conflict with the

Department’s intent gradually to phase in passive restraint

requirements in vehicle fleets. /d. (emphasis added). While

the conflict with the agency’s objectives posed by the state

tort action did not arise from “a formal agency statement of

preemptive intent,” this Court found that to be of little mo-

ment in the conflict preemption inquiry: “conflict preemp-

tion * * * turns on the identification of ‘actual conflict,’ and

not on an express statement of preemptive intent.” /d. at 884

(quoting English, 496 U.S. at 90). “[This] Court has never

before required a specific, formal agency statement identify-

ing conflict in order to conclude that such a conflict in fact

exists.” 529 U.S. at 884.

In this case, after receiving petitions to adopt a propeller

guard requirement, see J.A. 18, the United States Coast

Guard, acting pursuant to its statutory mandate under the

Boat Safety Act, issued a formal and detailed request that the

National Boating Safety Advisory Council investigate the

feasibility of mechanical guards to protect against propeller

strikes. See id. at 42-44. The Advisory Councit—composed

of twenty-one members appointed by the Secretary of Trans-

portation and with particular “expertise, knowledge, and

experience in recreational boating safety,” 46 U.S.C.

§ 13110—appointed a Subcommittee to review and analyze

“the available data on the prevention of propeller-strike

accidents,” examine the “various methods of shrouding

propellers to prevent contact with [a] person in the water,”

and “{a]ssess the arguments for and against some form of

mechanical guard to protect against propeller strikes reflect-

ing the positions of state boating law administrators, the

recreational boating industry, and the boating public.” J.A.

43.

The Subcommittee conducted a year-long study of propel-

ler guards, their potential benefits, and their attendant haz-

14

ards. It held public hearings, took documentary and testimo-

nial evidence, and its members test-drove recreational boats

with various forms of propeller guards attached. The Sub-

committee concluded that propeller guards “can * * * be

counter-productive and can create new hazards of equal or

greater consequence,” including increasing the risk of strik-

ing a body in the water, id. at 39, and increasing the likeli-

hood of grave injury to a person struck by the blunt impact of

the propeller guard or caught between the guard and the

propeller. /d. at 34, 36. The Subcommittee also found that it

had been “clearly demonstrated” that certain propeller guards

caused “serious safety and control problems,” posing real

dangers for all but the most expert boat operators. Jd. at 31;

see id. at 31-35 (enumerating potential safety hazards of

propeller guards). And the Subcommittee noted that retrofit-

ting all existing boats with propeller guards would require a

“vast number of guard models at prohibitive cost” Jd. at 38.

The Subcommittee unanimously recommended to the Coast

Guard that it “take no regulatory action to require propeller

guards.” Jd. at 76.

The Coast Guard accepted the Subcommittee’s recommen-

dation and confirmed that it would “take no regulatory action

to require propeller guards.” Jd. at 80. In his letter adopting

the Subcommittee’s recommendations, the Chief of the Coast

Guard’s Office of Navigation Safety and Waterway Services

referred to the Boat Safety Act’s statutory standards for

requiring design changes to existing boats, noting that the

statute’s “regulatory process is very structured and stringent

regarding justification,” and that “[a]vailable propeller guard

accident data do not support imposition of a regulation re-

quiring propeller guards on motorboats.” Jd. The letter also

noted the “many questions about whether a universally ac-

ceptable propeller guard is available or technically feasible.”

Id. Finally, echoing the statute’s recognition of the burdens

on commerce and consumers of requiring massive retrofits,

the Coast Guard letter noted that “the question of retrofitting

15

millions of boats would certainly be a major economic con-

sideration.” Jd.*

Just as in Geier, a state tort action resting on a claim that a

manufacturer had a duty to install propeller guards conflicts

with the Coast Guard’s considered decision to “take no regu-

latory action to require propeller guards.” Petitioner’s tort

action is expressly predicated on the notion that propeller

guards should have been installed on Mercury Marine’s

outboard motor—and by extension, all comparable Mercury

Marine outboard motors, and even further, all other manufac-

turers’ comparable outboard motors. See Geier, 529 U.S. at

881 (a finding of a state tort duty “by its terms would have

required manufacturers of all similar cars to install airbags”).

That requirement conflicts with the Coast Guard’s opposite

conclusion: that it would not require manufacturers to install

propeller guards at all. See NLRB v. Nash-Finch Co., 404

U.S. 138, 144 (1971) (“ ‘For a state to impinge on the area of

labor combat designed to be free is quite as much an obstruc-

tion of federal policy as if the state were to declare picketing

free for purposes or by methods which the federal Act pro-

hibits.’ ”) (quoting Garner v. Teamsters Chauffeurs & Help-

ers Local No. 776, 346 U.S. 485, 500 (1953)) (emphasis

added).

The fact that the Coast Guard did not expressly state its

intent to preempt state tort actions based on an alleged negli-

gent failure to provide propeller guards is not determinative,

3 The Solicitor General characterizes the Coast Guard letter as

merely suggesting that “at that time, the affirmative imposition of

a federal propeller guard requirement could not be justified under

the relevant statutory criteria.” U.S. Br. 27 (emphasis added).

Another way of saying this might be that a standard requiring

ller guards—achieved through a tort action, for exam-

ple—would conflict with the Act’s statutory criteria for such

design standards. See supra at 8-10. The “relevant statutory

criteria” under federal law for the imposition of safety standards

are surely not irrelevant to the preemption analysis.

16

as this Court recognized in Geier: “actual conflict,” not the

agency's express intent to preempt, is what counts. 529 US.

at 884. See U.S. Br., Geier v. American Honda Motor Co.,

No. 98-1811, at 27 n.24 (“Conflict preemption arises not

from a specific intent to preempt but from the direct opera-

tion of the Supremacy Clause, which mandates that state law

yield to federal law when they conflict. Here, because con-

flict preemption is at issue, neither a statement of preemptive

intent nor notice and comment on preemption was re-

quired.”) (emphases added and citation omitted).

2. Petitioner and the Solicitor General argue that the

agency's “considered decision to forego federal regulation,”

U.S. Br. 18, so akin to the careful balancing act performed by

the agency in Geier, nonetheless is not entitled to preemptive

effect. The Solicitor General distinguishes Geier on grounds

that that case involved “ati existing federal safety standard,”

while this case involves what the Solicitor General dubs a

“failure to regulate.” Jd. at 19. But an agency’s considered,

4 Although it did not expressly articulate preemptive intent at

the time it —— the Subcommittee’s recommendation, the Coast

Guard later acknowledged the preemptive effect of its decision not

to regulate. In a notice inviting comment on requiring rental

houseboats to carry propeller guards, the Coast Guard noted that

“States do not have the authority to establish carriage requirements

for associated equipment, such as a mechanical means for prevent-

ing propeller strikes, on vessels operated on waters where both the

Coast Guard and the State have jurisdiction.” 61 Fed. Reg. 13123,

13125 (Mar. 26, 1996).

Because the Coast Guard has previously stated that its decision

not to reguiate propeller guards preempts States from regulating

that area of design, the Solicitor General’s arguments against

preemption should be accorded far less weight. Compare eier,

529 U.S. at 883 (Court would place “some weight upon DOT’s

interpretation of FMVSS 208’s objectives and its conc usion” that

state tort suits would conflict with those objectives, particularly

where ayzency had maintained its interpretation “consistently over

time”’).

17

intentional decision not to regulate can have preemptive

effect, as this Court repeatedly has recognized.

In Arkansas Electric Cooperative Corp. v. Arkansas Public

Service Commission, 461 U.S. 375 (1983), this Court ob-

served that a “federal decision to forego regulation in a given

area may imply an authoritative determination that the area is

best left unregulated, and in that event would have as much

pre-emptive force as a decision fo regulate.” /d. at 384 (em-

phases in original) (citing NLRB v. Nash-Finch Co., 404 U.S.

at 144, and Fidelity Fed. Sav. & Loan Ass'n Vv. De la Cuesta,

458 U.S. 141, 155 (1982)). Accord Ray, 435 U.S. at 178;

Transcontinental Pipe Line Corp. v. State Oil & Gas Bd.,

474 U.S. 409, 422 (1986). As this Court explained in Ray, if

a federal agency’s “ ‘failure * * * affirmatively to exercise

[its] full authority takes on the character of a ruling that no

such regulation is appropriate or approved pursuant to the

policy of the statute,’” States may not implement laws

regulating in the same area. 435 U.S. at 178 (emphasis

added) (quoting Bethlehem Steel Co. Vv. New York State

Labor Relations Bd., 330 U.S. 767, 774 (1947)).

When it adopted the unanimous and detailed recom-

mendation of the Propeller Guard Subcommittee, the Coast

Guard made the considered decision that the policy of the

Boat Safety Act would not be served by regulating propeller

guards. That “authoritative federal determination,” Arkansas

Elec., 461 U.S. at 384, has preemptive effect.

Petitioner and the Solicitor General cite this Court’s deci-

sion in Puerto Rico Department of Consumer Affairs Vv. ISLA

Petroleum Corp., 485 U.S. 495 (1988), where the Court

explained that “deliberate federal inaction” does not always

have preemptive effect:

There is no federal pre-emption in vacuo, without a con-

stitutional text or a federal statute to assert it. Where a

comprehensive federal scheme intentionally leaves a por-

tion of the regulated field without controls, then the pre-

18

emptive inference can be drawn—not from federal inac-

tion alone, but from inaction joined with action. [J/d. at

503 (emphasis in original).

See Pet. Br. 42-43; U.S. Br. 23.

The Puerto Rico Court, however, was asked to find what

might be described as “lingering preemption:” the federal

statute on which petitioners’ preemption argument was based

had conferred authority on the federal government to regulate

the allocation and price of petroleum products, but had ex-

pired nearly five years before a State sought to regulate in the

same area. /d. at 497-498. The Court was thus asked to find

that federal preemption existed “despite, not only the absence

of a statutory provision specifically announcing it, but the

absence of any extant federal regulatory program with which

the state regulation might conflict and which might therefore

be thought to imply preemption.” /d. at 500 (emphasis

added). The Court concluded that where Congress had

“withdrawn from all substantial involvement” in the field,

and where there was no other “extant action that can create

an inference of pre-emption in an unregulated segment of an

otherwise regulated field” other than assorted pieces of legis-

lative history ungrounded in any federal statute, it would not

find a purportedly conflicting state law preempted. Jd. at

504.

This case easily clears the threshold set in Puerto Rico.

The Coast Guard’s decision not to regulate was made in the

traditionally federally-regulated field of maritime law, and

under a fully operational statute that, like other maritime

statutes, identifies uniformity of regulation as one of its

primary objectives. And it was irrefutably the Coast Guard’s

intent, when it issued its letter adopting the investigatory

subcommittee’s recommendation to “take no regulatory

action,” to leave the issue of propeller guards—that small

portion of the regulated field—without federal controls. The

Coast (juard’s letter, in fact, adopted in full the six-point

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———

19

alternative regulatory strategy proposed by its expert advi-

sory committee—a scheme emphasizing, among other things,

consumer education and increased enforcement of sale boat-

ing practices. See J.A. 40-41 (subcommittee recommenda-

tions); id. at 80 (Coast Guard letter) (“All of the report’s

recommendations are accepted” 7 ‘ “will be imple-

mented”).5

That is a far cry from the sheer lack of action (ungrounded

even in an extant federal statute) that failed to sway the Court

in Puerto Rico. Indeed, the same principle this Court articu-

lated in Boyle applies here as well: where an agency 1s regu-

lating in a uniquely federal field, its deliberate conclusion

that it will not impose requirements on a portion of that field

has preemptive force—even if, in a field traditionally occu-

pied by the States, more might be required from the agency

to demonstrate sufficient intent to preempt.

Petitioner suggests that if preemption is found here, then

“any federal decision not to regulate” may be grounds for

preemption. Pet. Br. 48 (emphasis in original). That is not

so, for the same reasons this Court explained in Puerto Rico.

485 U.S. at 503. Courts have also consistently identified a

difference between the Coast Guard’s well-documented

decision not to regulate in this case and the mere absence of

regulation in other circumstances. In Stanley v. Bertram-

5 The Coast Guard’s approval of an alternative regulatory ap-

proach to requiring propeller guards is similar to the approach the

age~cy took—and which was found to have preemptive effect—in

Ray, 435 U.S. at 174. There, rather than issuing a regulation

imposing size limits on tanker ships traversing Puget Sound—as it

had authority to do—the Coast Guard instead implemented a

navigation rule limiting passage in the sound to one tanker at a

time if the ships exceeded a specified weight. Jd. This Court

concluded that a state law prohibiting tankers of a certain size from

passing through the strait was preempted by the Coast Guard’s

alternative regulatory scheme. /d. at 175. So too here: the Coast

Guard’s decision not to require oy guards, and its implemen-

tation of an alternative safety sc , has preemptive force.

20

Trojan Inc., 855 F. Supp. 657 (S.D.N.Y. 1994), for example,

the district court allowed a tort action for a negligently de-

signed boat hatch to proceed. The court observed that the

“critical difference” distinguishing that case from the propel-

ler guard cases “is that propeller guards specifically were

considered by the Coast Guard as a subject of regulation and

were found not feasible because they may increase danger

rather than reduce it.” Jd. at 658. Similarly, in LaPlante v.

Wellcraft Marine Corp., 114 Cal. Rptr. 2d 196, 205 (Cal. Ct.

App. 2001), review denied (2002), the court of appeals al-

lowed a state tort action based on failure to provide hand-

holds, contrasting the scant evidence of the Coast Guard’s

consideration of that issue with the “thorough record that a

conscious and intentional determination was made by the

Coast Guard that boats should not be required to have propel-

ler guards.” See also Becker v. U.S. Marine Co., 943 P.2d

700, 705 (Wash. Ct. App. 1997) (propeller guard preemption

cases “represent a special situation where there is proof of the

Coast Guard’s considered decision not to regulate;” in con-

trast, Coast Guard has not “formally considered, evaluated,

and rejected regulation of bow seating design”), review

denied, 958 P.2d 313 (Wash. 1998).

Petitioner also argues that this case is “markedly similar” to

Freightliner Corp. v. Myrick, 514 U.S. 280 (1995), where

this Court concluded that a state tort suit was not preempted

by the federal highway safety regulatory scheme. Pet. Br. 45.

The statutory preemption provision at issue in Freightliner

provided that “ ‘[w]henever a Federal motor vehicle safety

standard * * * is in effect,’” all state safety standards not

identical to the federal standard were preempted. /d. at 284

(quoting 15 U.S.C. § 1392(d)) (emphasis added). The Na-

tional Highway Traffic Safety Administration promulgated a

vehicular safety standard that required trucks and trailers to

be equipped with antilock braking systems (ABS). A court

of appeals vacated the standard, finding that the agency had

not supported it with sufficient evidence. This Court con-

cluded that state tort suits based on tractor-trailers’ failure to

aia a Re ‘ -

RATNER A Sg EA

pie

21

employ ABS were not expressly preempted, because no

applicable federal safety standards were then “in effect.” 514

U.S. at 286. Nor, it concluded, were such suits preempted

because of a conflict between the agency’s intent not to

regulate and state law: the “lack of a federal regulation did

not result from an affirmative decision of agency officials to

refrain from regulating air brakes,” but from a court’s direc-

tive. /d. at 286.

This case is completely different. Here the Coast Guard

did make “an affirmative decision * * * to refrain” from

regulating propeller guards, giving rise to a conflict between

its stated intent not to impose propeller guard standards and

state tort suits seeking to impose those same standards.

Freightliner, 514 U.S. at 286. In Freightliner, the federal

agency was ¢rying to require just what the state tort suits also

sought: that tractor-trailers have ABS brakes.

Petitioner's amicus ATLA describes this case as “analo-

gous” to the preemption issue this Court recently addressed

in Chao v. Mallard Bay Drilling Co., 122 S. Ct. 738 (2002).

See ATLA Br. 28-29. It is not. The statute at issue in Chao,

part of the Occupational Safety and Health Act, required

employers to comply with safety standards promulgated by

the Secretary of Labor, except that “ ‘[nJothing in thie Act]

shall apply to working conditions of employees with respect

to which other Federal agencies * * * exercise statutory

authority to prescribe.or_enforce standards or regulations

affecting occupational safety and health.’” 122 S. Ct. at 742

(quoting 29 U.S.C. § 653(b)(1)) (emphasis added). This

Court concluded that the use of the word “exercise” in that

statutory provision demonstrated that “mere possession by

another federal agency of unexercised authority to regulate

certain working conditions is insufficient to displace OSHA’s

jurisdiction;” rather, the other agency must have issued regu-

lations with respect to the same working conditions. 122

S. Ct. at 743. Because the Coast Guard in Chao had not

issued regulations pertaining to the working conditions at

22

issue in that case, this Court found OSHA’s jurisdiction not

preempted. /d.

From this statute-specific holding, ATLA extracts the gen-

eral notion that when the Coast Guard “fail[s] to exercise its

regulatory authority,” its failure to act cannot have preemp-

tive effect. ATLA Br. 28. But while the same agency was

involved in that case and this one, the similarities stop there.

The statutory schemes operating in each case are completely

different: most notably, the Coast Guard has sole, not con-

tingent, federal jurisdiction over boat safety standards. Fur-

ther, as even the Solicitor General recognizes, under the Boat

Safety Act state statutes or regulations imposing boat safety

requirements are preempted even when the Coast Guard has

yet to regulate affirmatively in the area. See U.S. Br. at 11-

12 (“unless and until the agency has promulgated a safety

standard dealing with a particular matter,” the Boat Safety

Act “categorically precludes the States from adopting such a

requirement by statute or regulation”). And the Coast Guard

did not in any event “fail to exercise its regulatory authority;”

it affirmatively declared that it would not require propeller

guards. See U.S. Br., Chao v. Mallard Bay Drilling Co., No.

00-927, at 18 (agency may “exercise” regulatory authority

either by “promulgating standards or regulations” or by

“articulating a policy that existing regulation is sufficient and

that no additional requirements are warranted”).

The Petitioner and the Solicitor General both suggest that

the Coast Guard’s conclusion that it would “take no regula-

tory action” to require propeller guards was not formal

enough because interested parties were not provided an

opportunity to challenge the Coast Guard’s decision. See

Pet. Br. 36; cf. id. at 48; U.S. Br. 25-26. But that argument is

neither correct on the law nor accurate on the facts. This

Court has never suggested that an affirmative decision not to

regulate must be subject to notice-and-comment rulemaking.

See Geier, 529 U.S. at 885; U.S. Br. in Geier, No. 98-1811,

at 27 n.24 (“because conflict preemption is at issue, neither a

‘

¢

Hi

t

’

. 23

statement of preemptive intent nor notice and comment on

preemption was required”).® In addition, the Coast Guard

took up the issue of propeller guards after petitions were filed

requesting that the Coast Guard require such devices. See,

e.g., JA. 18; 5 U.S.C. § 553(e) (“Each agency shall give an

interested person the right to petition for the issuance,

amendment, or repeal of a rule.”). When the Coast Guard

adopted the Subcommittee’s recommendations and con-

cluded that it would “take no regulatory action” to require

propeller guards, its conclusion amounted to the denial of the

petitions for rulemaking. That was an appealable decision.

See Fox Television Stations, Inc. v. FCC, 280 F.3d 1027,

1037 (D.C. Cir. 2002); American Horse Protection Ass'n v.

Lyng, 812 F.2d 1, 4 (D.C. Cir. 1987) (denial of petition for

rulemaking is final agency action reviewable by an appellate

court).

D. Petitioner’s “Federalism” Concerns Are Misplaced.

As did petitioners and their amici in Geier, petitioner and

his amici cast their argument as an appeal to the concept of

“federalism.” See Pet. Br. 2, 47; ATLA Br. 12; see also Pet.

Br., Geier, No. 98-1811, at 17 (“This case is about federalism

and the separation of powers.”); ATLA Br., Geier, No. 98-

1811, at 27-28 (“due regard for federalism counsels against

© Far less formal proceedings than this detailed inquiry have led

to a finding of preemption. In American Public Health Associa-

tion v. Butz, 511 F.2d 331, 333-334 (D.C. Cir. 1974), for example,

the court of appeals described the process by which the Depart-

ment of Agriculture concluded that it would not regulate inspec-

tion for salmonella and other bacterial agents: the Department in

private letters declined petitioners’ request that it regulate such

- agents, and reiterated its position in a private meeting with peti-

tioners. The court in Boulahanis v. Prevo’s Family Market, Inc.,

583 N.W.2d 509, 512 (Mich. Ct. App. 1998), cert. denied, 520

U.S. 1203 (2000), concluded that those actions constituted an

“intentional decision” not to require inspection for E. coli bacteria

under the Federal Meat Inspection Act, and that the plaintiffs’ tort

action for failure to inspect meat for E. coli was preempted.

24

eliminating tort actions on the basis of obstacle preemption”).

According to petitioner, States should be “free to do as they

choose” in the area of boat safety if the Coast Guard has

failed to issue controlling regulations on point, Pet. Br. 34,

and any contrary holding would “seriously encroach on ‘the

constitutional role of the States as sovereign entities’ ” and

“strip[] [them] of their power to protect and compensate their

citizens.” Jd. at 47, 49.

Petitioner forgets the maritime field in which this case

arises. In this field, the federal government’s interest holds

sway over notions of state sovereignty; preserving the pri-

macy of the government’s interest in uniform boat safety

standards does nothing to “encroach” on States’ traditional

sovereignty rights. The Coast Guard and its expert advisory

committee concluded that propeller guards could cause far

more problems than they solved and were prohibitively

expensive. Yet according to petitioner, lay juries in every

State should be able to reexamine the same issue and force

manufacturers to implement new-fangled, controversial, and

potentially dangerous equipment changes that the expert

agency expressly concluded were not required. That does not

compoit with Congress’s consistent intent to regulate mari-

time issues according to central, unified standards, articulated

and implemented by the federal government.

Tort judgments, moreover, affect manufacturers far beyond

the jurisdiction in which they arise; such verdicts drive

manufacturing changes across the national market.’ Cf

7 In this case in particular, a tort liability verdict would present

manufacturers with two particularly undesirable options. They

could opt to tailor their product specifications to the standard set

by Illinois—lest they face certain liability in Illinois or States that

follow its lead. See Geier, 529 U.S. at 881. But if they include

propeller on their products and those guards cause harm,

they will face liability for negligent design of those motors—and

the Propeller Guard Subcommittee’s a 4" detailing the

dangers of such products will be submitted as ibit A in that

proceeding.

25

ATLA Br. 3 (tort suits that “requir[e] manufacturers to bear

the cost of harms caused by unreasonably dangerous products

* * * leavie] decisions regarding safety to private parties

responding to market forces”); id. at 15-16 (tort suits “pro-

vide market incentives for manufacturers to invest in

safety”). State juries that articulate stringent design stan-

dards essentially dictate standards across the country; manu-

facturers may not risk designing products to anything other

than that highest common denominator. That is not “federal-

ism” at work; it is an affront to maritime law and to free

commerce. Congress expressly stated that the field of boat

equipment design should be governed by uniform standards;

it preempted the field of boat safety design; it established an

intricate and specialized network of experts to set those

standards; and it did all that in the indisputably federal mari-

time field. The Coast Guard’s decision not to regulate pro-

peller guards, in light of the statute, Congress’s purpose, and

the goals of federal maritime law, preempts this tort case.

26

CONCLUSION

For the foregoing reasons, the judgment of the Illinois Su-

preme Court should be affirmed.

Respectfully submitted,

ROBIN S. CONRAD JOHN G. ROBERTS, JR.*

NATIONAL CHAMBER CATHERINE E. STETSON

LITIGATION CENTER, INC. HOGAN & HARTSON L.L.P.

1615 H Street, N.W. 555 Thirteenth Street, N.W.

Washington, D.C. 20062 Washington, D.C. 20004

(202) 463-5337 (202) 637-5810

* Counsel of Record Counsel for Amicus Curiae