Whether regulations adopted by the State of Washington governing staffingand operation of ocean-going oil tankers engaged in coastal and internationalcommerce are preempted to the extent that they conflict with internationalobligations of the United States and Coast Guard regulations for such tankerspromulgated pursuant to federal statutes and international conventions andagreements, and interfere with the accomplishment of federal objectivesconcerning tanker safety.

The petitioner in this proceeding is the United States of America, whichintervened in the case below. The case was originally brought by the InternationalAssociation of Independent Tanker Owners (Intertanko) against various WashingtonState officials responsible for the promulgation and enforcement of theWashington regulations at issue here. Those officials are: Gary Locke, Governorof the State of Washington; Christine O. Gregoire, Attorney General of theState of Washington; Barbara J. Herman, Administrator of the State of Washington,Office of Marine Safety, was succeeded by Tom Fitzsimmons, Director, WashingtonState Department of Ecology, when the Office of Marine Safety was mergedinto the Department of Ecology; David MacEachern, Prosecutor of WhatcomCounty; K. Carl Long, Prosecutor of Skagit County; James H. Krider, Prosecutorof Snohomish County; and Norman Maleng, Prosecutor of King County. The NaturalResources Defense Council, Washington Environmental Council, and Ocean Advocatesintervened in the district court.

The opinion of the court of appeals (Pet. App. 1a-35a) is reported at 148F.3d 1053. The court's order denying rehearing (Pet. App. 36a-54a) is reportedat 159 F.3d 1220. The opinion of the district court (Pet. App. 55a-89a)is reported at 947 F. Supp. 1484.

The judgment of the court of appeals was entered on June 18, 1998. A petitionfor rehearing was denied on November 24, 1998. On February 12, 1999, JusticeO'Connor extended the time in which to file a petition for a writ of certiorarito and including March 24, 1999, and, on March 15, 1999, further extendedthe time in which to file to and including April 23, 1999. The petitionwas filed on April 23, 1999, and granted on September 10, 1999. The jurisdictionof this Court is invoked under 28 U.S.C. 1254(1).

Pertinent provisions of the United States Constitution, Ports and WaterwaysSafety Act of 1972, Port and Tanker Safety Act of 1978, Oil Pollution Actof 1990, Coast Guard regulations, and Washington state regulations are setforth in the Petition Appendix, at 90a-117a. A compendium of pertinent statutes,treaties, and regulations has been lodged with the Clerk of this Court andserved on the parties.

This case concerns the validity of a regulatory scheme adopted by the Stateof Washington that seeks to govern the design, equipping, staffing, personnelqualifications, and operation of oil tankers engaged in interstate and internationalcommerce. The Washington regulations, which apply to all ships (includingforeign-flag vessels) that transport oil through United States territorialwaters within the State of Washington, differ in numerous respects fromthe comprehensive national and international standards developed for thesame purpose. Those standards exist in international conventions formallyratified by the United States, other agreements with foreign nations, variousActs of Congress, and implementing regulations promulgated by the Secretaryof Transportation through the Coast Guard. The federal framework of tankerregulation was previously considered by this Court in Ray v. Atlantic RichfieldCo., 435 U.S. 151 (1978), although the particulars of that framework havebeen modified and strengthened in a number of respects during the intervening21 years.

1. a. The United States, through the Coast Guard and other federal agencies(such as the Departments of State and Defense, the Environmental ProtectionAgency, and the National Oceanic and Atmospheric Administration), is a leaderin the development of international standards establishing uniform requirementsfor oil tankers, as well as other vessels. Those standards serve to promotevessel safety, protect the marine environment, and facilitate internationalmaritime commerce. See S. Treaty Doc. No. 39, 103d Cong., 2d Sess., at III(1994) ("The United States has basic and enduring national interestsin the oceans and has consistently taken the view that the full range ofthese interests is best protected through a widely accepted internationalframework governing uses of the sea."). The international regime, embodiedin numerous agreements ratified by the United States, depends upon the principleof reciprocity: all parties are assured of a ship's compliance with internationalstandards through the certification of the ship by the government of itsown flag nation, and that certification is then respected by the other parties,including the United States, to permit vessels with certificates to enterthe ports of parties and thus to allow for the uninterrupted flow of internationalmaritime traffic.1

Over the years, Congress has enacted a series of statutes that provide forthe establishment of federal standards in a wide range of subjects affectingshipping in waters subject to United States jurisdiction. Although thosestatutes adopt standards to govern maritime commerce among the States, theyalso furnish a means to implement the United States' treaty obligations,codify in domestic law the international system of tanker regulation, andconfirm the United States' leadership in developing international rulesfor tanker safety. See, e.g., H.R. Rep. No. 1384, 95th Cong., 2d Sess. Pt.1, at 6-9 (1978). Many of the statutory provisions in turn direct the Secretaryof Transportation (who has delegated that authority to the Coast Guard,49 C.F.R. 1.46(b) and (c)), to establish the applicable standards.

The pertinent statutory provisions are codified in two different Titlesof the United States Code. Title 46 of the Code establishes a comprehensiveregulatory framework for ships in the navigable waters of the United States,addressing such subjects as "Inspection and Regulation of Vessels"(Pt. B, 46 U.S.C. 3101 et seq.), "Marine Casualties" (Pt. D, 46U.S.C. 6101 et seq.), "Merchant Seamen Licenses, Certificates, andDocuments" (Pt. E, 46 U.S.C. 7101 et seq.), and "Manning of Vessels"(Pt. F, 46 U.S.C. 8101 et seq.).2 Chapter 37 of Title 46 contains a recodificationof Title II of the Ports and Waterways Safety Act of 1972 (PWSA), Pub. L.No. 92-340, 86 Stat. 427,3 as amended by the Port and Tanker Safety Actof 1978 (PTSA), Pub. L. No. 95-474, § 5, 92 Stat. 1480, and subsequentActs of Congress. Section 3703(a) of Title 46 provides that "[t]heSecretary shall prescribe regulations for the design, construction, alteration,repair, maintenance, operation, equipping, personnel qualification, andmanning" of tank vessels "that may be necessary for increasedprotection against hazards to life and property, for navigation and vesselsafety, and for enhanced protection of the marine environment." Seegenerally 46 U.S.C. 3703(a)(1)-(7). In developing those standards, the Secretarymust consult with and consider the views of, inter alia, interested federalagencies, "officials of State and local governments," and "representativesof environmental groups." 46 U.S.C. 3703(c). A tank vessel of the UnitedStates must have a certificate of inspection issued by the Secretary endorsedto indicate that the vessel complies with the regulations issued under Chapter37. See 46 U.S.C. 3710(a). Consistent with the role those regulations playin implementing the international regime, however, Congress has providedthat, with respect to foreign-flag tank vessels, the Secretary may accepta certificate issued by the government of a foreign country under a treaty,convention, or other international agreement to which the United Statesis a party, as a basis for issuing a certificate of compliance with federalstandards. 46 U.S.C. 3711(a).

The other set of statutory provisions primarily relevant to this case isin Title 33 of the United States Code (entitled "Navigation and NavigableWaters"), in its Chapter 25, 33 U.S.C. 1221 et seq. (entitled "Portsand Waterways Safety Program"). That Chapter contains Title I of thePWSA, 86 Stat. 424, as amended by the PTSA, § 2, 92 Stat. 1471, andsubsequent Acts of Congress. Section 1223 of Title 33 provides that theSecretary (1) "may construct, operate, maintain, improve, or expandvessel traffic services"; (2) "shall require" appropriatevessels to comply with any such service; (3) "may require vessels toinstall and utilize" navigation and other equipment that is "necessaryto comply with a vessel traffic service"; (4) "may control vesseltraffic in areas subject to the jurisdiction of the United States whichthe Secretary determines to be hazardous," by specifying times of entryor departure, establishing vessel traffic routing schemes, establishingvessel size, speed, draft limitations and operating conditions, and restrictingoperations to vessels having certain operating capabilities; and (5) "mayrequire the receipt of prearrival messages from any vessel" in sufficienttime to permit advance traffic planning prior to port entry. 33 U.S.C. 1223(a)(1)-(5)(1994 & Supp. 1997).

Unlike 46 U.S.C. 3703(a), under which the Secretary "must issue"all regulations on the specified subjects under Title II of the PWSA thathe deems necessary to ensure tank vessel safety and protect the marine environment,Ray, 435 U.S. at 165, Section 1223 of Title 33 "merely authorizes anddoes not require" the Secretary to issue regulations under Title Iof the PWSA to govern traffic at local ports and related matters, id. at171. In deciding whether to issue regulations and what form they shouldtake, the Secretary must "take into account all relevant factors concerningnavigation and vessel safety and protection of the marine environment."33 U.S.C. 1224(a). The procedures the Secretary must follow in issuing regulationsare similar to those under 46 U.S.C. 3703 discussed above. See 33 U.S.C.1231(b). The Secretary is authorized to bar from operation on the navigablewaters or in any port of the United States any vessel that fails to complywith regulations under those provisions, under Chapter 37 of Title 46, "orunder any other applicable law or treaty." 33 U.S.C. 1228(a)(2).

b. Because the United States is a "flag state" (meaning that itis responsible for developing standards and regulations for ships flyingthe U.S. flag), a "port state" (meaning that U.S. ports receivecargo, and oil in particular, arriving on foreign-flag vessels), and a "coastalstate" (meaning that foreign flag vessels navigate through U.S. coastalwaters without entering its ports), the United States has a substantialinterest in ensuring that all vessels that transit its waters, particularlyforeign-flag vessels, comply with comprehensive safety and environmentalprotection standards.

For example, the International Convention for the Safety of Life at Sea(SOLAS), to which the United States became a party on November 1, 1974,32 U.S.T. 47, sets standards to promote safe operations of vessels at sea.The SOLAS Convention establishes that every ship, when in a port of anothersignatory nation, is "subject to control by officers duly authorizedby [the port nation] Government in so far as this control is directed towardsverifying that the certificates issued under [the Convention] are valid."Annex, Ch. I, Pt. B, Reg. 19(a), Int'l Maritime Org., Doc. Sales No. IMO-110E(1997). But the SOLAS Convention, like other conventions at issue in thiscase (see note 5, infra), requires port nations to accept valid certificates(issued by the flag nation government) unless there are clear grounds forbelieving that the condition of the ship or its equipment does not correspondsubstantially with the conditions for which the certificate was issued.Id. Reg. 19(b). If control is improperly exercised and a ship is undulydetained or delayed, the port nation government is responsible for compensationfor any loss or damage suffered by the ship. Id. Reg. 19(f). Chapter I ofthe SOLAS Convention provides that foreign ships are subject to controlonly by officers duly authorized by the national government that is thesignatory to the Convention. Pursuant to Executive Order No. 12,234 (see3 C.F.R. 277 (1981)), which implements the SOLAS Convention, and the CoastGuard Authorization Act of 1996, Pub. L. No. 104-324, § 602, 110 Stat.3927, Coast Guard personnel are the duly authorized officers who may subjectforeign vessels to control in United States ports under that Convention.See also 33 U.S.C. 1903(a), 1904 (1994 & Supp. III 1997) (same for MARPOL);46 U.S.C. 3205 (Supp. III 1997) (ISM Code), 8304 (same for STCW throughOfficers' Competency Certificates Convention). Officials of Washington andother States are not. By June 1999, 139 nations, representing more than98% of the world's shipping, had become parties to SOLAS. See IMO TreatyRatification Tabulation table at <http://www.imo.org/imo/convent/summary.htm>.

The United States also has ratified the International Convention for thePrevention of Pollution from Ships (MARPOL 73/78) and all four of the MARPOLAnnexes currently in force, and has implemented their provisions through,inter alia, the statutory provisions discussed above (see pp. 5-7, supra)and regulations issued under them.4 More than 90 countries, representingmore than three-quarters of world shipping, are parties to the four MARPOLannexes that are in force. See IMO Treaty Ratification Tabulation table,supra. The International Convention on Standards of Training, Certificationand Watchkeeping for Seafarers (STCW Convention), which promotes the safetyof life at sea and the protection of the marine environment by establishingcommon rules for the training, certification, and watchkeeping for seafarers,is in force for 133 nations representing more than 98% of world shipping.Ibid. The United States became a party to the STCW Convention in 1991 (137Cong. Rec. S5731 (daily ed. May 14, 1991); U.S. Dep't of State, Treatiesin Force: A List of Treaties and Other International Agreements of the UnitedStates in Force on January 1, 1999, at 417 (1999)), and has accepted the1995 amendments to that Convention (Status of Multilateral Conventions andInstruments in Respect of Which the International Maritime Organizationor Its Secretary-General Performs Depositary or Other Functions as at 31December 1998, Int'l Maritime Org., Doc. Sales No. J/7031, at 287-288; 62Fed. Reg. 34,506 (1997)).5 International agreements and the federal statutoryand regulatory framework with which they are integrated thus provide fora broad range of standards governing vessels, including design, equipment,construction, manning, personnel qualification, safety management, and operations.

c. In Ray v. Atlantic Richfield Co., 435 U.S. 151 (1978), this Court addressedwhether Washington State regulations applicable to tankers were preemptedby various provisions of federal law, specifically including Title II ofthe PWSA and regulations issued under Title I of that Act, both of whichare applicable in this case as well. In holding that the State's attemptsto regulate the design and construction of oil tankers were preempted, theCourt concluded that, in Title II of the PWSA, 46 U.S.C. 391a (Supp. V 1975)(now codified as amended at 46 U.S.C. 3701 et seq.), Congress "hasentrusted to the Secretary [of Transportation] the duty of determining whichoil tankers are sufficiently safe to be allowed to proceed in the navigablewaters of the United States," and thereby "intended uniform standardsfor design and construction of tankers that would foreclose the impositionof different or more stringent state requirements." 435 U.S. at 163.The Court further noted that "Congress expressed a preference for internationalaction and expressly anticipated that foreign vessels would or could beconsidered sufficiently safe for certification by the Secretary if theysatisfied the requirements arrived at by treaty or convention." Id.at 168.

With respect to operations in local waters, however, the Court concludedthat Washington's regulations were not automatically preempted by TitleI of the PWSA, 33 U.S.C. 1221-1227 (Supp. V 1975), in the absence of regulationsissued under that Title addressing the same subject matter. 435 U.S. at171. The Court emphasized, however, that if the Coast Guard adopts regulatoryrequirements governing a particular subject (or concludes that no such requirementsshould be adopted at all), the state rules would be preempted. Id. at 171-172;see id. at 173-178 (invalidating Washington statute excluding from PugetSound all tankers in excess of 125,000 deadweight tons because it differedfrom a Coast Guard rule). The Court explained that, under Title I of thePWSA, Congress desired that a federal official with an overview of all possibleramifications would promulgate regulations after "balancing all ofthe competing interests." Id. at 177.

d. After the Exxon Valdez oil spill in Alaska in 1989, Congress enactedthe Oil Pollution Act of 1990 (OPA), Pub. L. No. 101-380, 104 Stat. 484.Title I of OPA sets federal standards for liability and compensation forthe discharge of oil into navigable waters of the United States. 104 Stat.486-508. Subtitle A of Title IV of OPA-which concerns oil-spill prevention-addressescertain discrete issues relating to tanker personnel qualifications, manning,operations, design, and construction, and it does so in part by strengthening(or directing the exercise of) certain powers the Secretary already hadunder prior law. See 104 Stat. 509-523. With one exception, Subtitle A ofOPA is consistent with international standards. See n.19, infra.

e. In 1994, pursuant to Washington Revised Code Chapter 88.46, Washingtonadopted a set of new regulatory requirements, which it called "BestAchievable Protection" (BAP) Regulations. See Wash. Admin. Code §§317-21-020 et seq. (1996). Those rules were designed to impose more stringentsafety requirements on tankers, and thereby prevent oil spills. In pertinentpart, the state rules require installation of specified navigational andemergency towing equipment; impose reporting requirements for certain vesselcasualties regardless of whether they occur in Washington waters; mandateparticular language-proficiency requirements and personnel qualificationsfor vessel officers and crews; establish maximum crew work hours; set drug-testingpolicies; and impose position- monitoring requirements. See Pet. App. 57a-60a(describing the provisions). Washington's regulations differ from the internationaland federal regulatory regime in numerous ways. See pp. 33-41, infra. Failureto comply with the Washington BAP rules subjects a violator to statutorypenalties and a prohibition on entry to port. Wash. Rev. Code §§88.46.070, 88.46.080, 88.46.090 (1996).

2. The International Association of Independent Tanker Owners (Intertanko)brought this suit for declaratory and injunctive relief against Washingtonstate and local officials responsible for enforcing the BAP regulations.The district court granted Washington's motion for summary judgment anddenied Intertanko's motion. Pet. App. 55a-89a. The district court recognizedthat "[a]lthough protection of the marine environment has historicallybeen within the reach of the police powers of the state, shipping has traditionallybeen governed by federal law." Id. at 61a. The court also had "nodoubt 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 federalstatutes, regulations and treaty obligations." Id. at 69a. The courtnevertheless sustained all of the Washington regulations.

The court relied principally on Section 1018(a) and (c) of OPA, which providesthat "[n]othing in this Act" shall affect or preempt the authorityof a State to impose "any additional liability or requirements withrespect to * * * the discharge of oil or other pollution by oil within suchState" or "additional liability or additional requirements * ** relating to the discharge, or substantial threat of a discharge, of oil."33 U.S.C. 2718(a) and (c). The court concluded that, since Title IV of OPAcontains some provisions addressing tanker operations, personnel management,technology, and information reporting, the effect of Section 1018 is thatthere is no preemption of any state laws that are inconsistent with thefederal regulatory regime, even though that regime rests on Acts of Congressother than OPA. Pet. App. 69a.6

3. The United States intervened after Intertanko appealed the district court'sdecision to the Ninth Circuit. The Ninth Circuit affirmed in part and reversedin part. Pet. App. 1a-35a. The court held that several Washington regulationsrequiring tank vessels to have certain navigation and towing equipment arepreempted, id. at 26a-29a, but that state regulations imposing requirementswith respect to staffing, personnel training, qualifications, and operationof tank vessels are not preempted, even where they depart from standardsin international agreements and Coast Guard regulations, id. at 7a-25a.

Like the district court, the court of appeals relied primarily on Section1018 of OPA. The court of appeals recognized that OPA is not the only federalstatute that regulates tanker vessels, noting that the PWSA, the PTSA, andthe Tank Vessel Act of 1936 do so as well. Pet. App. 11a. And the courtof appeals rejected Washington's contention that Section 1018 of OPA, whichprovides that "this Act" shall not have preemptive effect, alsoapplies to those other federal statutes. The court found that interpretationinconsistent with the "plain language" of Section 1018. Ibid.The court nevertheless held that the Washington regulations governing staffing,personnel training and qualifications, and operation of tank vessels arenot preempted by Coast Guard regulations issued under those other federalstatutes. Id. at 13a-19a. The court reasoned that OPA, "[a]s the mostrecent federal statute in the field, * * * reflects the full purposes andobjectives of Congress better than [the other statutes governing tankers],all of which [OPA] was designed to complement." Id. at 16a (internalquotation marks, citation, and emphasis omitted).

The court of appeals also rejected petitioners' contention that the challengedstate rules are invalid because they conflict with various internationalagreements governing tankers. The court found that Congress had not embracedstrict international uniformity because the relevant treaties set only minimumstandards, and each signatory nation can impose higher standards. Pet. App.17a-18a. Finally, the court of appeals concluded that Coast Guard tankerregulations do not preempt Washington's BAP rules even where the Coast Guardhas expressed an intent to preempt such rules. Id. at 29a-32a. The courtheld that "Congress did not explicitly or impliedly delegate to theCoast Guard the authority to preempt state law." Id. at 31a. The courtagain relied on Section 1018 of OPA, reasoning that in view of Congress'sunwillingness to preempt state oil-spill prevention efforts on its own inOPA, it was "implausible" to conclude that Congress intended todelegate power to the Coast Guard to do so. Id. at 31a-32a.7

4. The court denied petitions for rehearing filed by the United States andby Intertanko. Pet. App. 36a-37a. Judge Graber dissented. Id. at 37a-54a.In her view, the court's reliance on Section 1018 of the OPA was misplaced,because that Section is limited to liability and compensation for oil spills,and does not apply to preventive measures. Id. at 51a. Judge Graber alsoconcluded that the court had erred in holding that Congress must specificallyhave intended to give the Coast Guard power to preempt state regulatoryschemes. Id. at 52a-54a.

Under a proper analysis, a court would examine the State's regime on a regulation-by-regulationbasis to determine whether the rule (1) encroached on a field occupied byfederal law, or (2) conflicted with an existing federal standard duly adoptedpursuant to an Act of Congress, international agreement, or federal regulation.The Ninth Circuit did not conduct such an analysis, instead upholding allof the state rules still at issue in this litigation on the erroneous theorythat Section 1018 of the Oil Pollution Act of 1990 was intended to divestthe Coast Guard of its authority, confirmed in Ray, to promulgate preemptiveregulations under other federal statutes. The court's reasoning, however,is inconsistent with the plain language of Section 1018 and the preemptivereach of federal law recognized in Ray. The Ninth Circuit's decision alsoundermines important principles of reciprocity in the many internationalagreements concerning vessels to which the United States is a party.

First, Congress can define explicitly the extent to which its enactmentspre-empt state law. * * * Second, in the absence of explicit statutory language,state law is pre-empted where it regulates conduct in a field that Congressintended the Federal Government to occupy exclusively. * * * Finally, statelaw is pre-empted to the extent that it actually conflicts with federallaw. Thus, the Court has found pre-emption where it is impossible for aprivate party to comply with both state and federal requirements or wherestate law "stands as an obstacle to the accomplishment and executionof the full purposes and objectives of Congress."

English v. General Elec. Co., 496 U.S. 72, 78-79 (1990) (citation omitted);see also Ray v. Atlantic Richfield Co., 435 U.S. 151, 157-158 (1978).

This case raises the issue whether a complex regime of federal rules-embodiedin international treaties and agreements, federal statutes, and federalregulations- preempts rules promulgated by the State of Washington concerningthe international and interstate tanker industry. In Ray, the Court heldthat aspects of that regime preempt certain fields of tanker regulations,and it addressed the design and construction rules for such vessels involvedin that case. 435 U.S. at 161-168. Other aspects of the federal regime,the Court held, preempt state law only if the Coast Guard has issued a regulationaddressing the same subject or decided that no standard should be establishedat all. Id. at 171-172. In this case, the Ninth Circuit held that all butone of the challenged Washington rules are categorically not preempted-evenwhere the subject matter is one that is subject to the same sort of uniformnational regulation under Title II of the PWSA as were tanker design andconstruction in Ray, or where there is a Coast Guard regulation under TitleI of the PWSA addressing the same subject. That ruling cannot be reconciledwith the long history of paramount federal regulation of maritime commerce;with the comprehensive framework of federal treaties, statutes, and regulationsthat now govern that commerce; and with this Court's decision in Ray.

A. The National Government Historically Has Exercised The Preeminent AndPreemptive Role In Regulating International And Interstate Shipping

1 The Framers of the Constitution recognized the need for the National Governmentto exercise paramount authority in regulating international and interstatenavigation. Writing in Federalist No. 64, John Jay observed that "[t]hereare few who will not admit that the affairs of trade and navigation shouldbe regulated by a system cautiously formed and steadily pursued; and thatboth our treaties and our laws should correspond with and be made to promoteit." The Federalist Papers 392 (Clinton Rossiter ed., 1961). That statementreflected the disastrous experience under the Articles of Confederation,in which States could cause demonstrable harm to the country by individuallyabrogating treaties. Thus, as James Madison argued to the ConstitutionalConvention in favor of a strong national authority to conduct foreign relations:

The tendency of the States to these violations [of treaties] has been manifestedin sundry instances. The files of Cong[ress] contain complaints already,from almost every nation with which treaties have been formed. Hithertoindulgence has been shewn to us. This can not be the permanent dispositionof foreign nations. A rupture with other powers is among the greatest ofnational calamities. It ought therefore to be effectually provided thatno part of a nation shall have it in its power to bring them on the whole.The existing Confederacy does not sufficiently provide against this evil.

J. Madison, Notes of Debates in the Federal Convention of 1787, at 142 (OhioUniv. Press ed. 1966). In Federalist No. 44, Madison similarly noted thedanger of States being permitted to act independently on matters that interferewith the foreign relations of the Nation, "and hence the Union be discreditedand embroiled by the indiscretion of a single member." The FederalistPapers, supra, at 282. Accordingly, "[t]he restraint on the power ofthe States over imports and exports is enforced by all the arguments whichprove the necessity of submitting the regulation of trade to the federalcouncils." Id. at 283. Those concerns were no less present if Stateshad the power to exercise "arbitrary and vexatious powers" overinterstate navigation, a result Alexander Hamilton described as "intolerablein a free country." Federalist No. 12, id. at 94.

2. Beginning with the First Congress in 1789, Congress has enacted legislationto set federal vessel standards. The first such law established a schemeof federal registration, with the holder of a vessel certificate being "entitledto the benefits granted by any law of the United States, to ships or vesselsof the descriptions aforesaid." Act of Sept. 1, 1789, ch. 11, §1, 1 Stat. 55. Soon thereafter, Congress imposed more stringent conditionson the requirements a vessel must meet to obtain a federal license. SeeAct of Dec. 31, 1792, ch. 1, 1 Stat. 287; Act of Feb. 18, 1793, ch. 8, 1Stat. 305. The advent of steamships brought an extension of the federallicensing requirement for such vessels, Act of Mar. 12, 1812, ch. 40, 2Stat. 694; Act of Mar. 3, 1825, ch. 99, 4 Stat. 129, as well as increasingconcerns for the safety of passengers and crew members, which Congress perceivedrequired further federal regulation, see Act of July 7, 1838, ch. 191, 5Stat. 304. The 1838 Act authorized federal inspectors to assess the seaworthinessof the hull and the workability of the boiler and other machinery on steamvessels, and to confer a license only on those vessels that met the requisitestandards. §§ 4, 5, 5 Stat. 305; see also Act of June 28, 1838,ch. 147, 5 Stat. 252.

In 1843, Congress imposed further equipment standards on federally-licensedsteamboats by requiring that inspectors be assured that the vessel containedappropriate steering mechanisms. Act of Mar. 3, 1843, ch. 94, 5 Stat. 626.Six years later, Congress imposed operational rules for vessels navigatingthe "northern and western lakes." Act of Mar. 3, 1849, ch. 105,§ 5, 9 Stat. 382. In 1852, Congress mandated additional requirementsfor safety equipment and special licenses for carrying dangerous articles.Act of Aug. 30, 1852, ch. 106, 10 Stat. 61. Congress also required thatthe master and engineer be specially licensed by a federal inspector, whowould attest that the person "possess[ed] the requisite skill, andis trustworthy and faithful" to assure safe operation of the vessel.§ 9, 10 Stat. 67.

In 1871, Congress enacted a significant overhaul of the regulatory regimegoverning steam-powered vessels, adding provisions for watchmen, other safetyequipment, vessel design standards, inspection and testing of equipment,and licensing of captains, chief mates, engineers, and pilots. Act of Feb.28, 1871, ch. 100, 16 Stat. 440. That Act further provided that the Departmentof the Treasury, which had supervisory authority over federal vessel inspectors,"shall * * * establish such rules and regulations as may be necessary"to provide adequate and current information about which persons, vessels,ship-builders, and equipment had satisfied the requisites of the statute,and such "rules and regulations to be observed by all steam-vesselsin passing each other as they shall from time to time deem necessary forsaf[e]ty." §§ 28, 29, 16 Stat. 449-450. Thus, by the timeCongress enacted the Revised Statutes in 1873-1874, thereby placing in onecentral place the various laws pertaining to vessels, federal law containedextensive requirements for vessel and crew licensing, inspection, and certificationof design, construction, and equipment. See Rev. Stat., Tit. 52 (1875).Those statutory requirements also included a broader mandate to the TreasuryDepartment to "establish all necessary regulations required to carryout in the most effective manner the provisions of this Title, and suchregulations, when approved by the Secretary of the Treasury, shall havethe force of law." Rev. Stat. § 4405 (1875).8

3. From an early date, this Court recognized the primacy of those federallaws over competing state standards. See, e.g., Gibbons v. Ogden, 22 U.S.(9 Wheat.) 1 (1824). In Gibbons, the Court held that a New York law purportingto confer an exclusive right to operate steamboats in New York waters wasinvalid to the extent that it precluded the holder of a federal licenseobtained under the 1793 statute from engaging in the commerce he was entitledto pursue under the federal statute. Id. at 212. The Court emphasized that,because those vessels were licensed under a federal statute, they had fullauthority to carry on their trade as conferred by Congress. Id. at 213 ("Thegrant of the privilege is an idle, empty form, conveying nothing, unlessit convey[s] the right to which the privilege is attached, and in the exerciseof which its whole value consists.").

In the decades after Gibbons, this Court found other state vessel requirementsto be preempted by federal statutes governing vessel licensing, equipmentstandards, and operations. Thus, in Sinnot v. Davenport, 63 U.S. (22 How.)227 (1859), the Court invalidated a state statute requiring the names ofpassengers to be recorded, holding that the federal license granted to thesteamer contained "the only guards and restraints, which Congress hasseen fit to annex to the privileges of ships and vessels engaged in thecoasting trade[.] * * * In every such case, the act of Congress or treatyis supreme; and the law of the State, though enacted in the exercise ofpowers not controverted, must yield to it." Id. at 241-243. See alsoFoster v. Davenport, 63 U.S. (22 How.) 244 (1859) (invalidating state lighteringrequirement). Using a similar rationale, this Court held that attempts bya State to require its own vessel license were also preempted by federallicensing statutes.9

In the absence of a federal statute on the subject, however, the Court upheldstate exercises of police power over certain localized maritime mattersagainst challenges brought under the Supremacy Clause. See, e.g., Cooleyv. Board of Wardens, 53 U.S. (12 How.) 299, 315 (1852) (1789 statute, nowcodified at 46 U.S.C. 8501 and 8503, found to permit States to impose requirementof local pilot in state waters); The Lottawanna, 88 U.S. (21 Wall.) 558,581 (1875) (upholding state maritime lien law "until Congress interposes,and thereby excludes further State legislation"); Kelly v. Washingtonex rel. Foss Co., 302 U.S. 1, 4 (1937) (no extant federal regulation ofmotor tugs).

Thus, by the time Congress enacted the Tank Vessel Act in 1936, 49 Stat.1889, which ushered in a complex twentieth-century national and internationalregulatory regime specifically addressing oil tankers, the preemptive scopeof federal law was clear: a federal license authorizing vessel operationscould not be interfered with, added to, or subtracted from, by state law,and federal laws and regulations governing vessels and their operationsousted competing state laws. Indeed, the Tank Vessel Act of 1936 was specificallyintended to establish "a reasonable and uniform set of rules and regulationsconcerning ship construction, equipping, operation, and manning sufficientto ensure that vessels carrying the type of cargo deemed dangerous wouldmeet all safety requirements plus such additional safeguards necessary toprotect against the additional hazards created by the cargo and its handling."H.R. Rep. No. 2962, 74th Cong., 2d Sess. 2 (1936) (emphasis added) (quotedin part in Ray, 435 U.S. at 166). To that end, "[i]n order to secureeffective provision against the hazards of life and property" createdby tank vessels, the Tank Vessel Act authorized the promulgation of suchadditional federal rules and regulations as may be necessary with respectto such matters as the "design and construction, alteration, or repairof such vessels," "the operation of such vessels," and "therequirements of the manning of such vessels and the duties and qualificationsof the officers and crews thereof." 49 Stat. 1889 (adding Rev. Stat.§ 4417a(2), later codified at 46 U.S.C. 391a(2)).

B. Interstate And International Tanker Operations Are Subject To A ComplexRegulatory Regime Of Preemptive Acts of Congress, International Agreements,And Federal Regulations

Against the foregoing historical background Congress enacted the Ports andWaterways Safety Act of 1972 (PWSA), 86 Stat. 424, and this Court decidedRay six years later. The Court in Ray construed Titles I and II of the PWSAto establish a set of principles for federal preemption of state rules withrespect to a range of international vessel management requirements, undertakinga detailed, section-by-section analysis of each state provision to determinewhether the particular state rule was preempted by a federal statute orregulation addressing the same subject matter.10 The question of preemptionunder the PWSA thus turns on an assessment of its distinctive titles.

1. Under Ray v. Atlantic Richfield Co., Title II Of The Ports and WaterwaysSafety Act, And Coast Guard Regulations Issued Pursuant To Title I Of ThatAct, Preempt State Laws Governing Tank Vessels

a. Title II of the PWSA revised and reenacted the Tank Vessel Act of 1936and conferred on the Secretary of Transportation, through the Coast Guard,rulemaking authority virtually identical to that in the 1936 Act. See 46U.S.C. 391a(2) (Supp. V 1975). That Title governs issues generally concernedwith the vessel itself-its "design, construction, alteration, maintenance,operation, equipping, personnel qualification, and manning." 46 U.S.C.3703(a). Under Title II, the Secretary "must issue" regulationsaddressing those subjects, Ray, 435 U.S. at 161, to the extent deemed "necessaryfor increased protection against hazards to life and property, for navigationand vessel safety, and for enhanced protection of the marine environment."46 U.S.C. 3703(a). Through such a comprehensive regulatory scheme, the Secretary,through the Coast Guard, can fashion a uniform national system of tankerregulation, not only to enhance navigation, safety, and environmental protection,but also to facilitate the free flow of interstate and foreign commerce,one of the central functions of the National Government under the Constitution.See pp. 18-19, supra; Ray, 435 U.S. at 165-166. A uniform set of rules forthe United States also enables this Nation to "speak with one voice"on those subjects in the international community, with a view toward encouragingnations generally to adopt a regime that fully promotes the interests insafety, navigation, and environmental protection throughout the world. Id.at 166. Under such a system, as a vessel moves from State to State and betweenthe United States and foreign ports, there can be assurance that a singleset of standards will attach to both the physical aspects of the vesselitself and the duties and qualifications of its officers and crew. For thosereasons, Title II essentially provides for preemption of the field in theareas to which it is addressed.

That conclusion is confirmed by the disposition of the preemption issuein the portion of the Court's opinion in Ray discussing Title II of thePWSA. The plaintiff there challenged laws adopted by the State of Washingtonthat prescribed construction and design standards. See 435 U.S. at 160.The Court found those state laws to be preempted, holding that "Congressintended uniform national standards for design and construction of tankersthat would foreclose the imposition of different or more stringent staterequirements," and that "Congress did not anticipate that a vesselfound to be in compliance with the Secretary's design and construction regulationsand holding a Secretary's permit, or its equivalent, to carry the relevantcargo would nevertheless be barred by state law from operating in the navigablewaters of the United States on the ground that its design characteristicsconstitute an undue hazard." Id. at 163-164. The Court noted that theTank Vessel Act of 1936 was intended to effect "a reasonable and uniformset of rules" on that subject, id. at 166 (quoting H.R. Rep. No. 2962,supra, at 2), and that the amendments to that Act made by Title II of thePWSA indicated that "Congress anticipated the enforcement of federalstandards that would pre-empt state efforts to mandate different or higherdesign requirements," ibid.

Although the Ray opinion addresses the preemption issue under Title II ofthe PWSA in terms of tanker design and construction, it did so only becausethose were the subjects of the claim before the Court. The Court's reasoningextends to all subjects addressed by Title II, including vessel operations,personnel qualifications, and manning. That is evident from the text of46 U.S.C. 3703(a), which furnishes no basis for distinguishing among thevarious aspects of tanker regulation on that score; the background of TitleII in the Tank Vessel Act of 1936 and its emphasis on uniformity in areasbeyond tanker design and construction; the mandatory nature of the Secretary'sduty to issue regulations; the practical need for there to be a single setof rules on board the vessel as it moves from State to State and Nationto Nation; and the congressional purpose of promoting uniform internationalstandards where appropriate, which cannot realistically be advanced if shipsare not subject to uniform rules even within the United States. Thus, aswe explain below (see pp. 33-41, infra), the BAP rules adopted by WashingtonState that address tank vessel staffing, personnel qualifications, operations,and other matters governed by Title II of the PWSA are necessarily preempted.

b. By contrast, Title I of the PWSA governs issues generally involved with"traffic control at local ports," 435 U.S. at 161, a subject thatdoes not necessarily call for uniform national standards. And Title I conferson the Secretary permissive, not mandatory, authority to promulgate regulations,id. at 171, governing such matters of local traffic control as the timesfor vessel movement, size and speed limitations, conditions for local operations,and pre-arrival notification, id. at 169-170. See 33 U.S.C. 1223, 1224;pp. 6-7, supra. The Ray Court held that with respect to operating rulesof the type routinely thought of as "arising from the peculiaritiesof local waters that call for special precautionary measures" (id.at 171), "[t]he relevant [preemption] inquiry under Title I [of thePWSA] with respect to the State's power to impose [operating rules] is ** * whether the Secretary has either promulgated his own * * * requirementfor Puget Sound tanker navigation or has decided that no such requirementshould be imposed at all." Id. at 171-172. In those circumstances,the state rule must give way. Id. at 172; see also id. at 173-178. Otherwise,Title I does not preempt state rules governing local vessel traffic. Seeid. at 171-173.

In reaching that conclusion, the Court relied in part on a provision ofTitle I of the PWSA, which states that nothing in that Title I is to "preventa State or political subdivision thereof from prescribing for structuresonly higher safety equipment requirements or safety standards than thosewhich may be prescribed pursuant to [Title I]." 33 U.S.C. 1222(b) (Supp.V 1975) (emphasis added). See 435 U.S. at 170, 171, 174. The Court reasonedthat the authorization to impose higher safety standards "for structuresonly"-i.e., for structures along the shore that might affect vesseltraffic -"impliedly forbids higher state standards for vessels."Id. at 174. The Court found this implication to be "strongly supportedby the legislative history of the PWSA": "The House Report explainsthat the original wording of the bill did 'not make it absolutely clearthat the Coast Guard regulation of vessels preempts state action in thisfield' and says that § 1222(b) was amended to provide 'a positive statementretaining State jurisdiction over structures and making clear that Stateregulation of vessels is not contemplated.'" Ibid. (quoting H.R. Rep.No. 563, 92d Cong., 1st Sess. 15 (1971)). See also 33 U.S.C. 1226(b) (currentversion of former Section 1222(b)). Accordingly, as we explain below (seepp. 33-41, infra), the BAP rules adopted by the State of Washington thataddress subject matters covered by Title I of the PWSA are preempted ifthere is a Coast Guard regulation under Title I on the same subject.

c. On October 17, 1978, just seven months after this Court decided Ray,Congress enacted the PTSA, which revised and reenacted both Title I andTitle II of the PWSA. See § 2, 92 Stat. 1471-1479 (Title I); §5, 1480-1492 (Title II). Congress made no change of substance in the provisionsof Title I and Title II that authorized the issuance of regulations, andupon which the Court relied in Ray to establish the framework for determiningwhether state laws regulating tank vessels are preempted. That subsequentenactment thus strongly supports adherence to the analytical framework ofRay in determining whether Washington's BAP rules are preempted. See SouthDakota v. Yankton Sioux Tribe, 522 U.S. 329, 349-351 (1998); Lorillard v.Pons, 434 U.S. 575, 580-581 (1978).

2. International Treaties And Maritime Agreements Also Have Preemptive Force

In addition to identifying the preemptive scope of the PWSA, the Court inRay also noted that in passing that Act, "Congress expressed a preferencefor international action and expressly anticipated that foreign vesselswould or could be considered sufficiently safe for certification by theSecretary if they satisfied the requirements arrived at by treaty or convention."435 U.S. at 167-168. Thus, to the extent an international agreement createsa standard that is embodied in Coast Guard regulations or is formally recognizedby the Coast Guard as applicable, that standard will also preempt a contrarystate law.

Since Ray was decided, the United States has also become party to numerousinternational agreements regulating tankers that independently have preemptivepower over state laws. An international treaty can have just as much preemptiveforce as a federal statute. See U.S. Const. Art. VI. This Court has recognizedthat, "[u]nder principles of international law, the word ['treaty']ordinarily refers to an international agreement concluded between sovereigns,regardless of the manner in which the agreement is brought into force."Weinberger v. Rossi, 456 U.S. 25, 29 & n.5 (1982) (citing Restatementof Foreign Relations, Pt. III, introd. note at 74 (Tent. Draft No. 1, 1980)).Under international law, an international treaty or agreement is bindingon all political subdivisions of the ratifying nation, and a party wouldnot be excused from compliance because of the actions of a political subdivision.11

Because international agreements reflect the intentions of nation-states,this Court has emphasized that any concurrent power held by States in fieldsthat are the subject of international agreements is "restricted tothe narrowest of limits." Hines v. Davidowitz, 312 U.S. 52, 68 (1941).Thus, where the United States has exercised the authority of the Nation,a State "cannot refuse to give foreign nationals their treaty rightsbecause of fear that valid international agreements might possibly not workcompletely to the satisfaction of state authorities." Kolovrat v. Oregon,366 U.S. 187, 198 (1961). Accordingly, whether viewed through the lens ofpreemption by treaty or interference with the federal government's exclusiveauthority to conduct the foreign affairs of the United States, this Courthas repeatedly struck down state laws that conflict with duly promulgatedfederal law touching on matters of international concern. See, e.g., Zschernigv. Miller, 389 U.S. 429 (1968); United States v. Pink, 315 U.S. 203, 232(1942); United States v. Belmont, 301 U.S. 324, 327 (1937).

Those considerations have particular force in this case, because Congresshas long recognized the importance of international rules in promoting safetyand environmental protection in vessel operations. For example, althoughthe Tank Vessel Act of 1936 contained a provision requiring vessels to carrya certificate of inspection evidencing compliance with the terms of theAct, it specifically provided that "the provisions of this subsectionshall not apply to vessels of a foreign nation having on board a valid certificateof inspection recognized under law or treaty by the United States."49 Stat. 1890. Congress included similar language in the PWSA, see §201, 86 Stat. 429, 46 U.S.C. 391a(5) (Supp. V 1975), as amended by the PTSA,see § 5, 92 Stat. 1486-1487, 46 U.S.C. 3711.

As a result, under current law, a foreign vessel's compliance with internationalstandards will satisfy domestic requirements for entering United Statesports or waters. See, e.g., 46 U.S.C. 3303 (Supp. III 1997) ("A foreigncountry is considered to have inspection laws and standards similar to thoseof the United States when it is a party to an International Convention forSafety of Life at Sea to which the United States Government is currentlya party."); 46 U.S.C. 3711(a) ("The Secretary may accept any partof a certificate, endorsement, or document, issued by the government ofa foreign country under a treaty, convention, or other international agreementto which the United States is a party, as a basis for issuing a [U.S.] certificateof compliance."). The certification requirements imposed by internationalconventions and codes such as the STCW Convention, MARPOL, ISM Code, andSOLAS require extensive enforcement efforts by the Coast Guard. See note5, supra; 33 C.F.R. 151.01 (MARPOL), 96.100 (ISM Code); 46 C.F.R. 10.101(a)(2),12.01-1(a)(2), 15.101 (STCW), 199.01(b) (SOLAS). With regard to SOLAS, forexample, Congress has specifically provided that a SOLAS certificate shallbe respected by the United States, see 46 U.S.C. 3303 (Supp. III 1997),and by executive order the President has directed the Coast Guard to enforceSOLAS, see Exec. Order No. 12,234, 3 C.F.R. 277 (1981). The various provisionsof SOLAS, MARPOL, STCW, and the ISM Code must be taken into account, inconjunction with Coast Guard regulations that implement those agreements,to assess whether individual state rules are preempted.12

As the Court emphasized in Ray, "[t]he Supremacy Clause dictates thatthe federal judgment that a vessel is safe to navigate United States watersprevail over the contrary state judgment." 435 U.S. at 165. Congressno more intended to permit States to frustrate that federal purpose here,where the relevant certifications concern training, manning, and relatedpolicies, than it did in Ray, in which the Court specifically addresseddesign and construction standards. See United States v. Belmont, 301 U.S.at 331 ("In respect of all international negotiations and compacts,and in respect of our foreign relations generally, state lines disappear.As to such purposes the State of New York does not exist.").

3. Coast Guard Regulations Preempt Contrary State Rules

This Court has "held repeatedly that state laws can be pre-empted byfederal regulations as well as by federal statutes." Hillsborough Countyv. Automated Med. Lab., Inc., 471 U.S. 707, 713 (1985). See also FidelityFed. Sav. & Loan Ass'n v. de la Cuesta, 458 U.S. 141, 153-154 (1982);California v. Zook, 336 U.S. 725, 735-737 (1949). And, indeed, although"[a] pre-emptive regulation's force does not depend on express congressionalauthorization to displace state law," Fidelity Fed. Sav. & LoanAss'n, 458 U.S. at 154, there is ample evidence from the PTSA and its predecessorsthat Congress intended the Coast Guard's rules to have primacy over conflictingstate rules with respect to manning, training, and the other areas involvedin this case, not merely with respect to construction and design.

First, "personnel qualification" and "manning" are specificallyincluded in the list of subjects over which Title II of the PWSA has preemptedthe field. See 46 U.S.C. 3703(a). The PTSA further provides that the Secretary"shall issue regulations and procedures for the verification of manning,training, qualification, and watchkeeping standards promulgated by the certificatingstate of any foreign vessel which operates on or enters the navigable watersof the United States, and transfers oil or hazardous materials in any portor place under the jurisdiction of the United States." § 5, 92Stat. 1488 (codified at 46 U.S.C. 9101(a)). The PTSA also confers authorityon the Secretary to "modify any regulation or standard prescribed underthis section to conform to the provisions of an international treaty, convention,agreement, or an amendment thereto, which is ratified by the United States,"§ 5, 92 Stat. 1489 (codified using slightly different language andmerged into 46 U.S.C. 3703(a)), and to "withhold or revoke" clearancefrom the United States by any vessel that does not meet applicable standards,§ 5, 92 Stat. 1489 (codified at 33 U.S.C. 1232(f) (Supp. III 1997)).Those provisions give ample authority to the Coast Guard to promulgate preemptiveregulations implementing international agreements.

Second, Congress has long provided that, in promulgating regulations, theCoast Guard shall take into consideration the views of the States and portand harbor authorities. See 33 U.S.C. 1231(b)(2); 46 U.S.C. 3703(c)(2).Those provisions plainly do not contemplate that-after the Secretary hasconsidered the States' views, taken international standards and other relevantfactors into account, and elected to adopt uniform national standards ona particular subject-the States are then free to adopt divergent laws onthe very same subject.

C. Certain Of The Washington Best Achievable Protection (BAP) Rules ArePreempted By Federal Law

The court of appeals found none of the state rules regarding staffing andoperations preempted, without regard to whether they differed from federalregulations that were promulgated by the Coast Guard pursuant to statutoryand international treaty authorities.13 The result is to leave in placea number of Washington regulations that are inconsistent with federal lawand specific international standards. Of the 15 BAP rules challenged inpetitioner Intertanko's complaint, the vast majority should have been (butwere not) held preempted by the court of appeals. The following examplesare drawn for illustrative purposes, and are not intended to compose anexhaustive list of the Washington regulations that raise such concerns:

- Drug and Alcohol Testing and Reporting: The Washington regulations requireextensive drug and alcohol testing of all crew members on tankers, includingforeign-flag vessels. Wash. Admin. Code § 317-21-235 (1999). Thoseregulations further mandate that the results of a positive drug test bereported to Washington within 72 hours of the confirmed test result. Thestate requirements appear to apply to a drug test conducted anywhere inthe world for a vessel that weeks or months in the future might arrive inWashington waters. Washington's requirement of random testing of all crewmembers on all of the vessels operated by a carrier throughout the worldcreates a different rule from the Coast Guard's standards, which requirepost-accident and reasonable-cause testing requirements for foreign-flagvessels. See 46 C.F.R. 4.05-12; id., Subpt. 4.06; id. Pt. 16; 33 C.F.R.95.035.14 Moreover, numerous foreign governments, including the Governmentof Canada, have informed the Coast Guard that their laws might not allowthe testing of individuals in accordance with the Washington state requirements.See 59 Fed. Reg. 65,500-65,501 (1994); 57 Fed. Reg. 31,274 (1992); 56 Fed.Reg. 18,982 (1991); 53 Fed. Reg. 47,070-47,071 (1988). Indeed, even underUnited States law, the random testing of individuals is limited to thoseindividuals aboard vessels who occupy safety-sensitive positions that arespecifically identified in the regulations. 46 C.F.R. 16.230; see also 56Fed. Reg. 31,030 (1991) (noting concerns based on Fourth Amendment protectionsagainst unreasonable searches and seizures).

- Crew Training Policies: The Washington regulations require "trainingbeyond the training necessary to obtain a license or merchant marine document."Wash. Admin. Code § 317-21-230 (1999). That provision constitutes a"personnel qualification" within the field preemptive ambit of46 U.S.C. 3703(a). It also imposes requirements in addition to those ofthe STCW Convention, which provides that a certification by a flag statewill be afforded respect through reciprocity in the United States. See STCWConvention, Arts. VI, X. The Coast Guard has promulgated extensive regulationson the licensing and qualifications of maritime personnel. See 46 C.F.R.Pts. 10, 12, 13, 15; see also 33 C.F.R. 155.1055, 157.152, 157.154. To meetthe State's requirements, a crew would have to be flown in advance to Washingtonfor training or otherwise extra-territorially meet acceptable state standards,before serving on a voyage to Washington waters. That requirement wouldoften be impractical given the commercial realities of international shipping,in which vessels are frequently re-routed in mid-voyage to new destinationsfor the pickup or delivery of cargo. The practical effect of the Washingtonintrusion into international training requirements is that, unless the additionalstate training requirements have been met, foreign and U.S. flag vesselsalike are precluded from entering Washington waters.15

- Language Proficiency Requirements: The Washington BAP rules require that"[a]ll licensed deck officers and the vessel's designated person incharge under 33 CFR sec. 155.700 are proficient in English and speak a languageunderstood and spoken by subordinate officers and unlicensed crew."Wash. Admin. Code § 317-21-250(1) (1999). That provision is a "personnelqualification" within the preemptive field of 46 U.S.C. 3703(a). Seealso 33 U.S.C. 1228(a)(7) (requiring vessel, while underway in U.S. waters,to have at least one licensed deck officer on the bridge capable of clearlyunderstanding English). In addition, the international requirements thatthe United States has agreed to observe, by contrast, require an officerin charge of the navigation watch to be able to "perform the officer'sduties * * * with a multilingual crew." See STCW Code, Tab. A-II/1,Col. 2, English language. The STCW standard requires licensed deck officersto be able to communicate with those who are part of the navigation watch,and only on those matters relevant to watch-keeping duties. The Washingtonregulations, on the other hand, require all licensed deck officers to speakthe languages of the entire unlicensed crew, a requirement that imposessubstantial additional burdens on ship owners and operators. The STCW standardsmust be met to achieve certification, see STCW Code, §§ A-II/1,A-III/1, A-V/1, and the Coast Guard has the authority to accept an STCWcertificate of compliance. See 46 U.S.C. 3303, 8702(b) (designated percentageof crew that must understand an order "spoken by the officers"before a vessel may be allowed to operate in United States waters), 9101,9102 (1994 & Supp. III 1997); 33 C.F.R. 155.710(c)(4), 161.12(b), 161.18(c);46 C.F.R. 13.201(g), 15.730.

- Management Policies and Practices: The Washington regulations containa series of requisites concerning management practices for a vessel, includingpersonnel training and the types of elements that must be contained in anapproved management program. Wash. Admin. Code § 317-21-260(1) to (3)(1999). That requirement constitutes an impermissible personnel qualificationwithin the scope of the field preempted by 46 U.S.C. 3703(a). The staterule also directly conflicts with 46 U.S.C. 3203(a) (Supp. III 1997), whichprovides that "[t]he Secretary shall prescribe regulations which establisha safety management system for responsible persons and vessels to whichthis chapter applies." Section 3203(b) further provides that "[r]egulationsprescribed under this section shall be consistent with the InternationalSafety Management Code with respect to vessels engaged on a foreign voyage."See also 46 U.S.C. 9102(a)(5). The federal regulations, which set forthin detail the requisite management practices that must be followed by vesseloperators, enforce the ISM Code. See 33 C.F.R. Pt. 96; ISM Code, §§1.4, 2, 6.2, 7, 10. See also 46 C.F.R. 12.02-17(e), 13.125, 15.1107.16

- Operating Procedures; Restricted Visibility: The Washington BAP rulesrequire three licensed deck officers on watch during times of restrictedvisibility, one of whom may be a state-licensed pilot when the vessel isin pilotage waters. Wash. Admin. Code § 317-21-200(1)(a) (1999). Thatrequirement constitutes a "manning" requirement within the fieldof subjects covered by 46 U.S.C. 3703(a), which Ray has held preempts staterules, as well as a standard authorized by 33 U.S.C. 1223 (1994 & Supp.III 1997), which would be subject to the type of Title I analysis utilizedin Ray. The state rule also diverges from the Coast Guard requirement oftwo licensed deck officers. See 33 C.F.R. 164.13(c) (regulation implementingOPA § 4116(b), codified at 46 U.S.C. 8502(h)); 58 Fed. Reg. 27,632(1993) (expressing intent to preempt state rules). Because crews are staffedto meet international standards, the Washington rules also necessarily interferewith the accomplishment of another international standard: ensuring thatwatch officers obtain at least ten hours of rest in any 24-hour period,which must be provided in "no more than two periods, one of which shallbe at least 6 hours in length." STCW Code, § A-VIII/1. To complywith both the state personnel watch requirements and the international crew-reststandards, therefore, any vessel destined for Washington waters (or in transitthrough those waters) must increase its crew complement or fly additionalpersonnel to the vessel prior to entering Washington waters, in order tocomply both with the state personnel watch requirements and the internationalcrew rest standards. The State has asserted that the conflict is of minimalpractical consequence because the BAP rule applies only to "the 60miles between buoy J and Port Angeles where pilotage waters begin."Br. in Opp. 26. Given the State's own estimate of the speed at which vesselsnormally travel (see id. at 4), a vessel would ordinarily take four hoursto travel that distance, and those hours necessarily would encroach intothe mandated rest period.17

- Advance Notice of Entry: The state rules contain a series of requirementsfor advance notice to be given to state officials prior to the entry ofa vessel into state waters. See Wash. Admin. Code § 317-21-540 (1999).Those requirements are preempted using the type of analysis this Court usedin Ray for permissive regulations promulgated under then-Title I of thePWSA. See Ray, 435 U.S. at 169-170. The Secretary "may control vesseltraffic in areas subject to the jurisdiction of the United States whichthe Secretary determines to be hazardous, or under conditions of reducedvisibility, adverse weather, vessel congestion, or other hazardous circumstancesby * * * specifying times of entry, movement, or departure." 33 U.S.C.1223(a)(4); see also 33 U.S.C. 1223(a)(5). Under Ray, if the Coast Guardhad not issued regulations, the State's rule would not be preempted. See435 U.S. at 172. The Coast Guard has issued regulations governing advancenotice of entry, however, thereby preempting the State's effort to regulatethat facet of vessel operations. See 33 C.F.R. 156.215; id. Pt. 160, Subpt.C; see also UNCLOS, Art. 25(2).

- Event Reporting of Marine Casualties: The Washington rules require a vesselowner or operator to provide "an event summary of the past five yearsfor each vessel covered by an oil spill prevention plan," with detailedinformation for each casualty, collision, allision, or near-miss, regardlessof where in the world the event occurs. Wash. Admin. Code § 317-21-130(1999). The rule also imposes an obligation on the owner or operator tosend a report within 30 days of the event, even if the vessel operator hasno contemporaneous expectation that its vessel will travel to Washington.That state rule is preempted by 46 U.S.C. 6101, which imposes on the Secretarythe obligation of prescribing regulations for the reporting of marine casualties.See also 46 U.S.C. 6301 et seq. Section 5 of the PTSA also provides that"[t]he Secretary shall establish a marine safety information system"which, among other data, shall include "the history of marine casualtiesand serious repair problems of the vessel." 46 U.S.C. 3717(a)(4). Pursuantto those statutory authorities, the Coast Guard has promulgated regulationsfor marine casualty event reporting. See 33 C.F.R. 151.15, 151.26(b)(3),153.203, 155.1035(b), 164.61; id., Pt. 173, Subpt. C; 46 C.F.R. 4.05-1 to4.05-10, 35.15-1. Various international agreements also contain requirementsfor event reporting. See MARPOL 73/78, Art. 8; id. Protocol I; IMO Res.A.851(20); SOLAS Convention, Annex, Ch. V, Reg. 8-1.

- Emergency Procedures: The state rules require proficiency in a range ofsubjects during an emergency. See Wash. Admin. Code § 317-21-220 (1999).Those requirements are preempted by national and international standards,see 33 C.F.R. Tab. 96.250(h), 151.26(b)(4), 155.1035; 46 C.F.R. Pt. 35,Subpt. 35.10; id. 199.80; STCW Code, Tab. A-II/2 (qualification requirementfor master of vessel), and are personnel qualifications preempted under46 U.S.C. 3703(a). The need for uniformity is particularly apt in emergencyresponse operations, to avoid confusion by a vessel's crew over differentiationsin rules between the international/ national regime on the one hand andvariant state rules on the other.
Operating Procedures-Pre-Arrival: The BAP rules impose a wide range of pre-arrivaltests of such equipment as navigation instruments, generators, steeringsystems, engines, and other mechanical systems. See Wash. Admin. Code §317-21-215 (1999). All of those requirements impose standards to test theperformance of equipment, a subject within the preemptive field of 46 U.S.C.3703. See Ray, 435 U.S. at 163-164. The Coast Guard has promulgated regulationsaddressing the equipment standards the State seeks to impose. See 33 C.F.R.164.25, 164.35, 164.53; 46 C.F.R. 35.20-10; id., Pt. 61, Subpt. 61.20. Thosefederal regulations are consistent with international standards requiringuniformity. See SOLAS Convention, Annex, Ch. II-1, Regs. 44, 46(2), 49;id. Ch. V, Reg. 19-2.
Under the proper analysis, therefore, the vast majority of the WashingtonBAP rules are preempted as coming within the field of preemptive subjectsembraced within 46 U.S.C. 3703 recognized in Ray or as conflicting withtreaty obligations and Coast Guard regulations recognized and promulgatedby federal statutes.18

D. The Court Of Appeals' Analysis Upholding The State Rules Is Flawed

There can be no doubt that the Washington regulations discussed above arepreempted under the analysis mandated by this Court's decision in Ray, asapplied to the post-Ray statutory scheme created by Congress and the internationalregime accepted by the United States. The court of appeals did not disagree.The court believed, however, that, following the enactment of OPA in 1990,the Coast Guard no longer has the authority to issue regulations that wouldpreempt state regulations addressing the same subject matter. That conclusionis deeply flawed.

1. Contrary to the court of appeals' view, nothing in OPA affects Ray'sholding that the Coast Guard has authority to issue regulations that preemptstate rules on the same subject. It would be surprising indeed for Congressto have deprived the Coast Guard of that power to adopt uniform nationalstandards, since, as the district court acknowledged, "shipping hastraditionally been governed by federal law." Pet. App. 61a. And, infact, the Conference Report on OPA specifically states that OPA "doesnot disturb the Supreme Court's decision in Ray v. Atlantic Richfield Co.,435 U.S. 151 (1978)." H.R. Conf. Rep. No. 653, 101st Cong., 2d Sess.122 (1990) (emphasis added); see also H.R. Conf. Rep. No. 854, 104th Cong.,2d Sess. 135 (1996) (report on Coast Guard Authorization Act of 1996, citingRay for proposition that Secretary has authority to promulgate regulationsto promote federal vessel uniformity).

Significantly, moreover, OPA did not amend the provisions of the PWSA-whichwere relied upon by the Court in Ray, 435 U.S. at 161, 170, were expandedafter Ray in the PTSA, and are now codified at 33 U.S.C. 1231 and 46 U.S.C.3703-that authorize and direct the Secretary to issue regulations governingdesign, construction, alteration, repair, maintenance, operation, equipment,personnel qualification, and staffing of tanker vessels. Those statutoryprovisions identify a role for the States in the process of developing governingstandards: they require the Secretary to consult with and "consider[]the views" of "officials of State and local governments."33 U.S.C. 1231(b)(2); 46 U.S.C. 3703(c)(2). But this Court has already construedthe language in 46 U.S.C. 3703 to afford field preemption of state rules.See Ray, 435 U.S. at 163-165.

In addition, Title IV of OPA makes plain that Congress intended to reinforce,not undermine, the established regime of international uniformity and reciprocityon such issues as staffing, training, and operation. Thus, Congress specificallydirected the Secretary of Transportation to evaluate the "manning,training, qualification, and watchkeeping standards of a foreign countrythat issues documentation" to tankers, in order to determine whetherthey are "at least equivalent to United States law or internationalstandards accepted by the United States"; and Congress provided thatthe Secretary may prohibit entry into the United States of vessels withdocumentation issued by countries that do not maintain and enforce suchstandards. OPA § 4106(a), 104 Stat. 513 (codified at 46 U.S.C. 9101(a)).That directive to the Secretary of Transportation refutes the Ninth Circuit'sconclusion that Congress, in enacting OPA, subordinated the need for internationaluniformity and reciprocity to the divergent policy preferences of the States.Cf. Pet. App. 16a.19

2. In holding that the Coast Guard no longer has the power recognized inRay to issue regulations having preemptive effect, the court of appealsrelied almost exclusively on Section 1018 of OPA. See Pet. App. 16a. Butas the court recognized elsewhere in its opinion, see id. at 12a, Section1018 addresses only the preemptive effect of "this Act"-i.e.,of OPA itself-not the preemptive effect of other federal statutes, suchas the PWSA, at issue in Ray, and the post-Ray enactment of the PTSA. Ibid.The court of appeals' holding thus boils down to the notion that, even thoughSection 1018 neither applies to other federal statutes such as the PTSAnor alters the Secretary's rulemaking authority under it, Section 1018 neverthelesshas a sort of penumbral effect that divests the Coast Guard of the powerit previously had to issue preempting regulations under those other federalstatutes. Simply to state the proposition is to refute it. Under the Constitution,Congress could divest the Coast Guard of that power under prior law onlyby enacting a new law that repealed that prior authority. See INS v. Chadha,462 U.S. 919, 955 (1983). Congress did not do that in OPA.

Properly understood, Section 1018 expresses an intent for OPA not to displacewhatever police powers States otherwise might have independent of OPA. Thus,whether state tanker laws are preempted turns on the vast body of federaltreaty, statutory, and regulatory provisions governing tanker operations.As we have demonstrated, every federal rule that preempts a Washington BAPregulation derives from a source of law independent of OPA: the PWSA, PTSA,SOLAS, STCW, MARPOL, ISM Code, and Coast Guard regulations issued pursuantto those authorities.20

3. The court of appeals' erroneous reliance on Section 1018 of OPA alsounderlies its further (and equally erroneous) holding that Coast Guard regulationsthat are otherwise valid require additional legislative authority to havepreemptive effect. See Pet. App. 29a-31a. That decision is incorrect inat least two important respects. First, 33 U.S.C. 1231 and 46 U.S.C. 3703confer broad authority on the Coast Guard, after "considering the views"of the State and balancing competing considerations, to prescribe regulationsfor the design, construction, operation, equipping, personnel qualification,and staffing of tank vessels. Those provisions, which are unaffected byOPA, furnish ample authority for Coast Guard regulations that preempt conflictingstate rules. Moreover, as this Court held in Ray, the Secretary alreadyhad authority under those provisions of the PWSA to issue regulations thatpreempt state regulatory efforts. Congress was not required to confer thatauthority all over again in OPA.

Second, and more fundamentally, Congress need not specifically confer preemptiveauthority on a federal agency for that agency's rules to have preemptiveeffect. In City of New York v. FCC, 486 U.S. 57 (1988), for example, thisCourt explained that "a narrow focus on Congress' intent to supersedestate law is misdirected, for a pre-emptive regulation's force does notdepend on express congressional authorization to displace state law."Id. at 64 (internal quotation marks and brackets omitted). In identifying"the correct focus" of a regulatory preemption inquiry, the Courtleft no doubt that "statutorily authorized regulations of an agencywill pre-empt any state or local law that conflicts with such regulationsor frustrates the purposes thereof." Ibid.; accord Fidelity Fed. Sav.& Loan Ass'n v. de la Cuesta, 458 U.S. 141, 154 (1982) ("A pre-emptiveregulation's force does not depend on express congressional authorizationto displace state law.").21


E. The Decision Below Hinders The United States' Ability To Promote EnvironmentallySound Practices In The International Rulemaking Regime

The competing legal regime erected by Washington poses substantial and immediatediplomatic concerns for the United States in several critical respects.First, the existence of state regulations that conflict with internationalstandards raises the distinct possibility that other nations that are partiesto international conventions and agreements will regard the United Statesas in violation of its obligations and thus take actions that will undermineinternational uniformity. The United States Department of State has receiveda diplomatic note from 13 nations (Belgium, Denmark, Finland, France, Germany,Greece, Italy, Japan, the Netherlands, Norway, Portugal, Spain, Sweden)and the Commission of the European Community expressing concerns that "[d]ifferingregimes in different parts of the US would create uncertainty and confusion.* * * The Governments therefore urge the US to pursue a regulatory regime,on a national basis, which is consistent with agreed international standards."Note Verbale from the Royal Danish Embassy to the U.S. Department of State1 (June 14, 1996) (File No. 60 USA.1/4). On May 7, 1997, the Governmentof Canada submitted a similar diplomatic protest. Letter from the Embassyof Canada to the U.S. Department of State 1 (Note No. 0389). Those countriesrepresent major maritime trading nations, significant allies of the UnitedStates, and leaders in establishing international vessel standards. A decisionby other nations that the United States is in noncompliance with an internationaltreaty obligation could lead to the abrogation of the agreement, a decisionnot to afford reciprocity to United States tankers in foreign ports, andconsiderable uncertainty in the legal regime governing international vesselmanagement.22

Second, the conflicting Washington regulations undermine the credibilityof the United States in negotiating international agreements that promotesafe use of tankers around the world. The culmination of such negotiationshas had, and will continue to have, significant desirable consequences forshipping and environmental safety in United States coastal waters and thoseof our trading partners. For that kind of diplomatic bargaining to resultin agreements that other nations will enforce, however, the United Statesnegotiators must be assured that they can represent the entire United States,and not be undermined by the actions of individual States that depart fromthe international regime. Because of the international nature of the shippingindustry, the establishment of vessel standards for safety and environmentalprotection is generally most effective when carried out on an internationallycooperative level rather than by individual nations or political subdivisionsof those nations acting on their own. See, e.g., S. Treaty Doc. No. 39,103d Cong., 2d Sess., at III (1994).23

If the Ninth Circuit decision were affirmed, every coastal State in theUnited States could adopt and enforce its own requirements, notwithstandingtheir inconsistency with the regulations of other States and the internationalcommunity (as reflected in federal statutes and regulations). The consequencesof state-by-state variations in tanker regulations could be highly problematic.Different States could impose different watch manning requirements, andtankers would have to comply with different sets of regulations (in additionto the federal scheme) when traveling in United States coastal waters, evenif those requirements are mutually conflicting and even if the vessel isnot even bound for a United States port. The multiplicity of overlappingregulatory requirements would further frustrate the substantial internationalinterest in uniform vessel standards in such international conventions andcodes as SOLAS, STCW, MARPOL, and the ISM Code.

* * * * *

Many of the state BAP rules discussed above (see pp. 33-41, supra) operatein fields that have been preserved by Congress for exclusive federal regulation,while others are preempted by Coast Guard regulations or international agreementsto which the United States is a party. The judgment of the court of appealsshould be reversed to the extent the Court holds those particular BAP rulespreempted. In other respects, the judgment of the court of appeals shouldbe vacated and the case remanded to allow the courts below to assess thevalidity of the remaining regulations under the proper preemption analysis,as set forth in this brief.