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

* The Honorable Alfredo C. Marquez, Senior Judge, United States DistrictCourt for the District of Arizona, sitting by designation.
1 See also Sarah A. Loble, Intertanko v. Lowry: An Assessment of ConcurrentState and Federal Regulation Over State Waters, 10 U.S.F. Mar. L.J. 27,72 (1997) ("The Ninth Circuit has the opportunity to remedy the imbalancecreated by the district court, which favored Washington state regulationat the expense of federal interests."); Charles L. Coleman, III, FederalPreemption of State "BAP" Laws: Repelling State Borders in theInterest of Uniformity, 9 U.S.F. Mar. L.J. 305, 356 (1997) ("To theextent that the recent decision of the U.S. District Court for the WesternDistrict of Washington in Intertanko v. Lowry is inconsistent with the foregoingconclusions, it is wrong in this author's view, and should be overturnedin the pending appeal to the Ninth Circuit Court of Appeals.") (footnoteomitted); Robert E. Falvey, A Shot Across the Bow: Rhode Island's Oil SpillPollution Prevention and Control Act, 2 Roger Williams U. L. Rev. 363, 396(1997) ("The court attempted to counter Intertanko's preemption argumentby simply asserting that Intertanko's theory was largely foreclosed by thenonpreemptive language of OPA '90. In light of the preceding discussionthis reasoning seems unpersuasive.") (citation, footnote, and internalquotation marks omitted); Matthew P. Harrington, Necessary and Proper, butStill Unconstitutional: The Oil Pollution Act's Delegation of AdmiraltyPower to the States, 48 Case W. Res. L. Rev. 1, 17 n.59 (1997) ("Congressseems to have had a somewhat more restrictive view of what was being preemptedthan did the district court in Intertanko."); Michael P. Mullahy, States'Rights and the Oil Pollution Act of 1990: A Sea of Confusion?, 25 HofstraL. Rev. 607, 636-37 (1996) ("The issue of whether Washington statehas the power to enact the BAP Standards will most likely be decided bythe Supreme Court. . . . [T]he Washington BAP Standards should survive theconstitutional analysis the Court will most likely perform.") (footnoteomitted); Laurie L. Crick, The Washington State BAP Standards: A Case Studyin Aggressive Tanker Regulation, 27 J. Mar. L. & Com. 641, 646 (1996)("[I]t is possible that most, if not all, of the BAP Standards willbe upheld."); Marva Jo Wyatt, Navigating the Limits of State SpillRegulations: How Far Can They Go?, 8 U.S.F. Mar. L.J. 1, 26 (1995) ("Thecurrent controversy over Washington's navigational regulations affectingoil pollution implicates some of the most fundamental principles of ourrepublic and foreshadows an age-old conflict between federalism and states'rights.").
2 In section 4202(c), OPA 90 amended 33 U.S.C. § 1321(o)(2), a preexistingprovision of the Federal Water Pollution Control Act. The amendment is emphasizedbelow.
Nothing in this section shall be construed as preempting any State or politicalsubdivision thereof from imposing any requirement or liability with respectto the discharge of oil or hazardous substance into any waters within suchState, or with respect to any removal activities related to such discharge.
3 Section 5002(n) provides in part:
Nothing in this section shall be construed as modifying, repealing, superseding,or preempting any municipal, State or Federal law or regulation, or in anyway affecting litigation arising from oil spills or the rights and responsibilitiesof the United States or the State of Alaska, or municipalities thereof,to preserve and protect the environment through regulation of land, air,and water uses, of safety, and of related development.
4 Section 8202(e) provides:
(1) Nothing in this section shall be construed or interpreted as preemptingany State or political subdivision thereof from imposing any additionalliability or requirements with respect to the discharge, or threat of discharge,of oil or other pollution by oil.
(2) Nothing in this section shall affect or modify in any way the obligationsor liabilities of any person under other Federal or State law, includingcommon law, with respect to discharges of oil.
5 The original draft provided:
(a) Nothing in this Act shall be construed or interpreted as preemptingany State from imposing any additional liability or requirements with respectto the discharge of oil or other pollution by oil within such State. Nothingin this Act shall affect or modify in any way the obligations or liabilitiesof any person under other Federal or State law, including common law, withrespect to discharges of oil.
(b) Nothing in this Act or in section 9507 of the Internal Revenue Codeof 1954 shall in any way affect, or be construed to affect, the authorityof any State-
(1) to establish, or to continue in effect, a fund any purpose of whichis to pay for costs or damages arising out of, or directly resulting from,oil pollution or the substantial threat of oil pollution; or
(2) to require any person to contribute to such a fund.
(c) A State may enforce, on the navigable waters of such State, the requirementsfor evidence of financial responsibility applicable under section 104 ofthis Act.
(d) The President shall consult with the affected State or States on theappropriate removal action to be taken. Removal with respect to any dischargeor incident shall be considered completed when so determined by the Presidentand the Governor or Governors of the affected State or States.
(e) Nothing in this Act, the Act of March 3, 1851, as amended (46 U.S.C.183 et seq.), or section 9507 of the Internal Revenue Code of 1954, shallin any way affect, or be construed to affect, the authority of the UnitedStates or any State or political subdivision thereof-
(1) to impose additional liability or additional requirements; or
(2) to impose, or to determine the amount of, any fine or penalty (whethercriminal or civil in nature) for any violation of law,
relating to the discharge, or substantial threat of a discharge, of oil.
135 Cong. Rec. S3245 (daily ed. Apr. 4, 1989).
6 Specifically, Title III of that bill included provisions requiring (a)alcohol testing of tanker personnel and (b) the placement of four crew memberson the navigation bridge of a tanker. Id.
7 That clause provided:
Nothing in this Act shall be construed or interpreted as changing, diminishing,or preempting in any way the authority of a State, or any political subdivisionthereof, to regulate oil tankers or to provide for oil spill liability orcontingency response planning and activities in State waters.
8 Section 310 provided:
Nothing in this title shall be construed or interpreted as changing, diminishing,or preempting in any way the authority of a State, or any political subdivisionthereof, to regulate oil tankers in State waters.
Id. at S10417.
9 Section 1018 of the House version provided:
(a) PREEMPTION
(1) ACTIONS PREEMPTED.-Except as provided in this Act and the Solid WasteDisposal Act (42 U.S.C. 6901 et seq.), no action arising out of a dischargeof oil, or a substantial threat of a discharge of oil, from a vessel orfacility into or upon the navigable waters or adjoining shorelines or theexclusive economic zone (other than an action for personal injury or wrongfuldeath), may be brought in any court of the United States or of any Stateor political subdivision thereof.
(2) STATE FUNDS AND ACCOUNTS.-Nothing in this Act or in sections 4611 and9509 of the Internal Revenue Code of 1986 shall affect the authority ofany State (A) to establish or continue in effect an oil spill fund or account;or (B) to require any person to contribute to that fund or account.
(b) NO PREEMPTION OF PENALTIES.-Nothing in this Act or section 9509 of theInternal Revenue Code of 1986 shall affect the authority of the United Statesor any State or political subdivision thereof to impose, or to determinethe amount of, any fine or penalty for any violation of law relating toan incident.
(c) LIMITATION OF LIABILITY ACT.-The Act of March 3, 1851, shall not applyto removal costs and damages that directly result from an incident involvingthe discharge or substantial threat of discharge of oil.
10 The amended House version of § 1018 provides in part:
(a) PRESERVATION OF STATE AUTHORITIES.-
(1) Notwithstanding any other provision, nothing in this Act or the Actof March 3, 1851 shall-
(A) be construed or interpreted as preempting any state or political subdivisionthereof from imposing any additional liability or requirements with respectto the discharge of oil or other pollution by oil within such state; or
(B) affect or modify in any way the obligations or liabilities of any personunder the Solid Waste Disposal Act (42 U.S.C. 6901 et seq.) or state law,including common law.
(2) Nothing in this Act or in sections 4611 or 9509 of the Internal RevenueCode of 1986 shall affect or be construed to affect the authority of anystate or political subdivision thereof-
(A) to establish or to continue in effect a fund any purpose of which isto pay for costs or damages arising out of, or directly resulting from,oil pollution or the substantial threat of oil pollution; or
(B) to require any person to contribute to such a fund.
135 Cong. Rec. 156 H8128-29 (daily ed. Nov. 8, 1989).
11 The Conference Committee also indicated its intent "not to disturbthe Supreme Court's decision in Ray v. Atlantic Richfield Co., 435 U.S.151, 98 S. Ct. 988, 55 L.Ed.2d 179 (1978)." Id.


APPENDIX C
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WASHINGTON

No. C95-1096C

THE INTERNATIONAL ASSOCIATION OF
INDEPENDENT TANKER OWNERS (INTERTANKO), PLAINTIFF
v.
MIKE LOWRY, ET AL., DEFENDANTS

[Nov. 18, 1996]

ORDER
COUGHENOUR, District Judge.
This matter comes before the Court on cross-motions for summary judgmentfiled by plaintiff, defendants and intervenors. Having heard oral argument,and having reviewed the pleadings, memoranda, exhibits and other documentson file, the Court now finds and concludes as follows:
I. Background
This is a lawsuit brought by the International Association of IndependentTanker Owners ("Intertanko") against Washington State, certainstate officials, and four county prosecutors. Intertanko seeks an orderdeclaring that certain Washington statutes and regulations pertaining tothe operation of oil tankers in state waters are unconstitutional. Threeenvironmental groups, the National Resources Defense Council, the WashingtonEnvironmental Counsel and Ocean Advocates, Inc., have intervened.
The marine waters of Washington include a rocky ocean coastline, the "inlandsea" of Puget Sound, and the Strait of Juan de Fuca. These waters hostecosystems that are as rich and diverse as any in the world. These watersare also highly susceptible to damage from oil pollution. Puget Sound isparticularly vulnerable because it is relatively confined and shallow. PugetSound is also difficult to navigate due to vessel traffic, fog and naturalobstructions.
Intertanko is a trade association with approximately 253 members and 152associate members who own or operate tankers. Intertanko's members representon a tonnage basis, approximately 80 percent of the world's independentlyowned tanker fleet. Intertanko members call at oil facilities in Puget Sound,and travel along the Columbia River to reach ports in Oregon.
Intertanko challenges several statutes and regulations that have been implementedby the state to prevent oil spills and thereby protect Washington waters.See RCW 88.46.010, et seq., and WAC 317-21-010, et seq. Intertanko specificallyasserts that RCW 88.46.010(2)-(3), and RCW 88.46.040(3) are preempted orotherwise invalidated by federal law. In order to transport oil in statewaters, these statutes require tank vessel operators to file oil spill preventionplans. These plans must provide for the best achievable protection fromdamages caused by the discharge of oil, and must comply with regulationsadopted by the State Office of Marine Safety ("OMS").
Intertanko also asserts that 16 regulations promulgated by the OMS are invalid.These regulations lay out specific requirements that tanker vessel operatorsmust satisfy to meet the best achievable protection standards in their preventionplans. These regulations may be summarized as follows:
1. Event Reporting-WAC 317-21-130. Requires operators to report all eventssuch as collisions, allisions and near-miss incidents for the five yearspreceding filing of a prevention plan, and all events that occur thereafterfor tankers that operate in Puget Sound.

2. Operating Procedures-Watch Practices- WAC 317-21-130. Requires tankersto employ specific watch and lookout practices while navigating and whenat anchor, and requires a bridge resource management system that is the"standard practice throughout the owner's or operator's fleet,"and which organizes responsibilities and coordinates communication betweenmembers of the bridge.

3. Operating Procedures-Navigation-WAC 317-21-205. Requires tankers in navigationin state waters to record positions every fifteen minutes, to write a comprehensivevoyage plan before entering state waters, and to make frequent compass checkswhile under way.

4. Operating Procedures-Engineering-WAC 317-21-210. Requires tankers instate waters to follow specified engineering and monitoring practices.

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

6. Operating Procedures-Emergency Procedures-WAC 317-21-220. Requires tankermasters to post written crew assignments and procedures for a number ofshipboard emergencies.
7. Operating Procedures-Events-WAC 317-21-225. Requires that when an eventtranspires in state waters, such as a collision, allision or near-miss incident,the operator is prohibited from erasing, discarding or altering the positionplotting records and the comprehensive written voyage plan.
8. Personnel Policies-Training-WAC 317-21-230. Requires operators to providea comprehensive training program for personnel that goes beyond that necessaryto obtain a license or merchant marine document, and which includes instructionson a number of specific procedures.
9. Personnel Policies-Illicit Drugs and Alcohol Use-WAC 317-21-235. Requiresdrug and alcohol testing and reporting.
10. Personnel Policies-Personnel Evaluation- WAC 317-21-240. Requires operatorsto monitor the fitness for duty of crew members, and requires operatorsto at least annually provide a job performance and safety evaluation forall crew members on vessels covered by a prevention plan who serve for morethan six months in a year.
11. Personnel Policies-Work Hours-WAC 317-21-245. Sets limitations on thenumber of hours crew members may work.
12. Personnel Policies-Language-WAC 317-21-250. Requires all licensed deckofficers and the vessel master to be proficient in English and to speaka language understood by subordinate officers and unlicensed crew. Alsorequires all written instruction to be printed in a language understoodby the licensed officers and unlicensed crew.
13. Personnel Policies-Record Keeping-WAC 317-21-255. Requires operatorsto maintain training records for crew members assigned to vessels coveredby a prevention plan.
14. Management-WAC 317-21-260. Requires operators to implement managementpractices that demonstrate active monitoring of vessel operations and maintenance,personnel training, development and fitness, and technological improvementsin navigation.
15. Technology-WAC 317-21-265. Requires tankers to be equipped with globalpositioning system receivers, two separate radar systems, and an emergencytowing system.
16. Advance Notice of Entry and Safety Reports-WAC 317-21-540. Requiresat least twenty-four hours notice prior to entry of a tanker into statewaters, and requires that the notice report any conditions that pose a hazardto the vessel or the marine environment.
Intertanko relies on a number of federal statutes, regulations and internationaltreaty obligations to assert that the state statutes and regulations improperlyintrude into a field controlled by the federal government. Most of the federallaw relied on by Intertanko is derived from the Tank Vessel Act of 1936,the Ports and Waterways Safety Act of 1972 ("PWSA"), the Portand Tanker Safety Act of 1978 ("PTSA")1, and the Oil PollutionAct of 1990 ("OPA 90")2. The progressive passage of these actsby Congress either added to or amended prior law regarding the regulationof oil tankers. The provisions of these acts are largely found in Titles33 and 46 of the United States Code. These laws impose specific requirementsfor tankers or delegate to the Coast Guard the responsibility for promulgatingspecific standards.
Intertanko also relies on a handful of treaties to which the United Stateshas acceded. These include the International Convention for the Safety ofLife at Sea, 1974 ("SOLAS"), the International Convention forthe Prevention of Pollution from Ships, 1973, and the Protocol of 1978 ("MARPOL"),the International Convention on Standards of Training, Certification, andWatchkeeping for Seafarers, 1978 ("STCW"), and the InternationalRegulation for Preventing Collisions at Sea, 1973 ("COLREGS").These treaties have all been signed and ratified by the United States.3
II. Discussion
This case tests the extent to which Washington State may protect its marineenvironment by regulating oil tankers in the areas of operations, personnel,management, technology and information reporting. Although protection ofthe marine environment has historically been within the reach of the policepowers of the states, shipping has traditionally been governed by federallaw. Thus the Washington oil spill prevention statutes and regulations overlaprequirements imposed by the federal government. This overlap creates a tensionbetween the power of the state and the power of the federal government.
Intertanko seeks to resolve this tension. Intertanko argues that the Washingtonoil spill prevention statutes and regulations are preempted by federal statutesand regulations, and by federal treaty obligations through the SupremacyClause of the United States Constitution. It also argues that the oil preventionstatutes and regulations violate the Foreign Affairs Clause of the Constitutionand the Commerce Clause of the Constitution. In addition, it asserts thatthe regulations are invalid because they reach beyond the three mile territoriallimit of the navigable waters of Washington State.
Intertanko moves for summary judgment and asks the Court to enjoin the enforcementof the oil spill prevention laws. Defendants and intervenors move for summaryjudgment dismissing Intertanko's complaint. Because the resolution of thiscase depends almost exclusively on questions of law, there are no genuineissues of material fact and Intertanko's claims may be fully litigated onsummary judgment. Fed. R. Civ. P. 56.
A. Preemption
"[W]hen a State's exercise of its police power is challenged underthe Supremacy Clause, 'we start with the assumption that the historic policepowers of the States were not to be superseded by the Federal Act unlessthat was the clear and manifest purpose of Congress.'" Ray v. AtlanticRichfield Co., 435 U.S. 151, 157, 98 S. Ct. 988, 994, 55 L.Ed.2d 179 (1978).Explicit preemption is present when Congress so declares. Id. Implicit preemptionis present if the scheme of federal regulation is so pervasive as to indicatethat Congress left no room for state action. Id. It may also be inferredwhen "the federal interest is so dominant that the federal system willbe assumed to preclude enforcement of state laws on the same subject."Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S. Ct. 1146, 1152,91 L.Ed. 1447 (1947).
In those cases where Congress has not totally foreclosed state regulation,a state statute is preempted if it conflicts with a federal statute. Ray,435 U.S. at 158, 98 S. Ct. at 994. "A conflict will be found 'wherecompliance with both federal and state regulations is a physical impossibility. . .,' or where the state 'law stands as an obstacle to the accomplishmentand execution of the full purposes and objectives of Congress.'" Id.(quoting Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132,142-43, 83 S. Ct. 1210, 1217, 10 L.Ed.2d 248 (1963); Hines v. Davidowitz,312 U.S. 52, 67, 61 S. Ct. 399, 404, 85 L.Ed. 581 (1941)).
Express and implied preemption do not require that state and federal rulesconflict. A state rule may be preempted under these theories when it isdifferent than the federal rule. The state and federal rule must, however,be at odds for conflict preemption to apply.
1. Oil Pollution Act of 1990
As an initial matter, defendants and intervenors assert that OPA 90 expresslyprohibits the preemption of state oil spill prevention laws. Congress passedOPA 90 soon after the Exxon Valdez oil spill in Prince William Sound. TheAct addresses oil pollution liability, compensation, prevention and removal.
Defendants and intervenors rely on OPA 90 § 1018, which is codifiedat 33 U.S.C. § 2718. Section 1018 of the Act states in relevant part:
(a) PRESERVATION OF STATE AUTHORITIES; SOLID WASTE DISPOSAL ACT-Nothingin this Act . . . shall-
(1) affect, or be construed or interpreted as preempting, the authorityof any State or political subdivision thereof from imposing any additionalliability or requirements with respect to-
(A) the discharge of oil or other pollution by oil within such State; or
(B) any removal activities in connection with such a discharge;
* * * * * *
(c) ADDITIONAL REQUIREMENTS AND LIABILITIES, PENALTIES-Nothing in this Act. . . shall in any way affect, or be construed to affect, the authorityof the United States or any State or political subdivision thereof-
(1) to impose additional liability or additional requirements; or
(2) to impose, or to determine the amount of, any fine or penalty (whethercriminal or civil in nature) for any violation of law;
relating to the discharge, or substantial threat of a discharge, of oil.
Defendants and intervenors claim that this language recognizes the rightof states to impose additional requirements to prevent oil spills. The startingpoint for statutory interpretation is consideration of the language employedby Congress, and consideration of the statute as a whole, including itshistory and purposes. United States v. van den Berg, 5 F.3d 439, 442 (9thCir. 1993).
The language of section 1018 is best understood when the Act as a wholeis considered. Section 1018 of OPA 90 is located in "Title I-Oil PollutionLiability and Compensation." Title I of OPA 90 sets the standards forliability and damages for the discharge of oil or the substantial threatof discharge of oil into the navigable waters of the United States. TheAct also includes "Title IV-Prevention and Removal." This titlesets standards for tanker personnel qualifications, manning, operations,design and construction. It also directs the President to prepare a NationalContingency Plan for the removal of oil, and to require tank vessel operatorsto prepare individual response plans for the removal of oil.
The language of the savings clause relied on by defendants and intervenorsapplies broadly to "this Act," which includes oil pollution liability,compensation, prevention and removal requirements. It makes clear that statesare not preempted from adding additional "requirements with respectto . . . the discharge of oil," or "relating to the discharge. . . of oil." Because the Act comprehensively addresses oil dischargeliability, compensation, prevention and removal, all provisions of the Actmust be "with respect to" or "relating to" the dischargeof oil. See Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 139, 111 S. Ct.478, 483, 112 L.Ed.2d 474 (1990) (a law relates to a subject when it hasa connection with or reference to that subject). Pursuant to the broad languageof section 1018, it follows that none of the provisions of OPA 90 preemptthe ability of the states to add to federal requirements in the areas addressedby the Act.
Intertanko's assertion that the savings clause is limited to liability,compensation, and removal, but not prevention, is not supported by the broadlanguage employed in section 1018. Moreover, Intertanko's assertion thatthe nonpreemption language is limited in its application by its placementin Title I is refuted by the explicit allowance in section 1018 for additionalstate regulation of "removal activities." Removal activities areregulated not in Title I, but in Title IV along with prevention standards.Thus the savings clause cannot be limited to Title I, but must also includeTitle IV.
In addition, Intertanko's assertion that applying the savings clause tothe prevention requirements would run afoul of international standards isundermined by other provisions in the Act. Foremost is the requirement thatoil tankers have double hulls. 46 U.S.C. § 3703a. This contradictsthe international standards imposed by Regulation 13F to Annex I of MARPOL,and demonstrates that Congress was not overly concerned with maintaininguniformity with such standards. In addition, the Act clearly states thatit is in the best interests of the United States to participate in an internationalregime "that is at least as effective as Federal and State laws inpreventing incidents . . ." OPA 90 § 3001.4 This anticipates thatfederal and state laws may be more effective than international standards.
The application of the savings clause to prevention regulations is alsosupported by the legislative history of OPA 90. The Conference Report onthe final version of OPA 90 explains the preemptory effect of the Act:
Thus, subsection (a) of section 1018 of the substitute states explicitlythat nothing in the substitute [bill] . . . shall affect in any way theauthority of the State or local government to impose additional liabilityor other requirements with respect to oil pollution or to the dischargeof oil within the State or with respect to any removal activities in connectionwith such discharge.
H.R. Conf. Rep. No. 101-653, 101st Cong., 1st Sess., p. 121 (1990), reprintedin 1990 U.S.C.C.A.N. 800 (emphasis added). This language reemphasizes thatthe Act broadly saves to states the ability to impose additional "requirementswith respect to oil pollution."5
The impact of the savings clause on prevention standards is further highlightedby a letter to the Coast Guard Commandant from the Washington State CongressionalDelegation dated September 28, 1993. That letter concerned the applicationof Washington's regulations to vessels passing through state waters to reachCanada. The delegation said "[w]e are extremely concerned with theCoast Guard's threats to void state oil prevention standards for these Canada-boundvessels. In the Oil Pollution Act of 1990 Congress provided that state laws,requirements and jurisdiction would not be preempted by federal law. TheU.S. Coast Guard should not be obstructing the state's efforts to protectstate waters."
The only other court to address the nonpreemption language of OPA 90 alsoconcluded that the Act saved to states the ability to impose additionalrequirements with regard to all aspects of oil pollution liability, compensation,prevention and removal. In Berman Enterprises, Inc. v. Jorling, 793 F.Supp.408, 414-16 (E.D.N.Y. 1992), aff'd, 3 F.3d 602 (2nd Cir. 1993), cert. denied,510 U.S. 1073, 114 S. Ct. 883, 127 L.Ed.2d 78 (1994), the court examineda New York statute that required vessels to obtain a state license thatamong other things necessitated a showing that the vessel "'can providenecessary equipment to prevent, contain and remove discharges of petroleum.'"Id. at 411 (citing New York Navigation Law § 174(3)). The Court concludedthat the OPA 90 savings clause made clear that the New York statute wasnot preempted. It concluded that the statute was actually an acceptanceof "the federal government's invitation to provide additional meansof enforcing the federal policy favoring clean water." Id. at 416.
In similar fashion, upon a review of the language, structure and legislativehistory of the Act, the Court concludes that OPA 90's express nonpreemptionlanguage applies to the Washington State regulations, which govern tankeroperations, personnel, management, technology and information reporting.These regulations cover much of the same ground addressed by the preventionprovisions of OPA 90, which set standards for tanker personnel qualifications,manning, operations, design and construction. The Act made clear that Congressplaces a high priority on reducing the threat of oil pollution, and thatstates may impose additional requirements to meet these goals.

2. Implied Field Preemption.
Intertanko's assertion that a majority of the challenged regulations areinvalid under the theory of implied field preemption is largely foreclosedby the nonpreemption language of OPA 90. Implied field preemption is presentif the scheme of federal regulation is so pervasive as to indicate thatCongress left no room for state action, or if the federal interest is sodominant that the federal system will be assumed to preclude enforcementof state laws on the same subject. Ray, 435 U.S. at 157, 98 S. Ct. at 994.
Intertanko primarily asserts that the comprehensive regulation of oil tankersby the Federal government leaves no room for state regulation, which isthus preempted. There can be no doubt that the areas addressed by the Washingtonoil spill prevention rules, which generally cover tanker operations, personnel,management, technology and information reporting, are also comprehensivelyregulated by federal statutes, regulations and treaty obligations. Comprehensiveregulation of an area alone, however, is not enough to infer preemption.Hillsborough County, Fla. v. Automated Med. Labs., Inc., 471 U.S. 707, 716-18,105 S.Ct. 2371, 2376-78, 85 L.Ed.2d 714 (1985). There must be some additionalshowing that Congress intended the comprehensive nature of the regulationto foreclose state action.
In Ray the Supreme Court held that Congress impliedly occupied the fieldin the area of tanker design and construction. Among other things, the Courtexamined a Washington statute that required all oil tankers entering statewaters to have certain standard safety features, including a minimum amountof horsepower, twin screws, and double hulls. Ray, 435 U.S. at 160, 98 S.Ct. at 995-96. The Court found that these state law requirements were impliedlypreempted under the regime imposed by Title II of the PWSA.6 It specificallyexamined 46 U.S.C. § 391a (1970 Ed., Supp. V), the provisions of whichare now largely codified at 46 U.S.C. § 3703. With language similarto the current statute, the former version of section 3703 required theCoast Guard to issue regulations regarding the "design, construction,and operation" of tankers in order to protect "life, property,and the marine environment from harm." Ray, 435 U.S. at 161, 98 S.Ct. at 996.
Based on this statutory scheme the Court concluded that "Congress,insofar as design characteristics are concerned, has entrusted to the Secretarythe duty of determining which oil tankers are sufficiently safe to be allowedto proceed in the navigable waters of the United States." Id. at 163,98 S. Ct. at 997. As a result, "Congress intended uniform nationalstandards for design and construction of tankers that would foreclose theimposition of different or more stringent state requirements." Id.at 163-64, 98 S. Ct. at 997.
The Court also noted that states have more latitude outside the area oftanker design and construction. "Of course, that a tanker is certifiedunder federal law as a safe vessel insofar as its design and constructioncharacteristics are concerned does not mean that it is free to ignore otherwisevalid state or federal rules or regulations that do not constitute designor construction specifications." Id. at 168-69, 98 S. Ct. at 1000.
In this regard, the Ray Court addressed the impact of Title I of the PWSAon a Washington State regulation that required tug escorts for tankers over40,000 DWT when certain design requirements were not met. The Court notedthat Title I of the PWSA provided that the Coast Guard "may" promulgatevessel operating requirements, which could impose certain vessel trafficservices and systems, could require equipment necessary to follow theseservices and systems, could control vessel traffic by among other thingsspecifying size and speed limitations, and could restrict vessel operationsto those having the particular operating characteristics that are necessaryfor safety. Id. at 169-70, 98 S. Ct. at 1000. This authorization for CoastGuard action was codified at 33 U.S.C. § 1221 (1970 ed., Supp. V),and is currently located in large part at 33 U.S.C. § 1223.
The Court concluded that a tug escort provision was not a design requirementthat would be subject to implied field preemption, but was instead an operatingrule "arising from the peculiarities of local waters that call forspecial precautionary measures." Id. at 171, 98 S. Ct. at 1001. Becausewith regard to operating rules, the PWSA authorized but did not requirethe Coast Guard to issue controlling regulations, the Court found no impliedfield preemption. Id. It also concluded that because the Coast Guard hadnot promulgated tug escort provisions for Puget Sound, there was no conflictbetween the state rule and federal law. Id. at 172, 98 S. Ct. at 1001-02.7
The Ninth Circuit has also examined the preemptive effect of federal shippingregulations. In Chevron U.S.A., Inc. v. Hammond, 726 F.2d 483 (9th Cir.1984), cert. denied, 471 U.S. 1140, 105 S. Ct. 2686, 86 L.Ed.2d 703 (1985),the court examined an Alaska statute that prohibited oil tankers from dischargingballast water that had been stored in oil tanker holds. Instead, the statestatute required tankers to discharge such ballast water into on-shore processingfacilities. Chevron claimed that the statute was preempted by title II ofthe PWSA/PTSA, which required the Coast Guard to issue regulations concerningdeballasting. That authority exists today under 46 U.S.C. § 3703(a)(7).8The Coast Guard regulations concerning deballasting were less stringentthan the Alaska statute.
The Ninth Circuit held that the federal statute and regulatory scheme didnot impliedly preempt the state regulation concerning deballasting. Id.at 495. In reaching this decision, the court distinguished between the federalregulation of vessel "design characteristics," which were foundto preempt state law in Ray, and the federal regulation of "pollutantdischarges." Hammond, 726 F.2d at 488. It noted that the Supreme Courtin Ray concluded that "'ship design and construction standards arematters for national attention,'" but that "[t]he subject matterof environmental regulation, on the other hand, has long been regarded bythe Court as particularly suited to local regulation." Id. (quotingRay, 435 U.S. at 166 n.15, 98 S. Ct. at 998 n.15). The Ninth Circuit classifiedthe Alaska statute concerning the disposal of ballast water as an environmentalregulation limiting the discharge of pollutants from tankers. Id. It concludedthat while the statute was not subject to implied field preemption, it couldbe, but was not, subject to conflict preemption. Id. at 495, 501.
The Ninth Circuit also addressed the degree to which federal shipping regulationspreempted state law in Beveridge v. Lewis, 939 F.2d 859 (9th Cir. 1991).At issue there was a municipal ordinance regulating moorage and anchoragein Santa Barbara Harbor. The court concluded that while the Coast Guardhad extensive authority to regulate the anchoring, mooring and movementof vessels under 33 U.S.C. § 1223, that was not enough to create impliedpreemption. It explained:
Just as Ray refused to find implicit preemption and proceeded to discussthe actual conflicts between Washington's Tanker Law and federal regulations,we cannot hold that the PWSA occupies the entire field of regulation ofanchorage and mooring. We cannot distinguish tanker (Ray) and pollution(Chevron) regulations from mooring restrictions. If both the Supreme Courtand this circuit did not find Congress to have intended to preempt all localregulation by the PWSA in those areas, it is difficult to conceive how itcould be found here.
Id. at 863. Moreover, the Court recognized that there is "congressionalintent that 'there be joint federal/state regulation of ocean waters withinthree miles of shore.'" Id. at 864 (quoting Chevron, 726 F.2d at 489).The Court went on to find that there was no actual conflict between themunicipal ordinance and federal law. Id. at 864-65.
From Ray and its progeny two levels of preemption for statutes and regulationslike those at issue here may be distilled. These categories depend on thesubject matter that is being regulated. State regulation of oil tanker designand construction is impliedly preempted by federal law. Ray, 435 U.S. at163-64, 98 S. Ct. at 997-98. State regulation of tanker operations "arisingfrom the peculiarities of local waters that call for special precautionarymeasures" is not subject to implied field preemption, but may not actuallyconflict with federal regulation. Ray, 435 U.S. at 171, 98 S. Ct. at 1001.State regulation of water pollution is also not subject to implied fieldpreemption, but may not actually conflict with federal regulation. Chevron,726 F.2d at 495.
Here, the Washington regulations govern vessel operations in order "toprotect the state's natural resources and waters . . ." RCW 88.46.010.To do so standards are imposed in the areas of tanker operations, personnel,management, technology and information reporting. These areas are much moreakin to the operational tug escort provisions upheld in Ray, than to thedesign and construction requirements that were struck down in that case.9The state regulations arise "from the peculiarities of local watersthat call for special precautionary measures." Ray, 435 U.S. at 171,98 S. Ct. at 1001.
Moreover, these standards are intended to protect the environment, and thusare an exercise of the state's police powers. When vessels are involved,however, there is an unavoidable overlap between state and federal regulation.But when the concern is pollution, the Ninth Circuit has recognized theneed for "joint federal/state regulation of ocean waters within threemiles of shore." Chevron, 726 F.2d at 489. This partnership was furtherverified by the nonpreemption clause of OPA 90. As such, the Court cannotconclude that the Washington oil spill prevention statutes and regulationsare impliedly preempted.10

3. Express Preemption.
Intertanko hinges its claim of express preemption on several federal regulationsissued by the Coast Guard, in which it is stated that the regulation isintended to preempt state law. As a general rule, "[f]ederal regulationshave no less preemptive effect than federal statutes." Fidelity FederalSavings & Loan Association v. de la Cuesta, 458 U.S. 141, 153, 102 S.Ct. 3014, 3022, 73 L.Ed.2d 664 (1982). Where Congress has directed an agencyto exercise its discretion in regulating a field, the agency may issue regulationsthat preempt state law. Id. at 154, 102 S. Ct. at 3023. Such regulationsmay be effective so long as the agency has not exceeded the scope of itsdelegated authority, and has not acted in a manner that conflicts with theintent of Congress with regard to preemption as stated in the derivativestatute or its legislative history. Id.
Intertanko alleges that one of the Washington oil spill prevention statutes,and five of the oil spill prevention regulations or subparts are expresslypreempted by regulations issued by the Coast Guard.
In this instance, however, Congress did not intend to give the Coast Guardauthority to preempt state law with regard to the prevention of oil spills.The nonpreemption language of OPA 90 § 1018 prohibits the Coast Guardfrom doing so. See Fidelity Federal, 458 U.S. at 154, 102 S. Ct. at 3023.
In the one regulatory statement where the Coast Guard attempted to reconcileOPA 90 and Ray, it misconstrued the law and overstated its authority topreempt. Intertanko argues that 33 C.F.R. § 155.225, which requiresoil tankers to have certain emergency towing capabilities, expressly preemptsWAC 317-21-265(2), which requires tankers to be equipped with an emergencytowing system. When it promulgated the federal rule, the Coast Guard statedthat:
This rule establishes regulations requiring certain vessels to carry dischargeremoval equipment. In [Ray], the Supreme Court found that vessel designand equipment standards fall within the exclusive province of the FederalGovernment. The OPA 90 Conference Report explicitly says that provisionsin section 1018 of OPA 90 preserving certain State authority are not meantto disturb this Supreme Court decision. Therefore, the Coast Guard intendsthis rule to preempt State action addressing the same subject matter.
Discharge Removal Equipment for Vessels Carrying Oil, 58 Fed. Reg. 67,995(1993) (citation omitted). Because Ray required implied preemption onlyin the areas of tanker design and construction, and not with regard to equipmentstandards, the Coast Guard statement is inaccurate. Moreover, because atow package is considered an item of discharge removal equipment, it isdirectly saved by the language of OPA 90 allowing states to impose additionalrequirements with respect to "any removal activities." OPA 90§ 1018(a)(1)(B). The Coast Guard was without authority to preempt statelaw with this regulation, or with the other regulations cited by Intertanko.

4. Conflict Preemption.
Intertanko also argues that some of the Washington regulations are in directconflict with federal rules, and as such are preempted. Intertanko doesnot, however, identify any conflicts that require preemption. A state lawis in conflict with and preempted by federal law (1) if compliance withboth state and federal law is a physical impossibility or (2) if the statelaw stands as an obstacle to the accomplishment and execution of the fullpurpose and objective of Congress. Ray, 435 U.S. at 158, 98 S. Ct. at 994.
Intertanko identifies eight Washington regulations that parallel new requirementsthat are to be imposed on February 1, 1997 pursuant to the 1995 amendmentsto the STCW. The new STCW requirements are being implemented by the CoastGuard through federal regulations. Intertanko asserts that there is a directconflict because the state is requiring immediate implementation of theserules through its oil spill prevention regulations, rather than waitinguntil February 1, 1997. The state provisions cited by Intertanko requirecertain watch practices, navigation practices, training requirements forcrew members, personnel evaluations, limitations on working hours, Englishlanguage requirements, and management practices for the oversight of tankers.See WAC 317-21-200, 205(1)-(3), 230, 235, 240, 245 and 260.
First, to the extent that the Washington regulations require earlier implementationof the new STCW standards, compliance with state and federal law will notbe a physical impossibility. Ray, 435 U.S. at 158, 98 S. Ct. at 994. Rather,early implementation will actually help operators be in compliance withthe new STCW requirements when they become effective on February 1, 1997.Second, given the Congressional statement in OPA 90 as to the lack of preemptionfor additional, state imposed prevention requirements, the state regulationswill not stand as an obstacle to the accomplishment and execution of thefull purpose and objective of the new standards. Id. Indeed, the state regulationscomplement the federal goal of reducing "human error as a major causeof maritime casualties." Implementation of the 1995 Amendments to theSTCW, 61 Fed. Reg. 13284 (March 26, 1996).11
Intertanko's emphasis on uniformity with international standards is alsoundercut by the Coast Guard's proposed rulemaking to implement the STCW.The Coast Guard explains that while it has tried to avoid "unnecessaryadditional requirements when international standards are being implemented.. . . In some cases, clear differences with the international scheme areretained to preserve continuity in the U.S. licensing system." 61 Fed.Reg. at 13285.
The same analysis holds true for the two federal regulations for which Intertankoalleges an actual conflict with state rules. Intertanko says that WAC 317-21-250,which requires that all masters and licensed deck officers be able to speakEnglish, and be able to speak a language understood by subordinate officersand unlicensed crew, conflicts with 46 U.S.C. § 8702(b), which requiresthat 75 percent of the crew in each department on board be able to understandany order spoken by the officers. If, however, a vessel is in compliancewith the state regulation, it will necessarily be meeting the less stringentrequirements of federal law. Thus dual compliance is not impossible.
Intertanko also asserts that WAC 317-21-200(1), which requires that thenavigation watch include two or three licensed deck officers, one of whom"may be a state-licensed" pilot, conflicts with 46 U.S.C. §8502, which permits the use of federal pilots on United States tankers participatingin coastwide trades. There is no conflict in this instance because the Washingtonregulation does not require a state-licensed pilot to be used as a lookout.12
B. Commerce Clause.
Intertanko argues that the Washington oil spill prevention statutes andregulations unconstitutionally limit commerce. Two types of state regulationsmay violate the Commerce Clause: "(1) those that directly burden interstatecommerce or that discriminate against out-of-state interests and (2) thosethat burden interstate transactions only incidentally." Kleenwell BiohazardWaste and General Ecology Consultants, Inc. v. Nelson, 48 F.3d 391, 395(9th Cir.), cert. denied, 515 U.S. 1143, 115 S. Ct. 2580, 132 L.Ed.2d 830(1995). Regulations in the first category are usually invalid unless thestate can show that a legitimate local interest unrelated to economic protectionis served and no less discriminatory alternative exists. Id. Those in thesecond category may be invalid if the challenging party can demonstratethat the incidental burdens on interstate and foreign commerce are clearlyexcessive in relation to the putative local benefits." Pacific NorthwestVenison Producers v. Smitch, 20 F.3d 1008, 1012 (9th Cir.), cert. denied,513 U.S. 918, 115 S. Ct. 297, 130 L.Ed.2d 211 (1994).
Intertanko alleges that the Washington oil spill prevention regime directlyregulates commerce because tanker traffic by definition involves the interstateor international transportation of oil. The Ninth Circuit has explained,however, that a state law does not directly regulate interstate commercemerely because it concretely affects a business engaged in interstate commerce.Kleenwell, 48 F.3d at 396. If that were the case, any regulation that affectedinterstate commerce would be forbidden. Id. Rather, the term is used "torefer to regulations whose central purpose is to regulate commerce, usuallyin order to benefit local interests." Id. (emphasis in original). TheCommerce Clause does not "invalidate state regulations whose primarypurpose is to address a legitimate local concern and whose incidental effectis to regulate interstate commerce." Id.
The Washington oil spill prevention rules are not impermissibly aimed atregulating commerce, or otherwise impeding interstate trade to protect statebusiness interests. The statutes and regulations are instead intended toprotect local waters from pollution.
The statutes and regulations at issue are similar to the law upheld in Kleenwell.There, the state required waste haulers to obtain a certificate of publicconvenience and necessity in order to transport and dispose of waste. Id.at 393. A waste hauler challenged the certificate requirement as a directburden on its interstate hauling of waste. Id. at 395-96. The court concludedthat the purpose of the statute was not the regulation of commerce, butwas instead the legitimate local concern of ensuring the safe disposal ofsolid waste. Id. at 398. It noted that Congress by statute had "explicitlyfound that the field of solid waste collection is properly subject to stateregulation." Id. Thus the Court found no direct regulation of commerce.Id.
In the present case oil tanker operators must file and obtain approval ofan oil spill prevention plan in order to operate in state waters. RCW 88.46.040.The purpose of the requirement is to protect state waters and the marineenvironment, reduce the risk of a vessel casualty causing an oil spill,and to encourage procedures and technology that increase the safety of marinetransportation and that protect the state's natural resources. WAC 317-21-010.To accomplish these goals the state requires operators to demonstrate throughprevention plans that their oil tankers meet certain standards in the areasof tanker operations, personnel, management, technology and informationreporting. In addition, Congress through the passage of OPA 90 § 1018made clear that the states could regulate these areas in order to preventoil spills. As in Kleenwell, the Washington oil spill prevention statutesand regulations do not directly regulate commerce in violation of the CommerceClause.
There may still, however, be a Commerce Clause violation if "the incidentalburdens on interstate and foreign commerce imposed by the Washington rulesare clearly excessive in relation to the putative local benefits."Pacific Northwest Venison Producers, 20 F.3d at 1012. Intertanko must showthat the burdens that the regulations impose on interstate commerce "clearlyoutweigh" the local benefits. Kleenwell, 48 F.3d at 399.
Intertanko has not submitted sufficient evidence to make this showing.13It asserts that the cost to date for a single tanker operator to develop,file and maintain an oil spill prevention plan has been about $12,000 andthat the cost of installing the emergency towing package required by therules will be about $80,000. These are relatively small amounts comparedto the average operating cost of a tanker, which is between $13.6 and $19million for U.S. flag tankers, and between $8.4 and $12 million for non-U.S.flag tankers.
The costs of implementing a plan are also quite small when compared to thecost of an oil spill. The state reports that the estimated average costof clean-up for four major oil spills in Washington between 1984 and 1988was $6.3 million, and that the estimated impact on natural resources foreach spill ranged between $2.2 and $8.1 million.
Given the relatively minimal cost of compliance as compared to the costof an oil spill, Intertanko cannot demonstrate that the incidental burdenson interstate and foreign commerce are clearly excessive in relation tothe benefit offered by the oil spill prevention statutes and regulations.This benefit is derived from the state's promulgation of what all agreeto be more stringent and protective regulations. Moreover, because of thewide disparity in costs associated with prevention as compared to the impactof an oil spill, only a slight amount of additional protection need be achievedfor the statutory scheme to have succeeded. As a result, Intertanko hasnot presented sufficient facts to prove an inequitable balance such thata Commerce Clause violation is present.14
C. Foreign Affairs Clause.
Intertanko also argues that the Washington oil spill prevention rules violatethe Foreign Affairs Clause of the Constitution because they allow the stateto contravene important international treaty agreements, and interfere withthe federal government's ability to enter into such agreements. State regulationsmay not impair the effective exercise of the nation's foreign policy. Zschernigv. Miller, 389 U.S. 429, 440, 88 S. Ct. 664, 670-71, 19 L.Ed.2d 683 (1968)(invalidating Oregon statutes that prevented foreign heirs from receivingproperty depending on the judgment of the state as to the propriety of theforeign country's domestic law). Thus "any state law that involvesthe state in the actual conduct of foreign affairs is unconstitutional."Trojan Technologies, Inc. v. Commonwealth of Pennsylvania, 916 F.2d 903,913 (3rd Cir. 1990), cert. denied, 501 U.S. 1212, 111 S. Ct. 2814, 115 L.Ed.2d986 (1991).
It is rare, however, that a state statute is invalidated because it intrudesinto the area of foreign affairs. Id. ("[o]n only one occasion hasthe Supreme Court struck down a state statute as violative of the foreignrelations power"). This is not such a case. Washington State is notacting in the federal government's place vis-a-vis a foreign or internationalbody, but is instead exercising its police power by regulating both foreignand domestic tankers to protect the environment. Moreover, the state's decisionsin this area are not keyed to any judgment as to the worthiness of a foreignregime. See Trojan, 916 F.2d at 903. Intertanko's Foreign Affairs Clausechallenge cannot be sustained.
D. Extraterritorial Impact of Regulations.
Intertanko argues that the regulations impose obligations on tanker operatorsthat go beyond the three-mile limit of Washington territorial waters, whichis set by the Washington Constitution. Wash. Const. Art. XXIV, § 1(setting state boundaries). It relies on State ex rel. Luketa v. Pollock,136 Wash. 25, 29, 239 P. 8 (1925), which confirmed that "the jurisdictionand dominion of the state extends to the three-mile limit off shore as definedin the constitution . . ."
The Washington statutes and regulations at issue by definition regulatetanker operations in Washington waters. The legislature made it unlawfulfor a covered vessel to operate in Washington waters without an approvedprevention plan. RCW 88.46.080, .090. Owners and operators must submit preventionplans for their tank vessels. RCW 88.46.040(1). A Tank vessel, in turn,is defined as a ship that carries oil and that "[o]perates on the watersof the state." RCW 88.46.010. There is accordingly no direct assertionof jurisdiction over vessels outside of Washington waters.
Intertanko objects, however, to the incidental effects of the regulations.It objects to the requirements that owners report hazardous events evenif the events occur outside of Washington, that owners use a bridge resourcemanagement system while in Washington waters that is the standard for thevessels in its fleet that operate in Washington15, that certain crew trainingand drill programs be conducted, that certain personnel evaluation and recordkeeping requirements be administered, and that certain owner and operationsmanagement programs be followed. The Court agrees with the state, however,that while some of these activities are likely to occur outside of Washington,such occurrences are not mandated.
Moreover, the Supreme Court has upheld state police power regulations thatincidentally and indirectly affect interstate or foreign commerce outsideof state waters. See Bayside Fish Flour Co. v. Gentry, 297 U.S. 422, 426,56 S. Ct. 513, 515, 80 L.Ed. 772 (1936) (denying challenge to Californialaw restricting the use of sardines caught outside of state waters). Inaddition, the Washington Supreme Court has upheld the authority of the stateto prohibit the possession or transportation of salmon taken from beyondthe state's three-mile limit. Frach v. Schoettler, 46 Wash.2d 281, 290,280 P.2d 1038 cert. denied, 350 U.S. 838, 76 S. Ct. 75, 100 L.Ed. 747 (1955).16Although these cases deal with fisheries rather than the prevention of oilpollution, the principle remains the same. Some incidental impact on extraterritorialactivities is permitted to protect state resources. Intertanko's extraterritorialchallenge falls short.
III. Conclusion
The Court concludes that the Washington oil spill prevention statutes andregulations are constitutionally valid. These statutes and regulations arenot preempted by federal law, do not violate the Commerce Clause or theForeign Affairs Clause of the Constitution, and are not improper extraterritorialrestrictions. Rather, the oil spill prevention laws legitimately protectWashington's delicate and valuable marine resources through the exerciseof the state's police powers.
Therefore, the motions for summary judgment filed by defendants and intervenorsare GRANTED and the motion for summary judgment filed by Intertanko is DENIED.This action is hereby DISMISSED and the Clerk of the Court is directed toenter judgment accordingly.17
SO ORDERED.



1 These two acts are often referred to together as the "PWSA/PTSA."
2 Pub. L. No. 101-380, 104 Stat. 486 (August 18, 1990).
3 A treaty cannot, however, have any impact on domestic laws unless it isself-executing, or unless its terms are enacted as parts of statutes oradministrative regulations. Islamic Republic of Iran v. Boeing Co., 771F.2d 1279, 1283 (9th Cir. 1985). There are at least four relevant factorsto be considered when determining whether a treaty is self-executing: "(1)'the purposes of the treaty and the objectives of its creators,' (2) 'theexistence of domestic procedures and institutions appropriate for directimplementation,' (3) 'the availability and feasibility of alternative enforcementmethods,' and (4) 'the immediate and long range social consequences of self-or non-self-execution.'" Id. (quoting People of Saipan v. United StatesDepartment of Interior, 502 F.2d 90, 97 (9th Cir. 1974), cert. denied, 420U.S. 1003, 95 S. Ct. 1445, 43 L.Ed.2d 761 (1975)). Intertanko has not addressedthese four factors in asserting that the treaties it relies upon are self-executing.Intertanko has, however, identified where these treaties have been implementedby federal statute and regulation.
4 Although this statement relates only to liability and removal regimes,it supports the view that Congress did not intend the provisions of OPA90 to be limited by international standards.
5 The Conference Report also stated that OPA 90 "does not disturb theSupreme Court's decision in Ray v. Atlantic Richfield Company, 435 U.S.151, [98 S. Ct. 988, 55 L.Ed.2d 179] (1978)." The citation to Ray maymean that there was an intention not to eradicate the Court's holding thatfederal law impliedly preempted state tanker design and construction regulations.Ray, 435 U.S. at 163-64, 98 S. Ct. at 997-98. That would not create an issuein this case because none of the Washington regulations control design andconstruction. Moreover, if there is a conflict between a statute and legislativehistory, the statute prevails. In re the Matter of Sinclair, 870 F.2d 1340,1344 (7th Cir. 1989).
6 Title I is now codified as amended in 33 U.S.C. §§ 1221-1232,and Title II is now codified as amended at 46 U.S.C. §§ 3701-3718.
7 The Ray Court also made clear that certain environmental laws were notpreempted by federal shipping laws and regulations. It explained that statescan still require federally certified vessels to conform to "'reasonable,nondiscriminatory conservation and environmental protection measures'"Id. (quoting Douglas v. Seacoast Products, Inc., 431 U.S. 265, 277, 97 S.Ct. 1740, 1748, 52 L.Ed.2d 304 (1977)); see also Askew v. American WaterwaysOperators, Inc., 411 U.S. 325, 343, 93 S. Ct. 1590, 1601, 36 L.Ed.2d 280(1973) ("sea-to-shore pollution [has been] historically within thereach of the police power of the States").
8 It should be noted that section 3703(a)(7) is the successor to the statutethat required the Coast Guard to promulgate regulations for the design andconstruction of tankers in Ray, which requirements were found to preemptWashington law. Thus a regulation mandated by 46 U.S.C. § 3703 doesnot automatically preempt state law.
9 A portion of the state statute struck down in Ray did include radar andnavigational position locating systems. Ray, 435 U.S. at 160, 98 S. Ct.at 995-96. Such requirements are more aptly included as regulations underTitle I of the PWSA/PTSA, 33 U.S.C. § 1223, which provides that theCoast Guard may establish vessel traffic services in navigable waters ofthe United States, and in doing so "may require vessels to installand use specified navigation equipment, communications equipment, electronicrelative motion analyzer equipment, or any electronic or other device .. ." Thus the requirements for global positioning system receiversand two separate radar systems under WAC 317-21-265 should be consideredequipment necessary for vessel operating procedures under 33 U.S.C. §1223. These requirements are not subject to implied preemption.
10 Intertanko also argues that implied field preemption is necessitatedbecause of the strength of the federal interest in maritime law uniformity.See Rice, 331 U.S. at 230, 67 S. Ct. at 1152. This argument is not sufficienton its own to justify a finding of implied field preemption. The Ninth Circuithas explained that "the general rule on preemption in admiralty isthat states may supplement federal admiralty law as applied to matters oflocal concern, so long as state law does not actually conflict with federallaw or interfere with the uniform working of the maritime legal system."Pacific Merchant Shipping Ass'n v. Aubry, 918 F.2d 1409, 1422 (9th Cir.1990) (emphasis in original), cert. denied, 504 U.S. 979, 112 S. Ct. 2956,119 L.Ed.2d 578 (1992). This statement recognizes that the federal interestin maritime law does not always preempt state law. Moreover, the touchstonefor preemption is conflict with federal law or interference with uniformity.These tests lead back to the question of whether the federal regulationis sufficiently comprehensive in the field to prohibit conflict and to requireuniformity. Moreover, any question about whether the need for uniformitycreates implied preemption is foreclosed by OPA 90.
11 Intertanko raises a similar complaint with regard to WAC 317-21-260(2),which requires vessel operators to have a management program, which meetsthe requirements of at least one of four international ship management regimes.One of these is the International Maritime Organization's InternationalSafety Management Code ("ISM"). This code is to become mandatoryfor vessels operating in international trade on July 1, 1998. Intertankoalleges that the Washington regulations conflict because they require complianceprior to that date. Even if early compliance created an actual conflict,no such conflict would exist because the ISM is just one of four regimestanker operators can follow.
12 As with the early implementation of the STCW standards, neither WAC 317-21-250or 317-21-200(1) will prevent achievement of federal goals.
13 Intertanko also argues that because this matter concerns internationalcommerce, the Court must give additional scrutiny to determine whether theregulations might impair uniformity where under federal law uniformity isessential. See Pacific Northwest Venison Producers, 20 F.3d at 1014. Intertanko'suniformity concern is, however, misplaced. Congress through OPA 90 §1018 has clarified that additional state oil spill prevention regulationsare appropriate.
14 The Court recognizes that defendants and intervenors did not in theirmotions for summary judgment address the Commerce Clause claim. They did,however, argue in response to Intertanko's motion for summary judgment thatthe Commerce Clause claim could not be sustained. And in arguing the meritsof the Commerce Clause claim, no party asserted the presence of genuineissues of material fact. As a result, the Court construes the argumentsof defendants and intervenors to be akin to cross-motions for summary judgment.Moreover, settled precedent allows the entry of summary judgment to a non-movingparty. Cool Fuel, Inc. v. Connett, 685 F.2d 309, 313 (9th Cir. 1982). TheCourt reaches the same conclusion with regard to Intertanko's extraterritorialclaim. See infra, at 1500-01.
15 "The bridge resource management system must be standard practicethroughout the owner's or operator's fleet." WAC 317-21-200(2). "'Fleet'means more than one tank vessel operated by the same owner or operator."WAC 317-21-060(5). "Tank vessel" means a ship that carries oiland that "[o]perates on the waters of the state." WAC 317-21-060(11).Thus application of the bridge resource management system to the "fleet"affects only those vessels that operate in Washington.
16 Intervenors point out that 16 U.S.C. § 1856(a)(3) now prohibitsa state from "directly or indirectly regulat[ing] any fishing vesseloutside its boundaries, unless the vessel is registered under the law ofthat State." No similar proscription has been placed on the state'sability to prevent pollution. Rather, OPA 90 has made clear that stateshave authority to issue oil spill prevention regulations.
17 The issues raised in defendant Krider's motion for summary judgment werepreviously ruled on by the Court in the July 3, 1996 Order denying his motionto dismiss. Accordingly, his motion for summary judgment is DENIED. PlaintiffIntertanko's motion to supplement the summary judgment record is GRANTED.



APPENDIX D
Article VI, Clause 2, of the United States Constitution (the Supremacy Clause)provides:
This Constitution, and the Laws of the United States which shall be madein Pursuance thereof; and all Treaties made, or which shall be made, underthe Authority of the United States, shall be the supreme Law of the Land;and the Judges in every State shall be bound thereby, any Thing in the Constitutionor Laws of any State to the Contrary notwithstanding.

APPENDIX E
1. Article VI of the International Convention on Standards of Training,Certification and Watchkeeping for Seafarers (STCW Convention) provides:
Certificates
(1) Certificates for masters, officers or ratings shall be issued to thosecandidate[s] who, to the satisfaction of the Administration, meet the requirementsfor service, age, medical fitness, training, qualification and examinationsin accordance with the appropriate provisions of the annex to the Convention.
(2) Certificates for masters and officers issued in compliance with thisarticle shall be endorsed by the issuing Administration in the form as prescribedin regulation I/2 of the annex. If the language used is not English, theendorsement shall include a translation into that language.

2. Article X of the STCW Convention provides:
Control
(1) Ships, except those excluded by article III, are subject, while in theports of a Party, to control by officers duly authorized by that Party toverify that all seafarers serving on board who are required to be certificatedby the Convention are so certificated or hold an appropriate dispensation.Such certificates shall be accepted unless there are clear grounds for believingthat a certificate has been fraudulently obtained or that the holder ofa certificate is not the person to whom that certificate was originallyissued.
(2) In the event that any deficiencies are found under paragraph (1) orunder the procedures specified in regulation I/4, "Control procedures",the officer carrying out the control shall forthwith inform, in writing,the master of the ship and the Consul or, in his absence, the nearest diplomaticrepresentative or the maritime authority of the State whose flag the shipis entitled to fly, so that appropriate action may be taken. Such notificationshall specify the details of the deficiencies found and the grounds on whichthe Party determines that these deficiencies pose a danger to persons, propertyor the environment.
(3) In exercising the control under paragraph (1), if, taking into accountthe size and type of the ship and the length and nature of the voyage, thedeficiencies referred to in paragraph (3) of regulation I/4 are not correctedand it is determined that this fact poses a danger to persons, propertyor the environment, the Party carrying out the control shall take stepsto ensure that the ship will not sail unless and until these requirementsare met to the extent that the danger has been removed. The facts concerningthe action taken shall be reported promptly to the Secretary-General.
(4) When exercising control under this article, all possible efforts shallbe made to avoid a ship being unduly detained or delayed. If a ship is sodetained or delayed it shall be entitled to compensation for any loss ordamage resulting therefrom.
(5) This article shall be applied as may be necessary to ensure that nomore favorable treatment is given to ships entitled to fly the flag of anon-Party than is given to ships entitled to fly the flag of a Party.

3. Table A-II/1, Column 2, of the Seafarers' Training, Certification andWatchkeeping Code (STCW Code) provides, in relevant part:
English language
Adequate knowledge of the English language to enable the officer to usecharts and other nautical publications, to understand meteorological informationand messages concerning ship's safety and operation, to communicate withother ships and coast stations and to perform the officer's duties alsowith a multilingual crew, including the ability to use and understand theStandard Marine Navigational Vocabulary as replaced by the IMO StandardMarine Communication Phrases.

4. Section B-VIII/2, Part 5, of the STCW Code provides:
PART 5 - GUIDANCE ON PREVENTION OF DRUG AND ALCOHOL ABUSE*
34 Drug and alcohol abuse directly affect the fitness and ability of a seafarerto perform watchkeeping duties. Seafarers found to be under the influenceof drugs or alcohol should not be permitted to perform watchkeeping dutiesuntil they are no longer impaired in their ability to perform those duties.

35 Administrations should consider developing national legislation:
.1 prescribing a maximum of 0.08% blood alcohol level (BAC) during watchkeepingduty as a minimum safety standard on their ships; and
.2 prohibiting the consumption of alcohol within 4 hours prior to servingas a member of a watch.
Drug and alcohol abuse screening programme guidelines
36 The Administration should ensure that adequate measures are taken toprevent alcohol and drugs from impairing the ability of watchkeeping personnel,and should establish screening programmes as necessary which:
.1 identify drug and alcohol abuse;
.2 respect the dignity, privacy, confidentiality and fundamental legal rightsof the individuals concerned; and
.3 take into account relevant international guidelines.*

5. Section A-VIII/1 of the STCW Code provides:
Fitness for duty
1 All persons who are assigned duty as officer in charge of watch or asa rating forming part of a watch shall be provided a minimum of 10 hoursof rest in any 24-hour period.
2 The hours of rest may be divided into no more than two periods, one ofwhich shall be at least 6 hours in length.
3 The requirements for rest periods laid down in paragraphs 1 and 2 neednot be maintained in the case of an emergency or drill or in other overridingoperational conditions.
4 Notwithstanding the provisions of paragraphs 1 and 2, the minimum periodof ten hours may be reduced to not less than 6 consecutive hours providedthat any such reduction shall not extend beyond two days and not less than70 hours of rest are provided each seven-day period.
5 Administrations shall require that watch schedules be posted where theyare easily accessible.

* See MSC/Circ. 595 - Principles and Guidelines Concerning Drug and AlcoholAbuse Programmes and MSC/Circ. 634 - Drug Use and Alcohol Abuse.
* See MSC/Circ. 595 - Principles and Guidelines Concerning Drug and AlcoholAbuse Programmes and MSC/Circ. 634 - Drug Use and Alcohol Abuse.


APPENDIX F
1. Section 3703 of Title 46, United States Code, provides:
§ 3703. Regulations
(a) The Secretary shall prescribe regulations for the design, construction,alteration, repair, maintenance, operation, equipping, personnel qualification,and manning of vessels to which this chapter applies, that may be necessaryfor increased protection against hazards to life and property, for navigationand vessel safety, and for enhanced protection of the marine environment.The Secretary may prescribe different regulations applicable to vesselsengaged in the domestic trade, and also may prescribe regulations that exceedstandards set internationally. Regulations prescribed by the Secretary underthis subsection are in addition to regulations prescribed under other lawsthat may apply to any of those vessels. Regulations prescribed under thissubsection shall include requirements about-
(1) superstructures, hulls, cargo holds or tanks, fittings, equipment, appliances,propulsion machinery, auxiliary machinery, and boilers;
(2) the handling or stowage of cargo, the manner of handling or stowageof cargo, and the machinery and appliances used in the handling or stowage;
(3) equipment and appliances for lifesaving, fire protection, and preventionand mitigation of damage to the marine environment;
(4) the manning of vessels and the duties, qualifications, and trainingof the officers and crew;
(5) improvements in vessel maneuvering and stopping ability and other featuresthat reduce the possibility of marine casualties;
(6) the reduction of cargo loss if a marine casualty occurs; and
(7) the reduction or elimination of discharges during ballasting, deballasting,tank cleaning, cargo handling, or other such activity.
(b) In prescribing regulations under subsection (a) of this section, theSecretary shall consider the types and grades of cargo permitted to be onboard a tank vessel.
(c) In prescribing regulations under subsection (a) of this section, theSecretary shall establish procedures for consulting with, and receivingand considering the views of-
(1) interested departments, agencies, and instrumentalities of the UnitedStates Government;
(2) officials of State and local governments;
(3) representatives of port and harbor authorities and associations;
(4) representatives of environmental groups; and

(5) other interested parties knowledgeable or experienced in dealing withproblems involving vessel safety, port and waterways safety, and protectionof the marine environment.

2. Section 1018(a) of the Oil Pollution Act of 1990 (OPA), Pub. L. No. 101-380,104 Stat. 505 (codified at 33 U.S.C. 2718(a)) provides, in relevant part:
Nothing in this Act * * * shall * * * affect, or be construed or interpretedas preempting, the authority of any State or political subdivision thereoffrom imposing any additional liability or requirements with respect to-(A)the discharge of oil or other pollution by oil within such State; or (B)any removal activities in connection with such a discharge.

3. Section 1018(c) of the OPA, 104 Stat. 506 (codified at 33 U.S.C. 2718(c))provides, in relevant part:
Nothing in this Act * * * shall in any way affect, or be construed to affect,the authority of the United States or any State or political subdivisionthereof- (1) to impose additional liability or additional requirements;or (2) to impose, or to determine the amount of, any fine or penalty (whethercriminal or civil in nature) for any violation of law; relating to the discharge,or substantial threat of a discharge, of oil.

APPENDIX G
1. Section 95.035 of Title 33 of the Code of Federal Regulations provides:
§ 95.035 Reasonable cause for directing a chemical test.
(a) Only a law enforcement officer or a marine employer may direct an individualoperating a vessel to undergo a chemical test when reasonable cause exists.Reasonable cause exists when:
(1) The individual was directly involved in the occurrence of a marine casualtyas defined in Chapter 61 of Title 46, United States Code, or
(2) The individual is suspected of being in violation of the standards in§§ 95.020 or 95.025.
(b) When an individual is directed to undergo a chemical test, the individualto be tested must be informed of that fact and directed to undergo a testas soon as is practicable.
(c) When practicable, a marine employer should base a determination of theexistence of reasonable cause, under paragraph (a)(2) of this section, onobservation by two persons.

2. Section 155.700 of Title 33 of the Code of Federal Regulations provides:
§ 155.700 Designation of person in charge.
Each operator or agent of a vessel with a capacity of 250 or more barrelsof fuel oil, cargo oil, hazardous material, or liquefied gas as regulatedin Table 4 of 46 CFR part 154, or each person who arranges for and hiresa person to be in charge of a transfer of fuel oil, of a transfer of liquidcargo in bulk, or of cargo-tank cleaning, shall designate, either by nameor by position in the crew, the person in charge (PIC) of each transferto or from the vessel and of each tank-cleaning.

3. Section 164.13(c) of Title 33 of the Code of Federal Regulations provides:
§ 164.13 Navigation underway: tankers.
* * * * *
(c) Each tanker must navigate with at least two licensed deck officers onwatch on the bridge, one of whom may be a pilot. In waters where a pilotis required, the second officer, must be an individual licensed and assignedto the vessel as master, mate, or officer in charge of a navigational watch,who is separate and distinct from the pilot.

4. Section 4.05-12 of Title 46 of the Code of Federal Regulations provides:
§ 4.05-12 Alcohol or drug use by individuals directly involved in casualties.
(a) For each marine casualty required to be reported by § 4.05-10,the marine employer shall determine whether there is any evidence of alcoholor drug use by individuals directly involved in the casualty.
(b) The marine employer shall include in the written report, Form CG-2692,submitted for the casualty information which:
(1) Identifies those individuals for whom evidence of drug or alcohol use,or evidence of intoxication, has been obtained; and,
(2) Specifies the method used to obtain such evidence, such as personalobservation of the individual, or by chemical testing of the individual.
(c) An entry shall be made in the official log book, if carried, pertainingto those individuals for whom evidence of intoxication is obtained. Theindividual must be informed of this entry and the entry must be witnessedby a second person.
(d) If an individual directly involved in a casualty refuses to submit to,or cooperate in, the administration of a timely chemical test, when directedby a law enforcement officer or by the marine employer, this fact shallbe noted in the official log book, if carried, and in the written report(Form CG-2692), and shall be admissible as evidence in any administrativeproceeding.

5. Subpart 4.06 of Title 46 of the Code of Federal Regulations provides:
SUBPART 4.06-MANDATORY CHEMICAL TESTING FOLLOWING SERIOUS MARINE INCIDENTSINVOLVING VESSELS IN COMMERCIAL SERVICE
§ 4.06-1 Responsibilities of the marine employer.
(a) At the time of occurrence of a marine casualty, a discharge of oil intothe navigable waters of the United States, a discharge of a hazardous substanceinto the navigable waters of the United States, or a release of a hazardoussubstance into the environment of the United States, the marine employershall make a timely, good faith determination as to whether the occurrencecurrently is, or is likely to become, a serious marine incident.
(b) When a marine employer determines that a casualty or incident is, oris likely to become, a serious marine incident, the marine employer shalltake all practicable steps to have each individual engaged or employed onboard the vessel who is directly involved in the incident chemically testedfor evidence of drug and alcohol use.
(c) The determination of which individuals are directly involved in a seriousmarine incident is to be made by the marine employer. A law enforcementofficer may determine that additional individuals are directly involvedin the serious marine incident. In such cases, the marine employer shalltake all practicable steps to have these individuals tested in accordancewith paragraph (b) of this section.
(d) The requirements of this subpart shall not prevent vessel personnelwho are required to be tested from performing duties in the aftermath ofa serious marine incident when their performance is necessary for the preservationof life or property or the protection of the environment.
(e) The marine employer shall ensure that all individuals engaged or employedon board a vessel are fully indoctrinated in the requirements of this subpart,and that appropriate vessel personnel are trained as necessary in the practicalapplications of these requirements.
(f) Each marine employer shall implement the testing requirements of thissubpart in accordance with the implementation schedule provided in 46 CFR16.205 and 16.207.
§ 4.06-5 Responsibilities of individuals directly involved in seriousmarine incidents.
(a) Any individual engaged or employed on board a vessel who is determinedto be directly involved in a serious marine incident shall provide blood,breath or urine specimens for chemical tests required by § 4.06-10when directed to do so by the marine employer or a law enforcement officer.
(b) If the individual refuses to provide blood, breath or urine specimens,this refusal shall be noted on Form CG-2692B and in the vessel's officiallog book, if one is required.
(c) No individual may be forcibly compelled to provide specimens for chemicaltests required by this part; however, refusal is considered a violationof regulation and could subject the individual to suspension and revocationproceedings under Part 5 of this chapter and removal from any duties whichdirectly affect the safety of the vessel's navigation or operations.
§ 4.06-10 Required specimens.
Each individual required to submit to chemical testing shall, as soon aspracticable, provide the following specimens for chemical testing:
(a) Urine specimens, collected in accordance with § 4.06-20 and Part16 of this Chapter.
(b) Blood or breath specimens, or both, collected in accordance with §4.06- 20.
§ 4.06-20 Specimen collection requirements.
(a) All inspected vessels certificated for unrestricted ocean routes, andall inspected vessels certificated for restricted overseas routes, are requiredto have on board at all times a breath testing device capable of determiningthe presence of alcohol in a person's system. The breath testing deviceshall be used in accordance with procedures specified by the manufacturer.
(b) The marine employer shall ensure that urine specimen collection andshipping kits meeting the requirements of § 16.330 of this part arereadily available for use following serious marine incidents. The specimencollection and shipping kits need not be maintained aboard each vessel ifthey can otherwise be readily obtained within 24 hours from the time ofthe occurrence of the serious marine incident.
(c) The marine employer shall ensure that specimens required by § 4.06-10are collected as soon as practicable following the occurrence of a seriousmarine incident.
(d) When obtaining blood, breath, and urine specimens, the marine employershall ensure that the collection process is supervised by either qualifiedcollection personnel, the marine employer, a law enforcement officer, orthe marine employer's representative.
(e) Chemical tests of an individual's breath for the presence of alcoholusing a breath testing device may be conducted by any individual trainedto conduct such tests. Blood specimens shall be taken only by qualifiedmedical personnel.
§ 4.06-30 Specimen collection in incidents involving fatalities.
(a) When an individual engaged or employed on board a vessel dies as a resultof a serious marine incident, blood and urine specimens must be obtainedfrom the remains of the individual for chemical testing, if practicableto do so. The marine employer shall notify the appropriate local authority,such as the coroner or medical examiner, as soon as possible, of the fatalityand of the requirements of this subpart. The marine employer shall providethe specimen collection and shipping kit and request that the local authorityassist in obtaining the necessary specimens. When the custodian of the remainsis a person other than the local authority, the marine employer shall requestthe custodian to cooperate in obtaining the specimens required under thispart.
(b) If the local authority or custodian of the remains declines to cooperatein obtaining the necessary specimens, the marine employer shall providean explanation of the circumstances on Form CG-2692B (Report of RequiredChemical Drug and Alcohol Testing Following a Serious Marine Incident).
§ 4.06-40 Specimen handling and shipping.
(a) The marine employer shall ensure that blood specimens collected in accordancewith §§ 4.06-20 and 4.06-30 are promptly shipped to a testinglaboratory qualified to conduct tests on such specimens. A proper chainof custody must be maintained for each specimen from the time of collectionthrough the authorized disposition of the specimen. Blood specimens mustbe shipped to the laboratory in a cooled condition by any means adequateto ensure delivery within twenty-four (24) hours of receipt by the carrier.
(b) The marine employer shall ensure that the urine specimen collectionprocedures of § 16.310 of this part and the chain of custody requirementsof § 16.320 are complied with. The marine employer shall ensure thaturine specimens required by §§ 4.06-20 and 4. 06-30 are promptlyshipped to a laboratory complying with the requirements of 49 CFR Part 40.Urine specimens must be shipped by an expeditious means, but need not beshipped in a cooled condition for overnight delivery.
§ 4.06-50 Specimen analysis and follow-up procedures.
(a) Each laboratory will provide prompt analysis of specimens collectedunder this subpart, consistent with the need to develop all relevant informationand to produce a complete analysis report.
(b) Reports shall be sent to the Medical Review Officer meeting the requirementsof 49 CFR 40.33, as designated by the marine employer submitting the specimenfor testing. Wherever a urinalysis report indicates the presence of a dangerousdrug or drug metabolite, the Medical Review Officer shall review the reportas required by 49 CFR 40.33 and submit his or her findings to the marineemployer. Blood test reports indicating the presence of alcohol shall besimilarly reviewed to determine if there is a legitimate medical explanation.
(c) Analysis results which indicate the presence of alcohol, dangerous drugs,or drug metabolites shall not be construed by themselves as constitutinga finding that use of drugs or alcohol was the probable cause of a seriousmarine incident.
§ 4.06-60 Submission of reports and test results.
(a) Whenever an individual engaged or employed on a vessel is identifiedas being directly involved in a serious marine incident, the marine employershall complete Form CG-2692B (Report of Required Chemical Drug and AlcoholTesting Following a Serious Marine Incident).
(b) When the serious marine incident requires the submission of Form CG-2692(Report of Marine Casualty, Injury or Death) to the Coast Guard in accordancewith § 4.05-10, the report required by paragraph (a) of this sectionshall be appended to Form CG-2692.
(c) In incidents involving discharges of oil or hazardous substances asdescribed in § 4.03-2 (b) and (c) of this part, when Form CG-2692 isnot required to be submitted, the report required by paragraph (a) of thissection shall be submitted to the Coast Guard Officer in Charge, MarineInspection, having jurisdiction over the location where the discharge occurredor nearest the port of first arrival following the discharge.
(d) Upon receipt of the report of chemical test results, the marine employershall submit a copy of the test results for each person listed on the CG-2692Bto the Coast Guard Officer in Charge, Marine Inspection to whom the CG-2692Bwas submitted.
[CGD 86-067, 53 FR 47078, Nov. 21, 1988, as amended by CGD 97-057, 62 FR51041, Sept. 30, 1997]

6. Section 16.230 of Title 46 of the Code of Federal Regulations provides:
§ 16.230 Random testing requirements.
(a) Marine employers shall establish programs for the chemical testing fordangerous drugs on a random basis of crewmembers on inspected vessels who:
(1) Occupy a position, or perform the duties and functions of a position,required by the vessel's Certificate of Inspection;
(2) Perform the duties and functions of patrolmen or watchmen required bythis chapter; or,
(3) Are specifically assigned the duties of warning, mustering, assembling,assisting, or controlling the movement of passengers during emergencies.
(b) Marine employers shall establish programs for the chemical testing fordangerous drugs on a random basis of crewmembers on uninspected vesselswho:
(1) Are required by law or regulation to hold a license issued by the CoastGuard in order to perform their duties on the vessel;
(2) Perform duties and functions directly related to the safe operationof the vessel;
(3) Perform the duties and functions of patrolmen or watchmen required bythis chapter; or,
(4) Are specifically assigned the duties of warning, mustering, assembling,assisting, or controlling the movement of passengers during emergencies.
(c) The selection of crewmembers for random drug testing shall be made bya scientifically valid method, such as a random number table or a computer-basedrandom number generator that is matched with crewmembers' Social Securitynumbers, payroll identification numbers, or other comparable identifyingnumbers. Under the testing frequency and selection process used, each coveredcrewmember shall have an equal chance of being tested each time selectionsare made and an employee's chance of selection shall continue to exist throughouthis or her employment. As an alternative, random selection may be accomplishedby periodically selecting one or more vessels and testing all crewmemberscovered by this section, provided that each vessel subject to the marineemployer's test program remains equally subject to selection.
(d) Marine employers may form or otherwise use sponsoring organizations,or may use contractors, to conduct the random chemical testing programsrequired by this part.
(e) Except as provided in paragraph (f) of this section, the minimum annualpercentage rate for random drug testing shall be 50 percent of covered crewmembers.
(f) The annual rate for random drug testing may be adjusted in accordancewith this paragraph.
(1) The Commandant's decision to increase or decrease the minimum annualpercentage rate for random drug testing is based on the reported randompositive rate for the entire industry. All information used for this determinationis drawn from the drug MIS reports required by this part. In order to ensurereliability of the data, the Commandant considers the quality and completenessof the reported data, may obtain additional information or reports frommarine employers, and may make appropriate modifications in calculatingthe industry random positive rate. Each year, the Commandant will publishin the Federal Register the minimum annual percentage rate for random drugtesting of covered crewmembers. The new minimum annual percentage rate forrandom drug testing will be applicable starting January 1 of the calendaryear following publication.
(2) When the minimum annual percentage rate for random drug testing is 50percent, the Commandant may lower this rate to 25 percent of all coveredcrewmembers if the Commandant determines that the data received under thereporting requirements of 46 CFR 16.500 for two consecutive calendar yearsindicate that the positive rate is less than 1.0 percent.
(3) When the minimum annual percentage rate for random drug testing is 25percent, and the data received under the reporting requirements of 46 CFR16.500 for any calendar year indicate that the positive rate is equal toor greater than 1.0 percent, the Commandant will increase the minimum annualpercentage rate for random drug testing to 50 percent of all covered crewmembers.
(g) Marine employers shall randomly select a sufficient number of coveredcrewmembers for testing during each calendar year to equal an annual ratenot less than the minimum annual percentage rate for random drug testingdetermined by the Commandant. If the marine employer conducts random drugtesting through a consortium, the number of crewmembers to be tested maybe calculated for each individual marine employer or may be based on thetotal number of covered crewmembers covered by the consortium who are subjectto random drug testing at the same minimum annual percentage rate underthis part or any DOT drug testing rule.
(h) Each marine employer shall ensure that random drug tests conducted underthis part are unannounced and that the dates for administering random testsare spread reasonably throughout the calendar year.
(i) If a given covered crewmember is subject to random drug testing underthe drug testing rules of more than one DOT agency for the same marine employer,the crewmember shall be subject to random drug testing at the percentagerate established for the calendar year by the DOT agency regulating morethan 50 percent of the crewmember's function.
(j) If a marine employer is required to conduct random drug testing underthe drug testing rules of more than one DOT agency, the marine employermay-
(1) Establish separate pools for random selection, with each pool containingthe covered crewmembers who are subject to testing at the same requiredrate; or
(2) Randomly select such crewmembers for testing at the highest percentagerate established for the calendar year by any DOT agency to which the marineemployer is subject.
(k) An individual may not be engaged or employed, including self-employment,on a vessel in a position as master, operator, or person in charge for whicha license or merchant mariner's document is required by law or regulationunless all crewmembers covered by this section are subject to the randomtesting requirements of this section.
7. Section 16.240 of Title 46 of the Code of Federal Regulations provides:
§ 16.240 Serious marine incident testing requirements.
The marine employer shall ensure that all persons directly involved in aserious marine incident are chemically tested for evidence of dangerousdrugs and alcohol in accordance with the requirements of 46 CFR 4.06.

APPENDIX H
1. Section 317-21-200(a) of the Washington Administrative Code provides:
317-21-200. Operating procedures-Watch practices.
* * * * *
(a) When the tanker is operating in restricted visibility, the navigationwatch shall include at least three licensed deck officers, one of whom maybe a state-licensed pilot when the tanker is in pilotage waters. The vesselmaster or officer in charge shall determine periods of restricted visibilityand record in the deck log the time restricted visibility begins and ends.
* * * * *

2. Section 317-21-230 of the Washington Administrative Code provides:
317-21-230. Personnel policies-Training.
An oil spill prevention plan for a tanker must describe a comprehensivetraining program that requires training beyond the training necessary toobtain a license or merchant marine document. The program must include instructionon the use of job-specific equipment, installed technology, lifesaving equipmentand procedures, and oil spill prevention and response equipment and procedures.The program must at a minimum contain the following elements.
(1) Crew training. Within three years from the effective date of this chapteror from the date of employment by the owner or operator, whichever is later,a crew member shall complete a comprehensive training program approved bythe office.
(2) Vessel orientation. Personnel newly assigned to a tanker or who havenot served on another tanker of the same vessel type for more than one year,and maintenance personnel who sail on tankers, shall undergo an orientationthat includes:
(a) Station assignments and procedures under WAC 317-21-220; and
(b) A vessel familiarization tour that includes:
(i) A walking tour of the deck house and other spaces designated by thevessel master; and
(ii) Identification of all egress routes.
(3) Position specific requirements. All personnel newly hired or who havenot served on a tanker of the same vessel type for more than one year, andwho are filling positions designated on the vessel's certificate of inspectionissued by the U.S. Coast Guard or safe manning certificate issued by thevessel's nation of registry, shall complete training specific to their position.
(a) The vessel's master, chief mate, chief engineer, and senior assistantengineer shall be trained in shipboard management.
(b) The vessel's master and other licensed deck officers shall be trainedin:
(i) Bridge resource management;
(ii) Automated radar plotting aids;
(iii) Shiphandling;
(iv) Crude oil washing, if the vessel is so equipped;
(v) Inert gas systems, if the vessel is so equipped;
(vi) Cargo handling for all cargo types carried, including associated hazardswith each type, and hull stress during cargo transfer;
(vii) Oil spill prevention and response responsibilities; and
(viii) Shipboard fire fighting.
(c) The vessel's licensed engineering officers shall be trained in:
(i) Inert gas systems, if the vessel is so equipped;
(ii) Vapor recovery systems, if the vessel is so equipped;
(iii) Crude oil washing, if the vessel is so equipped;
(iv) Oil spill prevention and response responsibilities; and
(v) Shipboard fire fighting.
(d) Unlicensed ratings shall be trained in bridge resource management ifassigned bridge responsibilities, or in cargo handling if assigned cargohandling responsibilities, or both, and all ratings shall receive trainingin oil spill prevention and response, and shipboard fire fighting.
(4) Refresher training. Personnel who received training described in subsection(3) of this section shall undergo refresher training at least once everyfive years. Refresher training must include examination of the crew member'sskills to determine his or her ability to safely and effectively performin the position assigned. Personnel who fail to undergo refresher trainingwithin five years, shall complete the position specific training programrequired in subsection (3) of this section.
(5) Shipboard drills. The following shipboard drills must be conducted andlogged in the vessel's deck log.
(a) A weekly fire drill that meets the requirements of 46 C.F.R. sec. 35.10-5.
(b) A monthly abandon ship drill that meets the requirements of the InternationalConvention on Safety of Life at Sea, Chapter III, Part B, Regulation 18.
(c) The following drills must be conducted quarterly:
(i) Oil spill response;
(ii) Emergency steering that complies with the International Conventionof Safety of Life at Sea, Chapter V, Regulation 19-2(d);
(iii) Loss of propulsion;
(iv) Loss of electrical power;
(v) Emergency towing; and
(vi) Man overboard.

3. Section 317-21-235(6) of the Washington Administrative Code provides:
317-21-235. Personnel policies-Illicit drug and alcohol use.
* * * * *
(6) The owner or operator shall report to the office the name, rating andassigned vessel of any navigation or engineering watchstander who remainsemployed by the owner or operator as a watchstander after testing positivemore than once during the previous twelve months of employment for illicitdrugs or use of alcohol on a tanker. The report shall be made within seventy-twohours of confirmation of the positive test result.
* * * * *