Appeal from the United States District Courtfor the Western District of WashingtonJohn C. Coughenour, District Judge, PresidingArgued and SubmittedFebruary 4, 1998--Seattle, WashingtonFiled June 18, 1998Before: James R. Browning and Diarmuid F. O'Scannlain,Circuit Judges, and Alfredo C. Marquez,* District Judge.Opinion by Judge O'Scannlain
______________________COUNSEL C. Jonathan Benner (argued), Sean T. Connaughton, Darin R.Bartram, Eckert Seamans Cherin & Mellott, Washington,D.C.; Henry C. Jameson, Jameson, Babbitt, Stites & Lom-bard, Seattle, Washington, for plaintiff/appellant InternationalAssociation of Independent Tanker Owners.Douglas Letter (argued), United States Department of Justice;Frank H. Hunger, Assistant Attorney General; Katrina C.Pflaumer, United States Attorney, Washington D.C., forintervenor/appellant United States.William B. Collins (argued), Senior Assistant Attorney Gen-eral; Jerri L. Thomas, Tanya Barnett, Assistant AttorneysGeneral, Olympia, Washington, for defendants/appellees GaryLocke, Governor, Christine O. Gregoire, Attorney General,Barbara J. Herman, Administrator, David Maceachern, Prose-cutor of Whatcom County, K. Carl Long, Prosecutor of SkagitCounty, Norman Maleng, Prosecutor of King County; Tim W.Dore, Snohomish County Deputy Prosecuting Attorney, Ever-ett, Washington, for defendant/appellee James H. Krider, Sno-homish County Prosecuting Attorney.Jeffrey L. Needle (argued), John Macdonald, J. Grahame Bell,Seattle, Washington, for intervenors/appellees WashingtonEnvironmental Council, National Resource Defense Council,and Ocean Advocates Inc.John B. Arum, Ziontz, Chestnut, Varnell, Berley & Slonim,Seattle, Washington, for amicus curiae Makah Indian Tribe.John Briscoe, Louis F. Claiborne, Christopher J. Carr, Wash-burn, Briscoe & McCarthy, San Francisco, California, foramicus curiae San Juan County.Charles L. Coleman, III, Matthew P. Vafidis, Dennis L. Bry-ant, Haight, Gardner, Poor & Havens, San Francisco, Califor-nia, for amicus curiae International Chamber of Shipping.
_____________________________OPINION O'SCANNLAIN, Circuit Judge:We must decide whether Washington's Best AchievableProtection Regulations, which impose requirements on oiltankers to prevent oil spills, are preempted by comparablefederal legislation under the Supremacy Clause or otherwiseviolate the United States Constitution.IIn the aftermath of the Exxon Valdez oil spill in 1989, theState of Washington enacted laws to protect its waters frompollution by oil tankers. See Wash. Rev. Code SS 88.46.010,et seq.; Wash. Admin. Code SS 317-21-010, et seq. Theseprovisions require that, in order to transport oil in state waters,tanker operators must: (1) file oil-spill prevention plans withthe state, and (2) comply with the state's Best AchievableProtection ("BAP") Regulations, which are promulgated bythe Washington Office of Marine Safety. See Wash. Rev.Code S 88.46.040. The International Association of Indepen-dent Tanker Owners ("Intertanko") maintains that sixteen ofthese regulations are unconstitutional. The district court sum-marized the challenged regulations as follows: 1. Event Reporting -- WAC 317-21-130. Requires operators to report all events such as collisions, alli- sions and near-miss incidents for the five years pre- ceding filing of a prevention plan, and all events that occur thereafter for tankers that operate in Puget Sound. 2. Operating Procedures -- Watch Practices-- [WAC 317-21-200].1 Requires tankers to employ specific watch and lookout practices while navigat- ing and when at anchor, and requires a bridge resource management system that is the "standard practice throughout the owner's or operator's fleet," and which organizes responsibilities and coordinates communication between members of the bridge. 3. Operating Procedures -- Navigation -- WAC 317-21-205. Requires tankers in navigation in state waters to record positions every fifteen minutes, to write a comprehensive voyage plan before entering state waters, and to make frequent compass checks while under way. 4. Operating Procedures -- Engineering -- WAC 317-21-210. Requires tankers in state waters to fol- low 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 engi- neering, navigation and propulsion systems twelve hours or less before entering or getting underway in state waters. 6. Operating Procedures -- Emergency Procedures -- WAC 317-21-220. Requires tanker masters to post written crew assignments and procedures for a number of shipboard emergencies. 7. Operating Procedures -- Events -- WAC 317-21-225. Requires that when an event transpires in state waters, such as a collision, allision or near- miss incident, the operator is prohibited from eras- ing, discarding or altering the position plotting records and the comprehensive written voyage plan. 8. Personnel Policies -- Training -- WAC 317-21-230. Requires operators to provide a compre- hensive training program for personnel that goes beyond that necessary to obtain a license or mer- chant marine document, and which includes instruc- tions on a number of specific procedures. 9. Personnel Policies -- Illicit Drugs and Alcohol Use -- WAC 317-21-235. Requires drug and alcohol testing and reporting. 10. Personnel Policies -- Personnel Evaluation-- WAC 317-21-240. Requires operators to monitor the fitness for duty of crew members, and requires oper- ators to at least annually provide a job performance and safety evaluation for all crew members on ves- sels covered by a prevention plan who serve for more than six months in a year. 11. Personnel Policies -- Work Hours -- WAC 317-21-245. Sets limitations on the number of hours crew members may work. 12. Personnel Policies -- Language -- WAC 317-21-250. Requires all licensed deck officers and the vessel master to be proficient in English and to speak a language understood by subordinate officers and unlicensed crew. Also requires all written instruction to be printed in a language understood by the licensed officers and unlicensed crew. 13. Personnel Policies -- Record Keeping -- WAC 317-21-255. Requires operators to maintain training records for crew members assigned to vessels cov- ered by a prevention plan. 14. Management -- WAC 317-21-260. Requires operators to implement management practices that demonstrate active monitoring of vessel operations and maintenance, personnel training, development, and fitness, and technological improvements in navi- gation. 15. Technology -- WAC 317-21-265. Requires tankers to be equipped with global positioning sys- tem receivers, two separate radar systems, and an emergency towing system. 16. Advance Notice of Entry and Safety Reports-- WAC 317-21-540. Requires at least twenty-four hours notice prior to entry of a tanker into state waters, and requires that the notice report any condi- tions that pose a hazard to the vessel or the marine environment.International Association of Independent Tanker Owners(Intertanko) v. Lowry, 947 F. Supp. 1484, 1488-89 (W.D. Wa.1996) Failure to comply with the BAP Regulations subjectstanker owners to the following: (1) assessment of civil penal-ties, see Wash. Rev. Code S 88.46.090; (2) criminal prosecu-tion, see Wash. Rev. Code S 88.46.080; and (3) denial ofentry into state waters, see Wash. Admin. Code S 317-21-020.Seeking both a declaration that the above-mentioned BAPRegulations are unconstitutional and a permanent injunctionagainst their enforcement, Intertanko filed suit in federal dis-trict court.2 Intertanko alleged that the requirements imposedby the regulations on tanker manning, training, management,safety, and on-board equipment were preempted by variousfederal statutes, including the Oil Pollution Act of 1990, thePort and Tanker Safety Act of 1978, the Ports and WaterwaysSafety Act of 1972, and the Tank Vessel Act of 1936. Inter-tanko also maintained that several of the BAP Regulationswere preempted by Coast Guard regulations and by variousinternational treaties. In addition to asserting that the BAPRegulations are invalid under the Supremacy Clause, Inter-tanko argued that the regulations violate the CommerceClause and impermissibly infringe upon the foreign affairspower of the federal government.The district court granted the State's motion for summaryjudgment and upheld every one of the challenged regulations.See Intertanko, 947 F. Supp. at 1500-01. Intertanko filed atimely appeal. Three environmental organizations -- theWashington Environmental Council, the National ResourcesDefense Council, and Ocean Advocates -- later intervened onbehalf of the state defendants, while the United States inter-vened on behalf of Intertanko.IIIntertanko's primary contention on appeal is that the BAPRegulations are preempted by federal law. Article VI of theConstitution provides that the laws of the United States "shallbe the supreme Law of the Land; . . . any Thing in the Consti-tution or Laws of any State to the Contrary notwithstanding."U.S. Const. art. VI, cl. 2. Consideration of preemption issues"start[s] with the assumption that the historic police powers ofthe States [are] not to be superseded by . . . Federal Act unlessthat [is] the clear and manifest purpose of Congress." Rice v.Santa Fe Elevator Corp.,
331 U.S. 218, 230
(1947). Accord-ingly, " `[t]he purpose of Congress is the ultimatetouchstone' " of preemption analysis. Malone v. White MotorCorp.,
435 U.S. 497, 504
(1978) (quoting Retail Clerks v.Schermerhorn,
375 U.S. 96, 103
(1963)).The state defendants maintain that Congress expressly indi-cated its intent not to preempt state law in the field of oil-spillprevention when it passed S 1018 of the Oil Pollution Act of1990 ("OPA 90"). See Pub. L. No. 101-380, 104 Stat. 484(codified at 33 U.S.C. S 2701, et seq.). That provision states,in pertinent part: (a) Preservation of State authorities . . . Nothing in this Act3 or the Act of March 3, 1851 shall -- (1) affect, or be construed or interpreted as preempting, the authority of any State or political subdivision thereof from imposing any additional liability or requirements with respect to -- (A) the discharge of oil or other pollu- tion by oil within such State . . . . . . . . (c) Additional requirements and liabilities; penalties Nothing in this Act, the Act of March 3, 1851 (46 U.S.C. 183 et seq.) or section 9509 of the Internal Revenue Code of 1986 (26 U.S.C. 9509), shall in any way affect, or be construed to affect, the author- ity of the United States or any State or political sub- division thereof -- (1) to impose additional liability or additional requirements; or (2) to impose, or to determine the amount of, any fine or penalty (whether criminal or civil in nature) for any violation of law; relating to the discharge, or substantial threat of a discharge, of oil.33 U.S.C. S 2718 (a) (emphasis added).The state defendants maintain that, by providing that noth-ing in OPA 90 preempts states from imposing "additional lia-bility or requirements with respect to the discharge of oil orother pollution by oil," 33 U.S.C. S 2718(a); see also 33U.S.C. S 2718(c), S 1018 grants states broad authority to enactoil-spill prevention regulations. In response, Intertanko arguesthat the savings clause of S 1018, which is located in Title Iof OPA 90, applies only to that Title. Therefore, Intertankoasserts, S 1018 is limited in its application to state laws con-cerning liability and penalties, the subjects covered by TitleI. Intertanko claims that the savings clause does not apply tothe other eight Titles of OPA 90, including Title IV, whichconcerns oil-spill prevention.4 Therefore, Intertanko contends,the savings clause contained in Title I does not preclude theoil-spill prevention provisions included in Title IV from pre-empting the oil-spill prevention provisions included in theBAP Regulations. In support of this argument, Intertankonotes that S 1018's savings clause is located not in a preambleto OPA 90, but instead near the end of Title I. Intertanko fur-ther observes that the language of S 1018 is consistent withthe subject matter of Title I, which concerns oil-spill liabilityand penalties, but inconsistent with the subject matter of TitleIV, which concerns oil-spill prevention.5 [1] Intertanko's argument that S 1018's savings clauseapplies only to Title I is at odds with that clause's plain lan-guage. Section 1018(a) provides that "[n]othing in this Act"preempts states from "imposing any . . . requirements withrespect to the discharge of oil or other pollution by oil." 33U.S.C. 2718(a) (emphasis added). By its plain language,S 1018 applies not only to Title I but to the other eight Titlesof OPA 90 as well. Accordingly, because the oil-spill preven-tion requirements set forth in the BAP Regulations clearly"respect"6 the discharge of oil, they are not preempted by any-thing in OPA 90.III[2] OPA 90 is not the only federal statute that regulatestanker vessels, however. Other such statutes include the Portand Tanker Safety Act of 1978 ("PTSA"), see Pub. L. No.95-474, 92 Stat. 471, the Ports and Waterways Safety Act of1972 ("PWSA"), see Pub. L. No. 92-340, 86 Stat. 424, andthe Tank Vessel Act of 1936, see Pub. L. No. 74-765, 49 Stat.1889. The United States contends that even if OPA 90 doesnot preempt the challenged BAP Regulations because of thesavings clause in S 1018, these other federal statutes do.[3] In response, the state defendants maintain that, by itsplain language, the savings clause of S 1018 applies not onlyto OPA 90 but to the other federal tanker regulation statutesas well. The plain language of S 1018 cannot bear this inter-pretation. Section 1018 says that nothing "in this Act"7 pre-empts state authority to impose additional requirements. See33 U.S.C. S 2718(a), (c). Thus, S 1018 does not explicitlyaddress whether state oil-spill prevention rules may be pre-empted by federal "Acts" other than OPA 90.[4] The state defendants also contend that, because OPA 90amends the PWSA, the PTSA, and the Tank Vessel Act, thesavings clause of S 1018 need not expressly refer to thoseActs to prevent them from preempting state law. However,the state defendants do not, and could not, offer any authorityfor the proposition that a savings clause in an Act that amendsanother Act necessarily applies to the amended Act, evenwhen the savings clause expressly refers to "this Act."Although OPA 90 amended prior federal statutes,S 1018 byits plain language has no automatic impact on preemptioncaused by those statutes.IV[5] Because S 1018 of OPA 90 does not by its plain lan-guage affect preemption by federal Acts other than OPA 90,we must determine whether such Acts otherwise impliedly orexpressly preempt the BAP Regulations. The Supreme Courthas recognized three types of preemption: conflict preemp-tion, field preemption, and express preemption. 8 See Cipol-lone v. Liggett Group, Inc.,
505 U.S. 504, 516
(1992).Conflict preemption occurs "when compliance with both stateand federal law is impossible, or when the state law`standsas an obstacle to the accomplishment and execution of the fullpurposes and objectives of Congress.' " California v. ARCAmerica Corp.,
490 U.S. 93, 100
-01 (1989) (citations omit-ted) (quoting Hines v. Davidowitz,
312 U.S. 52, 67
(1941)).Field preemption exists when federal law so thoroughly occu-pies a legislative field "as to make reasonable the inferencethat Congress left no room for the States to supplement it."Fidelity Fed. Sav. & Loan Ass'n. v. de la Cuesta, 458 U.S.141, 153 (1982) (quoting Rice v. Santa Fe Elevator Corp.,
313 U.S. 218, 230
(1947)). Finally, express preemption existswhen Congress explicitly states its intent to displace state lawin the statute's language. See Cipollone,
505 U.S. at 516
. Theissues of conflict, field, and express preemption were allraised by Intertanko in district court and are raised again onappeal.AWe first examine whether the BAP Regulations are subjectto conflict preemption. Conflict preemption exists "whencompliance with both state and federal law is impossible, orwhen the state law `stands as an obstacle to the accomplish-ment and execution of the full purposes and objectives ofCongress.' " California v. ARC America Corp., 490 U.S. at100-01 (quoting Hines,
312 U.S. at 67
). Intertanko does notargue that compliance with both federal law and the BAPRegulations is impossible; rather, Intertanko contends that theBAP Regulations interfere with "the full purposes and objec-tives of Congress." Hines,
312 U.S. at 67
.1Congress's first effort in the field of tanker regulation wasthe Tank Vessel Act, passed in 1936. See Pub. L. No. 74-765,49 Stat. 1889. The Tank Vessel Act "sought to effect a `rea-sonable and uniform set of rules and regulations concerningship construction . . . ,' " Ray v. Atlantic Richfield Co., 435U.S. 151, 166 (1977) (quoting H.R. Rep. No. 74-2962, at 2(1936)).In 1972, the Tank Vessel Act was significantly expandedby the Ports and Waterways Safety Act ("PWSA"), see Pub.L. No. 92-340, 86 Stat. 424, which "subjects to federal rulethe design and operating characteristics of oil tankers." Ray,
435 U.S. at 154
. The PWSA contains two Titles. Title I isconcerned with controlling tanker traffic. See id. at 161. TitleI authorizes the Coast Guard to "specify[ ] the times for vesselmovement, [to] establish[ ] size and speed limitations and ves-sel operating conditions, and [to] restrict[ ] vessel operation tothose vessels having the particular operating characteristicswhich [it] considers necessary for safe operation under thecircumstances." Id. at 169-70. Whereas Title I of the PWSAfocuses on tanker traffic, Title II of the Act is concerned withtanker design, construction, and operation. As the SupremeCourt explained in Ray, whereas Title I can be "compare[d]to `providing safer surface highways and traffic controls forautomobiles,' . . . Title II [may be] likened to `providing saferautomobiles to transit those highways.' " Id. at 161 n.9 (quot-ing S. Rep. No. 92-724, at 9-10 (1972), reprinted in 1972U.S.C.C.A.N. 2766, 2769).In 1978, the PWSA and Tank Vessel Act were supple-mented by the Port and Tanker Safety Act ("PTSA"). SeePub. L. No. 95-474, 92 Stat. 1471. The PTSA requires theSecretary of Transportation to establish regulations addressingvessel management, drug and alcohol testing, seafarer trainingand qualifications, casualty reporting, seafarer discipline,manning, work hours, pilotage, and language requirements.See 46 U.S.C. SS 9101, 9102.The federal tanker regulation scheme was again substan-tially altered when Congress passed OPA 90. See Pub. L. No.101-380, 104 Stat. 484. Enacted following the Exxon Valdezoil spill, OPA 90 addresses oil-pollution prevention, removal,liability, and compensation. See 33 U.S.C.S 2701, et. seq.OPA 90 imposed a number of new federal oil-spill preventionrequirements, including: random drug and alcohol testing, see46 U.S.C. S 7702; a provision mandating that working hourson a tanker be no more than 15 hours in any 24-hour period,or more than 36 hours in any 72-hour period, see 46 U.S.C.S 8104(n); and a requirement that tankers be equipped withdouble hulls, see 46 U.S.C. S 3703a.[6] Intertanko maintains that the BAP Regulations frustratethe purposes and objectives of Congress in adopting this leg-islative scheme. We disagree. In determining "the full pur-poses and objectives of Congress," Hines,
312 U.S. at 67
, wemust look not to the purposes and objectives of any singleAct, but instead to Congress's overarching purposes andobjectives in the relevant legislative field. See California v.ARC America Corp.,
490 U.S. at 102
("Appellees' only con-tention is that state laws permitting indirect purchaser recov-eries pose an obstacle to the accomplishment of the purposesand objectives of Congress. State laws to this effect are con-sistent with the broad purposes of the federal antitrust laws. . . .") (citing cases involving both Sherman Act and ClaytonAct) (emphasis added). In the field of tanker regulation, theoverarching purposes of Congress are best revealed by OPA90. As the most recent federal statute in the field, OPA 90reflects "the full purposes and objectives of Congress," Hines,
312 U.S. at 67
(emphasis added), better than the PWSA, thePTSA, or the Tank Vessel Act, all of which OPA 90 wasdesigned to complement.[7] As explained above, S 1018 of OPA 90 does notexpressly apply to other federal "Acts." However, the enact-ment of a new federal statute in a particular legislative fieldmay influence whether state laws in that field "frustrate thefull purposes and objective of Congress." Hines, 312 U.S. at67 (emphasis added). This is true even if the new statute con-tains a non-preemption clause which does not address otherstatutes in the field, cf. Freightliner Corp. v. Myrick, 514 U.S.280, 288 (1995) (existence of statutory provision containing"express definition of the pre-emptive reach of a statute . . .does not mean that the express clause entirely forecloses anypossibility of implied pre-emption"), or does not contain anon-preemption clause at all, see California v. ARC AmericaCorp.,
490 U.S. at 102
. Section 1018 of OPA 90 sheds con-siderable light upon the purposes and objectives of Congressin effectuating a federal scheme of tanker regulation. Thatprovision demonstrates Congress's willingness to permit stateefforts in the areas of oil-spill prevention, removal, liability,and compensation. Accordingly, we decline Intertanko's invi-tation to strike down the challenged BAP Regulations in theirentirety on the ground that they frustrate Congress's purposesand objectives in enacting OPA 90, the PWSA, the PTSA,and the Tanker Safety Act.2Intertanko next contends that the BAP Regulations frustratethe purposes and objectives of Congress because they conflictwith various international treaties. These treaties include: theInternational Convention for the Safety of Life at Sea, Nov.1, 1974, 32 U.S.T. 47; the Protocol of 1978 Relating to theInternational Convention for the Prevention of Pollution fromShips, Feb. 17, 1978, 17 I.L.M. 546; the Multilateral Interna-tional Regulations for Preventing Collisions at Sea, Oct. 20,1972, 28 U.S.T. 3459; the Agreement for a Cooperative Ves-sel Traffic Management System for the Juan de Fuca Region,Dec. 19, 1979, 32 U.S.T. 377; and the United Nations Con-vention on the Law of the Sea, Dec. 10, 1982, 21 I.L.M. 1261.9[8] As the Supreme Court observed in Hines, in determin-ing whether a state law "stands as an obstacle to the accom-plishment and execution of the full purposes and objectives ofCongress . . . it is of importance that [the state] legislation isin a field which affects international relations, the one aspectof our government that from the first has been most generallyconceded imperatively to demand broad national authority."Hines,
312 U.S. at 67
-68. States have no power to overrideinternational agreements entered into by the federal govern-ment. See Zschernig v. Miller,
389 U.S. 429, 441
(1968).Intertanko's argument that the BAP Regulations are pre-empted by these international treaties is undermined by ourdecision in Chevron U.S.A., Inc. v. Hammond, 726 F.2d 483(9th Cir. 1984). In Chevron, we held that an Alaska statutethat prohibited tankers from discharging ballast into the terri-torial waters of Alaska was not preempted by either federalstatute or international agreement. See Chevron, 726 F.2d at485. We stated: [T]he PWSA/PTSA does not mandate strict interna- tional uniformity. Although the legislative history of the PWSA/PTSA refers to congressional intent to abide by international agreements regarding the reg- ulation of tankers, the statute nonetheless gives the Coast Guard specific authority to establish stricter requirements than those set by international agree- ments. This indicates Congress' view that the inter- national agreements set only minimum standards, that strict international uniformity was unnecessary, and that standards stricter than the international minimums could be desirable in waters subject to federal jurisdiction.Id. at 493-94 (citations omitted) (emphasis added).[9] Passage of OPA 90 by Congress only reinforces thiscourt's conclusions in Chevron that "strict internationaluniformity" with respect to the regulation of tankers is not"mandate[d]" by federal law and that "international agree-ments set only minimum standards." Id. at 493. To reach anyother conclusion, we would have to read S 1018 to providethat the Act permits state tanker regulation only when thefield in question is not subject to international regulation.However, S 1018 plainly states that nothing in the Act shallbe interpreted to prohibit states from imposing "any additionalliability or requirements," 33 U.S.C. S 2718(a) (emphasisadded), not merely "additional liability or requirements wheresuch requirements would not conflict with an internationaltreaty."3The United States raises for the first time on appeal twoarguments concerning specific conflicts between the BAPRegulations and international treaties. These arguments are:(1) that the BAP Regulations interfere with the internationalright of "innocent passage," see United Nations Conventionon the Law of the Sea, Dec. 10, 1982, S 3, arts. 17-25, 21I.L.M. 1261, 1273-75; and (2) that the BAP Regulations con-flict with a bilateral agreement between the United States andCanada concerning traffic in the Strait of Juan de Fuca at theentrance to Puget Sound, see The Agreement for a Coopera-tive Vessel Traffic Management System for the Juan de FucaRegion, Dec. 19, 1979, 32 U.S.T. 377. Generally, we will notconsider arguments that are raised for the first time on appeal.See Self-Directed Placement Corp. v. Control Data Corp.,908 F.2d 462, 466 (9th Cir. 1990); Abex Corp. v. Ski'sEnters., Inc., 748 F.2d 513, 516 (9th Cir. 1984). The court hasdiscretion to address such arguments only: (1) "in the `excep-tional' case in which review is necessary to prevent a miscar-riage of justice or to preserve the integrity of the judicialprocess," Bolker v. Commissioner, 760 F.2d 1039, 1042 (9thCir. 1985) (quoting United States v. Greger, 716 F.2d 1275,1277 (9th Cir. 1983)); (2) "when a new issue arises whileappeal is pending because of a change in the law, " id.; or(3) "when the issue presented is purely one of law and eitherdoes not depend on the factual record developed below, or thepertinent record has been fully developed," id. In support of its claim that we may exercise our discretionto address its new arguments, the United States cites our deci-sion in Kimes v. Stone, 84 F.3d 1121 (9th Cir. 1996), in whichwe considered a Supremacy Clause argument raised for thefirst time on appeal. See id. at 1126. In Kimes, however, wenoted that the issue was "purely a question of law" and that"consideration of the issue would not prejudice[the opposingparty's] ability to present relevant facts that could affect ourdecision." Id. By contrast, the state defendants have not hadthe opportunity to develop the record concerning whether theBAP Regulations practically impair the right of innocent pas-sage or are enforced in a manner that is inconsistent with thebilateral agreement with Canada covering traffic in the Straitof Juan de Fuca. Accordingly, we do not consider the UnitedStates's new treaty-based arguments on appeal.10BIntertanko next argues that federal regulation of oil tankersby OPA 90, the PWSA, the PTSA, and the Tank Vessel Actis so comprehensive as to preempt impliedly the field oftanker regulation. Field preemption exists when federal law sothoroughly occupies a legislative field " `as to make reason-able the inference that Congress left no room for the States tosupplement it.' " Fidelity Fed. Sav. & Loan Assn., 458 U.S.at 153 (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. at230). The leading case on the subject of field preemption ofstate statutes that regulate tankers is Ray v. Atlantic RichfieldCo.,
435 U.S. 151
(1978). In Ray, the Supreme Court exam-ined the preemptive effect of the PWSA on the WashingtonTanker Law, 1975 Wash. Laws ch. 125, a statute that requiredvarious design-safety features for tankers operating in PugetSound. The Court found that certain safety features imposedby the Washington Tanker Law were preempted, but that oth-ers were not. See Ray,
435 U.S. at 160
, 168, 173, 178, 180.1One of the provisions of the Washington Tanker Lawaddressed in Ray required oil tankers weighing between40,000 and 125,000 deadweight tons to possess certain safetyfeatures, including a minimum amount of horsepower, twinscrews, two radars, and double hulls. See id. at 160. After athorough examination of the regulatory scheme established byTitle II of the PWSA, the Court found that these state require-ments were impliedly preempted. See id. at 168. However,this finding of implied preemption was limited to the field oftanker "design and construction." Id. at 163-64. The Courtstated: This statutory pattern shows that Congress, insofar as design characteristics are concerned, has entrusted to the Secretary the duty of determining which oil tankers are sufficiently safe to be allowed to proceed in the navigable waters of the United States. This indicates to us that Congress intended uniform national standards for design and construc- tion of tankers that would foreclose the imposition of different or more stringent state requirements. In par- ticular, as we see it, Congress did not anticipate that a vessel found to be in compliance with the Secre- tary's design and construction regulations and hold- ing a Secretary's permit, or its equivalent, to carry the relevant cargo would nevertheless be barred by state law from operating in the navigable waters of the United States on the ground that its design char- acteristics constitute an undue hazard.Id. (emphasis added); see also id. at 165 ("Enforcement of thestate requirements would at least frustrate what seems to us tobe the evident congressional intention to establish a uniformfederal regime controlling the design of oil tankers.") (empha-sis added); id. at 166 ("That the Nation was to speak with onevoice with respect to tanker-design standards is supported bythe legislative history of Title II . . . .") (emphasis added); id.at 166 n.15 ("The Court has previously observed that shipdesign and construction are matters for national attention.")(emphasis added); id. at 168 n.19 ("Here it is sufficiently clearthat Congress directed the promulgation of standards on thenational level, as well as national enforcement, with vesselshaving design characteristics satisfying federal law beingprivileged to carry tank-vessel cargoes in United Stateswaters.") (emphasis added).[10] The Ray Court next proceeded to examine a provisionof the Washington Tanker Law mandating tug escorts for anyvessel that did not have the safety features required by theTanker Law's other provisions. See id. at 171. The Courtbegan its analysis of the tug-escort requirement by observingthat a tanker's certification "under federal law as a vessel safeinsofar as its design and construction characteristics are con-cerned does not mean that it is free to ignore otherwise validstate or federal rules or regulations that do not constitutedesign or construction specifications." Id. at 168-69. TheCourt noted that the Washington Tanker Law's tug escort pro-vision was "not a design requirement," but instead was "moreakin to an operating rule arising from the peculiarities of localwaters that call for special precautionary measures. " Id. at171. The Court further observed that "[t]he relevant inquiry. . . with respect to the State's power to impose a tug-escortrule is . . . whether the [Coast Guard] has either promulgated[its] own tug requirement for Puget Sound tanker navigationor has decided that no such requirement should be imposed atall." Id. at 171-72. The Court concluded that because the Sec-retary had not imposed such a requirement, "the State'srequirement need not give way under the Supremacy Clause."Id. at 172. These excerpts from Ray teach that "operatingrule[s]," id. at 171, unlike design and construction require-ments, are not automatically subject to field preemption bythe PWSA. Attempting to distinguish Ray, Intertanko arguesthat Ray's analysis of "operating rule[s], id., applies only tothose requirements that "aris[e] from the peculiarities of localwaters." Id. This argument fails to recognize, however, thatthe operating requirements imposed by the BAP Regulationsare designed for the same "local waters," namely PugetSound, as was the Washington Tanker Law contested in Ray.Intertanko also maintains that Ray used the phrase "designand construction" as a "shorthand" for all Title II PWSA mat-ters, which include tanker operations as well as design andconstruction. Intertanko's interpretation of Ray, however, isplainly inconsistent with our own interpretation of the samecase in Chevron. In Chevron, we stated: The [Ray] Court's finding of preemption is specifically limited to the regulation of vessel "design characteristics" and thus does not control the outcome of the present case involving ocean pol- lutant discharges. As a matter of fact, the court spe- cifically explained that tankers must meet "otherwise valid state or federal rules or regulations that do not constitute design or construction specifications."Chevron, 726 F.2d at 487 (citations omitted) (quoting Ray,
435 U.S. at 168
-69) (emphasis added). We concluded inChevron that "deballasting" does not qualify as "design orconstruction" and that, consequently, deballasting regulationswere not automatically preempted under Ray. Id. Because thedischarge of ballast involves an "operation" directly related tothe sailing of a tanker,11 Chevron undermines Intertanko'sargument that the Ray Court used "design and construction"as "shorthand" for "design, construction, and operations."[11] Virtually all of the challenged BAP Regulationsimpose operational requirements rather than design and con-struction requirements. These operational requirementsinclude: accident reporting, see Wash. Admin. CodeS 317-21-130; watch practices, see Wash. Admin. CodeS 317-21-200; navigation procedures, see Wash. Admin. CodeS 317-21-205; engineering procedures, see Wash. Admin.Code S 317-21-210; prearrival tests and inspections, seeWash. Admin. Code S 317-21-215; emergency procedures,see Wash. Admin. Code S 317-21-220; rules against alteringor destroying records, see Wash. Admin. CodeS 317-21-225;training programs, see Wash. Admin. CodeS 317-21-230;illicit drugs and alcohol use, see Wash. Admin. CodeS 317-21-235; personnel evaluation, see Wash. Admin. CodeS 317-21-240; work hours, see Wash. Admin. CodeS 317-21-245; language requirements, see Wash. Admin.Code S 317-21-250; training records for crew members, seeWash. Admin. Code S 317-21-255; management, see Wash.Admin. Code S 317-21-260; and advance notice of entry andsafety reports, see Wash. Admin. Code S 317-21-540.Because these regulations do not qualify as "design andconstruction" requirements, they are not automatically subjectto field preemption under Ray.2[12] We reach a different conclusion with respect to Wash.Admin. Code S 317-21-265, however.12 The first subsectionof that provision, entitled "Navigation Equipment," requirestankers to possess global positioning system ("GPS") receiv-ers, as well as two separate radar systems. See Wash. Admin.Code S 317-21-265(1). The navigational equipment require-ments imposed therein are virtually indistinguishable from theradar and navigation devices that the Ray Court found to beregulated preemptively by the PWSA. The WashingtonTanker Law challenged in Ray required "[t]wo radars inworking order and operating, one of which must be collisionavoidance radar." Ray,
435 U.S. at 160
. The Ray Court, afterreviewing the requirements of the Washington Tanker Law,including the radar and navigational equipment requirements,stated that "the foregoing design requirements, standingalone, are invalid in light of the PWSA and its regulatoryimplementation." Id. at 160-61 (emphasis added). Because theGPS and radar requirements are virtually identical to the navi-gational equipment required by the Washington Tanker Law,Ray dictates that Wash. Admin. Code S 317-21-265(1) mustalso be classified as a "design requirement[ ]." Id. at 160-61.Applying Ray, we hold that Wash. Admin. CodeS 317-21-265(1) is preempted by the PWSA.In support of its conclusion that the navigational equipmentrules imposed by Wash. Admin. Code S 317-21-265(1) arenot "design requirements" subject to preemption under Ray,the district court stated that "[t]he requirements for globalpositioning system receivers and two separate radar systemsunder WAC 317-21-265 should be considered equipment nec-essary for vessel operating procedures under 33 U.S.C.S 1223," and therefore "are not subject to impliedpreemption." Intertanko, 947 F. Supp. at 1495 n.9. Regardlessof whether radar and other navigational systems "should" beconsidered "equipment necessary for vessel operatingprocedures," the Supreme Court considered them "designrequirements." Ray,
435 U.S. at 160
-61. We are bound by theRay Court's classification of these devices as "designrequirements," and by its conclusion that, as such, they areimpliedly preempted by the PWSA. See id.The second requirement imposed by Wash. Admin. CodeS 317-21-265 is that all ships be equipped with an emergencytowing package. See Wash. Admin. Code S 317-21-265(2).The state defendants contend that the towing package provi-sion is "not a design or construction requirement," but rathera "requirement to have certain equipment installed on atanker," and that, consequently, this provision is not pre-empted under Ray. However, the state defendants' argumentfails to recognize that "design requirements" and "equipmentrequirements" are not mutually exclusive. See Chevron, 726F.2d at 500 ("Alaska has left all designing of vessels andequipment to the Coast Guard and has only prohibited the dis-charge of polluted ballast.") (emphasis added). Section317-21-265(2) provides that towing equipment must meetseveral specific design standards. These standards include"[d]esignated strong points," Wash. Admin. CodeS 317-21-265(2)(a), and "[a]ppropriate chafing chains, towingpennant, tow line and connections," Wash. Admin. CodeS 317-21-265(2)(b), all of which must be capable of with-standing "sustained winds of forty knots and sea or swell offive and a half meters," Wash. Admin. CodeS 317-21-265(2)(a), (b). Because such design requirementsare preempted by the PWSA, see Ray,
435 U.S. at 160
-61, wehold that the emergency towing package requirement, like theGPS and radar requirements, is invalid under the SupremacyClause.C[13] We finally address whether any of the BAP Regula-tions are expressly preempted by federal law. In Ray, theSupreme Court held that, because the challenged tug-escortrule was not a design or construction requirement,"[t]he rele-vant inquiry . . . with respect to the State's power to impose[the] tug-escort rule is . . . whether the Secretary has eitherpromulgated his own tug requirement for Puget Sound tankernavigation or has decided that no such requirement should beimposed at all." Ray,
435 U.S. at 171
-72. Ray thus teachesthat once a court has determined that state tanker regulationsare not subject to implied preemption as "design andconstruction" requirements, the court still must examinewhether the state regulations are expressly preempted.Accordingly, having determined that all of the BAP Regula-tions except Wash. Admin. Code S 317-21-265 are not subjectto implied preemption as design and construction require-ments, we must now inquire whether those regulations aresubject to express preemption.[14] Intertanko contends that some of the BAP Regulationsare expressly preempted not by any federal statute but by avariety of federal regulations issued by the Coast Guard. Afederal agency, acting through its rulemaking processes, caneffect preemption of state law. See Fidelity Fed. Sav. & LoanAss'n,
458 U.S. at 153
-54. Indeed, "[f]ederal regulations haveno less pre-emptive effect than federal statutes. " Id. at 153.According to Intertanko, certain of the BAP Regulations areexpressly preempted by Coast Guard statements accompany-ing the issuance of federal regulations concerning watch prac-tices, see 58 Fed. Reg. 27,268, 27,632 (1993); steering gearfor vessels underway, see 60 Fed. Reg. 24,767, 24,771(1995); and drug and alcohol testing, see 58 Fed. Reg. 68,274,68,277 (1993).13[15] Preemption by regulations enacted by a federal agencydoes not occur if that agency is acting beyond the scope of itsdelegated powers. As the Supreme Court explained inLouisiana Pub. Serv. Comm'n v. FCC,
476 U.S. 355
(1986): [A] federal agency may preempt state law only when and if it is acting within the scope of its congressio- nally delegated authority. . . . [A]n agency literally has no power to act, let alone pre-empt the validly enacted legislation of a sovereign State, unless and until Congress confers power upon it. . . . . An agency may not confer power upon itself. To per- mit an agency to expand its power in the face of a congressional limitation on its jurisdiction would be to grant to the agency power to override Congress. This we are both unwilling and unable to do.Id. at 374-75; see also United States v. Shimer,
367 U.S. 374
,381-82 (1961) (administrative agency cannot preempt statelaw if "it appears from the statute or its legislative history thatthe accommodation is not one that Congress would havesanctioned").[16] Louisiana Public Service Commission teaches that therelevant inquiry in determining whether a federal regulationpreempts state law is whether the agency "is acting within thescope of its congressionally delegated authority. " Id. at 374.When it passed OPA 90, Congress required the Coast Guardto implement a wide range of oil-spill prevention rules. See 33U.S.C. SS 2701-2718. However, Congress did not authorizethe Coast Guard to preempt state law. Indeed, S 1018 of OPA90 establishes that nothing in OPA 90 may be construed asimpairing the ability of the states to impose their own oil-spillprevention requirements.14 See 33 U.S.C. S 2718. Therefore,we reject Intertanko's position that the Coast Guard was"acting within the scope of its congressionally delegatedauthority," Louisiana Pub. Serv. Comm'n,
476 U.S. at 374
, inenacting regulations that purport to preempt state law.VIntertanko next contends that the BAP Regulations violatethe Commerce Clause. The Commerce Clause provides that"[t]he Congress shall have Power . . . To regulate Commerce. . . among the several states . . . ." U.S. Const., art. I, S 8.Although this clause by its express terms serves only as anaffirmative grant to the federal government of the power toregulate interstate commerce, it has also been interpreted bythe Supreme Court to impose limits on the ability of the statesto do so. See Camps Newfound/Owatonna, Inc. v. Town ofHarrison, 117 S. Ct. 1590, 1596 (1997).[17] The Supreme Court has distinguished between twotypes of impermissible state regulations that incidentally bur-den interstate commerce. A facially nondiscriminatory regula-tion supported by a legitimate state interest which incidentallyburdens interstate commerce is constitutional unless the bur-den on interstate trade is clearly excessive in relation to thelocal benefits. See Pike v. Bruce Church, Inc.,
397 U.S. 137
,142 (1970). However, when a regulation "clearly " discrimi-nates against interstate commerce, it violates the CommerceClause unless the discrimination is demonstrably justified bya valid factor unrelated to state protectionism. See Wyomingv. Oklahoma,
502 U.S. 437, 454
(1992). In Pacific NorthwestVenison Producers v. Smitch, 20 F.3d 1008 (9th Cir. 1994),this court summarized the proper analysis as follows: If the regulations discriminate in favor of in-state interests, the state has the burden of establishing that a legitimate state interest unrelated to economic pro- tectionism is served by the regulations that could not be served as well by less discriminatory alternatives. In contrast, if the regulations apply evenhandedly to in-state and out-of-state interests, the party challeng- ing the regulations must establish that the incidental burdens on interstate and foreign commerce are clearly excessive in relation to the putative local ben- efits.Id. at 1012 (citations omitted).[18] Intertanko asserts that the cost for a tanker operator todevelop an oil-spill prevention plan that meets the standardsestablished by the BAP Regulations is approximately$12,000. However, Intertanko fails to point to any evidencein the record to establish that this "incidental burden[ ] oninterstate and foreign commerce [is] clearly excessive in rela-tion to the putative local benefits." Id. Nor does Intertankoeven argue that the BAP Regulations "discriminate in favor ofin-state interests." Id. Therefore, Intertanko's contention thatthe BAP Regulations violate the Commerce Clause is withoutmerit.VI[19] Finally, Intertanko maintains that the BAP Regulationsimpermissibly intrude upon the foreign affairs power of thefederal government. The Constitution entrusts the administra-tion of foreign affairs to the President and to Congress. SeeZschernig v. Miller,
389 U.S. 429, 432
(1968). Accordingly,"any state law that involves the state in the actual conduct offoreign affairs is unconstitutional." Id. The only case in which the Supreme Court has struck downa state statute as violative of the foreign affairs power isZschernig v. Miller,
389 U.S. 429
(1968). Zschernig involvedan Oregon statute providing that a nonresident alien could notinherit from an Oregon decedent unless certain conditionswere met. See id. at 440. The Supreme Court struck down theOregon statute on the ground that it had "more than `someincidental or indirect effect in foreign countries.' " Id. at 434(quoting Clark v. Allen,
331 U.S. 503, 516
-17 (1947)).[20] By their own terms, the BAP Regulations apply onlyto vessels operating within Washington's territorial limits. SeeWash. Rev. Code S 88.46.010. Intertanko objects to the poten-tial extraterritorial impact of requirements that: (1) ownersreport hazardous events regardless of whether the eventsoccur outside of Washington, see Wash. Admin. CodeS 317-21-130; (2) crew training and drill programs be con-ducted, see Wash. Admin. Code S 317-21-230; (3) personneland record keeping procedures be administered, see Wash.Admin. Code S 317-21-255; and (4) owner and operationsmanagement programs be followed, see Wash. Admin. CodeS 317-21-260. However, Intertanko has failed to demonstratethat, even if these regulations have some extraterritorialimpact, that impact is more than "incidental or indirect."Zschernig,
389 U.S. at 434
. Accordingly, we reject Inter-tanko's argument that the BAP Regulations infringe upon theforeign affairs power of the federal government.VIIWe affirm in part and reverse in part the district court'sgrant of summary judgment in favor of the State of Washing-ton. We reverse the district court's holding that Wash. Admin.Code S 317-21-265 is not preempted by federal law. How-ever, we affirm the district court's judgment as to all otherchallenged BAP Regulations. Each side shall bear its owncosts on appeal. AFFIRMED IN PART, REVERSED IN PART, ANDREMANDED. the end
___________________________FOOTNOTES 1 The district court misidentified this regulation as "WAC 317-21-130."International Association of Independent Tanker Owners (Intertanko) v.2 Intertanko named as defendants the Governor of Washington and vari-ous other state and local officials responsible for the promulgation andenforcement of the regulations.3 When OPA 90 was codified, all references to "Act" became "chapter."4 OPA 90 contains nine Titles. These include: Title I, Oil Pollution Lia-bility and Compensation; Title II, Conforming Amendments; Title III,International Oil Pollution Prevention and Removal; Title IV, Preventionand Removal; Title V, Prince William Sound Provisions; Title VI, Miscel-laneous Provisions; Title VII, Oil Pollution Research and DevelopmentProgram; Title VIII, Trans-Alaska Pipeline System; and Title IX, Oil SpillFund Transfers. See 33 U.S.C. S 2701, et. seq.5 Intertanko also points out that Title I of OPA 90 is labeled "Liabilityand Compensation." However, S 6001(c) of OPA 90 states that "[a]ninference of legislative construction shall not be drawn by reason of thecaption or catch line of a provision enacted by this Act." 33 U.S.C.S 2751(c).6 Like the phrase "relating to " employed in S 1018(c), the phrase "withrespect to" used in S 1018(a) is "clearly expansive." De Buono v. NYSA-ILSA Medical & Clinical Servs. Fund, 117 S. Ct. 1747, 1751 (1997) (dis-cussing "relate to" language of Employee Retirement Income Security Actof 1974). However, we decline to read S 1018's language "according to itsterms . . . since, as many a curbstone philosopher has observed, everythingis related to everything else." California Div. of Labor Standards Enforce-ment v. Dillingham Constr. N.A., 117 S. Ct. 832, 843 (Scalia, J., concur-ring). Rather, in determining whether state oil-spill prevention laws"respect" or "relate to" the "discharge of oil," we must look to the"objectives" of OPA 90. See New York State Conference of Blue Cross &Blue Shield Plans v. Travelers Ins.,
514 U.S. 645, 655
-56 (1995) (in deter-mining scope of clause preempting "all state laws insofar as they . . .relate to any employee benefit plan," courts must "look to the objectivesof the ERISA statute as a guide to the scope of the state law that Congressunderstood would survive") (emphasis added). Because one of the explicit"objectives" of OPA 90 is oil-spill prevention, see OPA 90 SS 2701-2718(Title IV -- Oil Spill Prevention), S 1018 prevents anything in OPA 90from preempting state laws in this field.7 Section 1018 refers to "the Act of March 3, 1851" as well as "thisAct." The 1851 Act is a limitation of liability statute that permits a partyto enjoin all pending suits and to compel them to be filed in a special limi-tation proceeding. It is undisputed that the 1851 Act is not relevant to thisappeal.8 As the Supreme Court observed in English v. General Electric Co., 496U.S. 72 (1990), these categories are not "rigidly distinct." Id. at 79 n.5.9 Despite being a signatory, the United States has not ratified the UnitedNations Convention on the Law of the Sea.10 The United States does not assert that we have discretion to entertainits new arguments on miscarriage-of-justice grounds or because of a post-appeal change in the law.11 As we observed in Chevron : Unloaded oil tankers must take on seawater for ballast to ensure proper submergence and vessel stability. Upon arrival in port, the tankers must then discharge this ballast -- i.e.,"deballast" -- before loading their cargo tanks with oil.Chevron, 726 F.2d at 485.12 Wash. Admin. Code S 317-21-265 provides, in full: (1) Navigation Equipment. An oil spill prevention plan for a tank vessel must describe navigation equipment used on a vessel cov- ered by the plan which includes: (a) Global positioning system (GPS) receivers; and (b) Two separate radar systems, one of which is equipped with an automated radar planning aid (ARPA). (2) Emergency towing system. Tankers must be equipped with an emergency towing system on both the bow and stern within two years from the effective date of this chapter. The emergency towing system comprises: (a) Designated strong points able to withstand the load to which they may be subjected during a towing operation in maximum sustained winds of forty knots and sea or swell heights of five and a half meters (18 feet); (b) Appropriate chafing chains, towing pennant, tow line and connections of a size and strength to tow the tanker fully laden in maximum sustained winds of forty knots and sea or swell heights of five and a half meters (18 feet); and (c) Appropriately sized and colored marker buoys attached to the towing pennants. (3) The emergency towing system must be deployable: (a) In 15 minutes or less by at most two crew members; (b) From the bridge or other safe location when the release points are inaccessible; and (c) Without use of the vessel's electrical power.13 Intertanko also contends that Wash. Admin. Code S 317-21-265 (navi-gation equipment and emergency towing system) is preempted by a CoastGuard regulation concerning on-board towing equipment. See 58 Fed.Reg. 67,988, 67,993 (1993). Because we hold that Wash. Admin. CodeS 317-21-265 is invalid under Ray, we need not address this argument.14 Although S 1018 expressly applies only to OPA 90, it shapes the "fullpurposes and objectives" of Congress, Hines,
312 U.S. at 67
, with respectto the entire legislative field of oil-spill prevention. See Part IV.A.1, infra.Accordingly, we hold that the Coast Guard impermissibly acts beyond its"congressionally delegated authority," Louisiana Pub. Serv. Comm'n, 476U.S. at 374, not only when it purports to preempt state oil-spill preventionlaws under the authority of OPA 90, but also when it purports to do sounder the authority of other federal statutes.