REGULATORYCOLUMNThe Coast Guard’s Proposed Maritime Preemption Assessment FrameworkBy Craig H. AllenIn the May 2013 issue of Maritime Re- 79,242-52). The proposed rule responds to a May 20, porter & Engineering News, Dennis Bry- 2009 memorandum by President Obama addressed to the ant published a provocative article titled heads of executive departments and agencies. That memo-Rebuilding the Presumption of Preemption. randum imposed both prospective and retroactive obliga-Pointing to recent examples of state over- tions. First, it imposed new restrictions on federal agencies reach in the maritime ? eld like Califor- regarding any future decision to include preemption provi-nia’s ocean-going vessel fuel standard that sions in their regulations. More speci? cally, it directed that extends seaward 24 miles (despite the any preemption provisions issued by federal agencies must fact that the federal Submerged Lands be justi? ed under the legal principles governing preemp-Act limits the state’s jurisdiction to 3 miles), Captain Bry- tion, including those outlined in Executive Order 13,132.ant called on all three federal government branches to “work The presidential memorandum’s stated purpose was to toward the rebuilding of the presumption in favor of federal ensure that preemption of state law by executive depart-preemption with respect to all matters related to maritime ments and agencies is undertaken only with full consid-commerce.” Although in its December 27, 2013 preemption eration of the legitimate prerogatives of the states and rulemaking, the Coast Guard stopped short of declaring a with a suf? cient legal basis for preemption. Second, the “presumption” of preemption, the agency did declare that: memorandum directed all agencies to review any preemp-The Coast Guard has asserted in the past and believes tion statements they issued before the memorandum was today that consistent standards of universal applica-released, to ensure those prior statements comply with the tion and enforcement, coupled with Federal initiatives new policy. The Coast Guard’s assessment framework rule to meet unique regional concerns, best meet local and is responsive to both directions by the president. national safety and environmental goals with the least While the 2009 presidential memorandum provided disruption to maritime commerce. 78 Fed. Reg. 79,243. the occasion for the Coast Guard’s December 27th rule-That declaration is followed by a carefully drafted pro- making, such presidential memoranda cannot alter exist-posed rule setting out a “general restatement” of maritime ing federal law. Thus, the proposed Coast Guard assess-preemption principles and the agency’s revised “assessment ment framework rule quite appropriately acknowledges framework” for determining the preemptive effect of its reg- the binding effect of the rules of maritime preemption ulations. After noting that several recent judicial decisions laid down by the U.S. Supreme Court in two decisions signal that more explicit preemption statements are instruc- striking down state tanker laws (Ray v. ARCO, decided in tive and helpful, the Coast Guard makes it clear that one 1978, and United States v. Locke, a unanimous 2000 deci-purpose of this new rule is to “make the Coast Guard’s view sion). Drawing on those cases and others, along with the of the preemptive impact of certain regulation more obvi- statutes enacted by Congress that provide the authority to ous.” A second purpose is to “avoid or reduce confusion re- issue regulations, the proposed preemption rule describes lated to State and local governments’ attempts to regulate in the three forms of preemption articulated by the Supreme preempted areas.” Close study of the proposed preemption Court (express preemption, ? eld preemption and con? ict assessment framework rule suggests that the coming ? nal preemption). It then applies an assessment framework de-rule establishing the towing vessel inspection program is al- rived from those statutes and cases to selected regulations most certain to preempt state regulations in the same ? eld. promulgated by the Coast Guard in Titles 33 and 46 of the Code of Federal Register (C.F.R.) before the proposed T C G ’ P R P rule is made ? nal. The drafters made it clear, however, that HE OAST UARD S ROPOSED ULE ON THE REEMPTIVEFFECT OF OAST UARD EGULATIONSE C G R the list is not intended to be exhaustive. 33 C.F.R. § 1.06-On December 27, 2013, the Coast Guard issued a 1(b)(1). The proposed rule also sets out the framework the proposed rule setting out its “assessment framework and Coast Guard will apply in analyzing the preemptive effect organizational restatement regarding preemption for cer- of regulations issued after the proposed rule is made ? nal tain regulations issued by the Coast Guard” (78 Fed. Reg. and provides guidance on how it will conduct case-by-case MN 25 www.marinelink.com MN FEB14 Layout 18-31.indd 25 MN FEB14 Layout 18-31.indd 25 1/20/2014 10:03:33 AM1/20/2014 10:03:33 AM