United States v. Massachusetts

United States Court of Appeals
For the First Circuit

No. 06-2361

UNITED STATES; AMERICAN WATERWAYS OPERATORS;
INTERNATIONAL ASSOCIATION OF INDEPENDENT TANKER OWNERS; BIMCO;
CHAMBER OF SHIPPING OF AMERICA,

Plaintiffs, Appellees,

v.

COMMONWEALTH OF MASSACHUSETTS; MASSACHUSETTS DEPARTMENT OF
ENVIRONMENTAL PROTECTION; DEVAL PATRICK, in his capacity as
Governor of Massachusetts; ARLEEN O'DONNELL, in her capacity as
Acting Commissioner of the Massachusetts Department of
Environmental Protection,*

Defendants, Appellants,

COALITION FOR BUZZARDS BAY,

Defendant.

No. 06-2362

UNITED STATES; AMERICAN WATERWAYS OPERATORS;
INTERNATIONAL ASSOCIATION OF INDEPENDENT TANKER OWNERS; BIMCO;
CHAMBER OF SHIPPING OF AMERICA,

Plaintiffs, Appellees,

v.

COMMONWEALTH OF MASSACHUSETTS; MASSACHUSETTS DEPARTMENT OF
ENVIRONMENTAL PROTECTION; DEVAL PATRICK, in his capacity as
Governor of Massachusetts; ARLEEN O'DONNELL, in her capacity as

*
Defendants Mitt Romney and Robert W. Golledge, Jr.
(former Commissioner of the Massachusetts Department of
Environmental Protection) have been substituted with Deval Patrick
and Arleen O'Donnell (Acting Commissioner of the Massachusetts
Department of Environmental Protection) in both No. 06-2361 and No.
06-2362. See Fed. R. App. P. 43(c)(2).
 Acting Commissioner of the Massachusetts Department of
Environmental Protection,

Defendants,

COALITION FOR BUZZARDS BAY,

Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Joseph L. Tauro, U.S. District Judge]

Before

Lynch, Circuit Judge,
Cyr, Senior Circuit Judge,
and Howard, Circuit Judge.

Pierce O. Cray, Assistant Attorney General of the Commonwealth
of Massachusetts, with whom Thomas F. Reilly, Attorney General of
the Commonwealth of Massachusetts, was on brief, for appellants in
No. 06-2361.
Philip M. Ferester, Assistant Attorney General of the State of
Washington, Rob McKenna, Attorney General of the State of
Washington, Talis J. Colberg, Attorney General of the State of
Alaska, Bill Lockyer, Attorney General of the State of California,
G. Steven Rowe, Attorney General of the State of Maine, Hardy
Myers, Attorney General of the State of Oregon, Patrick Lynch,
Attorney General of the State of Rhode Island, and Roberto J.
Sánchez-Ramos, Secretary of Justice of the Commonwealth of Puerto
Rico, on brief for the States of Washington, Alaska, California,
Maine, Oregon, and Rhode Island, and the Commonwealth of Puerto
Rico, amici curiae in support of the Commonwealth of Massachusetts.
Jonathan M. Ettinger, with whom Elisabeth M. DeLisle and Foley
Hoag LLP were on brief, for appellant in No. 06-2362.
Philip N. Beauregard and Jane Medeiros Friedman on brief for
the Towns of Bourne, Fairhaven, Falmouth, Gosnold, Marion, and
Westport, and the City of New Bedford, amici curiae in support of
the Commonwealth of Massachusetts and the Coalition for Buzzards
Bay.
Susan M. Reid on brief for the Conservation Law Foundation,
amicus curiae in support of appellants.
Mark B. Stern, Attorney, Civil Division Appellate Staff, with
whom Alisa B. Klein, Attorney, Civil Division Appellate Staff,
Peter D. Keisler, Assistant Attorney General, Michael J. Sullivan,
United States Attorney, and Jonathan F. Cohn, Deputy Assistant
Attorney General, were on brief, for appellee United States.
C. Jonathan Benner, with whom Jeffrey Orenstein and Troutman
Sanders LLP were on brief, for appellees American Waterways
Operators, International Association of Independent Tanker Owners,
BIMCO, and Chamber of Shipping of America.

June 21, 2007
 LYNCH, Circuit Judge. The states and the federal

government have ongoing conflicts about the adequacy of federal

laws protecting against maritime oil spills. Several states,

including Massachusetts, have passed laws to protect particularly

sensitive waterways. The framework for analyzing such conflicts

derives from the several preemption analyses set forth in United

States v. Locke, 529 U.S. 89 (2000), and Ray v. Atlantic Richfield

Co., 435 U.S. 151 (1978). In short, depending on the nature of

state and federal regulations, either field preemption, conflict

preemption, or overlap analysis is used to determine whether state

law impermissibly infringes on federal authority.

After a catastrophic oil spill in Buzzards Bay in 2003,

the Commonwealth of Massachusetts enacted the Massachusetts Oil

Spill Prevention Act (MOSPA). See 2004 Mass. Acts 920 (codified as

amended primarily at Mass. Gen. Laws ch. 21, §§ 42, 50B-50E, and

ch. 21M). MOSPA imposes requirements designed to reduce the risk

of oil spills, and to ensure that adequate resources are available

to remedy such spills.

The United States sued Massachusetts on January 18, 2005,

seeking to enjoin the enforcement of several MOSPA provisions. The

United States alleged that these provisions were preempted by the

Ports and Waterways Safety Act of 1972, Pub L. No. 92-340, 86 Stat.

424, as amended by the Port and Tanker Safety Act of 1978, Pub. L.

No. 95-474, 92 Stat. 1471 (collectively, the "PWSA"), and by

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regulations promulgated thereunder by the Coast Guard.1 This

allegation included a claim that MOSPA's financial assurance

requirement, which requires certain vessels to post a bond to

ensure their ability to respond financially to an oil spill, see

Mass. Gen. Laws ch. 21, § 50C, was preempted by Title II of the

PWSA, notwithstanding relevant savings clauses in the Oil Pollution

Act of 1990 ("OPA"), Pub. L. No. 101-380, 104 Stat. 484, 505-06

(codified at 33 U.S.C. § 2718). The United States did not assert

violations of any treaties or claim that federal foreign affairs

powers were at issue.2

The Commonwealth disputed each claim of preemption. It

argued that Congress had given the states leeway to regulate

particularly sensitive local waterways, at least in the absence of

an actual conflict with a federal statute or regulation. In the

state's view, there was no such conflict.

The district court, acting on the United States' motion

for judgment on the pleadings, and thus without taking evidence,

entered judgment for plaintiffs and permanently enjoined all of the

1
The PWSA is codified at 33 U.S.C. §§ 1221-32 and in
scattered sections of 46 U.S.C.
2
The United States also presented no claim that
Massachusetts had limited the rights of non-residents and aliens to
utilize its waters. Cf., e.g., Douglas v. Seacoast Prods., Inc.,
431 U.S. 265, 283 (1977). Nor did it assert that the
Constitution's Admiralty Clause preempted the state statute. Cf.
Ballard Shipping Co. v. Beach Shellfish, 32 F.3d 623, 628-31 (1st
Cir. 1994).

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challenged provisions.3 United States v. Massachusetts, 440 F.

Supp. 2d 24, 48 (D. Mass. 2006).

The Commonwealth's appeal challenges the injunction only

insofar as it blocked three of MOSPA's provisions: an enhanced

manning requirement for tank barges and tow vessels in Buzzards

Bay, see Mass. Gen. Laws ch. 21M, § 4; a tug escort requirement for

special interest waters, see id. § 6; and a requirement that

certain vessels obtain a certificate of financial assurance, the

amount of which can vary, see id. ch. 21, § 50C.

We vacate the entry of judgment and the permanent

injunction for the United States, and we remand for further

proceedings consistent with this opinion. As we explain, the

district court did not adhere to the analytical structure the

Supreme Court has required to resolve federal-state conflicts in

this area. The district court acted prematurely.

3
Several industry groups -- the American Waterways
Operators, the International Association of Independent Tanker
Owners, the Chamber of Shipping of America, and BIMCO -- intervened
on the side of the United States. The Coalition for Buzzards Bay
intervened on the side of the Commonwealth. For ease of reference,
we will simply refer to the lead parties, the United States and
Massachusetts.
On appeal, three sets of amici have filed briefs in
support of Massachusetts: the "state amici" (which include the
states of Washington, Alaska, California, Maine, Oregon, and Rhode
Island, and the Commonwealth of Puerto Rico), the "local government
amici" (which include the towns of Bourne, Fairhaven, Falmouth,
Gosnold, Marion, and Westport, and the city of New Bedford), and
the Conservation Law Foundation.

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 I. FACTUAL BACKGROUND

Buzzards Bay is one of five recognized Estuaries of

National Significance. See 69 Fed. Reg. 62,427, 62,428 (Oct. 26,

2004); see also 33 U.S.C. § 1330 (establishing a national estuary

program). Massachusetts has designated the Bay as part of an

"Ocean Sanctuary." Mass. Gen. Laws ch. 132A, § 13(c).

Buzzards Bay is characterized by unusually dangerous

ledges, reefs, and currents. Most of the Bay is less than 50 feet

deep, and the Bay is less than 8 miles wide. See B. Howes et al.,

Ecology of Buzzards Bay: An Estuarine Profile 7, 23-24 (U.S. Dep't

of the Interior, Biological Report No. 33, 1996), available at

http://cuadra.cr.usgs.gov/Techrpt/96-33.pdf. The Bay's Cape Cod

Canal has unusually strong tidal currents, and it "represents a

significant navigational challenge." Id. at 98.

Significant volumes of oil are transported through the

Bay and Canal each year. In 2002, about 80% of the trips were made

in single-hull barges. 71 Fed. Reg. 15,649, 15,650 (Mar. 29,

2006). In the state's view, the waters of Buzzards Bay are subject

to a disproportionate and unnecessary risk of an oil spill. A

Coast Guard-sponsored report has concluded that "the risk for oil

or hazardous material discharge in Buzzards Bay is relatively

high." Id.

There have already been several damaging spills in the

Bay. In 1969, roughly 175,000 gallons of No. 2 fuel oil spilled

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into the Bay after the barge Florida ran aground. Id. In 1974, a

sizable amount of oil spilled from the Bouchard No. 65, inflicting

significant damage on local marine life. Howes et al., supra, at

102-03. In 1977, there was yet another Bouchard spill, this one

releasing 81,000 gallons of fuel oil into the water. 71 Fed. Reg.

at 15,650. In 1986, the tank barge ST-85 was grounded in the Bay,

spilling 119,000 gallons of gasoline.4 Id. In 1999, there was

another grounding, this one involving a vessel carrying 4.7 million

gallons of No. 6 fuel oil. Id.

Most recently, in April 2003 the barge Bouchard-120

released an estimated 98,000 gallons of heavy fuel oil into the

Bay, killing hundreds of birds, closing thousands of acres of

shellfish beds, affecting over 90 miles of coastline, and

generating significant clean-up costs.5 Massachusetts responded by

enacting MOSPA on August 4, 2004. 2004 Mass. Acts at 933.

4
In 1989, in nearby Narragansett Bay in Rhode Island, an
oil tanker ran aground and spilled over 300,000 gallons of heating
oil. The responsible individuals pled guilty in criminal
proceedings under the Clean Water Act, see 33 U.S.C. § 1319(c), and
they also agreed to pay fines, clean-up costs, and damages totaling
over $9 million. See Ballard Shipping, 32 F.3d at 624.
5
The United States prosecuted the owner of the Bouchard-
120 under the federal Clean Water Act, 33 U.S.C. §§ 1319(c)(1),
1321(b)(3). The charge was negligent discharge of pollutant. The
oil barge, being towed by a tug boat, traveled outside the Buzzards
Bay channel and struck rocky shoals. The owner paid a fine of $10
million, $7 million of which went to wetlands conservation
projects. The owner also pled guilty to violating the Migratory
Bird Treaty Act, see 16 U.S.C. §§ 703, 707(a), as the spill had
killed hundreds of federally protected birds.

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 II. DESCRIPTION OF FEDERAL LAW

A. Background

Federal regulation of maritime commerce has existed since

the founding of the country. See Act of Sept. 1, 1789, ch. 11,

§ 1, 1 Stat. 55. Federal regulation specifically geared toward the

transport of dangerous cargoes started with the Tank Vessel Act of

1936, Pub. L. No. 74-765, 49 Stat. 1889. See K. Brooks, California

Oil Spill Laws in the Wake of United States v. Locke, 12 U.S.F.

Mar. L.J. 227, 230 (1999-2000). Regulatory involvement increased

after 1967, the year of a massive oil spill involving a supertanker

off the coast of England. Indeed, Congress has since enacted more

stringent legislation for oil tankers and more comprehensive

remedies for oil spills.

The PWSA is a key component of this congressional

response. It has two titles, both or which are at issue here,

which we describe in greater detail later. Title I authorizes the

Coast Guard to issue regulations on subjects within that title,

although it does not so mandate. 33 U.S.C. § 1223(a). Title II

works differently; it requires the Coast Guard to issue federal

regulations governing subjects covered by that title. 46 U.S.C.

§ 3703(a).

Several states have enacted statutes and regulations

designed to give still greater protection against oil spills. The

Supreme Court's 1978 decision in Ray concerned such state laws.

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Ray held that certain provisions of a Washington statute

(concerning tanker design, tanker size, and pilotage requirements

for enrolled vessels6) were preempted by federal law. 435 U.S. at

159-60, 168, 178. Ray did uphold Washington's limited tug escort

requirement for Puget Sound against a preemption challenge. Id. at

173.

Despite the protections of the PWSA, in 1989 the

supertanker Exxon Valdez ran aground in Alaska, causing the largest

oil spill in United States history. The key congressional response

was the 1990 enactment of OPA. OPA has nine titles, including

provisions imposing liability on parties responsible for damages

and other costs stemming from oil spills. See 33 U.S.C. § 2702.

Two "savings clauses" in OPA's Title I expressly preserve and

recognize state authority to impose additional liability

requirements and penalties. Id. § 2718(a)(1), (c).

The scope of these savings clauses was at issue in Locke.

On certiorari to the Supreme Court, the United States argued that

several provisions of the Washington Administrative Code were

preempted; the federal government stressed the foreign relations7

6
Enrolled vessels are those "engaged in domestic or
coastwide trade or used for fishing." Douglas, 431 U.S. at 273.
7
The foreign governments of thirteen ocean-going nations
expressed concerns about the state scheme through a diplomatic note
sent to the United States; that note was provided to the district
court. The note protested that because there were inconsistencies
between state and federal regulations regarding tanker personnel,
equipment, and operations, permitting Washington's rules to take

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and international commerce aspects of the case. Locke, 529 U.S. at

102-03.

Locke governs this case. The distinctions that Locke

drew are the subject of dispute among the parties here. Locke held

that several provisions of Washington's regulations were preempted

by federal law. Id. at 112-17. The Locke Court held that PWSA's

Title II preempted three state regulations (requiring training for

tanker crews, mandating English language proficiency, and imposing

a general statewide navigation-watch requirement). Id. at 112-14.

The Court also held that a fourth regulation (governing the

reporting of marine casualties) was preempted by a different

federal statute, 46 U.S.C. § 6101. Id. at 114-16.

Locke did not definitively rule on all of the regulations

before it. Instead, the Court remanded the issue of whether

certain regulations, such as the state's watch requirement in times

effect would result in uncertainty and confusion. Locke, 529 U.S.
at 98.
Locke thus presented issues regarding the need for
national uniformity for this country in the international
community. Id. at 102-03; cf. Crosby v. Nat'l Foreign Trade
Council, 530 U.S. 363, 373-74 (2000). The United States argued
that various treaties preempted Washington's regulations, including
the International Convention for the Safety of Life at Sea, 1974,
32 U.S.T. 47; the International Convention for Prevention of
Pollution from Ships, 1973, S. Exec. Doc. C, 93-1, 12 I.L.M. 1319,
as amended by 1978 Protocol, S. Exec. Doc. C, 96-1, 17 I.L.M. 546;
and the International Convention of Standards of Training,
Certification and Watchkeeping for Seafarers, with Annex, 1978
(STCW), S. Exec. Doc. EE 96-1, C.T.I.A. No. 7624. Locke, 529 U.S.
102-03. The Court did not reach the United States' arguments based
on these treaties and international agreements. Id. at 103.

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of restricted visibility, were of limited extraterritorial effect

and were necessary to address the peculiarities of Puget Sound --

factors that would weigh in favor of a Title I conflict preemption

analysis rather than a Title II field preemption analysis. Id. at

116-17. The Court stated that the resolution of these matters

would benefit from a full development of the record, noting that

the United States did not enter the case until appeal. Id.

For our purposes, Locke established a number of

significant rules. Locke held that OPA's savings clauses preserved

only "state laws of a scope similar to the matters contained in

Title I of OPA," id. at 105, and did not constitute a reversal of

Ray's preemption rules as to Title I and Title II of the PWSA, id.

at 105-07. Rather, OPA only preserved state authority in the

limited area of establishing liability rules and imposing financial

requirements regarding oil spills.8 Id. at 105.

Locke also rejected the use of general presumptions,

either for or against preemption, and instead called for close

analysis of the federal statutory structure. Locke expressly

repudiated any notion, which might have survived Ray, that there is

any presumption of non-preemption of state rules. Id. at 107-08.

Locke pointed out that the federal interest in national and

8
Earlier, in Askew v. American Waterways Operators, Inc.,
411 U.S. 325 (1973), the Court had sustained, against a maritime
law preemption challenge, a state statute imposing strict liability
for oil spills. Id. at 327-29.

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international maritime commerce was one of the reasons cited in the

Federalist Papers for adopting the Constitution, and the Court

detailed the numerous federal statutes and treaties in the area.

Id. at 99-103, 108. At the same time, however, Locke did not put

in place the opposite presumption, a presumption favoring

preemption. Rather, the validity of state regulation must be

judged against the "federal statutory structure." Id. at 108.

Indeed, "[n]o artificial presumption aids us in determining the

scope of appropriate local regulation under the PWSA." Id.; see

also P. Gudridge, Comment, United States v. Locke, 120 S. Ct. 1135,

94 Am. J. Int'l L. 745, 748 (2000).

Locke reinforced Ray's two-category approach to

preemption: either field preemption or conflict preemption is to be

used. Locke, 529 U.S. at 109-11. Locke also went further,

recognizing that it would not always be clear which of the two

models would apply. It added a new overlap analysis to resolve

that question. See id. at 112.

Field preemption applies to state law on subjects which

are within the province of Title II of the PWSA. Id. at 110-11.

Other sources of federal maritime regulation may also preempt state

law, even if the state law is consistent with federal law. Id. at

114-16.

By contrast, Locke held that conflict preemption applies

to state regulations within the scope of Title I. Title I of the

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PWSA does not expressly preserve state power (unlike OPA). But

Title I also does not preempt with the same force as Title II.

Rather, state law in areas within the province of Title I are

subject to standard conflict preemption analysis, primarily the

model which the Court has utilized in Commerce Clause cases. Id.

at 109-10; see also Bethlehem Steel Co. v. N.Y. State Labor

Relations Bd., 330 U.S. 767, 773-74 (1947) (discussing federal

preemption of state regulation in the Commerce Clause context).

Locke's conflict preemption analysis involves an initial

inquiry into whether federal authority has been exercised through

a regulation intended to displace state law, or by a federal

decision of the Coast Guard that there should be no regulation of

the subject in question. 529 U.S. at 109-10. A conflict arises

"when compliance with both state and federal law is impossible, or

when the state law stands as an obstacle to the accomplishment and

execution of the full purposes and objective of Congress." Id. at

109 (quoting California v. ARC Am. Corp., 490 U.S. 93, 100-101

(1989)) (internal quotation marks omitted). "In this context,

Coast Guard regulations are to be given pre-emptive effect over

conflicting state laws."9 Id. at 109-10.

9
State laws can be preempted by federal regulations as
well as by federal statutes. City of New York v. FCC, 486 U.S. 57,
63-64 (1988); Hillsborough County v. Automated Med. Labs., Inc.,
471 U.S. 707, 713 (1985). When the Coast Guard makes a
determination not to impose a regulation, this may amount to a
decision that no regulation at either the state or federal level is
appropriate. See Ark. Elec. Coop. Corp. v. Ark. Pub. Serv. Comm'n,

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 Overlap analysis applies when a state law falls within

the overlapping coverage of Title I and Title II. We describe that

overlap analysis below.

B. Title I, Title II, and Overlap Analysis

The respective scopes of Title I and Title II play a

crucial role in any preemption analysis under the PWSA. This

necessitates a more detailed discussion of these provisions.

Congress has, by statute, occupied the field with respect

to subject matters addressed in Title II of the PWSA.10 The subject

matter of Title II, "Vessels Carrying Certain Cargoes in Bulk," is

generally defined at 46 U.S.C. § 3703(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 necessary
for increased protection against hazards to

461 U.S. 375, 384 (1983); Ray, 435 U.S. at 171-72. However, a
decision by the Coast Guard not to regulate in a field does not
necessarily mean that the Coast Guard intended to preempt state
law. See Sprietsma v. Mercury Marine, 537 U.S. 51, 65-67 (2002).
10
Other sources of federal maritime law may also preempt
state regulation by occupying the field. This is true even if the
state requirements are very similar to federal requirements. For
example, Locke held that Washington's marine casualty reporting
requirement was preempted, despite its similarity to federal
requirements, because "Congress intended that the Coast Guard
regulations [under 46 U.S.C. § 6101] be the sole source of a
vessel's reporting obligations." 529 U.S. at 115. The state's
reporting requirement created a significant burden in terms of
costs, posed a risk of innocent non-compliance, and affected a
vessel operator's out-of-state obligations and conduct -- factors
which called into question the state's authority to regulate. Id.
at 116.

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 life and property, for navigation and vessel
safety, and for enhanced protection of the
marine environment.

Congress has required the Coast Guard to issue regulations under

Title II, which "shall include requirements about . . . (3)

equipment and appliances for . . . prevention and mitigation of

damage to the marine environment; [and] (4) the manning of vessels

and the duties, qualifications, and training of the officers and

crew." 46 U.S.C. § 3703(a).

By contrast, conflict preemption is applied to state

statutes and regulations concerning subject matters within Title I

of the PWSA. See Locke, 529 U.S. at 109. The subject matter of

Title I is defined by statute:

Subject to the requirements of section 1224 of
this title, the Secretary --

(1) in any port or place under the
jurisdiction of the United States, in the
navigable waters of the United States, or in
any area covered by an international agreement
negotiated pursuant to section 1230 of this
title, may construct, operate, maintain,
improve, or expand vessel traffic services,
consisting of measures for controlling or
supervising vessel traffic or for protecting
navigation and the marine environment and may
include, but need not be limited to one or
more of the following: reporting and operating
requirements, surveillance and communications
systems, routing systems, and fairways . . . .

33 U.S.C. § 1223(a). As the United States has stated, the subject

matter of Title I is characterized generally by matters of local

concern, and, absent issuance of federal regulations or a decision

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not to allow state regulation under Title I, state regulation is

not preempted in areas subject to that title.

Title I and Title II overlap in some instances. For

example, both titles cover, in different contexts, "operating"

requirements. See id. § 1223(a)(1) (Secretary may impose measures

including, inter alia, "operating requirements"); id.

§ 1223(a)(4)(D) (Secretary may "restrict[] operation, in any

hazardous area or under hazardous conditions, to vessels which have

particular operating characteristics or capabilities which he

considers necessary for safe operation under the circumstances");

46 U.S.C. § 3703(a) (requiring Secretary to "prescribe regulations

for the . . . operation . . . and manning of vessels to which this

chapter applies"); see also Locke, 529 U.S. at 116 (remanding for

consideration of whether a state navigation-watch requirement

should be analyzed under Title I conflict preemption or Title II

field preemption). Further, each title purports to have as one of

its purposes the protection of the environment. See 33 U.S.C.

§ 1223(a)(1) (authorizing regulations on covered subjects "for

protecting navigation and the marine environment"); 46

U.S.C. § 3703(a) (requiring regulations on covered subjects "that

may be necessary . . . for enhanced protection of the marine

environment").

As a result, Locke recognized that "[t]he existence of

some overlapping coverage between the two titles of the PWSA may

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make it difficult to determine whether a pre-emption question is

controlled by conflict pre-emption principles, applicable generally

to Title I, or by field pre-emption rules, applicable generally to

Title II." 529 U.S. at 111. In such instances of overlap, not

every question will be resolved "by the greater pre-emptive force

of Title II." Id. Rather, "conflict pre-emption under Title I

will be applicable in some, although not all, cases." Id. at 111-

12.

In resolving preemption questions in cases of overlapping

coverage, Locke instructs courts to consider these factors11: (1)

"the type of regulations the Secretary has actually promulgated

under [Title II]"; (2) whether the regulation falls within the

specific type listed in § 3703(a) as required to be promulgated;

(3) whether the federal rule is "justified by conditions unique to

a particular port or waterway" (e.g., a Title I regulation based on

water depth in Puget Sound or other local peculiarities); (4)

whether the state regulation is "of limited extraterritorial

effect, not requiring the tanker to modify its primary conduct

outside the specific body of water purported to justify the local

rule"; and (5) whether the state regulation is one that "pose[s] a

minimal risk of innocent noncompliance, do[es] not affect vessel

11
These factors are drawn from themes identified in other
Supreme Court cases. "Whether federal [regulation] operates to
preempt state regulation will ordinarily depend on the respective
aims of the state and federal schemes." L. Tribe, American
Constitutional Law § 6-28, at 506-07 (2d ed. 1988).

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operations outside the jurisdiction, do[es] not require adjustment

of systemic aspects of the vessel, and do[es] not impose a

substantial burden on the vessel's operation within the local

jurisdiction itself." Id. at 112.

In the same vein, Ray instructed federal courts

addressing such maritime environmental cases to look to the

respective purposes of the federal and state laws. 435 U.S. at

164-65. This "purpose" rule emerged from earlier Supreme Court

Commerce Clause cases such as Huron Portland Cement Co. v. City of

Detroit, 362 U.S. 440 (1960), and Kelly v. Washington, 302 U.S. 1

(1937).12 Overlap analysis thus involves some identification of the

relative purposes and domains of Title I and Title II. See

Medtronic, Inc. v. Lohr, 518 U.S. 470, 484 (1996) (stressing the

12
In Huron, the Court found that the state law at issue was
not preempted; in doing so the Court contrasted the purpose of
federal inspection laws, which sought "to insure the seagoing
safety of vessels subject to inspection," with the purpose of a
Detroit ordinance, which sought to eliminate air pollution "to
protect the health and enhance the cleanliness of the local
community." 362 U.S. at 445-46. In Kelly, the Court similarly
upheld state legislation concerning motor-driven tugs, and it
considered the state law's purpose of insuring safety and
determining seaworthiness. 302 U.S. at 8, 14-16.
"[T]he principles developed [under Commerce Clause
preemption] are not limited to [that] context; essentially the same
techniques are used to determine the consequences for state action
of any exercise of a plenary federal authority." Tribe, supra,
§ 6-29, at 508. Nonetheless, there are some distinctions between
Commerce Clause preemption rules and maritime preemption rules.
See Am. Dredging Co. v. Miller, 510 U.S. 443, 452 n.3 (1994)
(distinguishing "negative Commerce Clause" jurisprudence, and
commenting that "[w]hatever might be the unifying theme of this
aspect of our admiralty jurisprudence, it assuredly is not . . .
the principle that the States may not impair maritime commerce").

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need to identify the "domain" of the statutory clause said to

preempt state law). Ray appeared to consider Title II to be

concerned with matters that are properly subject to national rules,

see 435 U.S. at 165-66 & n.15, while Title I is more concerned with

rules "arising from the peculiarities of local waters that call for

special precautionary measures,"13 id. at 171.

Against this background, we turn to the preemption

analysis of the specific MOSPA sections.

III. VESSEL MANNING REQUIREMENTS FOR BUZZARDS BAY

The district court held that the two vessel manning

requirements of Mass. Gen. Laws ch. 21M, § 4 -- for tank barges and

for tow vessels in Buzzards Bay -- are field preempted because they

are unambiguously covered by Title II, and not Title I. The

13
As another commentator has noted:

Whether preemption is to turn on an overlap of
"subject," "object" or "purpose," or on
interference with "federal superintendence of
the field," is crucial to the analysis.
Virtually every state regulation of merchant
vessel safety can also be characterized as
having a "pollution prevention" purpose.
Thus, federal legislation on the subject of
vessel construction, design, equipment, and
manning . . ., but having, by the court's
characterization, a purpose other than
pollution prevention, would not occupy the
field of pollution prevention addressed by the
challenged state law.

C. Allen, Federalism in the Era of International Standards:
Federal and State Government Regulation of Merchant Vessels in the
United States (Part III), 30 J. Mar. L. & Com. 85, 94 (1999).

-20-
district court did not engage in the overlap analysis described in

Locke. See Massachusetts, 440 F. Supp. 2d at 35-37. The United

States did not seriously present argument to the district court

that if Title I applied, federal regulations preempted the vessel

manning requirements.

Subject to certain exceptions,14 the state's manning

provision for "tank barges" requires that crews consist of "2

personnel, 1 of whom shall be a certified tanker-man under [federal

regulations] who shall be on the tank barge at all times." Mass.

Gen. Laws ch. 21M, § 4(b). The manning provision for "tow vessels"

towing 6000 or more barrels of oil requires (a) "at least 1

licensed deck officer or tow vessel operator, who shall serve

exclusively as a lookout with no other concurrent duties," and (b)

"three licensed officers or tow vessel operators." Id. § 4(a).

The parties raise different preemption arguments for

section 4(b), the tank barge provision, and for section 4(a), the

tow vessel provision.

A. The Section 4(b) Tank Barge Manning Requirement in
Buzzards Bay

Massachusetts argues that although section (4)(b)'s tank

barge manning requirement could be encompassed by Title II, there

is nonetheless overlap with Title I. Because of this overlap, the

14
Section 4(b) exempts barges that carry less than 6000
gallons of oil, as well as barges that are not equipped to carry
personnel on board. Section 4(c) additionally exempts double-
hulled barges from the requirements of section 4(b).

-21-
state contends that more facts needed to be developed, and so the

issue should not have been resolved at the pleadings stage.

The United States disagrees, arguing that because "the

manning of vessels" is listed in Title II,15 see 46 U.S.C.

§ 3703(a)(4), all state manning regulations are field preempted by

Title II and no overlap analysis is necessary. That contention

overreaches. The position of the United States, which the district

court accepted, is inconsistent with Locke's recognition that Title

I and Title II can overlap. See 529 U.S. at 111.

While the district court was correct to begin with the

text of the Title II, this should not have ended the inquiry.

Title II of the PWSA addresses the "manning of vessels to which

this chapter applies," 46 U.S.C. § 3703(a), and the chapter applies

to "tank vessels," see id. § 3702(a). A tank vessel is in turn

defined as

a vessel that is constructed or adapted to
carry, or that carries, oil or hazardous
material in bulk as cargo or cargo residue,
and that -- (A) is a vessel of the United
States; (B) operates on the navigable waters
of the United States; or (C) transfers oil or
hazardous material in a port or place subject
to the jurisdiction of the United States.

15
The Coast Guard has in fact promulgated regulations
requiring tankers to "navigate with at least two licensed deck
officers on watch . . ., one of whom may be a pilot. In waters
where a pilot is required, the second officer . . . must be an
individual licensed and assigned to the vessel as master, mate, or
officer in charge of a navigational watch," separate from the
pilot. 33 C.F.R. § 164.13(c).

-22-
Id. § 2101(39). Congress required the Coast Guard to promulgate

regulations addressing "the manning of [tank] vessels and the

duties, qualifications, and training of the officers and crew."

Id. § 3703(a)(4).

Courts must also examine the text of Title I when

analyzing the preemptive effect of the PWSA on particular state

regulations. See Locke, 529 U.S. at 111-12. As the state points

out, Title I gives the Secretary authority to promulgate

regulations for protecting the marine environment, which may

include "operating requirements." 33 U.S.C. § 1223(a)(1).

Further, for areas the Secretary considers to be hazardous, the

Secretary may establish "vessel operating conditions" and/or may

restrict operations to "vessels which have particular operating

characteristics or capabilities which he considers necessary for

safe operation." Id. § 1223(a)(4)(C), (D). The state argues that

its manning requirements are thus a type of operational requirement

under Title I, for certain vessels in Buzzards Bay, and not a

general manning requirement under Title II.

The United States responds that the phrase "operating

requirements" is a term of art that refers only to navigational

operations in a traffic safety system of the type expressly

addressed in Title I of the PWSA. The general operation and

manning of vessels, the United States says, are dealt with in Title

II and are thus field preempted. See 46 U.S.C. § 3703(a).

-23-
 As the state notes, however, Title I's Statement of

Policy also refers to "manning": "The Congress finds and declares

. . . that increased supervision of vessel . . . operations is

necessary in order to . . . insure that vessels operating in the

navigable waters of the United States shall comply with all

applicable standards and requirements for vessel construction,

equipment, manning, and operational procedures." 33 U.S.C.

§ 1221(c)(3) (emphases added). Analysis of the texts of Title I

and Title II does not fully resolve the source of the potential

preemption here. Nor does initial consideration of the purposes

behind Title I and Title II resolve the matter. Both Titles are

concerned with enhanced protection of the marine environment. See

Locke, 529 U.S. at 110-11. As a result, that cannot itself be the

distinguishing factor. Nor is it helpful to talk abstractly about

the safety of vessels, which, depending on the particular

regulations at issue, may be a Title I or a Title II concern.

The analysis becomes clearer when one considers Locke's

approach. The Court invalidated training requirements which

applied statewide, controlled manning outside of state waters, and

did not address "matters unique to the waters of Puget Sound." Id.

at 113. The Court also invalidated an English language proficiency

requirement for tanker crews that affected staffing decisions

outside of state waters and was "not limited to governing local

-24-
traffic or local peculiarities." Id. at 113-14. Further, the

Court invalidated as field preempted a statewide navigation-watch

requirement. The Court noted that this was a general operation and

manning requirement under Title II because "[t]he general watch

requirement is not tied to the peculiarities of Puget Sound; it

applies throughout Washington's waters and at all times." Id. at

114. Locke thus held that the state's general watch regulation --

requiring at least four specified personnel in state waters at all

times -- was preempted by Title II as an attempt to regulate a

tanker's "operation" and "manning" under 46 U.S.C. § 3703(a). Id.

However, at the same time, the Court remanded for

performance of an overlap analysis to determine whether a narrower

navigation-watch requirement, for times of restricted visibility,

should be analyzed under Title I. In line with the Court's

articulation of the method for differentiating between Title I and

Title II concerns, the Court suggested that, on remand,

consideration should be given to Washington's arguments that the

narrower requirement was "of limited extraterritorial effect and

necessary to address the peculiarities of Puget Sound." Id. at

116.

Relying on this aspect of Locke, the state suggests that

any time a state regulation on a given topic is restricted to a

particular local waterway, overlap analysis is required. This

argument stretches too far and is inconsistent with the balance of

-25-
Locke as well as Ray. Some topics are Title II topics, regardless

of limited geographic application, as the state has essentially

conceded in not attempting to defend other sections of its statute.

With regard to the manning requirement before us, however, the

district court must undertake an overlap inquiry, including a full

consideration of the various Locke factors. Further development of

the record is in order to resolve this point.

The United States suggests to us that even if Title I

conflict preemption analysis were used, various federal

requirements in the area of manning, including regulations

promulgated under Title I, suffice to preempt. See, e.g., 33

C.F.R. § 164.13(c). The argument has not been sufficiently made

either before the district court or on appeal, and can be made on

remand.

B. The Section 4(a) Tow Vessel Manning Requirement in
Buzzards Bay

We have concluded that the state's tank barge manning

requirements for Buzzards Bay must be reconsidered under overlap

analysis. For similar reasons, we also conclude that a remand is

necessary on the state's tow vessel manning provisions.

The state nonetheless asks us to go farther. It points

out that the text of Title II addresses "tank vessels," not "tow

vessels," see 46 U.S.C. § 3702(a), and it contends that the two are

-26-
not the same.16 Accordingly, the state argues that section 4(a)

cannot be within the scope of Title II, and the provision's

validity must instead be considered under Title I conflict

preemption analysis.

The United States disagrees with this interpretation of

the PWSA. It argues that although the PWSA expressly addresses

"tank vessels," and not "tow vessels," that fact is immaterial.

The definition of "tank vessel" includes any vessel that "carries

. . . oil or hazardous material in bulk as cargo," and not just

vessels that are "constructed or adapted to carry . . . oil or

hazardous material in bulk as cargo." Id. § 2101(39). That

definition, in the United States' view, can encompass a tug vessel

when it pushes, pulls, or hauls a vessel containing oil or

hazardous material (although the vessel would not be within the

scope of the definition when it carries some other type of cargo).

This interpretation is based on an argument that when a vessel

carrying oil or other hazardous material is not self-propelled and

requires a tug (as would be the case with a barge), the tug and the

non-self-propelled vessel effectively become one vessel which

"carries" the cargo.

16
A "towing vessel" is "a commercial vessel engaged in or
intending to engage in the service of pulling, pushing, or hauling
along side, or any combination of pulling, pushing, or hauling
along side." 46 U.S.C. § 2101(40).

-27-
 The state responds that a 2004 amendment added "towing

vessels" to the list of vessels covered by a separate chapter of

Title 46 of the United States Code, but did not similarly add

"towing vessels" to the list of vessels covered by Title II of the

PWSA. See Coast Guard and Maritime Transportation Act of 2004,

Pub. L. No. 108-293, § 415, 118 Stat. 1028, 1047 (codified at 46

U.S.C. § 3301(15)). The amended section already applied to "tank

vessels." 46 U.S.C. § 3301(10). The state argues that this means

the term "tank vessel" does not encompass towing vessels.

The district court held that although Title II does not

expressly use the term "tow vessels," this was a legally

insignificant distinction. Massachusetts, 440 F. Supp. 2d at 36-

37. The district court adopted the United States' argument that

"towing vessels that are pushing, pulling, or hauling tank barges

carrying oil or other hazardous materials are, as part of the

tow-barge combination, 'tank vessels' and are, thus, within the

scope of Title II." Id. at 37.

The court explained that adoption of the state's proposed

distinction between tank vessels and tow vessels would undermine

important federal interests:

The towing vessel, although it does not
physically carry the oil, is the crucial
element of the tow-barge combination and,
therefore, poses the most risk to the marine
environment. Defendants' ar gument,
furthermore, would give the Coast Guard
exclusive jurisdiction to regulate one form of
tank vessel, self-propelled tankers, but would

-28-
 grant concurrent jurisdiction with the states
to regulate the driving force of the tow-tank
barge combination. That result would make
little practical sense and would hinder the
Congressional goal of creating uniform
national regulations for all tank vessels.

Id. This led the court to hold that the matter was clearly within

Title II, and so section 4(a) was field preempted. Id.

Our resolution of this appeal does not require us to

determine if the state or the federal government has correctly

interpreted the meaning of 'tank vessel.' Even if the federal

government's interpretation is correct, our discussion in Part

III.A shows why overlap analysis would still be required before a

court could find preemption as a matter of law. That is sufficient

for us to reverse the district court's decision to grant judgment

on the pleadings, and to remand this issue.17

17
We call the parties' attention to 33 C.F.R. § 138.20.
Section 138.20 was not promulgated under Title II, but instead
under both OPA and the Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA). The regulation's
definition of "tank vessel" clearly excludes tow vessels:

Tank vessel means a vessel (other than . . . a
towing or pushing vessel (tug) simply because
it has in its custody a tank barge) that is
constructed or adapted to carry, or that
carries, oil or liquid hazardous material in
bulk as cargo or cargo residue, and that --

(1) Is a vessel of the United States;

(2) Operates on the navigable waters; or

(3) Transfers oil or hazardous material in a
place subject to the jurisdiction of the
United States.

-29-
 IV. TUG ESCORT REQUIREMENTS

The United States argues that the state's tug escort

provisions, Mass. Gen. Laws ch. 21M, § 6, are in conflict with

regulations promulgated under Title I, see 33 C.F.R.

§ 165.100(d)(1). The asserted conflict is that the Coast Guard has

made a preemptive choice in these regulations that tug escort

requirements be set by the Coast Guard on a regional basis,

covering all of the First Coast Guard District.18

The state tug escort statute has three key provisions.

It applies only to "area[s] of special interest within the waters

of the commonwealth," Mass. Gen. Laws ch. 21M, § 6(a), which

include Buzzards Bay, Vineyard Sound, and Mount Hope Bay,19 id. § 1.

Further, the statute prohibits a tank vessel carrying 6000 or more

barrels of oil from entering or transiting such waters unless the

33 C.F.R. § 138.20(b). With the exception of the parenthetical
clause, this definition is nearly identical to the Title II
definition of "tank vessel" found at 46 U.S.C. § 2101(39). We
leave the significance, if any, of this textual difference to the
preemption analysis to the district court in the first instance.
18
The First Coast Guard District is comprised of Maine, New
Hampshire, Vermont, Massachusetts, Rhode Island, Connecticut, and
parts of New York and New Jersey. 33 C.F.R. § 3.05-1(b).
19
The statute also permits the state Secretary of
Environmental Affairs to expand the definition to include other
waters which meet particular criteria. See Mass. Gen. Laws ch.
21M, § 1. Further, section 6(c) permits the state commissioner to
promulgate certain regulations. This case is confined to the
facial constitutionality of the cited statutory provisions. No
state regulations are at issue here, nor are any bodies of water
implicated other than the three specifically listed in the statute.

-30-
tank vessel is accompanied by a tugboat escort. Id. § 6(a).

Finally, the section does not apply to a self-propelled tank

vessel. Id. § 6(b).

The United States makes two preliminary arguments that we

quickly reject. First, the United States attempts to redefine what

is meant by conflict preemption in the Title I context. It argues

that once the Coast Guard promulgates regulations on a subject,

that ends the matter; there is essentially no room for any further

preemption analysis. For example, the United States argues that

"State regulatory authority does not survive once the Secretary

establishes federal regulations under Title I."20 The argument

overreaches.21

20
The district court's decision could be read to have
adopted the United States' position: "In this case, the Coast Guard
has regulated on the challenged subject. This court, therefore,
need not [delve further into the Title I analysis]."
Massachusetts, 440 F. Supp. 2d at 42.
21
The United States relies primarily on Ray to argue that
when the federal government adopts a regulation covering an area
within the scope of Title I, state regulation on the same subject
is preempted. It is true that Ray stated that "[t]he relevant
inquiry under Title I with respect to the State's power to impose
a tug-escort rule is thus whether the Secretary has either
promulgated his own tug requirement for [local] tanker navigation
or has decided that no such requirement should be imposed at all."
435 U.S. at 171-72. On this record, however, neither of those
premises is demonstrated.
We also note that Title I has changed since Ray, another
issue that should be addressed on remand. At the time of the Ray
decision, 33 U.S.C. § 1222(b) had provided: "Nothing contained in
this chapter [referring to Title I of the PWSA] . . . prevent[s] a
State or political subdivision thereof from prescribing for
structures only higher safety equipment requirements or safety
standards than those which may be prescribed pursuant to this

-31-
 As pointed out by the state amici, the position of the

United States converts Locke's Title I conflict preemption analysis

into something resembling a field preemption analysis. The United

States' argument largely destroys the distinction between the two

preemption models set forth in Locke, 529 U.S. at 109-10, as

discussed above.

Perhaps the United States means only that if the Coast

Guard Title I regulations had expressly preempted the state

statute, courts would view the matter under a different model. An

agency's preemption judgment is "dispositive on the question of

implicit intent to pre-empt unless either the agency's position is

inconsistent with clearly expressed congressional intent, or

subsequent developments reveal a change in that position."

Hillsborough County v. Automated Med. Labs., Inc., 471 U.S. 707,

chapter." 33 U.S.C. § 1222(b) (1976) (emphases added). Ray
reasoned that since § 1222(b) permitted states to impose higher
safety standards only for "structures," this "impliedly forb[ade]
higher state standards for vessels." Ray, 435 U.S. at 174. The
Court thus held that "the State may not impose higher safety
standards than those prescribed by the Secretary [limiting the size
of vessels in Puget Sound]." Id. at 175.
The language pertaining to higher state safety standards
no longer appears at § 1222. In 1978, Congress amended Title I,
deleting any mention of state safety standards from § 1222, and
instead adding a different provision to § 1225. Port and Tanker
Safety Act of 1978, § 2, 92 Stat. at 1471-75. Section 1225,
entitled "Waterfront safety," now provides: "Nothing contained in
this section, with respect to structures, prohibits a State or
political subdivision thereof from prescribing higher safety
equipment requirements or safety standards than those which may be
prescribed by [federal] regulations . . . ." 33 U.S.C. § 1225(b)
(emphases added). Again, we leave the significance of this change
to the district court on remand.

-32-
714-15 (1985) (citation omitted). Nonetheless, judicial review of

that judgment would still be available. See City of New York v.

FCC, 486 U.S. 57, 63-64 (1988). A court would review whether the

agency's decision to preempt constitutes "a reasonable

accommodation of conflicting policies . . . committed to [its]

care" and whether "it appears from the statute or its legislative

history that the accommodation is not one that Congress would have

sanctioned." Id. at 64 (quoting United States v. Shimer, 367 U.S.

374, 383 (1961)) (internal quotation marks omitted); see also Fid.

Fed. Sav. & Loan Ass'n v. de la Cuesta, 458 U.S. 141, 153-54

(1982). As we explain, the district court should engage in this

review on remand.

The United States secondly suggests that Massachusetts'

tug escort provisions are statutorily preempted by the Coast Guard

Authorization Act of 1998 (CGAA), Pub. L. No. 105-383, 112 Stat.

3411, under which Congress, apparently frustrated that the Coast

Guard had not acted under Title I as to waters in the Northeast,

ordered the Coast Guard to do so. Section 311(b)(1)(A) of the CGAA

provides that "[n]ot later than December 31, 1998, the [Coast

Guard] shall promulgate regulations for towing vessel and barge

safety for the waters of the Northeast." Id. at 3423 (emphasis

added).

The statutory phrase is not an expression of intent by

Congress that any such Coast Guard regulations -- regardless of

-33-
scope, subject matter, or expression of intent to preempt -- would

occupy the field. It is a command to the Coast Guard to promulgate

certain types of regulations, which it already had authority to do

under Title I.

The pertinent federal regulations cover the whole of the

First Coast Guard District, including Massachusetts. 33 C.F.R.

§ 165.100(d)(1)(i), (ii) (effective January 29, 1999); 63 Fed. Reg.

71,764, 71,771 (Dec. 30, 1998). The regulations require that

single-hull tank barges, unless being towed by a twin-screw

propulsion primary towing vessel (with separate power for each

screw), must be accompanied by a tugboat escort.22 33 C.F.R.

§ 165.100(d)(1)(i). The federal regulations specifically exclude

double-hull tank barges from the tug escort requirement. Id.

§ 165.100(d)(1)(ii).

The United States argues that Massachusetts' tug escort

provisions for sensitive waters are preempted because they are

inconsistent with the Coast Guard's regulatory choice that the

topic of tug escorts in Northeast waters be regulated on a regional

basis. A federal agency's choice in favor of national or regional

regulation is a ground for conflict preemption. See Locke, 529

22
The federal regulations delegate some authority to the
"Captain of the Port" to grant exceptions to the tug escort rule.
33 C.F.R. § 165.100(d)(1)(iii). In a different paragraph, the
regulations also impose special enhanced radio communication
requirements for some sensitive locations within Massachusetts'
waters. Id. § 165.100(d)(2).

-34-
U.S. at 109-10. Significantly, the United States has not argued on

appeal that it would literally be impossible for ships to comply

with both the state statute and federal regulations concerning tug

escorts.23

The state responds on two fronts. The first argument is

that there is no conflict preemption here because the Coast Guard

regulations do not impose a "local navigation rule," as does Mass.

Gen. Laws ch. 21M, § 6. The state asserts that its law is valid if

the Coast Guard has not adopted a rule regarding the particular

waters addressed by the challenged state law. In essence, the

state reads Ray to say that Title I conflict preemption requires an

exact coincidence between the subject matters of the federal and

state regulations. Ray says no such thing. Although Ray did

express an interest in whether the Secretary had "promulgated his

own tug requirement for Puget Sound," 435 U.S. at 171 (emphasis

added), the Court did not hold that an exact coincidence in subject

matter was required to find conflict preemption, id. at 171-72,

174-75.

23
The district court did find such an impossibility,
stating that "[t]ank barges traveling through Massachusetts waters
. . . cannot comply with both the state and federal regulations."
Massachusetts, 440 F. Supp. 2d at 42. The state protests that
there is no impossibility because nothing in the federal
regulations prohibits taking on a tugboat escort. The United
States has neither relied on nor defended the district court's
ruling, so we do not consider it.

-35-
 Indeed, there was no federal regulation in Ray purporting

to regulate the use of tug escorts specifically in Puget Sound, nor

was there a federal regulation covering a broader area which

included Puget Sound.24 Id. at 171-72. Here, the federal

regulations contain within their breadth the narrower group of

waters which are the subject of state regulation. Crucially, the

state's argument contains an assumption that federal regulation on

a regional basis is disfavored, and that there is a presumption in

favor of state regulation of local waters. Not so, as Locke makes

clear. 529 U.S. at 108. As it is framed, the state's argument is

untenable.

More generally, the state argues that the Coast Guard has

not determined that 33 C.F.R. § 165.100(d)(1) preempts the state

tug escort rule at issue. The initial question is whether the

Coast Guard has expressed an intent to preempt Mass. Gen. Laws ch.

21M, § 6. The United States argues that it is obvious from the

regulation and the Coast Guard's accompanying statements that such

an intent has been expressed.

The law of preemption by agency regulation, as the state

amici point out, requires a clear statement from the federal agency

24
The Court did comment that then-pending rulemaking
"requir[ing] tug escorts for certain vessels operating in confined
waters," if passed, had the potential to preempt the state's tug
escort rule. Ray, 435 U.S. at 172 (emphasis added); see also 41
Fed. Reg. 18,770, 18,771 (May 6, 1976). Notably, the Court did not
suggest that the federal rule would need to specify particular
"confined waters" in order to preempt the state's tug escort rule.

-36-
of its intention to preempt the state regulation at issue. The

Supreme Court has held that "it is appropriate to expect an

administrative regulation to declare any intention to pre-empt

state law with some specificity." Cal. Coastal Comm'n v. Granite

Rock Co., 480 U.S. 572, 583 (1987) (citing Hillsborough County, 471

U.S. at 718). Like other federal agencies, the Coast Guard must,

"[t]o the extent practicable and permitted by law," publish a

federalism summary impact statement discussing "any regulation that

has federalism implications and that preempts State law," after

consultation with state and local officials. Exec. Order No.

13,132, § 6(c), 64 Fed. Reg. 43,255, 43,258 (Aug. 4, 1999). We

apply this specificity requirement.

The relevant administrative record on this issue does not

consist merely of the First Coast Guard District regulations, 33

C.F.R. § 165.100, and the attendant 1998 Federal Register

statement, 63 Fed. Reg. 71,764. It also consists of two later

Federal Register statements, issued in 2004 and 2006, which are

more pertinently about a proposed tug escort rule for Buzzards Bay.

The 1998 Federal Register statement25 could not have addressed MOSPA

25
The Coast Guard made several points in its 1998
explanation of the regulations at 33 C.F.R. § 165.100.
Specifically noting the environmental sensitivity of waters in the
Northeast, including Massachusetts waters, it stated: "This rule
takes a regional approach responsive to the particular risks
inherent in the transportation of petroleum products on the
waterways in the Northeastern United States." 63 Fed. Reg. at
71,765. The Coast Guard noted that several New England states were
attempting to regulate tank barges transporting oil, and that

-37-
because MOSPA was not enacted until 2004. But the Coast Guard was

well aware of MOSPA when it issued its two later statements.

In October 2004, the Coast Guard gave advance notice of

proposed rulemaking that would require tug escorts for tank barges

transiting Buzzards Bay. See 69 Fed. Reg. at 62,427. The advance

notice solicited comments on, inter alia, seven questions. Id. at

62,429. As to federalism concerns, the 2004 notice took the

position that several undefined provisions of MOSPA were preempted

by the rulings in Locke and Ray, and specifically that section 17

of MOSPA (codified at Mass. Gen. Laws ch. 103, § 28), concerning

pilotage requirements for certain vessels engaged in the coastwise

trade, was preempted by operation of law. Id. at 62,429-30; see

also 2004 Mass. Acts at 933. It is noteworthy that although the

Coast Guard in its 2004 notice was clearly aware of the enactment

of MOSPA, its federalism statement did not comment on the

preemption of the tug escort provision, Mass. Gen. Laws ch. 21M,

"[t]he states' differing legislative initiatives might result in
inconsistent regulation of the industry." Id. The Coast Guard
also noted comments that the rules for positive control of barges
should be national in scope, but it rejected that position in favor
of regional regulation. Id. at 71,765-66. The 1998 explanation
contains no explicit statement rejecting state regulation of
particularized local waters.
Significantly, under the heading of "Federalism," the
Coast Guard discussed whether its regulations would preempt certain
provisions of Rhode Island law. The Coast Guard concluded, inter
alia, that its regulations would preempt Rhode Island law on
positive control for barges, found at R.I. Gen. Laws § 46-12.6-
8(a)(3) (repealed 2000). 63 Fed. Reg. at 71,770. The Rhode Island
law had statewide application and was not limited to specified
local waters. 1997 R.I. Pub. Laws 217, 217-18.

-38-
§ 6. See 69 Fed. Reg. at 62,429-30. If the only pertinent

statements were those in 1998 and 2004, we would conclude that the

Coast Guard had not clearly expressed an intent to preempt the

state tug escort provisions.

What throws the matter in doubt is the most recent

federalism statement from the Coast Guard. The parties and the

district court did not focus on the 2006 statement. In March 2006,

the Coast Guard issued a notice of proposed rulemaking for Buzzards

Bay, 71 Fed. Reg. 15,649.26 That notice, like the 2004 notice,

states that section 17 of MOSPA is void by operation of law. Id.

at 15,653. The 2006 notice also suggests that parts of section 11

of MOSPA -- which is codified at Mass. Gen. Laws ch. 21M, §§ 1-8,

and so covers the relevant provision -- are preempted. The 2006

notice specifically mentions the tug escort requirements for

26
The proposed amendments for the First Coast Guard
District Regulated Navigation Area

would require that all single-hull tank barges
carrying 5000 or more barrels of oil or other
hazardous material and being towed through
Buzzards Bay, meet the following requirements:
1. Be accompanied by an escort tug between the
west entrance to Buzzards Bay and the east end
of the Cape Cod Canal.
2. Be accompanied by a federally licensed
pilot, who may remain on the escort tug
vessel, to monitor the navigation of the
tug/barge, and to advise the master of the
tug/barge accordingly.

71 Fed. Reg. at 15,652. The proposed amendments also sought to
establish a "Vessel Movement Reporting System" within Buzzards Bay
to monitor the movements of certain vessels. Id.

-39-
vessels in Buzzards Bay (codified at Mass. Gen. Laws ch. 21M, § 6),

and suggests, for the first time, that these requirements are

preempted. It does so not by expressing a direct intent to

preempt, but by stating a conclusion that Locke and Ray operate to

preempt Mass. Gen. Laws ch. 21M, § 6. 71 Fed. Reg. at 15,653.

Further, the language suggesting that Mass. Gen. Laws ch. 21M, § 6

is preempted is not as explicit as that used to signal the

preemption of section 17 of MOSPA. See 71 Fed. Reg. at 15,653.

Under these circumstances, the better course is to

remand. The parties should have the opportunity to address, among

any other issues, the questions of whether the Coast Guard

sufficiently expressed a clear intent to preempt the state tug

escort provisions in 2006, and whether, if so, the Coast Guard's

position is clearly inconsistent with congressional intent. See

Cal. Coastal Comm'n, 480 U.S. at 583; Hillsborough County, 471 U.S.

at 714-15.

As was true in Ray, "[i]t may be that [federal] rules

will be forthcoming that will pre-empt the State's present

tug-escort rule . . . ." 435 U.S. at 172. For now, we remand and

encourage the parties to take advantage of the federalism

consultations between the Coast Guard and the Commonwealth of

Massachusetts, which have already started. See 71 Fed. Reg. at

15,654; 69 Fed. Reg. at 62,430.

V. THE STATE'S FINANCIAL ASSURANCE REQUIREMENT

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 The parties again disagree on the proper frame of

analysis of the state's financial assurance statute and its

exception. Nonetheless, the parties do agree that the analysis

here is different from that of the other regulations at issue

because Congress (through its enactment of OPA) has expressly saved

the states' power to establish liability rules and related

requirements. See 33 U.S.C. § 2718. Indeed, the Supreme Court has

clarified that OPA did not preempt state power to "establish

liability rules and financial requirements relating to oil spills."

Locke, 529 U.S. at 105.

MOSPA's financial assurance requirement has two relevant

parts, one of which is under attack, and the other of which is

conceded not to be preempted (assuming it is severable). In

pertinent part, the state statute provides:

(a) Any vessel, whether or not self-propelled,
in or entering upon the waters of the
commonwealth for the purpose of transporting,
discharging or receiving a cargo of oil,
hazardous material, or hazardous waste, shall
be subject to the financial assurance
requirements and penalty authority as provided
in subsections (b) to (d), inclusive.

(b) A certificate of financial assurance
obtained individually or jointly by the
vessel, its owner or agent, its charterer, or
by the owner or operator of the terminal at
which the vessel discharges or receives its
cargo, shall be provided to the department in
the amount of at least $1,000,000,000.
Vessels with a capacity of less than 6,000
barrels shall present a certificate of
financial assurance to the department of
environmental protection in the amount of

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 $5,000,000. A copy of the financial assurance
shall be posted on the vessel.

(c) . . . .

(d) The department may allow financial
assurance in a lower amount based upon
criteria that includes, but is not limited to,
the type and amount of the above cargo
transported by the vessel; the size and
construction of the vessel, including whether
the vessel is double hulled; the safety record
of the vessel or the vessel owner, the loss or
accident history of the vessel or vessel owner
involving maritime spills and the safety
equipment used by the vessel. The financial
assurance shall be in a form approved by the
department.

Mass. Gen. Laws ch. 21, § 50C.

The United States concedes that, standing alone, the

provisions for the $1 billion and $5 million financial assurance

certificates (subsections (a) and (b)) are within the state's power

under OPA's savings clauses, 33 U.S.C. § 2718(a)(1), (c).27 The

dispute is over section 50C(d), which provides that the state

Department of Environmental Protection may lower the amount of the

bond according to certain criteria, some of which are defined by

statute. The specified criteria include: "the type and amount of

cargo transported . . .; the size and construction of the vessel,

27
OPA's savings clauses refer only to liability
requirements related to the discharge of oil. However, MOSPA has
a broader scope, as its financial assurance provisions also apply
to vessels carrying hazardous materials. See Mass. Gen. Laws ch.
21, § 50C(a). The parties have not discussed this disconnect in
their briefs. Since the topic of hazardous materials has not been
addressed by the parties' briefs, we do not discuss it further.

-42-
including whether the vessel is double hulled; the safety record of

the vessel or the vessel owner"; and the vessel's safety equipment.

Mass. Gen. Laws ch. 21, § 50C(d). The department is also given

discretion to use other criteria. Id.

There are two relevant OPA savings clauses. The first,

33 U.S.C. § 2718(a)(1)(A), provides:

Nothing in this Act . . . 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 pollution by
oil within such State . . . .

The second clause, 33 U.S.C. § 2718(c)(1), provides:

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 subdivision thereof --

(1) to impose additional liability or
additional requirements [relating to the
discharge, or substantial threat of a
discharge, of oil] . . . .

These clauses in OPA do not define "requirements." The clauses

save state laws from preemption by OPA's Title I, but not from

OPA's other titles, or from other federal statutes. Locke, 529

U.S. at 106.

The United States asserts that MOSPA is problematic

because the exceptions in section 50C(d) encompass criteria at the

-43-
core of PWSA's Title II.28 Moreover, the state statute merely

provides that the criteria are to be administered by the state

agency, and it offers no further guidance.

The United States asserts that the state may not regulate

indirectly what it cannot regulate directly under Title II. The

state and the Coalition acknowledge that an indirect regulation

argument might survive Ray. Ray did consider such an indirect

regulation theory, although there the theory did not concern a

state financial assurance certification under OPA's savings

clauses. See 435 U.S. at 173 & n.25 (inquiring whether a state's

tug escort rule indirectly regulated primary conduct, and rejecting

that possibility on the facts presented). Nonetheless, even

assuming arguendo that some theory of impermissible indirect

regulation is viable even in a savings clause case, the United

28
In support of its argument that section 50C(d) invades
the province of Title II, the United States notes that Title II
specifically requires the Coast Guard to issue safety regulations
that consider "the types and grades of cargo permitted to be on
board a tank vessel." 46 U.S.C. § 3703(b). It also requires the
Coast Guard to regulate tank vessel design standards, id.
§ 3703(a), mandates that the Coast Guard promulgate rules regarding
"superstructures" and "hulls," id. § 3703(a)(1), requires the
Coast Guard to prescribe rules regarding the equipping of tank
vessels, id., and instructs the Coast Guard to issue rules
concerning "equipment and appliances for lifesaving, fire
protection, and prevention and mitigation of damage to the marine
environment," id. § 3703(a)(3). The United States also points out
that a different federal statute establishes reporting
requirements. See id. § 6101 (requiring that the Coast Guard
prescribe regulations on marine incident reporting and listing
specific kinds of incidents that the regulations must cover).

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States has not to date met its burden on its argument that the

statute is not within the powers reserved to the states.

In this case, the two sides take fundamentally different

views of what constitutes impermissible indirect regulation. There

is a lack of clarity regarding the exact nature of both the United

States' claim and the state's defense. The issue can be viewed as

a spectrum problem. On the one hand, there is the state's

statutory choice to establish a financial assurance program, the

cost of which may be reduced by criteria which are attuned to

degree of risk. Such gradations are common to most insurance

schemes. On the other hand, there is a federal fear that

implementation of this scheme will lead to state regulation of

primary conduct -- conduct that is exclusively under federal

control pursuant to Title II.29

In the United States' view, MOSPA's impermissible

indirect effect is inherent in the structure of its financial

assurance provision. Because here, according to the United States,

"the potential to influence primary conduct cannot be eliminated or

even discounted," the statute is preempted as a matter of law.

29
The state amici argue that there is no reason to assume
that the state's scheme is a pretext to regulate Title II subjects,
or to assume that the state has improper motives. However, the
United States' objection is concerned with the potential effects of
the scheme on primary conduct under Title II, regardless of motive.
In any event, because there is insufficient evidence even of the
statute's effects, we need not decide if improper motive is
relevant to the preemption inquiry.

-45-
Under this theory, there is no need to present facts demonstrating

that the provision would impose an actual burden or impediment to

federal Title II authority.

One might ask why, if the state may impose a $1 billion

financial assurance requirement, a state may not also reduce the

amount based on the objective criteria set forth in the statute --

criteria which appear, on their face, to be rationally related to

the degree of the risk posed. After all, there would appear to be

less risk of spillage from a double-hulled vessel. Similarly, a

vessel's capacity would presumably be related to the amount of

expected liability if a spill did occur. Tellingly, OPA itself has

a federal financial assurance requirement; as recently amended by

Congress, the statute requires differing amounts of financial

assurance based on whether or not a vessel is single-hulled, based

on whether or not the vessel is a "tank vessel," and based on the

gross tonnage30 of the vessel. 33 U.S.C. §§ 2704, 2716.

The United States responds that MOSPA's $1 billion

requirement is effectively no more than a ceiling, and that in

practice the amounts charged will vary depending on criteria that

are exclusively under federal control under PWSA's Title II. The

United States argues that a state may never use criteria within

30
It appears that "gross tonnage" is a measure for a ship's
internal capacity. See Webster's Third New International
Dictionary 2407 (1993); see also 46 C.F.R. § 69.9 ("Gross tonnage
means a vessel's approximate volume.").

-46-
Title II to ground its decisions.31 That is because the state's

mechanism amounts to a financial incentive "for any design, cargo

or equipment changes that [state regulators] think appropriate."

We are doubtful that when Congress authorized the states to set

financial assurance requirements it at the same time meant per se

to preempt states from using graduated levels rationally related to

risk. It is again worth observing that OPA itself imposes federal

financial assurance requirements that are not uniform for all

vessels. Under the OPA regime, vessels over 300 gross tons with

oil on board, and certain other vessels of any size, are required

to provide evidence of financial responsibility sufficient to meet

OPA's liability maximums. 33 U.S.C. § 2716; see also id. § 2704

(setting forth liability maximums). At the time OPA was enacted,

these maximums differed based on the vessel's gross tonnage, and

based on whether or not the vessel was a tank vessel.32 Pub. L. No.

31
Under the United States' theory, it would make no
difference if the state set a minimum amount for a bond and
ratcheted it up according to these defined criteria, or if the
state instead set a ceiling and ratcheted down.
32
A later amendment introduced even more gradations. This
amendment significantly increased the size of the liability
maximums, and also adjusted the limits to take into account whether
or not a vessel is single hulled. See Delaware River Protection
Act of 2006, Pub. L. No. 109-241, § 603, 120 Stat. 516, 553-54
(codified at 33 U.S.C. § 2704). The amendment also required the
Coast Guard to report back to Congress, within 45 days of the
amendment's enactment, on the adequacy of the federal liability
limits. Id.
The Coast Guard has yet to revise its financial assurance
regulations to respond to this statutory amendment. While it
"anticipate[s] initiating a rulemaking" to institute the changes,

-47-
101-380, § 1004(a), 104 Stat. at 491-92. In light of this, it is

difficult to believe that Congress intended to preclude the states

from similarly calibrating their financial assurance requirements

to account for different vessel characteristics.

Moreover, we should not be quick to assume that Congress

intended preemption here. One commentator has read Ray to mean

that when a state provides for alternative courses of behavior, one

preempted and one not, the overall state scheme is not preempted

unless the state's requirements act to exert pressure on operators

in preempted areas. See Tribe, supra, § 6-26, at 486-87. Ray

considered and rejected such a claim on its facts, and in light of

the Court's treatment of the issue, Professor Tribe has concluded

that "the basic teaching of the [Ray] decision is that state

pressure to act in derogation of a federal statutory scheme is not

to be inferred lightly." Id. at 487.

That principle has even more force in our case. In OPA,

Congress expressly preserved state power to require financial

assurance. Ray's discussion of indirect regulation did not involve

any such explicit congressional preservation. Moreover, Ray

decided the indirect regulation issue on a detailed record replete

with factual stipulations. 435 U.S. at 156, 173 & n.25. In this

71 Fed. Reg. 47,737, 47,738 (Aug. 18, 2006), it has told vessel
operators that the prior requirements for submitting evidence of
financial responsibility remain in effect until such rulemaking
takes place, id.

-48-
context, we reject the United States' arguments that the existence

of pressure to conform conduct can be decided here as a matter of

law, and that the actual effects of the state statute are

irrelevant.

As a fallback argument, the United States contends that

it has established the existence of burdensome pressure, as MOSPA

gives a state agency the authority to calibrate the assurance

requirement on a case-by-case basis with only general guidance. It

is not clear whether the United States means to argue that the

state could constitutionally enact a financial assurance provision

which, for example, allowed reductions according to a legislatively

set schedule based on various design and other defined criteria.33

Nor is it clear if the United States' position would permit a state

to use regulations (rather than a statute) to enact such a

provision, if these regulations reduced and cabined administrative

discretion.

The district court took a different approach. It

correctly held that the effect of the statute was relevant. It

asked whether the practical effect of the $1 billion rule was to

force vessels to seek reductions pursuant to the exemption scheme.

Massachusetts, 440 F. Supp. 2d at 46. The court then decided,

without hearing any evidence and on a motion for judgment on the

33
The United States concedes that the state legislature
"has substantial latitude to calibrate the bond requirement." But
the full reach of this concession is not entirely clear.

-49-
pleadings, "that the Commonwealth's one billion dollar financial

assurance requirement imposes such an onerous financial obligation

on a tank vessel owner that it in effect forces compliance with the

statutory exception criteria." Id.

As an initial matter, the $1 billion amount does not

appear to be plainly unreasonable when measured against risk. The

remedial costs of the Exxon Valdez spill in 1989 surpassed $2

billion (as measured in 1990 dollars). A. Rodriguez & P. Jaffe,

The Oil Pollution Act of 1990, 15 Tul. Mar. L.J. 1, 16 (1990). In

Buzzards Bay, while the clean-up costs from the 2003 spill were

significantly lower, they were still sizable.34

Moreover, the record does not yet contain evidence about

the requirements other states have set, industry usage and

practice, or the costs of obtaining financial assurance. Nor have

the parties even discussed or presented evidence about the

requirements set by the federal government. While our own research

on this last point has uncovered the federal rules, see 33 U.S.C.

§§ 2704, 2716, those rules simply highlight the need for further

34
One estimate, offered by the Executive Director of the
Buzzards Bay National Estuary Program, put those costs at $36
million, which was on top of the $10 million the vessel owners paid
in criminal penalties. See J. Costa, Costs of the Bouchard No. 120
Oil Spill, http://www.buzzardsbay.org/oilspillcosts.htm (last
updated Dec. 21, 2005); see also R. Mishra, Legal Technicality
Derails $10M Redress for Oil Spill, Boston Globe, Sept. 15, 2004,
at B2 (stating that $38 million had already been spent on clean-
up). That spill involved "only" 98,000 gallons of oil. A larger
spill, such as the 300,000 gallon spill that nearby Narragansett
Bay saw in 1989, might be expected to impose far greater costs.

-50-
facts. Indeed, the federal requirements set a complicated formula

based in part on a vessel's gross tonnage, and there is nothing in

the record informing us about the gross tonnages of vessels that

traverse Buzzards Bay.

Of course, even if the $1 billion amount were not in

itself unreasonable, it is possible that such an amount would still

place strong pressure on the industry to change its primary

conduct. Yet there is simply no evidence on this point.

The district court also found it significant that there

was a lack of notice to vessel owners about the specific criteria

that the state would use in lowering the bond amount; this was the

crux of its concern about the vagueness of the criteria and the

untrammeled delegation to the state agency. See Massachusetts, 440

F. Supp. 2d at 46. Given its finding that the state system

necessarily forced vessels into compliance with the exemptions, the

court held that the exemption scheme necessarily undercut the

certainty that federal regulation under Title II afforded the

industry. Id.

The state characterizes the indirect regulation issue

differently. It agrees with the district court that the analysis

might turn on the practical effect of the $1 billion amount and the

implemented exceptions. But it argues that there was no evidence

of record to support the district court's conclusion. It also

-51-
points out that an offer of proof was made to the court of evidence

that no real burden is posed by the exemptions to the statute.

The analysis presented thus far is insufficient to permit

resolution of the matter on its merits. As the state has not yet

exercised its administrative authority, it is unclear how it would

choose to grant exceptions to the financial assurance requirement.

We simply cannot yet say that MOSPA's section 50C(d) is incapable

of any constitutional application. It may well be that the state

will structure its decision making as to the exemption in a way

that would frame the preemption question differently. It may even

be that discussions between state and federal authorities would

produce an agreed-upon scheme that adequately protects both state

and federal interests. Given the absence of evidence at this

stage, it is too early to know whether the state exception scheme

would intrude impermissibly on the Coast Guard's exclusive

authority under Title II.35 On this record, the district court was

35
Our conclusion, that a permanent injunction was
premature, also encompasses the plaintiffs' claim that section
50C(d) is preempted insofar as it allows reductions based on a
vessel's safety record. Plaintiffs have asserted that this part of
the law is invalid because it interferes with exclusive Coast Guard
reporting requirements. See 46 U.S.C. § 6101. The apparent
assumption is that when a vessel applies for the exception, the
state will necessarily require the vessel owner to describe past
safety incidents. But this conclusion is too hasty. For example,
the state agency could decide to simply look at the reports
required to be filed under federal law.

-52-
not warranted in permanently enjoining any aspects of the financial

assurance provision.36

Nonetheless, we do share the concerns of the United

States that the state has yet to make a showing, by regulation or

otherwise, explaining how it will utilize its discretion under

section 50C(d). Since the state has not structured its exemption

scheme, there is no operational scheme to enjoin. The state should

make such a showing on remand; we leave it to the district court to

consider the appropriateness of a preliminary injunction

thereafter.

VI. CONCLUSION

The questions here do not turn on whether the state or

the federal regulations best protect Buzzards Bay and the sensitive

waters of Massachusetts from oil spills, given the costs imposed by

regulation. Making such determinations is not the role of a

federal court.

36
Although there is some ambiguity, and the parties
disagree on appeal, we conclude that the district court sub
silentio held that the exception clause, section 50C(d), was
severable from the rest of the statute. At the end of its opinion,
the court stated that "[t]he Commonwealth is . . . permanently
enjoined from conditioning the one billion dollar financial
assurance requirement on criteria of tank vessel design, operation,
equipping, or reporting requirements." Massachusetts, 440 F. Supp.
2d at 48. The court further stated that it was not enjoining all
possible uses of the discretionary exception -- just those in the
specifically mentioned areas. Id. at 48 n.204. The district
court's decision left clauses (a) through (c) fully in place.

-53-
 Our question is whether the district court erred in

concluding, as a matter of judgment on the pleadings, that the PWSA

left no room for the state government to enact these state

statutory provisions. The district court erred in entering

permanent injunctions, as well as in entering judgment for the

United States, at this stage in the proceedings.

On remand, the parties should address the question of an

interim agreement to stay MOSPA's provisions pendente lite. In the

absence of an agreement by the parties, we leave it to the district

court to determine whether the United States can, under the proper

analysis, meet its burden that the state should be preliminarily

enjoined from enforcement of the relevant statutory sections.

No costs are awarded.

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