                           r -, • r   r   •




           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



CHERI ROLLINS, individually and as               NO. 73635-3-1
guardian ad litem of BLAKE ROLLINS,
a minor,

                    Appellant,
                                                 DIVISION ONE



BOMBARDIER RECREATIONAL
PRODUCTS, INC., a foreign
corporation,

                    Respondent,

DENNIS LONG and LYNETTE LONG,
husband and wife; WILDFUN
POWERSPORTS RENTALS, LLC,                        PUBLISHED OPINION
WILDFUN WATERSPORTS, INC.,

                     Defendants.                 FILED: December 21, 2015




       Lau, J. — Cheri Rollins suffered serious injuries when the personal watercraft (jet

ski) she tried to start exploded. She appeals the trial court's summary judgment

dismissal of her product liability claim against Bombardier Recreational Products

(Bombardier). She contends Bombardier negligently designed the model of personal

watercraft when it failed to include an engine ventilation system. The trial court
No. 73635-3-1/2



dismissed her product liability claim on summary judgment, reasoning that, as a matter

of law, the Federal Boat Safety Act (FBSA) preempted her state product liability claim.

Because her claim directly conflicts with the Coast Guard's explicit decision, pursuant to

Congressional authority, to exempt personal watercraft from the ventilation system

requirement, it defeats the purpose of the FBSA and is therefore preempted. We affirm

the order of dismissal.

                                           FACTS

         The main facts are undisputed. On August 1, 2009, Cheri Rollins tried to start a

personal watercraft (jet ski) when it exploded.1 The jet ski was a 1999 Sea-Doo XP Ltd.

manufactured by Bombardier and owned by Rollins' parents, Dennis and Lynette Long.

The explosion occurred due to accumulated gas vapor in the jet ski's engine

compartment. When Rollins engaged the ignition switch, an electrical arc ignited the

vapor. Bombardier does not equip these jet skis with a powered ventilation system.

Such a system may have prevented the explosion by eliminating the accumulated

vapor.


         In August 2011, Rollins sued the Longs alleging their failure to properly maintain

the jet ski negligently caused her injuries. In April 2012, the Longs filed a third party

complaint against Bombardier. The complaint alleged violations of Washington's

Product Liability Act (WPLA) and Washington's Consumer Protection Act (CPA).

Rollins amended her complaint to assert the same WPLA design-defect claim against

Bombardier. The parties agree that the defect underlying Rollins' claim is Bombardier's




         1We use the terms jet ski and personal watercraft interchangeably.
                                           -2-
No. 73635-3-1/3



alleged failure to include a powered ventilation system—a "blower" device—on the jet

ski.


       In June 2013, Bombardier moved for summary judgment dismissal, arguing that

federal law preempted Rollins' product liability claim. In September 2013, Rollins and

the Longs entered into a Settlement Agreement, entitled "Settlement Agreement,

Release, and Assignment." Clerk's Papers (CP) at 2594-99. The Agreement provided

that the Longs' insurer, State Farm, paid Rollins $1.2 million. As consideration, Rollins

assigned her personal injury claim against Bombardier to the Longs and State Farm.

After executing the Agreement, Rollins non-suited her claims, with prejudice, against the

Longs. In October 2013, Rollins notified Bombardier that State Farm controlled her

claims. In November 2013, Bombardier filed a motion to dismiss "pursuant to CR 12,

17, and 56." CP at 2548-66. Bombardier argued that Rollins' lawsuit was an improper

claim for indemnification brought by State Farm. Because the Agreement settled

Rollins' claims against the Longs and granted State Farm ownership of her remaining

claims, the lawsuit had transformed into an attempt by State Farm to use "[Rollins] as a

vessel through which it seeks indemnification from Bombardier." CP at 2555.

Bombardier also argued that State Farm was not the party in interest.

       The trial court issued two orders addressing Bombardier's two motions—the

June 12 motion for summary judgment and the November 21 motion to dismiss. In

December 2013, the trial court granted Bombardier's summary judgment motion and

dismissed Rollins' product liability claim, reasoning that the claim is preempted by

federal law. In January 2014, the trial court issued an order ruling that the settlement

agreement between the Longs and Rollins was an "indemnification agreement...

                                          -3-
No. 73635-3-1/4



collusive in effect." CP at 2791. But the court concluded that Bombardier's November

21 motion to dismiss was rendered moot when it dismissed Rollins' claim on summary

judgment. Rollins appeals the trial court's order granting Bombardier's June 12 motion

for summary judgment.

                                        ANALYSIS

       Standard of Review

       We review summary judgment orders de novo, engaging in the same inquiry as

the trial court. Michak v. Transnation Title Ins. Co.. 148 Wn.2d 788, 794-95, 64 P.3d 22

(2003). Summary judgment is proper if, viewing the facts and reasonable inferences in

the light most favorable to the nonmoving party, no genuine issues of material fact exist

and the moving party is entitled to judgment as a matter of law. CR 56(c); Michak. 148

Wn.2d at 794-95. The parties agree on the material facts. The sole issue is whether

federal law preempts Rollins' product liability claim.

       Preemption

       Bombardier contends a federal regulation exempting Bombardier from including

powered ventilation systems on its jet skis preempts Rollins' state law claim under the

WPLA. Rollins alleges Bombardier's jet ski was defectively designed because it lacked

a powered ventilation system.

       Federal preemption doctrine derives from the supremacy clause, which provides

that "the Laws of the United States .. . shall be the supreme Law of the Land." U.S.

Const, art. VI. Federal preemption of state law can be "either expressed or implied, and

is compelled whether Congress' command is explicitly stated in the statute's language

or implicitly contained in its structure and purpose." Gade v. Nat'l Solid Waste Mgmt.

                                           -4-
No. 73635-3-1/5



Assoc. 505 U.S. 88, 98, 112 S. Ct. 2374,120 L. Ed. 2d 73 (1992). Express preemption

occurs when Congress explicitly defines the extent to which it intends to supersede

state law. See Cipollone v. Liggett Grp. Inc. 505 U.S. 504, 517,112 S. Ct. 2608,120 L

Ed. 2d 407 (1992). Absent explicit preemptive language, implied preemption can occur

in two ways: "field preemption, where the scheme of federal regulation is 'so pervasive

as to make reasonable the inference that Congress left no room for the States to

supplement it,' and conflict pre-emption, where 'compliance with both federal and state

regulations is a physical impossibility,' or where state law 'stands as an obstacle to the

accomplishment and execution of the full purposes and objectives of Congress.'" Gade.

505 U.S. at 98. "There is a strong presumption against preemption and 'state laws are

not superseded by federal law unless that is the clear and manifest purpose of

Congress.'" Stevedoring Servs. of Am. Inc. v. Eogert. 129 Wn.2d 17, 24, 914 P.2d 737

(1996) (quoting Washington State Physicians Ins. Exch. & Assn v. Fisons Corp.. 122

Wn.2d 299, 327, 858 P.2d 1054 (1993)).

      We conclude that federal law impliedly preempts Rollins' state product liability

claim because it directly conflicts with federal safety standards promulgated under the

FBSA. It therefore "stands as an obstacle to the accomplishment and execution of the

full purposes and objectives of Congress." Sprietsma v. Mercury Marine. 537 U.S. 51,

64, 123 S. Ct. 518, 154 L Ed. 2d 466 (2002) (quoting Freiohtliner Corp. v. Mvrick. 514

U.S. 280, 287, 115 S. Ct. 1483, 131 L Ed. 2d 385 (1995)).

       Implied Conflict Preemption

       In the FBSA, Congress explicitly provided that federal regulations of recreational

watercraft preempt conflicting state laws. The FBSA "was enacted 'to improve boating

                                          -5-
No. 73635-3-1/6



safety,' to authorize 'the establishment of national construction and performance

standards for boats and associated equipment,' and to encourage greater 'uniformity of

boating laws and regulations as among the several States and the Federal

Government.'" Sprietsma. 537 U.S. at 57 (quoting Pub. L. 92-75, § 2, 85 Stat. 213-14).

The Senate Report underlying the FBSA explains, "[t]he need for uniformity in standards

if interstate commerce is not to be unduly impeded supports the establishment of

uniform construction and equipment standards at the Federal level." S. Rep. No. 92-248

(1971). reprinted in 1971 U.S.C.C.A.N. 1333,1335. The same report explains t
preemption of conflicting state law is necessary to "assure[] that manufacture for the

domestic trade will not involve compliance with widely varying local requirements." S.

Rep. No. 92-248, 1971 U.S.C.C.A.N. at 1341.

       In accordance with this purpose, section 4302 of the FBSA delegates to the

Secretary of Transportation authority to "[establish] minimum safety standards for

recreational vessels and associated equipment," including "requiring the installation,

carrying, or use of associated equipment (including ... ventilation systems ...)." 46

U.S.C. § 4302(a)(1 )-(2). The official notes of section 4302 emphasize that this

delegation of authority grants the Secretary broad discretion to establish uniform safety

standards:

       In lieu of establishing specific statutory safety requirements, subsection (a)
       provides flexible regulatory authority to establish uniform standards for the
       design, construction, materials, and performance of the boats themselves
       and all associated equipment. It also provides for the display of seals and
       other devices for certifying or evidencing compliance with applicable
       safety regulations or standards.




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No. 73635-3-1/7



46 U.S.C. § 4302, historical and revision notes (emphasis added). Consistent with this

flexible regulatory authority, the FBSA also grants the Secretary the discretionary power

to exempt certain vessels from those same regulations: "If the Secretary considers that

recreational vessel safety will not be adversely affected, the Secretary may issue an

exemption from this chapter or a regulation prescribed under this chapter." 46 U.S.C. §

4305. Finally, section 4306 of the FBSA—titled "Federal preemption"—expressly

provides that the regulatory scheme promulgated under the FBSA preempts

inconsistent state law:

               Unless permitted by the Secretary under section 4305 of this title, a
       State or political subdivision of a State may not establish, continue in
       effect, or enforce a law or regulation establishing a recreational vessel or
       associated equipment performance or other safety standard or imposing a
       reguirement for associated equipment (except insofar as the State or
       political subdivision may, in the absence of the Secretary's disapproval,
       regulate the carrying or use of marine safety articles to meet uniquely
       hazardous conditions or circumstances within the State) that is not
       identical to a regulation prescribed under section 4302 of this title.

46 U.S.C. § 4306 (emphasis added).

       The Secretary of Transportation has delegated all regulatory authority under the

FBSA to the Coast Guard. See Sprietsma. 537 U.S. at 57 (citing 49 C.F.R. § 1.46(n)(1)

(1997)). It is a well-settled principle of preemption doctrine that "a federal agency acting

within the scope of its congressionally delegated authority" is afforded the same

preemptive power over state law as Congress. Louisiana Pub. Serv. Comm'n v. FCC.

476 U.S. 355, 369, 106 S. Ct. 1890, 90 L. Ed. 2d 36 (1986). Accordingly, "Coast Guard

regulations are to be given pre-emptive effect over conflicting state laws." U.S. v.

Locke. 529 U.S. 89,109-10,120 S. Ct. 1135 (2000). One regulation promulgated by

the Coast Guard requires boats to be equipped with a ventilation system:

                                          -7-
No. 73635-3-1/8



             (a) Each compartment in a boat that has a permanently installed
                  gasoline engine with a cranking motor must:

             (1) Be open to the atmosphere, or

             (2) Be ventilated by an exhaust blower system.

33 C.F.R. § 183.610. Since 1988, however, the Coast Guard has granted an official

exemption to Bombardier for personal watercraft due to their unique design. The Coast

Guard's Grant of Exemption number CGB 88-001, entitled "In the matter of the petition

of BOMBARDIER CORPORATION for an exemption from [33 C.F.R. § 183.610],"

considers several different regulatory requirements as they relate to personal watercraft.

CP at 677-80. Regarding ventilation, the Coast Guard concluded an exemption would

not adversely affect boating safety:

             The present ventilation regulations in Subpart K of Part 183 [33
      C.F.R. § 183.610] were intended to apply to conventional types of boats
      powered by inboard or sterndrive engines or equipped with generators.
      These engines may emit gasoline fuel vapors. The ventilation regulations
      are intended to remove such vapors; however, the fuel system on the
      "Sea-Doo" boat is not designed in the same way as a fuel system on a
      conventional inboard or sterndrive. The fuel system is sealed to prevent
      leakage when the boat is oriented in any position. As a result, compliance
       with the reguirements of Section 183.610 is unnecessary to achieve an
       acceptable level of safety.

              In consideration of the foregoing, I find that to grant this exemption
       would not adversely affect boating safety. Therefore, pursuant to the
       authority contained in 46 U.S.C. 4305 and 49 CFR 1.46(n)(1), which
       authority has been delegated to me by the Commandant, and exemption
       from the requirements of [33 C.F.R. § 183.610] is hereby granted to the
       Bombardier Corporation ....

CP at 679 (emphasis added). In light of this exemption, the Coast Guard required

Bombardier to affix labels to its personal watercraft models alerting consumers to the

exemption:


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No. 73635-3-1/9



              Each "Sea-Doo" boat, in lieu of a certification label, shall have
       permanently affixed to it, in a location clearly visible to the operator when
       boarding the boat or getting the boat underway, a label which contains the
       following information:

              (b) The words:

                  "THIS BOAT IS NOT REQUIRED TO COMPLY WITH THE
                  FOLLOWING U.S. COAST GUARD SAFETY STANDARDS IN
                  EFFECT ON (insert date of certification or the words 'THE
                  DATE OF CERTIFICATION'):

                         •   Display of Capacity Information
                         •   Safe Loading
                         •   Flotation
                         •   Fuel System
                         •   Powered Ventilation

              AS AUTHORIZED BY U.S. COAST GUARD GRANT OF
              EXEMPTION (CGB 88-001)."

CP at 680 (emphasis added). The record includes a photograph of this label affixed to

a jet ski identical to the one involved in the accident underlying Rollins' lawsuit. The

Coast Guard has exempted nearly all personal watercraft manufacturers, including

Bombardier, from complying with the ventilation requirement under 33 C.F.R. §

183.610(a)(1)-(2).

       Federal courts have found conflict preemption when a common law claim

imposes a requirement that is inconsistent with federal safety standards. For instance,

in Gracia v. Volvo Europa Truck. N.V.. 112 F.3d 299 (7th Cir. 1997), the court explained

that allowing the plaintiff's design defect claim to continue would defeat the federal

government's goal of maintaining uniform safety standards across the country:

              The Safety Act, in order that it might achieve its primary purpose of
       reducing traffic injuries and fatalities, also had the objective of establishing
       uniform national safety standards and adequate enforcement of those
       standards, as the legislative history indicates. We agree that when a state
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No. 73635-3-1/10



      requirement is not identical to the federal standard it would obviously
      impede the objective of uniform national standards ....
           If Gracia's common law claim was not preempted, then
      manufacturers would be placed in a position where they could be subject
      to varying standards from state to state, which could not all be complied
      with simultaneously. For instance, one state's common law could require
      stringent windshield retention, while another state's could require that
      windshields not be permanently affixed. If this were the case, then the
      manufacturer would be subject to liability if the windshield were ejected in
      an accident in one state, but in another state would be liable if a
      windshield remained intact and a trapped victim were unable to escape
      from the vehicle.

Gracia. 112 F.3d at 298.

      The same reasoning applies here. In Becker v. U.S. Marine Co.. 88 Wn. App.

103, 943 P.2d 700 (1997), we stated that "[a] tort claim defeats the purposes of the

[FBSA] and is therefore preempted only when the duty asserted conflicts with the Coast
Guard's explicit decision either to adopt a particular standard or to leave the feature or

structure unregulated." Becker. 88 Wn. App. at 111. Because Rollins' claim directly

conflicts with an exemption granted by the Coast Guard acting within the scope of its

congressionally delegated authority, it is preempted. The FBSA grants authority to the
Secretary of Transportation to promulgate boat safety regulations and exempt individual

manufacturers or boat models from those same regulations. Together, these

regulations and exemptions create a framework of safety standards intended to

encourage uniformity among the states and protect manufacturers from "widely varying

local requirements." S. Rep. No. 92-248,1971 U.S.C.C.A.N. at 134: see also Sprietsma.
537 U.S. at 57. With these goals in mind, the act provides that standards promulgated

under the act preempt conflicting state laws.




                                           •10-
No. 73635-3-1/11



       Pursuant to this regulatory authority, the Coast Guard granted Bombardier an

official exemption from the ventilation requirement for its Sea-Doo model jet skis. The

parties agree that the thrust of Rollins' design defect claim is that the jet ski lacked a

ventilation system. Because her claim effectively "impos[es] a requirement' that is

inconsistent with the federal safety standard, it creates an obstacle to the FBSA's

purpose and is therefore preempted. 46 U.S.C. § 4306 ("[A] State or political

subdivision of a State may not... imposfe] a reouirement... that is not identical to a

regulation prescribed under section 4302 of this title." (emphasis added)); see Gade.

505 U.S. at 98 ("conflict preemption [occurs] where ... state law 'stands as an obstacle

to the accomplishment and execution of the full purposes and objectives of

Congress.'"). Like in Gracia. if Rollins' "common law claim was not preempted, then

manufacturers would be placed in a position where they could be subject to varying

standards from state to state," thereby negating the Coast Guard's authority to grant

exemptions under 46 U.S.C. § 4306 and impeding the purposes underlying the FBSA.

Gracia. 112 F.3d at 298.2

       The Coast Guard's Exemption Letter

       Rollins argues her claim is not preempted because the Coast Guard's Grant of

Exemption is not a "regulation." Rollins asserts that the FBSA preempts state laws only

       2 For similar reasons, the Coast Guard's exemption cannot be viewed as a
"minimum standard" upon which a state may place more stringent requirements. Rollins
argues that the exemption does not conflict with her product liability claim because the
exemption does not prohibit ventilation systems; it merely does not require them.
Therefore, a manufacturer could include a ventilation system without violating any
federal regulation. But, as explained in Gracia and Becker, exposing a manufacturer in
compliance with federal standards to state common law liability defeats the purpose
 underlying those standards.

                                            -11-
No. 73635-3-1/12



when those laws are "not identical to a regulation prescribed under section 4302 of this

title." 46 U.S.C. § 4306 (emphasis added). Because the Coast Guard's Grant of

Exemption is "a mere letter," and not a "regulation," it has no preemptive authority under

the FBSA. Br. of Appellant at 1. The key difference, according to Rollins, is that the

content of the Coast Guard's Grant of Exemption was never published in either the

Code of Federal Regulations or the Federal Register. To support this argument, Rollins

cites Brock v. Cathedral Bluffs Shale Oil Co.. 796 F.2d 533 (D.C. Cir. 1986):

               Failure to publish in the Federal Register is indication that the
       statement in question was not meant to be a regulation, since the
       Administrative Procedure Act requires regulations to be so published ....
       The real dividing point between regulations and general statements of
       policy is publication in the Code of Federal Regulations, which the statute
       authorizes to contain only documents "having general applicability and
       legal effect."

Brock. 796 F.2d at 538-39 (quoting 44 U.S.C. § 1510 (1982)). In other words, Rollins

argues her claim is not preempted because there is no "law" or "regulation" preempting

the claim.


       We are not persuaded by Rollins' attempt to cast the exemption letter as a "mere

letter" lacking any preemptive effect. Rollins' argument elevates form over substance.

She fails to cite any authority stating that only published regulations have preemptive

force. "Where no authorities are cited in support of a proposition, the court is not

required to search out authorities, but may assume that counsel, after diligent search,

has found none." DeHeer v. Seattle Post-Intelligencer. 60 Wn.2d 122, 126, 372 P.2d

193 (1962). Indeed, preemption does not typically depend on whether a regulation is

published. Rather, it is the "purpose of Congress" that is "the ultimate touchstone of

pre-emption analysis." Cipollone. 505 U.S. at 517. Accordingly, federal courts have

                                          -12-
No. 73635-3-1/13



acknowledged that "federal agency action taken pursuant to statutorily granted authority

short of formal, notice and comment rulemaking may also have preemptive effect over

state law." Fellner v. Tri-Union Seafoods. LLC. 539 F.3d 237, 244 (3d Cir. 2008); see

also Colacicco v. Apotex Inc.. 521 F.3d 253, 271 (3d Cir. 2008) ("Although preemption

is commonly thought of in terms of statutes and regulations, a federal agency's action

taken pursuant to statutorily granted authority may also have preemptive effect over

state law."). The FBSA evidences Congress' clear intent to grant the Secretary of

Transportation (and, by extension, the Coast Guard) broad regulatory authority to

establish uniform safety standards that supersede conflicting state requirements. In

Gracia. 112 F.3d at 291, the court explained that federal action can have preemptive

force even if it involves no regulation. In Gracia. the National Highway Transportation

Safety Administration (NHTSA) established windshield retention requirements and

exemptions for certain vehicles pursuant to its authority under the National Traffic and

Motor Vehicle Safety Act (NTMVSA). Gracia. 112 F.3d at 297. The court stated that

this framework amounted to a federal standard with preemptive force:

             [H]ere there is a specific federal standard addressing windshield
       retention for the truck at issue, in which the NHTSA determined that this
       type of vehicle should be exempt from the affixing requirement. The
       Supreme Court has held that "a federal decision to forgo regulation in a
       given area may imply an authoritative federal determination that the area
       is best left unregulated, and in that event would have as much pre-emptive
       force as a decision to regulate." Arkansas Elec. Co-op Corp. v. Arkansas
       Pub. Serv. Comm'n. 461 U.S. 375, 384, 103 S. Ct. 1905, 1912, 76 L. Ed.
       2d 1 (1983)... Therefore, the existence of the exclusionary language in
       the federal safety standard mandates that we interpret it as representing a
       conscious decision by the NHTSA. An examination of the legislative
       history further bolsters that it was the intent of the NHTSA to exclude
       trucks such as the one at issue in this case from having to meet any
       windshield retention requirements.


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No. 73635-3-1/14



Gracia. 112 F.3d 296-97. In Gracia. it was irrelevant whether or not the exemptions at

issue had been published.3 Instead, the court considered whether those exemptions

demonstrated a "conscious decision" by the agency to develop a federal safety

standard. Gracia. 112 F.3d at 297.

      We acknowledged the same principle in Becker. The plaintiff in Becker filed a

product liability claim against a boat manufacturer alleging the manufacturer negligently

caused injury by failing to include certain safety features such as handrails on one of its

boat models. Becker. 88 Wn. App. at 104-05. The Coast Guard had never

promulgated any regulation or exemption related to handrails. Becker. 88 Wn. App. at

110. But despite any formal law or regulation, we stated that preemption may

nevertheless exist if there was sufficient evidence that the Coast Guard had considered

and rejected regulations addressing handrails: "[t]he issue in this case, therefore, is a

factual one: has the Coast Guard explicitly considered and rejected regulation in

matters of handrails and bow seating design?" Becker. 88 Wn. App. at 111. This key

inquiry would have been unnecessary if, as Rollins contends, a federal agency's action

must be a formally published law or regulation to have preemptive effect. Instead, we

considered whether the Coast Guard had made an "explicit decision to either to adopt a

particular standard or to leave the feature or structure unregulated." Becker. 88 Wn.

App. at 111. We ultimately held the plaintiff's tort claim was not preempted "[b]ecause




       3The exemptions at issue in Gracia had, in fact, been published in the Code of
Federal Regulations. However, as Bombardier notes, this is simply due to a key
difference between the FBSA and the NTMVSA. The latter requires exemptions to be
published while the former does not. Compare 49 U.S.C. § 30113, § 30114 with 46
U.S.C. § 4305.
                                          -14-
No. 73635-3-1/15



the Coast Guard has not formally considered, evaluated, and rejected regulation of bow

seating design, including handrails ...." Becker. 88 Wn. App. at 112.

       Here, unlike in Becker, the Coast Guard's exemption letter provides strong

evidence of "explicit decision either to adopt a particular standard or to leave the feature

or structure unregulated." Becker. 88 Wn. App. at 111. Despite Rollins' assertion that

the Coast Guard's Grant of Exemption is a "mere letter," the record shows the Coast

Guard grants such exemptions through formal exemption procedures only after

conducting a rigorous evaluation process. Scott Evans, retired Captain and former

Chief of Office of Boating Safety of the U.S. Coast Guard, explained the exemption

process in a declaration submitted to the trial court. The exemption procedure is also

summarized in the Coast Guard's 1999 Federal Register.

       To obtain an exemption, a manufacturer such as Bombardier must first send a

petition to the Coast Guard's Product Assurance Division. The petition must describe

the boat or vessel for which the exemption is being sought and include detailed design

information and specifications. The petition must also provide data and argument

explaining why the vessel should receive an exemption from a specific Coast Guard

regulation and why the exemption would not adversely affect boating safety. After

receiving the petition, engineers in the Product Assurance Division critically and

independently review the product designs in comparison with federal standards relevant

to the specific exemption request. The engineers work closely with the Division Chief

throughout the review process, and the Division Chief reports to the Chief of the Office

of Boating Safety regarding the status of the exemption request on at least a weekly

basis. The Product Assurance Division also consult closely with outside organizations,

                                           -15-
No. 73635-3-1/16



such as the American Boating and Yacht Council, Society of Automotive Engineers,

National Fire Protection Association, and Underwriters' Laboratories.

         During this extensive review process, the Coast Guard works closely with

manufacturers to ensure that relevant designs met or exceeded federal requirements.

Under the FBSA, the Coast Guard may only grant an exemption if it determines that the

exemption will not adversely affect boat safety. Once the Product Assurance Division

determines that the exemption would not adversely affect boat safety, the exemption

request would be vetted through the Chief of the Officer of Boating Safety. Once the

exemption is granted, it "constitute^] official Coast Guard regulatory action done

pursuant to ... Congressional authority." CP at 1755; see 46 U.S.C. § 4305. This

exemption process has remained the same since 1988. In 1999, the Coast Guard

proposed changing the exemption process. The Coast Guard published a description of

the exemption process in the Federal Register and sought public comments on certain

aspects of the process.4 But the Coast Guard ultimately left the same procedure in
place.

         Under these circumstances, the Coast Guard's Grant of Exemption preempts

Rollins' claim. Unlike in Becker and Sprietsma. where the record failed to establish that




       4"On May 19,1998, the National Transportation Safety Board (NTSB) issued a
report that recommended the Coast Guard eliminate the existing process of exempting
personal watercraft from the regulations in 33 CFR Parts 181 and 183 and develop
safety standards specific to personal watercraft." CP at 1748. Examples of alternate
types of regulations were suggested and public comments solicited: "(1) requiring that
PWC manufacturers meet prescribed industry design standards ... , or (2) developing
manufacturing regulations that address accidents associated with the specific design of
the PWC." CP at 1748.

                                          -16-
No. 73635-3-1/17



the Coast Guard had explicitly considered and rejected the regulation at issue,5 the

Coast Guard's Grant of Exemption here shows an unambiguous decision to exempt

personal watercraft from the general ventilation requirement under 33 C.F.R. § 183.610.

Further, the preemptive power of the FBSA does not derive solely from individual

regulations published in the C.F.R., as Rollins contends. The statute grants the Coast
Guard flexible authority to create a uniform standard through a framework of regulations

and exemptions.6 Because the Coast Guard's power to grant exemptions flows from a

federal statute that expressly delegates authority to develop boat safety standards that

supersede conflicting state requirements, the exemption has preemptive force.
       The authority Rollins cites is inapposite. She concedes that Brock—the primary

case upon which she relies—has nothing to do with preemption doctrine. In Brock, the
court addressed whether the Secretary of Labor's enforcement policy promulgated

 under the Federal Mine Safety and Health Act was a "binding norm" or simply a

statement of general policy. Brock. 796 F.2d at 536. The court concluded that the
 enforcement policy did not constitute a "binding, substantive regulation" because the
 "language of the guidelines is replete with indications that the Secretary retained his
 discretion to cite production-operators as he saw fit." Brock. 796 F.2d at 538. In dicta,


        5 See Sprietsma. 537 U.S. at 67 ("The Coast Guard did not take the further step
 of deciding that, as a matter of policy, the States and their political subdivisions should
 not impose some version of propeller guard regulation, and it most definitely did not
 reject propeller guards as unsafe         Thus, although the Coast Guard's decision not to
 reouire propeller guards was undoubtedly intentional and carefully considered, it does
 not convey an 'authoritative' message of a federal policy against propeller guards."
 (emphasis added)).
        6Since 1972, the Coast Guard has granted exemptions from the regulations to
 certain other non-conventional boats including personal watercraft, air boats, hovercraft,
 submarines, drift boats, race boats, and mini bass boats.
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the court explained that the enforcement policy was not a binding regulation even

though it was published in the Federal Register: "Publication in the Federal Register

does not suggest that the matter published was meant to be a regulation." Brock. 796

F.2d at 539. The court stated that typically a regulation must be published in the Code

of Federal Regulations to have legal effect. Brock. 796 F.2d at 539.

      The legal question in Brock is entirely unrelated to the issue here. The Brock

court analyzed the difference between regulations and general statements of policy, not

whether either of those agency actions have preemptive force. As discussed above,

both federal and Washington courts have acknowledged that an agency action may

preempt state law even if there is no formal, published regulation. See Fellner. 539

F.3d at 244; see ajso Becker. 88 Wn. App. at 111 ?

       Rollins also relies on Wabash Valley Power Ass'n. Inc. v. Rural Electrification

Admin.. 903 F.2d 445 (7th Cir. 1990). The Wabash court concluded that the Rural

Electrification Administration (REA) could not preempt state law with a letter, stating that

instead it "must establish rules with the force of law." Wabash. 903 F.2d at 453-54.

There are several key differences between the letter at issue in Wabash and the Coast

Guard's Grant of Exemption at issue here. First, in the letter, the REA sought to

exercise control over Wabash's electricity rates. Wabash. 903 F.2d at 450. The REA

failed to show it had any legal authority to do so: "[n]either REA's letter to Wabash nor

       7 We also note that accepting Rollins' argument under Brock—that the Coast
Guard's "letter" is not a "regulation"—leads to an absurd result. If Rollins is correct that
Brock controls, the Coast Guard's Grant of Exemption not only lacks preemptive force, it
lacks any legal authority at all. See Brock. 796 F.2d at 539 (Regulations must be
published in the Code of Federal Regulations to have "legal effect."). If that is the case,
then Bombardier and other manufacturers have been designing and selling personal
watercraft without ventilation systems in violation of 33 C.F.R. § 183.610 since 1988.
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its brief in this court cites any provision of the statute allowing it to regulate the rates

charged by its borrowers. Unless the REA has this authority, it is hard to see how it can

preempt state law        " Wabash. 903 F.2d at 453. Second, the court criticized the

REA's letter as an "informal procedure" lacking legal force. Wabash. 903 F.2d at 454.

Here, in contrast, the Coast Guard unquestionably possesses the authority to grant

exemptions from boat safety regulations. 45 U.S.C. § 4306. As discussed above, the

Grant of Exemption letter is the product of a rigorous evaluation procedure distinct from

the informal letter at issue in Wabash.

       The Savings Clause

       Rollins also claims that the saving clause in the FBSA saves her state law claim

from preemption. The saving clause provides that "[c]ompliance with this chapter or

standards, regulations, or orders prescribed under this chapter does not relieve a

person from liability at common law or under State law." 46 U.S.C. § 4311. In

Sprietsma. the court concluded the FBSA did not preempt a state product liability claim

in part because of the saving clause:

              [T]he "saving clause assumes that there are some significant
        number of common-law liability cases to save [and t]he language of the
        pre-emption provision permits a narrow reading that excludes common-
        law actions."
               The contrast between its general reference to "liability at common
        law" and the more specific and detailed description of what is pre-empted
        by § 10 ... indicates that § 10 was drafted to pre-empt performance
        standards and equipment requirements imposed by statute or regulation.
               Indeed, compensation is the manifest object of the saving clause,
        which focuses not on state authority to regulate, but on preserving "liability
        at common law or under State law." In context, this phrase surely refers to
        private damage remedies. We thus agree .. that petitioner's common-law
        tort claims are not expressly pre-empted by the FBSA.



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Sprietsma. 537 U.S. at 6364. At the same time, however, the court recognized that the

FBSA would preempt a state common law claim despite the saving clause if that claim

directly conflicted with regulations. Sprietsma. 537 U.S. at 65 ("Of course, if a state

common-law claim directly conflicted with a federal regulation promulgated under the

rFBSA], or if it were impossible to comply with any such regulation without incurring

liability under state common law, pre-emption would occur." (Emphasis added)).

       Indeed, both federal and Washington courts have recognized that saving clauses

like the one in section 4311 protect only those tort claims outside the scope of federal

regulation. In Geierv. American Honda Motor Co.. Inc. 529 U.S. 861, 120 S. Ct. 1913,

146 L Ed. 2d 914 (2000), the court explained that saving clauses do not broadly protect

tort claims, but rather prevent manufacturers from using compliance with federal

regulation as a general defense to tort liability:

               Nothing in the language of the saving clause suggests an intent to
       save state-law tort actions that conflict with federal regulations. The words
       [in the clause] sound as if they simply bar a special kind of defense,
       namely, a defense that compliance with federal standard automatically
       exempts a defendant from state law .... It is difficult to understand why
       Congress would have insisted on a compliance-with-federal-regulation
       precondition to the provision's applicability had it wished the Act to "save"
       all state-law tort actions, regardless of their potential threat to the
       objectives of federal safety standards promulgated under that Act. Nor
       does out interpretation conflict with the purpose of the saving provision,
       say, by rendering it ineffectual. As we have previously explained, the
       saving provision still makes clear that the express pre-emption provision
       does not of its own force pre-empt common-law tort actions ....
               Moreover, this Court has repeatedly "declinefd] to give broad effect
       to saving clauses where doing so would upset the careful regulatory
       scheme established by federal law."

Geier. 529 U.S. at 869-70 (quoting United States v. Locke. 529 U.S. 89, 106-07,120 S.

Ct. 1135 (2000)). Indeed, the Senate report for the FBSA confirms that the purpose of


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No. 73635-3-1/21



the saving clause is to prevent defendants from using compliance with federal

regulations as a broad defense to tort claims. See Becker. 88 Wn. App. at 108

("According to the same Senate report, the purpose of the savings clause is 'to assure

that in a product liability suit mere compliance by a manufacturer with the minimum

standards promulgated under the Act will not be a complete defense to liability.'"

(quoting S. Rep. 92-248 § 40 (1971), 1971 U.S.C.C.A.N. at 1352)). With this

understanding of the saving clause, we held that "[a] tort claim defeats the purposes of
the [FBSA] and is therefore preempted only when the duty asserted conflicts with the

Coast Guard's explicit decision either to adopt a particular standard or to leave the

feature or structure unregulated." Becker. 88 Wn. App. at 111.

       Unlike this case, the tort claim in Sprietsma was saved from preemption because

it targeted an area that the Coast Guard had not regulated. The plaintiff in Sprietsma
filed a product liability claim when his wife died after being struck by the propeller of a
boat manufactured by Mercury Marine. Sprietsma. 537 U.S. at 54. The plaintiff alleged
the boat was not equipped with a propeller guard. Sprietsma. 537 U.S. at 55. Although

 the Coast Guard had considered promulgating a standard for propeller guards, it

 ultimately did not impose any propeller guard regulation due to "the lack of any
 'universally acceptable' propeller guard for 'all modes of boat operation.'" Sprietsma.
 537 U.S. at 67. Therefore, "although the Coast Guard's decision not to require propeller

 guards was undoubtedly intentional and carefully considered, it does not convey an
 'authoritative' message of a federal policy against propeller guards." Sprietsma. 537

 U.S. at 67.




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      Here, in contrast, the Coast Guard has promulgated a uniform standard for

exhaust ventilation. 33 C.F.R. § 183.610 establishes a general requirement for

ventilation systems, and the Coast Guard has granted personal watercraft an exemption

to this requirement due to their unique design. Preemption did not foreclose the tort

claim in Sprietsma because the Coast Guard never conveyed an "authoritative

message" to either regulate boat propellers or that boat propellers were unnecessary.

Sprietsma. 537 U.S. at 67. Because the Coast Guard had imposed no regulation at all,

the tort claim could proceed. Rollins' claim, however, directly conflicts with "the Coast

Guard's explicit decision ... to adopt a particular standard" regarding ventilation

systems. Becker. 88 Wn. App. at 111. Thus, her claim "defeats the purposes of the

[FBSA] and is therefore preempted." Becker. 88 Wn. App. at 111.

       Rollins nevertheless argues her claim is not preempted because the regulation at

issue presented Bombardier with a choice to use ventilation systems or not. In

Williamson v. Mazda Motor of Am. Inc. 562 U.S. 323,131 S. Ct. 1131,179 L Ed. 2d 75

(2011), the court analyzed a regulation under the National Traffic and Motor Vehicle

Safety Act which allowed manufacturers a choice as to what type of seat belt—either

lap belts or lap-and-shoulder belts—to install in rear middle seats. Williamson. 562 U.S.

at 326-27. The plaintiff's tort claim alleged that Mazda should have installed lap-and-

shoulder belts rather than just lap belts. Williamson. 562 U.S. at 327. The court held

that when a regulation offers a manufacturer a choice, that regulation does not preempt

state law claims based on a manufacturer's choice if providing that choice is not central

to federal regulatory objectives. Williamson. 562 U.S. at 336.



                                          -22-
No. 73635-3-1/23



      Williamson is inapposite for several reasons. First, Rollins' reliance on

Williamson is a recasting of her previous argument that because the exemption does

not prohibit ventilation systems Bombardier could nevertheless include a ventilation
system without violating the Coast Guard's regulatory scheme. However, as discussed
above, imposing additional requirements via tort liability defeats the Coast Guard's
statutory authority to grant exemptions and creates an obstacle to federal regulatory
objectives. See Gracia. 112 F.3d at 298 ("If Gracia's common law claim was not
preempted, then manufacturers would be placed in a position where they could be
subject to varying standards from state to state, which could not all be complied with
simultaneously."); see ajso Becker. 88 Wn. App. at 111 ("A tort claim defeats the
purposes of the [FBSA] and is therefore preempted only when the duty asserted
conflicts with the Coast Guard's explicit decision either to adopt a particular standard or

to leave the feature or structure unregulated.").

       Second, the Bombardier's exemption does not provide the same "choice"

available to manufacturers in Williamson. In 1999, the Coast Guard published an

 explanation of the exemption process in the Federal Register. The Coast Guard stated
 that once a boat model is subjectto an exemption, the manufacturer cannot change the
 design of that model without petitioning for an amendment to the exemption:
               If the manufacturer changes the design or construction of a boat
        subject to the provisions of an exemption ... the manufacturer must
        petition the Coast Guard for an amendment to the provisions of the grant
        of exemption.




                                           -23-
No. 73635-3-1/24



CP at 1748 (64 Fed. Reg. 201 (October 19, 1999)). Therefore, once Bombardier

obtained the exemption for its Sea-Doo model, it could not alter the model without

petitioning for an amendment to the exemption.

      Further, the Coast Guard's ventilation regulation does grant manufacturers a

choice, but Bombardier's Grant of Exemption exempts it from having to make that

choice. The Coast Guard requires that every boat with a gasoline crank motor achieve

ventilation by either (1) exposing the engine compartment to the open air or (2)

equipping the model with an exhaust blower system. Manufacturers have the choice of

which ventilation method to use. Bombardier's Grant of Exemption, however, allows it

to avoid making this choice in the first place. Rollins' theory under Williamson would

potentially allow a tort suit against a manufacturer who, for instance, chose to use an

"open air" model rather than an exhaust blower model. It does not allow Rollins to sue a

manufacturer who is exempt from the regulation altogether.

                                      CONCLUSION8

       Because Rollins' product liability claim directly conflicts with explicit, uniform

safety standards promulgated by the Coast Guard acting within the scope of its

congressionally delegated authority, it is preempted.




       8Given the trial court's findings, we are troubled by the alternative claims of
impropriety alleged by Bombardier premised on State Farm's settlement conduct. But
we decline to address those assertions here based on an incomplete record.
                                           -24-
No. 73635-3-1/25



      We affirm the order dismissing Rollins' product liability claim on summary

judgment.9




WE CONCUR:




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      9 Because we conclude that Rollins' claim is barred by conflict preemption, we
need not address the alternative theories of express preemption or field preemption.
                                        -25-
