United States Court of Appeals,

Eleventh Circuit.

No. 96-8130.

Vicky LEWIS, individually as parent, as next friend and as

administrator of the estate of Kathryn C. Lewis, Gary Lewis,

individually as parent, as next friend and as administrator of the

estate of Kathryn C. Lewis, Plaintiffs-Appellants,

v.

BRUNSWICK CORPORATION, Defendant-Appellee.

March 21, 1997.

Appeal from the United States District Court for the Southern

District of Georgia. (No. CV 195-096), Dudley H. Bowen, Jr.,

District Judge.

Before BIRCH, BLACK and CARNES, Circuit Judges.

CARNES, Circuit Judge:

Gary and Vicky Lewis appeal the district court's grant of

summary judgment in favor of Brunswick Corporation ("Brunswick") on

the Lewises' state common law negligence, product liability, and

fraudulent misrepresentation claims. The Lewises sued Brunswick to

recover damages for the death of their daughter, who died after she

fell or was thrown from a boat and then struck by a Brunswick

engine propeller. According to the Lewises, the Brunswick engine

involved in their daughter's death was defective because it lacked

a propeller guard. Upon Brunswick's motion for summary judgment,

the district court held that the Lewises' claims were preempted by

the Federal Boat Safety Act, 46 U.S.C. §§ 4301-4311 ("the FBSA" or

"the Act"). We affirm.

In Part I of this opinion, we describe the facts and the

procedural history of this case. We describe the standard of

review in Part II, and we outline the Act and its regulatory scheme
in Part III. In Part IV, we recount the actions taken by the Coast

Guard regarding propeller guards. We then summarize the positions

of the parties in Part V of the opinion. In Part VI, we describe

in general terms how state law may be preempted. We then proceed

to consider, in Parts VII and VIII of the opinion, whether the

Lewises' claims are preempted by the Act.

As we will explain in Part VII, the preemption clause and the

savings clause in the Act provide contradictory indications of

congressional intent relating to whether the Lewises' claims are

expressly preempted. Because the text of the FBSA does not provide

a clear manifestation of intent to preempt the claims, we cannot

hold that they are expressly preempted. On the other hand, due to

the conflict between the preemption clause and the savings clause,

we cannot hold that those claims are expressly saved from

preemption either. Consequently, our resolution of the question of

preemption in this case turns on whether the Lewises' claims are

impliedly preempted by the Act. We hold that they are, because

those claims conflict with the Coast Guard's position that

propeller guards should not be required.

I. FACTS AND PROCEDURAL HISTORY

On June 6, 1993, Kathryn Lewis was spending the day with her

boyfriend's family in a boat on Strom Thurmond Lake in Georgia.

While the boat was pulling Kathryn's boyfriend on an inner tube,

the driver made a right-hand turn. Kathryn fell or was thrown from

the left side of the boat. Once in the water, Kathryn was struck

repeatedly in the head and body by the propeller of an engine

designed and manufactured by Brunswick. The engine did not have a
propeller guard. Kathryn died instantly.

The Lewises filed suit against Brunswick in Georgia state

court, alleging that the lack of a propeller guard made the

Brunswick engine a defective product. They also claim that

Brunswick committed negligence by failing to install a propeller

guard on the engine. The Lewises' third claim avers that Brunswick

attempted to suppress the production of propeller guards by third

persons and exaggerated the performance differences between guarded

engines and unguarded engines to discourage government agencies

from adopting a safety standard requiring propeller guards.

Brunswick removed this case to federal district court on

diversity grounds and moved for summary judgment. In its summary

judgment motion, Brunswick contended that all of the Lewises'

claims were preempted by the FBSA. The district court agreed and

granted summary judgment in favor of Brunswick. The Lewises

appeal.

II. STANDARD OF REVIEW

 We apply the same legal standards in our preemption analysis

that the district court was required to apply in its order granting

summary judgment; therefore, we review the district court's

decision de novo. E.g., Southern Solvents, Inc. v. New Hampshire

Ins. Co., 91 F.3d 102, 104 (11th Cir.1996).

III. THE FEDERAL BOAT SAFETY ACT

The FBSA was enacted in 1971 in part "to improve boating

safety by requiring manufacturers to provide safer boats and

boating equipment to the public through compliance with safety

standards to be promulgated by the Secretary of the Department in
which the Coast Guard is operating—presently the Secretary of

Transportation." P.L. 92-75, Federal Boat Safety Act of 1971,

S.Rep. No. 92-248, reprinted in 1971 U.S.C.C.A.N. 1333. To

implement that goal, the Act grants authority to the Secretary of

Transportation to prescribe regulations establishing minimum safety

standards for recreational boats. See 46 U.S.C. § 4302 (West

Supp.1995). The Secretary of Transportation has delegated

rulemaking authority under the FBSA to the United States Coast

Guard. See 49 C.F.R. § 1.46(n)(1) (1996).

The FBSA requires the Coast Guard to follow certain guidelines

and procedures when promulgating a regulation under 46 U.S.C. §

4302. For instance, the Coast Guard must consider certain

available data and "the extent to which the regulations will

contribute to recreational vessel safety." 46 U.S.C.A. §

4302(c)(1)-(2) (West Supp.1995). The Coast Guard may not establish

regulations compelling substantial alterations of existing boats

and associated equipment unless compliance would "avoid a

substantial risk of personal injury to the public." 46 U.S.C.A. §

4302(c)(3) (West Supp.1995). Before promulgating a regulation, the

Coast Guard is required to consult with the National Boating Safety

Advisory Council ("the Advisory Council") on the need for

regulation. 46 U.S.C. § 4302(c)(4).

IV. COAST GUARD CONSIDERATION OF A PROPELLER GUARD REGULATION

In 1988, the Coast Guard directed the Advisory Council to

examine the feasibility and potential safety advantages and safety

disadvantages of propeller guards. In response, the Advisory

Council appointed a Propeller Guard Subcommittee "to consider,
review and assess available data concerning the nature and

incidence of recreational boating accidents in which persons in the

water are struck by propellers." National Boating Safety Advisory

Council, Report of the Propeller Guard Subcommittee 1 (1989)

("Report"). The Advisory Council also asked the Subcommittee to

consider whether "the Coast Guard [should] move towards a federal

requirement for some form of propeller guard." Id. at Appendix A.

The Advisory Council Subcommittee held hearings on three

occasions and received information from a variety of individuals

and groups interested in the topic of propeller guards. See id. at

2-4. One of the matters on which the Subcommittee received

information was propeller guard litigation, and the Subcommittee

devoted a section of its report to the topic. Id. at 4. That

section states that, at the time of the hearings, propeller guard

advocates were petitioning federal and state legislators to mandate

propeller guards. According to the Subcommittee Report, a

legislative or administrative mandate "would necessarily be

predicated on the feasibility of guards and establish prima facie

manufacturer liability in having failed to provide them";

therefore, feasibility was an important question before the

Subcommittee. Id. at 5. The report also discusses the theories of

liability that were being asserted by propeller guard victims and

the defenses used by manufacturers. Id. at 4-5. Immediately

following that discussion, the report notes that "[m]anufacturers

are opposed to mandatory propeller guards." Id. at 5.

The Subcommittee also considered the technical issues posed by

propeller guards. After reviewing the available scientific data
and testimony, the Subcommittee found that propeller guards affect

boat operation adversely at speeds greater than 10 miles per hour.

Id. at 21. Further, the Subcommittee found that propeller guards

would not increase overall safety, because they increase the

chances of contact between a blunt object and a person in the

water. Id. at 20-21. The Subcommittee Report states:

Injuries/fatalities caused by underwater impacts result from

a person coming into contact with the propeller or any part of

the propulsion unit (i.e., lower unit, skeg, torpedo,

anti-ventilation plate, etc.) and even the boat itself.

Currently reported accidents make it obvious that all such

components are involved in the total picture, and that the

propeller itself is the sole factor in only a minority of

impacts. The development and use of devices such as

"propeller guards' can, therefore, be counter-productive and

can create new hazards of equal or greater consequence....

Although the controversy which currently surrounds the issue

of propeller guarding is, by its very nature, highly emotional

and has attracted a great deal of publicity, there are no

indications that there is a generic or universal solution

currently available or foreseeable in the future. The boating

public must not be misled into thinking there is a "safe"

device which would eliminate or significantly reduce such

injuries or fatalities.

Id. at 23-24. The report also states that:

boats and motors should be designed to incorporate

technologically feasible safety features to avoid or minimize

the consequences of inexperienced or negligent operation,

without at the same time (a) creating some other hazard, (b)

materially interfering with normal operations, or (c) being at

economic costs disproportionate to the particular risk.

Proponents assert that propeller guard technology and/or

availability meets the foregoing criteria and that guards

should not be mandated. The Subcommittee does not agree....

Id. at 20. In its conclusion, the Advisory Council Subcommittee

Report recommends that "[t]he U.S. Coast Guard should take no

regulatory action to require propeller guards." Id. at 24.

The Subcommittee presented its report to the entire Advisory

Council, which accepted the report and adopted the recommendations
of the Subcommittee. Minutes of the 44th Meeting of the National

Boating Safety Advisory Council 19 (Nov. 6-7, 1989). The Advisory

Council then forwarded the report and recommendations to the Coast

Guard. The Coast Guard adopted each of the Advisory Council's

recommendations, giving explanations of the Coast Guard's position

on each matter. See Letter from Robert T. Nelson, Rear Admiral,

U.S. Coast Guard, Chief, Office of Navigation, Safety and Waterway

Services to A. Newell Garden, Chairman, National Boating Safety

Advisory Council (Feb. 1, 1990). The Coast Guard's position on

propeller guards, which is set out in that letter, is as follows:

The regulatory process is very structured and stringent

regarding justification. Available propeller guard accident

data do not support imposition of a regulation requiring

propeller guards on motorboats. Regulatory action is also

limited by the many questions about whether a universally

acceptable propeller guard is available or technically

feasible in all modes of boat operation. Additionally, the

question of retrofitting millions of boats would certainly be

a major economic consideration.

The Coast Guard will continue to collect and analyze data for

changes and trends; and will promote increased/improved

accident reporting as addressed in recommendation 2. The

Coast Guard will also review and retain any information made

available regarding development and testing of new propeller

guard devices or other information on the state of the art.

Id. at 1.

V. POSITIONS OF THE PARTIES

The Lewises contend that the FBSA does not expressly or

impliedly preempt state law tort claims based on the absence of a

propeller guard on a boat engine. According to the Lewises, common

law claims are expressly saved from preemption by the Act's savings

clause. Furthermore, the Lewises argue, the Act does not preempt

any state law, regulation, or claims until the Coast Guard issues

a formal regulation on the matter. There being no regulation on
propeller guards, the Lewises assert they may proceed with their

case.

In response, Brunswick argues that the FBSA expressly preempts

any state regulation, including regulation through common law

claims, that conflicts with a Coast Guard regulation or regulatory

position. Brunswick contends that the Coast Guard has made a

regulatory decision that propeller guards cannot be required. For

that reason, Brunswick says, the Lewises' claims are expressly

preempted by the Act. Furthermore, even if the Lewises' claims are

not expressly preempted, Brunswick argues that the claims conflict

with the Coast Guard's position that propeller guards should not be

required. For that reason, Brunswick contends, the claims are

preempted by implication.

VI. AN OVERVIEW OF PREEMPTION DOCTRINE

 Any state law that conflicts with federal law is preempted by

the federal law and is without effect under the Supremacy Clause of

the Constitution. Cipollone v. Liggett Group, Inc., 505 U.S. 504,

516, 112 S.Ct. 2608, 2617, 120 L.Ed.2d 407 (1992). State

regulation established under the historic police powers of the

states is not superseded by federal law unless preemption is the

clear and manifest purpose of Congress. Id. Accordingly, the

intent of Congress is the touchstone of preemption analysis. See

id.

 Congressional intent to preempt state law may be revealed in

several ways: (1) "express preemption," in which Congress defines

explicitly the extent to which its enactments preempt state law;

(2) "field preemption," in which state law is preempted because
Congress has regulated a field so pervasively, or federal law

touches on a field implicating such a dominant federal interest,

that an intent for federal law to occupy the field exclusively may

be inferred; and (3) "conflict preemption," in which state law is

preempted by implication because state and federal law actually

conflict, so that it is impossible to comply with both, or state

law "stands as an obstacle to the accomplishment and execution of

the full purposes and objectives of Congress." Teper v. Miller, 82

F.3d 989, 993 (11th Cir.1996) (citations omitted).

 By including an express preemption clause in the FBSA,

Congress has demonstrated its intent that the Act preempt at least

some state law. See 46 U.S.C. § 4306. Therefore, the issue in

this case is not whether Congress intended for the FBSA to have any

preemptive effect, but the intended scope of preemption—the extent

to which the FBSA preempts state law. See Medtronic, Inc. v. Lohr,

--- U.S. ----, ----, 116 S.Ct. 2240, 2250, 135 L.Ed.2d 700 (1996).

In areas traditionally regulated by the states through their police

powers, we apply a presumption in favor of a narrow interpretation

of an express preemption clause. Id. at ----, 116 S.Ct. at 2250.

VII. EXPRESS PREEMPTION

Brunswick contends that the Lewises' claims fall within the

scope of the FBSA's express preemption clause, which provides:

Unless permitted by the Secretary under section 4305 of this

title, a State or a 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 requirement

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.A. § 4306 (West Supp.1995). According to Brunswick, the

Lewises' claims, if successful, would result in a regulation

imposing a propeller guard requirement. That regulation would not

be identical to—in fact, it would be in conflict with—the Coast

Guard's position that propeller guards should not be required. In

Brunswick's view, the Coast Guard's position is equivalent to a

"regulation prescribed under section 4302," which preempts state

law. Following this reasoning, Brunswick argues that the Lewises'

claims are preempted by the express terms of the FBSA preemption

clause.

In response, the Lewises contend that the phrase "law or

regulation" does not reach common law claims, because Congress did

not mention "common law" specifically in the preemption clause.

According to the Lewises, Congress' decision not to specify "common

law" in the preemption clause demonstrates congressional intent to

save common law claims. As Brunswick points out, however, the

omission of the phrase "common law" in the preemption clause is not

determinative, because "law" and "regulation" may be read to

include state tort actions. See Cipollone, 505 U.S. at 520-30, 112

S.Ct. at 2619-25 (1992) (plurality opinion) (holding that the

phrase "State law" in the Federal Cigarette Labeling and

Advertising Act was intended to include common law claims); CSX

Transp., Inc. v. Easterwood, 507 U.S. 658, 664, 113 S.Ct. 1732,

1737, 123 L.Ed.2d 387 (1993) (common law claims fall within the

scope of the phrases "law, rule, regulation, order, or standard").

In fact, the overwhelming majority of courts have held that common
law claims fall within the scope of "law[s]" and "regulation[s]"

expressly preempted by the FBSA. See Moss v. Outboard Marine

Corp., 915 F.Supp. 183, 186 (E.D.Cal.1996); Davis v. Brunswick

Corp., 854 F.Supp. 1574, 1580 (N.D.Ga.1993); Shield v. Bayliner

Marine Corp., 822 F.Supp. 81, 84 (D.Conn.1993); Shields v.

Outboard Marine Corp., 776 F.Supp. 1579, 1581 (M.D.Ga.1991);

Mowery v. Mercury Marine, 773 F.Supp. 1012, 1017 (N.D.Ohio 1991);

Farner v. Brunswick Corp., 239 Ill.App.3d 885, 180 Ill.Dec. 493,

497-98, 607 N.E.2d 562, 566-67 (1992); Ryan v. Brunswick Corp.,

454 Mich. 20, 557 N.W.2d 541, 548-49 (1997). Contra Moore v.

Brunswick Bowling & Billiards Corp., 889 S.W.2d 246, 250 (Tex.),

cert. denied, --- U.S. ----, 115 S.Ct. 664, 130 L.Ed.2d 599 (1994).

We agree that the terms "law" and "regulation" evidence an

intent to include common law claims. However, we stop short of

concluding that common law claims are expressly preempted by the

FBSA, because another provision in the Act pulls us away from that

conclusion. As the Lewises point out, Congress included a savings

clause in the Act, which seems to save common law claims from

preemption. That clause, which is found within the section of the

Act entitled "Penalties and Injunctions," provides:

Compliance 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.A. § 4311(g) (West Supp.1995).

 Because the FBSA preempts an area (safety) that historically

has been regulated by the states through their police powers, we

must construe the Act's preemption clause narrowly. See Medtronic,

--- U.S. at ----, 116 S.Ct. at 2250. The preemption clause easily
could be read to cover common law claims, but because the savings

clause indicates that at least some common law claims survive

express preemption, we cannot give the preemption clause that broad

reading. Instead, we must resolve doubts in favor of the narrower

interpretation of the preemption clause and conclude that the

express preemption clause does not cover common law claims. We

hold that those claims are not expressly preempted.

The Lewises urge us to go further and hold that the savings

clause demonstrates clear congressional intent to save common law

claims from preemption. We find congressional intent to be less

than clear, given the conflicting language in the preemption and

savings clauses. Just as the conflict between those provisions

prevents us from concluding that the Lewises' claims are expressly

preempted, so also does that conflict prevent us from concluding

that those claims are expressly saved. See Taylor v. General

Motors Corp., 875 F.2d 816, 825 (11th Cir.1989) (interpreting the

National Traffic and Motor Vehicle Safety Act). The express terms

of the FBSA simply fail to answer the question of whether Congress

intended to preempt common law claims. As a result, our decision

about preemption depends on whether the Lewises' claims are

impliedly preempted by federal law. See id. at 827-28.

VIII. IMPLIED CONFLICT PREEMPTION

 The Lewises' claims are preempted impliedly by the FBSA to

the extent that those claims conflict with the "accomplishment and

execution of the full purposes and objectives of Congress." See

Freightliner Corp. v. Myrick, 514 U.S. 280, ----, 115 S.Ct. 1483,

1487, 131 L.Ed.2d 385 (1995). In other words, the Lewises' claims
are preempted if they prevent or hinder the FBSA from operating the

way Congress intended it to operate. In deciding whether the

Lewises' claims conflict with the purposes of the FBSA, we do not

apply a presumption against preemption, even though common law tort

claims are a mechanism of the police powers of the state. Taylor,

875 F.2d at 826. "Under the Supremacy Clause of the Federal

Constitution, "[t]he relative importance to the State of its own

law is not material when there is a conflict with a valid federal

law,' for "any state law, however clearly within a State's

acknowledged power, which interferes with or is contrary to federal

law, must yield.' " Felder v. Casey, 487 U.S. 131, 138, 108 S.Ct.

2302, 2307, 101 L.Ed.2d 123 (1988) (citations omitted).

According to Brunswick, the Lewises' claims are preempted by

implication because those claims would interfere with the

regulatory scheme enacted by Congress in the FBSA. Brunswick

argues that the Coast Guard has the last say on whether a safety

feature on boats or associated equipment should be required. Where

the Coast Guard believes that a safety feature should not be

required, Brunswick argues that states may not require the feature,

even through common law claims.

 "[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 preemptive

force as a decision to regulate." Arkansas Elec. Cooperative Corp.

v. Arkansas Pub. Serv. Comm'n, 461 U.S. 375, 384, 103 S.Ct. 1905,

1912, 76 L.Ed.2d 1 (1983) (emphasis in original). Though a

decision not to regulate does not always have preemptive effect,
see Puerto Rico Dept. of Consumer Affairs v. Isla Petroleum Corp.,

485 U.S. 495, 503, 108 S.Ct. 1350, 1355, 99 L.Ed.2d 582 (1988), it

does "where [the] failure of ... federal officials affirmatively to

exercise their full authority takes on the character of a ruling

that no such regulation is appropriate or approved pursuant to the

policy of the statute." Ray v. Atlantic Richfield Co., 435 U.S.

151, 178, 98 S.Ct. 988, 1004, 55 L.Ed.2d 179 (1978) (citations

omitted).

 The Lewises argue that the rule of Atlantic Richfield does

not apply here, because Congress did not intend for a mere decision

not to regulate to have preemptive effect under the FBSA. In the

Lewises' view, any state regulation on boat and equipment safety

standards is permissible, unless the Coast Guard promulgates a

regulation that conflicts with the state regulation. As the

Lewises understand the FBSA regulatory scheme, a Coast Guard

position not to impose a safety standard on a matter leaves room

for states to impose safety standards on that matter. There being

no regulation on propeller guards, the Lewises argue that their

claims are not affected by the Coast Guard's position. For

support, they point to Freightliner Corp. v. Myrick, 514 U.S. 280,

115 S.Ct. 1483, 131 L.Ed.2d 385 (1995), a case in which the Supreme

Court concluded that an absence of regulation on a safety matter

did not preempt state common law claims imposing such standards.

In Freightliner, the Supreme Court considered whether common

law claims based on the failure to install antilock brakes were

expressly or impliedly preempted by the Vehicle Safety Act. See

id. at ----, 115 S.Ct. at 1485. The preemption clause in the
Vehicle Safety Act provided:

Whenever a Federal motor vehicle safety standard established

under this subchapter is in effect, no State or political

subdivision of a State shall have any authority either to

establish, or to continue in effect, with respect to any motor

vehicle or item of motor vehicle equipment any safety standard

applicable to the same aspect of performance of such vehicle

or item of equipment which is not identical to the Federal

standard.

15 U.S.C.A. § 1392(d) (West 1982) (repealed 1994). The defendants

in Freightliner argued that the failure-to-install claims were

preempted, because the relevant agency had indicated its intent to

regulate braking systems by promulgating a regulation on that

matter. That regulation was struck down by an appellate court, but

the defendants in Freightliner believed it still had preemptive

effect, because it demonstrated the agency's intent to forbid state

regulation on braking systems. Id. at ----, 115 S.Ct. at 1487.

The Supreme Court rejected that argument. First, the Court

explained, there was no evidence that the Vehicle Safety Act gave

the relevant federal agency exclusive authority to issue safety

standards. Id. In fact, the preemption clause in that act clearly

implied that states could impose safety standards on auto

manufacturers, until the federal government came forward with a

different standard. Therefore, under the Vehicle Safety Act

regulatory scheme, the absence of regulation failed to have

preemptive effect under the Atlantic Richfield doctrine; instead,

the agency's failure to put into effect a valid regulation left the

state common law intact. Id. Furthermore, the Court reasoned,

Atlantic Richfield was inapposite because:

the lack of federal regulation [on antilock brakes] did not

result from an affirmative decision of agency officials to

refrain from regulating air brakes. [The agency] did not
decide that the minimum, objective safety standard required by

15 U.S.C. § 1392(a) should be the absence of all standards,

both federal and state.

Id. (footnote omitted).

In contrast to the Vehicle Safety Act, the FBSA was intended

to give its regulatory agency—the Coast Guard—exclusive authority

to issue safety standards:

This section [containing the preemption clause] provides

for federal preemption in the issuance of boat and equipment

safety standards. This conforms to the long history of

preemption in maritime safety matters and is founded on the

need for uniformity applicable to vessels moving in interstate

commerce. In this case it also assures that manufacture for

the domestic trade will not involve compliance with widely

varying local requirements. At the same time, it was

recognized that there may be serious hazards which are unique

to a particular locale and which would justify variances at

least with regard to the carriage or use of marine safety

articles on boats. Therefore, the section does permit

individual States to impose requirements with respect to

carrying or using marine safety articles which go beyond the

federal requirements when necessary to meet uniquely hazardous

local conditions or circumstances. A right of disapproval,

however, is reserved to the Secretary to insure that

indiscriminate use of state authority does not seriously

impinge on the basic need for uniformity.

The section does not preempt state law or regulation

directed at safe boat operation and use, which was felt to be

appropriately within the purview of state or local concern.

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

Elliott v. Brunswick Corp., 903 F.2d 1505, 1508 (11th Cir.1990)

("[T]he [FBSA] gives the Coast Guard the exclusive responsibility

for establishing safety regulations.") (dicta); Williams v. U.S.

Dept. of Transportation, 781 F.2d 1573, 1577 & n. 4 (11th Cir.1986)

(with the FBSA Congress expressly preempted state regulation

regarding performance and safety standards for boats and associated

equipment) (dicta). While an absence of regulation under the

Vehicle Safety Act does not prevent states from regulating motor
vehicle safety standards, an absence of federal regulation under

the FBSA means that no regulation, state or federal, is

appropriate. Freightliner is distinguishable for that reason.

Also in contrast to Freightliner, the relevant agency here,

the Coast Guard, did make an affirmative decision to refrain from

regulating propeller guards. Unlike the agency in Freightliner,

the Coast Guard did not try to promulgate a regulation, and then

fail, under a statutory scheme that would leave state law intact in

the absence of federal regulatory action. Instead, under a

statutory scheme that forbids any state standard or regulation "not

identical to" a federal regulation, the Coast Guard decided not to

issue a regulation. After consulting with the Advisory Council and

reviewing the available data, the Coast Guard reached a carefully

considered decision that "[a]vailable propeller guard accident data

do not support imposition of a regulation requiring propeller

guards on motorboats."

The Coast Guard did not decide that only a federal regulation

would be inappropriate, but that the scientific data counseled

against any regulation requiring propeller guards. Given that

Congress intended for the FBSA to create a uniform system of

regulation, and that the Coast Guard has determined that propeller

guards should not be required, the Coast Guard's position mandates

an absence of both federal and state propeller guard requirements.

See Ryan v. Brunswick Corp., 454 Mich. 20, 557 N.W.2d 541, 549-50

(1997). See also Puerto Rico, 485 U.S. at 503, 108 S.Ct. at 1355

("Where a comprehensive federal scheme intentionally leaves a

portion of the regulated field without controls, then the
preemptive inference can be drawn—not from federal inaction alone,

but from inaction joined with action.") (emphasis in original).

Freightliner does not require that we hold otherwise.

But the Lewises contend that even if Freightliner is not

controlling here, we cannot find an implied conflict between their

claims and the Act, because we know from the savings clause that

Congress expected some common law claims to be brought in this

area. About the savings clause, the Senate report says:

This section is a Committee amendment and is intended to

clarify that compliance with the Act or standards,

regulations, or orders promulgated thereunder, does not

relieve any person from liability at common law or under State

law. The purpose of the section 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. Of course, depending on the

rules of evidence of the particular judicial forum, such

compliance may or may not be admissible for its evidentiary

value.

S.Rep. No. 92-248, reprinted in 1971 U.S.C.C.A.N. at 1352.

 From the savings clause, we know that Congress understood at

least some product liability claims to be consistent with the FBSA

regulatory scheme. In order to decide which claims, we must

determine when product liability claims can be brought without

upsetting the overall scheme Congress intended. Addressing that

question, several courts have held that the only claims which do

not present a conflict with the FBSA regulatory scheme are product

liability claims based on the defective design or installation of

products that are already installed, as opposed to claims based on

the failure to install a certain safety device. See Carstensen v.

Brunswick Corp., 49 F.3d 430, 432 (8th Cir.), cert. denied, ---

U.S. ----, 116 S.Ct. 182, 133 L.Ed.2d 120 (1995); Moss v. Outboard
Marine Corp., 915 F.Supp. 183, 187 (E.D.Cal.1996); Mowery v.

Mercury Marine, 773 F.Supp. 1012, 1017 (N.D.Ohio 1991); Rubin v.

Brutus Corp., 487 So.2d 360, 363 (Fla.Dist.Ct.App.1986); Farner v.

Brunswick Corp., 239 Ill.App.3d 885, 180 Ill.Dec. 493, 498, 607

N.E.2d 562, 567 (1992); Ryan v. Brunswick Corp., 209 Mich.App.

519, 531 N.W.2d 793, 796 n. 1 (1995), aff'd, 454 Mich. 20, 557

N.W.2d 541 (1997); Mulhern v. Outboard Marine Corp., 146 Wis.2d

604, 432 N.W.2d 130, 134-35 (1988). Permitting product liability

claims against manufacturers for negligent or defective design of

products required by the Coast Guard, or for products provided

voluntarily by manufacturers, simply requires manufacturers to

comply with FBSA regulations, and to do any additional

manufacturing, in a non-negligent and non-defective manner.

Permitting such claims is consistent with the FBSA scheme, which is

designed to ensure that boats and associated equipment are safe.

By contrast, claims based on the failure to install a product

that the Coast Guard has decided should not be required would

conflict with the regulatory uniformity purpose of the FBSA.

Without doubt, the Lewises' product liability claims seek to impose

a propeller guard requirement. See Carstensen, 49 F.3d at 432.

That requirement conflicts with the FBSA's grant of exclusive

regulatory authority to the Coast Guard, and for that reason those

claims are in conflict with and therefore preempted by the Act.

 The Lewises argue that their fraud claim should be treated

differently from their other claims, because it would not create a

propeller guard requirement beyond FBSA requirements. We disagree.

If the Lewises succeeded with their fraud claim, a jury could
impose liability upon Brunswick for attempting to persuade the

Coast Guard and others that propeller guards are unsafe. The

necessary element of causation in any such claim would be that but

for the wrongful conduct of Brunswick, propeller guards would have

been required by the Coast Guard. Such a judgment would conflict

with the Coast Guard's position that propeller guards should not be

required. Thus, the fraud claim is impliedly preempted by the

Coast Guard's position and the preemptive effect given that

position by the FBSA.

Regulatory fraud claims of this nature are impliedly preempted

for fundamental, systemic reasons. Permitting such claims would

allow juries to second-guess federal agency regulators through the

guise of punishing those whose actions are deemed to have

interfered with the proper functioning of the regulatory process.

If that were permitted, federal regulatory decisions that Congress

intended to be dispositive would merely be the first round of

decision making, with later more important rounds to be played out

in the various state courts. Virtually any federal agency decision

that stood in the way of a lawsuit could be challenged indirectly

by a claim that the industry involved had misrepresented the

relevant data or had otherwise managed to skew the regulatory

result. Ironically, such circumvention of the regulatory scheme

likely would be more pronounced where, as here, Congress mandated

more extensive industry input into the regulatory process. See 46

U.S.C. § 4302(c). Congress could not have intended for the process

it so carefully put in place to be so easily and thoroughly
 1

The Lewises' claim may be read to address alleged

fraudulent misrepresentations by Brunswick to individuals and

groups outside the federal government. To the extent that the

Lewises intended to hold Brunswick liable for allegedly

dissuading other manufacturers from installing propeller guards,

their claim fails on causation grounds, because their daughter

was struck by a propeller on a Brunswick motor. To the extent

that the Lewises seek to hold Brunswick liable for alleged fraud

upon state regulators, their fraud claim is preempted because

state regulatory decisions of the propeller guard issue are

themselves preempted. 

undermined.1

In sum, we conclude that because Congress has made the Coast

Guard the exclusive authority in the area of boat and equipment

safety standards, its position rejecting a propeller guard

requirement takes on the character of a ruling that no such

requirement may be imposed. That position impliedly preempts state

law requirements of propeller guards, even in the form of common

law claims. It also prevents plaintiffs from bringing fraud claims

intended to demonstrate that the Coast Guard would have reached a

different conclusion on the matter of propeller guards but for

alleged industry manipulation or subversion of the federal

regulatory process. We hold that each of the Lewises' claims is

preempted by implication because it conflicts with the Coast

Guard's position on propeller guards and would interfere with the

FBSA regulatory process designed by Congress.

IX. CONCLUSION

The district court's grant of summary judgment to Brunswick is

AFFIRMED.