58
Opinion of the Court
the Coast Guard must consider certain factors, such as the extent to which the proposed regulation will contribute to boating safety, and must consult with a special National Boating Safety Advisory Council appointed pursuant to § 33 of the Act, 46 U. S. C. § 13110.7 The Advisory Council consists of 21 members, 7 representatives from each of three different groups: (1) "State officials responsible for State boating safety programs," (2) boat and equipment manufacturers, and (3) "national recreational boating organizations and . . . the general public." § 13110(b). The Coast Guard may also issue exemptions from its regulations if it determines that boating safety "will not be adversely affected." § 4305.
Section 10 of the Act, as codified in 46 U. S. C. § 4306, sets forth the Act's pre-emption clause and thus provides the basis for respondent's express pre-emption argument. It states in full:
"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
7 "In prescribing regulations under this section, the Secretary shall, among other things—
"(1) consider the need for and the extent to which the regulations will contribute to recreational vessel safety;
"(2) consider relevant available recreational vessel safety standards, statistics, and data, including public and private research, development, testing, and evaluation;
"(3) not compel substantial alteration of a recreational vessel or item of associated equipment that is in existence, or the construction or manufacture of which is begun before the effective date of the regulation, but subject to that limitation may require compliance or performance, to avoid a substantial risk of personal injury to the public, that the Secretary considers appropriate in relation to the degree of hazard that the compliance will correct; and
"(4) consult with the National Boating Safety Advisory Council established under section 13110 of this title about the considerations referred to in clauses (1)-(3) of this subsection."
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