author: Justice O’Connor Justice Stevens,

text:
    YELLOW TRANSPORTATION, INC. v. MICHIGAN et al.
    No. 01-270.
    Argued October 7, 2002
    Decided November 5, 2002

      O’Connor, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Scaua, Kennedy, Souter, Thomas, Ginsburg, and Breyer, JJ., joined. Stevens, J., filed an opinion concurring in the judgment, post, p. 48.

      Charles A. Rothfeld argued the cause for petitioner. With him on the briefs were Evan M. Tager, Robert L. Bron-ston, John W. Bryant, and R. Ian Hunter.

      Austin C. Schlick argued the cause for the United States as amicus curiae in support of petitioner. With him on the brief were Solicitor General Olson, Assistant Attorney General McCollum, Deputy Solicitor General Wallace, Michael Jay Singer, Bruce G. Forrest, Kirk K. Van Tine, Paul M. Geier, Dale C. Andrews, and Laura C. Fentonmiller.

      Thomas L. Casey, Solicitor General of Michigan, argued the cause for respondents. With him on the briefs were Jennifer M. Granholm, Attorney General, Susan I. Leffler, Assistant Solicitor General, and David A. Voges and Henry J. Boynton, Assistant Attorneys General.

        Roy T. Englert, Jr., Sherri Lynn Wolson, Beth L. Law, and Robert Digges, Jr., filed a brief for the American Trucking Associations, Inc., et al. as amici curiae urging reversal.

   Justice O’Connor

delivered the opinion of the Court.

We granted certiorari in this case, 534 U. S. 1112 (2002), to determine whether the Michigan Supreme Court erred in holding that, under 49 U. S. C. § 14504(e)(2)(B)(iv)(III), only a State’s “generic” fee is relevant to determining the fee that was “collected or charged as of November 15, 1991.”

I

A

Beginning in 1965, Congress authorized States to require interstate motor carriers operating within their borders to register with the State proof of their Interstate Commerce Commission (ICC) interstate operating permits. Pub. L. 89-170, 79 Stat. 648, 49 U. S. C. § 302(b)(2) (1970 ed.). Congress provided that state registration requirements would not constitute an undue burden on interstate commerce so long as they were consistent with regulations promulgated by the ICC. Ibid.

Prior to 1994, the ICC allowed States to charge interstate motor carriers annual registration fees of up to $10 per vehicle. See 49 CFR § 1023.33 (1992). As proof of registration, participating States would issue a stamp for each of the carrier’s vehicles. § 1023.32. The stamp was affixed on a “uniform identification cab car[d]” carried in each vehicle, within the square bearing the name of the issuing State. §§ 1023.32(d)-(e). This system came to be known as the “bingo card” system. Single State Insurance Registration, 9 I. C. C. 2d 610 (1993).

The “bingo card” regime proved unsatisfactory to many who felt that the administrative burdens it placed on carriers and participating States outweighed the benefits to those States and to the public. H. R. Rep. No. 102-171, pt. I, p. 49 (1991); H. R. Conf. Rep. No. 102-404, pp. 437-438 (1991). In the Intermodal Surface Transportation Efficiency Act of 1991 (ISTEA), Congress therefore directed the ICC to implement a new system to replace the “bingo card” regime. See Pub. L. 102-240, §4005, 105 Stat. 1914, 49 U. S. C. § 11506(c) (1994 ed.). Under the new system, called the Single State Registration System, “a motor carrier [would be] required to register annually with only one State,” and “such single State registration [would] be deemed to satisfy the registration requirements of all other States.” §§ 11506(c)(1)(A) and (C). Thus, one State would — on behalf of all other participating States — register a carrier’s vehicles, file and maintain paperwork, and collect and distribute registration fees. § 11506(c)(2)(A). Participation in the Single State Registration System was limited to those States that had elected to participate in the “bingo card” system. § 11506(c)(2)(D).

ISTEA also capped the per-vehicle registration fee that participating States could charge interstate motor carriers. Congress directed the ICC to

“establish a fee system . .. that (I) will be based on the number of commercial motor vehicles the carrier operates in a State and on the number of States in which the carrier operates, (II) will minimize the costs of complying with the registration system, and (III) will result in a fee for each participating State that is equal to the fee, not to exceed $10 per vehicle, that such State collected or charged as of November 15, 1991.” § 11506(c)(2)(B)(iv).

Congress provided that the charging or collection of any fee not in accordance with the ICC’s fee system would “be deemed to be a burden on interstate commerce.” § 11506(c)(2)(C).

The ICC issued its final implementing regulations in May 1993 after notice-and-comment proceedings. Single-State Insurance Registration, supra. The rulemaking gave rise to the central question in this case: whether, under the Single State Registration System, States were free to terminate “reciprocity agreements” that were in place under the “bingo card” regime. Id., at 617-619. Under these agreements, in exchange for reciprocal treatment, some States discounted or waived registration fees for carriers from other States. Id., at 617.

In issuing a set of proposed rules and soliciting further comments, the ICC questioned whether it had the power to require States to preserve pre-existing reciprocity agreements. Single State Insurance Registration, No. MC-100 (Sub-No. 6), 1993 WL 17833, *12 (Jan. 22, 1993); see Single State Insurance Registration—1993 Rules, 9 I. C. C. 2d 1, 11 (1992). It noted that these agreements were voluntary and mutually beneficial and commented that “as long as no carrier is charged more than [a State’s] standard November 15, 1991, fee for all carriers (subject to the $10 limit), the requirements of [ISTEA] are satisfied.” 1993 WL 17833, *12.

In its final implementing regulations, however, the ICC concluded, in light of further comments, that its preliminary view on reciprocity agreements was inconsistent with ISTEA’s fee-cap provision and with “the intent of the law that the flow of revenue for the States be maintained while the burden of the registration system for carriers be reduced.” Single State Insurance Registration, 9 I. C. C. 2d, at 618. The agency therefore determined that States participating in the Single State Registration System “must consider fees charged or collected under reciprocity agreements when determining the fees charged or collected as of November 15, 1991, as required by § 11506(c)(2)(B)(iv).” Id., at 618-619; see also American Trucking Associations — Petition for Declaratory Order—Single State Insurance Registration, 9 I. C. C. 2d 1184, 1192, 1194-1195 (1993). The National Association of Regulatory Utility Commissioners (NARUC) and 18 state regulatory commissions sought review of the ICC’s determination and certain provisions of the Single State Registration System regulations. NARUC v. ICC, 41 F. 3d 721 (1994). The United States Court of Appeals for the District of Columbia concluded that the plain language of the statute supported the ICC’s determination that States participating in the new system must consider reciprocity agreements under 49 U. S. C. § 11506(c)(2)(B)(iv). 41 F. 3d, at 729.

B

Prior to the implementation of the Single State Registration System, Michigan had participated in the “bingo card” regime. See App. 5 (Affidavit of Thomas R. Lonergan, Director, Motor Carrier Regulation Division of the Michigan Public Service Commission ¶ 3e) (hereinafter Lonergan Affidavit). The Michigan Legislature had directed the Michigan Public Service Commission to levy an annual registration fee of $10 per vehicle on interstate motor carrier vehicles and simultaneously endowed the commission with authority to “enter into a reciprocal agreement with a state.” Mich. Comp. Laws Ann. § 478.7(4) (West 1988). Pursuant to such reciprocal agreements, the commission was empowered to “waive the fee [otherwise] required.” Ibid.

Petitioner in this case is an interstate trucking company headquartered in Kansas. For calendar years 1990 and 1991, the Michigan Public Service Commission did not levy a fee for petitioner’s trucks that were licensed in Illinois pursuant to its policy “not to charge a fee to carriers with vehicles registered in states ... which did not charge Michigan-based carriers a fee.” App. 6 (Lonergan Affidavit ¶ 3i). In 1991, however, the Michigan Public Service Commission announced a change in its reciprocity policy to take effect on February 1, 1992. Under the new policy, the commission granted reciprocity treatment based on the policies of the State in which a carrier maintained its principal place of business rather than the State in which individual vehicles were licensed. Because Michigan had no reciprocal arrangement with Kansas, the Michigan Public Service Commission sent petitioner a bill in September 1991, levying a fee of $10 per vehicle for the 1992 registration year on petitioner’s entire fleet, with payment due on January 1,1992.

Petitioner paid the fees in October 1991 under protest and later brought suit in the Michigan Court of Claims seeking a refund of the fees it paid for its Illinois-licensed vehicles after the Single State Registration System came into effect. See 49 U. S. C. § 11506(c)(3) (1994 ed.) (setting effective date of January 1, 1994). Petitioner alleged that, because Michigan had not “collected or charged” a fee for the 1991 registration year for trucks licensed in Illinois, ISTEA’s fee-cap provision prohibits Michigan from levying a fee on Illinois-licensed trucks.

On cross motions for summary disposition, the Michigan Court of Claims ruled in favor of petitioner. Yellow Freight System, Inc. v. Michigan, No. 95-15706-CM (Mar. 13, 1996) (Yellow Freight System I). The Court of Claims’ holding relied on an ICC declaratory order in which the agency held that ISTEA’s fee-cap provision caps fees at the level “collected or charged” for registration year 1991, not those fees levied for registration year 1992 in advance of the statutory cutoff date. Id., at 3-4; see American Trucking Associations, supra, at 1192, 1195.

The Michigan Court of Appeals affirmed on similar grounds. Yellow Freight System, Inc. v. Michigan, 231 Mich. App. 194, 585 N. W. 2d 762 (1998) (Yellow Freight System II). The Court of Appeals also rejected Michigan’s argument that States need not consider reciprocity agreements in determining the level of fees “charged or collected as of November 15, 1991,” noting that the ICC had determined reciprocity agreements must be considered, and that the agency’s decision had been upheld in NARUC v. ICC, supra. Yellow Freight System II, supra, at 202-203, 585 N. W. 2d, at 766.

The Michigan Supreme Court reversed. Yellow Freight System, Inc. v. Michigan, 464 Mich. 21, 627 N. W. 2d 236 (2001) (Yellow Freight System III). The court concluded that “reciprocity agreements are not relevant in determining what fee [a State] ‘charged or collected’ as of November 15, 1991.” Id., at 33, 627 N. W. 2d, at 242. The court expressly rejected the District of Columbia Circuit’s contrary conclusion. Id., at 29, 627 N. W. 2d, at 240 (citing NARUC v. ICC, supra). The Court applied Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984), but determined that the statute unambiguously forbids the ICC’s interpretation. Yellow Freight System III, 464 Mich., at 29-31, 627 N. W. 2d, at 240-241. Reasoning that “[t]he new ‘fee system’ is based not on the fees collected from one individual company, but on the fee system that the state had in place on November 15, 1991,” the court concluded that “[w]e must look not at the fees paid by [petitioner] in any given year, but at the generic fee Michigan charged or collected from carriers as of November 15, 1991.” Id., at 31, 627 N. W. 2d, at 241 (emphasis added). Two justices dissented, finding ISTE A’s fee-cap provision ambiguous, the ICC’s construction reasonable, and deference therefore due. Id., at 33-43, 627 N. W. 2d, at 242-247 (opinions of Kelly and Cavanagh, JJ.).

The Michigan Supreme Court did not consider respondents’ argument that the fees petitioner paid Michigan for the 1992 registration year were “collected or charged as of November 15, 1991.” 49 U. S. C. § 14504(c)(2)(B)(iv)(III). Nor did that court reach the question whether Michigan had “canceled its reciprocity agreements with other States in 1989.” Brief for United States as Amicus Curiae 23. The only issue before this Court, therefore, is whether States may charge motor carrier registration fees in excess of those charged or collected under reciprocity agreements as of November 15, 1991.

II

Neither party disputes that Chevron, supra, governs the interpretive task at hand. In ISTEA, Congress made an express delegation of authority to the ICC to promulgate standards for implementing the new Single State Registration System. 49 U. S. C. § 11506(c)(1) (1994 ed.). The ICC did so, interpreting ISTEA’s fee-cap provision subsequent to a notice-and-comment rulemaking. See United States v. Mead Corp., 533 U. S. 218, 229 (2001) (“[A] very good indicator of delegation meriting Chevron treatment [is an] express congressional authorizatio[n] to engage in the process of rule-making or adjudication that produces regulations or rulings for which deference is claimed”). The Federal Highway Administration adopted the ICC’s regulations, see supra, at 39, n., and the Single State Registration System is now administered by the Federal Motor Carrier Safety Administration. 49 U.S. C. §113.

Accordingly, the question before us is whether the text of the statute resolves the issue, or, if not, whether the ICC’s interpretation is permissible in light of the deference to be accorded the agency under the statutory scheme. If the statute speaks clearly “to the precise question at issue,” we “must give effect to the unambiguously expressed intent of Congress.” Chevron, 467 U. S., at 842-843. If the statute is instead “silent or ambiguous with respect to the specific issue,” we must sustain the agency’s interpretation if it is “based on a permissible construction of the statute.” Id., at 843; see Barnhart v. Walton, 535 U. S. 212, 217-218 (2002).

ISTEA’s fee-cap provision does not foreclose the ICC’s determination that fees charged under States’ pre-existing reciprocity agreements were, in effect, frozen by the new Single State Registration System. The provision requires that the new system “result in a fee for each participating State that is equal to the fee, not to exceed $10 per vehicle, that such State collected or charged as of November 15, 1991.” 49 U. S. C. § 14504(c)(2)(B)(iv)(III). The language “collected or charged” can quite naturally be read to mean fees that a State actually collected or charged. The statute thus can easily be read as the ICC chose, making it unlawful “for a State to renounce or modify a reciprocity agreement so as to alter any fee charged or collected as of November 15, 1991, under the predecessor registration system.” American Trucking Associations, 9 I. C. C. 2d, at 1194; see Single State Insurance Registration, 9 I. C. C. 2d, at 618-619.

The Michigan Supreme Court held that the language of ISTEA’s fee-cap provision compels a different result. Although it acknowledged that ISTEA is silent with respect to reciprocity agreements, the court nonetheless concluded that the fee-cap provision mandates that those agreements have no bearing in the determination of what fee a State “collected or charged” as of November 15, 1991. Yellow Freight System III, 464 Mich., at 31, 627 N. W. 2d, at 241. The court reasoned that the Single State Registration System was “based not on the fees collected from one individual company, but on the fee system that the state had in place.” Ibid. (emphasis added). While such a reading might be reasonable, nothing in the statute compels that particular result.

The fee-cap provision refers not to a “fee system,” but to the “fee . . . collected or charged.” 49 U. S. C. § 14504(c)(2)(B)(iv)(III). Under the ICC’s rule, where a State waives its registration fee, its “fee . . . collected or charged” is zero and must remain zero. The ICC’s interpretation is a permissible reading of the language of the statute. And, because there is statutory ambiguity and the agency’s interpretation is reasonable, its interpretation must receive deference. See Chevron, supra, at 843.

As commenters to the ICC during the rulemaking pointed out, to allow States to disavow their reciprocity agreements so as to alter any fee charged or collected as of November 15, 1991, would potentially permit States to increase their revenues substantially under the new system, a result that the ICC quite reasonably believed Congress did not intend. See Single State Insurance Registration, 9 I. C. C. 2d, at 618. The ICC concluded that its rule best served the “intent of the law that the flow of revenue for the States be maintained while the burden of the registration system for carriers be reduced.” Ibid. The agency considered that allowing States to disavow reciprocity agreements and charge a single, uniform fee might reduce administrative burdens, but expressed concern that carriers’ registration costs, and state revenues, would balloon. Ibid, (noting that some carriers’ fees “assertedly could increase as much as 900%,” and that one commenter presented a “worst case scenario” in which “State revenues could increase from $50 million to $200 million”).

Respondents argue that Congress intended for each State to set a single, uniform fee. While such a mandate would, indeed, have simplified the new system, it is not compelled by the language of the statute, which instructs the ICC to implement a system under which States charge a fee, not to exceed $10 per vehicle, that is equal to the fee such States “collected or charged as of November 15, 1991.”

Respondents also contend that, by freezing the fees charged under reciprocity agreements as part of the fee cap, the ICC added a constraint not within the express language of the statute. The Michigan Supreme Court expressed a similar concern, stating that “[i]t is not for the ICC ... to insert words into the statute.” 464 Mich., at 32, 627 N. W. 2d, at 241-242. It was precisely Congress’ command, however, that the ICC promulgate standards to govern the Single State Registration System, 49 U. S. C. § 11506(c) (1994 ed.), and it was thus for that agency to resolve any ambiguities and fill in any holes in the statutory scheme. See Mead Corp., supra, at 229; Chevron, supra, at 843-844. To hold States to the fees they actually collected or charged seems to us a reasonable interpretation of the statute’s command that state fees be “equal to the fee, not to exceed $10 per vehicle, that such State collected or charged as of November 15, 1991.” 49 U. S. C. § 14504(c)(2)(B)(iv)(III).

Respondents argue that the ICC’s rule contravenes ISTEA’s fee-cap provision by limiting what a State can charge based on what was collected from or charged to a particular carrier. Respondents point out that the focus of the provision is on the actions of the State, not the actions of any particular carrier. While we agree that the statute focuses on what States “collected or charged” rather than what particular carriers paid, we do not agree that the ICC’s rule focuses the inquiry on the latter. Under the “bingo card” regime, States entered into reciprocity agreements that waived or reduced fees charged to particular categories of vehicles. The ICC’s rule does not necessarily cap the aggregate fee paid by any particular carrier; rather, it simply requires States to preserve fees at the levels they actually collected or charged pursuant to reciprocity agreements in place as of November 15, 1991.

Because the ICC’s interpretation of ISTEA’s fee-cap provision is consistent with the language of the statute and reasonably resolves any ambiguity therein, see Chevron, 467 U. S., at 843, the Michigan Supreme Court erred in declining to enforce it.

The judgment is therefore reversed, and the case is remanded to the Michigan Supreme Court for further proceedings not inconsistent with this opinion.

It is so ordered.

Justice Stevens,

concurring in the judgment.

In my opinion there is no ambiguity in the relevant provisions of the Intermodal Surface Transportation Efficiency Act of 1991 (ISTEA). In that Act, Congress delegated to the Interstate Commerce Commission (ICC) the power to prescribe “standards” and “amendments to standards” that would create a “Single State Registration System.” 49 U. S. C. § 11506 (1994 ed.). As a part of that delegation, the ISTEA gave the ICC broad authority to establish a “fee system” that would comply with three conditions, the third of which contained two requirements. The fee for each participating State (1) may not exceed $10 per vehicle and (2) must be equal to the fee that the State “collected or charged as of November 15, 1991.” § 11506(c)(2)(B)(iv)(III).

Because Michigan had both collected and charged a $10 fee in 1991 — and continued to do so thereafter — the Michigan Public Service Commission did not violate either of those statutory requirements when it changed its method of determining reciprocity with respect to individual carriers. Indeed, the essential features of Michigan’s fee system for 1992 were the same as they were in 1991: The amount of the fee that the “State collected or charged” was $10 per vehicle both before and after November 15, 1991; that fee was assessed on exactly the sáme kinds of vehicles both before and after that date; the State had reciprocal arrangements, providing for either a discount or a waiver of the fee with the same States in 1992 that it did in 1991.

Michigan did, however, violate an additional requirement imposed by the ICC when the State modified its method of determining the home State of out-of-state vehicles. That agency-imposed requirement effectively precluded a State from making a systemic change that would significantly increase its revenues. I think it clear that the statutory delegation of power to the ICC to “establish a fee system” was broad enough to include the power to impose additional requirements to ensure that a State would not impose a “burden on interstate commerce.” See §§ 11506(c)(2)(B)(iv), (c)(2)(C). The rulemaking proceeding confirmed the ICC’s power to require the States to preserve pre-existing reciprocity agreements to avoid a scenario in which “some States would realize windfalls.” Single State Insurance Registration, 9 I. C. C. 2d 610, 618 (1993) (responding to comment alleging, among other things, that if reciprocity agreements were discontinued, “State revenues could increase from $50 million to $200 million”); see ante, at 41. Although Michigan did not abandon any reciprocity agreement, I think it equally clear that the ICC could prohibit a change in the method of implementing those agreements that would significantly increase a State’s revenues, and therefore threaten to burden commerce.

Thus, I concur in the Court’s judgment because the statute authorized the ICC to decide that the States’ pre-existing reciprocity agreements should, in effect, be “frozen.” I do not, however, believe that the statute mandated that result. Nor do I believe that the additional constraint imposed by the ICC should be upheld as a permissible construction of subsection (c)(2)(B)(iv)(III). Rather, in my opinion, it was a permissible exercise of the broad authority vested in the ICC to “establish a fee system” that would not create “a burden on interstate commerce.” See §§ 11506(c)(2)(B)(iv), (c)(2)(C). It is on this basis that I concur in the judgment of the Court.

      Congress abolished the ICC in 1995 and assigned responsibility for administering the new Single State Registration System to the Secretary of Transportation. See ICC Termination Act of 1995, Pub. L. 104-88, § 101, 109 Stat. 803. The provisions of ISTEA governing the system were amended and recodified. See 49 U. S. C. § 14504(c). The Federal Highway Administration, under the Secretary of Transportation, adopted the ICC regulations that implemented the Single State Registration System, 61 Fed. Reg. 54706, 54707 (1996), and the Federal Motor Carrier Safety Administration now has authority to administer the system, 49 U. S. C. § 113(f)(1).

       “(B) Receipts; Fee System. — Such amended standards—
      “(iv) shall establish a fee system for the filing of proof of insurance as provided under subparagraph (A)(ii) of this paragraph that (I) will be based on the number of commercial motor vehicles the carrier operates in a State and on the number of States in which the carrier operates, (II) will minimize the costs of complying with the registration system, and (III) will result in a fee for each participating State that is equal to the fee, not to exceed $10 per vehicle, that such State collected or charged as of November 15, 1991 . . . .” 49 U.S.C. § 11506(c)(2)(B)(iv) (1994 ed.).

       As explained by the majority, ante, at 42-43, Michigan changed its policy from determining reciprocity with respect to an individual vehicle based on where that vehicle was registered and had obtained a license plate to determining reciprocity based on where the trucking company that owned the individual vehicle maintained its principal place of business.

       Not every change in how reciprocity is determined would lead to an increase in a State’s revenues. Indeed, it may be that a State’s revenues would decrease after making such a change. I am satisfied, however, that the potential for an increase in these circumstances is a sufficient threat to burden commerce within the meaning of the statute.


source: Caselaw Access Project

author: Justice Stevens

license: Public Domain

text:
    SPRIETSMA, administrator of the ESTATE OF SPRIETSMA, DECEASED v. MERCURY MARINE, A DIVISION OF BRUNSWICK CORP.
    No. 01-706.
    Argued October 15, 2002
    Decided December 3, 2002

      Stevens, J., delivered the opinion for a unanimous Court.

      Leslie A. Brueckner argued the cause for petitioner. With her on the briefs were Arthur H. Bryant, Joseph A. Power, Jr., and Todd A. Smith.

      Malcolm L. Stewart argued the cause for the United States as amicus curias urging reversal. With him on the brief were Solicitor General Olson, Acting Assistant Attorney General Katsas, Deputy Solicitor General Kneedler, Douglas N. Letter, Michael E. Robinson, Kirk K. Van Tine, Paul M. Geier, Dale C. Andrews, Peter J. Plocki, Robert F. Duncan, and G. Alex Weller.

      Stephen M. Shapiro argued the cause for respondent. With him on the brief were Steffen N. Johnson, Michael W. McConnell, Kenneth S. Geller, Timothy S. Bishop, and Daniel J. Connolly

      Briefs of amici curiae urging reversal were filed for the State of Missouri et al. by Jeremiah W. (Jay) Nixon, Attorney General of Missouri, James R. Layton, State Solicitor, and Charles W. Hatfield, and by the Attorneys General for their respective States as follows: Mark Pryor of Arkansas, Bill Loekyer of California, Richard Blumenthal of Connecticut, Robert A Butterworth of Florida, Earl I. Anzai of Hawaii, Steve Carter of Indiana, J. Joseph Curran, Jr., of Maryland, Mike McGrath of Montana, Frankie Sue Del Papa of Nevada, Philip T. McLaughlin of New Hampshire, Patricia Madrid of New Mexico, Roy Cooper of North Carolina, Hardy Myers of Oregon, Mark L. Shurtleff of Utah, Christine O. Gregoire of Washington, and Darrell V. McGraw, Jr., of West Virginia; and for the Association of Trial Lawyers of America by Ross Diamond III and Jeffrey Robert White.

      Briefs of amici curiae urging affirmance were filed for the Chamber of Commerce of the United States of America by John G. Roberts, Jr., Catherine E. Stetson, and Robin S. Conrad; for the Maritime Law Association of the United States by Joshua S. Force, Raymond P. Hayden, William R. Dorsey III, and James Patrick Cooney; for the National Association of Manufacturers et al. by Kenneth W. Starr, Robert R. Gasaway, Richard A. Cordray, Ashley C. Parrish, Jan S. Amundson, and Quentin Riegel; and for the Product Liability Advisory Council, Inc., by Alan Untereiner.

   Justice Stevens

delivered the opinion of the Court.

The question presented is whether a state common-law tort action seeking damages from the manufacturer of an outboard motor is pre-empted either by the enactment of the Federal Boat Safety Act of 1971, 46 U. S. C. §§4301-4311 (FBSA, 1971 Act, or Act), or by the decision of the Coast Guard in 1990 not to promulgate a regulation requiring propeller guards on motorboats.

I

On July 10, 1995, petitioner’s wife, Jeanne Sprietsma, died as a result of a boating accident on an inland lake that spans the Kentucky-Tennessee border. She was riding in an 18-foot ski boat equipped with a 115-horsepower outboard motor manufactured by respondent, Mercury Marine, which is a division of the Brunswick Corporation (Brunswick). Apparently when the boat turned, she fell overboard and was struck by the propeller, suffering fatal injuries.

Petitioner filed a nine-count complaint in an Illinois court seeking damages from Brunswick on state-law theories. Each count alleged that Brunswick had manufactured an unreasonably dangerous product because, among other things, the motor was not protected by a propeller guard. The trial court granted respondent’s motion to dismiss, and the intermediate appellate court affirmed on the ground that the action was expressly pre-empted by the FBSA. 312 Ill. App. 3d 1040, 729 N. E. 2d 45 (2000). Relying on our intervening decision in Geier v. American Honda Motor Co., 529 U. S. 861 (2000), the Illinois Supreme Court rejected the appellate court’s express pre-emption rationale, but affirmed on implied pre-emption grounds. 197 Ill. 2d 112, 757 N. E. 2d 75 (2001). The court’s decision added to a split of authority on this precise issue arising from lawsuits against, among a few others, this particular respondent and its corporate subsidiaries.

We granted certiorari, 534 U. S. 1112 (2002), to decide whether the FBSA pre-empts state common-law claims of this character. Because the pre-emption defense raises a threshold issue, we have no occasion to consider the merits of petitioner’s claims, or even whether the claims are viable as a matter of Illinois law. We must, however, evaluate three distinct theories that may support the pre-emption defense: (1) that the 1971 Act expressly pre-empts common-law claims; (2) that the Coast Guard’s decision not to regulate propeller guards pre-empts the claims; and (3) that the potential conflict between diverse state rules and the federal interest in a uniform system of regulation impliedly preempts such claims. Before considering each of these theories, we review the history of federal regulation in this area.

II

The 1971 Act is the most recent and most comprehensive of the several statutes that Congress has enacted to improve the safe operation of recreational boats. A 1910 enactment required three classes of motorboats to carry certain lights, sound signals, life preservers, and fire extinguishers. Act of June 9, 1910, 36 Stat. 462. In 1918, Congress passed a law that required the numbering of motorboats over 16 feet long, Act of June 7, 1918, ch. 93, 40 Stat. 602, and in 1940, it reenacted the above requirements, provided a system of federal inspection, and authorized penalties for the reckless operation of motorboats, Act of Apr. 25, 1940, ch. 155, 54 Stat. 163. In 1958, Congress enacted additional numbering requirements to be administered by the States and directed the States to compile and transmit boating accident statistics to the Secretary of the Treasury. Federal Boating Act of 1958, 72 Stat. 1754. Section 9 of the 1958 Act expressed a policy of encouraging uniformity of boating laws insofar as practicable.

The accident statistics compiled by the States presumably were instrumental in persuading the 1971 Congress that additional federal legislation was necessary. In its statement of purposes, the FBSA recites that it was enacted “to improve boating 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.” Pub. L. 92-75, §2, 85 Stat. 213-214. Three of the provisions implementing these goals are particularly relevant to this case.

Section 5 of the FBSA, as amended and codified in 46 U. S. C. § 4302, authorizes the Secretary of Transportation to issue regulations establishing “minimum safety standards for recreational vessels and associated equipment,” and requiring the installation or use of such equipment. The Secretary has delegated this authority to the Coast Guard. See 49 CFR § 1.46(n)(1) (1997). Before exercising that authority, 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. 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 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 4B02 of this title.”

Section 40, 46 U. S. C. §4311, sets forth the penalties that may be assessed against persons who violate the Act. At the end of that section, Congress included the following saving clause:

“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. ” § 4311(g).

Federal Regulation Under the FBSA

The day after the President signed the FBSA into law, the Secretary of Transportation took action that was based on the assumption that § 10 would pre-empt existing state regulation that “is not identical to a regulation prescribed” under § 5 of the Act, even if no such federal regulation had been promulgated. On August 11, 1971, the Secretary issued a statement exempting all then-existing state laws from preemption under the Act. 36 Fed. Reg. 15764-15765. He explained that boating safety would “not be adversely affected by continuing in effect those existing laws and regulations of the various States and political subdivisions” until new federal regulations could be issued. Id., at 15765.

One year later, on August 4,1972, the Coast Guard issued its first regulations under § 5 of the Act. See 37 Fed. Reg. 15777-15785. Those regulations included boat performance and safety standards such as requirements for hull identification numbers, maximum capacity and warnings of such capacity, and minimum boat flotation. They did not include any propeller guard requirement. After those federal regulations became effective, the Secretary limited the scope of his original blanket exemption to pre-empt those “State statutes and regulations” that concerned requirements covered by the 1972 regulations. See 38 Fed. Reg. 6914-6915 (1973). Existing state laws that regulated matters not covered by the federal regulations continued to be exempted from preemption. Ibid.

In the years since, the Coast Guard has promulgated a host of detailed regulations. Some prescribe the use of specified equipment, such as personal flotation devices and visual distress signals, 33 CFR pts. 175(B), (C) (2001), and certain procedures, such as compliance labeling by manufacturers and prompt accident reporting by operators, pts. 181(B), 173(C). See generally pts. 173-181.. Other regulations impose precise standards governing the design and manufacture of boats themselves and of associated equipment, such as electrical and fuel systems, ventilation, and “start-in-gear protection” devices. Pt. 183; cf. Chao v. Mallard Bay Drilling, Inc., 534 U. S. 235, 242 (2002) (“Congress has assigned a broad and important mission to the Coast Guard. . . . [T]he Coast Guard possesses authority to promulgate and enforce regulations promoting the safety of vessels ...”).

Coast Guard Consideration of Propeller Guard Regulation

In May 1988, the Coast Guard decided that the number of recreational boating accidents in which persons in the water were struck by propellers merited a special study. Acting at the request of the Coast Guard, the National Boating Safety Advisory Council appointed a special Propeller Guard Subcommittee. The subcommittee was directed to review “the available data on the prevention of propeller-strike accidents” and to study the “various methods of shrouding propellers to prevent contact with [a] person in the water.” App. 43.

After 18 months of study, the subcommittee recommended that the Coast Guard “should take no regulatory action to require propeller guards.” Id., at 40. Its recommendation rested upon findings that, given current technology, feasible propeller guards might prevent penetrating injuries but increase the potential for blunt trauma caused by collision with the guard, which enlarges the boat’s underwater profile; feasible models would cause power and speed loss at higher speeds; and it would be “prohibitive[ly]” expensive to retrofit all existing boats with propeller guards because “[n]o simple universal design suitable for all boats and motors in existence” had been proved feasible. Id., at 36-38.

The Advisory Council endorsed the subcommittee’s recommendation, as did the Coast Guard. In a 1990 letter to the Council, the Chief of the Coast Guard’s Office of Navigation Safety and Waterway Services agreed that the available accident data did not support the adoption of a regulation requiring propeller guards on motorboats, but stated that the Coast Guard would continue to review information “regarding development and testing of new propeller guarding devices or other information on the state of the art.” Id., at 81. In 1995, 1996, and 1997, the Coast Guard invited public comment on various proposals to reduce the number of injuries involving propeller strikes.

In April 2001, the Advisory Council recommended that the Coast Guard develop four specific regulations. See 66 Fed. Reg. 63645, 63647. In response, in December 2001, the Coast Guard published a notice of proposed rulemaking addressing one of the recommendations. The proposed rule, if adopted, would require an owner of a nonplaning houseboat for rent to equip her vessel with either a propeller guard or “a combination of three propeller injury avoidance measures.” Ibid. The Advisory Council also recommended that the Coast Guard require “manufacturers and importers of new planing vessels 12 feet to 26 feet in length with propellers aft of the transom to select and install one of several factory installed propeller injury avoidance methods.” Ibid. Although the Coast Guard has indicated that this recommendation, along with the Advisory Council’s other recommendations, will be addressed in “subsequent regulatory projects,” ibid., it has not yet issued any regulation either requiring or prohibiting propeller guards on recreational planing vessels such as the boat involved in this case.

III

Because the FBSA contains an express pre-emption clause, our “task of statutory construction must in the first instance focus on the plain wording of the clause, which necessarily contains the best evidence of Congress’ pre-emptive intent.” CSX Transp., Inc. v. Easterwood, 507 U. S. 658, 664 (1993). Here, the express pre-emption clause in § 10 applies to “a [state or local] law or regulation.” 46 U. S. C. §4306. We think that this language is most naturally read as not encompassing common-law claims for two reasons. First, the article “a” before “law or regulation” implies a discreteness — which is embodied in statutes and regulations — that is not present in the common law. Second, because “a word is known by the company it keeps,” Gustafson v. Alloyd Co., 513 U. S. 561, 575 (1995), the terms “law” and “regulation” used together in the pre-emption clause indicate that Congress pre-empted only positive enactments. If “law” were read broadly so as to include the common law, it might also be interpreted to include regulations, which would render the express reference to “regulation” in the pre-emption clause superfluous.

The Act’s saving clause buttresses this conclusion. See Geier v. American Honda Motor Co., 529 U. S., at 867-868. It states that “[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.” § 4311(g). As we held in Geier, the “saving clause assumes that there are some significant number of common-law liability cases to save [and t]he language of the preemption provision permits a narrow reading that excludes common-law actions.” Id., at 868.

The saving clause is also relevant for an independent reason. 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 — including the exception for state regulations addressing “uniquely hazardous conditions” — indicates that § 10 was drafted to pre-empt performance standards and equipment requirements imposed by statute or regulation.

Our interpretation of the statute’s language does not produce anomalous results. It would have been perfectly rational for Congress not to pre-empt common-law claims, which — unlike most administrative and legislative regulations — necessarily perform an important remedial role in compensating accident victims. Cf. Silkwood v. Kerr-McGee Corp., 464 U. S. 238, 251 (1984). 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 damages remedies. We thus agree with the Illinois Supreme Court’s conclusion that petitioner’s common-law tort claims are not expressly preempted by the FBSA.

IV

Even if §10 of the FBSA does not expressly pre-empt state common-law claims, respondent contends that such claims are implicitly pre-empted by the entire statute, and more specifically by the Coast Guard’s decision not to regulate propeller guards. Both are viable pre-emption theories:

“We have recognized that a federal statute implicitly overrides state law either when the scope of a statute indicates that Congress intended federal law to occupy a field exclusively, English v. General Elec. Co., 496 U. S. 72, 78-79 (1990), or when state law is in actual conflict with federal law. We have found implied conflict preemption where it is ‘impossible for a private party to comply with both state and federal requirements,’ id., at 79, or where state law ‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.’ Hines v. Davidowitz, 312 U. S. 52, 67 (1941).” Freightliner Corp. v. Myrick, 514 U. S. 280, 287 (1995).

Moreover, Congress’ inclusion of an express pre-emption clause “does not bar the ordinary working of conflict preemption principles,” Geier, 529 U. S., at 869 (emphasis in original), that find implied pre-emption “where it is impossible for a private party to comply with both state and federal requirements, or where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Freightliner Corp., 514 U. S., at 287 (internal quotation marks and citations omitted). We are not persuaded, however, that the FBSA has any such pre-emptive effect.

We first consider, and reject, respondent’s reliance on the Coast Guard’s decision not to adopt a regulation requiring propeller guards on motorboats. It is quite wrong to view that decision as the functional equivalent of a regulation prohibiting all States and their political subdivisions from adopting such a regulation. The decision in 1990 to accept the subcommittee’s recommendation to “take no regulatory action,” App. 80, left the law applicable to propeller guards exactly the same as it had been before the subcommittee began its investigation. Of course, if a state common-law claim directly conflicted with a federal regulation promulgated under the Act, or if it were impossible to comply with any such regulation without incurring liability under state common law, pre-emption would occur. This, however, is not such a case.

Indeed, history teaches us that a Coast Guard decision not to regulate a particular aspect of boating safety is fully consistent with an intent to preserve state regulatory authority pending the adoption of specific federal standards. That was the course the Coast Guard followed in 1971 immediately after the Act was passed, and again when it imposed its first regulations in 1972 and 1973. The Coast Guard has never taken the position that the litigation of state common-law claims relating to an area not yet subject to federal regulation would conflict with “the accomplishment and execution of the full purposes and objectives of Congress.” Hines v. Davidowitz, 312 U. S. 52, 67 (1941).

The Illinois Supreme Court concluded “that the Coast Guard’s failure to promulgate a propeller guard requirement here equates to a ruling that no such regulation is appropriate pursuant to the policy of the FBSA.” 197 Ill. 2d, at 128, 757 N. E. 2d, at 85. With regard to policies defined by Congress, we have recognized that “a federal decision to forgo regulation in a given area may imply an authoritative federal determination that the area is best left ^regulated, and in that event would have as much pre-emptive force as a decision to regulate.” Arkansas Elec. Cooperative Corp. v. Arkansas Pub. Serv. Comm’n, 461 U. S. 375, 384 (1983); see also Bethlehem Steel Co. v. New York State Labor Relations Bd., 330 U. S. 767, 774 (1947) (state law is pre-empted “where failure of the 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”). In this instance, however, the Illinois Supreme Court’s conclusion does not accurately reflect the Coast Guard’s entire explanation for its decision:

“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.” App. 80.

This statement reveals only a judgment that the available data did not meet the FBSA’s “stringent” criteria for federal regulation. 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. The Coast Guard’s apparent focus was on the lack of any “universally acceptable” propeller guard for “all modes of boat operation.” But nothing in its official explanation would be inconsistent with a tort verdict premised on a jury’s finding that some type of propeller guard should have been installed on this particular kind of boat equipped with respondent’s particular type of motor. Thus, 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. And nothing in the Coast Guard’s recent regulatory activities alters this conclusion.

The Coast Guard’s decision not to impose a propeller guard requirement presents a sharp contrast to the decision of the Secretary of Transportation that was given pre-emptive effect in Geier v. American Honda Motor Co., 529 U. S. 861 (2000). As the Solicitor General had argued in that ease, the promulgation of Federal Motor Vehicle Safety Standard (FMVSS) 208 embodied an affirmative “policy judgment that safety would best be promoted if manufacturers installed alternative protection systems in their fleets rather than one particular system in every car.” Id., at 881. In finding pre-emption, we expressly placed “weight upon the DOT’S interpretation of FMVSS 208’s objectives and its conclusion, as set forth in the Government’s brief, that a tort suit such as this one would ‘ “ ‘stan[d] as an obstacle to the aceomplishment and execution”” of those objectives .... Congress has delegated to DOT authority to implement the statute; the subject matter is technical; and the relevant history and background are complex and extensive. The agency is likely to have a thorough understanding of its own regulation and its objectives and is ‘uniquely qualified’ to comprehend the likely impaet of state requirements.” Id., at 883. In the case before us today, the Solicitor General, joined by counsel for the Coast Guard, has informed us that the agency does not view the 1990 refusal to regulate or any subsequent regulatory actions by the Coast Guard as having any preemptive effect. Our reasoning in Geier therefore provides strong support for petitioner’s submission.

V

Even though the refusal to regulate propeller guards in 1990 had no pre-emptive effect, it is possible that the statutory scheme as a whole implicitly pre-empted common-law claims such as petitioner’s when it was enacted in 1971. If that were so, the exemption carried forward by the Secretary in 1973 after the first federal regulations were adopted might have saved existing state common-law rules “in effect on the effective date” of the 1971 Act, so far as those rules relate to propeller guards. 38 Fed. Reg., at 6915. But even if that is not the case, we think it clear that the FBSA did not so completely occupy the field of safety regulation of recreational boats as to foreclose state common-law remedies.

In Ray v. Atlantic Richfield Co., 435 U. S. 151 (1978), we considered a federal statute that directed the Secretary of Transportation to determine “which oil tankers are sufficiently safe to be allowed to proceed in the navigable waters of the United States,” and after inspection to certify “each vessel as sufficiently safe to protect the marine environment.” Id., at 163, 165. We held that this scheme of mandatory federal regulation implicitly pre-empted the power of the State of Washington “to exclude from Puget Sound vessels certified by the Secretary as having acceptable design characteristics, unless they satisfy the different and higher design requirements imposed by state law.” Id., at 165. As we explained in United States v. Locke, 529 U. S. 89 (2000), the analysis in Ray was governed by field-preemption rules because the rules at issue were in a “field reserved for federal regulation” and “Congress ha[d] left no room for state regulation of these matters.” 529 U. S., at 111. In particular, Title II of the Ports and Waterways Safety Act of 1972 (PWSA) required the Secretary to issue “such rules and regulations as may be necessary with respect to the design, construction, and operation of the covered vessels.” 435 U. S., at 161.

The Illinois Supreme Court relied on both Ray and Locke to find petitioner’s claims impliedly pre-empted. But the FBSA, unlike Title II of the PWSA, does not require the Coast Guard to promulgate comprehensive regulations covering every aspect of recreational boat safety and design; nor must the Coast Guard certify the acceptability of every recreational boat subject to its jurisdiction. Moreover, neither Title II of the PWSA nor the holding in either Ray or Locke purported to pre-empt possible common-law claims, whereas the FBSA expressly preserves such claims.

The FBSA might be interpreted as expressly occupying the field with respect to state positive laws and regulations but its structure and framework do not convey a “clear and manifest” intent, English v. General Elec. Co., 496 U. S. 72, 79 (1990) (internal quotation marks and citations omitted), to go even further and implicitly pre-empt all state common law relating to boat manufacture. Rather, our conclusion that the Act’s express pre-emption clause does not cover common-law claims suggests the opposite intent. See Cipollone v. Liggett Group, Inc., 505 U. S. 504, 517 (1992); id., at 547 (Scalia, J., concurring in judgment in part and dissenting in part). Nor is a clear and manifest intent to sweep away state common law established by an unembellished statement in a House Report that the 1971 Act “preempts the field on boating standards or regulations.” H. R. Rep. No. 92-324, p. 11 (1971). The statement was made prior to the amendment containing the saving clause, and nothing in the entire report suggests that it meant the occupied “field” to include judge-made common law.

Respondent ultimately relies upon one of the FBSA’s main goals: fostering uniformity in manufacturing regulations. Uniformity is undoubtedly important to the industry, and the statute’s pre-emption clause was meant to “assur[e] that manufacture for the domestic trade will not involve compliance with widely varying local requirements.” S. Rep. 20. Yet this interest is not unyielding, as is demonstrated both by the Coast Guard’s early grants of broad exemptions for state regulations and by the position it has taken in this litigation. Absent a contrary decision by the Coast Guard, the concern with uniformity does not justify the displacement of state common-law remedies that compensate accident victims and their families and that serve the Act’s more prominent objective, emphasized by its title, of promoting boating safety.

The judgment of the Illinois Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

       The complaint alleges that the Sprietsmas and the owners of the boat were residents of Illinois and that the boat had been purchased in Illinois. App. 101.

         Id., at 100-122.

       Compare Lewis v. Brunswick Corp., 107 F. 3d 1494 (CA11) (finding implied pre-emption under the FBSA), cert. granted, 522 U. S. 978 (1997), cert. dismissed, 523 U. S. 1113 (1998); Carstensen v. Brunswick Corp., 49 F. 3d 430 (CA8) (finding express pre-emption under the FBSA), cert. denied, 516 U. S. 866 (1995); and Ryan v. Brunswick Corp., 454 Mich. 20, 557 N. W. 2d 541 (1997) (finding express pre-emption under the FBSA), with Moore v. Brunswick Bowling & Billiards Corp., 889 S. W. 2d 246 (Tex.) (holding that federal law did not pre-empt state law in this context), cert. denied sub nom. Vivian Industrial Plastics, Inc. v. Moore, 513 U. S. 1057 (1994). See also Lady v. Neal Glaser Marine, Inc., 228 F. 3d 598 (CA5 2000) (holding that common-law claims based on the manufacturer’s failure to provide a propeller guard were impliedly pre-empted by the FBSA; Outboard Marine, the successor to Neal Glaser Marine, declared bankruptcy shortly after the petition for certiorari was filed), cert. denied sub nom. Lady v. Outboard Marine Corp., 532 U. S. 941 (2001).

       Brunswick has asserted that federal maritime law governs this case. Because this argument was not raised below, it is waived.

       The Senate Report on the 1971 Act observed that approximately 40 million Americans engaged in recreational boating activities every year, and that nearly 7,000 persons had died in boating accidents during the preceding 5-year period. S. Rep. No. 92-248, pp. 6-7 (1971) (hereinafter S. Rep.). The Report added: “It seems apparent that the annual loss of life is of sufficiently alarming proportion that the Federal Government should require products , involved to be built to standards of safety commensurate with the risks associated with their use. Similar federal legislation exists with regard to other products, including aircraft and motor vehicles. Also, safety standards and requirements for certain categories of larger commercial vessels have existed for many years.” Id., at 13.

       Title 46 U. S. C. §4302 provides:
      “(a) The Secretary may prescribe regulations—
      “(1) establishing minimum safety standards for recreational vessels and associated equipment, and establishing procedures and tests required to measure conformance with those standards, with each standard—
      “(A) meeting the need for recreational vessel safety; and
      “(B) being stated, insofar as practicable, in terms of performance;
      “(2) requiring the installation, carrying, or use of associated equipment ... on recreational vessels and classes of recreational vessels subject to this chapter, and prohibiting the installation, carrying, or use of associated equipment that does not conform with safety standards established under this section ....”

       “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 (1M3) of this subsection.”

       Between 1976 and 1990, the Coast Guard officially reported about 100 propeller-strike injuries in the United States per year. App. in Lewis v. Brunswick, O. T. 1997, No. 97-288, p. 170. A 1992 study by members of the Johns Hopkins University Injury Prevention Center and the Institute for Injury Reduction concluded that, when adjusted for underreporting, “the true number of propeller injuries and fatalities may be closer to . .. 2,000-3,000 per year.” Id., at 199.

       “After discussing the alternatives and their cost, the Council recommended that the Coast Guard ... develop four specific regulations:
      “(1) Require owners of all propeller driven vessels 12 feet in length and longer with propellers aft of the transom to display propeller warning labels and to employ an emergency cut-off switch, where installed;
      “(2) Require manufacturers and importers of new planing vessels 12 feet to 26 feet in length with propellers aft of the transom to select and install one of several factory installed propeller injury avoidance methods;
      “(3) Require manufacturers and importers of new non-planing vessels 12 feet in length and longer with propellers aft of the transom to select and install one of several factory installed propeller injury avoidance methods; and
      “(4) Require owners of all non-planing rental boats with propellers aft of the transom to install either a jet propulsion system or a propeller guard or all of several propeller injury avoidance measures.” 66 Fed. Reg., at 63647.

       The FBSA itself imposes civil money penalties payable to the United States, as well as imprisonment for willful violations, 46 U. S. C. §4311, but does not authorize any private damages remedies for persons injured by noncomplying operators, boats, or equipment.

       Indeed, in response to the Propeller Guard Subcommittee’s recommendation in favor of “educational and awareness campaigns,” the Coast Guard indicated that it would publish a series of articles “aimed at avoiding boat/propeller strike accidents,” which could include the topic of “available propeller guards.” App. 82-83.


author: Justice Thomas

text:
    UNITED STATES et al. v. BEAN
    No. 01-704.
    Argued October 16, 2002
    Decided December 10, 2002

      Thomas, J., delivered the opinion for a unanimous Court.

      Deputy Solicitor General Kneedler argued the cause for petitioners. With him on the briefs were Solicitor General Olson, Assistant Attorney General McCallum, Irving L. Gornstein, Mark B. Stern, and Thomas M. Bondy.

      Thomas C. Goldstein argued the cause for respondent. With him on the brief were Larry C. Hunter and Amy Howe.

         Craig Goldblatt and Mathew S. Nosanchuk filed a brief for the Violence Policy Center as amicus curiae urging reversal.
      Briefs of amici curiae urging affirmance were filed for the Law Enforcement Alliance of America, Inc., by Richard E. Gardiner; and for the Second Amendment Foundation by William M. Gustavson.

   Justice Thomas

delivered the opinion of the Court.

We consider in this case whether, despite appropriation provisions barring the Bureau of Alcohol, Tobacco, and Firearms (ATF) from acting on applications for relief from firearms disabilities of persons convicted of a felony, a federal district court has authority under 18 U. S. C. § 925(c) to grant such relief.

I

After attending a gun show in Laredo, Texas, respondent, Thomas Lamar Bean, a gun dealer, and his associates drove respondent’s vehicle to Nuevo Laredo, Mexico, for dinner. Bean v. Bureau of Alcohol, Tobacco and Firearms, 253 F. 3d 234, 236 (CA5 2001). When Mexican officials stopped the vehicle at the border, they found in the back, in plain view, approximately 200 rounds of ammunition. Ibid. According to respondent, he had instructed his associates to remove any firearms and ammunition from his vehicle, but inexplicably one box remained. Ibid. Respondent was convicted in a Mexican court of importing ammunition into Mexico and sentenced to five years’ imprisonment.

Because of his felony conviction, respondent was prohibited by 18 U. S. C. § 922(g)(1) from possessing, distributing, or receiving firearms or ammunition. Relying on § 925(c), respondent applied to ATF for relief from his firearms disabilities. ATF returned the application unprocessed, explaining that its annual appropriations law forbade it from expending any funds to investigate or act upon applications such as respondent’s.

Respondent then filed suit in the United States District Court for the Eastern District of Texas. Relying on the judicial review provision in § 925(c), respondent asked the District Court to conduct its own inquiry into his fitness to possess a gun, and to issue a judicial order granting relief from his firearms disabilities. Respondent attached various affidavits from persons attesting to his fitness to possess firearms. After conducting a hearing, the court entered judgment granting respondent the requested relief. The Court of Appeals for the Fifth Circuit affirmed, concluding that congressional refusal to provide funding to ATF for reviewing applications such as respondent’s “is not the requisite direct and definite suspension or repeal of the subject rights.” 253 F. 3d, at 239. The Fifth Circuit then proceeded to hold that the District Court had jurisdiction to review ATF’s (in)action. We granted certiorari. 534 U. S. 1112 (2002).

II

Under federal law, a person who is convicted of a felony is prohibited from possessing firearms. See § 922(g)(1). The Secretary of the Treasury is authorized to grant relief from that prohibition if it is established to his satisfaction that certain preconditions are met. See § 925(c). An applicant may seek judicial review from a “United States district court” if his application “is denied by the Secretary.” Ibid.

Since 1992, however, the appropriations bar has prevented ATF, to which the Secretary has delegated authority to act on § 925(e) applications, from using “funds appropriated herein ... to investigate or act upon applications for relief from Federal firearms disabilities under 18 U. S. C. [§]925(c).” Treasury, Postal Service, and General Government Appropriations Act, 1993, Pub. L. 102-393, 106 Stat. 1732. Accordingly, ATF, upon receipt of respondent’s petition, returned it, explaining that “[s]ince October 1992, ATF’s annual appropriation has prohibited the expending of any funds to investigate or act upon applications for relief from Federal firearms disabilities.” App. 33-34. Respondent contends that ATF’s failure to act constitutes a “denial” within the meaning of § 925(c), and that, therefore, district courts have jurisdiction to review such inaction.

We disagree. Inaction by ATF does not amount to a “denial” within the meaning of § 925(c). The text of § 925(c) and the procedure it lays out for seeking relief make clear that an actual decision by ATF on an application is a prerequisite for judicial review, and that mere inaction by ATF does not invest a district court with independent jurisdiction to act on an application.

Grammatically, the phrase “denied by the Secretary” references the Secretary’s decision on whether an applicant “will not be likely to act in a manner dangerous to public safety,” and whether “the granting of the relief would not be contrary to the public interest.” The determination whether an applicant is “likely to act in a manner dangerous to public safety” can hardly be construed as anything but a decision actually denying the application. And, in fact, respondent does not contend that ATF actually passed on his application, but rather claims that “refusal to grant relief constitutes a literal, or at least a constructive, denial of the application because it has precisely the same impact on [the applicant] as denial on the merits.” Brief for Respondent 35 (internal quotation marks and citations omitted).

The procedure that § 925(c) lays out for those seeking relief also leads us to conclude that an actual adverse action on the application by ATF is a prerequisite for judicial review. Section 925(c) requires an applicant, as a first step, to petition the Secretary and establish to the Secretary’s satisfaction that the applicant is eligible for relief. The Secretary, in his discretion, may grant or deny the request based on the broad considerations outlined above. Only then, if the Secretary denies relief, may an applicant seek review in a district court.

This broad authority of the Secretary, i. e., ATF, to grant or deny relief, even when the statutory prerequisites are satisfied, shows that judicial review under § 925(c) cannot occur without a dispositive decision by ATF. First, in the absence of a statutorily defined standard of review for action under § 925(c), the APA supplies the applicable standard. 5 U. S. C. § 701(a). Under the APA, judicial review is usually limited to determining whether agency action is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” § 706(2)(A). Application of the APA standard of review here indicates that judicial review is predicated upon ATF’s dispositive decision: the “arbitrary and capricious” test in its nature contemplates review of some action by another entity, rather than initial judgment of the court itself.

Second, both parts of the standard for granting relief point to ATF as the primary decisionmaker. Whether an applicant is “likely to act in a manner dangerous to public safety” presupposes an inquiry into that applicant’s background — a function best performed by the Executive, which, unlike courts, is institutionally equipped for conducting a neutral, wide-ranging investigation. Similarly, the “public interest” standard calls for an inherently policy-based decision best left in the hands of an agency.

Third, the admission of additional evidence in district court proceedings is contemplated only in exceptional circumstances. See 18 U. S. C. § 925(c) (allowing, “in [district court’s] discretion,” admission of evidence where “failure to do so would result in a miscarriage of justice”). Congressional assignment of such a circumscribed role to a district court shows that the statute contemplates that a district court’s determination will heavily rely on the record and the decision made by ATF. Indeed, the very use in § 925(c) of the word “review” to describe a district court’s responsibility in this statutory scheme signifies that a district court cannot grant relief on its own, absent an antecedent actual denial by ATF.

Accordingly, we hold that the absence of an actual denial of respondent’s petition by ATF precludes judicial review under § 925(c), and therefore reverse the judgment of the Court of Appeals.

It is so ordered.

       Title 18 U. S. C. § 925(c) provides:
      “A person who is prohibited from possessing, shipping, transporting, or receiving firearms or ammunition may make application to the Secretary for relief from the disabilities imposed by Federal laws with respect to the acquisition, receipt, transfer, shipment, transportation, or possession of firearms, and the Secretary may grant such relief if it is established to his satisfaction that the circumstances regarding the disability, and the applicant’s record and reputation, are such that the applicant will not be likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest. Any person whose application for relief from disabilities is denied by the Secretary may file a petition with the United States district court for the district in which he resides for a judicial review of such denial. The court may in its discretion admit additional evidence where failure to do so would result in a miscarriage of justice. A licensed importer, licensed manufacturer, licensed dealer, or licensed collector conducting operations under this chapter, who makes application for relief from the disabilities incurred under this chapter, shall not be barred by such disability from further operations under his license pending final action on an application for relief filed pursuant to this section. Whenever the Secretary grants relief to any person pursuant to this section he shall promptly publish in the Federal Register notice of such action, together with the reasons therefor.”

       Respondent contends that congressional denial of funds to ATF did not eliminate the Secretary’s power to act on his application. In support, respondent notes that § 925(c) refers to the action by “the Secretary.” That claim, however, is waived, as respondent raised it for the first time in his brief on the merits to this Court.
      Even if considered on the merits, respondent’s argument faces several difficulties. First, it appears that the Secretary delegated to ATF the exclusive authority to act on petitions brought under § 925(c), see 27 CFR §§ 178.144(b) and (d) (2002); such delegation is not unreasonable. Second, even assuming the Secretary has retained the authority to act on such petitions, it is not clear that respondent would prevail were he to file a requisite action under 5 U. S. C. § 706(1) (providing for judicial review to “compel agency action unlawfully withheld or unreasonably delayed”). Not only does the Secretary, by the explicit terms of the statute, possess broad discretion as to whether to grant relief, see infra, at 76-78, but congressional withholding of funds from ATF would likely inform his exercise of discretion.

       In each subsequent year, Congress has retained the bar on the use of appropriated funds to process applications filed by individuals. Treasury and General Government Appropriations Act, 2002, Pub. L. 107-67, 115 Stat. 519; Consolidated Appropriations Act, 2001, Pub. L. 106-554, 114 Stat. 2763A-129; Treasury and General Government Appropriations Act, 2000, Pub. L. 106-58, 113 Stat. 434; Treasury and General Government Appropriations Act, 1999, Pub. L. 105-277, 112 Stat. 2681-485; Treasury and General Government Appropriations Act, 1998, Pub. L. 105-61, 111 Stat. 1277; Treasury, Postal Service, and General Government Appropriations Act, 1997, Pub. L. 104-208, 110 Stat. 3009-319; Treasury, Postal Service, and General Government Appropriations Act, 1996, Pub. L. 104-52, 109 Stat. 471; Treasury, Postal Service and General Government Appropriations Act, 1995, Pub. L. 103-329, 108 Stat. 2385; Treasury, Postal Service, and General Government Appropriations Act, 1994, Pub. L. 103-123, 107 Stat. 1228.

         Also counseling against construing failure to act as a denial for purposes of § 925(c) is the fact that while the Administrative Procedure Act (APA) draws a distinction between a “denial” and a “failure to act,” see 5 U. S. C. § 551(13), an applicant may obtain judicial review under § 925(c) only if an application is denied. See 2A N. Singer, Sutherland on Statutes and Statutory Construction §46:06, p. 194 (6th ed. 2000) (“The use of different terms within related statutes generally implies that different meanings were intended”).


author:
Justice Breyer
      Justice Thomas,

text:
    HOWSAM, individually and as trustee for the E. RICHARD HOWSAM, JR., IRREVOCABLE LIFE INSURANCE TRUST DATED MAY 14, 1982 v. DEAN WITTER REYNOLDS, INC.
    No. 01-800.
    Argued October 9, 2002
    Decided December 10, 2002

      Breyer, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Stevens, Scalia, Kennedy, Souter, and Ginsburg, JJ., joined. Thomas, J., filed an opinion concurring in the judgment, post, p. 87. O’Connor, J., took no part in the consideration or decision of the case.

      Alan C. Friedberg argued the cause and filed briefs for petitioner.

      Matthew D. Roberts argued the cause for the Securities and Exchange Commission as amicus curiae urging reversal. With him on the brief were Solicitor General Olson, Deputy Solicitor General Kneedler, Meyer Eisenberg, Jacob H. Stillman, and Mark Pennington.

      Kenneth W. Starr argued the cause for respondent. With him on the brief were Steven G. Bradbury, Daryl Joseffer,

      Ashley C. Parrish, Donald G. Kempf, Jr., and Bradford D. Kaufman.

      Briefs of amici curiae urging affirmance were filed for the Competitive Enterprise Institute by C. Boy den Gray and James V. DeLong; and for the Securities Industry Association by Douglas R. Cox and Stuart J. Kaswell.

        F. Paul Bland, Jr., Deborah M. Zuckerman, and Michael R. Schuster filed a brief for Trial Lawyers for Public Justice et al. as amici curiae.

   Justice Breyer

delivered the opinion of the Court.

This case focuses upon an arbitration rule of the National Association of Securities Dealers (NASD). The rule states that no dispute “shall be eligible for submission to arbitration . . . where six (6) years have elapsed from the occurrence or event giving rise to the . . . dispute.” NASD Code of Arbitration Procedure §10304 (1984) (NASD Code or Code). We must decide whether a court or an NASD arbitrator should apply the rule to the underlying controversy. We conclude that the matter is for the arbitrator.

I

The underlying controversy arises out of investment advice that Dean Witter Reynolds, Inc. (Dean Witter), provided its client, Karen Howsam, when, some time between 1986 and 1994, it recommended that she buy and hold interests in four limited partnerships. Howsam says that Dean Witter misrepresented the virtues of the partnerships. The resulting controversy falls within their standard Client Service Agreement’s arbitration clause, which provides:

“[A]ll controversies . . . concerning or arising from . . . any account..., any transaction ..., or... the construction, performance or breach of . . . any . . . agreement between us ... shall be determined by arbitration before any self-regulatory organization or exchange of which Dean Witter is a member.” App. 6-7.

The agreement also provides that Howsam can select the arbitration forum. And Howsam chose arbitration before the NASD.

To obtain NASD arbitration, Howsam signed the NASD’s Uniform Submission Agreement. That agreement specified that the “present matter in controversy” was submitted for arbitration “in accordance with” the NASD’s “Code of Arbitration Procedure.” Id., at 24. And that Code contains the provision at issue here, a provision stating that no dispute “shall be eligible for submission ... where six (6) years have elapsed from the occurrence or event giving rise to the . . . dispute.” NASD Code § 10304.

After the Uniform Submission Agreement was executed, Dean Witter filed this lawsuit in Federal District Court. It asked the court to declare that the dispute was “ineligible for arbitration” because it was more than six years old. App. 45. And it sought an injunction that would prohibit Howsam from proceeding in arbitration. The District Court dismissed the action on the ground that the NASD arbitrator, not the court, should interpret and apply the NASD rule. The Court of Appeals for the Tenth Circuit, however, reversed. 261 F. 3d 956 (2001). In its view, application of the NASD rule presented a question of the underlying dispute’s “arbitrability”; and the presumption is that a court, not an arbitrator, will ordinarily decide an “arbitrability” question. See, e. g., First Options of Chicago, Inc. v. Kaplan, 514 U. S. 938 (1995).

The Courts of Appeals have reached different conclusions about whether a court or an arbitrator primarily should interpret and apply this particular NASD rule. Compare, e. g., 261 F. 3d 956 (CA10 2001) (case below) (holding that the question is for the court); J. E. Liss & Co. v. Levin, 201 F. 3d 848, 851 (CA7 2000) (same), with PaineWebber Inc. v. Elahi, 87 F. 3d 589 (CA1 1996) (holding that NASD § 15, currently § 10304, is presumptively for the arbitrator); Smith Barney Shearson, Inc. v. Boone, 47 F. 3d 750 (CA5 1995) (same). We granted Howsam’s petition for certiorari to resolve this disagreement. And we now hold that the matter is for the arbitrator.

II

This Court has determined that “arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.” Steelworkers v. Warrior & Gulf Nav. Co., 363 U. S. 574, 582 (1960); see also First Options, supra, at 942-943. Although the Court has also long recognized and enforced a “liberal federal policy favoring arbitration agreements,” Moses H. Cone Memorial Hospital v. Mercury Constr. Corp., 460 U. S. 1, 24-25 (1983), it has made dear that there is an exception to this policy: The question whether the parties have submitted a particular dispute to arbitration, i. e., the “question of arbitrability,” is “an issue for judicial determination [ujnless the parties clearly and unmistakably provide otherwise.” AT&T Technologies, Inc. v. Communications Workers, 475 U. S. 643, 649 (1986) (emphasis added); First Options, supra, at 944. We must decide here whether application of the NASD time limit provision falls into the scope of this last-mentioned interpretive rule.

Linguistically speaking, one might call any potentially dispositive gateway question a “question of arbitrability,” for its answer will determine whether the underlying controversy will proceed to arbitration on the merits. The Court’s case law, however, makes clear that, for purposes of applying the interpretive rule, the phrase “question of arbitrability” has a far more limited scope. See 514 U. S., at 942. The Court has found the phrase applicable in the kind of narrow circumstance where contracting parties would likely have expected a court to have decided the gateway matter, where they are not likely to have thought that they had agreed that an arbitrator would do so, and, consequently, where reference of the gateway dispute to the court avoids the risk of forcing parties to arbitrate a matter that they may well not have agreed to arbitrate.

Thus, a gateway dispute about whether the parties are bound by a given arbitration clause raises a “question of arbitrability” for a court to decide. See id., at 943-946 (holding that a court should decide whether the arbitration contract bound parties who did not sign the agreement); John Wiley & Sons, Inc. v. Livingston, 376 U. S. 543, 546-547 (1964) (holding that a court should decide whether an arbitration agreement survived a corporate merger and bound the resulting corporation). Similarly, a disagreement about whether an arbitration clause in a concededly binding contract applies to a particular type of controversy is for the court. See, e. g., AT&T Technologies, supra, at 651-652 (holding that a court should decide whether a labor-management layoff controversy falls within the arbitration clause of a collective-bargaining agreement); Atkinson v. Sinclair Refining Co., 370 U. S. 238, 241-243 (1962) (holding that a court should decide whether a clause providing for arbitration of various “grievances” covers claims for damages for breach of a no-strike agreement).

At the same time the Court has found the phrase “question of arbitrability” not applicable in other kinds of general circumstance where parties would likely expect that an arbitrator would decide the gateway matter. Thus “‘procedural’ questions which grow out of the dispute and bear on its final disposition” are presumptively not for the judge, but for an arbitrator, to decide. John Wiley, supra, at 557 (holding that an arbitrator should decide whether the first two steps of a grievance procedure were completed, where these steps are prerequisites to arbitration). So, too, the presumption is that the arbitrator should decide “allegation[s] of waiver, delay, or a like defense to arbitrability.” Moses H. Cone Memorial Hospital, supra, at 24-25. Indeed, the Revised Uniform Arbitration Act of 2000 (RUAA), seeking to “incorporate the holdings of the vast majority of state courts and the law that has developed under the [Federal Arbitration Act],” states that an “arbitrator shall decide whether a condition precedent to arbitrability has been fulfilled.” RUAA § 6(c), and comment 2,7 U. L. A. 12-13 (Supp. 2002). And the comments add that “in the absence of an agreement to the contrary, issues of substantive arbitrability . . . are for a court to decide and issues of procedural arbitrability, i. e., whether prerequisites such as time limits, notice, laches, estoppel, and other conditions precedent to an obligation to arbitrate have been met, are for the arbitrators to decide.” Id., §6, comment 2, 7 U. L. A., at 13 (emphasis added).

Following this precedent, we find that the applicability of the NASD time limit rule is a matter presumptively for the arbitrator, not for the judge. The time limit rule closely resembles the gateway questions that this Court has found not to be “questions of arbitrability.” E. g., Moses H. Cone Memorial Hospital, supra, at 24-25 (referring to “waiver, delay, or a like defense”). Such a dispute seems an “aspec[t] of the [controversy] which called the grievance procedures into play.” John Wiley, supra, at 559.

Moreover, the NASD arbitrators, comparatively more expert about the meaning of their own rule, are comparatively better able to interpret and to apply it. In the absence of any statement to the contrary in the arbitration agreement, it is reasonable to infer that the parties intended the agreement to reflect that understanding. Cf. First Options, 514 U. S., at 944-945. And for the law to assume an expectation that aligns (1) decisionmaker with (2) comparative expertise will help better to secure a fair and expeditious resolution of the underlying controversy — a goal of arbitration systems and judicial systems alike.

We consequently conclude that the NASD's time limit rule falls within the class of gateway procedural disputes that do not present what our eases have called “questions of arbitrability.” And the strong pro-court presumption as to the parties’ likely intent does not apply.

III

Dean Witter argues that, in any event, i. e., even without an antiarbitration presumption, we should interpret the contracts between the parties here as calling for judicial determination of the time limit matter. Howsam’s execution of a Uniform Submission Agreement with the NASD in 1997 effectively incorporated the NASD Code into the parties’ agreement. Dean Witter notes the Code’s time limit rule uses the word “eligible.” That word, in Dean Witter’s view, indicates the parties’ intent for the time limit rule to be resolved by the court prior to arbitration.

We do not see how that is so. For the reasons stated in Part II, supra, parties to an arbitration contract would normally expect a forum-based decisionmaker to decide forum-specific procedural gateway matters. And any temptation here to place special antiarbitration weight on the appearance of the word “eligible” in the NASD Code rule is counterbalanced by a different NASD rule; that rule states that “arbitrators shall be empowered to interpret and determine the applicability of all provisions under this Code.” NASD Code § 10324.

Consequently, without the help of a special arbitration-disfavoring presumption, we cannot conclude that the parties intended to have a court, rather than an arbitrator, interpret and apply the NASD time limit rule. And as we held in Part II, supra, that presumption does not apply.

IV

For these reasons, the judgment of the Tenth Circuit is

Reversed.

Justice O’Connor took no part in the consideration or decision of this case.

Justice Thomas,

concurring in the judgment.

As our precedents make clear and as the Court notes, arbitration is a matter of contract. Ante, at 83. In Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ., 489 U. S. 468 (1989), we held that under the Federal Arbitration Act courts must enforce private agreements to arbitrate just as they would ordinary contracts: in accordance with their terms. Under Volt, when an arbitration agreement contains a choice-of-law provision, that provision must be honored, and a court interpreting the agreement must follow the law of the jurisdiction selected by the parties. See id., at 478-479 (enforcing a choice-of-law provision that incorporated a state procedural rule concerning arbitration proceedings); see also Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U. S. 52, 67 (1995) (Thomas, J., dissenting) (concluding that the choice-of-law provision in question was indistinguishable from the one in Volt and, thus, should have been given effect). A straightforward application of these principles easily resolves the question presented in this case.

The agreement now before us provides that it “shall be construed and enforced in accordance with the laws of the State of New York.” App. 6. Interpreting two agreements containing provisions virtually identical to the ones in dispute here, the New York Court of Appeals held that issues implicating § 15 (now § 10304) of the National Association of Securities Dealers Code of Arbitration Procedure are for arbitrators to decide. See Smith Barney Shearson Inc. v. Sacharow, 91 N. Y. 2d 39, 689 N. E. 2d 884 (1997). Because the parties agreed to be bound by New York law and because Volt requires us to enforce their agreement, I would permit arbitrators to resolve the § 10304 issues that have arisen in this case, just as New York case law provides. The Court follows a different route to reach the same conclusion; accordingly, I concur only in the judgment.