UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


IN RE: BLUEWATER AD


99-1502a

D.C. Cir. 2000


*	*	*


Edwards, Chief Judge: On March 24, 1989, the Exxon  Valdez supertanker
struck Bligh Reef in Prince William  Sound, dumping nearly eleven
million gallons of oil into  Alaska's once-pristine coastal ecosystem.
Congress respond- ed with the Oil Pollution Act of 1990 ("OPA" or
"Act"), Pub.  L. No. 101-380, 104 Stat. 484 (1990). The Act not only 
broadened federal liability for oil spills, it also established 
substantive tanker design and evaluation requirements to  prevent such
spills from occurring in the first place. The Oil  Pollution Act of
1990 is now more than ten-years old, but the 


Coast Guard, the enforcing agency, still has failed to promul- gate
regulations required by the Act. Citing the agency's  failures on this
score, petitioners Bluewater Network and  Ocean Advocates now seek a
writ of mandamus to compel the  Coast Guard to finally make good on
Congress' commitments.


One of the contested statutory provisions--s 4110--re- quires the Coast
Guard, by August 18, 1991, to promulgate  regulations establishing
minimum compliance standards and  use requirements for tank level and
pressure monitoring  ("TLPM") devices. No such regulations currently
exist.  Furthermore, the Coast Guard admits that it will not under-
take any rulemaking in the future, citing a temporary 1997  rulemaking
that expired in 1999. The Coast Guard's earlier  temporary compliance
standards are of no moment. Petition- ers' claim here, with which we
agree, is that the agency's  failure to pursue rulemaking once the
temporary regulations  expired was a blatant violation of the statute.
The Coast  Guard never stated in its 1997 regulation that, after
sunset, it  would simply abandon standard-setting altogether. Indeed, 
this does not even appear to be a viable option under the  statute.
Moreover, the Coast Guard has never even attempted  to promulgate
equipment use requirements. It cannot now  point to an admittedly
incomplete, and now-expired, rule to  avoid a congressional mandate to
establish some sort of  regulations.


The second contested provision--s 4116(c)--requires the  Coast Guard,
by February 18, 1991, to initiate issuance of  regulations to define
waters, including Prince William Sound  and two other named areas,
over which single-hulled tankers  must be escorted by at least two
towing vessels. Citing an  earlier rulemaking in which it promulgated
regulations con- cerning the three named areas, the Coast Guard
asserts that  petitioners should have brought their mandamus claims
re- garding regulation of "other waters" in a petition for review  of
the earlier rulemaking. However, as with s 4110, petition- ers are not
challenging the earlier rulemaking; and the Coast  Guard gave
interested parties no reason to believe that the  earlier regulations
covering s 4116(c) would be the final word  on the matter.
Nonetheless, we do agree with the Coast 


Guard that s 4116(c) does not create a sufficiently clear duty 
regarding "other waters" to merit mandamus relief. In  particular, it
is not at all obvious whether s 4116(c) actually  forces the Coast
Guard itself to come up with the names of,  and instigate rulemaking
regarding, possible "other waters."  Petitioners are certainly free to
petition the agency for rule- making when and if they alight on
candidates for inclusion.


On the record at hand, we grant in part and deny in part  petitioners'
mandamus request and order the Coast Guard to  conduct prompt
rulemaking pursuant to s 4110 of the Act.


I. Background


A. The Oil Pollution Act of 1990


The OPA consists of nine distinct titles, two of which-- Titles I and
IV--constitute the bulk of the Act's provisions.  Title I, "Oil
Pollution Compensation and Liability," contains  extensive new
provisions regarding the liability of parties  responsible for an oil
spill. See ss 1001-1020, 104 Stat. at  486-506 (codified as amended at
33 U.S.C. ss 2701-2719  (1994)). Included among these provisions is s
1017, which  grants this court exclusive jurisdiction to review
challenges to  "any regulation promulgated under [the] Act." Section
1017  also imposes a 90-day jurisdictional time limit within which 
challenges to regulations must be brought. See s 1017(a),  104 Stat.
at 504 (codified at 33 U.S.C. s 2717(a)). Title IV,  "Prevention and
Removal," for the most part amends existing  statutory provisions, in
many cases instructing the Secretary  of Transportation, including the
Coast Guard, to promulgate  regulations for ensuring the prevention of
oil spills. See  ss 4101-4306, 104 Stat. at 509-541 (codified in
scattered  sections of 46 U.S.C. (1994)). Two such preventative provi-
sions are at issue in this case.


The first, s 4110, consists of two parts. See s 4110, 104  Stat. at 515
(codified at 46 U.S.C. s 3703 note). Section  4110(a) requires that
the Coast Guard, no later than one year  after enactment of the OPA,
establish regulations setting  "minimum standards" for TLPM devices.
See s 4110(a), 104 


Stat. at 515. Such devices would continually monitor the  volume of oil
contained in a tanker's hull and alert the crew to  recognizable drops
in the oil level, thereby signalling a poten- tial leak. Section
4110(b) mandates that the Coast Guard,  also no later than one year
after enactment of the OPA, issue  "regulations establishing ... the
use [by oil cargo ships] of  ... tank level and pressure monitoring
devices, which are  referred to in subsection (a) and which meet the
standards  established by the Secretary under subsection (a)." s
4110(b),  104 Stat. at 515. The Coast Guard has interpreted s 4110(b) 
to apply only to single, and not double, hulled tankers. See  46
C.F.R. s 32.22T-1(b) (1998). Petitioners do not challenge  that


Section 4116(c), the second provision at issue here, requires  that,
not later than 6 months after enactment of the OPA,  "the Secretary
shall initiate issuance of regulations ... to  define those areas,
including Prince William Sound, Alaska,  and Rosario Strait and Puget
Sound, Washington (including  those portions of the Strait of Juan de
Fuca east of Port  Angeles, Haro Strait, and the Strait of Georgia
subject to  United States jurisdiction), on which single hulled
tankers  over 5,000 gross tons transporting oil in bulk shall be
escort- ed by at least two towing vessels." s 4116(c), 104 Stat. at
523  (codified at 46 U.S.C. s 3703 note) (emphasis added). Thus,  the
Act names three areas specifically for which the Coast  Guard must


B. Rulemaking and Regulatory History of the Two Provi- sions


Petitioners filed the present mandamus petition in Decem- ber 1999,
seeking to compel the Coast Guard to comply with  its obligations
under both s 4110 and s 4116(c) of the OPA.  If the Coast Guard had
simply disregarded both of the  provisions, deciding instead to delay
indefinitely any rulemak- ing under either section, this would be a
straightforward case  of unreasonable delay. What makes this case
somewhat  unusual, albeit not difficult, is the fact that the Coast
Guard  has episodically engaged in some rulemaking, and promulgat- ed
some regulations, pursuant to each of the provisions at 


issue. In order to put this case in proper perspective, we  must first
outline the curious history of agency actions pur- portedly taken
pursuant to s 4110 and s 4116.


1. s 4110-Overfill and Tank Level or Pressure Monitor- ing Devices


Approximately three months before the statutorily-imposed  deadline,
the Coast Guard issued an advanced notice of  proposed rulemaking
seeking comments and suggestions re- garding possible proposed rules
for complying with  ss 4110(a) and (b). See 56 Fed. Reg. 21,116 (May
7, 1991).  The Coast Guard also commissioned a technical feasibility 
study of existing TLPM devices, released in early 1993, which 
confirmed that, as of 1993, "existing level detectors [were] not 
sufficiently sensitive to detect leakage before a large dis- charge
occurr[ed]." Notice of Availability of Technical Feasi- bility Study,
58 Fed. Reg. 7,292, 7,292 col. 2 (Feb. 5, 1993).  The study found that
"attainable accuracy is expected to be  within 1.0-2.0% of the actual
level." Id. col. 3. Concerned  that a 1.0 to 2.0 percent error margin,
which translates to  between 36,075 and 72,150 gallons of oil for a
400,000 ton  tanker, would provide "insufficient warning to allow
prompt  action by the crew," the Coast Guard called for a public 
hearing to augment comments to the original advanced notice.  See
Notice of Public Meeting, 59 Fed. Reg. 58,810, 58,811 col.  2 (Nov.


In its August 1995 notice of proposed rulemaking, the  Coast Guard
limited its proposed rule to the establishment of  standards for TLPM
devices pursuant to s 4110(a), leaving  questions of installation and
use of compliant devices, pursu- ant to s 4110(b), for another day.
See 60 Fed. Reg. 43,427,  43,428-29 (Aug. 21, 1995). The Coast Guard
proposed "that a  leak detection device must sound an alarm before the
con- tents of the tank decline to a level of 0.5 percent below the 
level at which the tank was loaded, or at the loss of 1,000  gallons
of cargo, whichever is less." Id. at 43,429 col. 3. It  chose this
exacting standard, despite the technical feasibility  study, because
"[a] loss of 1,000 or more gallons in virtually  all environments
poses appreciable risk to the marine envi-


ronment." Id. The Coast Guard acknowledged that "cur- rently available
devices may not meet the proposed standards  for meaningful leak
detection; however, establishing the stan- dards may lead to
development of devices which will provide  appropriate leak


In March 1997, nearly six years after the statutory dead- line, the
Coast Guard adopted the proposed standards in the  form of a temporary
rule, effective for two years beginning  April 28, 1997. See 62 Fed.
Reg. 14,828, 14,830-31 (March 28,  1997) (to be codified at 46 C.F.R.
ss 32.22T-1 & .22T-5).  The rule did not require installation or use
of TLPM devices  unless and until s 4110(a) compliant technology had
been  invented and the appropriate s 4110(b) rulemaking undertak- en.
See 46 C.F.R. s 32.22T-1(c). In establishing the short  two-year
sunset, the Coast Guard cited its belief that "unless  a tank level or
pressure monitoring device is developed within  2 years from the
effective date of [the] temporary rule, it may  not be economically
feasible to require installation of such a  device considering
phaseout schedules." 62 Fed. Reg. at  14,829 col. 3. All single-hulled
vessels will be phased out of  operation by the year 2010. See 46


The temporary regulations did, in fact, sunset on April 28,  1999. In
November of that year, the Coast Guard gave  notice of completed
action in the s 4110 TLPM rulemaking:  "Because current technology can
not create a device that can  meet reasonable expectations, the
temporary rule was allowed  to expire, and no further action is
required. If the Coast  Guard ever receives information about a device
that is accu- rate enough to meet the standard, the rulemaking will be
 reinitiated." 64 Fed. Reg. 64,739, 64,740 (Nov. 22, 1999).  Thus,
there are currently no regulations in place under either  of s 4110's
two provisions. Moreover, the Coast Guard never  even attempted
rulemaking pursuant s 4110(b).


2. s 4116(c)-Escorts for Certain Tankers


Nearly two years after passage of the OPA, the Coast  Guard published a
notice of proposed rulemaking. See 57  Fed. Reg. 30,058 (July 7,
1992). The proposed rule contem- plated applying the dual-escort
requirement only to those 


three areas specifically mentioned in s 4116(c) itself--namely,  Prince
William Sound, Rosario Strait, and Puget Sound. See  id. at 30,064
(proposed July 7, 1992) (to be codified at 33  C.F.R. pt. 168). The
Coast Guard did, however, invite com- ments regarding "other waters"
to which the dual-escort  requirement might be extended: "The Coast
Guard may  require two escorts in other territorial waters of the
United  States. This notice does not propose additional areas. Any 
additional areas proposed will be included in a notice of  proposed
rulemaking and the public will be afforded an  opportunity to
comment." Id. at 30,060 col. 1. In the  alternative, the Coast Guard
suggested that it would consider  "other waters" towing and escort
requirements pursuant to  the Ports and Waterways Safety Act of 1972,
as amended by  the Port and Tanker Safety Act of 1978 ("PWSA/PTSA"), 
under which "[t]he Coast Guard has significantly broader  authority."


The Coast Guard issued a final rule in August of 1994. See  33 C.F.R.
pt. 168 (1999). The final rule did not expand  coverage beyond the
statutorily-mentioned areas. In re- sponse to comments nominating
additional waters besides  those named, the Coast Guard stated simply
that such com- ments "will be considered in the separate 'other
waters'  rulemaking project." See Final Rule, 59 Fed. Reg. 42,962, 
42,964 col. 2 (Aug. 19, 1994) (emphasis added). "The separate  'other
waters' rulemaking project" presumably referred to an  ongoing effort,
initiated in 1993, to establish "other waters"  escort requirements
pursuant to the PWSA/PTSA. See Ad- vanced Notice of Proposed
Rulemaking, 58 Fed. Reg. 25,766  (April 27, 1993). The Coast Guard had
chosen the PWSA/ PTSA route, rather than s 4116(c)'s rigid two escort
mini- mum, because "section 4116(c) provides no authority to re- quire
the use of escort vessels for ships other than laden,  single-hulled
oil tankers over 5,000 GT. In contrast, the  PWSA has no such
limitations." Request for Comments, 59  Fed. Reg. 65,741, 65,742 col.
3 (Dec. 21, 1994). To date, the  Coast Guard has not promulgated final
"other waters" escort  requirements. It has since reiterated, however,
that "[e]x- tending escort requirements beyond the OPA 90 mandated 


areas is discretionary." Advanced Notice of Proposed PWSA  Rulemaking,
63 Fed. Reg. 64,937, 64,939 col. 1 (Nov. 24,  1998).


II. Jurisdiction


The instant litigation presents two distinct jurisdictional  issues,
one general and one specific to this case. Citing the  Supreme Court's
recent decision in United States v. Locke,  120 S. Ct. 1135 (2000),
petitioners now suggest that  s 1017(a)'s grant of exclusive
jurisdiction to this court might  apply only to actions challenging
regulations promulgated  pursuant to Title I, and not Title IV, of the
OPA. As such,  this court would not have original jurisdiction to hear
peti- tioners' mandamus claims. See Telecommunications Re- search and
Action Ctr., 750 F.2d 70 (D.C. Cir. 1984) [herein- after TRAC]. For
its part, the Coast Guard argues that  s 1017(a) does apply, but that
petitioners could have, and  therefore should have, brought their
mandamus claims as  separate petitions for review of the earlier ss
4110 and  4116(c) rulemakings. That being the case, the Coast Guard 
claims, petitioners cannot now circumvent s 1017(a)'s 90-day 
jurisdictional time limit for filing challenges to final agency 


Petitioners are wrong in their suggestion that this court  does not
have exclusive jurisdiction over this case pursuant to  s 1017. And
the Coast Guard is wrong in its contention that  petitioners' claims
are untimely.


A. Scope of this court's exclusive jurisdiction under the OPA


Where a statute commits final agency action to review by  this court,
we also retain exclusive jurisdiction "to hear suits  seeking relief
that might affect [our] future statutory power  of review." TRAC, 750
F.2d at 72. This includes mandamus  actions challenging an agency's
unreasonable delay. Id. We  must therefore determine whether the OPA
vests this court  with jurisdiction in the first instance to hear
challenges to  regulations, like those at issue here, promulgated
pursuant to  Title IV of the Act.


Section 1017(a) of the OPA states: "Review of any regula- tion
promulgated under this Act may be had upon application  by any
interested person only in the Circuit Court of Appeals  of the United
States for the District of Columbia." s 1017(a),  104 Stat. at 504
(emphasis added). On its face, the term "this  Act" would seem to
suggest broad application of the review  provision to all titles of
the OPA. Petitioners, however, point  to a possible complication. The
Supreme Court earlier this  year held that s 1018's pre-emption
savings clause-the provi- sion immediately following s 1017 in Title I
of the OPA- applied only to the pre-emptive effect of provisions like
those  contained in Title I, and not those contained in the remainder 
of the Act. See Locke, 120 S. Ct. at 1146. Petitioners argue  that, in
so holding, the Supreme Court interpreted "this Act,"  as used in s
1018, to refer only to Title I of the OPA. Why,  they ask, should it
be interpreted more broadly in the context  of s 1017(a)? Petitioners
fundamentally misunderstand both  the holding and reasoning of


Locke involved a claim that various federal oil cargo stat- utes,
including the OPA, pre-empted the State of Washing- ton's rules
governing tanker vessel manning, operation, and  design. The Court of
Appeals had held that s 1018 of the  OPA effectively saved all state
tanker provisions from its, and  the other statutes', pre-emptive
reach. Section 1018 reads in  pertinent part:


(a) Preservation of State Authorities ... Nothing in this  Act or the
Act of March 3, 1851 shall--


(1) affect, or be construed or interpreted as preempt- ing, the
authority of any State or political subdivision  thereof from imposing
any additional liability or re- quirements with respect to--


(A) the discharge of oil or other pollution by oil  within such State;
or


(B) any removal activities in connection with such a  discharge;


... 


(c) Additional Requirements and Liabilities; Penalties.  Nothing in
this Act ... shall in any way affect, or be 


construed to affect, the authority of the United States or  any State
or political subdivision thereof---


(1) to impose additional liability or additional require- ments; or


(2) to impose, or to determine the amount of, any fine  or penalty
(whether criminal or civil in nature) for any  violation of law;


relating to the discharge, or substantial threat of a  discharge, of
oil.


s 1018, 104 Stat. at 505-06 (codified at 33 U.S.C. s 2718)  (emphasis
added). Relying in large part on Congress' place- ment of the
provision in Title I, the Supreme Court held that  Congress intended
these savings clauses only "to preserve  state laws of a scope similar
to the matters contained in Title  I of OPA." Locke, 120 S. Ct. at
1146. The Court's conclusion  was "fortified" by s 1018(c)'s use of
the phrase "relating to  the discharge, or substantial threat of
discharge, of oil," for  Congress had used these same "key words" in
declaring the  scope of Title I. Id. (citing 33 U.S.C. s 2702(a),
which  codified s 1002(a), 104 Stat. at 489). In other words, Con-
gress intended to save from pre-emption only those State  laws having
to do with liability and compensation regarding  an oil spill. Because
the State provisions at issue dealt with  tanker manning, operation,
and design, rather than liability  and compensation, the Court
concluded that they were sub- ject to pre-emption. Id. at 1148-50.


At no point in its analysis did the Court profess to interpret  the
phrase "this Act" or suggest that it was limited to Title I  of the
OPA. At no point did the Court hold that s 1018  disarmed the
pre-emptive effect of Title I provisions alone.  Rather, the Court
merely held that s 1018 insulates only  those state regulations of the
type contained in Title I,  whether it be from provisions contained in
other titles of the  OPA or any provision contained in one of the
other named  statutes. Because Locke gives us no reason to part from
the  natural interpretation of s 1017(a)'s "this Act," we turn now  to
the jurisdictional claims specific to this case.


B. Effect of earlier rulemakings on present mandamus ac- tion


1. TLPM Device Challenge-s 4110


The Coast Guard asserts that its 1997 temporary, and now- expired,
rulemaking constitutes its final word on s 4110. The  Coast Guard said
as much in its November 1999 Notice of  Completed Action. The
Government does not contend here  that petitioners should have
challenged the 1999 Notice of  Completed Action, nor could it given s
1017(a)'s restriction on  review to final regulations. Rather, the
agency contends that  petitioners' present mandamus action is
tantamount to an  untimely petition for review of the agency's
completed 1997  temporary rulemaking. In other words, according to the
 Coast Guard, petitioners cannot now, over two years after the  1997
rulemaking, attempt to circumvent s 1017(a)'s jurisdic- tional 90-day
filing limit by fashioning their petition as one  for unreasonable
delay. This is a specious argument and we  reject it.


At the outset, it is important to recall what the 1997  temporary
rulemaking did not do. The Coast Guard never  addressed s 4110(b)'s
distinct use and installation mandate,  deferring any action on that
front until compliant equipment  had been identified. See, e.g., 46
C.F.R. s 32.22T-1(c) ("Dur- ing the effective period of this subpart
no owner or operator  is required to install any tank level or
pressure monitoring  device meeting the performance standards of this
subpart  unless required by the Coast Guard in a separate regula-
tion."); 60 Fed. Reg. at 43,427 col. 3 ("Requirements for the 
installation and use of the devices will be proposed separate- ly.").
Nor did the Coast Guard make clear, at any point in  the rulemaking,
that it would not take further action pursuant  to s 4110 upon
expiration of the 1997 temporary regulations.  Rather, the agency
merely said that the "temporary rule  [would] only be in effect for 2
years from the effective date."  62 Fed. Reg. at 14,829 col. 3.


The temporary regulations questioned whether, in light of  phaseout
schedules, it would be "economically feasible" to  require
installation of tank level and pressure monitoring 


devices if such devices were not developed within two years.  Id. But
this question was raised because the agency knew  that the temporary
regulations proposed very high standards,  i.e., standards that
arguably embodied technology-forcing re- quirements that were beyond
the current capacity of the  affected industry. The Coast Guard never
suggested, howev- er, that the standards proposed in the temporary
regulations  were the only viable options to address the statutory
mandate  compelling the agency to establish some sort of rules as to 
both compliance standards and use requirements. Indeed,  the temporary
regulations were an experimental first-step  toward achieving the
required standards and requirements,  nothing more, nothing less. They
certainly did not forewarn  anyone that the Coast Guard meant to say


The Coast Guard is correct that petitioners cannot use the  present
mandamus action to challenge the substance of the  1997 temporary
regulations. See In re United Mine Workers  of America Int'l Union,
190 F.3d 545, 548 (D.C. Cir. 1999);  Florida Power & Light Co. v. EPA,
145 F.3d 1414, 1419 (D.C.  Cir. 1998). Petitioners are not, however,
challenging any- thing that the Coast Guard did in 1997. Nor do they
chal- lenge the Coast Guard's 1997 decision not to take certain 
actions or implement permanent regulations at that time.  Rather,
petitioners challenge what the Coast Guard has since  failed to do: it
has never established permanent s 4110(a)  regulations; and it has put
off, and now disregards, address- ing s 4110(b)'s use and installation


"[A]n agency's failure to regulate more comprehensively  [than it has]
is not ordinarily a basis for concluding that the  regulations already
promulgated are invalid." Hazardous  Waste Treatment Council v. EPA,
861 F.2d 277, 287 (D.C.  Cir. 1988) [hereinafter HWTC]. Likewise, an
agency's pro- nouncement of its intent to defer or to engage in future
 rulemaking generally does not constitute final agency action 
reviewable by this court. See American Portland Cement  Alliance v.
EPA, 101 F.3d 772, 777 (D.C. Cir. 1996); see also  Florida P & L, 145
F.3d at 1418 (establishing three-factor  test for identifying
reviewable "final" regulations). Nothing  in s 1017(a), the OPA's
judicial review provision, suggests 


departure from these general principles. With this in mind, 
petitioners argue that, had they challenged the deferral or 
"incompleteness" of the rules as the Coast Guard claims they  should
have, this court would have dismissed their petition on  ripeness
grounds. See American Petroleum Inst. v. EPA,  216 F.3d 50, 68-69
(D.C. Cir. 2000) ("A decision to defer has  no binding effect on the
parties or on EPA's ability to issue a  ruling in the future."); HWTC,
861 F.2d at 287 ("Unless the  agency's first step takes it down a path
that forecloses more  comprehensive regulation, the first step is not
assailable  merely because the agency failed to take a second.").


We are guided by our recent United Mine Workers deci- sion. There, the
union sought an order compelling the agen- cy to establish permissible
exposure limits ("PELs") for  diesel exhaust from mining equipment.
The Mine Safety and  Health Administration ("MSHA") argued, much as
the Coast  Guard does here, that the union should have raised the PEL 
issue in the context of an earlier equipment standards rule- making.
The court disagreed:


From the outset, the agency disavowed any intention to  consider new
PELs for the diesel exhaust gases during  its diesel equipment
rulemaking, stating that the PELs  would be reexamined as part of its
omnibus air quality  rulemaking. The UMWA does not take issue with
that  decision, or any other aspect of the diesel equipment  rules.
Although the PELs are plainly related to the  equipment rules, since
the latter incorporate them for  certain equipment standards, the
UMWA's challenge is  to the content of the PELs and not to the
agency's  decision to incorporate them into the equipment rules. 
Indeed, had the UMWA challenged the diesel equipment  rules on the
ground that MSHA had failed to include  revised PELs for diesel
exhaust gases, we might well  have denied its petition as premature.


United Mine Workers, 190 F.3d at 548-49 (citations omitted).  Here,
too, petitioners do not challenge the substance of the  earlier
regulations. Here, too, the Coast Guard clearly took  only temporary,
experimental action on s 4110(a) standards 


and deferred s 4110(b) use and installation regulations until 
compliant equipment had been located. By adopting a tem- porary s
4110(a) standard, the Coast Guard set in motion a  two-year trial
period during which such equipment might be  invented. Petitioners
could not have predicted that none  would be found. Nor did
petitioners have good reason to  suppose that the absence of certain
devices would result in no  standards or requirements whatsoever.


Despite the express incompleteness of the temporary regu- lations, and
despite any clear warning that it would abandon  s 4110 rulemaking
altogether following sunset, the Coast  Guard argues that petitioners
still should have construed the  1997 rulemaking as the agency's final
action on s 4110. This  is so, says the Coast Guard, because the
statutory deadline  for agency action had long since passed. This
argument is  wholly unconvincing.


The Coast Guard points us to Hercules Inc. v. EPA, 938  F.2d 276 (D.C.
Cir. 1991). There, we recognized a limited  exception to the general
rule against reviewing the incom- pleteness of a regulation: "when the
statutory deadline for  issuing regulations has passed, the
promulgated regulation  must be deemed the agency's 'complete response
in compli- ance with the statutory requirements' ... [and] 'even if
[the  agency] promulgates additional ... rules sometime in the 
future, petitioners' claim that existing final regulations are 
unlawful remains reviewable by this court.' " Id. at 282  (emphasis in
original) (quoting Colorado v. Dep't of Interior,  880 F.2d 481,
485-86 (D.C. Cir. 1989)). Grabbing hold of the  phrase "must be
deemed," the Coast Guard attempts to turn  s 4110's clear and
long-passed deadlines--the very concern  animating petitioners'
complaints--on their head. This argu- ment resting on Hercules


In Sierra Club v. EPA, 992 F.2d 337 (D.C. Cir. 1993), we  held that
passage of a statutory deadline rendered an agen- cy's action final
only when "the respondent agencies them- selves considered their
actions to be complete and sufficient  responses to the relevant
statutory requirements." Id. at 


346. Though the statutory deadline for promulgating regula- tions had
passed, the court held that,


[f]ar from claiming that its actions are complete, the  Agency
explicitly states its intention to issue revised  criteria for
non-municipal facilities when it has the data  necessary to do so. In
such circumstances, it would be  incongruous to categorize the
Agency's rule as the 'final'  regulation concerning the issue of
non-municipal facili- ties.


Id. at 347. Likewise, in the present case, the 1997 temporary 
regulations explicitly stated the Coast Guard's intention to  defer
implementation of permanent s 4110(a) compliance  standards and to
delay rulemaking on s 4110(b) require- ments.


In short, under Sierra Club, it is doubtful whether petition- ers could
have challenged the 1997 temporary regulations, for  such a challenge
would have appeared premature. But this  really is beside the point in
this case. Petitioners do not here  challenge the 1997 temporary
regulations, either for what  they did or did not do; those
regulations have expired.  Whatever issues could have been raised
regarding their legal- ity are moot. What is at issue in this case is
the absence of  any regulations under s 4110. The statute compels the 
agency to establish both compliance standards and use re- quirements.
There are no such standards or requirements in  existence-none-and the
agency has no present intention to  promulgate any. Petitioners argue,
rather convincingly, that  the agency's current
"we-will-not-promulgate-regulations" po- sition is a blatant violation
of the Act. That is the question  that is before this court. The
issues that petitioners have  raised are timely and they are fully
cognizable in connection  with their request for mandamus relief.


2. "Other Waters" Challenge-s 4116(c)


Petitioners interpret the use of the term "including" in  s 4116(c) to
require the Coast Guard to initiate rulemaking to  define "other
waters" to be included with the three named  areas for which
dual-escort towing regulations must be imple-


mented. Though the Coast Guard, by its 1994 rulemaking,  established
final dual-escort requirements for the specifically- named areas, it
has not yet initiated rulemaking extending  the requirements to "other
waters." Petitioners challenge  this ongoing failure. As with s 4110,
the Coast Guard argues  that petitioners should have brought the
present challenge in  a petition for review of the earlier s 4116(c)
rulemaking. For  many of the reasons articulated above, we again
disagree-- petitioners are not challenging the 1994 rulemaking, but 
rather the Coast Guard's failure to follow through on express- ly
deferred and, petitioners argue, mandated promises. Peti- tioners'
challenge is not untimely. We take up the issue of  whether s 4116(c)
indeed contains such an "other waters"  requirement in the next


III. Merits


Our consideration of any and all mandamus actions starts  from the
premise that issuance of the writ is an extraordinary  remedy,
reserved only for the most transparent violations of a  clear duty to
act. In the case of agency inaction, we not only  must satisfy
ourselves that there indeed exists such a duty,  but that the agency
has "unreasonably delayed" the contem- plated action. See
Administrative Procedure Act, 5 U.S.C.  s 706(1) (1994); see also 5
U.S.C. s 555(b) (1994). This court  analyzes unreasonable delay claims
under the now-familiar  criteria set forth in TRAC:


(1) the time agencies take to make decisions must be  governed by a
"rule of reason"; (2) where Congress has  provided a timetable or
other indication of the speed with  which it expects the agency to
proceed in the enabling  statute, that statutory scheme may supply
content for  this rule of reason; (3) delays that might be reasonable 
in the sphere of economic regulation are less tolerable  when human
health and welfare are at stake; (4) the  court should consider the
effect of expediting delayed  action on agency activities of a higher
or competing  priority; (5) the court should also take into account
the  nature and extent of the interests prejudiced by delay; 


(6) the court need not "find any impropriety lurking  behind agency
lassitude in order to hold that agency  action is unreasonably


United Mine Workers, 190 F.3d at 549 (quoting TRAC, 750  F.2d at 80).
We take ss 4110 and 4116 in reverse order.


We disagree with petitioners that, by using the term "in- cluding"
before the three specifically-named areas, s 4116(c)  places a clear
and mandatory duty on the Coast Guard to  undertake "other waters"
rulemaking. Petitioners do not  provide any parameters or criteria for
the hypothetical set of  "other waters." Must it contain only one
unnamed area?  Two? When asked at oral argument, counsel for
petitioners  could not identify a single additional area compelled by 
s 4116(c), nor could we have countenanced one had they done  so.
Petitioners' utter inability to give a coherent account of  what a
mandamus order might look like belies their assertion  that the
provision in fact contains a clear, non-discretionary  duty to act. As
with similar listing "requirements," petition- ers remain free to
petition the Coast Guard for a rulemaking  to add particular "other
waters" should it alight on justifiable  reasons for so doing. Denial
of such a petition would then be  subject to review.


Sections 4110(a) and (b) stand in stark contrast to  s 4116(c). The
statute indisputably commands the Coast  Guard to establish some sort
of compliance standards and use  requirements by August 1991. There
are no such standards  or requirements, and the Coast Guard has
disavowed any  further action. The Coast Guard contends only that any 
attempt now to promulgate compliance standards and use  requirements
will run into the same practical problems en- countered in the 1997
rulemaking--namely, that no equip- ment currently exists to meet the
necessary standards. This  argument misses the point.


Section 4110(a) commands the Coast Guard to establish  compliance
standards. There are none. And s 4110(b) com- mands the Coast Guard to
establish requirements regarding  the installation and use of
compliant equipment. There are  none. The agency cannot avoid these
commands by pointing 


to too-stringent compliance standards that have expired.  Neither the
Coast Guard in its prior rulemakings, nor govern- ment counsel at
argument, dispute that functioning TLPM  devices are available on the
market. Nor, as a result, do they  dispute that some sort of minimum s
4110(a) standard is  possible--whether it be a less-stringent numbers
standard or  a simple technology-based standard.


The Coast Guard has not disputed petitioners' arguments  regarding the
specific TRAC factors, and we do not pause to  analyze them. Suffice
it to say that all favor granting manda- mus: a nine-year delay is
unreasonable given a clear one-year  time line and the Coast Guard's
admission that it will do no  more; the delayed regulations implicate
important environ- mental concerns; and the Coast Guard has not shown
that  expedited rulemaking here will interfere with other, higher 
priority activities. We will, therefore, retain jurisdiction over  the
case until final agency action disposes of the Coast  Guard's
obligations under s 4110 of the OPA.


Mandamus pursuant to TRAC is an extraordinary remedy,  reserved only
for extraordinary circumstances. This is just  such a circumstance. We
are here faced with a clear statuto- ry mandate, a deadline nine-years
ignored, and an agency  that has admitted its continuing
recalcitrance. For the fore- going reasons, we hereby direct the Coast
Guard to under- take prompt s 4110 rulemaking.


So ordered.