In re: Bluewater Network (D.C. Cir. 2000)

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 16, 2000 Decided December 22, 2000

No. 99-1502

In re: Bluewater Network and Ocean Advocates,
Petitioners

---------

Howard M. Crystal argued the cause for petitioners. With
him on the briefs was Eric R. Glitzenstein.

Eileen T. McDonough, Attorney, U.S. Department of Jus-
tice, argued the cause for respondents. With her on the brief
was Lois J. Schiffer, Assistant Attorney General.

Before: Edwards, Chief Judge, Sentelle and Henderson,
Circuit Judges.

Opinion for the Court filed by Chief Judge Edwards.

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 interpretation here.

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 issue regulations.

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. 15, 1994).

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 detection." Id. col. 2.

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 U.S.C. s 3703a.

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." Id. at 30,060 col. 2.

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
action.

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.

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;

...

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 "this is it."

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 requirements.

"[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 fails.

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 section.

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 delayed."

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.