United States Court of Appeals


Argued November 16, 2000 Decided December 22, 2000 

No. 99-1502

In re: Bluewater Network and Ocean Advocates, 


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 

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-

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, 

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.

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 


(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-

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-

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-

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.