234 F.3d 1305 (D.C. Cir. 2000)
In re:  Bluewater Network and Ocean Advocates, Petitioners
No. 99-1502
United States Court of Appeals  FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 16, 2000Decided December 22, 2000

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 Justice, 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:


1
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 responded 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 promulgate 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.


2
One of the contested statutory provisions--s 4110--requires 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 undertake any rule making in the future, citing a temporary 1997  rule making that expired in 1999.  The Coast Guard's earlier  temporary compliance standards are of no moment.  Petitioners' claim here, with which we agree, is that the agency's  failure to pursue rule making 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.


3
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 rule making in which it promulgated regulations concerning the three named areas, the Coast Guard asserts that  petitioners should have brought their mandamus claims regarding regulation of "other waters" in a petition for review  of the earlier rule making.  However, as with § 4110, petitioners are not challenging the earlier rule making;  and the Coast  Guard gave interested parties no reason to believe that the  earlier regulations covering § 4116(c) would be the final word  on the matter.  Nonetheless, we do agree with the Coast Guard that § 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 § 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 rulemaking when and if they alight on candidates for inclusion.


4
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 § 4110 of the Act.

I. Background
A. The Oil Pollution Act of 1990

5
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 §§ 1001-1020, 104 Stat. at  486-506 (codified as amended at 33 U.S.C. §§ 2701-2719  (1994)).  Included among these provisions is § 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 § 1017(a),  104 Stat. at 504 (codified at 33 U.S.C. § 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  §§ 4101-4306, 104 Stat. at 509-541 (codified in scattered  sections of 46 U.S.C. (1994)).  Two such preventative provisions are at issue in this case.


6
The first, § 4110, consists of two parts.  See § 4110, 104  Stat. at 515 (codified at 46 U.S.C. § 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 § 4110(a), 104


7
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 potential 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)." § 4110(b),  104 Stat. at 515.  The Coast Guard has interpreted § 4110(b)  to apply only to single, and not double, hulled tankers.  See  46 C.F.R. § 32.22T-1(b) (1998).  Petitioners do not challenge  that interpretation here.


8
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 escorted by at least two towing vessels."  § 4116(c), 104 Stat. at 523  (codified at 46 U.S.C. § 3703 note) (emphasis added).  Thus,  the Act names three areas specifically for which the Coast  Guard must issue regulations.


9
B. Rulemaking and Regulatory History of the Two Provisions


10
Petitioners filed the present mandamus petition in December 1999, seeking to compel the Coast Guard to comply with  its obligations under both § 4110 and § 4116(c) of the OPA. If the Coast Guard had simply disregarded both of the  provisions, deciding instead to delay indefinitely any rulemaking 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 promulgated 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 purportedly taken pursuant to § 4110 and § 4116.


11
1. § 4110-Overfill and Tank Level or Pressure Monitoring Devices


12
Approximately three months before the statutorily-imposed  deadline, the Coast Guard issued an advanced notice of  proposed rulemaking seeking comments and suggestions regarding 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 discharge occurr[ed]."  Notice of Availability of Technical Feasibility 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).


13
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 § 4110(a), leaving  questions of installation and use of compliant devices, pursuant to § 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 contents 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 environment."  Id.  The Coast Guard acknowledged that "currently available devices may not meet the proposed standards  for meaningful leak detection;  however, establishing the standards may lead to development of devices which will provide  appropriate leak detection."  Id. col. 2.


14
In March 1997, nearly six years after the statutory deadline, 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. §§ 32.22T-1 & .22T-5). The rule did not require installation or use of TLPM devices  unless and until § 4110(a) compliant technology had been  invented and the appropriate § 4110(b) rulemaking undertaken.  See 46 C.F.R. § 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.


15
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 § 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 accurate 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 § 4110's two provisions.  Moreover, the Coast Guard never  even attempted rulemaking pursuant § 4110(b).

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

16
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 contemplated applying the dual-escort requirement only to those three areas specifically mentioned in § 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 comments 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.


17
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 response to comments nominating additional waters besides  those named, the Coast Guard stated simply that such comments "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 Advanced Notice of Proposed Rulemaking, 58 Fed. Reg. 25,766  (April 27, 1993).  The Coast Guard had chosen the PWSA/ PTSA route, rather than § 4116(c)'s rigid two escort minimum, because "section 4116(c) provides no authority to require 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]xtending 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

18
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  § 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 petitioners' mandamus claims.  See Telecommunications Research and Action Ctr., 750 F.2d 70 (D.C. Cir. 1984) [hereinafter TRAC].  For its part, the Coast Guard argues that  § 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 §§ 4110 and  4116(c) rulemakings.  That being the case, the Coast Guard  claims, petitioners cannot now circumvent § 1017(a)'s 90-day  jurisdictional time limit for filing challenges to final agency  action.


19
Petitioners are wrong in their suggestion that this court  does not have exclusive jurisdiction over this case pursuant to  § 1017.  And the Coast Guard is wrong in its contention that  petitioners' claims are untimely.


20
A. Scope of this court's exclusive jurisdiction under the OPA


21
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.


22
Section 1017(a) of the OPA states:  "Review of any regulation 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."  § 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 § 1018's pre-emption savings clause-the provision immediately following § 1017 in Title I of the OPAapplied 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 § 1018, to refer only to Title I of the OPA.  Why,  they ask, should it be interpreted more broadly in the context  of § 1017(a)?  Petitioners fundamentally misunderstand both  the holding and reasoning of Locke.


23
Locke involved a claim that various federal oil cargo statutes, including the OPA, pre-empted the State of Washington's rules governing tanker vessel manning, operation, and  design.  The Court of Appeals had held that § 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:


24
(a) Preservation of State Authorities ... Nothing in this Act or the Act of March 3, 1851 shall


25
(1) affect, or be construed or interpreted as preempting, the authority of any State or political subdivision thereof from imposing any additional liability or requirements with respect to


26
(A) the discharge of oil or other pollution by oil within such State;  or


27
(B) any removal activities in connection with such a discharge; ...


28
(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


29
(1) to impose additional liability or additional requirements;  or


30
(2) to impose, or to determine the amount of, any fine or penalty (whether criminal or civil in nature) for any violation of law;


31
relating to the discharge, or substantial threat of a discharge, of oil.


32
§ 1018, 104 Stat. at 505-06 (codified at 33 U.S.C. § 2718)  (emphasis added).  Relying in large part on Congress' placement 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 § 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. § 2702(a), which  codified § 1002(a), 104 Stat. at 489).  In other words, Congress 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 subject to pre-emption.  Id. at 1148-50.


33
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 § 1018  disarmed the pre-emptive effect of Title I provisions alone. Rather, the Court merely held that § 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 § 1017(a)'s "this Act," we turn now  to the jurisdictional claims specific to this case.


34
B. Effect of earlier rulemakings on present mandamus action


35
1. TLPM Device Challenge-s 4110 The Coast Guard asserts that its 1997 temporary, and nowexpired, rulemaking constitutes its final word on § 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 § 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 § 1017(a)'s jurisdictional 90-day filing limit by fashioning their petition as one  for unreasonable delay.  This is a specious argument and we  reject it.


36
At the outset, it is important to recall what the 1997  temporary rulemaking did not do.  The Coast Guard never  addressed § 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. § 32.22T-1(c) ("During 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 regulation.");  60 Fed. Reg. at 43,427 col. 3 ("Requirements for the  installation and use of the devices will be proposed separately.").  Nor did the Coast Guard make clear, at any point in  the rulemaking, that it would not take further action pursuant  to § 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.


37
The temporary regulations questioned whether, in light of  phase out 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 requirements that were beyond the current capacity of the  affected industry.  The Coast Guard never suggested, however, 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."


38
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 anything that theCoast Guard did in 1997.  Nor do they challenge 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 § 4110(a)  regulations;  and it has put off, and now disregards, addressing § 4110(b)'s use and installation requirements.


39
"[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 pronouncement 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 § 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.").


40
We are guided by our recent United Mine Workers decision.  There, the union sought an order compelling the agency 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 rulemaking.  The court disagreed:


41
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.


42
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 § 4110(a) standards and deferred § 4110(b) use and installation regulations until  compliant equipment had been located.  By adopting a temporary § 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.


43
Despite the express incompleteness of the temporary regulations, and despite any clear warning that it would abandon  § 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 § 4110.  This  is so, says the Coast Guard, because the statutory deadline  for agency action had long since passed.  This argument is  wholly unconvincing.


44
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 incompleteness of a regulation:  "when the statutory deadline for  issuing regulations has passed, the promulgated regulation  must be deemed the agency's 'complete response in compliance 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  § 4110's clear and long-passed deadlines--the very concern  animating petitioners' complaints--on their head.  This argument resting on Hercules fails.


45
In Sierra Club v. EPA, 992 F.2d 337 (D.C. Cir. 1993), we  held that passage of a statutory deadline rendered an agency's action final only when "the respondent agencies themselves considered their actions to be complete and sufficient  responses to the relevant statutory requirements."  Id. at 346.  Though the statutory deadline for promulgating regulations had passed, the court held that,


46
[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 facilities.


47
Id. at 347.  Likewise, in the present case, the 1997 temporary  regulations explicitly stated the Coast Guard's intention to  defer implementation of permanent § 4110(a) compliance  standards and to delay rulemaking on § 4110(b) requirements.


48
In short, under Sierra Club, it is doubtful whether petitioners 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 legality are moot.  What is at issue in this case is the absence of  any regulations under § 4110.  The statute compels the  agency to establish both compliance standards and use requirements.  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" position 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.

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

49
Petitioners interpret the use of the term "including" in  § 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 implemented.  Though the Coast Guard, by its 1994 rulemaking,  established final dual-escort requirements for the specificallynamed areas, it has not yet initiated rulemaking extending  the requirements to "other waters."  Petitioners challenge  this ongoing failure.  As with § 4110, the Coast Guard argues  that petitioners should have brought the present challenge in  a petition for review of the earlier § 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 expressly deferred and, petitioners argue, mandated promises.  Petitioners' challenge is not untimely.  We take up the issue of  whether § 4116(c) indeed contains such an "other waters"  requirement in the next section.

III. Merits

50
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 contemplated action.  See Administrative Procedure Act, 5 U.S.C.  § 706(1) (1994);  see also 5 U.S.C. § 555(b) (1994).  This court  analyzes unreasonable delay claims under the now-familiar  criteria set forth in TRAC:


51
(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."


52
United Mine Workers, 190 F.3d at 549 (quoting TRAC, 750  F.2d at 80).  We take §§ 4110 and 4116 in reverse order.


53
We disagree with petitioners that, by using the term "including" before the three specifically-named areas, § 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  § 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," petitioners 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.


54
Sections 4110(a) and (b) stand in stark contrast to  § 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 encountered in the 1997 rulemaking--namely, that no equipment 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 § 4110(b) commands 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 government 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 § 4110(a) standard is  possible--whether it be a less-stringent numbers standard or  a simple technology-based standard.


55
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 mandamus:  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 environmental 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 § 4110 of the OPA.


56
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 statutory mandate, a deadline nine-years ignored, and an agency  that has admitted its continuing recalcitrance.  For the foregoing reasons, we hereby direct the Coast Guard to undertake prompt § 4110 rulemaking.


57
So ordered.

