by the challenged agency action." 565 F.2d at 716. The showing has clearly been established. Conversely, it is apparent that plaintiffs are within the class of people who would benefit if declaratory and injunctive relief were granted.
Moreover, several factors strengthen plaintiffs' standing position. Because plaintiffs seek to enjoin all future transportation of Alaskan oil to the United States Via the Virgin Islands by foreign tankers, they need only show a substantial probability that at some point in the future one of their members would have been employed to carry the Alaskan oil. An association may maintain standing on behalf of its members, if it sufficiently alleges that its members, or some of them, have suffered "injury in fact." See Sierra Club v. Morton, 405 U.S. 727, 739, 92 S. Ct. 1361, 31 L. Ed. 2d 636 (1972). Given the nature of the relief sought and the number of members each plaintiff association or union represents, it is clear the injury is not remote and is "capable of direct redress by the court through the requested remedy." Public Citizen, at -- -, 565 F.2d at 715.
Plaintiffs have also sufficiently met the second Data Processing standard the zone of interests test as recently interpreted by the Court of Appeals for this Circuit in Tax Analysts and Advocates et al. v. Blumenthal, 184 U.S.App.D.C. 238, 566 F.2d 130 (1977). The court, while acknowledging that the zone of interest is a generous standard, established a means of ascertaining the parties to be within "the zone of interests to be protected or regulated by the statute." The court required district courts to consider the statutory section challenged rather than other sections of the statute to determine the interests that are arguably to be regulated or protected. It noted that this approach was particularly appropriate in the context of the case before it, because the statute involved, the Internal Revenue Code, is extremely complex and does not have a "single, unified purpose." At 245, 566 F.2d at 141. Second, it stated that the interest should be "arguable from the face of the statute." At 250, 566 F.2d at 142.
Upon application of these principles, plaintiff and intervenor-plaintiffs fall within the zone of interests to be protected by the Jones Act. The Jones Act is guided by a unified purpose. It is thus appropriate to examine the preamble to the Act that states the purpose underlying the statute: "It is declared to be the policy of the United States to do whatever may be necessary to develop and encourage the maintenance of such a merchant marine." 46 U.S.C. § 861 (1970). It is apparent that Congress considered American ship owners and operators, shipbuilders, and seamen to be protected by the statute.
The Court therefore concludes that plaintiff AMA and intervenors Shipbuilders Council and Seafarers Union have satisfied the standing requisites.
AVAILABILITY OF JUDICIAL REVIEW
Defendant Secretary urges dismissal on the ground that plaintiffs have failed to allege that any action or inaction by the Secretary has caused them injury. Defendant apparently contends that there is no final action by the Secretary reviewable by a court under Section 704 of the APA. The Secretary apparently also contends that this case is not ripe for adjudication.
In support of this position the Secretary argues that there has not yet been a violation of the Jones Act. According to the Secretary, a violation occurs only when there has been a "transportation" between points within the coastwise laws in other words, only when the goods arrive and are unloaded in a United States port. The Secretary maintains that he has no authority under the statute and regulations to detain a foreign tanker or otherwise act to enforce the Jones Act until there has been a violation as defined above. Moreover, the sole mechanism for enforcement provided under the statutes and regulations is forfeiture of the goods when the goods arrive in the United States. 46 U.S.C. § 883 (1970).
It appears that the Secretary's analysis of the statutory scheme is correct. Neither the statute nor the regulations give the Secretary or his delegates authority to prevent the Hercules or any other foreign-flag tanker carrying crude oil from Alaska to the Virgin Islands from departing Alaska, entering a port in the Virgin Islands, or entering a port in the continental United States, even if such transport were deemed a violation of the Jones Act.
In particular, the Secretary was required to issue clearance at Valdez, pursuant to 41 U.S.C. § 91 and 19 C.F.R. § 4.84, if the master of the vessel presented to the collector a manifest in accordance with 19 C.F.R. § 4.61. Section 91 of Title 46 provides:
The master or person having the charge or command of any vessel bound to a foreign port shall deliver to the collector of the district from which such vessel is about to depart a manifest of all the cargo on board the same, and the value thereof, by him subscribed, and shall swear to the truth thereof; whereupon the collector shall grant a clearance for such vessel . . . .
Section 4.84 provides that if, as in the instant case, the master of a foreign vessel, departing from a port in noncontiguous territory of the United States for another port in noncontiguous territory of the United States, submits a manifest in accordance with 19 C.F.R. § 4.61, then "a clearance shall be granted." Section 4.61 requires the master to verify compliance with various statutes and regulations, none of which pertain to the Jones Act. Since plaintiffs have not alleged that the requirements of the manifest were not met and these provisions do not permit a clearance to be withheld on the basis that the Jones Act may be violated, plaintiffs have no basis to challenge the issuance of the clearance.
Plaintiffs similarly fail to provide statutory authority upon which the Secretary could rely to deny entry in a port in the Virgin Islands or the United States. The sole enforcement mechanism available to the Secretary under the regulatory scheme is forfeiture pursuant to 46 U.S.C. § 883.
Under this analysis of the regulatory scheme, both ripeness and finality problems are presented. Notwithstanding the fact that the Jones Act has not yet technically been violated, the Court declines to dismiss this case on the grounds of ripeness. The Court bases it conclusion upon the standards and policy established in Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S. Ct. 1507, 18 L. Ed. 2d 681 (1967). According to the Abbott court, the basic rationale of the ripeness doctrine is to "prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies . . . ." Id. at 148, 87 S. Ct. at 1515. It is clear from the nature of the facts, parties, and interests involved that the instant controversy is not merely abstract. Moreover, this case withstands the two-part test set forth in Abbott, which requires the "evaluation of the issues for judicial decision and the hardship to the parties of withholding court consideration." Id. at 149, 87 S. Ct. at 1516. The issues here involve the interpretation of a statutory provision and the effect of a recent enactment upon a prior statutory provision. The factual matters in dispute pertaining to the Hess refining process will not be different at the time the goods arrive in the United States. Finally, the Court finds that plaintiffs and defendant Hess have sufficiently demonstrated the importance to their respective interests of resolving the issues immediately.
In light of the above analysis of the enforcement scheme under the Jones Act, the Secretary's claim that no final agency action or inaction within the meaning of Section 704 of the APA has been alleged is more compelling. Indeed, plaintiffs have not clearly articulated the agency action upon which their request for judicial review is based. Apparently, they consider the grant of the clearance by the collector to be reviewable final agency action. Particularly since the issuance of a clearance is a nondiscretionary act if a manifest in compliance with the regulations is presented to the collector, the issuance of the clearance does not appear to be final agency action within the meaning of section 704. While final action may be informal action, courts have generally required that one of the following elements be present: direct and immediate impact on the regulated industries as a result of this action; reliance by the regulated parties on the action; the agency action is the final agency consideration of the matter or represents the final, crystallized agency position on the matter; a high level agency official is directly responsible for the action. See, e. g., Abbott Laboratories v. Gardner, 387 U.S. 136, 149-53, 87 S. Ct. 1507, 18 L. Ed. 2d 681 (1967); National Automatic Laundry and Cleaning Council v. Shultz, 143 U.S.App.D.C. 274, 283-287, 443 F.2d 689, 698-702 (1971). The instant agency action, the issuance of the clearance by the Customs inspector, seemingly contains none of these elements.
Assuming, however, that the issuance of the clearance reflects the definitive agency position on the applicability of the Jones Act to the instant transportation and thus is final agency action reviewable under the APA by this Court at this time, the Court must nevertheless deny the plaintiffs' request for relief. First, the Court concludes that the Magnuson Amendment to the Ports and Waterways Safety Act, 46 U.S.C.A. § 391a(7)(C) (Supp.1977), does not implicitly limit the application of the Virgin Islands exemption as it applies to Alaskan oil. Second, the Court finds that continuity of transportation is broken if the merchandise is changed into a new and different product at an intermediate exempt port, and crude oil processed at the Hess refinery is transformed into new and different products. Thus, the transportation of Alaskan crude oil on the Hercules from Valdez, Alaska to the Virgin Islands does not violate the Jones Act.
A. The Effect of the Magnuson Amendment on the Jones Act.
Plaintiff-intervenor Seafarers Union contends that the 1973 Magnuson Amendment to the Ports and Waterways Safety Act, 46 U.S.C.A. § 391a(7)(C) (Supp.1977), implicitly limits the application of the Virgin Islands exemption to the Jones Act, 46 U.S.C. § 877 (1970). The Magnuson Amendment was enacted as part of a statute that regulates various aspects of the trans-Alaska delivery system. Pub.L. 93-153. Section 391a of Title 46 generally relates to the rule and regulations to be issued by the Secretary of Transportation; the regulations were to set forth minimum standards of design, construction, alteration, and repair for the purpose of protecting the marine environment. Plaintiff Seafarers Union relies on the amendment, indicated by the underscored portion of the following quote, as evidence of the Congressional intent to limit the Virgin Islands exemption:
(C) Rules and regulations published pursuant to subsection (7)(A) shall be effective not earlier than January 1, 1974, With respect to foreign vessels and United States-flag vessels operating in the foreign trade, unless the Secretary shall earlier establish rules and regulations consonant with international treaty, convention, or agreement, which generally address the regulation of similar topics for the protection of the marine environment. In absence of the promulgation of such rules and regulations consonant with international treaty, convention, or agreement, the Secretary shall establish an effective date not later than January 1, 1976, With respect to foreign vessels and United States-flag vessels operating in the foreign trade, for rules and regulations previously published pursuant to this subsection (7) which he then deems appropriate. Rules and regulations published pursuant to subsection (7)(A) shall be effective not later than June 30, 1974, with respect to United States-flag vessels engaged in the coastwise trade.