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May 4, 1983

Elizabeth H. DOLE, et al., Defendants

The opinion of the court was delivered by: GREENE

 HAROLD H. GREENE, District Judge.

 Merchant vessels that are subject to the United States Coast Guard inspection and certification requirements must carry Coast Guard-approved lifesaving equipment (such as inflatable liferafts, lifeboats, and various lifeboat equipment). 46 C.F.R. Part 160 mandates that before any such lifesaving equipment on Coast Guard-inspected vessels may be installed, the preliminary plans and design specifications must be submitted for a "pre-manufacture" inspection. The regulations also require "production" inspections of approved equipment in the presence of a Coast Guard marine inspector.

 In 1979, new procedures for testing lifesaving equipment were adopted. See 46 C.F.R. Part 159; 44 Fed.Reg. 73,038 (Dec. 17, 1979). These regulations allow the Commandant of the Coast Guard to require that the factory testing of lifesaving equipment be performed by independent laboratories, or in some cases by the manufacturers themselves, rather than by Coast Guard marine inspectors themselves. Because such inspectors had not previously been available in foreign countries, the Part 159 regulations had the effect of permitting Coast Guard approval of foreign lifesaving equipment for the first time.

 The Part 159 regulations do not automatically adopt the independent laboratory testing procedures for all items of lifesaving equipment described in Part 160, however. Instead, Part 159.001-7 provides

The Commandant may substitute the procedures of this part for the procedures in any other part of this subchapter. Each person known to be affected by the substitution shall be informed that the procedures in this party apply.

 46 C.F.R. Part 159.001-7. Pursuant to this provision, the Coast Guard gradually began to bring various items of Part 160 lifesaving equipment under the independent laboratory inspection provisions of Part 159. *fn1"

 On March 3, 1982, the Commandant of the Coast Guard notified all domestic and foreign manufacturers of inflatable liferafts that the Part 159 inspection procedures would be substituted for liferafts as of October 1, 1982, and that the manufacturers would thereafter have to make arrangements for inspection of such equipment by independent laboratories. Lifeboats and associated lifeboat equipment (i.e., winches, release gear, and hand-propelled gear) are scheduled to come under the independent laboratory procedure of Part 159 as of October 1, 1983 on a voluntary basis, and as of October 1, 1984 on a mandatory basis (at which time Coast Guard marine inspectors will no longer be available for inspection services).

 In a motion for preliminary injunction filed simultaneously with the complaint in this action, plaintiff -- which represents a number of manufacturers of lifesaving equipment in the United States -- seeks an order prohibiting the defendants from accepting as valid any inspection of liferafts, lifeboats, or lifeboat equipment performed under the Part 159 regulations. *fn2" Plaintiff's primary contention is that the Part 159 inspection procedures may not be instituted for such lifesaving equipment without prior notice and opportunity for public comment in accordance with the Administrative Procedure Act, 5 U.S.C. § 553.

 For the reasons stated below, the Court finds that plaintiff has made a strong showing of eventual success on the merits but that irreparable injury has not been demonstrated.

 While the notice and comment procedures of 5 U.S.C. § 553 were complied with when the Part 159 regulations were proposed in 1978, the preamble to the Notice of Proposed Rulemaking contained the following language:

The procedures under this program would eventually affect all the lifesaving equipment specifications in part 160 except those for lifeboats, including disengaging apparatus and hand-propelling gear, inflatable liferafts, winches, and davits, which may be considered by the Coast Guard at a later date.

 43 Fed.Reg. 49440, 49441 (Oct. 23, 1978). *fn3" Defendant argues that this language was meant merely to indicate that the Coast Guard was not committing itself at that time to a particular timetable with respect to the extension of the Part 159 procedures to inflatable liferafts, lifeboats, and lifeboat equipment, but that such an extension was clearly forecast. The relevant question, however, is not intent but adequate notice. In view of the express exception for liferafts and lifeboats contained in the preamble of the Notice, and the fact that it was nowhere stated in the Notice that the Part 159 procedures might be extended to liferafts and lifeboats without a de novo rulemaking, it cannot be said that interested parties had fair notice that the 1978-79 rulemaking *fn4" would provide the basis for applying the new inspection procedures of Part 159 life rafts, lifeboats, and lifeboat equipment. *fn5" If anything, the Notice seemed to indicate the opposite. *fn6" Thus, the notice and comment requirements of 5 U.S.C. § 553 were not satisfied. *fn7" See, e.g., Wagner Electric Corp. v. Volpe, 466 F.2d 1013, 1014 (3d Cir.1972) (adequate notice for purposes of section 553 means more than notice which would alert only the most knowledgeable reader to the scope and purpose of the proposed rule).

 Despite the showing made by plaintiff on the merits of its case, the Court will not issue a preliminary injunction because plaintiff has not demonstrated that it will be irreparably harmed in the absence of this injunctive relief. The Coast Guard agreed to postpone the mandatory use of the Part 159 procedures. See note 2 supra. Thus, no manufacturer is being compelled at this time to incur the expense of independent laboratory testing. Moreover, while it is doubtful that loss of sales due to competition from foreign manufacturers could constitute sufficient irreparable harm for purposes of a preliminary injunction, defendant has conceded that, should plaintiff succeed on the merits, any inflatable liferafts, lifeboats, and lifeboat equipment inspected under the Part 159 procedures and installed on Coast Guard-inspected vessels would be required ...

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