The opinion of the court was delivered by: PENN
JOHN GARRETT PENN, UNITED STATES DISTRICT JUDGE
On January 11, 1988, Congress enacted the Commercial Fishing Industry Vessel Anti-Reflagging Act of 1987. Pub. L. No. 100-239, 101 Stat. 1778 (1988). The United States Coast Guard accepts applications, evaluates the submissions to determine eligibility and issues certificates of documentation to qualified vessels. See 46 C.F.R. Part 67. The defendants state:
In correspondence dated January 5, March 31, and May 31, 1989, the United States Coast Guard received inquires as to whether the vessels GULF FLEET NO. 10 AND 14 would remain eligible for documentation with fisheries endorsements following a proposed foreign rebuilding and stock transfer to a corporation requirements but not the new controlling interest restrictions established by the Anti-Reflagging Act.
Defendants' Memorandum In Support of Its Motion to Dismiss or in the Alternative for Summary Judgment ("Defendants' Memorandum") at 4, citing Administrative Record ("AR"), Tabs D, T. and AA. In response to the inquiries, on June 13, 1989, the Coast Guard advised that "the vessels qualify for exemption from the controlling interest requirements of the Anti-Reflagging Act pursuant to Section 7(b) of the Anti-Reflagging Act" and that if "the vessels are converted as you have proposed, and are redelivered according to the schedule in your submissions, they will enjoy grandfather rights under Section 4 of the Anti-Reflagging Act." Defendants' Memorandum at 4, citing AR, Tab A.
Plaintiffs contend that the Coast Guard's interpretation, as articulated in its June 13, 1989 letter, and the Coast Guard's past issuance and future intentions to issue United States fishery licenses to vessels owned by corporations controlled by non-U.S. citizens is arbitrary, capricious, an abuse of discretion, and contrary to law. Amended Complaint pars. 17, 21, and 22.
Defendants contend that plaintiffs' complaint should be dismissed on jurisdictional grounds because (1) the complaint fails to state a justiciable case or controversy and (2) the complaint is premature because the issue it raises are the subject of an ongoing agency rulemaking. In the alternative, the defendants submit that they are entitled to summary judgment as a matter of law, for the Coast Guard's statutory interpretation is not arbitrary and capricious.
The defendants contend that plaintiffs' complaint is similar to the complaint in Shipbuilders Council of America v. United States, 276 U.S. App. D.C. 123, 868 F.2d 452 (D.C.Cir.1989) (" Shipbuilders "). In Shipbuilders, this Circuit concluded that "appellees' plea is, essentially, a request for judicial advice - a declaration that a line of agency rulings should henceforth have no precedential effect"; accordingly, should be dismissed for want of a judicially-cognizable controversy. Id. at 456. Although there are some factual differences between Shipbuilders and the instant complaint, the Court agrees with the defendants that Shipbuilders does provide guidance in this case.
In Shipbuilders, the United States Customs Service ("Customs") received an inquiry from a company as to whether the company's projected dry-docking operation violates the Jones Act. Id. at 454. The Customs responded by telex that the proposed dry-docking operations would not violate the Jones Act. Id. Plaintiffs, Shipbuilders Council of America, sought a declaratory judgment that the proposed dry-docking operation was in violation of the Jones Act and an order directing the defendants to issue no similar ruling in the future. Id.
Plaintiffs in this case, likewise, seek a ruling that an agency interpretation based on proposed actions is in violation of federal law. Additionally, plaintiffs here contend that past interpretation is also in violation in the Anti-Reflagging Act. However, plaintiffs do not point to any particular past licensing that would allow the Court to determine the timeliness of the appeal or whether the administrative remedies have been exhausted.
The June 13, 1989 letter, like the telex in Shipbuilders, is not final agency action.
This Court must ...