United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 22, 2020 Decided June 16, 2020

No. 18-5145

AMERICAN GREAT LAKES PORTS ASSOCIATION, ET AL.,

APPELLANTS

v.

KARL L. SCHULTZ, IN HIS OFFICIAL CAPACITY AS 

COMMANDANT, UNITED STATES COAST GUARD, ET AL.,

APPELLEES

Consolidated with 18-5167

Appeals from the United States District Court

for the District of Columbia

(No. 1:16-cv-01019)

C. Jonathan Benner argued the cause for appellants. With 

him on the briefs was Michael E. Deutsch. Kayla Grant entered 

an appearance.

Jane M. Lyons, Assistant U.S. Attorney, argued the cause 

for federal appellees. With her on the brief were Jessie K. Liu, 

U.S. Attorney, and R. Craig Lawrence, Assistant U.S. 

Attorney. Jeremy S. Simon, Assistant U.S. Attorney, entered an 

appearance.
2

John Longstreth argued the cause for intervenorappellees. With him on the brief was Mark Ruge. 

Before: SRINIVASAN, Chief Judge, and ROGERS and RAO, 

Circuit Judges.

Opinion for the Court filed by Circuit Judge RAO.

RAO, Circuit Judge: Ships engaged in foreign trade on the 

Great Lakes must use pilots registered pursuant to the Great 

Lakes Pilotage Act of 1960. The Coast Guard administers this 

licensing monopoly and sets rates for the American pilots, 

which has resulted in ongoing disputes between the Pilots and 

the Great Lakes commercial shipping and port interests 

(“Shippers”). This case requires us to resolve an 

Administrative Procedure Act challenge by the Shippers to the 

pilot rates for the 2016 commercial shipping season (“2016 

Rule”). The Shippers claim the 2016 Rule set an artificially 

inflated pilot rate that caused significant harm to the industry.

The district court upheld parts of the 2016 Rule setting higher 

compensation targets for the Pilots, but held several parts of the 

Rule to be unsupported by the administrative record and 

remanded to the Coast Guard without vacating the Rule. We 

affirm the district court’s decision in full. Although remand 

without vacatur is the exception rather than the rule, in these

circumstances, the district court acted within its discretion, 

given the disruption likely to occur from reallocating rates paid 

several years ago. 

I.

The Great Lakes Pilotage Act requires foreign vessels and 

American vessels participating in foreign trade to hire an 

American or Canadian maritime pilot to assist in navigating the 
3

difficult waters of the Great Lakes. See 46 U.S.C. §§ 9301–

9308. The Act authorizes the Coast Guard to certify pilots, 

establish conditions of service, and set the rates that pilots must 

charge for their services. See 46 U.S.C. § 9303. Pursuant to this 

statutory authority, the Coast Guard has certified three pilotage 

associations to be the exclusive American providers of Great 

Lakes pilotage services in their assigned regions. See 81 Fed. 

Reg. 11,908, 11,910 (Mar. 7, 2016). When setting rates, the 

Coast Guard must consider “the public interest and the costs of 

providing the services.” 46 U.S.C. § 9303(f). The Coast Guard 

must “establish new pilotage rates by March 1 of each year,”

id.,

1 which the agency does through notice and comment 

rulemaking. 

After requests from the Pilots and Shippers, the Coast 

Guard proposed a new methodology to calculate Great Lakes 

pilot rates for the 2016 shipping season. The Coast Guard’s 

proposed rule was based largely upon the recommendations of 

the Great Lakes Pilotage Advisory Committee (GLPAC), an 

entity created by Congress in 1983 for the purpose of assisting 

the Coast Guard in formulating rates. See 80 Fed. Reg. 54,484, 

54,486 (Sept. 10, 2015); 46 U.S.C. § 9307(d)(2) (“The 

Secretary shall consider the information, advice, and 

1 46 U.S.C. § 9303(f) reads in full: 

The Secretary shall prescribe by regulation rates and 

charges for pilotage services, giving consideration 

to the public interest and the costs of providing the 

services. The Secretary shall establish new pilotage 

rates by March 1 of each year. The Secretary shall 

establish base pilotage rates by a full ratemaking at 

least once every 5 years and shall conduct annual 

reviews of such base pilotage rates, and make 

adjustments to such base rates, in each intervening 

year.
4

recommendations of the Committee in formulating policy 

regarding matters affecting Great Lakes pilotage.”). The 

agency identified two reasons for changing the methodology. 

First, both the Pilots and the Shippers identified 

methodological issues that distorted the ratemaking 

calculation. The Pilots argued that the methodology resulted in 

artificially low rates that made it difficult to attract and retain 

pilots (harming “the public interest”) and the Shippers argued

that the rates were artificially inflated (ignoring “the costs of 

providing the services”). See, e.g., 80 Fed. Reg. at 54,486.

Second, the Coast Guard previously relied on union 

compensation data for similarly situated merchant marine 

masters and mates to help determine target pilot compensation; 

however, such data was no longer available from the union. See 

id. at 54,484.

After the public comment period, the Coast Guard

finalized the 2016 Rule largely along the lines initially 

proposed and consistent with the GLPAC recommendations. 

81 Fed. Reg. at 11,908. In adopting a new methodology, the 

Coast Guard found that the prior ratesetting undercompensated 

pilots, which resulted in pilot shortages and threats to vessel 

safety. The agency concluded rates must be increased to ensure 

a well qualified pool of pilots. Id. at 11,910. The new 

methodology was designed “to generate sufficient revenue for 

the pilots to provide the service [the public] require[s].” See id.

at 11,909. To accomplish this, the Coast Guard, as relevant to 

this appeal, switched to the Peak Staffing Model, which pegged 

the number of necessary pilots to peak traffic periods in order 

to ensure the availability of rested pilots at all times. See 80 

Fed. Reg. at 54,489; 81 Fed. Reg. at 11,908–909. The agency 

also employed Canadian pilot compensation as a benchmark

for compensation, plus a ten percent cost of living upward 

adjustment to incentivize American pilots to remain in the 

Great Lakes region. 81 Fed. Reg. at 11,914–915. Finally, the 
5

Coast Guard estimated the rule would cost the shipping 

industry an additional $1.87 million annually, as well as a onetime $1.65 million expense to cover training. Id. at 11,937–38. 

The Shippers, represented by the American Great Lakes 

Ports Association, filed a lawsuit challenging the 2016 Rule 

under the Administrative Procedure Act in the United States

District Court for the District of Columbia. The Shippers 

disputed the overall justification for the new methodology, 

questioning the agency’s conclusion that there was a 

compensation-driven pilot shortage in the Great Lakes region 

that could be remedied by increasing pilot rates. They also 

challenged the Coast Guard’s failure to consider “weighting 

factors”2in the methodology; the setting of American pilot 

rates using Canadian pilot compensation with a ten percent 

upward adjustment; and the use of the new Peak Staffing 

Model to calculate rates. 

The district court rejected the Shippers’ overarching 

challenge to the Coast Guard’s new methodology. See Am. 

Great Lakes Ports Ass’n v. Zukunft, 296 F. Supp. 3d 27, 39–41

(D.D.C. 2017). As an initial matter, the court held the Coast 

Guard’s decision to increase rates was not arbitrary and 

capricious because it rested on sufficient record evidence “even 

absent the empirical evidence demanded by Plaintiffs.” Id. at 

39–41. The court also affirmed the Coast Guard’s use of the 

Peak Staffing Model to determine the number of rested pilots 

2 Weighting factors “are multipliers that are used by pilotage 

associations to calculate the actual pilotage fees that the associations 

will charge for any given voyage. In essence, the larger the vessel, 

the higher the weighting factor, and the more the pilotage 

associations can charge.” Am. Great Lakes Ports Ass’n v. Zukunft, 

296 F. Supp. 3d 27, 35 n.5 (D.D.C. 2017). The Shippers contended 

that the Coast Guard’s failure to account for these factors artificially 

inflated the pilot rates. 
6

needed throughout the season because one of the agency’s 

rationales—safety—was “amply supported” by the record. Id. 

at 42–43. The court, however, held two aspects of the Coast 

Guard’s new methodology to be unsupported by the record. 

First, the court held there was no reasoned basis for setting 

American pilot compensation by reference to a ten percent 

increase over the base Canadian compensation rate because the 

figure came from unidentified comments during a GLPAC 

meeting. Id. at 46–48. Second, the court held that the Coast 

Guard acted arbitrarily by failing to account for increased pilot 

revenue from vessel weighting factors, resulting in a potential 

overcharge to the Shippers. Id. at 51–52. Noting the difficulty 

of crafting a remedy, the district court instructed the parties to 

file supplemental briefing on the appropriate remedy. Id. at 56.

Following additional briefing, the district court 

determined, in a separate published opinion, that remand 

without vacatur was the appropriate remedy. See Am. Great 

Lakes Ports Ass’n v. Zukunft, 301 F. Supp. 3d 99, 104–05

(D.D.C. 2018). The Shippers urged the court to vacate the 2016 

Rule and order various forms of prospective and retroactive 

relief to compensate for the unlawfully inflated rates. Id. at 102. 

The district court noted the Shippers’ requests demonstrated 

they “fundamentally misunderstand th[e] Court’s prior ruling” 

because the court had not held that the rates were too high, but 

instead that the rates were not justified by the administrative 

record. Id. The court found the errors in the 2016 Rule were 

substantial because the Coast Guard provided no support for 

pegging compensation to Canadian pilots or for its failure to 

include weighting factors (which were included in the 2017 

rate review). Id. at 103. Although the court determined the 

Coast Guard’s errors to be significant, it remanded without

vacatur because the “disruptive consequences” of vacatur 

outweighed the seriousness of the errors. Id. at 103–05. The 

court noted it was unclear “whether and to what extent the 
7

pilotage associations might be required to issue refunds” in 

response to vacatur but that “to the extent that they would be

required to do so, the disruptive consequences are clear.” Id. at 

104. The court thus remanded to the Coast Guard to “evaluate 

and justify an appropriate adjustment to benchmark 

compensation for its ratemaking methodology going forward.” 

Id. at 105. 

The Shippers appeal, arguing the district court erred in 

affirming parts of the 2016 Rule and further abused its 

discretion in declining to vacate the Rule despite finding 

significant parts of it unsupported by the record. 

II.

As an initial matter, this court must assure itself that it has 

jurisdiction over the Shippers’ appeal of the district court’s 

remand order. See Steel Co. v. Citizens for a Better Env’t, 523 

U.S. 83, 94–95 (1998). The courts of appeals have jurisdiction

over “all final decisions of the district courts of the United 

States,” 28 U.S.C. § 1291, and “[a] remand order usually is not 

a final decision,” NAACP v. United States Sugar Corp., 84 F.3d 

1432, 1436 (D.C. Cir. 1996). We have noted, however, that 

“[t]he requirement of finality is to be given a practical rather 

than a technical construction.” Limnia, Inc. v. Dep’t of Energy, 

857 F.3d 379, 385 (D.C. Cir. 2017) (internal quotation marks 

omitted). A remand order “that terminate[s] an action fall[s] 

within the core of Section 1291’s requirement of finality.” Id.

(internal quotation marks omitted).

Here, the district court’s remand order effectively 

terminates the Shippers’ action. This appeal presents the only 

opportunity for the Shippers to challenge the remand order. 

Although “a remand for significant further proceedings” 

generally constitutes a nonfinal order, Pueblo of Sandia v. 

Babbitt, 231 F.3d 878, 881 (D.C. Cir. 2000), the remand order 
8

under review does not instruct the Coast Guard to reopen the 

2016 rate review and conduct further proceedings. See Am. 

Great Lakes Ports Ass’n, 301 F. Supp. 3d at 105. The order 

thus finally disposed of the Shippers’ APA challenges to the 

2016 Rule. See In re Long-Distance Tel. Serv. Fed. Excise Tax 

Refund Litig., 751 F.3d 629, 633 (D.C. Cir. 2014) (“[T]reating 

the district court’s remand order as unappealable would 

effectively preclude ... plaintiffs from ever challenging the 

district court’s decisions.” (internal quotation marks omitted)). 

Moreover, it is relevant, although not dispositive, see Limnia, 

857 F.3d at 386, that the district court characterized its remand 

order as “a final appealable Order.” J.A. 119. In sum, we have 

jurisdiction over the Shippers’ appeal under 28 U.S.C. § 1291. 

III.

Turning to the merits, the Shippers challenge the Coast 

Guard’s determination that a compensation-driven pilot 

retention crisis necessitated increased rates and that the Peak 

Staffing Model should be used to calculate rates. We review 

such challenges “de novo, evaluating the administrative record 

directly and invalidating the [agency’s] actions only if, based 

on that record, they are arbitrary, capricious, an abuse of 

discretion, or otherwise not in accordance with law.” Stand Up 

for California! v. Dep’t of Interior, 879 F.3d 1177, 1181 (D.C. 

Cir. 2018) (internal quotation marks omitted).

A.

The Shippers first challenge the Coast Guard’s finding that 

a compensation-driven pilot shortage was developing on the 

Great Lakes, endangering both safety and efficient commerce. 

We agree with the Coast Guard that the record contains ample

evidence of a pilot shortage on the Great Lakes and that the 

shortage was caused by low compensation.
9

As to the shortage, the Coast Guard explained that the 

number of pilots has decreased significantly, with thirty-one 

pilots leaving the system. The rate of attrition has exceeded the 

rate of replacement, resulting in a net decrease of twenty-two 

percent, from forty-four to thirty-six pilots in less than a 

decade. See 81 Fed. Reg. at 11,919. The 2016 Rule includes 

abundant evidence that this decline has brought pilot numbers 

below acceptable levels, impairing the safety of Great Lakes 

navigation. See, e.g., id. at 11,918–921.

The agency also cited significant evidence demonstrating 

that low compensation drove this pilot shortage. For instance, 

comments from affected individuals and entities supported the 

Coast Guard’s conclusion that compensation was a key factor 

in the retention and recruitment of pilots. Former pilots and 

trainees stated they “resigned because of low pay and long 

hours.” 81 Fed. Reg. at 11,919. Hiring agents noted that “low 

compensation and long hours ... kept many highly qualified 

mariners from signing on as pilots.” Id. Finally, one pilot 

commented that “10 pilots in his association took early 

retirement to escape the low compensation and long hours.” Id. 

The administrative record thus indicated that the Great Lakes 

have a “retention and attraction problem” because its pilots are 

“the lowest paid pilots in America” and “have the highest 

workload in America.” J.A. 468 (statement from Pilots’ 

representative at GLPAC meeting). 

The Shippers primarily challenge the agency’s reliance on 

public comments, rather than empirical evidence. Appellant Br. 

37–40. The APA, however, “imposes no general obligation on 

agencies to produce empirical evidence.” Stilwell v. Office of 

Thrift Supervision, 569 F.3d 514, 519 (D.C. Cir. 2009). The 

Coast Guard’s heavy reliance on comments was legitimate in 

this proceeding. The Great Lakes pilotage labor market is 

small—approximately thirty-six pilots—and the agency 
10

received comments from a large segment of current and former

pilots, who consistently cited compensation as a leading reason 

for the pilot shortage. See 81 Fed. Reg. at 11,917–920. “A 

degree of agency reliance on [comments from affected parties] 

is not only permissible but often unavoidable.” Nat’l Ass’n of 

Regulatory Util. Comm’rs v. FCC, 737 F.2d 1095, 1124 (D.C. 

Cir. 1984). The Shippers provide no contrary evidence, 

empirical or otherwise, to suggest these firsthand accounts are 

not representative of pilots at large. “[A]n agency need not—

indeed cannot—base its every action upon empirical data; 

depending upon the nature of the problem.” Chamber of 

Commerce of U.S. v. SEC, 412 F.3d 133, 142 (D.C. Cir. 2005). 

It was entirely reasonable for the agency to rely on reasons 

provided by the hiring agents, pilots, and former pilots to 

determine that an increase in compensation would aid retention 

and recruitment of Great Lakes pilots. 

Moreover, the Coast Guard’s conclusion that 

compensation is a major cause of the shortage was supported 

by the recommendations of the Great Lakes Pilotage Advisory 

Committee (GLPAC). See 80 Fed. Reg. at 54,486; 81 Fed. Reg. 

at 11,911 (citing GLPAC recommendation). Congress directed 

that the Coast Guard “shall consider” GLPAC’s 

recommendations, 46 U.S.C. § 9307(d)(2), and here GLPAC 

unanimously recommended many aspects of the methodology 

the agency adopted in the 2016 Rule. See 80 Fed. Reg. at 

54,486. In addition, the agency relied upon an expert evaluation 

in the Coast Guard-commissioned Bridge Hour Study, which 

identified growing concern “regarding the available candidate 

pool to replace pilots who will soon be retiring” and cited 

inadequate pay “as a leading issue” alongside “stability of 

pay,” “quality of life,” and other issues. J.A. 495; 81 Fed. Reg. 

at 11,908. 
11

The administrative record thus included a wealth of 

evidence supporting the agency’s conclusion that if it “fail[ed] 

to implement this methodology and new rates, ... the pilot 

associations will not be able to recruit experienced mariners 

and retain their registered pilots.” 81 Fed. Reg. at 11,925; cf. 

FCC v. Nat’l Citizens Comm. for Broad., 436 U.S. 775, 814 

(1978) (“[C]omplete factual support in the record for the 

[agency’s] judgment or prediction is not possible or required; a 

forecast of the direction in which future public interest lies 

necessarily involves deductions based on the expert knowledge 

of the agency.” (internal quotation marks omitted)). In sum, the 

Coast Guard reasonably concluded that “increased pilot rates 

are the best and quickest way to attract and retain more 

qualified pilots.” 81 Fed. Reg. at 11,921.

B.

The Shippers also challenge the Peak Staffing Model as 

arbitrary and capricious. Part of the Coast Guard’s new 

ratesetting methodology, the Model seeks to ensure the pilot 

rate is sufficient to cover the cost of employing “the number of 

pilots needed to meet each shipping season’s peak pilotage 

demand periods without interruption to service.” 80 Fed. Reg. 

at 54,489. In the 2016 Rule, the Coast Guard predicted the 

Model would reduce delays caused by insufficient staffing and

also increase safe pilotage practices. See 81 Fed. Reg. at 

11,922. The district court found the delay rationale 

“inconclusive” but could not “say that the evidence necessarily 

runs counter to the Coast Guard’s conclusion.” Am. Great 

Lakes Ports Ass’n, 296 F. Supp. 3d at 42. The court, however,

found the record “amply supported the Coast Guard’s 

conclusion that greater staffing levels were needed to improve 

safe pilotage on the Great Lakes.” Id. at 43. The Shippers 
12

maintain that the Coast Guard’s explanation for its reliance on 

the Model is inadequate. 

We find that the agency adequately supported the Peak 

Staffing Model on the grounds that it furthered safe pilotage.

When setting rates, the Coast Guard must consider “the public 

interest,” 46 U.S.C. § 9303(f), and this court has interpreted the 

public interest to include safe pilotage. See Menkes v. DHS, 637 

F.3d 319, 334 (D.C. Cir. 2011); accord id. at 351 (Brown, J., 

dissenting in part) (noting that the text and structure of the Act 

“promotes maritime safety”). The Coast Guard concluded the 

Peak Staffing Model is necessary to ensure there are enough

pilots on hand throughout the season to cover surge periods.

See 81 Fed. Reg. at 11,922. Without pegging staffing needs to 

the peak periods, which may occur anytime during the season, 

situations will inevitably arise in which pilots will have to forgo 

the necessary rest periods recommended by the National 

Transportation Safety Board (“NTSB”). See id. (“Setting pilot 

numbers high enough to accommodate all these peak periods is 

essential ... to provide the recuperative monthly rest periods 

recommended by the NTSB in the interests of safety.”). Citing 

multiple reports, commenters, and the NTSB recommendation,

the agency’s decision rests on an ample record supporting the

conclusion that the shortage of rested pilots endangered safety. 

See, e.g., 81 Fed. Reg. at 11,918–922. Although the record does 

not support the reducing delay rationale,3the public safety 

3 Like the district court, we find the record inconclusive regarding a 

correlation between delays and staffing levels. The Coast Guard’s 

support for the delay rationale consists of a series of charts 

comparing pilot staffing levels and delay hours. 81 Fed. Reg. at 

11,920–921. The charts compare only two variables, pilot staffing 

and delay hours, and fail to demonstrate a correlation between the 

two. See id. The Coast Guard acknowledged that “[o]ther factors 

contribute to delays,” but provided no analysis of the various factors 

that cause delays. Id. at 11,921. 
13

rationale provides an independent and sufficient reason for the 

Peak Staffing Model.

In lieu of the Peak Staffing Model, which required 

maintaining a greater number of pilots at all times, the Shippers 

assert that part time contractors could supplement full time 

Great Lakes pilots during peak periods. Yet the Coast Guard 

specifically determined this alternative would be unsafe 

because contract pilots would not have knowledge of local 

waters and weather conditions in the Great Lakes and could not 

gain the necessary experience on short notice. See 81 Fed. Reg. 

at 11,922. Moreover, the agency explained that other pilotage 

systems are not proper comparators because “those systems 

cover smaller areas in which those pilots more easily can 

maintain the necessary knowledge without impacting safety.”

Id. With ample record evidence, we decline to second guess the 

Coast Guard’s expertise over maritime safety and uphold the 

use of the Peak Staffing Model. 

IV.

The Shippers prevailed below in their challenges to the 

failure to consider weighting factors and to the use of an

upwardly adjusted Canadian benchmark for target pilot 

compensation. See Am. Great Lakes Ports Ass’n, 301 F. Supp. 

3d at 101. Neither the Coast Guard nor the Pilots attempt to 

defend these aspects of the 2016 Rule on appeal.4 The Shippers, 

4

In subsequent rate adjustments, the Coast Guard addressed both 

issues by including weighting factors in the calculation and by

pegging target compensation to union data (available from earlier 

years) adjusted for inflation and Great Lakes conditions, rather than 

the Canadian pilots’ compensation. See 84 Fed. Reg. 20,551, 20,553 

(May 10, 2019) (“In 2017, we added ... new steps that accurately 

account for the ... weighting factors .... In 2018, we revised the 

methodology by which we develop the compensation benchmark.”). 
14

however, argue that the district court’s decision to remand 

without vacatur was an abuse of discretion because it 

effectively precludes the Shippers from obtaining relief from

the agency’s arbitrary and capricious action. 

Although “vacatur is the normal remedy” under the APA,

our precedents permit a court to remand without vacating the 

agency’s action in limited circumstances. Allina Health Servs. 

v. Sebelius, 746 F.3d 1102, 1110 (D.C. Cir. 2014). To 

determine whether to remand without vacatur, this court

considers first, “the ‘seriousness of the [action’s]

deficiencies,’” and, second, the “likely ‘disruptive 

consequences’ of vacatur.” Id. (quoting Allied-Signal, Inc. v. 

Nuclear Regulatory Comm’n, 988 F.2d 146, 150–51 (D.C. Cir. 

1993)). The Coast Guard and Pilots do not dispute the 

seriousness of the errors on appeal, and so we see no need to 

disturb the district court’s finding. See Am. Great Lakes Ports 

Ass’n, 301 F. Supp. 3d at 103 (“[T]he Court cannot conclude 

that the defects in the Coast Guard’s 2016 Rule were not 

serious.”). We focus on the parties’ main point of contention, 

namely the district court’s assessment of the disruptive 

consequences that would flow from vacating the 2016 Rule. 

The Shippers contend that the district court could “easily 

remedy” the error by “ordering a review and repricing of the 

invoices from the Pilotage Associations to the shipping 

companies under the rates established under the prior 2015 

Rule.” Appellant Br. 49. Yet the district court identified 

This controversy remains live, however, because the agency has not 

attempted to compensate the Shippers for potential overcharges 

caused by the errors in the 2016 Rule. Cf. Cape Cod Hosp. v. 

Sebelius, 630 F.3d 203, 210 (D.C. Cir. 2011) (“[S]ince the 2008 rule 

in no way compensated for any underpayments that might have been 

made in 2007, a live controversy remains regarding the hospitals’ 

objection to the 2007 rule.”).
15

numerous disruptive consequences that would follow from 

vacating the 2016 Rule. Our review comes nearly four years 

after rates have been paid in reliance on the 2016 Rule. As the 

district court found, vacatur would mean that “every payment 

that was made in the 2016 season was erroneous,” Am. Great 

Lakes Ports Ass’n, 301 F. Supp. 3d at 104, and may involve the 

Coast Guard and the Shippers attempting to recoup and 

redistribute funds that changed hands years ago in numerous 

separate transactions. Cf. Milk Train v. Veneman, 310 F.3d 747,

756 (D.C. Cir. 2002) (noting disruptive consequences from 

attempting to retrieve funds erroneously disbursed and likely 

invested by the recipients because “those moneys may not be 

recoverable three years later”). Further, the precise amount of 

each refund would be unclear given the lack of an operative 

2016 rate. See Am. Great Lakes Ports Ass’n, 301 F. Supp. 3d 

at 104. 

Under our precedents, a quintessential disruptive 

consequence arises when an agency cannot easily unravel a 

past transaction in order to impose a new outcome. We have

rejected approaches similar to the Shippers’ proposed 

reinvoicing as “an invitation to chaos.” Sugar Cane Growers v. 

Veneman, 289 F.3d 89, 97 (D.C. Cir. 2002). More generally, 

although remand without vacatur remains an exceptional 

remedy, we have held that it is appropriate when vacatur would 

disrupt settled transactions. See Milk Train, 310 F.3d at 756; 

Sugar Cane Growers, 289 F.3d at 97 (“The egg has been 

scrambled and there is no apparent way to restore the status quo 

ante.”). Because the district court acted within our precedents 

and its remedial discretion, we affirm its order remanding the 

2016 Rule to the agency without vacatur. Cf. Stand Up for 

California!, 879 F.3d at 1190 (holding that “the district court 

acted well within its discretion in finding vacatur unnecessary 

to address any harm the defect had caused”). 
16

We recognize that a remand without vacatur does not 

provide the Shippers with the complete relief they sought, and 

agencies often delay or decline to take action in these 

circumstances. See In re Core Commc’ns, Inc., 531 F.3d 849, 

862 (D.C. Cir. 2008) (Griffith, J., concurring) (“[E]xperience 

suggests that [remand without vacatur] sometimes invites 

agency indifference.”). The limits of a judicial remedy here 

stem in part from this particular statutory scheme, which 

requires the Coast Guard to review and adjust pilot rates 

annually. By the time an appeal winds its way to us, the egg 

will often be scrambled, leaving us with few options other than 

telling the Coast Guard, in effect, to “try better next time.”5In 

its next annual rate review, the agency should consider if it has 

the statutory authority to remedy the harms from the 2016 Rule

and if doing so would comport with its mandate to consider 

“the public interest and the costs of providing the services.” 46 

U.S.C. § 9303(f).6

5 Government ratesetting in this regulatory program frequently 

leaves either the Pilots or Shippers dissatisfied. As one district court 

recently observed, “each year, it seems, either the shipping 

companies or the associations that supply the pilots sue the Coast 

Guard to challenge aspects of the rulemaking. The shippers 

perennially complain that the rates are too high, while the pilots gripe 

that they are too low.” Am. Great Lake Ports Ass’n v. Coast Guard, 

18-cv-2650, 2020 WL 1157028, at *1 (D.D.C. Mar. 10, 2020); see 

also St. Lawrence Seaway Pilots Ass’n v. Coast Guard, 357 F. Supp. 

3d 30 (D.D.C. 2019); St. Lawrence Seaway Pilots Ass’n, Inc. v. Coast 

Guard, 85 F. Supp. 3d 197 (D.D.C. 2015).

6 At oral argument, the government suggested the agency could 

account for potential overcharges to the Shippers in a future rate 

adjustment. See Oral Arg. 27:40–29:35. We take no position on 

whether the Great Lakes Pilotage Act provides the Coast Guard with 

the authority to take such an action. 
17

* * *

For the foregoing reasons, we affirm the district court’s

decision in full.

So ordered.