Tennessee Gas Pipeline Co. v. Ferc
By: LN on May 02, 2012 09:47:53 AM

Citation:  969 F.2d 1141 (1992)

Summary:  Appellee issued an interim rule without issuing Notice by invoking the good cause exception of the APA. Appellants claimed that they had to be given an opportunity for commenting on the rule.

Facts:  The Commission issued an interim rule and a Notice of Proposed Rulemaking (NOPR) for a final rule. The rule required that the interstate natural gas pipelines had to provide the commission a thirty days notice of any replacement in the existing facilities under § 2.55 (b) and any construction which the gas pipelines take up in their facilities. In case of constructions the rule required that a notification had to be made which had to include the brief description of the facilities, evidence for complainancing with the environmental norms, a map showing the location of the facility, a description of the procedures used in erosion control, revegetation and maintenance and stream and wetland crossings. The agency estimated that the compilation of that information would take four hours per notice. The commission explained that it was issuing the rule without notice by invoking the good cause exception of the APA. Appellants claimed that they had to be given an opportunity for commenting on the rule. Appellants filed an appeal on the decision passed by the commission.

Issue:  Whether the commission was correct in promulgating the interim rule without a notice and opportunity for comment as required by the Administrative Procedure Act?

Holding:  No, the Commission was not correct in promulgating the interim rule without a notice and an opportunity for comment as required by the Administrative Procedure Act.

Procedure:  Judgment of the commission was reversed by the Appellate Court.

Rule:  The section requires an agency to provide Notice of a rule prior to thirty days of it becoming effective and has to provide the public an opportunity of commenting on the rule. An exception exists for cases when the agency for a good cause finds that the Notice and public commenting are impracticable or which is contrary to the interests of the public. (§ 553, Administrative Procedure Act)

Rationale:  The commission has not provided any evidence for the claim of good cause and how the interest of public is served by immediate implementation of the interim rule. Hence, the application of the rule was vacated.

 

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Michael Mordechai YadegariReviewsout of 83 reviews