Pacific Gas & Electric Co. v. Federal Power Com.

506 F.2d 33

 

RULE:

A general statement of policy does not establish a "binding norm” and it is not finally determinative of the issues or rights to which it is addressed.

FACTS:

Petitioners sought judicial review of an order by the Federal Power Commission issued without prior notice or opportunity for comment, as required by the Administrative Procedure Act, 5 U.S.C.S. § 551 et seq. Petitioners were customers of pipeline companies whose deliveries were subject to curtailment during natural gas shortages. During a period of gas shortage in the country, the Federal Power Commission, without prior notice or opportunity for comment, issued a statement of policy directing jurisdictional pipeline companies that expected periods of shortages to file tariff sheets containing a curtailment plan in order to prevent the companies from liability under various contractual terms. The order assigned a low priority to electric generating companies to which petitioners belonged. Petitioners contended that the statement of policy issued by the Federal Power Commission was procedurally defective for failure to comply with the rulemaking requirements of the Administrative Procedure Act, 5 U.S.C.S. § 551 et seq.

ISSUE:

Is Order No. 467, 49 F.P.C. 85, issued by the Federal Power Commission exempt from the rulemaking requirements of the Administrative Procedure Act as a general statement of policy?

ANSWER:

Yes.

CONCLUSION:

The court held that the order was not defective because it was exempt from the rulemaking requirements of notice where such order was a mere statement of policy rather a substantive rule. Further, the order did not have a sufficiently immediate impact upon the petitioners. Since the policy had no immediate and significant impact upon petitioners and since the record would not permit meaningful review of the issues, the court held that it lacked jurisdiction for a judicial review of the policy. The petitions for review were dismissed.

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