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CROWLEY'S YACHT YARD, INC. v. PENA

May 18, 1995

CROWLEY'S YACHT YARD, INC., Plaintiff,
v.
FEDERICO PENA, Secretary, United States Department of Transportation, Defendant.



The opinion of the court was delivered by: STANLEY S. HARRIS

 This matter comes before the Court on the parties' cross-motions for summary judgment, and plaintiff's motion, in the alternative, for a preliminary injunction. Upon consideration of the entire record, the Court grants plaintiff's motion for summary judgment, and denies defendant's motion for summary judgment. Although "findings of fact and conclusions of law are unnecessary on decisions of motions [for summary judgment]," the Court nonetheless sets forth its analysis. Fed. R. Civ. P. 52(a).

 Background

 At issue in the present case is a "temporary" rule in effect for the period running from April 15, 1995, to July 13, 1995. The rule limits drawbridge openings for recreational vessels to: (1) Tuesdays and Thursdays from 10:30 a.m. to 1:30 p.m. and 6:30 p.m. to 11:30 p.m.; and (2) Saturdays and Sundays from 7:00 a.m. to 7:00 p.m.. Drawbridge Operation Regulation, Chicago River, IL, 60 Fed. Reg. 18006, 18008 (1995). Plaintiff contends that this regulation, like the previous one, was promulgated in violation of numerous provisions of the APA. *fn2" Defendant contends that the APA does not apply to this regulation or, in the alternative, that if the APA applies, defendant complied with the statute's requirements.

 The Coast Guard, a division of the Department of Transportation, issues temporary rules under the authority of 33 C.F.R. § 117.43 (1993), which provides:

 
In order to evaluate suggested changes to the drawbridge operation requirements, the District Commander may authorize temporary deviations from the regulations in this part for periods not to exceed 90 days. . . .

 On February 16, 1995, apparently acting pursuant to § 117.43, the Coast Guard published a notice of a proposed temporary rule -- the latest in a series of seven such rules -- and invited public comment thereon. The proposed temporary rule would have required the City of Chicago to open its drawbridges for the passage of recreational vessels seven days a week, except for Mondays through Fridays, 7:30 a.m. to 10:00 a.m. and 4:00 p.m. to 6:30 p.m., subject to a 24-hour notice requirement. On March 9, a public hearing was held, at which the Coast Guard received additional data and comments. On April 10, the regulation at issue was published.

 Analysis

 Summary judgment may be granted only if there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(c); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986). Because the issues raised by the present motions concern only questions of law, this matter is appropriate for resolution on summary judgment.

 As a preliminary matter, the Court must determine whether the APA applies to a temporary rule. The law is clear that it does. See, e.g., Tennessee Gas Pipeline Co. v. Federal Energy Regulatory Comm'n, 297 U.S. App. D.C. 141, 969 F.2d 1141, 1144-45 (D.C. Cir. 1992); Mid-Tex Elec. Coop., Inc. v. Federal Energy Regulatory Comm'n, 262 U.S. App. D.C. 61, 822 F.2d 1123, 1131-32 (D.C. Cir. 1987); see also Reeder v. Federal Communications Comm'n, 275 U.S. App. D.C. 199, 865 F.2d 1298, 1304-05 (D.C. Cir. 1989) (assuming applicability of APA to interim rule). Congress was precise in setting forth the circumstances under which an agency is exempt from the APA's notice and comment procedures and intended that the exceptions be "narrowly construed and reluctantly countenanced." See State of New Jersey v. Environmental Protection Agency, 200 U.S. App. D.C. 174, 626 F.2d 1038, 1045-46 (D.C. Cir. 1980) (discussing exceptions set forth under 5 U.S.C. § 553(b) and the underlying legislative history). It follows that a temporary rule is exempted from the APA's requirements only if it meets one of the exemptions set forth under § 553(b)(3). See id.; Tennessee Gas Pipeline Co., 969 F.2d at 1144-45; Mid-Tex Elec. Coop., Inc., 822 F.2d at 1131-32. The only exemption that conceivably could be applicable in this case is the "good cause" exemption. 5 U.S.C. § 553(b)(3)(B). The "good cause" exemption states:

 
This subsection does not apply -- (B) when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.

 Id. The Coast Guard, however, has not invoked the good cause exemption. *fn3" It relies only on its authority to promulgate temporary rules under 33 C.F.R. § 117.43. That regulation, however, may not expand the exemptions beyond those enumerated in the APA, and thus provides no authority for the Coast Guard's action in this case. Because the Coast Guard has not acted pursuant to the "good cause" exemption -- and even now does not claim that the exemption supports the temporary rule -- the Court holds that the APA applies to the temporary rule.

 The Coast Guard, by publishing the notice of the proposed temporary rule in the Federal Register and accepting and considering comments thereon, satisfied the notice and comment requirements of § 553. The Court rejects plaintiff's characterization of the final temporary rule as a "substantial departure" from the proposed temporary rule which failed to provide adequate notice of the weekday restrictions to affected parties. The sections of the notice on "Background and Purpose" and "Discussion of Comments and Changes" are clear that weekday daytime restrictions beyond the rush hour periods were foreseeable variations of the proposed rule that the Coast Guard might choose to implement. See Chocolate Mfrs. Ass'n of the United States v. Block, 755 F.2d 1098, ...


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