[Federal Register: February 12, 2009 (Volume 74, Number 28)]
[Rules and Regulations]
[Page 6995]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12fe09-6]
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DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
49 CFR Part 209
[FRA-2007-28573]
RIN 2130-AB87
Railroad Safety Enforcement Procedures; Enforcement, Appeal and
Hearing Procedures for Rail Routing Decisions
AGENCY: Federal Railroad Administration (FRA), Department of
Transportation (DOT).
ACTION: Final rule; clarification.
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SUMMARY: On November 26, 2008, FRA published the final rule in this
docket that established procedures to enable railroad carriers to
challenge rail routing decisions made by FRA's Associate Administrator
for Safety. The final rule was published with an immediate effective
date. Under applicable federal statutes, this document did not qualify
for an immediate effective date.
DATES: The applicability date for the final rule published at 73 FR
72194 was January 15, 2009.
FOR FURTHER INFORMATION CONTACT: Lucinda Henriksen, Office of Chief
Counsel, Federal Railroad Administration, 1200 New Jersey Avenue, SE.,
Washington, DC 20590 (telephone 202-493-1345).
SUPPLEMENTARY INFORMATION: The final rule in this proceeding, published
on November 26, 2008, indicated that it would be effective upon
publication. See 73 FR 72194. Pursuant to Section 553 of the
Administrative Procedure Act (APA), codified at 5 U.S.C. 553, with
certain exceptions, substantive rules cannot take effect less than 30
days after publication, unless the agency finds good cause for doing so
and provides a written explanation of any good cause found when the
rule is published. FRA provided no justification for the immediate
effective date in the published rule document and, in fact, FRA did not
intend to avail itself of the good cause exception of 5 U.S.C. 553.
In addition, in accordance with the Congressional Review Act (CRA),
at 5 U.S.C. 801(a)(4), a final rule cannot take effect until the rule
is submitted to Congress in accordance with 5 U.S.C. 801(a)(1). The
rule was submitted to Congress on January 15, 2009.
According to the procedures established by the Administrative
Committee of the Federal Register under the Federal Register Act (44
U.S.C. Chapter 15), the amendments to the Code of Federal Regulations
(CFR) set out in this final rule were incorporated into the CFR on
November 26, 2008, the effective date of the rule. However, because of
the issues with the APA and the CRA, this rule could not become
applicable or enforceable until January 15, 2009.
Accordingly, FRA acknowledges that the rule was not effective and
enforceable until January 15, 2009. FRA further notes that because the
rule establishes procedures that have not yet been utilized, neither
the public, nor any regulated entities, were harmed in the interim
period between publication of the rule and January 15, 2009.
Issued in Washington, DC, on February 6, 2009.
Jo Strang,
Acting Deputy Administrator.
[FR Doc. E9-3073 Filed 2-11-09; 8:45 am]
BILLING CODE 4910-06-P