E9-3073. 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.

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 [phone]).

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.