E9-5792. Capital Construction Fund

AGENCY:

Maritime Administration, Department of Transportation.

ACTION:

Final rule; clarification.

SUMMARY:

On September 30, 2008, the Maritime Administration published the final rule in this docket to implement provisions of the Energy Independence and Security Act of 2007 and amend the definition of a “qualified vessel” under the Capital Construction Fund. The final rule was published with an effective date of the date of publication. Prior to publication, we inadvertently failed to submit the rule to Congress and the General Accounting Office (GAO), as required by the Congressional Review provisions in the Small Business Regulatory Enforcement Fairness Act (SBREFA). Therefore, the rule was not applicable on the date of publication.

DATES:

The applicability date for the final rule published at 73 FR 56738 (September 30, 2008) was March 13, 2009.

FOR FURTHER INFORMATION CONTACT:

Murray Bloom, Chief, Division of Maritime Programs, Maritime Administration at 202-366-5320, via e-mail at [e-mail], or by writing to Murray Bloom, Office of the Chief Counsel, Maritime Administration, MAR-222, 1200 New Jersey Avenue, SE., Washington, DC 20590.

SUPPLEMENTARY INFORMATION:

Background

For complete background and regulatory analysis, see the original document published September 30, 2008 (73 FR 56741). This final rule indicated that it would be effective upon publication. 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. The Maritime Administration (MARAD) provided no justification for the immediate effective date in the published rule document and, in fact, MARAD 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 provisions in SBREFA 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 March 12, 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 September 30, 2008, the effective date of the rule. However, because of the issues with the APA and the Congressional Review provisions, this rule could not become operative or enforceable until March 13, 2009.

Accordingly, MARAD acknowledges that the rule was not operative and enforceable until March 13, 2009. MARAD 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 March 13, 2009.

By Order of the Maritime Administrator.

Dated: March 9, 2009.

Christine Gurland,

Acting Secretary, Maritime Administration.