[Federal Register Volume 74, Number 28 (Thursday, February 12, 2009)]
[Rules and Regulations]
[Page 6995]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-3073]


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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]
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