[Federal Register Volume 67, Number 1 (Wednesday, January 2, 2002)]
[Rules and Regulations]
[Pages 22-24]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-32049]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 240

[FRA Docket No. RSOR-9, Notice 13]
RIN 2130-AA74


Qualification and Certification of Locomotive Engineers; and 
Other Proceedings

AGENCY: Federal Railroad Administration (FRA), DOT.

ACTION: Interim final rule.

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SUMMARY: This interim final rule amends the definition of filing as 
used in the Federal Railroad Administration's rule on engineer 
certification in order to address recent, unavoidable postal delays. 
Due to terrorism, the Department of Transportation has implemented 
additional security procedures regarding mail delivery. The purpose of 
this interim final rule is to temporarily amend the regulation so that 
parties in adjudicatory proceedings pursuant to subpart E, Dispute 
Resolution Procedures of part 240 will not be prejudiced by 
circumstances beyond their control.

DATES: (1) Effective Date: This regulation is effective January 2, 
2002.
    (2) Written comments concerning this rule must be filed no later 
than March 4, 2002. Comments received after that date will be 
considered to the extent practicable.

ADDRESSES: Comments should be submitted to the Docket Clerk, Department 
of Transportation Central Docket Management System (DMS), Nassif 
Building, Room Pl-401, 400 Seventh Street, SW., Washington, DC 20590 
or, in accordance with the electronic standards and requirements, at 
http://dms.dot.gov.

FOR FURTHER INFORMATION CONTACT: Alan H. Nagler, Trial Attorney, Office 
of Chief Counsel, FRA, 400 Seventh Street, SW., RCC-11, Mail Stop 10, 
Washington, DC 20590 (telephone: 202-493-6049).

SUPPLEMENTARY INFORMATION:

I. Background

    In response to acts of terrorism beginning on September 11, 2001, 
the timely delivery of mail by the United States Postal Service (USPS) 
and private mail services were negatively impacted by the temporary 
closing of airline shipping facilities. About one month later, 
additional delays were caused by more acts of terrorism. On Tuesday, 
October 16, USPS mail delivery to the Department of Transportation's 
(DOT) headquarters buildings was halted and did not resume until 
November 2. DOT's mail was halted in order to take appropriate safety 
measures concerning the threat of bio-terrorism through mail handling 
and delivery. The safety of DOT employees and the public clearly 
override the short-term concern of timely mail delivery. Although it 
was necessary to establish new security systems, the delay in 
processing mail may have had unintended consequences.
    As envisioned in a notice posted on DMS's website, FRA will take 
these mail delays into account with respect to rulemaking documents 
that have comment periods that may have closed before regular mail 
delivery resumed. FRA will do everything it can to ensure that comments 
that would otherwise have been received before the close of the comment 
period are considered. For example, FRA generally has authority to 
consider late-filed comments and will do so to the extent that it can; 
FRA will also take note of the postmark date for late-filed comments.
    In contrast, federal agencies do not have authority to consider 
late-filed petitions in adjudicatory proceedings where the filing date 
requirements have

[[Page 23]]

been established by regulation. This is the situation FRA faces in 
trying to fairly consider documents filed by parties that (1) have been 
harmed or delayed by the recent mail disruptions or (2) could 
potentially be harmed or delayed by these disruptions.
    The source of FRA's timeliness issue with regard to engineer 
certification proceedings is found in the definition of filing. That 
definition is applicable to the adjudicatory proceedings provided for 
in Subpart E, Dispute Resolution Procedures of the Locomotive Engineer 
Certification Standards. 49 CFR Part 240. According to section 240.7, 
``[f]iling means that a document to be filed under this part shall be 
deemed filed only upon receipt by the Docket Clerk.'' As a result of 
this definition and the mail delivery delays beginning September 11, it 
is possible that a party could have attempted to file a document by 
mail, the document could have been received by DOT, and yet the 
document may not have been date stamped as received until days or weeks 
later. In order to prevent any unfair and unintended consequences, FRA 
is relaxing this filing requirement to permit the date mailing was 
completed (i.e., the postmark date unless the filer proves otherwise) 
to take the place of the receipt date during this unique state of 
alert.
    This change in the filing requirements will ensure that documents 
mailed in a timely fashion will not be considered late if received 
after the due date by FRA's Docket Clerk pursuant to sections 240.403 
and 240.405, or by DMS's Docket Clerk pursuant to sections 240.407 and 
240.409, and by FRA's Administrator pursuant to section 240.411. The 
amended rule reflects this policy by adding the phrase ``or if sent by 
mail on or after September 4, 2001, the date mailing was completed'' to 
the definition. This change covers items postmarked on or after 
September 4, 2001 by the USPS or sent by other mail services on or 
after that date. By including all items sent by that date, FRA hopes to 
effectively include all documents that parties attempted to timely file 
under the original filing rule without being either under-inclusive or 
over-inclusive.
    In addition, filers are encouraged to use the electronic submission 
system on the dockets Web page (http://dms.dot.gov) by clicking on ``ES 
Submit'' and following the online instructions. This option is 
available for filing hearing requests and documents pursuant to 
sections 240.407 and 240.409. A party filing electronically should note 
that the rule has not been amended to accept late electronic filings. 
Electronic filings that are received after the specified dockets 
facility hours shall be deemed to be constructively received on the 
next dockets facility business day. See 14 CFR 302.3.
    Furthermore, FRA rewrote the remaining part of the definition to 
more clearly state what is meant by filing without using the defined 
word itself in the definition. Thus, ``[f]iling means that a document 
to be filed under this part shall be deemed filed upon receipt by the 
Docket Clerk'' has been amended to read that ``[f]ile, filed and filing 
mean submission of a document under this part on the date when the 
Docket Clerk receives it * * * '' Both phrases have the same meaning. 
In addition, the rule was amended to reflect that all of the tenses of 
``file'' are covered by the definition.

II. Regulatory Evaluation

A. Public Proceedings

    The Administrative Procedure Act, specifically 5 U.S.C. 
553(b)(3)(B), provides that a notice and comment period is not required 
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.'' Accordingly, this amendment to part 
240 is issued without notice and comment. FRA has chosen this course of 
action because notice and comment under these circumstances would be 
impracticable, unnecessary, and contrary to the public interest. The 
implementation of new security systems vis-a-vis mail handling in 
response to national security interests requires emergency action. If 
FRA did not amend this definition, it is foreseeable that parties 
relying on USPS or other mail services would be prejudiced. FRA is 
making this rule effective immediately for the same reasons it is 
dispensing with the need for prior comment.
    Despite the need for prompt action, FRA is soliciting comments on 
this rule and will consider those comments in determining whether there 
is a need to take further action to improve these regulations. If 
comments persuade FRA that additional amendment to the definition is 
necessary, it will address them in a subsequent notice. Written 
comments must be submitted no later than 60 days after publication in 
the Federal Register, but late comments will be considered to the 
extent practicable.

B. Regulatory Impact

E.O. 12866 and DOT Regulatory Policies and Procedures
    This interim final rule has been evaluated in accordance with 
existing regulatory policies and is considered to be nonsignificant 
under Executive Order 12866 and is not significant under the DOT 
policies and procedures (44 FR 11034; February 26, 1979).

C. Regulatory Flexibility Act

    FRA certifies that this rule will not have a significant economic 
impact on a substantial number of small entities. Although a 
substantial number of small railroads are subject to this regulation, 
the economic impact of this amendment to the rule will not be 
significant since it only modifies a definition involved in dispute 
resolution proceedings conducted by FRA. The provisions do not make any 
changes to the way that a railroad would conduct its own proceedings 
pursuant to this part. This technical change should prevent injustice 
that would otherwise result from the actions of the DOT to ensure the 
safety of mail it receives.
    This interim final rule will have no direct impact on small units 
of government, businesses, or other organizations. State rail agencies 
are not required to participate in the portion of part 240 that 
includes the definition.

D. Paperwork Reduction Act

    There are no new collection of information requirements contained 
in this rule and, in accordance with the Paperwork Reduction Act of 
1995, 44 U.S.C. 3501 et seq., the record keeping and reporting 
requirements already contained in this rule have been approved by the 
Office of Management and Budget. The OMB approval number was published 
in a previous amendment to part 240 and can be found in section 240.13. 
The information collection requirements of this rule became effective 
on June 19, 1991, and were later amended on April 9, 1993.

E. Environmental Impact

    FRA has evaluated this regulation in accordance with its 
``Procedures for Considering Environmental Impacts'' (FRA's Procedures) 
(64 FR 28545, May 26, 1999) as required by the National Environmental 
Policy Act (42 U.S.C. 4321 et seq.), other environmental statutes, 
Executive Orders, and related regulatory requirements. FRA has 
determined that this regulation is not a major FRA action (requiring 
the preparation of an environmental impact statement or environmental 
assessment) because it is categorically excluded from

[[Page 24]]

detailed environmental review pursuant to section 4(c)(20) of FRA's 
Procedures. In accordance with section 4(c) and (e) of FRA's 
Procedures, the agency has further concluded that no extraordinary 
circumstances exist with respect to this regulation that might trigger 
the need for a more detailed environmental review. As a result, FRA 
finds that this regulation is not a major Federal action significantly 
effecting the quality of the human environment.

F. Federalism Implications

    FRA believes that it is in compliance with Executive Order 13132. 
This rule will not have a substantial effect on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government. This regulation will not have federalism implications that 
impose compliance costs on State and local governments.

List of Subjects in 49 CFR Part 240

    Administrative practice and procedure, Penalties, Railroad 
employees, Railroad safety, Reporting and recordkeeping requirements.

    Therefore, in consideration of the foregoing, FRA amends part 240, 
Title 49, Code of Federal Regulations as follows:

PART 240--[AMENDED]

    1. The authority citation for Part 240 continues to read as 
follows:

    Authority: 49 U.S.C. 20103, 20107, 20135; 49 CFR 1.49.
* * * * *

    2. Section 240.7 is amended by removing the definition of filing 
and adding the following definition in alphabetical order:


Sec. 240.7  Definitions.

    As used in this part--
* * * * *
    File, filed and filing mean submission of a document under this 
part on the date when the Docket Clerk receives it, or if sent by mail 
on or after September 4, 2001, the date mailing was completed.
* * * * *

    Issued in Washington, DC, on December 21, 2001.
Allan Rutter,
Administrator.
[FR Doc. 01-32049 Filed 12-31-01; 8:45 am]
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