Federal Register / Vol. 67, No. 1 / Wednesday, January 2, 2002 / Rules and Regulations 21

TABLE 2.—OZONE NONATTAINMENT

MILESTONES—Continued

Date Event 

May 15, 1991 Section 182(a)(2)(A) requires 

that ozone nonattainment 

areas correct deficient 

RACT rules by this date. 

IV. Administrative Requirements 

Under Executive Order 12866 (58 FR 

51735, October 4, 1993), this action is 

not a ‘‘significant regulatory action’’ and 

therefore is not subject to review by the 

Office of Management and Budget. For 

this reason, this action is also not 

subject to Executive Order 32111, 

‘‘Actions Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use’’ (66 FR 28355, May 

22, 2001). This action merely approves 

state law as meeting federal 

requirements and imposes no additional 

requirements beyond those imposed by 

state law. Accordingly, the 

Administrator certifies that this rule 

will not have a significant economic 

impact on a substantial number of small 

entities under the Regulatory Flexibility 

Act (5 U.S.C. 601 et seq.). Because this 

rule approves pre-existing requirements 

under state law and does not impose 

any additional enforceable duty beyond 

that required by state law, it does not 

contain any unfunded mandate or 

significantly or uniquely affect small 

governments, as described in the 

Unfunded Mandates Reform Act of 1995 

(Public Law 104–4). 

This rule also does not have tribal 

implications because it will not have a 

substantial direct effect on one or more 

Indian tribes, on the relationship 

between the Federal Government and 

Indian tribes, or on the distribution of 

power and responsibilities between the 

Federal Government and Indian tribes, 

as specified by Executive Order 13175 

(65 FR 67249, November 9, 2000). This 

action also does not have Federalism 

implications because it does not have 

substantial direct effects 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, as specified in 

Executive Order 13132 (64 FR 43255, 

August 10, 1999). This action merely 

approves a state rule implementing a 

Federal standard, and does not alter the 

relationship or the distribution of power 

and responsibilities established in the 

Clean Air Act. This rule also is not 

subject to Executive Order 13045, 

‘‘Protection of Children from 

Environmental Health Risks and Safety 

Risks’’ (62 FR 19885, April 23, 1997), 

because it is not economically 

significant. 

In reviewing SIP submissions, EPA’s 

role is to approve state choices, 

provided that they meet the criteria of 

the Clean Air Act. In this context, in the 

absence of a prior existing requirement 

for the State to use voluntary consensus 

standards (VCS), EPA has no authority 

to disapprove a SIP submission for 

failure to use VCS. It would thus be 

inconsistent with applicable law for 

EPA, when it reviews a SIP submission, 

to use VCS in place of a SIP submission 

that otherwise satisfies the provisions of 

the Clean Air Act. Thus, the 

requirements of section 12(d) of the 

National Technology Transfer and 

Advancement Act of 1995 (15 U.S.C. 

272 note) do not apply. This rule does 

not impose an information collection 

burden under the provisions of the 

Paperwork Reduction Act of 1995 (44 

U.S.C. 3501 et seq.). 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this rule and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. 804(2). 

Under section 307(b)(1) of the Clean 

Air Act, petitions for judicial review of 

this action must be filed in the United 

States Court of Appeals for the 

appropriate circuit by March 4, 2002. 

Filing a petition for reconsideration by 

the Administrator of this final rule does 

not affect the finality of this rule for the 

purposes of judicial review nor does it 

extend the time within which a petition 

for judicial review may be filed, and 

shall not postpone the effectiveness of 

such rule or action. This action may not 

be challenged later in proceedings to 

enforce its requirements. (See section 

307(b)(2).)

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Nitrogen dioxide, Ozone, Reporting and 

recordkeeping requirements.

Dated: November 29, 2001. 

Laura Yoshii, 

Deputy Regional Administrator, Region IX.

■ Part 52, Chapter I, Title 40 of the Code 

of Federal Regulations is amended as 

follows:

PART 52—[AMENDED]

■ 1. The authority citation for part 52 

continues to read as follows:

Authority: 42 U.S.C. 7401 et seq.

Subpart F—California

■ 2. Section 52.220 is amended by 

adding paragraph (c)(286) and (c)(287) to 

read as follows:

§ 52.220 Identification of plan.

* * * * *

(c) * * * 

(286) [Reserved]. 

(287) New and amended regulations 

for the following APCD were submitted 

on November 8, 2001 by the Governor’s 

designee. 

(i) Incorporation by reference. 

(A) Mojave Desert Air Quality 

Management District. 

(1) Rule 1161 adopted on October 22, 

2001.

* * * * *

[FR Doc. 01–32099 Filed 12–31–01; 8:45 am] 

BILLING CODE 6560–50–P

DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration 

49 CFR Part 219 

[Docket No. 2001–11213, Notice No. 1] 

RIN 2130–AA81 

Alcohol and Drug Testing: 

Determination of Minimum Random 

Testing Rates for 2002

AGENCY: Federal Railroad 

Administration (FRA), DOT.

ACTION: Notice of determination.

SUMMARY: Using data from Management 

Information System annual reports, FRA 

has determined that the 2000 rail 

industry random testing positive rate 

was .20 percent for drugs and .79 

percent for alcohol. Since the industrywide random drug testing positive rate 

continues to be below 1.0 percent, the 

Federal Railroad Administrator 

(Administrator) has determined that the 

minimum annual random drug testing 

rate for the period January 1, 2002 

through December 31, 2002 will remain 

at 25 percent of covered railroad 

employees. Since the random alcohol 

22 Federal Register / Vol. 67, No. 1 / Wednesday, January 2, 2002 / Rules and Regulations 

testing violation rate has remained 

below .5 percent for the last two years, 

the Administrator has determined that 

the minimum random alcohol testing 

rate will remain at 10 percent of covered 

railroad employees for the period 

January 1, 2002 through December 31, 

2002.

DATES: This notice is effective January 2, 

2002.

FOR FURTHER INFORMATION CONTACT:

Lamar Allen, Alcohol and Drug Program 

Manager, Office of Safety Enforcement, 

Mail Stop 25, Federal Railroad 

Administration, 1120 Vermont Avenue, 

NW., Washington, DC 20005, 

(Telephone: (202) 493–6313).

SUPPLEMENTARY INFORMATION: 

Administrator’s Determination of 2002 

Random Drug and Alcohol Testing 

Rates 

In a final rule published on December 

2, 1994 (59 FR 62218), FRA announced 

that it will set future minimum random 

drug and alcohol testing rates according 

to the rail industry’s overall positive 

rate, which is determined using annual 

railroad drug and alcohol program data 

taken from FRA’s Management 

Information System. Based on this data, 

the Administrator publishes a Federal 

Register notice each year, announcing 

the minimum random drug and alcohol 

testing rates for the following year (see 

49 CFR 219.602, 219.608). 

Under this performance-based system, 

FRA may lower the minimum random 

drug testing rate to 25 percent whenever 

the industry-wide random drug positive 

rate is less than 1.0 percent for two 

calendar years while testing at 50 

percent. (For both drugs and alcohol, 

FRA reserves the right to consider other 

factors, such as the number of positives 

in its post-accident testing program, 

before deciding whether to lower annual 

minimum random testing rates). FRA 

will return the rate to 50 percent if the 

industry-wide random drug positive rate 

is 1.0 percent or higher in any 

subsequent calendar year. 

In 1994, FRA set the 1995 minimum 

random drug testing rate at 25 percent 

because 1992 and 1993 industry drug 

testing data indicated a random drug 

testing positive rate below 1.0 percent; 

since then FRA has continued to set the 

minimum random drug testing rate at 25 

percent as the industry positive rate has 

consistently remained below 1.0 

percent. In this notice, FRA announces 

that the minimum random drug testing 

rate will remain at 25 percent of covered 

railroad employees for the period 

January 1, 2002 through December 31, 

2002, since the industry random drug 

testing positive rate for 2001 was .20 

percent. 

FRA implemented a parallel 

performance-based system for random 

alcohol testing. Under this system, if the 

industry-wide violation rate is less than 

1.0 percent but greater than .5 percent, 

the rate will be 25 percent. FRA will 

raise the rate to 50 percent if the 

industry-wide violation rate is 1.0 

percent or higher in any subsequent 

calendar year. FRA may lower the 

minimum random alcohol testing rate to 

10 percent whenever the industry-wide 

violation rate is less than .5 percent for 

two calendar years while testing at a 

higher rate. Since the industry-wide 

violation rate for alcohol has remained 

below .5 percent for the last two years, 

FRA is maintaining the minimum 

random alcohol testing rate at 10 

percent of covered railroad employees 

for the period January 1, 2002 through 

December 31, 2002. 

This notice sets the minimum random 

testing rates required next year. 

Railroads remain free, as always, to 

conduct random testing at higher rates.

Issued in Washington, DC, on December 

21, 2001. 

Allan Rutter, 

Federal Railroad Administrator.

[FR Doc. 01–32047 Filed 12–31–01; 8:45 am] 

BILLING CODE 4910–06–P

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.

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