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 

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

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

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:

§ 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] 

BILLING CODE 4910–06–P