[Federal Register Volume 66, Number 1 (Tuesday, January 2, 2001)]
[Proposed Rules]
[Pages 136-159]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-33363]



[[Page 135]]

-----------------------------------------------------------------------

Part II





 Department of Transportation





-----------------------------------------------------------------------



Federal Railroad Administration



-----------------------------------------------------------------------



49 CFR Part 229



Locomotive Cab Sanitation Standards; Proposed Rule

  Federal Register / Vol. 66, No. 1 / Tuesday, January 2, 2001 / 
Proposed Rules  

[[Page 136]]


-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 229

[Docket No. FRA 2000-8545, Notice No. 1]
RIN 2130-AA89


Locomotive Cab Sanitation Standards

AGENCY: Federal Railroad Administration (FRA), Department of 
Transportation (DOT).

ACTION: Notice of proposed rulemaking.

-----------------------------------------------------------------------

SUMMARY: FRA proposes to amend its regulations by adding standards that 
address toilet and washing facilities for employees who work in 
locomotive cabs. The proposal provides exceptions for certain existing 
equipment and operations, and establishes servicing requirements.

DATES: Written Comments: Written comments must be received on or before 
March 5, 2001. Comments received after that date will be considered to 
the extent possible without incurring additional expense or delay.
    Public Hearing: A public hearing will be held, if requested, in 
Washington, D.C. to allow interested parties the opportunity to comment 
on specific issues addressed in the NPRM. FRA will announce at a later 
date in the Federal Register if a hearing has been requested and the 
date and location of the hearing.

ADDRESSES: Written Comments: Submit one copy to the Department of 
Transportation Central Docket Management Facility located in Room PL-
401 at the Plaza level of the Nassif Building, 400 Seventh Street, 
S.W., Washington, D.C. 20590. All docket material on the proposed rule 
will be available for inspection at this address and on the Internet at 
http://doms.dot.gov. Docket hours at the Nassif Building are Monday-
Friday, 10:00 a.m. to 5:00 p.m., excluding Federal holidays. Persons 
desiring notification that their comments have been received should 
submit their comments with a stamped, self-addressed postcard. The 
postcard will be returned to the addressee with a notation of the date 
on which the comments were received.
    Public Hearing: If requested by a member of the public, the date 
and location of a public hearing will be announced in this publication. 
Requests for a public hearing must be in writing, and must be addressed 
to the FRA docket clerk at the address above.

FOR FURTHER INFORMATION CONTACT: Brenda Hattery, Office of Safety 
Compliance, Federal Railroad Administration, 1120 Vermont Avenue, NW., 
Mail Stop 25, Washington, DC 20590 (telephone: 202-493-6326), or 
Christine Beyer, Office of Chief Counsel, Federal Railroad 
Administration, 1120 Vermont Avenue, NW., Mail Stop 10, Washington, 
D.C. 20590 (telephone: 202-493-6027).

SUPPLEMENTARY INFORMATION:

Background

I. Statutory and Regulatory Framework

    The Federal Railroad Administration (FRA) has broad statutory 
authority to regulate all areas of railroad safety. Until July 5, 1994, 
the Federal railroad safety statutes existed as separate acts found 
primarily in Title 45 of the United States Code. On that date all of 
the acts were repealed and their provisions were recodified into Title 
49. The older safety laws were enacted in piecemeal approach and 
addressed specific fields of railroad safety. Pertinent to this 
proceeding, the Locomotive Inspection Act (the ``LIA''), enacted in 
1911, prohibits the use of unsafe locomotives and authorizes FRA to 
issue standards for locomotive maintenance and testing. (Formerly 45 
U.S.C. 22-34, now 49 U.S.C. 20701-20703.) In order to further FRA's 
ability to respond effectively to contemporary safety problems and 
hazards as they arise in the railroad industry, the Congress enacted 
the Federal Railroad Safety Act in 1970 (the ``Safety Act''). (Formerly 
45 U.S.C. 421, 431 et seq., now Subtitle V of Title 49.) The Safety Act 
grants the Secretary rulemaking authority over all areas of railroad 
safety and confers all powers necessary to detect and penalize 
violations of any rail safety law. This authority was subsequently 
delegated to the FRA Administrator. (49 CFR 1.49.)
    Pursuant to this statutory authority, FRA promulgates and enforces 
a comprehensive regulatory program to address railroad track, signal 
systems, railroad communications, rolling stock, operating practices, 
passenger train emergency preparedness, alcohol and drug testing, 
locomotive engineer certification, and workplace safety. In the area of 
workplace safety, the agency has issued a variety of standards designed 
to protect the health of railroad employees. For instance, FRA 
promulgated ladder and handhold requirements for rail equipment in 
order to prevent employee falls (49 CFR Part 231), and requires 
locomotive cab floors and passageways to remain clear of debris and oil 
to prevent employee slips, trips, and falls (49 CFR 229.119). In Part 
218, FRA requires blue signal protection to prevent employees working 
on railroad equipment from injuries due to the unexpected movement of 
the equipment. FRA addresses the risk of falling from railroad bridges 
and of being struck by moving trains in 49 CFR Part 214.
    As a general rule, FRA exercises its statutory jurisdiction over 
railroad employee working conditions where employees are engaged in 
duties that are intrinsic to railroad operations, that could not occur 
in typical industrial settings, and when the hazard falls within the 
scope of FRA's expertise to regulate. Often, railroad working 
conditions are so unique that a regulatory body other than FRA would 
not possess the requisite expertise to determine appropriate safety 
standards. Historically, the concept of ``railroad safety'' has been 
viewed to include the health and safety of employees when they are 
engaged in railroad operations. In its Statement of Policy concerning 
employee workplace safety published in 1978, FRA stated

The term ``safety'' includes health-related aspects of railroad 
safety to the extent such considerations are integrally related to 
operational safety hazards or measures taken to abate such hazards.

43 FR 10585. Hazards that impact the health of railroad employees 
engaged in railroad operations may also result in adverse impacts on 
railroad safety, and so there is often a logical connection between 
railroad safety and employee health.
    In part 229 of Title 49 of the Code of Federal Regulations, FRA 
established minimum federal safety standards for locomotives. These 
regulations prescribe inspection and testing requirements for 
locomotive components and systems, and minimum locomotive cab safety 
requirements. However, FRA's existing locomotive safety standards do 
not require sanitation facilities for employees working in the cab.
    The statutory and regulatory treatment of locomotive cab sanitation 
by the pertinent federal and state bodies is complex, and has caused 
some confusion in the industry. For purposes of this rulemaking, it is 
important to understand where the legal tensions occur. Generally, 
requirements for sanitation in the workplace are governed by the U.S. 
Occupational Safety and Health Administration (OSHA); \1\ however a 
Federal agency can oust OSHA jurisdiction by issuing sanitation 
standards of its own, as FRA

[[Page 137]]

is proposing to do in this proceeding.\2\ OSHA's sanitation standards 
generally apply to permanent places of employment, and some courts have 
determined that a locomotive constitutes a `permanent place of 
employment' for purposes of OSHA's jurisdiction.\3\ However, by 
operation of an existing legislative option, a state may withdraw from 
the Federal OSHA program, and develop and enforce its own occupational 
safety and health regulations.\4\ If a locomotive is situated in a 
`Federal-OSHA state,' the Federal OSHA standard would most likely 
apply, so long as the pertinent reviewing court concurred with the 
determination that a locomotive constitutes a permanent place of 
employment. However, if the locomotive resides in a `State-Plan state,' 
any state locomotive sanitation standard may be nullified because the 
LIA has been interpreted to occupy the field of locomotive safety, 
including appurtenances in locomotives. Consequently, the LIA would 
preempt state provisions relating to appurtenances in locomotives,\5\ 
and federal courts have held that a toilet constitutes an 
appurtenance.\6\ Conversely, and despite the prevailing alternate view, 
certain state courts in `Federal-OSHA states' have ruled that the LIA 
does not preempt state regulation of flush toilets on locomotives, and 
those states have promulgated and enforce such standards within their 
boundaries.\7\
---------------------------------------------------------------------------

    \1\ See, 29 CFR Part 1910 (general industry standards); 29 CFR 
Part 1926 (construction industry standards); 29 CFR Part 1917 
(marine terminals); 29 CFR Part 1918 (longshoring operations); and 
29 CFR Part 1928 (agricultural operations).
    \2\ 29 U.S.C. 653(b)(1).
    \3\ State of Maine v. Springfield Terminal Ry., CV-90-258, 
citing Gade v. National Solid Waste Management Ass'n, 505 U.S. 88 
(1992).
    \4\ 29 U.S.C. 667.
    \5\ Napier v. Atlantic Coast Line RR., 272 U.S. 605 (1926).
    \6\ CSX Transportation v. Pitz, 699 F.Supp. 127 (W.D. Mich. 
1988).
    \7\ Norfolk and Western Ry. v. Pennsylvania Public Utility 
Comm'n, 413 A.2d 1037 (Pa. 1980).
---------------------------------------------------------------------------

    In 1992, Congress enacted Section 10 of The Rail Safety Enforcement 
and Review Act (RSERA) (Public Law 102-365, September 3, 1992, codified 
at 49 U.S.C. 20103, note) in response to concerns raised by employee 
organizations, congressional members, and recommendations of the 
National Transportation Safety Board concerning working conditions in 
locomotive cabs. In this legislation, Congress included mandates 
concerning locomotive crashworthiness and cab working conditions. 
Section 10 of RSERA, entitled Locomotive Crashworthiness and Working 
Conditions, required FRA ``to consider prescribing regulations to 
improve the safety and working conditions of locomotive cabs'' 
throughout the railroad industry. In order to determine whether 
regulations would be necessary, Congress asked FRA to

assess the extent to which environmental, sanitary and other working 
conditions in locomotive cabs affect productivity, health and the 
safe operation of locomotives.

    The interest Congress placed on locomotive cab sanitation reflected 
concerns for railroad safety, employee productivity, and the serious 
health consequences that may result if employees are exposed to 
unsanitary conditions or lack access to facilities. It is widely known 
that exposure to human fecal matter or untreated sewage waste can lead 
to diarrheal diseases such as amebiasis, giardiasis, shigellosis and 
viral diseases such as hepatitis. Transmission of some illnesses can 
occur through physical contact with waste, or with the toilet or other 
surfaces used by an infected human. Given the right environmental 
conditions, transmission may also occur through inhalation of affected 
microorganisms. In addition, disease transmission may occur through 
hand-to-mouth ingestion after physical contact with an infected source. 
The risk of contracting these illnesses underscores the importance of 
maintaining clean, operable toilet and washing facilities in the 
workplace, including locomotive cabs.
    In addition to the disease transmission concerns outlined above, 
there are health affects that may arise when access to toilet 
facilities is limited or prevented. Healthy adults consuming the 
recommended amounts of fluids can expect to void once every four hours 
during the day and once during the night. The urination process begins 
when the kidneys filter waste and water from the blood to form urine. 
The urine travels to the bladder and the nervous system sends `full' 
signals to the muscles that it is time to urinate. If urination doesn't 
occur when needed, incontinence, urinary tract infections, and kidney 
infections may occur. Prolonged distention of the bladder may lead to a 
disturbance of the elastic components of the bladder wall, which could 
weaken the evacuation power of the bladder. When the bladder is unable 
to empty completely, residual urine remains and can cause infection. 
Delaying bowel movements can lead to chronic constipation and other 
intestinal problems, and chronic constipation is often a factor in 
abnormal bladder emptying. In addition, a variety of health conditions 
may alter or increase the need to urinate and defecate, including 
pregnancy, benign prostate hypertrophy, prostate cancer, prostatitis, 
renal stone disease, hypertension, diabetes, stroke, and conditions of 
the central nervous system and spinal cord. These factors underscore 
the importance of providing adequate access to toilet and washing 
facilities for employees in the workplace.\8\
---------------------------------------------------------------------------

    \8\ See, Rowland RG, Foster RS, Donohoe JP, Adult and Pediatric 
Urology, St. Louis, Mosby-Year Book, Inc. (1996); Barry MJ, Fowler, 
FJ, Bin L, Pitts CJ, Mulley AG, The Natural History of Patients with 
Benign Prostatic Hyperplasia as Diagnosed by North American 
Urologists, J. Urol., 157, 10-15, (1997); Lapides, J., The Key to 
Urinary Infection, The Female Patient, 5, 11-13 (1980); Lapides, J., 
Primary Cause of Recurrent Urinary Tract Infection in Women, Journal 
of Urology, 100, 552-555 (1968); Darlow, H.M. and Bale, W. R., 
Infective Hazards of Water-Closets, Lancet 1: 1196-1200 (1959); 
Hendlev, J., Wenzel, H., Gwaltney, H., Transmission of Rhinovirus C 
Colds by Self-Inocculation, New England Journal of Medicine, 288, 
1361-1364 (1973); Gaber, C., Wallis, C., and Melnick, J., 
Microbiological Hazards of Household Toilets: Droplet Production and 
the Fate of Residual Organisms, Applied Microbiology 30: 229-236 
(1975); U.S. Occupational Safety and Health Administration, Field 
Sanitation, Final Rule, 52 FR 16050 (1987).
---------------------------------------------------------------------------

    In response to the Congressional mandate set forth in Section 10 of 
RSERA, FRA studied a variety of working conditions in locomotive cabs, 
including sanitation, noise, temperature, air quality, ergonomics, and 
vibration. FRA prepared the Locomotive Crashworthiness and Cab Working 
Conditions Report to Congress (``Report''), dated September 1996, that 
outlines the results of these studies. (The Report is available for 
review in the docket of this matter.)

II. The Report to Congress

    FRA conducted a survey of locomotive cab sanitation facilities and 
an evaluation of the chemicals used to clean, disinfect, and deodorize 
toilets. The primary focus of the survey was equipment owned by Class I 
railroad carriers, but units operated by small entities were also 
included in the study. FRA found a wide range of conditions in the 
course of the survey. The conditions varied due to many factors, 
including weather, type of sanitation system in place, carrier 
maintenance and service programs, and locomotive model. In addition, 
some locomotives surveyed were not equipped with sanitation facilities.
    FRA surveyed 234 locomotives during both typical and 
environmentally extreme working conditions. As the Report states, FRA 
found unsanitary, unpleasant conditions, and in some instances, 
inoperable units. FRA inspectors observed dirty floors and toilet 
seats, missing toilet seats, poor ventilation, offensive odors, and 
lack of

[[Page 138]]

toilet paper. During the winter months, FRA inspectors noted that 
certain toilet systems would freeze and become inoperable. Of the cabs 
surveyed, approximately thirty percent were deficient in some manner 
related to the use of sanitation facilities.
    During the survey, FRA determined that both employees and railroads 
play a role in the condition of sanitary facilities; poor sanitary 
conditions aboard locomotives are caused by inadequate maintenance and/
or heavy use or misuse by operating crews. FRA determined that most 
railroad carriers have programs in place to service toilet and washing 
units, and that the program requirements often vary from property to 
property depending on degree of use, toilet system in place, and 
weather conditions. In addition, FRA found that adherence to the 
servicing programs is uneven throughout the industry, and that in many 
situations, poor servicing is the primary cause of unsanitary, 
offensive sanitation facilities.
    FRA also determined that nearly all of the cleaning agents used to 
disinfect and deodorize locomotive cabs are over-the-counter products 
available to the general public. However, a small percentage of the 
cleaning agents used involve health risks, and so management 
supervision and employee training must take place in order to safeguard 
employee health. The Report explains that the locomotive safety 
standards (49 CFR part 229) do not require sanitation facilities in 
locomotive cabs, and some of the oldest equipment surveyed had no 
sanitation facilities on board. The Report also notes that there is 
some disparity in the legal treatment of sanitation in locomotive cabs 
among state and federal regulatory and enforcement bodies (as discussed 
in greater detail above), and confusion exists among industry members 
concerning applicable standards and guidelines.
    In conclusion, the Report notes FRA's concern about the potential 
for disparate regulatory treatment of sanitation in locomotives, and 
the unsanitary conditions that existed on some properties. Nonetheless, 
given the significant role that basic servicing plays in creating a 
sanitary workplace, and the relative ease with which servicing programs 
may be instituted, FRA was hopeful that the issue of locomotive 
sanitation could be resolved through management and labor cooperation 
to resolve the problem of absent, defective, or unsanitary facilities 
on locomotive cabs.

III. Railroad Safety Advisory Committee Recommendations to FRA

    Following publication of the Report, FRA continued to receive 
employee complaints about the state of sanitation in locomotive cabs, 
and the health and safety risks associated with working in an 
unsanitary area. Generally, throughout the national railroad system, 
employees continued to encounter dirty conditions and facilities in 
need of maintenance, and in some circumstances, difficulty in obtaining 
access to facilities at all.
    FRA also received complaints from employees of one carrier 
concerning the disposal method required by a particular sanitation 
system in use. The system, by design, involves the placement and 
temporary storage of plastic bags containing untreated waste into 
sealed waste containers, and presents perceived health concerns to some 
who handle the bags, and others in proximity to the waste containers. 
In addition, there were concerns about the expansion of this system as 
the railroad's territory increased, the increase of `power sharing' 
arrangements among the carriers, and the administrative difficulties 
that would arise in maintaining disparate systems as railroad equipment 
is mixed among carriers.
    Finally, some State agencies expressed frustration with FRA 
concerning the practical effect of the interplay of OSHA's program, the 
broad preemption provisions found in the LIA, and the uneven treatment 
given locomotive sanitation by the state and federal courts. The 
presence of LIA preemption and the inconsistent application of 
locomotive cab sanitation standards prevented certain State agencies 
from regulating this area of sanitation.
    In light of these concerns, FRA determined that cab sanitation must 
be revisited and addressed so that cab employees would have access to 
adequate sanitary facilities, and to ensure uniform application of the 
law. Despite the considerable acrimony that had developed in the 
industry surrounding this issue, FRA remained convinced that it should 
be addressed cooperatively, with the assistance of the stakeholders who 
possess the knowledge and expertise to resolve the problem effectively. 
Therefore, on June 24, 1997, FRA presented the subject of locomotive 
cab working conditions, including sanitation, to the Railroad Safety 
Advisory Committee (RSAC).
    RSAC was formed by FRA in March 1996 to provide a forum for 
consensual rulemaking and program development. The Committee includes 
representation from all of the agency's major customer groups, 
including railroad carriers, labor organizations, suppliers, 
manufacturers, and other interested parties. FRA typically assigns a 
task to RSAC, and after consideration and debate, RSAC may accept or 
reject the task. If accepted, RSAC establishes a working group that 
possesses the appropriate expertise and representation to develop 
recommendations to FRA for action on the task. These recommendations 
are developed by consensus. If a working group comes to consensus on 
recommendations for action, the package is presented to the full RSAC 
for a vote. If the proposal is accepted by a simple majority of the 
RSAC, the proposal is formally recommended to FRA. If the working group 
is unable to reach consensus on recommendations for action, FRA will 
move ahead to resolve the issue through traditional rulemaking 
proceedings.
    When FRA presented the subject of locomotive cab working conditions 
to RSAC in June 1997, the agency stated the purpose of the task as 
follows: to safeguard the health of locomotive crews and to promote the 
safe operation of trains. RSAC accepted this task, formed a Locomotive 
Cab Working Conditions Working Group (``Working Group''), and 
designated this assignment Task No. 97-2. As to sanitation, RSAC asked 
the Working Group to

Research comparable workplace requirements in an effort to develop 
minimum acceptable regulations, guidelines, or standards as 
appropriate for the locomotive cab environment.

    The Working Group established by RSAC consists of representatives 
of the following organizations, in addition to FRA:

American Association of State Highway & Transportation Officials
American Public Transit Association
American Short Line and Regional Railroad Association
Association of American Railroads
Brotherhood of Locomotive Engineers
Brotherhood of Maintenance of Way Employes (Nonvoting Member)
International Brotherhood of Electrical Workers
National Railroad Passenger Corporation (Amtrak)
Railway Progress Institute
Sheet Metal Workers' International Association
Transport Workers Union of America
United Transportation Union

    The Working Group's goal was to produce recommendations for 
locomotive cab sanitation standards

[[Page 139]]

warranted by an assessment of the available information and data, 
including the FRA survey of sanitary facilities and complaint 
information. The Working Group, or its designated subgroup, met 
regularly over a period of 15 months to discuss locomotive cab 
sanitation in the railroad industry. The discussions covered all 
aspects of sanitation facilities in the locomotive cab, including 
toilet systems, washing facilities, potable water, ventilation, 
lighting, trash disposal, provisions for toilet paper and bottled 
water, servicing, and unique operations or characteristics that might 
require specialized regulatory treatment.
    As a result of its deliberations, the Working Group provided to the 
full RSAC recommendations for locomotive cab sanitation standards. On 
December 7, 2000, the full RSAC voted to forward these recommendations 
to FRA for rulemaking action, and in large measure, this Notice of 
Proposed rulemaking (NPRM) incorporates the Working Group's product. 
FRA worked closely with the Working Group in the development of its 
recommendations, and believes they comprehensively and effectively 
address sanitation for cab employees. FRA has greatly benefitted from 
the open, informed exchange of information that has taken place in the 
Working Group meetings. Although all participants may not agree on each 
recommendation offered, there is general consensus among labor, 
management, and manufacturers concerning the primary principles FRA 
sets forth in this NPRM. FRA believes that the expertise the Working 
Group industry representatives possess enhance the value of the 
recommendations, and FRA has made every effort to incorporate them in 
this proposal. Also, FRA and the Working Group will reassemble after 
the comment period for this NPRM has closed to consider all comments 
received, and make recommendations concerning development of a final 
standard.

IV. Regulatory Treatment of Sanitation by Other Governmental Agencies

    In addition to incorporating many of the recommendations of the 
Working Group in this proposal, FRA reviewed the existing body of 
regulatory requirements concerning sanitation in the workplace across 
the governmental spectrum, in order to gain insight on useful 
regulatory approaches to a subject that is fraught with subjectivity 
and potential enforcement difficulties. FRA has utilized language and 
fundamental concepts from these standards, where appropriate, to ensure 
that railroad employees receive at least an equivalent level of 
protection as other employees in the United States. Listed below is a 
summary of the regulatory treatment of potable water, toilet and 
washing facilities, and access to facilities, which FRA reviewed in 
preparation of this proposal. This summary is not exhaustive, but 
attempts to capture the overall regulatory approach taken to the topic 
of sanitation in the workplace.
Potable Water
    In common parlance, potable water is water that is fit or safe to 
drink. Generally, regulations promulgated by the U.S. Food and Drug 
Administration (FDA) and the U.S. Environmental Protection Agency (EPA) 
govern the quality and public consumption of water. As part of FDA's 
program to control communicable diseases (21 CFR part 1240) and to 
control interstate conveyance sanitation (21 CFR part 1250), FDA 
requires operators of a conveyance engaged in interstate traffic to 
provide only potable water for drinking and culinary purposes. 21 CFR 
1240.80 and 1250.82. Interstate traffic is ``the movement of any 
conveyance or the transportation of persons or property'' within a 
State and between states, but does not include movement exclusively for 
repair, rehabilitation, or storage. 21 CFR 1240.3(h). The term 
``conveyance'' means any land or air carrier, and most passenger ships 
and towing vessels. 21 CFR 1250.3(e).
    OSHA regulates the quality of water in most workplaces, and 
requires employers to provide potable water for drinking, washing, and 
cooking. 29 CFR 1910.141(b), 29 CFR 1926.51(a). These OSHA standards 
would not apply to workplaces covered by another federal agency's 
regulations on point; where Memoranda of Understanding between OSHA and 
other federal agencies oust OSHA's authority; where operation of 
statutory preemption clauses oust OSHA's authority; or where OSHA has 
approved a State to address occupational safety and health issues. 29 
U.S.C. 651, et seq. (For the most part, states that have chosen to run 
their own occupational safety and health program, issue standards quite 
similar to the federal OSHA standard, except where a local concern 
requires more rigorous treatment.)
    FDA defines potable water as water that meets EPA's Primary 
Drinking Water Regulations, which are set forth in 40 CFR part 141. 
EPA's primary drinking water standards do not succinctly define potable 
water; rather, the standards set maximum contaminant levels (MCL's) for 
organic and inorganic chemicals and contaminants, turbidity, radium, 
particle radioactivity, and other hazardous agents that may not be 
exceeded in public water systems. The EPA standards also prescribe 
monitoring, notification, filtration, and disinfection requirements, 
and address the control of lead and copper in public water systems. 
Therefore, FDA requires public water systems used for human consumption 
to meet all of the MCL's and administrative standards set forth in 
EPA's standards.
    OSHA defines potable water in essentially identical fashion [29 CFR 
1910.141(a)(v), 29 CFR 1926.51(a)(6)], but the definition includes an 
outdated citation, which may unnecessarily confuse the issue. OSHA 
states that potable water is water that meets the quality standards set 
forth in the U.S. Public Health Service Drinking Water Standards, 
located at 42 CFR part 72. The Public Health Service administered 
federal safe drinking water programs prior to EPA, but EPA's current 
standards (40 CFR part 141) supersede the old regulations referred to 
in OSHA's definition.
    Where nonpotable water is in use, FDA and OSHA require operators 
and employers to post signs to indicate that the water is not suitable 
for drinking, washing, or culinary purposes. 29 CFR 1910.141(b)(2), 29 
CFR 1926.51(b), 21 CFR 1250.67(b). In addition, systems that carry 
nonpotable water or other nonpotable substances must be designed and 
operated to prevent backflow or seepage into the potable water system. 
29 CFR 1910.141(b)(2); 29 CFR 1926.51(b); 21 CFR 1250.30(d), 1250.42, 
and 1250.67. Nonpotable water may be used for cleaning work premises in 
limited circumstances and where the nonpotable water doesn't contain 
unsanitary or harmful products such as chemicals and fecal coliform. 
Nonpotable water may not be used for cleaning areas where food 
preparation takes place, or in toilet, shower or wash rooms. 29 CFR 
1920.141(2).
    FDA requires water systems in conveyances to be ``complete and 
closed from the filling ends to the discharge taps, except for 
protected vent openings.'' In addition, filling pipes or connections 
used for filling tanks on conveyances, must be positioned on both sides 
of all new railway conveyances and on existing conveyances when they 
undergo heavy repairs. The filling connections must be easy to clean, 
and located and protected to minimize the risk of contamination. On all 
new or reconstructed conveyances, water coolers must be an integral 
part of the closed water system.

[[Page 140]]

Water filters may be used only if they are maintained to prevent 
contamination. Constant temperature bottles and other containers used 
for storing potable water must be kept clean and subjected to effective 
bacteriological treatment as necessary to prevent any contamination. 21 
CFR 1250.42. (In another section of part 1250, FDA defines ``new 
railroad conveyance'' as ``any conveyance placed into service for the 
first time after July 1, 1972.'' 21 CFR 1250.51. Presumably this 
definition applies to all requirements in part 1250, but that is 
unclear from the structure of the subpart.)
    FDA has authority to approve water systems. Generally, FDA approves 
watering points that meet EPA's Primary Drinking Water Regulations, and 
where the methods of delivery, facilities used for delivery, and the 
sanitary conditions surrounding the delivery of water prevent the 
introduction, transmission, or spread of communicable diseases. This 
approval may be based on the investigations of State departments of 
health. 21 CFR 1240.83. The FDA will approve the treatment of water 
aboard conveyances if the system or apparatus produces potable water. 
This approval may be based on investigations conducted by State 
representatives. 21 CFR 1240.90.
    The states may regulate the quality and consumption of water 
through their general public health authority. Generally, the states 
define and treat the subject of potable water in the same way that 
federal agencies do. The term is defined in a number of ways, but all 
have essentially the same meaning: Water that has been approved by the 
State department of health (Tennessee); water that is fit for human 
consumption in accordance with accepted water supply principles and 
practices (Illinois); water that complies with the standard for water 
systems under the California Safe Drinking Water Act (California); 
water that is safe for drinking, culinary, and domestic purposes, and 
which meets the requirements of the department of health (Colorado); or 
water having bacteriological, physical, radiological, and chemical 
qualities that make it safe and suitable for human drinking, cooking, 
and washing uses (Louisiana). The states generally require that only 
potable water be used for human consumption, and any sources that 
contain nonpotable water must be marked as unsuitable for consumption.
Toilet and Washing Facilities
    OSHA's general industry standards (29 CFR part 1910) and 
construction industry standards (29 CFR part 1926) set forth federal 
standards for toilet and washing facilities that apply to most 
workplaces. The general industry standards require employers to provide 
toilet facilities at all places of employment, except where mobile 
crews or typically unattended work locations are involved. 29 CFR 
1910.141(c). In the case of mobile crews and unattended work stations, 
employers may avoid providing toilet facilities, so long as ``these 
employees working at these locations have transportation immediately 
available to nearby toilet facilities.'' OSHA defines toilet facility 
as a fixture maintained within a toilet room for the purposes of 
defecation or urination, or both. 29 CFR 1910.141(a)(2). The general 
industry standards require employers to provide specific numbers of 
toilets, based on the number of employees at the site. The sewage 
disposal method must not endanger the health of the employees. 29 CFR 
1910.141(c).
    With regard to temporary labor camps, OSHA's general industry 
standards require employers to provide toilet facilities ``adequate for 
the capacity of the camp.'' 29 CFR 1910.142(d). The toilet rooms must 
be located within 200 feet of the sleeping rooms, and the number of 
toilets provided must be in a ratio of one per 15 employees. 29 CFR 
1910.142(d). The toilet rooms must be lighted naturally or artificially 
with other ``safe lighting at all hours of the day and night,'' and 
``an adequate supply of toilet paper must be provided.'' Toilets must 
``be kept in a sanitary condition'' and ``cleaned at least daily.'' 29 
CFR 1910.142(d).
    OSHA's construction standards require employers to provide toilets 
at all sites. Under temporary field conditions, employers must provide 
at least one toilet. 29 CFR 1926.51(c). However, job sites not equipped 
with a sanitary sewer must have a privy, chemical toilet, recirculating 
toilet, or combustion toilet, unless prohibited by local health codes. 
29 CFR 1926.51(c)(3). These requirements do not apply to mobile crews 
so long as the crews have ``transportation readily available to nearby 
toilet facilities.'' 29 CFR 1926.51(c)(4).
    In addition to the construction and general industry standards, 
OSHA has promulgated standards for marine work sites, longshoring 
operations, and agricultural workers. The standards for marine 
terminals (29 CFR 1917.127) and longshoring operations (29 CFR 1918.95) 
are nearly identical. Marine terminal employers must provide 
``accessible washing and toilet facilities sufficient for the sanitary 
requirements of employees.'' Longshoring operations must ``provide 
accessible washing and toilet facilities sufficient for the sanitary 
requirements of employees'' that are ``readily accessible at the work 
site.'' The marine and longshoring facilities must include water, soap, 
hand towels or blowers, and fixed or portable toilets with latch-
equipped doors, and the washing and toilet facilities must ``be 
regularly cleaned and maintained in good order.''
    OSHA's regulations for field sanitation in the agricultural 
industries (29 CFR 1928.110) apply to any agricultural establishment 
where 11 or more employees are engaged on any given day in hand-labor 
operations in the field. OSHA defines toilet facility here as

a fixed or portable facility designed for the purpose of adequate 
collection and containment of the products of both defecation and 
urination, which is supplied with toilet paper adequate to employee 
needs. Toilet facility includes biological, chemical, flush and 
combustion toilets and sanitary privies.

These toilet facilities must be ``adequately ventilated,'' screened, 
and have doors that can be locked. The toilet facilities must be 
``maintained in accordance with appropriate public health sanitation 
practices,'' must ``be operational and maintained in clean and sanitary 
condition,'' and ``disposal of wastes from facilities shall not cause 
unsanitary conditions.''
    FDA has promulgated standards for toilet facilities on conveyances. 
Toilet and lavatories for food-handling employees must be of ``suitable 
design and construction'' and must be ``maintained in a clean 
condition.'' 21. CFR 250.38. In addition, FDA requires that

where toilet and lavatory facilities are provided on conveyances 
they shall be so designed as to permit ready cleaning. On 
conveyances not equipped with retention facilities, toilet hoppers 
shall be of such design and so located as to prevent spattering of 
water filling pipes or hydrants.

21 CFR 1250.50. When railroad conveyances that are ``occupied or open 
to occupancy by travelers, are at a station or servicing area,'' 
toilets must be kept locked unless measures are taken to prevent 
contamination of the area or station. 21 CFR 1250.51(c). Human waste 
may not be discharged from any new railroad conveyance, except at 
servicing areas approved by the FDA. However, human waste that has been 
treated to prevent the spread of communicable diseases may be 
discharged from conveyances, except at stations. 21 CFR 1250.51(a). New 
railroad conveyance used here means any equipment placed into service 
after

[[Page 141]]

July 1, 1972. Equipment initiated into service prior to July 1972, may 
not discharge untreated waste, except where a passenger conveyance 
operator has filed for and received an extension of time in which to 
comply. 21 CFR 1250.51(b).
    OSHA's general industry standards require that washing facilities 
``be maintained in a sanitary condition.'' Lavatories must be provided 
in all places of employment. However, lavatories need not be present 
where mobile crews or unattended work sites are involved, so long as 
employees at these locations have ``transportation readily available to 
nearby washing facilities.'' 29 CFR 1910.141(d). Each lavatory must 
have hot and cold, or tepid running water; hand soap or similar 
cleansing agent; and hand towels or blowers. For purposes of these 
requirements, lavatory is ``a basin or similar vessel used exclusively 
for washing of the hands, arms, face, and head.'' 29 CFR 1910.141(a).
    OSHA's construction industry standards require employers to provide 
adequate washing facilities for

employees engaged in the application of paints, coating, herbicides, 
or insecticides, or in other operations where contaminants may be 
harmful to the employees. Such facilities shall be in near proximity 
to the work site and shall be so equipped as to enable employees to 
remove such substances.

29 CFR 1926.51(f). Washing facilities must be ``maintained in a 
sanitary condition.'' Lavatories must be provided at all work sites, 
except where mobile crews or unattended work sites are involved and 
employees at these locations have ``transportation readily available to 
nearby washing facilities.'' Lavatories must have hot and cold, or 
tepid running water; hand soap or similar cleansing agents; and hand 
towels or blowers. 29 CFR 1926.51(f).
    OSHA's regulations for marine terminals and longshoring activities 
require employers to provide washing facilities that include, hot, 
cold, or tepid running water at one accessible location. Where work is 
being done away from permanent facilities, potable water may provided 
in lieu of running water. 29 CFR 1917.127(a); 29 CFR 1918.95(a). Also, 
the facilities must include soap, and hand towels or blowers. The 
washing facilities must be ``regularly cleaned and maintained in good 
order.''
    OSHA's washing standards for agricultural operations where 11 or 
more employees are working on any given day, require one hand washing 
facility for every 20 employees. 29 CFR 1928.110(c)(2). Hand washing 
facility means a ``basin, container, or outlet with an adequate supply 
of potable water, soap and single-use towels.'' 29 CFR 1928.110(b). 
Washing facilities must be maintained

in accordance with appropriate public health sanitation practices, 
including * * * hand washing facilities shall be refilled with 
potable water as necessary to ensure an adequate supply and shall be 
maintained in a clean and sanitary condition. * * *

29 CFR 1928.110(c)(3).
    Generally, the federal OSHA workplace sanitation standards preempt 
state workplace sanitation standards, except where a state has chosen 
to operate its own occupational safety and health regulatory program. 
These programs must be approved by OSHA. [The State-Plan States are 
Alaska, Arizona, California, Connecticut, Hawaii, Indiana, Iowa, 
Kentucky, Maryland, Michigan, Minnesota, Nevada, New Mexico, New York 
(covers public employees only), North Carolina, Oregon, Puerto Rico, 
South Carolina, Tennessee, Utah, Vermont, Virgin Islands, Virginia, 
Washington, Wyoming.] The State-Plan states inspect and enforce their 
state standards utilizing state personnel. Any fines collected go into 
the federal general treasury fund, which are usually syphoned back to 
OSHA and then to the state.
    For the most part, the State-Plan states adopt and enforce the 
federal OSHA general industry (29 CFR part 1910) and construction 
industry (29 CFR part 1926) standards concerning sanitation facilities 
in the workplace. However, some of the State-Plan states may adopt a 
different standard. For instance, California has issued regulations in 
the State Labor Code, Sanitary Conditions in Factories and 
Establishments, which provide

Every factory, workshop, mercantile or other establishment in which 
one or more persons are employed, shall be kept clean and free from 
the effluvia arising from any drain or other nuisance, and shall be 
provided, within reasonable access, with a sufficient number of 
toilet facilities for the use of the employees. Where there are five 
or more employees who are not all of the same gender, a sufficient 
number of separate toilet facilities shall be provided for the use 
of each sex, which shall be plainly so designated.

Cal. Lab. Code section 2350. The State has also issued several 
sanitation standards for food establishments that include employee 
facilities. In general, the standards provide that sanitation 
facilities must be kept separate from food processing and handling, 
toilet paper must be provided, and the facilities must be ``maintained 
in a clean and sanitary condition.'' Cal Health & Saf Code section 
113335. For milk product plants, California provides that ``a suitable 
toilet, with self-closing door, and lavatory facilities, soap, and 
clean towels shall be provided for employees.'' Cal Food & Agr Code 
section 33777. Also, California adopted a standard for toilets in 
railroad cabooses:

It shall be unlawful for any owner or operator of a railroad running 
through * * * California * * * to operate for or transport the 
public or its employees in a caboose which is not provided with 
flush-type toilet facilities, or chemical type toilet facilities. * 
* *

Cal Pub Util Code section 7614.
    Oregon has promulgated sanitation standards that vary slightly from 
the federal OSHA standards. For instance, Oregon's sanitation 
requirements for construction projects provide that every construction 
project estimated to cost $1 million or more must have toilet 
facilities and facilities for maintaining personal cleanliness for 
employees. The workplace must include flush toilets, and washing 
facilities with warm water, wash basins, and soap. ORS section 654.150. 
Oregon also enforces sanitation standards for agricultural workers, and 
requires toilet facilities to be ``maintained in clean and sanitary 
condition.'' In addition, ``hand washing facilities must provide clean 
water, soap or other suitable cleansing agent, paper towels, and a 
method for disposal of used towels.'' ORS section 654.174.
    Aside from these State-Plan state regulations, a few states that 
are generally covered by the federal OSHA program have promulgated 
sanitation standards for employees not covered by the OSHA's standards. 
Texas issued sanitation standards that apply to employees of city, 
county, and state offices, who are typically exempted from OSHA's 
protections. These regulations require that ``adequate toilet 
facilities'' and water closets be provided, and that the sewage or 
treatment system comply with the local health authority requirements. 
25 TAC section 295.106(n)(2). For purposes of this requirement, 
``toilet facility'' is a water-flushed fixture maintained in a toilet 
room for the purpose of defecation, and ``water closet'' is a toilet 
facility that is connected to a sewer and flushed with water. 25 TAC 
section 295.106(d).
    The Texas standard also includes ventilation rates that must be 
met. If there is no applicable local ventilation requirement, the 
standard imposes a rate measured in cubic feet, per minute, per person. 
Also, the standard references ventilation recommendations published by 
the American Society of Heating and Ventilation Engineers and

[[Page 142]]

the American Conference of Governmental Industrial Hygienists. The 
standard requires toilet rooms to be provided with a minimum 
ventilation rate of 35 cubic feet of air per minute, per water closet 
or urinal installed. 25 TAC section 295.106(k). An ``adequate supply of 
toilet paper with holder shall be provided at every water closet.'' 25 
TAC section 295.106(n). The Texas standard also permits the use of 
chemical toilets, so long as they are maintained ``in a sanitary 
condition'' and are the type approved by local health authorities. 25 
TAC section 295.106(q).
    Also, Texas has issued sanitation regulations that apply to 
temporary places of employment, including maintenance-of-way operations 
on railroads, agricultural operations, transitory or seasonal work, and 
work of a mobile nature that may involve a series of locations and 
movement between them. 25 TAC section 295.161. These regulations do not 
apply to places of employment already covered by federal OSHA standards 
or to the operation of railroad rolling stock. Employers who have no 
more than ``6 employees working at a temporary place of employment on 
any work day may, on such days,'' are exempt from providing toilet and 
hand washing facilities, so long as the employer arranges for 
``immediate transportation'' to nearby facilities. Employers must 
provide toilet facilities for all temporary places of employment, that 
are ``readily accessible to all employees during all working hours and 
rest periods.'' The facility may be fixed or portable. 25 TAC section 
295.166(a). Toilet facility is a ``plumbing device for the purpose of 
defecation or urination, or both, including water closets and 
biological or chemical toilets and urinals.'' 25 TAC section 295.162. 
Toilet rooms and facilities must be

maintained in a sanitary condition, free of objectionable toilet 
odors, during all work hours and rest periods. * * * An adequate 
supply of toilet paper in a suitable holder shall be maintained for 
each toilet. Covered waste receptacles shall be provided in all 
toilet rooms used by women.

25 TAC section 295.166(a)(6). Texas has one of the few standards that 
attempts to define ``sanitary condition.'' It is ``that condition of 
good order and cleanliness which precludes the probability of disease 
transmission.'' 25 TAC section 295.162.
    This Texas standard also sets specifications for toilets at fixed 
facilities and portable toilets. At fixed facilities, the toilets must 
be in a compartment equipped with a latch, installed so that the space 
around it can be easily cleaned, and provided with some sort of 
ventilation. Portable toilet facilities must be readily accessible, 
private, ventilated mechanically or by use of screening, and where 
waste is stored in a tank, the tank must be vented to the outside. 25 
TAC section 295.166(b). In temporary places of employment, employers 
must provide hand washing facilities that are convenient and maintained 
in a sanitary condition. They must have running, potable water, a 
``suitable cleansing agent,'' and hand towels and proper receptacles 
for disposal. 25 TAC section 295.167(a).
Access to Sanitation Facilities
    The federal OSHA general industry and construction industry 
standards require employers to provide sanitation facilities at nearly 
all work sites. However, where mobile crews or unattended work 
locations are involved, sanitation facilities are not required on-site 
so long as employees ``have transportation immediately available to 
nearby toilet facilities'' that otherwise meet the federal 
requirements. 29 CFR 1910.141; 29 CFR 1926.51(c). In addition to the 
concept of the presence of facilities, the employer must permit 
employees to use the available facilities as the need arises. In a 
recent interpretation released April 6, 1998, OSHA explains that 
employers may not impose unreasonable restrictions on employee use of 
sanitary facilities. In support of this interpretation, OSHA states 
that this view is implicit in the language of the regulation. 
Furthermore, OSHA states that individuals vary greatly as to the 
frequency with which they need to use sanitary facilities. This is due 
to a variety of factors, including pregnancy, stress incontinence, 
prostatic hypertrophy, use of certain medications, environmental 
factors such as cold temperatures, high fluid intake, and diet. Access 
to toilet facilities as needed is critical to preventing the adverse 
health affects that may develop from voluntary retention.
    OSHA regulates access to sanitary facilities in the marine 
terminal, longshoring, and agricultural workplaces as well. In the 
marine terminal standards, the access issue is handled minimally: ``the 
employer must provide accessible washing and toilet facilities 
sufficient for the sanitary requirements of employees.'' 29 CFR 
1917.127 (a). The treatment is similar in the longshoring regulation: 
``Accessible washing and toilet facilities sufficient for the sanitary 
requirements of employees shall be readily accessible at the work 
site.'' 29 CFR 1918.95(a).
    OSHA's agricultural field sanitation standards (29 CFR 1928.110) 
provide more detail in outlining how an employer must provide access to 
sanitary facilities. Toilet and hand washing facilities must be 
``accessibly located'' and in close proximity to each other. The 
facilities must be located ``within a one-quarter mile walk'' of each 
hand laborer's location in the field. If this is not possible because 
of the local terrain, the facility must be located ``at the point of 
closest vehicular access.'' Also, access to on-site toilet and hand 
washing facilities is not required at all for employees who perform 
field work for a period of 3 hours or less, including transportation 
time to and from the field during the work day. Employers must notify 
employees of the location of the sanitation facilities and water, and 
must give employees ``reasonable opportunities during the workday to 
use them.'' OSHA also requires agricultural employers to explain the 
importance of good hygiene, such as using all facilities, drinking 
sufficient water, washing hands, and so forth.
    For the most part, the states regulate access to sanitation 
facilities in similar fashion. There are a few notable exceptions. 
Texas' standard for sanitation at temporary places of employment 
requires that where a site has only 6 employees on any given work day, 
the employer may avoid providing on-site facilities so long as the 
employer has arranged for ``immediate transportation for these persons 
to travel to and from nearby facilities.'' 25 TAC 295.161(d). Also, the 
Texas standard sets a maximum unimpeded walking distance of no more 
than 440 yards (400 meters or \1/4\ mile) from the work site to the 
facility. If the walk is impeded (requires some climbing), the distance 
must be shorter, and not to exceed 5 minutes. If it is not possible to 
comply with this travel distance, the employer must provide facilities 
at the nearest possible location, and must arrange for transportation 
during both work and rest periods for immediate travel to and from the 
facilities. The time needed to reach the facility may not exceed 5 
minutes. 25 TAC 295.161(f). The Texas sanitation standard for temporary 
workplaces also requires that facilities be ``readily accessible to all 
employees during all working hours and rest periods.'' 25 TAC 
295.166(a).
    North Dakota has issued sanitation regulations that address access 
in a different manner than OSHA. The North Dakota standard requires 
facilities to be

readily accessible to all employees. Toilet facilities so located 
that employees must use

[[Page 143]]

more than one floor-to-floor flight of stairs to or from them are 
not considered as readily accessible. As far as is practicable, 
toilet facilities should be located within two hundred feet of all 
locations at which workers are regularly employed.

N.D. Admin. Code 33-03-20-06.

Section-by-Section Analysis

    It is important to note that FRA's proposed rule text set forth 
below differs in some respects from the other federal and state 
standards because of the unique characteristics of the railroad 
operating environment. The working environment for railroad cab 
employees is quite different than the typical American worker. Existing 
locomotive toilet systems and corresponding maintenance needs are not 
uniform throughout the industry. Employees may work on a different 
locomotive and a variety of routes each day of the week. Employee 
assignments and actual time spent in the cab may vary significantly 
during a typical week, and toilet systems might vary significantly on 
each of these occasions. The time it takes to complete a particular 
route might vary greatly from day-to-day, due to traffic, load, and 
weather conditions. Small operators typically possess older equipment, 
and some units may not be equipped with toilet facilities at all. On 
these properties, employees may generally have access to adequate 
sanitation facilities along the right-of-way, but there may be 
occasions when that is difficult to achieve.
    There are significant economic and operational barriers to 
requiring a ``one-size-fits-all'' sanitation standard, given all of 
these factors, and consequently FRA has made every effort in this 
proposal to be flexible. The basic requirement set forth in the 
proposal is that each cab employee should have access to clean, 
operable toilet facilities, as the need arises for each individual. 
There may be instances where that basic principle is frustrated, but 
FRA believes the proposal minimizes that likelihood to the fullest 
extent possible.

Definitions

    The NPRM begins with proposed definitions for key terms used, which 
would be placed in section 229.5 with the other definitions established 
for part 229. The definitions are set forth alphabetically. For the 
terms commuter service, switching service, and transfer train service, 
please see the detailed discussion of the exceptions to the general 
requirements, discussed in conjunction with section 229.137(b) below. 
The proposed definition of the term modesty lock relates to a 
rudimentary lock that would be required on the door of the sanitation 
compartment. As proposed, the modesty lock is a lock or latch that is 
operated by the occupant of the sanitation compartment to provide 
privacy while in use. It is not required that a modesty lock be 
designed to prevent deliberate forced entry. For example, some locks 
could be designed to provide emergency access, to accommodate carrier 
concerns that access may be required in the event of an accident or 
health problem. Such access could be gained, for example, by using a 
coin to turn a slotted pin or using a pencil inserted into a hole to 
slide a latch. Such simple measures would prevent inadvertent 
intrusion, thereby maintaining privacy while allowing prompt emergency 
access. Most locomotives are now equipped with a modesty lock that 
would meet the proposed definition, and these existing locks vary from 
property to property. In addition, there are a variety of products 
available on the market that would meet the requirements of this 
proposed definition, which vary in price, sophistication, and size. For 
example, a very simple surface-applied slide latch may be employed to 
meet the requirements of the proposed definition. At this time, FRA 
sees no need to prescribe more specific requirements for the modesty 
lock, so that each railroad carrier may choose the best device among 
the variety of products available to suit their equipment and cost 
needs, and so that existing locks which serve the intended purpose of 
privacy may remain in place.
    The proposed definition for potable water references the 
requirements of the U.S. Environmental Protection Agency drinking water 
standards, which are recognized as the pertinent reference standard. 
This proposed definition also states that commercially available 
bottled water is deemed to be potable water for purposes of the 
sanitation standards. So long as employees have potable water available 
in adequate supply for drinking and washing purposes, that is bottled 
and a recognized commercial product, the running water that might be 
present in the sanitation facility on some locomotives would not have 
to strictly meet the EPA drinking water guidelines. On many older 
locomotives in use, tanks of water are present, and may have been used 
at one time for drinking and washing purposes. Nothing in this proposal 
would require the removal of these water tanks. However, with the 
advent of bottled water, and the knowledge that it is sometimes 
difficult to maintain ``potable'' water in the large, on-board tanks, 
carriers typically now provide packs of bottled water to cab employees. 
Also, on many of the newer locomotives, there is no large water holding 
tank for employee use, and carriers with these units also utilize the 
convenience and safety aspects of commercially available bottled water. 
FRA sees no adverse consequences associated with this usage, and 
believes it may decrease the risk of illness to cab employees.
    The NPRM proposes definitions for the terms sanitary and 
unsanitary, respectively, which involve the absence or presence of 
filth, trash, and waste that would cause a reasonable person to believe 
that the condition might constitute a health hazard; and persistent 
odor sufficient to deter normal use of the facility or to give rise to 
a reasonable concern with respect to exposure to hazardous fumes. FRA 
believes that providing these definitions would add clarity to this 
issue and would ultimately help the industry to comply with the 
proposed standard. These terms when used in ordinary discussion are 
somewhat subjective, and might produce different inferences among 
different people. Therefore, FRA's proposed definition incorporates the 
perceptions of a reasonable person, or the average reaction to 
sanitation facilities, and includes specific examples that would 
constitute unsanitary conditions. Sanitary conditions are thus defined 
as the absence of those conditions. The list provided in the proposal 
is illustrative, not exhaustive, and should serve as guidance to the 
industry of what FRA would consider noncompliant. Undoubtedly, FRA 
inspectors and the industry will have to utilize on-the-spot judgments 
in order to distinguish conditions that are acceptable from those that 
are not. These proposed definitions are inserted to guide those local 
decisions in an area that can be very subjective. FRA invites comment 
on these definitions, including additional or alternate language that 
may enhance the clarity of the terms.
    In discussions subsequent to the last Working Group meeting, some 
of the railroad representatives expressed frustration at the subjective 
nature of defining terms like ``sanitary'' and ``unsanitary'' and 
proposed an alternate definition for the term ``sanitary.''
    The railroad's suggested language suggests that only an 
``accumulation'' of filth, trash, or human waste is unacceptable 
whereas visible dirt would not constitute an unsanitary condition. On 
this point, the RSAC parties generally accept that immaculate 
conditions cannot be expected, any more than one would expect such

[[Page 144]]

conditions in a public rest room in an airport or office building. 
However, sanitation compartments are expected to be clean and tidy 
following periodic servicing and cleaning. However, since the duty to 
remedy an unsanitary condition arises only at the daily inspection, it 
is particularly appropriate to specify a standard that describes 
conditions most people would find unacceptable. The definitions of 
sanitary and unsanitary that appear in the proposed rule text reflect 
consideration of this issue of accumulation by including the phrase 
``any significant amount of filth, trash, or human waste.''
    The Working Group further discussed another important issue raised 
by the railroads' suggested language: what perception must the 
reasonable person have before a condition is unacceptable? What amount 
of filth, trash, or human waste is considered significant by the 
reasonable person? FRA's approach to the subject is governed by the 
need to encourage use of sanitary facilities on a regular basis as a 
matter of good health. Even if a condition is objectively harmless (as 
determined by later laboratory analysis), the fact that it gives the 
appearance of possible unhealthfulness could discourage use of the 
facility and contribute to degraded health.
    The railroads' suggested language tries to address the topic of to 
what extent the railroad is responsible for conditions there were left 
behind by careless employees or trespassers. To limit the disruption of 
service because of conditions over which the carrier has limited 
control, the carriers suggested that certain conditions be treated as 
unsanitary only if ``caused by mechanical or maintenance failure in the 
compartment.'' This language may present enforcement difficulties for 
FRA in determining whether a mechanical or maintenance failure has 
occurred. This raises issues that could legitimately bear on the 
exercise of FRA enforcement discretion, yet FRA believes such issues 
shouldn't serve as a defense to failure to address unsanitary 
conditions at the daily inspection. No railroad employee should have to 
contend with unsanitary conditions left behind by a trespasser or prior 
employee user of the facility.
    With the exception of branch lines discussed elsewhere in the 
preamble, as of the daily inspection, railroads should be prepared to 
clean a sanitation compartment and service a toilet facility or to 
place the unit in a trailing position if the sanitation compartment is 
no longer sanitary or operative.
    FRA invites comment on these proposed definitions from all 
interested parties. This is a very difficult area, and one in which 
other regulatory bodies have opted to leave these terms undefined. 
Nonetheless, FRA would like to arrive at suitable definitions for these 
subjective terms that are consistent with the spirit of the Working 
Group discussions, and that provide adequate notice to the industry as 
to what constitutes compliance.
    FRA proposes to define sanitation compartment as an enclosed 
compartment on a locomotive that contains a toilet for employee use. 
Depending on the type of locomotive, these compartments may be located 
in the nose of the unit or behind the engineer's seat. Further 
discussions below explain in detail what each sanitation compartment 
must contain.
    FRA proposes to define toilet facility as a system that 
automatically or on command of the user removes waste to a place where 
it is treated, eliminated, or retained such that no solid or non-
treated liquid waste is thereafter permitted to be released into the 
bowl, urinal, or room and that prevents harmful discharges of gases or 
persistent offensive odors. FRA developed this proposed definition with 
the assistance of the Working Group. There are a variety of toilets 
available on the market for use on board locomotives, and FRA did not 
wish to exclude the use of any of the systems that effectively meet 
human sanitation needs. Therefore, this definition attempts to 
establish performance criteria that all of the adequate facilities meet 
when operating as intended.
    To clarify FRA's intent concerning some of the language proposed 
with respect to toilet facility, ``automatically * * * removing the 
waste'' does not mean that waste is removed by gravity. Rather, this 
language is intended to cover systems that possess sensors which flush 
waste once the occupant leaves the toilet area. It is FRA's 
understanding that some toilets that may be used on locomotives utilize 
this feature, and FRA believes it is an effective tool. However, FRA 
does not intend that systems, without a device to separate the waste 
tank from the user (such as a deflector), which simply permit waste to 
flow to holding tanks below the toilet bowl and remain there until 
emptied, meet this proposed definition. These systems are prone to 
overfilling and noxious odors, and may go uncleaned for some time 
because the cleaning or emptying process is very unpleasant and hence 
doesn't get accomplished. The term ``on command of the user'' means 
that a flush mechanism is present and functions as intended.
    The definition for toilet facility also includes the terms 
``harmful'' and ``offensive,'' which may give rise to differing 
subjective interpretations. FRA and the Working Group discussed these 
words and ultimately determined that a certain amount of subjectivity 
is inevitable when personal preferences for cleanliness are involved. 
Individuals may differ as to what seems ``offensive'' or even 
``harmful.'' FRA intends that the toilet system must effectively remove 
or treat the waste so that odors generated in the toilet area do not 
linger and penetrate the cab working environment. FRA will use its 
reasonable judgment in determining whether odors rise to the level of 
offensiveness or harmfulness.
    FRA proposes to define washing system as a system for use by 
employees to maintain personal cleanliness. As defined here, the 
facility may include a secured sink, water, antibacterial soap and 
paper towels; or antibacterial waterless soap; or antibacterial moist 
towelettes and paper towels; or any combination of antibacterial 
cleansing agents. It is critical that all employees have available to 
them a system in which they are able to clean and sanitize their hands 
after using the toilet. FRA wishes to be as flexible as possible in 
prescribing washing systems for locomotive cabs. There are a variety of 
antibacterial agents available on the market that effectively sanitize 
and disinfect after toilet use. In addition, there are many locomotive 
units that do not possess sinks and running water for employees to use 
as washing facilities. As a result of discussions with the Working 
Group, it is FRA's understanding that most cab crews receive a package 
of items for use on each trip, and this ``crew pack'' typically 
includes the sort of washing system that is permitted by this 
definition. Therefore, so long as employees are provided with one of 
the options included in the definition, or others that may be developed 
in the future that provide an equivalent level of sanitation, this 
portion of the sanitation requirement has been met.
    Members of the Working Group expressed concern about restrictions 
on the placement of ``crew packs.'' Some items in these packages are 
used by employees while in the sanitation compartment, but these 
packages also include items that employees use while working or eating 
in the cab, such as paper towels. In addition, crew packs are available 
for pick up by locomotive crews at on-duty points throughout the 
railroad network, and employees often grab several of them to keep in 
the cab. It is likely that some of these packs won't be placed in the 
sanitation

[[Page 145]]

compartment when brought on board, and will be placed, as a 
convenience, near the employee cab stand for use throughout the work 
shift. For these reasons, FRA sees no reason to require by regulation 
that crew packs remain at all times in the sanitation compartment and 
so, this proposal would not place restrictions on the placement or 
contents of crew packs issued by the railroad carrier.
    FRA will revisit these definitions to determine if they may be 
streamlined without losing clarity, and whether we should provide 
additional definitions for terms used in the rule text. For instance, a 
definition of ``defective'' might be helpful to understanding the 
application of this rule. FRA invites comment from the industry about 
all of the definitions proposed here and any other terms that should be 
defined.

Amendment to Section 229.9, Movement of Non-Complying Locomotives

    FRA proposes to add paragraph (g) to section 229.9, which 
prescribes requirements for the movement of non-complying locomotives. 
The purpose of this addition is to clarify that the provisions set 
forth in proposed sections 229.137 and 229.139 establish criteria for 
the movement or handling of locomotives that are discovered to have 
defective or unsanitary sanitation compartments at the time of the 
daily inspection. These new, proposed criteria for units with defective 
sanitation compartments would supercede those set forth in paragraphs 
(a)-(c) of section 229.9, which require moving designated locomotives 
as lite or dead, under certain circumstances, and sometimes require en 
route failures to be addressed at the nearest forward point where the 
necessary repairs can be accomplished. These new, proposed criteria for 
units with defective sanitation compartments would also supercede the 
language in section 229.21(a) and (b), that requires defective items to 
be repaired prior to departure. As FRA and the Working Group examined 
the issue of sanitation on locomotives, it was determined that 
alternative requirements would be more appropriate for the handling of 
locomotives that are otherwise fit for service, but possess a defective 
toilet or ventilation system in the sanitation compartment. The power 
available in these units can be utilized in the train consist, without 
introducing safety hazards associated with the equipment and train 
movement. The hazards employees face in the presence of defective or 
unsanitary facilities are addressed by the requirements set forth in 
the new proposed sections 229.137 and 229.139. However, FRA invites 
comment on this and all other provisions set forth in the NPRM.

Amendment to Section 229.21, Daily Inspection

    FRA proposes to revise section 229.21 to be consistent with the new 
proposed requirements in sections 137 and 139. As currently written, 
section 229.21 requires railroad carriers to repair all items noted on 
the daily inspection report prior to using the locomotive. However, the 
new sections 137 and 139 would permit locomotive units with certain 
non-complying conditions to remain in service beyond the date on which 
the daily inspection occurs. For instance, carriers may utilize a 
locomotive with a defective toilet facility in switching service for a 
period of up to 10 days, at which time the unit must be repaired or 
used in the trailing position. Also, the railroad may continue to use a 
locomotive that possesses a defective modesty lock until the next 92-
day inspection, at which time the modesty lock must be repaired. The 
fourth sentence of paragraphs (a) and (b) have been revised to note 
this change as a result of the new proposed requirements in sections 
137 and 139. In addition, the fifth sentence of paragraphs (a) and (b) 
has been modified to note that the railroads may choose to record 
repairs of conditions that don't comply with sections 229.137 and 
229.139 electronically, rather than on the daily inspection report. 
Some of the carriers have stated that they have electronic repair 
reporting systems in place that work more efficiently than paper 
records. FRA sees no reason to thwart these ongoing programs, so long 
as they are capable of being audited and effectively track repairs.

Section 229.137(a) Sanitation, General Requirements

    This portion of the proposed sanitation standard sets forth the 
primary requirements for equipping lead locomotives in use with 
sanitation facilities. FRA's primary concern is providing locomotive 
crews in the lead units with access to private toilet and washing 
facilities, that are equipped with adequate ventilation, toilet paper, 
and trash containers. Paragraph (a)(1) proposes that each lead 
locomotive in use must contain a sanitation compartment, except as 
indicated in paragraph (b) where proposed exceptions to this 
requirement are set forth, or where a unit is designed such that no 
sanitation compartment exists. For instance, certain locomotive units 
used by Amtrak have toilet facilities located in the engine room, which 
is enclosed by a door and otherwise meet the requirements of this 
paragraph. For purposes of this standard, FRA proposes that the engine 
room on those Amtrak units constitutes the sanitation compartment for 
those units.
    The sanitation compartment must be adequately ventilated; equipped 
with a door that closes and possesses a modesty lock; equipped with a 
toilet facility that meets the requirements of the definition described 
above; equipped with a washing system that meets the requirements of 
the definition described above, unless the railroad otherwise provides 
the washing products to employees when they report for duty or occupy 
the cab for duty (typically in crew packs), or where the locomotive 
possesses a stationary sink that is located outside the sanitation 
compartment; equipped with sufficient toilet paper to meet employee 
needs, unless the railroad carrier otherwise provides toilet paper to 
employees when they report for duty or occupy the cab for duty 
(typically in crew packs); and equipped with a trash receptacle, unless 
the railroad carrier otherwise provides portable trash receptacles for 
use in the sanitation compartment to employees upon reporting for duty 
or occupying the cab for duty (typically in crew packs).
    With respect to ventilation in the sanitation compartment, the 
Working Group and FRA determined that, on much of the existing 
equipment, a simple vent in the sanitation compartment that opens to 
facilitate the exchange of fresh air with air in the toilet area 
sufficiently addresses ventilation. According to discussions with the 
Working Group, which consists of parties who use and maintain 
locomotives, these vents adequately diffuse offensive odors, so long as 
the toilet is sanitary and operating. This vent must be capable of 
opening or closing on command or control of the user in order to meet 
the requirement of ``adequately ventilated.'' Other ventilation systems 
in place on older locomotive equipment must operate as intended, 
evacuating the air in the sanitation compartment, in order to meet the 
proposed standard.
    The ventilation systems on new locomotive equipment is more 
complex. The cab's air flow is controlled and pressurized to maximize 
air flow and equipment performance, and minimize noise levels in the 
cab. In order to meet the proposed requirement concerning ventilation 
for these newer units, that portion of the ventilation system required 
to provide air movement in the sanitation compartment must be

[[Page 146]]

operative, or other, effective alternative provisions for ventilation 
of the sanitation compartment must be made.
    If the ventilation system for the sanitation compartment is 
defective as of the daily inspection, the railroad carrier may not use 
the unit in the lead position, unless repaired. If not repaired, the 
railroad carrier may use the locomotive in trailing position, in 
switching service consistent with the requirements of section 137, 
paragraph (b)(1)(ii), or in transfer train service consistent with the 
requirements of section 137, paragraph (b)(1)(iii). The rationale for 
permitting this usage when the ventilation system is inoperative, is 
that trailing units are typically unoccupied, and so no harm would come 
from utilizing the locomotive in that position, and the exceptions set 
forth in section 139(b)(1)(ii) and (iii) require the carriers to 
provide access to adequate facilities elsewhere.
    It is important to note that a clean, operable toilet facility will 
prevent harmful gases or persistent, offensive odors from developing in 
the first place, and so the most productive way to eliminate the risk 
of noxious air in the cab is to focus attention on maintaining the 
toilet facility properly. It is also important to note that if the 
toilet room door is designed to be equipped with seals, when the seals 
are maintained and replaced as needed, odors are less likely to migrate 
to the interior of the cab. If applicable, replacing faulty sanitation 
compartment door seals would be advisable to further protect the cab 
occupants from offensive odors, although this proposal does not require 
such replacement.
    In section 137(a)(2), FRA proposes that the sanitation compartment 
must possess a door that closes, and the door must be equipped with a 
modesty lock. A door which closes is one that, by design or device, 
stays shut when the user closes it. For instance, a typical interior, 
residential door with a door knob is a door that closes. Also, a door 
that possesses a spring device that pulls the door closed after opening 
constitutes a door that closes. Similarly, doors used to enclose 
bathrooms on airplanes close when pulled shut, by way of a device 
similar to a door knob, and would meet the proposed standard set forth 
here. (These doors also possess modesty locks to prevent unwanted 
intrusion). FRA does not mandate the type of closing door the 
locomotive must possess, so long as the door closes by design or on 
command of the user. This proposed requirement is necessary to provide 
basic privacy to employees using the sanitation facilities. A modesty 
lock is a device operated by the occupant from inside the toilet 
compartment that prevents entry by a person who is not aware that the 
compartment is occupied. A modesty lock can typically be disabled from 
the outside in the event of an emergency that requires entry from 
outside the toilet compartment. FRA believes employees should have the 
expectation of privacy when using toilet facilities, consistent with 
similar standards issued by other regulatory bodies and common sense. A 
door that closes and that possesses a modesty lock provides that 
privacy.
    The railroad carriers on the Working Group expressed some concerns 
about a modesty lock that would prevent entry in the event of an 
emergency, such as an accident or health problem. As defined in this 
proposal, the railroads may utilize modesty locks that can be disabled 
in an emergency, so long as the lock prevents an accidental or 
unnecessary intrusion. FRA does not prescribe specific requirements 
concerning the form of the modesty lock in this NPRM. Some of the 
railroad carriers utilize fairly sophisticated, expensive devices, and 
some utilize an inexpensive, rudimentary slide device. These achieve 
the desired level of privacy, and also provide the employer with the 
ability to enter the compartment in the event of an emergency. Either 
would meet the requirement proposed in this paragraph. As FRA 
understands it, most locomotives are currently equipped with closing 
doors that have modesty locks, and if not, the costs associated with 
adding modesty locks to unequipped units are minimal. In the Working 
Group discussions, the industry representatives indicated that all 
units could be equipped with modesty locks by [18 months after 
publication of the final rule].
    As currently drafted, this proposal would require all sanitation 
compartments to be equipped with a closing door as of the daily 
inspection. However, if the modesty lock is defective as of the daily 
inspection, the railroad carrier would not be required to remove a 
locomotive from service. The carrier would be required to repair the 
modesty lock on or before the next 92-day inspection required by part 
229.
    The requirements proposed in Sec. 229.137(a)(3)-(a)(4) require 
toilets and washing systems in lead locomotives in use. FRA understands 
that there are many varieties of toilet facilities that function 
effectively on board locomotives, and there are likely to be 
technological improvements that will bring about new units in the 
future. The proposal takes a performance approach to toilet and washing 
systems, rather than specifying units by name in the definition, so 
that effective existing systems and systems not yet developed, would 
not be unintentionally excluded.
    As discussed above, FRA does not wish to prescribe a particular 
type of washing system. However, each lead locomotive must have one of 
the systems outlined in the proposed definition available for employee 
use. As currently proposed, this paragraph states that the washing 
system must be located in the sanitation compartment, unless it is 
otherwise provided to employees when they report for duty, enter the 
cab for duty, or where the locomotive possesses a stationary sink that 
is not located in the sanitation compartment. Based on discussions with 
the Working Group, FRA understands that on some locomotives washing 
systems are located in the toilet compartment, but in many cases they 
are provided to employees in crew packs. Many railroads give crew packs 
to employees as they begin each work shift, and they typically contain 
antibacterial soap, paper towels or moist towelettes, toilet paper, and 
perhaps bottled water. As stated above, FRA sees no need to require the 
railroad carrier to maintain washing products in the sanitation 
compartment, so long as employees receive them in crew packs at the 
beginning of their shift. The crew packs will be made available to 
crews at their reporting point or onboard the locomotive. The employer 
must provide these items to employees in order to meet the proposed 
standard.
    This paragraph also permits sinks located adjacent to the 
sanitation compartment to remain outside the sanitation compartment. 
According to information received from the Working Group, at least one 
Class I railroad carrier maintains locomotives with stationary sinks 
that are not in, or capable of being placed in, the sanitation 
compartment. FRA sees no safety or health risk associated with this 
configuration and, therefore, the proposed standard would not prohibit 
this.
    Section 229.137(a)(5) proposes that the sanitation compartment 
contain toilet paper in sufficient quantity to meet employee needs, 
unless the railroad carrier otherwise provides employees with toilet 
paper when they report for duty or occupy the cab for duty. FRA chose 
not to prescribe a specific amount of toilet paper for each employee in 
the cab, believing that this issue is best handled through common sense 
decision making at the local level. As FRA understands it, some 
railroad carriers maintain toilet paper in the sanitation compartment, 
and some rely

[[Page 147]]

on crew packs for dissemination of toilet paper. FRA believes either 
method is adequate, so long as reasonable amounts of toilet paper are 
provided to meet typical daily needs. If it is determined during the 
daily inspection that a locomotive is not equipped with sufficient 
toilet paper, the unit must be equipped prior to departure. For most 
railroads, this requirement would be accomplished by the use of crew 
packs, which contain ample toilet paper for each employee's work shift.
    Section 229.137(a)(6) proposes to require that each sanitation 
compartment contain a trash receptacle, unless the railroad carrier 
provides portable trash receptacles in the employee crew packs. This 
proposed requirement attempts to provide flexibility to the railroad 
carrier where space limitations in locomotive sanitation compartments 
prevent the application of an across-the-board requirement for 
permanent trash cans or similar fixtures in all sanitation 
compartments. Therefore, as drafted here, the trash receptacle may be a 
permanent trash can or similar fixture located in the sanitation 
compartment, or the trash receptacle may be a small plastic bag that 
hangs from the door handle or is posted to an interior wall. In 
addition, where the space limitations in the sanitation compartment 
prohibit placing any sort of trash receptacle in the sanitation 
compartment, portable trash bags that can be included in the employee 
crew packs may be placed outside the sanitation compartment. In these 
instances, the Working Group and FRA expect that the trash bags will be 
placed at a location that is as far from the cab stand as possible, 
such as in the nose of the cab. FRA and members of the Working Group 
wish to segregate sanitation-related trash from the area where 
employees work and often eat during the course of the work shift. In 
large measure, where a trash receptacle cannot be placed in the 
sanitation compartment, the location of the portable trash bags will be 
controlled by the employees working in the cab, who have a natural 
interest in keeping the sanitation-related trash away from the work and 
eating areas of the cab.
    As currently drafted, if it is determined during the daily 
inspection that the sanitation compartment is not equipped with a trash 
receptacle, or the crew has not been provided one in a crew pack, the 
railroad carrier must equip the locomotive with a trash receptacle 
prior to departure. This may be accomplished by placing a trash 
receptacle in the sanitation compartment, or by providing portable 
trash receptacles to employees in their crew packs when they report for 
duty or occupy the cab for duty.

Section 229.137(b) Exceptions

    Paragraph (b) of section 229.137 sets forth exceptions to the 
general requirements proposed in paragraph (a), discussed above. 
Paragraph (b)(1)(i)-(v), set forth exceptions to the general 
requirement of a sanitation compartment in each lead locomotive in use. 
These exceptions are proposed in order to accommodate certain unique 
circumstances.
    Paragraph (b)(1)(i) would exempt locomotives used in commuter 
operations where employees have access to sanitation facilities at 
frequent intervals, either at stations or elsewhere on the train. For 
purposes of this proposal, commuter service means commuter or short-
haul railroad passenger service in a metropolitan or suburban area, and 
commuter service that was operated by the Consolidated Rail Corporation 
on January 1, 1979, that runs on rails or electromagnetic guideways, 
but does not include rapid transit operations in an urban area that are 
not connected to the general railroad system of transportation. (See, 
49 CFR part 209, Appendix A) This definition is consistent with the 
types of railroads that Congress intended to be subject to FRA's 
jurisdiction under the Safety Act; see 49 U.S.C. 20102(1). Most 
commuter runs are relatively short in duration, providing multiple 
times during the day's work shift when facilities can be used at 
downtown or outlying terminals. Typically, cab crews on commuter 
operations may use sanitation facilities in the stations they service 
in the course of their route, or in the passenger cars they are 
hauling. Therefore, FRA sees no need to require the locomotive cabs on 
commuter operations to also possess a sanitation facility. In most 
cases, the configuration of commuter locomotives differs from 
traditional freight locomotives. Most do not currently possess 
sanitation compartments and there may be no additional space to add 
such a compartment.
    This exception makes clear that the sanitation facilities employees 
use must be provided by the commuter railroad carrier. In other words, 
the employer may not utilize this exception to the general requirement 
if employees are forced to use sanitation facilities in businesses 
along the right-of-way that have no connection to the employer, such as 
restaurants, manufacturing plants, or convenience stores. FRA believes 
that each commuter railroad operation subject to these standards is 
responsible for providing sanitation facilities, and employees must not 
be placed in situations where they are forced to request permission to 
use the sanitation facilities of foreign establishments during the 
workday. So long as these conditions are met, and because the nature of 
commuter operations affords employees the opportunity for frequent 
access throughout the shift, FRA sees no reason to impose a new, costly 
requirement for cab toilets on commuter railroad locomotives.
    Paragraph (b)(1)(ii) would permit all locomotives engaged in 
switching service, where employees have access to railroad carrier-
provided sanitation facilities outside of the cab, to operate without a 
sanitation compartment in the cab. For purposes of this paragraph, 
switching service is defined as the classification of freight cars 
according to commodity or destination; assembling cars for train 
movements; changing the position of cars for purposes of loading, 
unloading, or weighing; placing locomotives and cars for repair or 
storage; or moving rail equipment in connection with work service that 
does not constitute a train movement. This definition has developed 
over time in the railroad industry, and as used here, is consistent 
with customary usage.
    This exception is similar to and based on the same general 
principle as the exception proposed for commuter service. Employees 
engaged in switching service are typically in the cab for relatively 
short periods of time, and have access to sanitation facilities in rail 
yard buildings or at railroad carrier facilities along the right-of-way 
as needed. Generally, these employees are not captive in a locomotive 
cab for interminable time periods, where a sanitation facility clearly 
must be provided. Therefore, FRA proposes that locomotives involved in 
switching service need not possess a toilet in the cab, so long as 
employees have ready access to railroad carrier-provided sanitation 
facilities along the right-of-way or in yard facilities at frequent 
intervals during the work shift. If a railroad carrier is unable to 
conform with this concept, this proposed exception could not apply. If 
the switching routes place cab employees at remote locations where 
railroad carrier sanitation facilities are not accessible to employees, 
then the carrier must provide a locomotive that is equipped with all of 
the items required by paragraph (a) of this section, which is discussed 
below. (It is important to note that this NPRM would prohibit the 
removal of toilet facilities from locomotives engaged in switching 
service, where those locomotives are

[[Page 148]]

equipped with a toilet on the effective date of the final standards. 
This is discussed in greater detail below.)
    Paragraph (b)(1)(iii) relates to transfer trains, and tracks the 
same logic as the exceptions proposed for commuter operations and 
switching service. Transfer trains are trains that travel between a 
point of origin and a point of final destination not exceeding twenty 
miles and do not perform switching service. See, 49 CFR 232.13(e)(1) 
(Specifying the air brake test required for transfer trains.) Because 
the cab employees engaged in transfer train service generally have the 
opportunity to use railroad carrier-provided sanitation facilities, as 
needed during the course of their work shift, FRA proposes that the 
existing locomotives used in transfer service need not possess a 
sanitation compartment. These employees are less likely to face long 
periods of time in the locomotive without access to sanitation 
facilities in rail yard buildings or at railroad carrier-owned 
facilities along the right-of-way. If the railroad carrier is unable to 
provide such facilities to accommodate employee needs, then the carrier 
must utilize locomotives that possess toilet facilities that otherwise 
meet the requirements of this proposal. (It is important to note that 
this NPRM would prohibit the removal of toilet facilities from 
locomotives engaged in transfer service, where those locomotives are 
equipped with a toilet on the effective date of the final standards. 
Also, all locomotives manufactured after the effective date of the 
final rule in this matter must be equipped with a toilet facility 
accessible without going outside the locomotive. These requirements are 
discussed in greater detail below.)
    Paragraph (b)(1)(iv) proposes to exempt locomotives of Class III 
railroad carriers that are not equipped with toilet facilities, and 
that are not engaged in switching or transfer train service, from the 
requirement of having a toilet facility in the cab. However, as is 
stated in the proposed exception, these Class III railroad carriers 
must provide or arrange for sanitation facilities along the right-of-
way. (It is important to note that the NPRM would prohibit the removal 
of toilet facilities from locomotives, if those locomotives are 
equipped with a toilet on the effective date of the final standards. 
This is discussed in detail below.)
    Class III railroad carriers are small businesses with limited 
capital margins. (The current definition of these entities, as 
established by the Surface Transportation Board, is a railroad carrier 
that earns $20 million or less in annual operating revenues.) 
Typically, purchasing new locomotives would be out of the question for 
these companies, and spending considerable funds to retrofit old units 
could mean that critical safety programs in other disciplines would 
suffer. The older locomotive equipment generally cascades down to the 
Class III railroad carriers, and over time the Class III railroad 
carriers will acquire toilet-equipped locomotives. Currently, many of 
the older locomotive units are not equipped with toilet facilities, and 
some of the units actually lack space for toilet facilities, depending 
on the purpose it was originally intended to serve. FRA believes that 
it would create great financial hardship for these entities to require 
sanitation retrofits or new locomotive purchases. Some of the small 
operators might simply opt out of the market, and for others, the 
diversion of funds could create safety problems elsewhere. Therefore, 
FRA proposes this exception to ensure that the proposed sanitation 
standards do not give rise to additional safety concerns or destroy 
otherwise productive business concerns. However, the Class III railroad 
carriers that choose to avail themselves of this exception must provide 
or arrange for adequate sanitation facilities, which means they must be 
available to employees readily, frequently, and as needed along the 
right-of-way.
    This proposed exception would not permit a Class III railroad 
carrier to advise employees to use sanitation facilities at restaurants 
and other public establishments that have no business connection to the 
carrier. These Class III employers may not assume that employees will 
locate sufficient sanitation facilities on their own. The Class III 
railroad carrier must take affirmative action to see that the cab 
employees have frequent access as needed to adequate sanitary 
facilities. If it is not possible for the railroad carrier to provide 
adequate sanitary facilities along the right-of-way, then it is 
expected that the carrier will consult with customers or other 
businesses along the route for the specific purpose of garnering access 
to adequate sanitation facilities for employees who must work in cabs 
without sanitation compartments. In addition, the Class III railroad 
carrier must communicate to employees the locations and, as 
appropriate, hours of availability of access to the sanitation 
facilities provided by the carrier via customers or other businesses 
along the route. FRA and the Working Group expect that the Class III 
carrier will consider 24-hour railroad operations in these 
determinations, and which facilities will be available during every 
work shift.
    Paragraph (b)(1)(v) proposes that the locomotives of scenic, 
tourist, historic, or excursion railroads, which are not steam-powered, 
which operate on the general system, and are otherwise covered by the 
locomotive safety standards set forth in 49 CFR part 229 would not be 
required to be equipped with compliant toilet facilities, so long as 
employees working in these locomotives have access to appropriate 
facilities at frequent intervals during their work shift. The rationale 
for this proposal is similar to the proposed exceptions for Class III 
entities. The railroads addressed by this paragraph, for the most part, 
have limited profit margins and utilize older equipment that may not 
possess sanitation facilities on board. The costs to retrofit these 
units would adversely impact the viability of these operations, and on 
some of the present equipment, may not be possible. FRA believes that 
so long as the employees who work on these units are provided 
appropriate facilities throughout the course of the work shift, there 
would be no reason to require these locomotives to be equipped with 
sanitation facilities. FRA invites comment on this, and all other 
proposals set forth in the NPRM, particularly with respect to long-
distance excursion operations that typically employ locomotives already 
equipped with toilet facilities. Finally, it's important to note that 
representatives of tourist and excursion railroads have suggested that 
FRA modify the language in this paragraph to clarify that the tourist 
operator is responsible for providing access to adequate toilet 
facilities rather than the railroad owner of the track on which the 
tourist organization travels. FRA believes that this would be advisable 
in the final rule, and invites comment on it now.
    It is difficult to define with specificity the terms ``ready 
access'' and ``frequent intervals,'' which are used in paragraphs 
(b)(1)(i)-(b)(1)(v) of this section of the NPRM. FRA and the Working 
Group spent a great deal of time discussing the terms and the concepts 
they infer. All struggled with appropriate language that would capture 
the concepts accurately and still provide sufficient flexibility to 
accommodate the changeable nature of railroad operations. The Working 
Group discussed establishing specific time periods or distances 
traveled that might equate to a satisfactory and concise definition of 
these terms. However, members of the Working Group recognized that 
individuals' access needs vary greatly from person-to-

[[Page 149]]

person and from day-to-day. Further, the Working Group noted that it 
may take 5 hours to traverse 5 miles on a given day, depending on 
traffic, weather, load, and other considerations. Therefore, the 
Working Group rejected the notion of a hard and fast time or mileage 
limit as an appropriate solution to this question.
    Instead, the Working Group offered an explanation of the concept of 
adequate access to sanitation facilities, where locomotives covered by 
these exceptions are not equipped with a toilet facility: The crew 
members would have immediate accommodations made by the local railroad 
carrier officials on reasonable demand or need by a crew member to 
provide access to a railroad carrier's sanitation facilities at 
frequent intervals during the course of their work shift. As used here, 
the term ``immediate accommodations'' means that the employer would 
begin the process of providing access to sanitation facilities when the 
employee requests it.
    The general principle that FRA and the Working Group intend to 
capture with these terms is that employees would have access to 
sanitation facilities, as the need arises, that are located in close 
proximity to the work site, and that are owned or operated by the 
railroad carrier. In many circumstances, these terms simply mean an 
employee could disembark from a locomotive in a yard, use a toilet in a 
nearby building, and then return to the locomotive cab. However, if 
employees work in remote locations where sanitation facilities do not 
exist, the railroad carrier would be required to provide employees with 
alternate transportation to a nearby site, in order to make use of one 
of the proposed exceptions listed above. These terms follow the logic 
of the OSHA standards and recent interpretation, which place priority 
on access as the need arises. This principle is important because of 
the adverse health effects that may occur if access is denied. Also, 
this principle enhances an employee's ability to focus on the work 
being done, and improves the likelihood that safe train movements will 
occur.
    It is important to note that each of these exceptions would require 
the carriers to provide facilities that ``meet otherwise applicable 
sanitation standards.'' With this language, FRA intends that the 
alternate sanitation facilities offered by the carrier must meet the 
standards for sanitation equipment and servicing that apply to that 
workplace. For instance, if the alternate facility is located in an 
office building along the right-of-way that falls within the authority 
of OSHA for purposes of sanitation, FRA expects that the carrier will 
ensure that those OSHA standards concerning the presence and condition 
of toilet and washing facilities will be met. If this proposed standard 
is adopted as a final rule, FRA would be exercising jurisdiction over 
cab employee access to sanitary facilities, specific sanitation 
equipment on rolling stock, and the servicing and use of that equipment 
on rolling stock. FRA does not intend to oust OSHA's existing authority 
with respect to sanitation equipment, or its maintenance, where it 
exists elsewhere.
    Paragraphs (b)(2)(i) and (b)(2)(ii) propose temporary exceptions to 
the requirement of a toilet facility that conforms with the proposed 
definition of toilet facility, until those nonconforming toilet 
facilities have been replaced with compliant ones. Paragraph (b)(2)(i) 
addresses a specific type of toilet facility that a Class I railroad 
carrier possesses on approximately 500 locomotive units. This toilet, 
referred to as a ``Bogan,'' is similar to portable toilets that are 
often used at outdoor events, where the need for mobile, basic toilet 
facilities exists. This toilet, which does not meet the requirements of 
the proposed definition for toilet facility, has no flush mechanism and 
simply permits waste to flow to a tank below the toilet seat for 
storage, treatment, and periodic disposal. Chemicals are placed in the 
storage tank to treat the waste and minimize odors that would otherwise 
accumulate. Maintenance of these toilets may be a greater challenge 
than is the case with more contemporary technology, and failure to 
properly maintain them could result in unacceptable conditions.
    The Class I railroad carrier owner of the Bogan toilets is 
replacing these units as they become defective, and is retiring them as 
the locomotives on which they are situated are retired. The Bogan 
toilets are being replaced with toilets that incorporate advanced 
technology. For that reason, the Working Group recommended that FRA 
permit these toilets to remain in use until they are retired by the 
railroad carrier as part of the railroad carrier's retirement plan. The 
proposed rule text permits the Bogan toilet to remain in service on 
this Class I railroad carrier until they become defective or are 
replaced with conforming units, whichever occurs first. Although FRA 
would prefer more modern systems in place on all locomotives, FRA is 
not presently aware of an imminent, serious safety or health risk 
associated with this type of unit that would mandate immediate removal. 
Given the costs associated with toilet retrofit and the railroad 
carrier's own plan to replace the units, FRA believes that in this 
instance an exception is appropriate. Finally, it is important to note 
that this carrier objects to and disagrees with any inference or 
statement that the current systems in place are inadequate or are not 
properly maintained.
    As written, this exception would apply only to the Class I railroad 
carrier that FRA knows possesses these toilet systems. FRA is unaware 
of any other railroad carriers that utilize this toilet. However, FRA 
requests comments from the industry as to whether this system exists on 
other properties, and if so, what plans those employers may have for 
retiring or replacing the toilets. If the system is more prevalent than 
FRA now believes it is, final rule text language may need to be altered 
to accommodate the use of the systems on those properties. In making 
this determination, FRA would consider a variety of factors, including 
the number of toilets involved, the operational characteristics of the 
railroad operations in which the toilets are used, the programs the 
employer has in place to retire or retrofit the toilets, the economic 
status of the railroad carrier involved, and the effectiveness of the 
existing maintenance and servicing program for the toilet. As is stated 
above, FRA wishes to restrict and eventually eliminate the use of 
toilets that do not meet the definition of toilet facility proposed in 
this NPRM. In connection with this exception and the exception set 
forth in paragraph (b)(2)(ii) below, it is important to note that 
certain enforceable state standards may require flush toilets for cab 
employees, and the final standard FRA issues in this proceeding would 
preempt those standards. Therefore, FRA wishes to make every effort to 
minimize the use of non-flush systems in this proceeding. Clearly, FRA 
and the Working Group have no desire to issue or recommend standards 
that ultimately permit the use of systems that are more rudimentary 
than those permitted by existing state standards. However, FRA 
understands that certain accommodations may be necessary in the short 
term in order to achieve that goal.
    Paragraph (b)(2)(ii) addresses a similar situation that exists on 
another Class I railroad carrier, in which the toilet facility in place 
on a majority of the carrier's locomotives does not comply with the 
proposed definition of toilet facility. These toilet facilities utilize 
carrier-provided plastic liners to collect human waste; these liners 
are then sealed, placed in sealed waste containers, and delivered by 
the

[[Page 150]]

employees to the carrier for disposal. Although the carrier believes 
that this system adequately addresses sanitation needs for cab 
employees, concerns about the system have been raised by employees, 
landowners along the right-of-way, and certain State agencies. Further, 
as the carrier recognizes, proper administration of this system off the 
carrier's home lines sometimes is not practicable, and ``power 
sharing'' arrangements in the railroad industry are growing. FRA agrees 
that this system should be retired, but also recognizes the significant 
capital and labor costs associated with a massive retrofit campaign. 
The carrier has initiated a replacement program in which approximately 
30 locomotives per month are being retrofitted with new toilet 
facilities that would satisfy this proposed rule. In addition, this 
carrier has decided not to deliver locomotives with the older toilet 
facilities in the lead position to other carriers in interchange, and 
this proposal would incorporate that restriction for the period of 
retrofit. Finally, this carrier has stated its intention to make every 
reasonable effort to place compliant locomotives in the lead position 
on its system wherever possible. This sort of consist management 
commitment is sometimes difficult to achieve, given the competing 
priorities that other safety requirements and safety risks present. 
However, FRA and the Working Group are satisfied at this point in time 
that the retrofit program and the carrier's commitment to place 
locomotives with compliant toilets in the lead where possible, is the 
best solution to the problem presented. Based on the number of units in 
need of retrofit, FRA and the Working Group estimate that all of the 
carrier's locomotives are capable of being in compliance with the 
proposed sanitation standards by July 1, 2003. Therefore, based on all 
information currently available, FRA proposes to permit the Class I 
railroad carrier to operate locomotives in the lead position on its 
lines with non-compliant units until July 1, 2003. After that date, all 
lead units would be required to possess compliant toilet facilities. 
Finally, it is important to note that this carrier objects to and 
disagrees with any inference or statement that the current systems in 
place are inadequate or are not properly maintained.
    As written, this exception would apply only to the Class I railroad 
carrier that FRA knows possesses these toilet systems. FRA is unaware 
of any other railroad carriers that utilize this toilet. However, FRA 
requests comments from the industry as to whether this system exists on 
other properties, and if so, what plans those employers may have for 
retiring or replacing the toilets. If the system is more prevalent than 
FRA now believes it is, final rule text language may need to be altered 
to accommodate the use of the systems on those properties. In making 
this determination, FRA would consider a variety of factors, including 
the number of toilets involved, the operational characteristics of the 
railroad operations in which the toilets are used, the programs the 
railroad carrier has in place to retire or retrofit the toilets, the 
economic status of the railroad carrier involved, and the effectiveness 
of the existing maintenance and servicing program for the toilet. As is 
stated above, FRA wishes to restrict and eventually eliminate the use 
of toilets that do not meet the definition of toilet facility proposed 
in this NPRM. However, FRA understands that certain accommodations may 
be necessary in the short term in order to achieve that goal.
    With respect to paragraphs (b)(2)(i) and (b)(2)(ii), it is 
important to clarify that the proposed exceptions relate only to the 
type of toilet facility in use. The other proposed requirements set 
forth in this NPRM would apply to these railroads and their equipment 
according to their terms. For instance, the requirements set forth in 
paragraphs (a)(1)-(2), and (a)(4)-(6) would apply to these locomotive 
units. Similarly, section 229.139, which relates to servicing and 
operative equipment, would require the units covered by paragraphs 
(b)(2)(i) and (b)(2)(ii) to operate as intended and be located in 
sanitation compartments that are ventilated and free of debris and 
waste.
    Paragraph (c) of section 137 would prohibit a railroad carrier from 
placing a locomotive with an unsanitary or defective toilet facility in 
the lead position. This determination would be made as of the time of 
the daily inspection required by 49 CFR Sec. 229.21. En route failures 
that occur after the daily inspection would impose no burden on the 
railroad carrier, until the next daily inspection is due. However, 
according to Working Group members, the current railroad practice with 
respect to en route toilet failures involves moving defective toilet 
units into a trailing position, where it is possible to do so. Although 
the NPRM does not require such movement, the enhanced focus on 
sanitation facilities that will naturally occur as a result of this 
standard should increase the likelihood that the practice will 
proliferate. In addition, Working Group members stated that currently, 
employees may require changes in train consist where imminent safety 
hazards are present. Nothing in this proposal would alter that process.
    The requirement set forth in paragraph (c) reflects the fundamental 
need to provide employees with a clean, safe workplace. It is 
inconsistent with notions of decency and the minimum requirements for 
workplaces in other industries to expect employees to work effectively 
and safely if unsanitary waste or deplorable odors are present. The 
Working Group agrees with this principle and believes that the proposed 
standard in the NPRM is appropriate for the railroad industry.
    In order for a locomotive to be placed or remain in the lead 
position as of the daily inspection, all aspects of the toilet facility 
must be operating as intended and it must be clean. The chemicals 
required by certain systems must be supplied in the appropriate amount 
so that the toilet will operate as intended; if the system calls for 
antifreeze, it must be present during winter months to prevent 
freezing; any integral flush mechanisms or sensors must operate as 
intended; and all components of the system intended to be present must 
be present.
    As discussed above, FRA has proposed definitions for the terms 
`unsanitary' and `sanitary' to assist the industry and FRA inspectors 
to determine conditions that are noncompliant. FRA believes that most 
individuals have a general sense of conditions that would constitute 
unsanitary facilities, and FRA inspectors would utilize that sensible 
approach to enforcing this standard, but the definition should provide 
additional clarity to that process. As for mandating specific servicing 
requirements, FRA and the Working Group currently believe that the 
railroad carriers, in consultation with their labor forces, are in the 
best position to determine when toilet facilities must be emptied and 
cleaned. These decisions are based on a variety of factors, including 
degree of use, length of trip, weather conditions, size of crew, and 
the specifications of the system in place. However, FRA may consider 
adopting more specific requirements for servicing the toilets, due to 
concerns that have been raised by railroad employees, and this issue is 
discussed in greater detail below.
    In discussions with members of the Working Group subsequent to the 
last Working Group meeting, some of the carriers raised concerns about 
the difficulties of providing a substitute locomotive that possesses a 
sanitary, operable toilet facility on branch lines in remote locations. 
The carriers stated

[[Page 151]]

that in remote areas, there may be only one locomotive available and if 
it does not comply with the sanitation standards as of the daily 
inspection, the crew could not move the locomotive for repair or to 
another location where additional units would be available. Presumably, 
the crew would have to wait for a compliant locomotive to arrive at the 
remote location, and this would give rise to other issues, such as 
hours of service restrictions, traffic problems, and the availability 
of sanitation facilities. Therefore, this NPRM contains an exception to 
the requirement set forth in paragraph (c) for branch lines where 
locomotives with defective or unsanitary toilet facilities as of the 
daily inspection may be located and the facilities cannot be repaired, 
cleaned, or switched with another, compliant locomotive. Although this 
situation is probably rare, FRA and the Working Group believe it would 
be prudent to craft an exception to cover this scenario. The proposal 
includes this exception, but we invite comment from members of the 
industry on whether the language could be refined further to more 
artfully capture the narrow instances in which the exception is 
intended to apply. Conventional industry language may use the term 
``branch line'' where it has broad meaning and application, and FRA 
does not wish to insert that broader meaning here. The exception is 
intended to cover remote locations where traffic is limited, and FRA 
invites comment on how the language might be improved to state this 
clearly. Paragraph (c)(i) sets forth all of the conditions that must be 
present in order for the railroad to utilize this exception and 
continue to use the locomotive:
    --The defective or unsanitary condition must be discovered at a 
location where there are no other suitable (i.e., has sufficient power 
to complete the haul) locomotives available for use, it isn't possible 
to switch another locomotive into the lead position, or which is not 
equipped for repair or cleaning;
    --The locomotive, while noncompliant, didn't travel through a 
location where it could have been cleaned, repaired or switched with a 
compliant locomotive since its last required daily inspection;
    --Upon reasonable request, the carriers must arrange for access to 
toilet facilities for employees assigned to work on the locomotive 
during the time they must work on it;
    --If unsanitary conditions exist, the sanitation compartment door 
must be closed and sufficient ventilation provided to the cab 
compartment so that employees aren't exposed to strong, persistent 
chemical or human waste odors sufficient to deter use of the facility 
or to give rise to a reasonable concern with respect to exposure to 
hazardous fumes; and
    --The locomotive must be repaired, cleaned or switched with a 
compliant unit at the next daily inspection or the next location at 
which such service can take place, whichever occurs first.
    It is important to note that this exception cannot be used where a 
second locomotive exists, but it also contains a defective or 
unsanitary sanitation compartment. The proposed rule does not encourage 
deferral of necessary maintenance and cleaning where locomotives can 
reasonably be expected to be pressed into service as lead units at any 
time. This proposed exception is available only where there is just one 
locomotive available and it possesses a defective or unsanitary 
sanitation compartment, or where there is no additional track to use to 
facilitate switching a compliant locomotive into the lead position, and 
all of the other conditions listed above and in the rule text are 
present. Some members of the Working Group expressed concern about how 
this exception might play out when push-pull service is in use on a 
branch line. FRA invites comment on this issue from the industry. FRA 
does not believe that the proposal would be unworkable in push-pull 
service, but asks interested parties to discuss any difficulties that 
might arise.
    It is also important to note that to use this exception, the 
proposed rule requires the railroad carrier to arrange for access to a 
toilet facility outside the lead locomotive, upon reasonable request of 
an employee assigned to work onboard the locomotive. While it remains 
the responsibility of the railroad to provide access to a toilet 
facility, in most cases, FRA expects access will be achieved by a means 
as simple as the crew making use of a toilet facility at a known place 
of business, such as a restaurant, that is regularly frequented by the 
crew during their breaks. On the other hand, access to a toilet 
facility outside the locomotive that meets otherwise applicable 
sanitation standards may not be available to the crew during the work 
shift for reasons such as personal safety while not on railroad 
property or simply that the time required for an employee to walk to a 
toilet facility may impede railroad operations. In such situations, the 
railroad may meet a reasonable request by providing transportation to a 
toilet facility during the work shift. This concept is distinct from 
the other exceptions in paragraph 137(b) of the proposed rule that use 
the terms ``ready access to carrier-provided sanitation facilities 
outside of the locomotive, that meet otherwise applicable sanitation 
standards, at frequent intervals during the course of their work 
shift.'' In view of the fact that the branch line situation typically 
involves remote locations where ``ready access'' may be unavailable and 
should occur rarely, the proposed rule would impose a different 
standard than is required in other operational settings.
    Paragraph (d) of section 137 provides that if a railroad carrier 
determines that a toilet facility is defective or unsanitary at the 
time of the daily inspection, the carrier may utilize the unit in a 
trailing position. However, if the unit is subsequently used to haul 
employees, the unit must be cleaned prior to occupancy and defective 
toilet facilities must be clearly marked as unavailable for use. This 
paragraph and others that follow establish the requirement that 
occupied locomotives should not expose employees to unsanitary 
conditions. FRA recognizes that locomotive toilets periodically 
malfunction. The railroad carrier should not be penalized for these 
events, and under prescribed circumstances, should be able to utilize 
the available power in the equipment. However, the railroad carrier 
must minimize employee exposure to the hazards of untreated waste and 
other unsanitary conditions. Therefore, the carrier should clean any 
trailing units if they will be occupied, and must mark defective toilet 
facilities so that employees understand the toilet facility cannot be 
used.
    During this process, the Working Group did not believe it necessary 
to recommend specific requirements for identifying defective sanitation 
units, and FRA sees no reason to do so either. The Working Group will 
reassemble to consider comments to this proposed rule and develop 
recommendations for the final standard, and so may reconsider this 
issue at that time. Currently, some carriers use a red tag to indicate 
defective conditions, and some railroads tape the toilet seat so that 
it cannot be used. Either method, and others that may be in use, are 
sufficient, so long as a reasonable person entering the cab would 
understand that the toilet facility is defective and should not be 
used.
    Paragraph (e) proposes that when it is determined during the daily 
inspection that a road locomotive toilet facility is defective, but 
sanitary, the railroad carrier may move the locomotive into switching 
or transfer train service for a very brief period of time, consistent 
with the requirements for that service,

[[Page 152]]

as discussed above. The unit may be used in this service for a period 
not to exceed 10 days, at which time it must be repaired or used in 
trailing position. If the railroad carrier chooses to utilize the 
equipment in this manner prior to its repair, the carrier must clearly 
mark the defective toilet facility so that a reasonable person would 
know not to use the toilet facility. The Working Group and FRA do not 
expect the railroads to reassign locomotives from road to yard service 
solely for the purpose of circumventing any part of this regulation. 
FRA understands that there are overriding incentives for railroads to 
keep road units with defective toilets in trailing road service until 
the next periodic inspection, rather than reassigning them to yard 
service. [It is also important to note here that this 10-day period may 
be shortened due to the fact the carriers may not need this amount of 
time to make effective repairs. See the discussion for proposed 
requirement for section 229.139(d) below for a more detailed discussion 
of this issue.]
    Paragraph (f) of this section proposes that if the railroad carrier 
discovers during the daily inspection that a lead locomotive is not 
equipped with sufficient toilet paper, washing facilities, or a trash 
receptacle, the carrier must equip the unit prior to departure. This 
proposal reflects FRA's belief that it would be unwise to require a 
railroad carrier to change the consist makeup due to a lack of toilet 
paper, washing facilities, or a trash bag. However, FRA believes these 
items would be relatively easy to locate and supply to cab crews, and 
so should be provided before any employee is expected to depart. 
Therefore, the railroad carrier must simply equip the locomotive with 
these items prior to departure. As FRA understands present railroad 
practice, most railroad carriers supply these items to cab employees as 
they begin their work shift, and so this proposed requirement should 
not impose excessive burdens on the industry.
    Paragraph (g) proposes that when it is discovered during the daily 
inspection that the sanitation compartment ventilation is defective, 
the carrier must repair it prior to departure, or place the locomotive 
in trailing position, in switching service consistent with the 
requirements of paragraph (b)(1)(ii), or in transfer service consistent 
with the requirements of (b)(1)(iii). As discussed earlier, the 
rationale for permitting this usage when the ventilation system is 
inoperative, is that trailing units are typically unoccupied, and so no 
harm would come from utilizing the locomotive in that position. In 
addition, the exceptions set forth in section 137(b)(1)(ii) and (iii) 
require the carriers to provide access to adequate facilities 
elsewhere, and so employees would be using ventilated facilities in 
those circumstances.
    Paragraph (h) of section 137 provides that if the sanitation 
compartment is not equipped with a door that closes when pulled shut as 
of the daily inspection, the door must be repaired prior to departure, 
or the locomotive must be moved from lead position to trailing, 
transfer service, or switching service. In addition, this paragraph 
proposes that if the modesty lock, required to be present in order to 
prevent unintended intrusion, is defective as of the daily inspection, 
the locomotive may remain in use in the lead so long as the lock is 
repaired by the date on which the next 92-day inspection. [See 
discussion for section 229.139(e) below.] The rationale for this 
proposed paragraph is that the first priority for cab employees is to 
have the benefit of a door that closes while using toilet facilities, 
for each assignment in a lead locomotive in use. Therefore, the door 
must close as designed, as of the daily inspection. So long as the 
compartment door closes as it should, a unit with a defective modesty 
lock may remain in service until the date on which the next 92-day 
inspection would be required. FRA believes that affirming an employee's 
expectation of privacy while using toilet facilities will contribute to 
appropriate use of the facilities and consequent good health, and that 
this proposal accomplishes that end effectively. The proposal balances 
legitimate employee privacy needs, by requiring a door that closes, and 
the legitimate difficulties associated with making use of a locomotive 
while moving it to the correct repair facility, by permitting the 
locomotive with a defective modesty lock to remain in service for a 
limited time period.
    Paragraph (i) provides that all locomotives which are equipped with 
a toilet facility on the effective date of the final sanitation rule, 
must retain and maintain those toilet facilities, even where the 
locomotive units might be relegated to switching service or transfer 
train service, where toilet facilities are not always required by this 
proposal. There is a small exception to this proposed requirement, 
which involves cabs that are not occupied. Where a railroad carrier 
downgrades a locomotive to ``booster'' or ``slug'' service, removing 
many of the interior appurtenances, so that the unit is no longer 
intended to be occupied in movement, the carrier may also remove the 
toilet facility. FRA strongly believes that this proposed paragraph is 
necessary to ensure that employee protections in the area of sanitation 
are not diminished as a result of this rulemaking. It would be ironic 
and unwise if FRA initiated a rulemaking, in consultation with industry 
representatives, to improve employee working conditions and railroad 
safety, which ultimately resulted in a workplace that was more 
hazardous to employees and railroad safety. Based on the proposed 
exceptions for switching and transfer train service, some railroad 
carriers might opt to remove toilet facilities in units being used in 
that service, to avoid maintenance and servicing costs. FRA proposes 
here to eliminate that alternative. Railroad carriers must retain 
toilets in equipped units in order to provide the most accommodating 
access to sanitation facilities available--an operable toilet on board 
the locomotive. Clearly, a toilet facility on the locomotive is 
preferable to one along the right-of-way. Employees can utilize it as 
the need arises, which diminishes the risk of health problems. They 
would not be forced to leave running equipment on the track or slow 
planned operations, which can create safety risks. Also, as older 
locomotives cascade down to the Class III railroads carriers, this 
proposal enhances the likelihood that small entities will inherit 
locomotives equipped with toilet facilities.
    Paragraph (j) proposes that all new locomotive purchases made 
subsequent to the effective date of this rule, with two narrow 
exceptions, must include a toilet facility accessible to cab employees 
without walking outside. The design may require walking out of the cab 
into other compartments of the locomotive, but walking outside to use 
the toilet is disfavored. This paragraph reflects FRA's desire that all 
cab employees will work in a locomotive equipped with a toilet facility 
in the future.
    The two narrow exceptions to this proposed requirement relate to 
switching units that are built exclusively for switching service and 
commuter locomotives designed exclusively for commuter service. With 
respect to the switching service exception, the Working Group and FRA 
recognize that these units that are created exclusively for yard 
service, and are often too small and oddly shaped to accommodate a 
toilet facility. Also, because of their size and configuration, these 
units are not used on long hauls over the road on which employees would 
clearly need toilet facilities in the cab. Under all circumstances, 
these

[[Page 153]]

units would be used in yard service, where railroad carrier-provided 
sanitation facilities exist along the right-of-way, and are available 
for employee use. New units used in transfer train service would be 
required to be fitted with toilet facilities.
    Similarly, the Working Group and FRA presently believe that 
commuter operations provide cab employees with sufficient access to 
sanitation facilities, along the right-of-way and elsewhere on the 
train. Therefore, FRA believes that the new construction requirements 
proposed in this paragraph need not include commuter locomotives.
    With this requirement, FRA does not wish to chill innovation in the 
design of new equipment, but believes that toilet facilities should be 
located in close proximity to cab employees in lead locomotives, 
switching service, and transfer train service. Members of the industry 
agree that this proposal is appropriate.
    Finally, paragraph (k) requires that where the washing system in 
place on the lead locomotive includes the use of water, the water must 
be potable. This proposed requirement is consistent with the principle 
that nonpotable water should not be used by humans for personal 
cleanliness, due to bacteria that may be present. As discussed above, 
railroad carriers may use waterless soaps, now available commercially, 
which would not require water; they may use bottled water that is 
potable; or they may use water in holding tanks located in the toilet 
compartment, so long as it meets the safe drinking water standards.

Section 229.139  Sanitation, Servicing Requirements

    Section 229.139 proposes minimum servicing standards to ensure that 
sanitation compartments in occupied locomotives are not unsanitary or 
defective. Paragraph (a) states that the railroad carrier must service 
the sanitation compartments of lead locomotives in use so that they are 
sanitary. This proposed requirement means that the floors, toilet 
facility, and washing system must be free of trash and waste. It is 
reasonable to expect that, as a locomotive is used, some amount of dust 
and trash would accumulate. However, in order to meet the requirements 
of paragraph (a), the trash must be removed at regular intervals, and 
used, soiled paper products or human waste may not be present on the 
floor.
    Paragraph (b) of section 139 requires that all components required 
by paragraph (a) of section 137 for the lead locomotive must be present 
consistent with the requirements of sections 137 and 139, and must be 
maintained so that they operate as intended. In this NPRM, FRA does not 
dictate when and how railroad carriers must empty, clean, and service 
toilets. Members of the Working Group advised FRA that these decisions 
vary greatly from property to property, and depend on weather 
conditions, degree of use, and the toilet system in place. These 
members further advised that a federal standard that established 
specific thresholds and time limits could result in unnecessary costs 
for some entities, and could actually reduce the level of safety and 
sanitation on others. Based on that information, FRA proposes language 
that requires each railroad carrier to develop an effective servicing 
program that suits the traffic, use, weather, equipment and other needs 
of the system so that cab employees are not exposed to full toilet 
bowls, missing seats, offensive odors, frozen units, dirty floors, 
ineffective ventilation systems, or any other condition that can 
reasonably be deemed unsanitary.
    Following the Working Group's final meeting on sanitation and after 
FRA initially formulated this NPRM, a labor organization submitted 
information to FRA concerning a toilet system prevalent in the industry 
that utilizes a bacteriological treatment system. When this system 
functions as intended, water (with no biohazards remaining) is 
discharged to the track structure. The commenter alleges that this 
system may expose employees along the right-of-way to untreated human 
waste, or to substances that are otherwise harmful if the railroad 
carrier fails to service the toilet properly. This toilet meets the 
proposed definition of toilet facility, and presumably would continue 
to exist in large numbers throughout the industry after publication of 
any final rule in this proceeding. The regulations of the FDA, 
discussed above, prohibit the discharge of untreated waste from 
railroad equipment placed in service after July 1, 1972, and permit the 
discharge of waste that has been suitably treated to prevent disease. 
The bacteriological toilet system at issue meets the requirements of 
this FDA standard, so long as the system is being serviced and 
maintained to operate as intended. Based on the information provided 
concerning instances in which railroad employees along the right-of-way 
may be placed at risk if this system is not maintained properly, FRA 
will consider whether more specific servicing requirements are 
necessary in the final rule.
    For instance, FRA could require that all railroads follow a 
maintenance program for each of the toilet systems in service on their 
property for the purposes of the servicing requirements in section 139. 
FRA could simply establish a requirement that all railroads follow the 
manufacturer's maintenance program for the toilet system in use. 
Alternatively, FRA could establish a requirement that each railroad 
would develop a maintenance program to meet appropriate effectiveness 
measures for each part of the toilet system. For example, to work 
properly, the aerobic bacteriological treatment toilet system presently 
employed by some carriers requires that, first, the treatment remain 
aerobic, and second, that bacteria be killed as the effluent exits the 
system. Although other chemicals or technology methods may be available 
in the future, presently, this second step is performed through the use 
of chlorine. As the aerobic bacteriological process must remain intact 
and not go septic, converting to anaerobic conditions, clear 
effectiveness indicators are required. Indicators that the process is 
no longer intact include very strong, putrid odors; observance that a 
full treatment tank will not drain; or large air bubbles returning to 
the toilet bowl via the waste flap following the flush cycle. To ensure 
the effectiveness measure of a railroad's maintenance of the whole 
aerobic bacteriological treatment toilet system may require statistical 
sampling of effluent for live organisms, including the bacteria. FRA 
might also require that, if such a toilet system ceases to function 
properly, presenting a risk that untreated waste might be discharged to 
the track, the unit must be plugged to prevent any such leakage in 
order to be used in a trailing position pending servicing. FRA seeks 
comments from all industry members on these proposals, the rule text 
language set forth in the NPRM, alternative language that would 
effectively eliminate the risks that employees along the right-of-way 
may face, and any other hazards that may exist which FRA has not 
addressed in this paragraph. FRA notes that a performance-oriented 
approach to this issue is preferred by FRA and others in the Working 
Group. However, FRA needs more information to determine how successful 
implementation of a performance-oriented approach could be monitored. 
FRA seeks comments on the issues and options associated with this type 
of toilet system. These comments will be considered by the Working 
Group prior to issuance of a final rule.
    Paragraph (c) of section 139 proposes that any unit used in 
switching service,

[[Page 154]]

transfer train service, or in the trailing position that is equipped 
with a toilet facility, must be sanitary if the locomotive is occupied. 
This requirement would address those units that might fall within the 
exceptions proposed in sections 229.137(b)(1)(ii) and (b)(1)(iii) 
because of the operations they are engaged in, but nonetheless possess 
a toilet facility on board. If that is the case, employees may opt not 
to use the toilet facility, preferring to utilize other facilities 
along the right-of-way. However, carriers must not expose these 
employees to unsanitary conditions while they are in the units. 
Therefore, the toilet facilities may actually be defective while the 
unit is occupied, but they cannot be unsanitary.
    Paragraph (d) proposes that where a locomotive is equipped with a 
toilet facility that has become defective, and the locomotive is 
utilized briefly in switching or transfer train service consistent with 
the requirements of sections 229.137(b)(1)(ii) and (b)(1)(iii), the 
railroad carrier must mark the toilet facility as defective. The 
locomotive with the defective, but sanitary toilet facility, can be 
used in switching or transfer train service for a period not to exceed 
10 calendar days from the date on which it became defective, at which 
time it must be repaired. However, the facility must remain sanitary in 
this short period while it is occupied. The date on which the toilet 
facility became defective must be noted on the daily inspection report, 
so the unit will be repaired within the prescribed time period. The 
carriers may need to institute new internal procedures to ensure that 
these defects are corrected within the required time frame, because (as 
some members of the Working Group have suggested), defects that need 
not be repaired on a daily basis, as section 229.21 requires with many 
defective conditions, may be forgotten. This proposal would amend 
section 229.21(a) and (b) to permit the railroads to record repairs 
made electronically, rather than on the daily inspection report. 
Several carriers noted that they currently employ an electronic 
tracking system of defects and repairs, and would like to include 
violations of sections 229.137 and 229.139 in the existing electronic 
program. FRA wishes to facilitate this process, and so long as the 
system is capable of being audited, FRA does not believe it is 
necessary to regulate this internal mechanism with great specificity.
    During this 10-day period, the exceptions set forth for switching 
and transfer train service would apply, and so the carrier would be 
required to provide the cab employees affected access to sanitation 
facilities to meet otherwise applicable sanitation standards. [As 
discussed previously, these defective units may also be utilized in 
trailing position where there is less likelihood that employees will be 
affected at all.]
    Requiring that these defective units can remain in service for a 
period not to exceed 10 calendar days, at which time they must be 
repaired or used in trailing position, is consistent with FRA's and the 
Working Group's desire to preserve optimum access to sanitation 
facilities where they currently exist. If a locomotive is equipped with 
a toilet facility, FRA recognizes that it may become defective and yet 
the locomotive can continue to operate without jeopardizing the 
employee's health. However, the toilet facility should not be allowed 
to remain defective indefinitely. The Working Group and FRA do not 
expect the railroads to reassign locomotives from road to yard service 
solely for the purpose of circumventing any part of this regulation. 
FRA understands that there are overriding incentives for railroads to 
keep road units with defective toilets in trailing road service until 
the next periodic inspection, rather than reassigning them to yard 
service.
    The 10-day period was selected as a result of Working Group 
discussions, in which the carriers noted that a period of 10 days may 
be required to get appropriate parts needed for repair to remote 
locations where these defective units may be situated. However, in 
subsequent discussions, the carriers indicated that they would likely 
haul the defective units to repair facilities, rather than wait for 
parts to be sent to remote locations. Also, Working Group members have 
stated that, in some instances, the carriers would only need additional 
time to make yard movements so that a compliant locomotive can replace 
the defective one. Therefore, FRA is considering reducing this 10-day 
time period to accurately reflect what would be reasonable given 
prevalent practice. FRA invites comment on this issue from interested 
parties concerning the time needed to haul units for repair, the time 
needed to replace the defective unit with another in the yard, and the 
extent to which those practices will occur.
    Paragraph (e) proposes to require the railroad carrier to repair a 
defective modesty lock prior to the next 92-day inspection that the 
locomotive is subject to, pursuant to the requirements of part 229. 
This proposal was recommended by all members of the Working Group and 
balances the privacy concerns that led to the modesty lock requirement, 
against the industry's interest in keeping otherwise fit locomotives in 
service. FRA believes that this proposal reaches a reasonable 
accommodation of both aims.
    In addition to the foregoing issues, the Working Group discussed 
blue signal protection for railroad employees involved in the servicing 
of the sanitation compartment, and the substance of those discussions 
should be illuminated here. FRA issued regulations that require 
protections for employees engaged in the inspection, testing, repair, 
and servicing of rolling equipment, where those activities require 
employees to work on, under, or between equipment, and where the danger 
of personal injury exists. See 49 CFR part 218. These regulations state 
that ``servicing'' does not include supplying locomotives with sanitary 
supplies. Therefore, employees engaged in replenishing toilet paper in 
the sanitation compartment would not be ``servicing'' the locomotive 
for purposes of part 218, and, therefore, would not require blue signal 
protection. However, other duties that employees may be engaged in 
relating to the repair, service, maintenance or emptying of the 
locomotive toilet facility likely would fall within the scope of Part 
218 and would require the protections set forth there. This 
determination may depend on the toilet system in place, and so each 
railroad carrier must assess the need for blue signal protection on its 
property based on the configuration of the system in place and the 
functions employees perform relative to it.
    Finally, this NPRM does not propose new lighting requirements for 
the sanitation compartment. The existing locomotive safety standards 
already require that ``Cab passageways and compartments shall have 
adequate illumination.'' 49 CFR 229.127(b). This existing requirement 
effectively addresses the need for lighting in the sanitation 
compartment. The compartment must be illuminated so that occupants can 
clearly see all appurtenances, fixtures, and items present within the 
toilet area.

Appendix

    FRA plans to revise Appendix B to part 229, Schedule of Civil 
Penalties, to include penalties for violations of those provisions as 
set forth in this proposal that will become part of the final rule. 
Because such penalty schedules are statements of policy, notice and 
comment are not required prior to their issuance. See U.S.C. 
553(b)(3)(A). Nevertheless, interested parties are

[[Page 155]]

welcome to submit their views on what penalties may be appropriate.

Environmental Impact

    FRA has evaluated this proposal in accordance with its procedures 
for ensuring full consideration of the potential environmental impacts 
of FRA actions, as required by the National Environmental Policy Act 
(42 U.S.C. 4321, et seq.) and related directives. The regulation of 
sanitation facilities on locomotives gives rise to two potential 
environmental concerns. The first relates to the handling of chemicals 
used to treat human waste while in transit or in storage awaiting 
permanent disposal. These chemical substances and employee exposure to 
them are currently regulated by EPA and OSHA, respectively, in order to 
prevent degradation of the environment and harm to employees. Nothing 
in this proposal alters those regulations, which protect the 
environment and employees from the hazards associated with regulated 
chemicals.
    The second concern relates to the disposal of untreated waste along 
the railroad right-of-way, which would give rise to potential 
environmental and employee health hazards. As FRA understands it, 
nearly all locomotives utilize sanitation systems that either treat or 
burn the waste on board and release products that do not introduce 
environmental or personal safety hazards; or haul the waste in 
treatment containers to a site where it is removed and stored for 
approved processing. In any event, regulations promulgated by the FDA 
prohibit the release of untreated human waste along the railroad right-
of-way, and nothing in this proposal alters that requirement. 
Therefore, FRA has determined that this proposal will not have a 
deleterious impact on the environment.

Regulatory Impact

Executive Order 12866 and DOT Regulatory Policies and Procedures

    This proposal has been evaluated in accordance with existing 
policies and procedures, and determined to be non-significant under 
both Executive Order 12866 and DOT policies and procedures (44 FR 
11034; February 26, 1979). FRA has prepared and placed in the docket a 
regulatory analysis addressing the economic impact of this proposed 
rule. Document inspection and copying facilities are available at 1120 
Vermont Avenue, 7th Floor, Washington, DC. Photocopies may also be 
obtained by submitting a written request to the FRA Docket Clerk at 
Office of Chief Counsel, Federal Railroad Administration, 400 Seventh 
Street, SW., Washington, DC 20590.
    As part of the regulatory impact analysis, FRA has assessed 
quantitative measurements of costs and a qualitative discussion of the 
benefits expected from the adoption of this proposed rule. Over a 
twenty-year period, the Present Value (PV) of the estimated costs is 
$75.4 million.
    The major costs anticipated from adopting this proposed rule 
include: the on-going maintenance and servicing of toilet facilities 
that are not currently being serviced properly; an increase in the 
daily inspection burden to include additional components of the 
sanitation compartment; and providing a separate trash receptacle in 
the sanitation compartment and the removal of trash receptacles in 
regular intervals.
    The major benefits anticipated from implementing this final rule 
include: guaranteed access to sanitary facilities; assurance that 
toilet facilities are maintained in a clean and sanitary manner; and 
the assurance that cab employees will have potable water to use. In 
addition, railroads should incur some savings from having a national 
and uniform regulation governing sanitation facilities. In the long-
term, the FRA should see a decrease in complaints and correspondence 
related to toilet facilities.

Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) 
requires a review of proposed and final rules to assess their impact on 
small entities. FRA has prepared and placed in the docket an Initial 
Regulatory Flexibility Assessment (IRFA) which assesses the small 
entity impact of this proposal. Document inspection and copying 
facilities are available at 1120 Vermont Avenue, 7th Floor, Washington, 
DC. Photocopies may also be obtained by submitting a written request to 
the FRA Docket Clerk at Office of Chief Counsel, Federal Railroad 
Administration, 400 Seventh Street, SW., Washington, DC 20590.
    ``Small entity'' is defined in 5 U.S.C. 601 as a small business 
concern that is independently owned and operated, and is not dominant 
in its field of operation. The U.S. Small Business Administration (SBA) 
has authority to regulate issues related to small businesses, and 
stipulates in its size standards that a ``small entity'' in the 
railroad industry is a railroad business ``line-haul operation'' that 
has fewer than 1,500 employees and a ``switching and terminal'' 
establishment with fewer than 500 employees. SBA's ``size standards'' 
may be altered by Federal agencies, in consultation with SBA and in 
conjunction with public comment. Pursuant to that authority, FRA has 
published an interim policy which formally establishes ``small 
entities'' as being railroads which meet the line haulage revenue 
requirements of a Class III railroad. Currently, the revenue 
requirements are $20 million or less in annual operating revenue. The 
$20 million limit is based on the Surface Transportation Board's 
(STB's) threshold of a Class III railroad carrier, which is adjusted by 
applying the railroad revenue deflator adjustment (49 CFR part 1201). 
The same dollar limit on revenues is established to determine whether a 
railroad shipper or contractor is a small entity. FRA proposes to use 
this alternative definition of ``small entity'' for this rulemaking. 
Since this is an alternative definition, FRA is using it in 
consultation with the SBA and requests public comments on its use.
    For this rulemaking there are over 550 small railroads that could 
potentially be affected by these proposals. FRA estimates that small 
railroads own approximately 3,500 locomotives. In addition, the Agency 
estimates that only about one-third of these or less possess a toilet 
facility. FRA does not expect this proposal to impose a significant 
burden on small railroads because it provides them an exception from 
the requirement to have a functioning toilet in the lead occupied 
locomotive, so long as the railroad provides employee access to toilet 
and washing facilities at frequent intervals.
    The impacts from this proposal are primarily a result of some of 
the compliance requirements for locomotives that have functioning 
toilet facilities. The most significant impacts are from compliance 
items associated with the proposed toilet facility requirements which 
include a trash receptacle in the toilet compartment, marking defective 
toilet facilities, and the daily inspection requirements. Most small 
railroads own locomotives that never had toilet facilities on them, or 
previously had them removed. FRA estimates that only six percent of the 
Regulatory Impact Analysis' (RIA) total cost over 20 years would impact 
small railroads.
    The proposed requirement which impacts small railroads most is the 
requirement to provide ready access to appropriate toilet facilities. 
FRA has interpreted this requirement to mean that small railroad 
carriers must arrange for en route access to toilet facilities. The RIA 
has estimated that there would be a 2-hour burden per affected railroad 
during the first year of implementation. This burden is estimated to 
cost

[[Page 156]]

$22,545. The burden for the following years is only 20 minutes per 
railroad per year to modify the toilet facility arrangements. FRA 
understands that it is common practice today for a Class III railroads 
to comply with the general requirements of providing ready access. 
Currently it is customary for a small railroad to drive out to a 
locomotive to carry a crew member to sanitary facilities when called. 
Hence, the concept of providing ready access to toilet facilities is 
not a new or significant burden for most Class III railroads since most 
of these railroads currently provide this service for their locomotive 
cab employees.
    The Class III exemption from the requirement to have a toilet 
facility in the lead occupied locomotive is provided to ensure that 
feasible lower cost alternatives are provided for the potentially 
affected small entities. FRA and the Working Group understand the 
difficulties of retrofitting older locomotive units and see no reason 
to unduly burden small railroads, so long as access can be provided by 
alternative means. The Working Group and FRA believe that this 
exception is both necessary and acceptable.
    The IRFA concludes that this proposed rule would not have a 
significant economic impact on a substantial number of small entities. 
Thus, FRA certifies that this proposed rule is not expected to have a 
``significant'' economic impact on a ``substantial'' number of small 
entities. In order to determine the significance of the economic impact 
for the final rule's Regulatory Flexibility Assessment (RFA), FRA 
invites comments from all interested parties concerning the potential 
economic impact on small entities caused by this proposed rule. The 
Agency will consider the comments and data it receives, or lack 
thereof, in making a decision on the RFA for the final rule.

Federalism

    FRA has analyzed the proposed rule according to the principles of 
Executive Order 13132 (``Federalism''). FRA has determined that this 
proposal, if adopted as a final rule, may have federalism implications. 
FRA's final sanitation standards would preempt all state efforts to 
regulate the nature and type of access to sanitation facilities 
generally required for cab employees. Further, FRA's final sanitation 
standards would preempt the maintenance of sanitation facilities 
located on board trains. As discussed above, the Locomotive Inspection 
Act has been interpreted to occupy the field of locomotive safety, 
including the regulation of appurtenances in locomotives, such as 
toilets. Nonetheless, some state regulatory bodies have promulgated and 
enforce state standards that require toilet facilities in locomotive 
cabs. FRA's sanitation standards would preempt those state standards. 
FRA believes this regulatory action is warranted, however, based on 
principles of interstate commerce and the need for uniformity of 
national standards. In addition, some State agencies have expressed the 
need for federal regulation in this area to provide uniform treatment 
and to prevent situations in which employees work without sanitation 
facilities where the State is powerless to enforce its requirements, 
due to operation of the occupational safety and health and railroad 
safety laws.
    Consistent with the requirements of Executive Order 13132, FRA has 
and will continue to consult with State agencies as this rulemaking 
proceeds. This will be achieved primarily through the full RSAC 
Committee, which includes representatives of State interests. FRA will 
publish a federalism impact statement in the final rule that explains 
the concerns of the States, a description of the consultations with the 
states, and a statement of the extent to which the concerns of the 
States have been met in any final standards that are issued.

Paperwork Reduction Act

    The information collection requirements in this proposed rule have 
been submitted for approval to the Office of Management and Budget 
(OMB) under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq. 
The sections that contain the new information collection requirements 
and the estimated time to fulfill each requirement are as follows:

----------------------------------------------------------------------------------------------------------------
                                                                   Average time    Total annual
         CFR section             Respondent       Total annual     per response    burden hours    Total annual
                                  universe          responses        (seconds)        (hours)       burden cost
----------------------------------------------------------------------------------------------------------------
229.137(d)--Sanitation--Loco  Class I & II      15,600 notices..              90             390          $3,250
 motive Defective or           railroads.
 Unsanitary Toilet Facility
 Placed in Trailing Service--
  Clear Markings--
 Unavailable for Use.
229.137(e)-Sanitation--Locom  Class I & II      5,200 notices...              90             130           3,250
 otive Defective Toilet        railroads.
 Facility--Clear Markings--
 Unavailable for Use.
229.139(d)--Servicing--Locom  Class I & II      936,000                       30             780          19,500
 otive Used in Transfer/       railroads.        notations.
 Switching Service with
 Defective Toilet Facility--
 Date Defective.
----------------------------------------------------------------------------------------------------------------

    All estimates include the time for reviewing instructions; 
searching existing data sources; gathering or maintaining the needed 
data; and reviewing the information. Pursuant to 44 U.S.C. 
3506(c)(2)(B), the FRA solicits comments concerning: Whether these 
information collection requirements are necessary for the proper 
performance of the function of FRA, including whether the information 
has practical utility; the accuracy of FRA's estimates of the burden of 
the information collection requirements; the quality, utility, and 
clarity of the information to be collected; and whether the burden of 
collection of information on those who are to respond, including 
through the use of automated collection techniques or other forms of 
information technology, may be minimized. For information or a copy of 
the paperwork package submitted to OMB contact Robert Brogan at 202-
493-6292.
    FRA believes that soliciting public comment will promote its 
efforts to reduce the administrative and paperwork burdens associated 
with the collection of information mandated by Federal regulations. In 
summary, FRA reasons that comments received will advance three 
objectives: (i) Reduce reporting burdens; (ii) ensure that it organizes 
information collection requirements in a ``user friendly'' format to 
improve the use of such information; and (iii) accurately assess the 
resources expended to retrieve and produce information requested. See 
44 U.S.C. 3501.
    Comments must be received no later than March 5, 2001. 
Organizations and individuals desiring to submit comments on the 
collection of information requirements should direct them to Robert 
Brogan, Federal Railroad Administration, RRS-21, Mail Stop 17,

[[Page 157]]

1120 Vermont Ave., NW., MS-17, Washington. DC 20590.
    OMB is required to make a decision concerning the collection of 
information requirements contained in this proposed rule between 30 and 
60 days after publication of this document in the Federal Register. 
Therefore, a comment to OMB is best assured of having its full effect 
if OMB receives it within 30 days of publication. The final rule will 
respond to any OMB or public comments on the information collection 
requirements contained in this proposal.
    FRA cannot impose a penalty on persons for violating information 
collection requirements which do not display a current OMB control 
number, if required. FRA intends to obtain current OMB control numbers 
for any new information collection requirements resulting from this 
rulemaking action prior to the effective date of a final rule. The OMB 
control number, when assigned, will be announced by separate notice in 
the Federal Register.

Comments Requested

    FRA has made every attempt in this proposal to capture the 
principles of accessible, sanitary, toilet and washing facilities for 
locomotive cab employees, in such a way that railroad operations will 
not be adversely affected. However, FRA invites comment from all 
interested parties on all aspects of this proposal. FRA and the Working 
Group made every effort to discuss and address cab sanitation 
comprehensively in this NPRM, but there may be issues, equipment, or 
operations that require further information and consideration. FRA 
requests comments from the public and experts on the scope and 
exceptions set forth in this proposal, the definitions established to 
identify equipment and procedures, the proposed servicing requirements, 
and anything not addressed by this proposal that deserves 
consideration.

List of Subjects in 49 CFR Part 229

    Locomotives, Penalties, Railroad safety.
    For the reasons set forth in the preamble, 49 CFR Part 229 is 
amended as follows.
    1. The authority citation for part 229 continues to read as 
follows:

    Authority: 49 U.S.C. 20102-03, 20133, 20137-38, 20143, 20701-03, 
21301-02, 21304; 49 CFR 1.49.

    2. Section 229.5 is amended by adding in alphabetical order new 
definitions of ``Commuter service'', ``Modesty lock'', ``Potable 
water'', ``Sanitary'', ``Sanitation compartment'', ``Switching 
service'', ``Transfer train'', ``Toilet facility'', ``Unsanitary'', and 
``Washing system'.


Sec. 229.5  Definitions.

* * * * *
    Commuter service means commuter or other short-haul railroad 
passenger service in a metropolitan or suburban area and commuter 
railroad service that was operated by the Consolidated Rail Corporation 
on January 1, 1979, that runs on rails or electromagnetic guideways, 
but does not include rapid transit operations in an urban area that are 
not connected to the general system of transportation. See also, 49 CFR 
part 209, Appendix A.
* * * * *
    Modesty lock means a latch that can be operated in the normal 
manner only from within the sanitary compartment, that is designed to 
prevent entry of another person when the sanitary compartment is in 
use. A modesty lock may be designed to allow deliberate forced entry in 
the event of an emergency.
* * * * *
    Potable water means water that meets the requirements of 40 CFR 
part 141, the Environmental Protection Agency's Primary Drinking Water 
Regulations, or water that has been approved for drinking and washing 
purposes by the pertinent state or local authority having jurisdiction. 
For purposes of this section, commercially available, bottled drinking 
water is deemed potable water.
* * * * *
    Sanitary means the absence of any significant amount of filth, 
trash, human waste present in such a manner that a reasonable person 
would believe that the condition might constitute a health hazard; or 
of strong, persistent, chemical or human waste odors sufficient to 
deter use of the facility, or give rise to a reasonable concern with 
respect to exposure to hazardous fumes. Such conditions include, but 
are not limited to, a toilet bowl filled with human waste, soiled 
toilet paper, or other products used in the toilet compartment, that 
are present due to a defective toilet facility that will not flush or 
otherwise remove the waste; visible human waste residue on the floor or 
toilet seat that is present due to a toilet facility that overflowed; 
an accumulation of soiled paper towels or soiled toilet paper on the 
floor, toilet facility or sink; an accumulation of visible dirt or 
human waste on the floor, toilet facility, or sink; and strong, 
persistent chemical or human waste odors in the compartment.
    Sanitation compartment means an enclosed compartment on a railroad 
locomotive that contains a toilet facility for employee use.
* * * * *
    Switching service means the classification of railroad freight cars 
according to commodity or destination; assembling cars for train 
movements; changing the position of cars for purposes of loading, 
unloading, or weighing; placing locomotives and cars for repair or 
storage; or moving rail equipment in connection with work service that 
does not constitute a train movement.
    Transfer train means a train that travels between a point of origin 
and a point of final destination not exceeding 20 miles and that is not 
performing switching service.
    Toilet facility means a system that automatically or on command of 
the user removes human waste to a place where it is treated, 
eliminated, or retained such that no solid or non-treated liquid waste 
is thereafter permitted to be released into the bowl, urinal, or room 
and that prevents harmful discharges of gases or persistent offensive 
odors.
    Unsanitary means any condition in which any significant amount of 
filth, trash, human waste are present in such a manner that a 
reasonable person would believe that the condition might constitute a 
health hazard; or strong, persistent, chemical or human waste odors 
sufficient to deter use of the facility or to give rise to a reasonable 
concern with respect to exposure to hazardous fumes. Such conditions 
include, but are not limited to, a toilet bowl filled with human waste, 
soiled toilet paper, or other products used in the toilet compartment, 
that are present due to a defective toilet facility that will not flush 
or otherwise remove the waste; visible human waste residue on the floor 
or toilet seat that is present due to a toilet facility that 
overflowed; an accumulation of soiled paper towels or soiled toilet 
paper on the floor, toilet facility, or sink; an accumulation of 
visible dirt or human waste on the floor, toilet facility, or sink; and 
strong persistent chemical or human waste odors in the compartment.
    Washing system means a system for use by railroad employees to 
maintain personal cleanliness that includes a secured sink or basin, 
water, antibacterial soap, and paper towels; or antibacterial waterless 
soap and paper towels; or antibacterial moist towelettes and paper 
towels; or any other combination of suitable antibacterial cleansing 
agents.

[[Page 158]]

    3. Section 229.9 is amended by adding paragraph (g) to read as 
follows:


Sec. 229.9  Movement of non-complying locomotives.

* * * * *
    (g) Paragraphs (a), (b), and (c) of this section shall not apply to 
Sec. 229.137 and Sec. 229.139. Sections 229.137 and 229.139 set forth 
specific requirements for the movement and repair of locomotives with 
defective sanitation compartments.
    4. Section 229.21 is amended by removing the fourth and fifth 
sentences of paragraph (a) and adding in their place three new 
sentences and by removing the fourth sentence of paragraph (b) and 
adding in its place three new sentences to read as follows:


Sec. 229.21  Daily inspection.

    (a) * * * Except as provided in Secs. 229.9, 229.137, and 229.139, 
any conditions that constitute non-compliance with any requirement of 
this part shall be repaired before the locomotive is used. Except with 
respect to conditions that don't comply with Secs. 229.137 or 229.139, 
a notation shall be made on the report indicating the nature of the 
repairs that have been made. Repairs made for conditions that don't 
comply with Secs. 229.137 or 229.139 may be noted on the report, or in 
electronic form. * * *
    (b) * * * Except as provided in Secs. 229.9, 229.137, and 229.139, 
any conditions that constitute non-compliance with any requirement of 
this part shall be repaired before the locomotive is used. Except with 
respect to conditions that don't comply with Secs. 229.137 or 229.139, 
a notation shall be made on the report indicating the nature of the 
repairs that have been made. Repairs made for conditions that don't 
comply with Secs. 229.137 or 229.139 may be noted on the report, or in 
electronic form. * * *
    5. Sections 229.137 and 229.139 are added to subpart C to read as 
follows:


Sec. 229.137  Sanitation, general requirements.

    (a) Sanitation compartment. Except as provided in paragraph (b) of 
this section, all lead locomotives in use shall be equipped with a 
sanitation compartment. Each sanitation compartment shall be:
    (1) Adequately ventilated;
    (2) Equipped with a door that:
    (i) Closes, and
    (ii) Possesses a modesty lock by [18 months after publication of 
the final rule];
    (3) Equipped with a toilet facility, as defined in this part;
    (4) Equipped with a washing system, as defined in this part, unless 
the railroad carrier otherwise provides the washing system to employees 
upon reporting for duty or occupying the cab for duty, or where the 
locomotive is equipped with a stationary sink that is located outside 
of the sanitation compartment;
    (5) Equipped with toilet paper in sufficient quantity to meet 
employee needs, unless the railroad carrier otherwise provides toilet 
paper to employees upon reporting for duty or occupying the cab for 
duty; and
    (6) Equipped with a trash receptacle, unless the railroad carrier 
otherwise provides portable trash receptacles to employees upon 
reporting for duty or occupying the cab for duty.
    (b) Exceptions.
    (1) Paragraph (a) of this section shall not apply to:
    (i) Locomotives engaged in commuter service on which employees have 
ready access to railroad carrier-provided sanitation facilities outside 
of the locomotive or elsewhere on the train, that meet otherwise 
applicable sanitation standards, at frequent intervals during the 
course of their work shift;
    (ii) Locomotives engaged in switching service on which employees 
have ready access to railroad carrier-provided sanitation facilities 
outside of the locomotive, that meet otherwise applicable sanitation 
standards, at frequent intervals during the course of their work shift;
    (iii) Locomotives engaged in transfer train service on which 
employees have ready access to railroad carrier-provided sanitation 
facilities outside of the locomotive, that meet otherwise applicable 
sanitation standards, at frequent intervals during the course of their 
work shift;
    (iv) Locomotives of Class III railroad carriers engaged in 
operations other than switching service or transfer train service, that 
are not equipped with a sanitation compartment as [of the effective 
date of this section]. Where an unequipped locomotive of a Class III 
railroad carrier is engaged in operations other than switching or 
transfer train service, employees shall have ready access to carrier-
provided sanitation facilities outside of the locomotive that meet 
otherwise applicable sanitation standards, at frequent intervals during 
the course of their work shift, or the carrier shall arrange for en 
route access to such facilities; and
    (v) Locomotives of tourist, scenic, historic, or excursion 
operations, which are otherwise covered by this part because they are 
not propelled by steam power and operate on the general railroad system 
of transportation, but on which employees have ready access to railroad 
carrier-provided sanitation facilities outside of the locomotive, that 
meet otherwise applicable sanitation standards, at frequent intervals 
during the course of their work shift.
    (2) Paragraph (a)(3) of this section shall not apply to:
    (i) Locomotives of a Class I railroad carrier which, prior to [the 
effective date of this section], were equipped with a toilet facility 
in which human waste falls via gravity to a holding tank where it is 
stored and periodically emptied, which does not conform to the 
definition of toilet facility set forth in this section. For these 
locomotives, the requirements of this section pertaining to the type of 
toilet facilities required shall be effective as these toilets become 
defective or are replaced with conforming units, whichever occurs 
first. All other requirements set forth in this section shall apply to 
these locomotives as of [the effective date of this section]; and
    (ii) With respect to the locomotives of a Class I railroad carrier 
which, prior to [the effective date of this section], were equipped 
with a sanitation system other than the units addressed by paragraph 
(b)(2)(i) of this section, that contains and removes human waste by a 
method that does not conform with the definition of toilet facility as 
set forth in this section, the requirements of this section pertaining 
to the type of toilet facilities shall apply on locomotives in use 
shall apply on July 1, 2003. However, the Class I railroad carrier 
subject to this exception shall not deliver noncompliant toilet 
facilities to other railroad carriers for use, in the lead position, 
during the time between [the effective date of this rule] and July 1, 
2003. All other requirements set forth in this section shall apply to 
the locomotives of this Class I railroad carrier as of [the effective 
date of this section].
    (c) Defective, unsanitary toilet facility; prohibition in lead 
position. Except as provided in paragraphs (c)(1) through (5) of this 
section, if the railroad carrier determines during the daily inspection 
required by Sec. 229.21 that a locomotive toilet facility is defective 
or is unsanitary, or both, the railroad carrier shall not use the 
locomotive in the lead position. The railroad carrier may continue to 
use a lead locomotive with a toilet facility that is defective or 
unsanitary as of the daily inspection only where all of the following 
conditions are met:
    (1) The unsanitary or defective condition is discovered at a 
location where there are no other locomotives available for use, it is 
not possible to

[[Page 159]]

switch another locomotive into the lead position, or which is not 
equipped to clean the sanitation compartment if unsanitary or repair 
the toilet facility if defective;
    (2) The locomotive, while noncompliant, did not pass through a 
location where it could have been cleaned if unsanitary, repaired if 
defective, or switched with another compliant locomotive, since its 
last daily inspection required by this part;
    (3) Upon reasonable request of a locomotive crewmember operating a 
locomotive with a defective or unsanitary toilet facility, the railroad 
carrier arranges for access to a toilet facility outside the locomotive 
that meets otherwise applicable sanitation standards;
    (4) If the sanitation compartment is unsanitary, the sanitation 
compartment door shall be closed and adequate ventilation shall be 
provided in the cab so that it is habitable; and
    (5) The locomotive shall not continue in service in the lead 
position beyond a location where the defective or unsanitary condition 
can be corrected or replaced with another compliant locomotive, or the 
next daily inspection required by this part, whichever occurs first.
    (d) Defective, unsanitary toilet facility; use in trailing 
position. If the railroad carrier determines during the daily 
inspection required by Sec. 229.21 that a locomotive toilet facility is 
defective or is unsanitary, or both, the railroad carrier may use the 
locomotive in trailing position. If the railroad carrier places the 
locomotive in trailing position, the carrier shall not haul employees 
in the unit unless the sanitation compartment is made sanitary prior to 
occupancy. If the toilet facility is defective and the unit becomes 
occupied, the railroad carrier shall clearly mark the defective toilet 
facility as unavailable for use.
    (e) Defective, sanitary toilet facility; use in switching, transfer 
train service. If the railroad carrier determines during the daily 
inspection required by Sec. 229.21 that a locomotive toilet facility is 
defective, but sanitary, the carrier may use the locomotive in 
switching service, as set forth in paragraph (b)(1)(ii) of this 
section, or in transfer train service, as set forth in paragraph 
(b)(1)(iii) of this section for a period not to exceed 10 days. In this 
instance, the railroad carrier shall clearly mark the defective toilet 
facility as unavailable for use. After expiration of the 10-day period, 
the locomotive shall be repaired or used in the trailing position.
    (f) Lack of toilet paper, washing system, trash receptacle. If the 
railroad carrier determines during the daily inspection required by 
Sec. 229.21 that the lead locomotive is not equipped with toilet paper 
in sufficient quantity to meet employee needs, or a washing system as 
required by paragraph (a)(4) of this section, or a trash receptacle as 
required by paragraph (a)(6) of this section, the locomotive shall be 
equipped with these items prior to departure.
    (g) Inadequate ventilation. If the railroad carrier determines 
during the daily inspection required by Sec. 229.21 that the sanitation 
compartment of the lead locomotive in use is not adequately ventilated 
as required by paragraph (a)(1) of this section, the railroad carrier 
shall repair the ventilation prior to departure, or place the 
locomotive in trailing position, in switching service as set forth in 
paragraph (b)(1)(ii) of this section, or in transfer train service as 
set forth in paragraph (b)(1)(iii) of this section.
    (h) Door closure and modesty lock. If the railroad carrier 
determines during the daily inspection required by Sec. 229.21 that the 
sanitation compartment on the lead locomotive is not equipped with a 
door that closes, as required by paragraph (a)(2)(i) of this section, 
the railroad carrier shall repair the door prior to departure, or place 
the locomotive in trailing position, in switching service as set forth 
in paragraph (b)(1)(ii) of this section, or in transfer train service 
as set forth in paragraph (b)(1)(iii) of this section. If the railroad 
carrier determines during the daily inspection required by Sec. 229.21 
that the modesty lock required by paragraph (a)(2)(ii) of this section 
is defective, the modesty lock shall be repaired pursuant to the 
requirements of Sec. 229.139(e).
    (i) Equipped units; retention and maintenance. Except where a 
railroad carrier downgrades a locomotive to service in which it will 
never be occupied, where a locomotive is equipped with a toilet 
facility as of [the effective date of the final rule], the railroad 
carrier shall retain and maintain the toilet facility in the locomotive 
consistent with the requirements of this part, including locomotives 
used in switching service pursuant to paragraph (b)(1)(ii) of this 
section, and in transfer train service pursuant to paragraph 
(b)(1)(iii) of this section.
    (j) Newly manufactured units; in-cab facilities. All locomotives 
manufactured after [Effective date of the final rule], except switching 
units built exclusively for switching service and locomotives built 
exclusively for commuter service shall be equipped with a sanitation 
compartment accessible to cab employees without exiting to the out-of-
doors for use.
    (k) Potable water. The railroad carrier shall utilize potable water 
where the washing system includes the use of water.


Sec. 229.139  Sanitation, servicing requirements.

    (a) The sanitation compartment of each lead locomotive in use shall 
be sanitary.
    (b) All components required by Sec. 229.137(a) for the lead 
locomotive in use shall be present consistent with the requirements of 
this part, and shall operate as intended.
    (c) The sanitation compartment of each occupied locomotive used in 
switching service pursuant to Sec. 229.137(b)(1)(ii), in transfer train 
service pursuant to Sec. 229.137(b)(1)(iii), or in a trailing position 
when the locomotive is occupied, shall be sanitary.
    (d) Where the railroad carrier uses a locomotive pursuant to 
Sec. 229.137(e) in switching or transfer train service with a defective 
toilet facility, such use shall not exceed 10 calendar days from the 
date on which the defective toilet facility became defective. The date 
on which the toilet facility becomes defective shall be entered on the 
daily inspection report.
    (e) Where it is determined that the modesty lock required by 
Sec. 229.137(a)(2) is defective, the railroad carrier shall repair the 
modesty lock on or before the next 92-day inspection required by this 
part.

    Issued in Washington, D.C. on the 15th of December, 2000.
Jolene M. Molitoris,
Administrator.
[FR Doc. 00-33363 Filed 12-29-00; 8:45 am]
BILLING CODE 4910-06-P