[Federal Register Volume 67, Number 65 (Thursday, April 4, 2002)]
[Rules and Regulations]
[Pages 16032-16052]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-8077]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 229

[Docket No. FRA 2000-8545, Notice No. 3]
RIN 2130-AA89


Locomotive Cab Sanitation Standards

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

ACTION: Final rule.

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

DATES: This final rule will become effective on June 3, 2002.

ADDRESSES: Any petition for reconsideration should reference FRA Docket 
No. FRA 2000-8545, Notice No. 3, and be submitted 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, SW., 
Washington, DC 20590. All docket material related to this proceeding 
will be available for inspection at this address and on the Internet at 
http://dms.dot.gov. Docket hours at Nassif are Monday-Friday, 10 a.m. 
to 5 p.m., except on federal holidays.

FOR FURTHER INFORMATION CONTACT: Lou Klein, Office of Safety Assurance 
and Compliance, Federal Railroad Administration, 1120 Vermont Avenue, 
NW., Mail Stop 25, Washington, DC 20590, (telephone: 202-493-6235); or 
Christine Beyer, Office of Chief Counsel, Federal Railroad 
Administration, 1120 Vermont Avenue, NW., Mail Stop 10, Washington, DC 
20590, (telephone: 202-493-6027).

SUPPLEMENTARY INFORMATION:

I. Background

    In 1992, Congress enacted Section 10 of The Rail Safety Enforcement 
and Review Act (RSERA) (Pub. L. 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 issued 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.

    In response to Section 10 of RSERA, FRA studied a variety of 
working conditions in locomotive cabs, including sanitation, noise, 
temperature, air quality, ergonomics, and vibration. In September 1996, 
FRA submitted its Locomotive Crashworthiness and Cab Working Conditions 
Report (``Report'') to Congress, which describes the results of these 
studies. The Report is available for review in the docket of this 
matter and was discussed in detail in FRA's Notice of Proposed 
Rulemaking (NPRM) on Locomotive Cab Sanitation Standards. See, 66 FR 
136, January 2, 2001.
    In short, FRA surveyed in excess of 200 locomotives to assess cab 
sanitation facilities. FRA found a wide range of conditions, which 
varied due to weather, type of sanitation system in place, carrier 
maintenance and service programs, locomotive model, and economic status 
of the railroad. In addition, some locomotives were not equipped with 
sanitation facilities. FRA found dirty floors and toilet seats, missing 
toilet seats, poor ventilation, offensive odors, and lack of toilet 
paper. In very cold weather, some units tend to freeze and become 
inoperable. Of the cabs surveyed, approximately thirty percent were 
deficient in some manner related to the use of sanitation facilities.
    The Report noted that employees and rail management 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. Nearly all railroads had programs in place 
to service toilet and washing units, although the program requirements 
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 was uneven throughout the industry, 
and that poor servicing was often the primary cause of unsanitary 
facilities.
    The Report also explained that there was disparity in the legal 
treatment of locomotive cab sanitation among state and federal 
regulatory and enforcement bodies and confusion existed among industry 
members concerning applicable standards and guidelines. See NPRM, 66 FR 
136-7.
    The Report concluded that, given the significant role that 
servicing and use play in maintaining a sanitary workplace and the 
relative ease with which servicing and use may be modified, the issue 
of locomotive sanitation could best be resolved through rail management 
and labor cooperation.
    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. FRA also received complaints from employees of one 
railroad concerning the disposal method used in a particular sanitation 
system. By design, this system requires temporary storage of untreated 
waste in sealed waste containers, which gave rise to perceived health 
and safety concerns. There were also 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 and mixing 
different systems. Finally, some State agencies expressed frustration 
with FRA concerning federal preemption of certain state sanitation 
regulations, and the uneven treatment given locomotive sanitation by 
the state and federal courts.
    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

[[Page 16033]]

rulemaking and program development. The Committee includes 
representation from all of the agency's major customer groups, 
including railroads, 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 may, as necessary, move 
ahead to resolve the issue through traditional rulemaking proceedings.
    When FRA presented the subject of locomotive cab working conditions 
to RSAC, 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 consists of representatives of the following 
organizations, in addition to FRA:

American Association of State Highway & Transportation Officials
American Public Transportation 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 warranted by an assessment of the 
available information, including the FRA survey of sanitary facilities 
and complaint information. The Working Group met several times for over 
a period of nearly two years 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.
    The Working Group reached consensus on a series of recommendations 
for a proposed sanitation standard, referred them to the full RSAC, and 
RSAC approved them on December 7, 2000. On January 2, 2001, FRA 
published the NPRM, which incorporated many of the Working Group's 
recommendations. FRA held a public hearing on April 2, 2001, to gather 
comments from interested parties, and then reconvened the Working Group 
on August 22, 2001. The Working Group considered all comments received, 
and again reached consensus on recommendations for a final standard. 
These recommendations were presented to the full RSAC and on December 
10, 2001, RSAC voted by simple majority to forward the recommendations 
to FRA as the basis for a final sanitation standard.
    The discussion that follows outlines the nature of each comment, 
the Working Group's recommendation for addressing the comment, and how 
FRA resolves the comment in this final rule.

II. Summary of Comments and Conclusions Reached

    FRA received comments to the cab sanitation NPRM from approximately 
13 organizations and individuals, and these are available to the public 
for review in DOT's electronic docket (http://dms.dot.gov). Some of the 
commenters expressed appreciation that the subject of locomotive 
sanitation would now be addressed by a federal standard, many expressed 
broad support for the basic principles and approach taken in the NPRM, 
and some of the commenters raised issues they believe are not addressed 
appropriately in the proposed standard. Some of these are not difficult 
to cure, and some will require additional investigation.
    The American Public Transportation Association (APTA) has been a 
member of the Working Group, participated in developing recommendations 
for the NPRM, and is generally supportive of the proposed standard. 
However, when its member organizations reviewed the NPRM, they 
identified an issue concerning commuter work trains that is not 
addressed in the NPRM. Commuter railroads and their contractors use 
work trains to maintain the right-of-way along their routes, and 
typically use older locomotives that are not equipped with sanitary 
facilities to power these work trains. The operation of these trains is 
very similar to switching, transfer, and some Class III service, in 
which employees are not captive in the cab for an entire work shift, 
and have access to toilet facilities along the right-of-way. APTA 
states in its comments that all of the commuter railroads that own and 
maintain their rights-of-way provide alternate access to sanitation 
facilities if the locomotives are not equipped with toilets. There are 
a variety of methods used to accomplish access: portable toilets are 
placed at the work site; cabooses with toilet facilities are attached 
to the work train; crews are provided with keys to passenger station 
facilities; portable toilets are placed on flat cars and attached to 
the work train; a passenger coach equipped with facilities is attached 
to the work train; and highway vehicles are provided to shuttle 
employees to the nearest facility.
    The basis for the exceptions provided in the NPRM for switching, 
transfer service and Class III service is that employees must be given 
adequate access to sanitation facilities, even though the locomotive on 
which they work is not equipped with a toilet. Retrofitting locomotive 
cabs with new toilet facilities is extremely costly and labor-
intensive. Therefore, the Working Group recommended that FRA provide an 
exception in the final rule to address commuter work trains in which 
the locomotives are not equipped with toilet facilities, so long as the 
employees are given appropriate access to facilities. FRA agrees that 
such an exception is appropriate.
    APTA also requested a new definition for the final rule to properly 
identify the trains covered by this exception: a non-revenue service 
train used in the administration and upkeep of the railroad. The 
proposed definition is very similar to one published in the revised 
power brake rule (See, 49 CFR 232.407(a)(4)), except that it does not 
include a reference to the train's tonnage. The issue of tonnage has no 
bearing on access to sanitation facilities, and therefore, FRA concurs 
that there is no reason to include this in the new definition. However, 
FRA believes the definition should be clarified to indicate that only 
commuter work trains are covered by the exception. The Working Group 
and FRA did not contemplate

[[Page 16034]]

such an exception for freight railroads, whose facilities are often 
much more dispersed geographically; and therefore, the definition and 
exception as they appear in the final rule apply only to commuter work 
trains. Section 137(b)(1)(i) of the final rule now includes commuter 
work trains in the exception that previously applied only to commuter 
service.
    The National Railroad Passenger Corporation (Amtrak) participated 
in the Working Group meetings and submitted comments to the docket 
following publication of the NPRM. Amtrak initially raised three issues 
in need of attention, but subsequently notified FRA that its concerns 
regarding two of the issues were no longer significant. However, Amtrak 
noted that the definition for ``switching service'' in the NPRM did not 
include passenger operations, as it traditionally has in other 
regulations and in practice. FRA and the Working Group agreed that the 
NPRM was in error, and the definition of ``switching service'' now 
includes passenger, as well as, freight operations.
    In the course of the Working Group discussions in August 2001, 
Amtrak raised concerns about cab cars used in push-pull in which the 
lead unit may not be equipped with toilet facilities in a few areas of 
the country. This practice is restricted to very few cars and the 
employees working on these trains have access to facilities in the 
passenger coaches of the train. In addition, cars that do not possess 
toilets are decreasing in the Amtrak system, and will not be replaced 
with unequipped units. The traditional Amtrak locomotives and cab cars 
are equipped with compliant toilet facilities for the cab crew. Amtrak 
requested and the Working Group recommended that FRA insert a narrow 
exception in the rule text to permit Amtrak to run these cab cars so 
long as employees have adequate access to sanitation facilities in the 
passenger coaches of the train or at passenger stations along the 
route. FRA agrees that, given the limited circumstances in which these 
cars are used in the lead position and that the employees have access 
to facilities elsewhere, a narrow exception is appropriate. Therefore, 
FRA adds a new exception in this final rule, in Sec. 229.137(b)(1)(vi).
    The Association of Railway Museums (ARM) is a member of the full 
RSAC Committee, representing tourist, scenic, historic and excursion 
railroads. ARM commented on the NPRM and supports the approach it 
takes, particularly with respect to tourist railroads. However, ARM 
notes that some of its members do not operate on the general system of 
railroad transportation and suggests that FRA should clarify in this 
document that this sanitation standard does not apply to non-general 
system railroads.
    This sanitation standard will become part of the locomotive safety 
standards, 49 CFR part 229. Section 229.3 states that the locomotive 
standards do not apply to ``a railroad that operates only on track 
inside an installation which is not a part of the general system of 
transportation * * *'' As used here, the phrase ``on track inside an 
installation'' includes entities such as tourist, scenic, historic and 
excursion railroads. Therefore, if these railroads operate only within 
installations that are not part of the general system of 
transportation, they are not covered by part 229 and will not be 
covered by the sanitation standard. This is true regardless of whether 
the railroad is insular or not; insularity is not an issue in part 229. 
(See, e.g., 49 CFR 234.3(c).)
    The Tourist Railroad Association (TRAIN) is a member of the full 
RSAC Committee and represents approximately 300 tourist railroads and 
railroad museums. TRAIN submitted comments to the NPRM which suggest 
one minor change to the rule text. TRAIN states that their members may 
not be ``carriers'' pursuant to certain federal law, and therefore that 
term should be removed from the exception that relates to tourist 
railroads, Sec. 229.137(b)(1)(v). As used here, of course, ``carrier'' 
has the meaning conveyed by the railroad safety laws (See, 49 U.S.C. 
20102) which clearly cover tourist operations. Nevertheless, to avoid 
any implication with regard to other statutes, FRA has omitted the word 
``carrier'' from the rule. The rule text now states that employees must 
have access to ``railroad-provided sanitation facilities,'' rather than 
``railroad carrier-provided facilities'' as stated in the NPRM.
    Two individual locomotive engineers submitted comments to the NPRM. 
Mr. P.R. Wilcox, Local Chairman of the Brotherhood of Locomotive 
Engineers Division 848, wrote to underscore the unsanitary conditions 
that are present on many locomotives and to encourage FRA and the 
Working Group to complete the task with a final standard. Mr. E.M. 
Hendricks, an engineer in Tucson, Arizona, also stated that the 
conditions are at times egregious and that a federal regulation is 
necessary to correct these problems. Mr. Hendricks believes that lack 
of proper servicing is typically the problem and that sanitation 
facilities should be added to the locomotive daily inspection so that 
employees in the lead locomotive begin their shift with sanitary 
facilities. FRA and the Working Group concur with these commenters and 
the final standard addresses their concerns.
    The Legislative Board of Arizona of the Brotherhood of Locomotive 
Engineers (BLE) submitted a comment concerning the juxtaposition of 
difficult working conditions resulting from poor sanitation facilities 
and the difficult working conditions that result when cabs in the 
Southwest are not air conditioned. The Arizona BLE states that most 
engineers would prefer to work in an air conditioned unit during the 
summer months, so long as the consist includes one locomotive with 
operating, sanitary facilities. If given a choice, engineers would most 
often work in an air conditioned locomotive without a proper sanitation 
facility, so long as one locomotive in the consist possessed 
appropriate facilities. The Arizona BLE suggests that the crew should 
have the discretion to determine if a noncompliant, air conditioned 
unit would be taken out of the lead position in favor of a non-air 
conditioned unit that possesses a compliant sanitation facility.
    The Working Group and FRA grappled with this issue in discussions 
prior to and following publication of the NPRM. The choice would be a 
difficult one to make and cannot be resolved in the context of this 
rulemaking procedure. FRA cannot issue a final sanitation standard that 
includes requirements concerning air conditioning, because it would 
exceed the scope of this rulemaking as established in the NPRM. Even 
assuming FRA could address air conditioning in this final rule, a very 
complicated list of considerations would have to be reviewed in order 
to determine which locomotive should be placed in the lead position. A 
highly subjective hierarchy of ``palatable'' working conditions would 
have to be devised; the age, condition and power of each locomotive 
would have to be assessed in relation to the load carried; power 
sharing arrangements between the major carriers would have to be 
examined to prevent interruptions in service; and weather conditions 
and geography would have to be anticipated. This sort of ``consist 
management'' requirement, though desirable, is extremely difficult to 
contrive on a national basis given the enormity of variation among 
railroads, operations, regions, and personal preferences across the 
industry. FRA will continue to seek methods to minimize safety and 
health hazards for cab employees with the assistance of the Working 
Group, but the issue of cab temperature cannot be addressed in this 
final standard.

[[Page 16035]]

    The United Transportation Union (UTU) participated in all of the 
Working Group discussions and made a statement at the public hearing. 
The UTU stated that the Working Group worked hard to reach appropriate 
solutions for existing problems concerning sanitation and the the NPRM, 
if adopted as a final rule, would improve the level of safety in the 
industry. The UTU encouraged FRA to move forward with a final standard.
    The Association of American Railroads (AAR) participated in the 
Working Group discussions, submitted comments to the NPRM, and took 
part in the public hearing. The AAR's comments respond to requests for 
input that FRA issued in the NPRM. First, FRA invited comment on the 
policy of permitting locomotives with defective toilets to be used as 
trailing units in a train or in other limited circumstances. The AAR 
supports this proposal, stating that the condition of toilets in 
trailing units is not relevant so long as the lead, occupied unit 
possesses a compliant unit.
    FRA asked whether two types of sanitation systems currently in use, 
the dry hopper and the bogan, which must be phased out pursuant to the 
new rule, are used pervasively throughout the industry. The AAR states 
that these systems are isolated to the two carriers the Working Group 
and FRA were aware of when preparing the NPRM. FRA was concerned that 
the temporary exception proposed in the NPRM for continued use of these 
systems, although they do not comply with the new definition of 
``toilet facility,'' would be more widespread than anticipated when the 
exception was proposed. As is explained in greater detail below, each 
of these systems is being phased out over time and replaced with 
compliant toilets.
    FRA also asked for assistance in clarifying Sec. 229.137(c), which 
permits use of a lead unit with a defective toilet when several 
conditions exist that make it impossible to move the train without use 
of that locomotive. FRA thought that the language of the exception 
might be refined to appear less complicated. The AAR notes that the 
carriers will rely on this section rarely, but that the need for the 
exception is inevitable on occasion. The AAR concurs that the proposal 
accurately captures all conditions that must be present in order to 
take advantage of the exception and that shortening or refining the 
language in Sec. 229.137(c) is not possible.
    FRA also asked for comment on how Sec. 229.137(c) would affect 
push-pull operations. The AAR states that push-pull service is used 
only in commuter service, not in freight railroading. The proposal and 
the final rule provide an exception for commuter service so that 
Sec. 229.137(c) will never come into play where push-pull service is 
used.
    FRA stated in the NPRM that it would consider reducing the 10-day 
period during which a railroad can use a defective toilet in switching 
or transfer service to reflect common practice (Sec. 229.139(d)). The 
AAR argues in its comments that shortening this 10-day period would not 
provide the railroads with sufficient time to repair defective units, 
and as written in the NPRM, would provide no health benefit because 
employees must be given access to facilities during the 10-day period. 
Based on this information, the fact that the Working Group consented to 
this time period, and an absence of evidence that the 10-day period is 
excessive or harmful, FRA has retained this provision in 
Sec. 229.139(d) of the final rule.
    Finally, the AAR responded to FRA's request for information on the 
Microphor toilet system. This system has been used pervasively 
throughout the industry for at least twenty years, and several 
questions concerning its maintenance and operation surfaced during the 
Working Group discussions and in comments to the NPRM. The Microphor is 
a biological treatment system in which waste is flushed into a chamber 
where biological agents reduce the waste to harmless by-product. Then 
the by-product is chemically treated to neutralize the biological 
agent, and the solution is slowly released into the atmosphere. When 
working properly, the effluent is clear liquid, or liquid with small 
amounts of inert material dissolved or suspended in it. The U.S. Food 
and Drug Administration (FDA) has statutory authority to regulate the 
disposal of human waste in interstate transportation, and has issued 
standards that prohibit disposing untreated waste and permit 
discharging waste that has been treated to prevent disease. See 21 CFR 
part 1250. In 1973, the FDA examined the Microphor system pursuant to 
its authority and determined that it meets the standard if operating as 
intended.
    The AAR stated in its comments and at the public hearing that more 
than one thousand Microphor systems are in use in the industry today. 
The AAR is not aware of any injury or illness caused by the use of the 
Microphor system. In addition, the AAR states that the Microphor 
flushes and processes waste without exposing employees to contact with 
the waste or chemicals. The system works on water, air pressure, and 
chlorine; no electricity is needed. Finally, the AAR notes that the 
system has been improved over time. The AAR believes that the chemical 
configuration and delivery methods used to process waste have been 
improved for efficiency and safety in handling. Also, more efficient 
flushing designs have been developed to lower water and chlorine 
consumption and increase capacity.
    FRA asked commenters to consider the need for explicit servicing 
requirements for the Microphor, which might include following the 
manufacturer's recommended maintenance plan or periodically testing the 
effluent to determine whether the treatment process is working 
properly. In its written comments, the AAR stated that these changes 
are not necessary because the carriers follow specific maintenance 
programs that suit local conditions and the system has not resulted in 
any known injuries or illnesses.
    Following the Working Group meeting in August 2001, the AAR 
reconsidered its view that testing the discharge was not necessary. 
Based on persistent complaints from labor organizations that the 
Microphor often discharged untreated waste along the right-of-way, the 
railroads agreed to conduct testing under a variety of operational 
conditions. The initial testing indicated that some units perform as 
intended, but some apparently do not. According to the AAR, the testing 
results revealed inconsistencies in the operation of the Microphor 
system, which may be due to design changes, maintenance, usage, or 
other factors. In September 2001, the AAR notified FRA that certain 
freight and passenger carriers and the manufacturer developed a test 
plan to validate the effectiveness of the Microphor system. The test 
plan would begin in the fall of 2001 and continue for approximately 
three months. Under the test plan, the carriers would gather usage 
patterns and operating conditions, such as weather, across the 
industry, and then subject a large number of the toilets to these 
``real world'' conditions. The AAR will consult with FRA when the test 
results have been gathered.
    The Brotherhood of Maintenance-of-Way Employes (BMWE) and the 
Brotherhood of Railroad Signalmen (BRS) submitted written comments and 
participated in the public hearing of this matter. Both organizations 
are members of the full RSAC, and the BMWE is a non-voting member of 
the Working Group. These organizations represent railroad employees who 
work along the railroad right-of-way and are directly impacted by 
discharge from the Microphor system.

[[Page 16036]]

    The BRS and the BMWE assert that the discharge is often untreated 
or poorly treated waste, which exposes employees to the risk of illness 
or, at the very least, a highly unpleasant work environment. The 
organizations state that waste treatment in the Microphor is time-
dependent, and suggest that waste is not always in contact with the 
chlorine for a sufficient length of time. This problem may arise when 
very frequent flushing occurs, when the chlorine concentration has 
diminished substantially, when the flushing mechanism lacks sufficient 
water, or when the bowl is clogged. In addition, the BRS and BMWE state 
that the manufacturer's design changes over the last twenty years have 
reduced the efficiency of the treatment process.
    Both organizations urge the FRA to prohibit any discharge from the 
Microphor system along the right-of-way until more information has been 
gathered to determine the nature of the discharge. If FRA chooses not 
to prohibit discharge (as is the case in the final rule), they urge FRA 
to require the railroads to engage in an active testing program to 
ensure that the system and maintenance plan are working properly. The 
BRS also suggested that the railroads install holding tanks beneath the 
Microphor that would hold any discharge until the locomotive is at a 
location where the waste can be emptied into a larger container or 
treatment process. The BRS and BMWE representatives on the full RSAC 
Committee did not concur with the Working Group's recommendation to the 
full RSAC that FRA publish a final rule substantially consistent with 
the NPRM. Instead, these organizations voted to send the work product 
back to the Working Group for further analysis.
    FRA agrees with the BRS and BMWE that this issue is serious and in 
need of investigation and analysis. However, FRA has determined that 
the final rule should not include a strict prohibition on discharge 
from the Microphor. The subject matter of this rulemaking is sanitary 
conditions in the locomotive. FRA does not have primary responsibility 
over discharges from interstate conveyances, and even if it becomes 
necessary for FRA to regulate in this area to protect employee health, 
there is no reason to delay the present final rule in order to address 
the issue of discharges. Further, given the number of units currently 
in use throughout the country, the adverse impact of such a prohibition 
would be enormous. Most likely, there would be a substantial increase 
in the number of unsanitary toilet compartments, clogged commodes, and 
unhealthy conditions for cab employees, who are often required to be 
present in the cab for 8 or more hours. If the railroads took all of 
these locomotives out of service, the industry and the economy it 
generates could not function.
    However, FRA has added language to the rule text in Sec. 229.139 to 
more fully describe the conditions that must be present in order for 
the toilet to be ``operating as intended.'' FRA and the Working Group 
believe that this change from the NPRM will help to resolve some of the 
issues surrounding the Microphor and the composition of its discharge.
    FRA has been testing the Microphor system and its discharge at 
selected locations during the last several months, and plans to do 
additional testing. Thus far, FRA has not collected enough data on 
which to draw reliable conclusions concerning the system and its 
ability to treat human waste prior to discharge. When FRA has completed 
the testing, FRA will consult with the industry concerning any 
questions or conclusions reached, and to compare results with the tests 
completed by the AAR member organizations. Further, FRA will consult 
with the FDA to determine what actions that agency deems appropriate 
under its current rules or through further rulemaking. At that point, 
FRA will be in a better position to determine whether the FRA 
sanitation standard should address the characteristics of the effluent.
    The Working Group was asked to address sanitation facilities for 
locomotive cab employees and worked tirelessly for three years to 
develop workable solutions that cab employees and rail management can 
support. FRA believes it is very important to publish the standard now 
to correct ongoing problems that affect cab employees, to hasten the 
retirement of older systems, and to remedy the uneven state and federal 
treatment of this issue in the state legislatures and the courts.

III. Section-by-Section Analysis

    It is important to note that FRA's final rule text set forth below 
differs in some respects from the other federal and state sanitation 
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.
    As FRA discussed in the NPRM, 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 proceeding to be flexible. The basic requirement 
set forth in the rule 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 rule minimizes that likelihood to the 
fullest extent possible.

Definitions

    The final rule provides definitions for key terms used in this 
amendment, and these will be placed in Sec. 229.5 with the other 
definitions established for part 229. The definitions are set forth 
alphabetically.
    For the terms ``commuter service'', ``other short-haul passenger 
service'', ``switching service'', and ``transfer service'', please see 
the detailed discussion of the exceptions to the general requirements, 
discussed in conjunction with Sec. 229.137(b) below. FRA has defined 
the term ``commuter service'' to track the agency's definition in 49 
CFR part 209, Appendix A. FRA has added a definition of ``other short-
haul passenger service'' to track the definition put forth in Appendix 
A, as well. This term was used in the NPRM within the exception for 
commuter service, and had not been previously defined in part 229.
    FRA added a definition for the term ``commuter work train'', in 
response to comments received from APTA. FRA agrees that a definition 
should be provided and uses the definition that has been used for work 
trains on freight railroads, without any restriction on tonnage. The 
definition of work train developed for freight railroads involves power 
brake application, and so tonnage in the work train is extremely 
important. In this rule, tonnage has nothing to do with sanitation 
facilities on commuter lines, and so FRA did not include any 
restriction on tonnage.

[[Page 16037]]

    The definition of the term ``modesty lock'' relates to a 
rudimentary lock that would be required on the door of the sanitation 
compartment. The modesty lock is a lock or latch that is operated by 
the occupant of the sanitation compartment to provide privacy while in 
use. The rule does not require the modesty lock to 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 meets the 
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 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 definition. 
At this time, FRA sees no need to prescribe more specific requirements 
for the modesty lock, so that each railroad 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 definition of ``potable water'' references the requirements of 
the U.S. Environmental Protection Agency drinking water standards, 
which are widely recognized as the pertinent reference standards. This 
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 does 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 the rule requires removing 
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 final rule includes definitions for the terms ``sanitary'' and 
``unsanitary,'' which involve the absence or presence of filth, trash, 
and waste that 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 adds clarity to this issue and ultimately 
helps the industry comply with the standard. These terms when used in 
ordinary discussion are somewhat subjective, and might produce 
different inferences among different people. Therefore, FRA's 
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 definition is illustrative, not exhaustive, and 
serves as guidance to the industry of what FRA will consider compliant. 
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 definitions are inserted to 
guide those local decisions in an area that can be very subjective. The 
Working Group and FRA generally accept that immaculate conditions 
cannot be expected, any more than one would expect such conditions in a 
public rest room in an airport or office building. However, sanitation 
compartments are expected to be clean and orderly following periodic 
servicing and cleaning. 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.
    As stated in the NPRM, the Working Group discussed what perception 
the ``reasonable person'' must have before a condition is deemed 
unacceptable. For instance, what amount of filth, trash, or human waste 
is considered significant by the reasonable person? FRA's approach to 
this 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.
    To limit disruption of service because of conditions over which the 
carrier has limited control, the railroads suggested that certain 
conditions be treated as unsanitary only if ``caused by mechanical or 
maintenance failure in the compartment.'' This language would 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 below, 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.
    The final rule defines ``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 at the back of the cab behind the engineer's 
seat. Further discussions below explain in detail what each sanitation 
compartment must contain.
    FRA defines ``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 definition with the assistance of the Working 
Group. There are a variety of toilets available for use on 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.

[[Page 16038]]

    To clarify FRA's intent concerning some of the terms in the 
definition, ``automatically * * * removing the waste'' does not mean 
that waste is removed by gravity. Rather, this language is meant to 
cover systems that possess sensors that flush when 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 method. 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 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 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.
    The final rule defines ``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. 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, FRA 
understands 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 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, the rule does not restrict the placement or contents of crew packs 
issued by the railroad.
    The only comment FRA received concerning the definitions involves 
the term ``commuter work train'' as discussed above. Therefore, FRA did 
not make changes to the definitions set forth in the NPRM, with the 
exception of adding ``commuter work train.'' FRA added this term to the 
definitions, in order to incorporate these trains in the exception for 
``commuter service'' as discussed above. In addition, FRA changed the 
definition ``transfer train'' which was used in the NPRM, to ``transfer 
service'' here in the final rule, in order to avoid any confusion 
between the meaning intended in this rule and the meaning intended for 
``transfer train'' in the power brake rules (49 CFR 232.5). ``Transfer 
train'' in the power brake context expressly includes trains that pick 
up or set out cars at industries while en route, and ``transfer 
service'' in this rule refers to trains that travel from a point of 
origin to a point of destination that do not engage in switching. 
Finally, FRA added a definition for ``other short-haul passenger 
service'' because this term, which had previously been incorporated in 
the definition of commuter service, but is now expressly included in 
the same exception as ``commuter service'' requires a definition in 
accordance with the one FRA has previously published in its 
interpretive statement in 49 CFR part 209, Appendix A. This addition 
does not represent any substantive change from the NPRM.

Amendment to Sec. 229.9, Movement of Non-Complying Locomotives

    The final rule adds paragraph (g) to Sec. 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 the new 
Secs. 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 criteria for units with defective sanitation compartments 
supercede those set forth in paragraphs (a)-(c) of Sec. 229.9, which 
require moving designated locomotives as lite or dead, under certain 
circumstances, and sometimes require enroute failures to be addressed 
at the nearest forward point where the necessary repairs can be 
accomplished. These new criteria for units with defective sanitation 
compartments also supercede the language in Sec. 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 and health 
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 Secs. 229.137 
and 229.139.

Amendment to Sec. 229.21, Daily Inspection

    The final rule revises Sec. 229.21 to be consistent with the new 
requirements in Secs. 137 and 139. As currently written, Sec. 229.21 
requires railroads to repair all items noted on the daily inspection 
report prior to using the locomotive. However, the new Secs. 137 and 
139 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 use 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

[[Page 16039]]

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 requirements in Secs. 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 Secs. 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 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) requires each lead locomotive in use to 
contain a sanitation compartment, except as indicated in paragraph (b) 
where 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, the 
engine room on these Amtrak units constitutes the sanitation 
compartment.
    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 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 
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).
    The Working Group and FRA determined that ventilation in the 
sanitation compartment on much of the existing equipment is a simple 
vent in the wall 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 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 are 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 comply with the requirement concerning ventilation for 
these newer units, that portion of the ventilation system required to 
provide air movement in the sanitation compartment must be 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 may not use the unit 
in the lead position, unless repaired. If not repaired, the railroad 
may use the locomotive in trailing position, in switching service 
consistent with the requirements of section 137, paragraph (b)(1)(ii), 
or in transfer 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 
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 the final rule does not 
require such replacement.
    Section 137(a)(2) requires the sanitation compartment to 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 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 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 railroads 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 the rule, 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. Some of the railroads

[[Page 16040]]

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 meet the requirement. 
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 October 6, 2003.
    The rule requires 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 is not required 
to remove a locomotive from service. The railroad is required to repair 
the modesty lock on or before the next 92-day inspection required by 
part 229.
    Section 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 rule 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, are not 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 definition available for employee use. 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 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.
    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 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 standard does not prohibit this.
    Section 229.137(a)(5) states that the sanitation compartment must 
contain toilet paper in sufficient quantity to meet employee needs, 
unless the railroad 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 
railroads maintain toilet paper in the sanitation compartment, and some 
rely 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 will be accomplished by the use of 
crew packs, which contain ample toilet paper for each employee's work 
shift.
    Section 229.137(a)(6) requires each sanitation compartment to 
contain a trash receptacle, unless the railroad provides portable trash 
receptacles in the employee crew packs. This requirement attempts to 
provide flexibility to the railroad where space limitations in 
locomotive sanitation compartments prevent an across-the-board 
requirement for permanent trash cans or similar fixtures in all 
sanitation compartments. Therefore, the trash receptacle may be a 
permanent trash can or similar fixture 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, 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.
    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 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 Sec. 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 
accommodate unique circumstances.
    Paragraph (b)(1)(i) exempts locomotives used in commuter service or 
other short-haul passenger service where employees have access to 
sanitation facilities at frequent intervals, either at stations or 
elsewhere on the train. ``Commuter service'' and ``other short-haul 
passenger service'' are defined at length in 49 CFR part 209, Appendix 
A. Most commuter and other short-haul runs are relatively short in 
duration, and provide many opportunities during a work shift to use 
facilities at downtown or outlying terminals. Typically, cab crews in 
commuter service 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 in 
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

[[Page 16041]]

additional space to add such a compartment.
    This exception makes clear that the sanitation facilities employees 
use must be provided by the railroad. 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, 
plants, or convenience stores. The rule requires each commuter railroad 
operation subject to these standards to provide 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) permits all locomotives engaged in switching 
service, where employees have access to railroad-provided sanitation 
facilities outside of the cab, to operate without a sanitation 
compartment in the cab. ``Switching service'' is defined as the 
classification of freight and passenger 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 is taken from the power brake regulations (49 CFR 
232.5) and will be construed as the term is used in those rules.
    The exception for switching service is similar to and based on the 
same general principle as the exception provided 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 railroad facilities along the 
right-of-way. Generally, these employees are not captive in a 
locomotive cab for long time periods, where a sanitation facility 
clearly must be provided. Therefore, the rule permits locomotives used 
in switching service to operate without a toilet in the cab, so long as 
employees have ready access to railroad-provided sanitation facilities 
along the right-of-way or in yard facilities at frequent intervals 
during the work shift. If a railroad is unable to provide the alternate 
access, this exception cannot apply. If the switching activity places 
cab employees at locations where railroad 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.
    Paragraph (b)(1)(iii) relates to transfer service, and tracks the 
same logic as the exceptions proposed for commuter operations and 
switching service. Transfer service involves trains that travel between 
a point of origin and a point of final destination not exceeding twenty 
miles and that do not perform switching service. Because the cab 
employees engaged in transfer service generally have the opportunity to 
use railroad-provided sanitation facilities, as needed during the 
course of their work shift, the existing locomotives used in transfer 
service do not have to contain 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-owned facilities along the right-of-way. If 
the railroad 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 these requirements prohibit 
removal of toilet facilities from locomotives engaged in transfer 
service, if the 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 must be equipped with a toilet 
facility accessible without going outside the locomotive. These 
requirements are discussed in greater detail below.) Finally, it is 
important to note that ``transfer service'' has a different meaning 
than the term ``transfer train'' as used the freight power brake 
regulations (49 CFR 232.5). In the power brake rules, trains that pick 
up or deliver cars at industries before arriving at the point of 
destination are nevertheless transfer trains. However, in this rule, 
made clear by the NPRM definition of ``transfer train'' FRA and the 
working group did not intend to include in the exception trains that 
stop en route to perform switching, because employees on such trains 
often are captive in the cab for long periods of time without an 
opportunity to use bathroom facilities.
    Paragraph (b)(1)(iv) exempts locomotives of Class III railroads 
that are not equipped with toilet facilities, and that are not engaged 
in switching or transfer service, from the requirement of having a 
toilet facility in the cab. However, these Class III railroads must 
provide or arrange for sanitation facilities along the right-of-way. 
(It is important to note that these requirements prohibit removing 
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.)
    Most Class III railroads are small businesses with limited capital 
margins. (The current definition of these entities, as established by 
the Surface Transportation Board, is a railroad 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 
railroads, and over time the Class III railroads 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 industry, and for others, the diversion of funds could 
create safety problems elsewhere. Therefore, this exception should help 
to ensure that the sanitation standards do not give rise to additional 
safety concerns or destroy otherwise productive business concerns. 
However, the Class III railroads 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 exception does not permit a Class III railroad 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 
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 to provide adequate sanitary facilities 
along the right-of-way, then it will consult with customers or other 
businesses along the route for the

[[Page 16042]]

specific purpose of garnering access to adequate sanitation facilities 
for employees. In addition, the Class III railroad 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 railroad will consider 24-hour railroad 
operations in these determinations, and which facilities will be 
available during every work shift.
    Paragraph (b)(1)(v) states that 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, are not 
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 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.
    Representatives of tourist and excursion railroads suggested that 
this paragraph should be changed to state that the tourist operator or 
employer is responsible for providing access to adequate toilet 
facilities rather than the ``railroad carrier.'' Some tourist 
operations may not be ``carriers'' under other federal laws. Also, as 
written in the NPRM, there may be confusion concerning whether the 
tourist operator or the owner of the track on which the tourist 
organization travels is responsible for providing access to facilities. 
FRA has changed the final rule to state that the tourist railroad must 
arrange for sanitary facilities.
    It is difficult to define with specificity the terms ``ready 
access'' and ``frequent intervals,'' which are used in paragraphs 
(b)(1)(i)-(b)(1)(vi). FRA and the Working Group spent a great deal of 
time discussing the terms and the concepts they convey. 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-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: on reasonable 
demand or need by a crew member, the local railroad officials would 
make immediate accommodations to provide access to the railroad'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. 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. However, if employees work 
in remote locations where sanitation facilities do not exist, the 
railroad would be required to provide employees with alternate 
transportation to a nearby site, in order to make use of one of the 
exceptions listed above. These terms follow the logic of standards 
promulgated by the U.S. Occupational Safety and Health Administration 
(OSHA) and its 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 require the 
carriers to provide facilities that ``meet otherwise applicable 
sanitation standards.'' This means that the alternate sanitation 
facilities offered by the carrier must meet the state or federal 
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, this rule requires the railroads to 
select facilities that meet OSHA standards concerning the presence and 
condition of toilet and washing facilities. FRA is 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. Of course, FRA will not enforce 
the ``otherwise applicable standards;'' the agency with enforcement 
authority (OSHA in the example set forth here) must do so. In addition, 
FRA will not determine the applicability or correct interpretation of 
another agency's sanitation standards or whether those standards have 
been violated. That will also fall within the authority of the agency 
that promulgated the applicable standard and FRA will rely on the 
determinations of those other agencies.
    Paragraphs (b)(2)(i) and (b)(2)(ii) provide exceptions to the 
requirement of a toilet facility that conforms with the 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 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 does not meet the requirements of the definition 
for toilet facility, has no flush mechanism and simply permits waste to 
fall to a tank below the toilet seat for storage, treatment, and 
periodic disposal. Chemicals are placed in the storage tank to treat 
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 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.

[[Page 16043]]

For that reason, the Working Group recommended that FRA permit these 
toilets to remain in use until they are retired by the carrier as part 
of the railroad's plan for replacing them. The rule text permits the 
bogan toilets to remain in service on this Class I railroad 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 the bogan that calls for 
immediate removal. Given the costs associated with toilet retrofit and 
the carrier's own plan to replace the units, FRA believes that 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.
    This exception applies only to the Class I railroad that FRA knows 
possesses these toilet systems. FRA is unaware of any other railroads 
that use this toilet, and after requesting comments, believes the unit 
is isolated on this particular railroad.
    In connection with this exception and the exception set forth in 
paragraph (b)(2)(ii), it is important to note that certain state 
standards may require flush toilets for cab employees, and this final 
rule preempts those standards. Therefore, FRA wishes to make every 
effort to minimize the use of non-flush systems. 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, 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 use railroad-
provided plastic liners to collect human waste; these liners are then 
sealed, placed in sealed waste containers, and delivered by the 
employees to the railroad for disposal. Although the carrier believes 
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 railroad has initiated a replacement program in which approximately 
30 locomotives per month are being retrofitted with new toilet 
facilities that comply with the rule. In addition, this carrier has 
decided not to deliver locomotives with the older toilet facilities in 
the lead position to other railroads in interchange, and the final rule 
incorporates 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. 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 railroad's locomotives are 
capable of being in compliance with the final rule by July 1, 2003. 
Therefore, the rule permits the Class I railroad to operate locomotives 
in the lead position on its lines with non-compliant units until July 
1, 2003. After that date, all lead units must 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.
    This exception applies only to the Class I railroad that FRA knows 
possesses these toilet systems. FRA is unaware of any other railroads 
that utilize this toilet, and the AAR has confirmed that in its 
comments.
    Paragraphs (b)(2)(i) and (b)(2)(ii) relate only to the type of 
toilet facility in use. The other requirements set forth 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) 
apply to these locomotives. Similarly, Sec. 229.139, which relates to 
servicing and operative equipment, requires 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 prohibits a railroad from placing a 
locomotive with an unsanitary or defective toilet facility in the lead 
position. This determination is made as of the time of the daily 
inspection required by 49 CFR 229.21. En route failures that occur 
after the daily inspection impose no burden on the railroad, until the 
next daily inspection is due. However, according to Working Group 
members, the current railroad practice concerning en route toilet 
failures is to move defective toilet units into a trailing position, 
where it is possible to do so. Although the final rule 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.
    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 final 
rule 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 properly; 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, the rule defines the terms ``unsanitary'' and 
``sanitary'' to help the industry and FRA inspectors determine which 
conditions may be noncompliant. FRA believes that most individuals have 
a general sense of conditions that constitute unsanitary facilities, 
and FRA inspectors will utilize that sensible approach to enforcing 
this standard. The definitions should provide additional clarity to 
that process.
    In discussions prior to publication of the NPRM, members of the 
Working Group raised concerns about the difficulties of providing a 
substitute locomotive that possesses a sanitary, operable toilet 
facility on branch lines in remote locations. Although rare, these 
instances might occur where no compliant locomotives are available, and 
so a defective unit and its freight could not move for repair. 
Therefore, FRA and the Working Group developed an exception for these 
instances, proposed it in the NPRM, and placed it

[[Page 16044]]

in the final rule in paragraph (c). All of the conditions listed below 
must be present in order for the exception to apply:

--The defective or unsanitary condition must be discovered at a 
location where there are no other suitable (i.e., having sufficient 
power to complete the haul) locomotives available for use. Where it is 
not possible to switch another locomotive into the lead position due to 
space or track limitations, or where the location is not equipped to 
repair or clean the locomotive, there are `no locomotives available for 
use';
--The locomotive, while noncompliant, has not traveled 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.

    This exception cannot be used where a second locomotive exists, but 
it also contains a defective or unsanitary sanitation compartment. The 
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 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 in the rule text 
are present.
    In order to fall within this exception, the rule requires the 
railroad 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, FRA expects that 
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. However, 
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 because the time required for to walk to a 
toilet facility may impede railroad operations. In these situations, 
the railroad may meet a reasonable request by providing transportation 
to a toilet facility during the work shift.
    This exception is distinct from the other exceptions in paragraph 
137(b) that use the terms ``ready access to railroad-provided 
sanitation facilities outside of the locomotive, that meet otherwise 
applicable sanitation standards, at frequent intervals during the 
course of their work shift.'' Because the branch line situation 
typically involves remote locations where ``ready access'' in not 
possible and should occur rarely, the rule imposes a different standard 
than is required in other operational settings.
    Paragraph (d) of section 137 requires that when a railroad finds a 
toilet facility 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, it 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 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 must minimize employee exposure to the hazards of untreated 
waste and other unsanitary conditions. Therefore, the carrier must 
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 require a standard method for identification of defective sanitation 
units, and FRA sees no reason to do so either. 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) states that when it is determined during the daily 
inspection that a road locomotive toilet facility is defective, but 
sanitary, the railroad may move the locomotive into switching or 
transfer service for a very brief period of time, consistent with the 
requirements for that service, 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 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.
    Paragraph (f) of this section requires that if a 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 reflects FRA's 
belief that it would be unwise to require a railroad to change the 
consist makeup due to a lack of toilet paper, washing facilities, or a 
trash bag. These items are relatively easy to locate and supply to cab 
crews, and so should be provided before any employee is expected to 
depart. Therefore, the railroad must simply equip the locomotive with 
these items prior to departure. Most railroads supply these items to 
cab employees as they begin their work shift, and so this requirement 
should not impose burdens on the industry.
    Paragraph (g) states 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

[[Page 16045]]

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 
states 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 is due. (See 
discussion for Sec. 229.139(e) below.) The rationale for this 
requirement 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 is 
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. The rule 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 
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. If a railroad 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. 
Railroads 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. 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, this 
requirement enhances the likelihood that small entities will inherit 
locomotives equipped with toilet facilities.
    Paragraph (j) requires all locomotives manufactured after the 
effective date of this rule to 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 prohibits 
railroads from using any locomotive built after the rule's effective 
date unless it is so designed. This paragraph reflects FRA's desire 
that all cab employees will work in a locomotive equipped with a toilet 
facility in the future.
    There are two narrow exceptions to this standard relating 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 units that are created exclusively for yard service 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 need toilet 
facilities in the cab. Under all circumstances, these units would be 
used in yard service, where railroad-provided sanitation facilities 
exist along the right-of-way, and are available for employee use. New 
units used in transfer service would be required to be fitted with 
toilet facilities.
    Similarly, the Working Group and FRA 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 service. Members of the industry agree 
that this requirement is appropriate.
    Finally, Sec. 229.137(k) requires that where the washing system in 
place on the lead locomotive includes the use of water, the water must 
be potable. This 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, railroads may 
use waterless soaps, now available commercially, that do 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 establishes minimum servicing standards to ensure 
that sanitation compartments in occupied locomotives are not unsanitary 
or defective. Paragraph (a) states that the railroad must service the 
sanitation compartments of lead locomotives in use so that they are 
sanitary. This 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.
    As drafted in the NPRM, paragraph (b) of section 139 required 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. 
FRA did not dictate when and how railroads must empty, clean, and 
service toilets. Members of the Working Group initially recommended 
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 establishing 
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 proposed language 
that required each railroad to develop an effective servicing program 
that suits the traffic, use, weather, equipment and other needs of the 
system so that cab employees would not be exposed to full toilet bowls, 
missing seats, offensive odors, frozen units, dirty

[[Page 16046]]

floors, ineffective ventilation systems, or any other condition that 
could reasonably be deemed unsanitary. As for mandating specific 
servicing requirements, FRA and the Working Group determined that the 
railroads, 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 stated that it 
would consider more specific requirements for servicing the toilets and 
invited comments.
    When FRA reconvened the Working Group in August 2001 to discuss 
comments to the NPRM, members raised several questions about this 
paragraph and how the phrase ``operating as intended'' would be 
enforced. It became clear in the course of the discussion that there 
were a variety of interpretations for the phrase. Therefore, the 
railroads would differ in their determinations of which locomotives 
could remain in the lead position, cab employees would have a difficult 
time determining what constituted a defect to be listed on the daily 
inspection report, and FRA inspectors would probably apply different 
standards across the industry in enforcing the rule. Given this 
confusion, FRA and the Working Group worked to list general factors 
that must exist in order for a toilet to ``operate as intended''. This 
list has been added to the rule text in this paragraph, and applies to 
any compliant toilet system in use in the industry. The conditions are: 
All mechanical systems must function as designated; water must be 
present in sufficient amounts to permit flushing; for systems that use 
chemicals for treatment, such as the Microphor, the chemicals (chlorine 
tablets or any comparable oxidizing agent) must be present; and the 
bowl must be free of blockage that prevents the waste from evacuating 
the bowl. Paragraph (c) of section 139 states that any unit used in 
switching service, transfer service, or in the trailing position that 
is equipped with a toilet facility must be sanitary if the locomotive 
is occupied. This requirement addresses the units that might fall 
within the exceptions proposed in Sec. 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) states that where a locomotive is equipped with a 
toilet facility that has become defective, and the locomotive is 
utilized briefly in switching or transfer service consistent with the 
requirements of Secs. 229.137(b)(1)(ii) and (b)(1)(iii), the railroad 
must mark the toilet facility as defective. The locomotive with the 
defective, but sanitary, toilet facility can be used in switching or 
transfer 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 
the locomotive is occupied. The date on which the toilet facility 
became defective must be noted on the daily inspection report, so that 
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 Sec. 229.21 requires with many 
defective conditions, may be forgotten. This final rule amends 
Sec. 229.21(a) and (b) to permit the railroads to record repairs 
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 
Secs. 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 service apply, and so the railroad is required to provide 
the affected cab employees access to sanitation facilities that 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.)
    Providing 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. FRA invited 
comment on this time period, and the AAR stated that shortening it 
might impede the railroad's ability to correct defective units. 
Depending on where a locomotive is situated in relation to a repair 
point and the nature of the repair needed, the carriers believe ten 
days is an appropriate window of time. There were no other comments on 
this issue.
    Paragraph (e) requires the railroad 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 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 
paragraph 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 servicing 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. See definition of ``worker'' at 49 CFR 218.5. Therefore, 
employees engaged in replenishing toilet paper in the sanitation 
compartment would not be ``servicing'' the locomotive for purposes of 
part 218, and would not

[[Page 16047]]

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 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 rule does not establish lighting requirements for the 
sanitation compartment. The existing locomotive safety standards 
require that ``Cab passageways and compartments shall have adequate 
illumination.'' See, 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 amended appendix B to part 229, Schedule of Civil Penalties, to 
include penalties for violations of the provisions as set forth in this 
rule. Please note that reading this or any penalty schedule may be 
confusing without first reading the corresponding rule text. There is 
very limited space in the penalty schedule to describe the action or 
omission that constitutes a violation of a particular section or 
paragraph. Generally, the penalty schedule is provided to give notice 
of the typical penalty that will be assessed for a violation. When 
there is not enough space to list the way(s) in which a paragraph has 
been violated, summaries of the requirement or forbidden act is 
provided. If in doubt, the rule text clearly states what is required, 
and the penalty schedule is provided to indicate what penalty is 
typically assessed.

Environmental Impact

    FRA has evaluated this rule 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 handling 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 
final rule 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 rule will not have a 
deleterious impact on the environment.

Regulatory Impact

Executive Order 12866 and DOT Regulatory Policies and Procedures

    This rule 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 final rule. 
These documents may be reviewed and downloaded from the Department's 
electronic docket system or photocopies may 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 final rule. Over a twenty 
year period, the Present Value (PV) of the estimated costs is $70.1 
million.
    The major costs anticipated from adopting this final 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 for a separate trash receptacle in the 
sanitation compartment and the removal of the 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 (the Act) (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 a 
Regulatory Flexibility Assessment (RFA) which assesses the small entity 
impact. These documents may be reviewed and downloaded from the 
Department's electronic docket system or photocopies may 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.
    The U.S. Small Business Administration (SBA) stipulates in its 
``Size Standards'' that the largest a railroad business firm that is 
``for-profit'' may be, and still be classified as a ``small entity'' is 
1,500 employees for ``Line-Haul Operating Railroads,'' and 500 
employees for ``Switching and Terminal Establishments.'' ``Small 
entity,'' is defined in the Act as a small business concern that is 
independently owned and operated, and is not dominant in its field of 
operation. SBA's ``size standards'' may be altered by federal agencies 
after 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 that 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, which 
is adjusted by applying the railroad revenue deflator adjustment. See, 
49 CFR part 1201. In its policy statement, FRA applied this same dollar 
limit to determine when a railroad shipper or contractor is a small 
entity for purposes of the Act and the RFA. FRA proposed to use this 
alternative definition of

[[Page 16048]]

``small entity'' for this rulemaking in the NPRM. FRA received no 
comments on the definition, and so FRA continues to apply this 
definition to the final rule.
    In this proceeding, there are over 550 small railroads that could 
potentially be affected by these standards. FRA estimates that small 
railroads own approximately 3,500 locomotives. In addition, the Agency 
estimates that only about one-third of these or less have a toilet 
facility on them. FRA does not expect this final rule to impose a 
significant burden on small railroads. This is because these railroads 
are provided an exemption from the requirement to have a functioning 
toilet in any lead occupied locomotive, if the railroad provides 
employee access to facilities at frequent intervals.
    The impacts from this final rule are primarily a result of some of 
the compliance requirements for locomotives that have functioning 
toilet facilities. The most significant impacts arise from complying 
with the sanitation compartment requirements, including providing a 
trash receptacle, marking defective toilet facilities, and conducting 
the daily inspection. 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 requirement in the final rule that will impact small railroads 
the most is providing cab employees ready access to appropriate toilet 
facilities. This standard means that small railroads must arrange for 
en route access to toilet facilities for cab employees. The RIA has 
estimated that there would be a 2-hour burden per affected railroad 
during the first year of implementation. In aggregate, this burden is 
estimated to cost approximately $22,000. The burden for the following 
years is only 30 minutes per railroad per year to modify the toilet 
facility arrangements. FRA understands that it is common practice today 
for Class III railroads to comply with the general requirements of 
providing ready access. Currently, it is customary for a small railroad 
to transport a crew member from a locomotive without a toilet to 
sanitary facilities upon request. Hence, the concept of providing ready 
access to toilet facilities is not a new or significant burden for most 
Class III railroads.
    The Class III exemption from the requirement to have a toilet 
facility in the lead occupied locomotive is provided to ensure that a 
feasible lower cost alternative is available for affected small 
entities that need it. FRA and the Working Group understood the 
difficulties of retrofitting older locomotive units and saw no reason 
to unduly burden small railroads so long as access can be provided by 
alternative means. The Working Group believed that this alternative is 
both necessary and acceptable.
    In order to determine the significance of the economic impact for 
the final rule's RFA, FRA invited comments from all interested parties 
concerning the potential economic impact on small entities caused by 
this final rule during the notice of proposed rulemaking stage. The 
Agency has considered the lack of comments and data it received in 
making a decision on the RFA for the final rule. Thus, FRA concludes 
and certifies that this final rule is not expected to have an 
``significant'' economic impact on a ``substantial'' number of small 
entities.

Federalism

    FRA analyzed this rulemaking proceeding according to the principles 
of Executive Order 13132 (``Federalism''), which was in effect when the 
final rule was prepared. FRA has determined that this final rule may 
have federalism implications. FRA's final sanitation standards preempt 
all state efforts to regulate the nature and type of access to 
sanitation facilities for cab employees. Further, FRA's final 
sanitation standards preempt the maintenance of sanitation facilities 
located on board trains. As was discussed in the NPRM (See, 66 FR 137), 
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 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 
consulted with State agencies during the course of this rulemaking. 
This was achieved primarily through the full RSAC Committee, which 
includes representatives of State interests. FRA briefed the RSAC 
members on several occasions concerning this standard, published 
notices concerning it, and held a public hearing. None of the States or 
their representative organizations raised concerns about any aspect of 
this standard. FRA made every effort to cover the subject matter 
comprehensively so that the federal standard does not provide less 
protection than any of the individual state standards, and to prevent 
preemption of a state law or rule without replacing it with a 
comparable federal standard. The States have supported FRA's rulemaking 
proceeding on sanitation facilities for locomotive cab employees.

Paperwork Statement--Locomotive Cab Sanitation Standards

    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
         CFR section              Respondent       Total annual    per response    Total annual    Total annual
                                   universe         responses      (in seconds)    burden hours     burden cost
----------------------------------------------------------------------------------------------------------------
229.137(d)--Sanitation--Locom  Class I & II      15,600 notices.              90             390          $9,750
 otive Defective or             railroads.
 Unsanitary Toilet Facility
 Placed in Trailing Service--
 Clear Markings--Unavailable
 for Use.
229.137(e)--Sanitation--Locom  Class I & II      15,600 notices.              90             390           9,750
 otive Defective Toilet         railroads.
 Facility--Clear Markings--
 Unavailable for Use.

[[Page 16049]]

 
229.139(d)--Servicing--Locomo  Class I & II      93,600                       30             780          19,500
 tive 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.
    Organizations and individuals desiring to submit comments on the 
collection of information requirements should direct them to the Office 
of Management and Budget, FRA Desk Officer, Washington, DC 20503. OMB 
is required to make a decision concerning the collection of information 
requirements contained in this final 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.
    FRA hereby provides notice that it cannot impose a penalty on 
persons for violating information collection requirements (ICRs) which 
do not display a current OMB control number, if required. FRA intends 
to obtain current OMB control numbers for any new ICRs resulting from 
this rulemaking action prior to the effective date of the agency's 
final rule. The OMB control number, when assigned, will be announced by 
separate notice in the Federal Register.

List of Subjects in 49 CFR Part 229

    Locomotives, Penalties, Railroad safety, Sanitation.


    For the reasons set forth in the preamble, 49 CFR part 229 is 
amended as follows:

PART 229--RAILROAD LOCOMOTIVE SAFETY STANDARDS

    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'', ``Commuter work train'', ``Modesty 
lock'', ``Other short-haul passenger service'', ``Potable water'', 
``Sanitary'', ``Sanitation compartment'', ``Switching service'', 
``Toilet facility'', ``Transfer service'', ``Unsanitary'', and 
``Washing system'.


Sec. 229.5  Definitions.

* * * * *
    Commuter service means the type of railroad service described under 
the heading ``Commuter Operations'' in 49 CFR part 209, Appendix A.
* * * * *
    Commuter work train is a non-revenue service train used in the 
administration and upkeep service of the commuter railroad.
* * * * *
    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.
* * * * *
    Other short-haul passenger service means the type of railroad 
service described under the heading ``Other short-haul passenger 
service'' in 49 CFR part 209, Appendix A.
    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 lacking any condition in which any significant 
amount of filth, trash, or human waste is 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 and 
passenger 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.
    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.
    Transfer service means a freight 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.
    Unsanitary means having any condition in which any significant 
amount of filth, trash, or human waste is present in such a manner that 
a

[[Page 16050]]

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.

    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 
sanitation conditions covered by Secs. 229.137 and 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 do not comply with Sec. 229.137 or 
Sec. 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 do not comply with Sec. 229.137 or Sec. 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 do not comply with Sec. 229.137 or 
Sec. 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 do not comply with Sec. 229.137 or Sec. 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 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 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 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 or other short-haul 
passenger service and commuter work trains on which employees have 
ready access to railroad-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-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 service on which employees 
have ready access to railroad-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 railroads engaged in operations other 
than switching service or transfer service, that are not equipped with 
a sanitation compartment as of June 3, 2002. Where an unequipped 
locomotive of a Class III railroad is engaged in operations other than 
switching or transfer service, employees shall have ready access to 
railroad-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 railroad shall arrange 
for enroute access to such facilities;
    (v) Locomotives of tourist, scenic, historic, or excursion railroad 
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-provided sanitation facilities outside of the locomotive, that 
meet otherwise applicable sanitation standards, at frequent intervals 
during the course of their work shift; and
    (vi) Except as provided in Sec. 229.14 of this part, control cab 
locomotives designed for passenger occupancy and used in intercity 
push-pull service that are not equipped with sanitation facilities, 
where employees have ready access to railroad-provided sanitation in 
other passenger cars on the train 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 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 June 3, 2002; and

[[Page 16051]]

    (ii) With respect to the locomotives of a Class I railroad which, 
prior to June 3, 2002, 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 on July 1, 2003. However, 
the Class I railroad subject to this exception shall not deliver 
locomotives with such sanitation systems to other railroads for use, in 
the lead position, during the time between June 3, 2002, and July 1, 
2003. All other requirements set forth in this section shall apply to 
the locomotives of this Class I railroad as of June 3, 2002.
    (c) Defective, unsanitary toilet facility; prohibition in lead 
position. Except as provided in paragraphs (c)(1) through (5) of this 
section, if the railroad determines during the daily inspection 
required by Sec. 229.21 that a locomotive toilet facility is defective 
or is unsanitary, or both, the railroad shall not use the locomotive in 
the lead position. The railroad 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 suitable locomotives available for 
use, ie., where it is not possible to switch another locomotive into 
the lead position, or the location 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 
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 determines during the daily inspection 
required by Sec. 229.21 that a locomotive toilet facility is defective 
or is unsanitary, or both, the railroad may use the locomotive in 
trailing position. If the railroad places the locomotive in trailing 
position, they 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 shall clearly mark the defective toilet facility as 
unavailable for use.
    (e) Defective, sanitary toilet facility; use in switching, transfer 
service. If the railroad determines during the daily inspection 
required by Sec. 229.21 that a locomotive toilet facility is defective, 
but sanitary, the railroad may use the locomotive in switching service, 
as set forth in paragraph (b)(1)(ii) of this section, or in transfer 
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 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 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 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 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 service as set forth in 
paragraph (b)(1)(iii) of this section.
    (h) Door closure and modesty lock. If the railroad 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 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 service as set 
forth in paragraph (b)(1)(iii) of this section. If the railroad 
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 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 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 service pursuant to paragraph (b)(1)(iii) of this section.
    (j) Newly manufactured units; in-cab facilities. All locomotives 
manufactured after June 3, 2002, 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. No railroad may use a locomotive built after June 3, 2002, that 
does not comply with this subsection.
    (k) Potable water. The railroad 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 such that:
    (1) All mechanical systems shall function;
    (2) Water shall be present in sufficient quantity to permit 
flushing;
    (3) For those systems that utilize chemicals for treatment, the 
chemical (chlorine or other comparable oxidizing agent) used to treat 
waste must be present; and
    (4) No blockage is present that prevents waste from evacuating the 
bowl.
    (c) The sanitation compartment of each occupied locomotive used in 
switching service pursuant to Sec. 229.137(b)(1)(ii), in transfer 
service pursuant to Sec. 229.137(b)(1)(iii), or in a

[[Page 16052]]

trailing position when the locomotive is occupied, shall be sanitary.
    (d) Where the railroad uses a locomotive pursuant to 
Sec. 229.137(e) in switching or transfer 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 shall repair the modesty 
lock on or before the next 92-day inspection required by this part.

    6. Appendix B of part 229 is amended by adding entries for 
Secs. 229.137 and 229.139 to the Schedule of Civil Penalties to read as 
follows:

          Appendix B to Part 229.--Schedule of Civil Penalties
------------------------------------------------------------------------
                                                               Willful
                   Section                      Violation     violation
-----------------------------------------------------------------\1\----
 
*                  *                  *                  *
                  *                  *                  *
------------------------------------------------------------------------
                     Subpart C--Safety Requirements
------------------------------------------------------------------------
 
*                  *                  *                  *
                  *                  *                  *
229.137  Sanitation, general:
    (a) Sanitation compartment in lead unit,        $5,000       $10,000
     complete failure to provide required
     items...................................
        (1) Ventilation......................        2,500         5,000
        (2) Door missing.....................        2,000         4,000
        (2)(i) Door doesn't close............        1,000         2,000
        (2)(ii) No modesty lock..............        1,000         2,000
        (3) Not equipped with toilet in lead.        5,000        10,000
        (4) Not equipped with washing system.        1,000         2,000
        (5) Lack of paper....................        1,000         2,000
        (6) Lack of trash receptacle.........        1,000         2,000
    (b) Exceptions:
        (1)(i) Commuter service, failure to          2,500         5,000
         meet conditions of exception........
        (1)(ii) Switching service, failure to        2,500         5,000
         meet conditions of exception........
        (1)(iii) Transfer service, failure to        2,500         5,000
         meet conditions of exception........
        (1)(iv) Class III, failure to meet           2,500         5,000
         conditions of exception.............
        (1)(v) Tourist, failure to meet              2,500         5,000
         conditions of exception.............
        (1)(vi) Control cab locomotive,              2,500         5,000
         failure to meet conditions of
         exception...........................
        (2) Noncompliant toilet..............        5,000        10,000
    (c) Defective/unsanitary toilet in lead          2,500         5,000
     unit....................................
        (1-5) Failure to meet conditions of          2,500         5,000
         exception...........................
    (d) Defective/unsanitary unit; failure to        2,500         5,000
     meet conditions for trailing position...
    (e) Defective/sanitary unit; failure to          2,500         5,000
     meet conditions for switching/transfer
     service.................................
    (f) Paper, washing, trash holder; failure        2,500         5,000
     to equip prior to departure.............
    (g) Inadequate ventilation; failure to           2,500         5,000
     repair or move prior to departure.......
    (h) Door closure/modesty lock; failure to        1,000         2,000
     repair or move..........................
    (i) Failure to retain/maintain of                2,500         5,000
     equipped units..........................
    (j) Failure to equip new units/in-cab            2,500         5,000
     facility................................
    (k) Failure to provide potable water.....        2,500         5,000
229.139  Servicing requirements:
    (a) Lead occupied unit not sanitary......        2,500         5,000
    (b) Components not present/operating.....        2,500         5,000
    (c) Occupied unit in switching, transfer         2,500         5,000
     service, in trailing position not
     sanitary................................
    (d) Defective unit used more than 10 days        2,500         5,000
    (e) Failure to repair defective modesty          1,000         2,000
     lock....................................
------------------------------------------------------------------------

* * * * *

    Issued in Washington, DC, on March 22, 2002.
Allan Rutter,
Administrator.
[FR Doc. 02-8077 Filed 4-3-02; 8:45 am]
BILLING CODE 4910-06-P