[Federal Register Volume 76, Number 210 (Monday, October 31, 2011)]
[Rules and Regulations]
[Pages 67073-67092]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-27818]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 228

[Docket No. FRA-2009-0042, Notice No. 2]
RIN 2130-AC13


Safety and Health Requirements Related to Camp Cars

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

ACTION: Final rule.

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SUMMARY: To carry out a 2008 Congressional rulemaking mandate, FRA is 
creating regulations prescribing minimum safety and health requirements 
for camp cars that a railroad provides as sleeping quarters to any of 
its train employees, signal employees, and dispatching service 
employees (covered-service employees) and individuals employed to 
maintain its right of way.
    Under separate but related statutory authority, FRA is also 
amending its regulations regarding construction of employee sleeping 
quarters. In particular, FRA's existing guidelines with respect to the 
location, in relation to switching or humping of hazardous material, of 
a camp car that is occupied exclusively by individuals employed to 
maintain a railroad's right of way are being replaced with regulatory 
amendments prohibiting a railroad from positioning such a camp car in 
the immediate vicinity of the switching or humping of hazardous 
material.
    Finally, FRA is making miscellaneous changes clarifying its 
provision on applicability, removing an existing provision on the 
preemptive effect of the regulations as unnecessary, and moving, 
without changing, an existing provision on penalties for violation.

DATES: This final rule is effective December 30, 2011.

FOR FURTHER INFORMATION CONTACT: Alan Misiaszek, Certified Industrial 
Hygienist, Staff Director, Industrial Hygiene Division, Office of 
Safety Assurance and Compliance, Office of Railroad Safety, FRA, 1200 
New Jersey Avenue SE., Mail Stop 25, Washington, DC 20590 (telephone: 
(202) 493-6002), [email protected] or Ann M. Landis, Trial 
Attorney, Office of Chief Counsel, FRA, 1200 New Jersey Avenue SE., 
Mail Stop 10, Washington, DC 20590 (telephone: (202) 493-6064), 
[email protected].

SUPPLEMENTARY INFORMATION:

[[Page 67074]]

I. Background Information

A. Statutory, Regulatory, and Factual Background

    Having considered the public comments on FRA's January 3, 2011, 
proposed rule in this rulemaking, FRA is issuing this final rule 
primarily to help satisfy the requirements of section 420 of the Rail 
Safety Improvement Act of 2008 (RSIA), Pub. L. 110-432, Div. A, 122 
Stat. 4848, October 16, 2008 (amending a provision of the hours of 
service laws at 49 U.S.C. 21106). See notice of proposed rulemaking 
(NPRM), 76 FR 64. RSIA requires the Secretary of Transportation 
(Secretary) to adopt regulations no later than April 1, 2010, 
establishing minimum standards for ``employee sleeping quarters'' in 
the form of ``camp cars'' that are provided by railroads. 49 U.S.C. 
21106(a)(1), (c). Specifically, RSIA instructs the Secretary to 
prescribe regulations ``to implement [49 U.S.C. 21106(a)(1)] to protect 
the safety and health of any employees and individuals employed to 
maintain the right of way of a railroad carrier that use camp cars * * 
*'' 49 U.S.C. 21106(c). The statutory term ``employee'' is defined in 
49 U.S.C. 21101(3) to include a train employee, a signal employee, and 
a dispatching service employee, who as a group are sometimes referred 
to as ``covered-service employees.'' As amended through 2008, 49 U.S.C. 
21106(a)(1) provides that such camp cars must be--

clean, safe, and sanitary, give those employees and individuals an 
opportunity for rest free from the interruptions caused by noise 
under the control of the carrier, and provide indoor toilet 
facilities, potable water, and other features to protect the health 
of employees.

49 U.S.C. 21106(a)(1). RSIA requires the Secretary to conduct this 
rulemaking ``in coordination with the Secretary of Labor,'' and to 
``assess the action taken by any railroad carrier to fully retrofit or 
replace its camp cars * * *'' 49 U.S.C. 21106(c).

    In addition, RSIA directly requires that railroads using camp cars 
``fully retrofit or replace such cars in compliance with [49 U.S.C. 
20106(a)]'' by December 31, 2009. 49 U.S.C. 21106(b). As will be 
further explained below, FRA interprets 49 U.S.C. 21106(b) as (1) 
Applying the prohibition in 49 U.S.C. 21106(a)(2) against beginning 
construction or reconstruction of employee sleeping quarters near 
switching or humping operations, to camp cars provided by railroads as 
sleeping quarters for individuals employed to maintain the railroad 
right of way (MOW workers) and (2) setting a compliance date of 
December 31, 2009, with respect to such camp cars exclusively for MOW 
workers.
    The Secretary has delegated the responsibility to carry out his 
responsibilities under RSIA to the Administrator of FRA. 74 FR 26981, 
26982 (June 5, 2009), codified at 49 CFR 1.49(oo). See also 49 CFR 
1.49(d), delegating the Secretary's authority to carry out the hours of 
service laws to the Administrator of FRA, and 49 U.S.C. 103.
    Subpart E is based extensively on FRA guidelines already in place, 
which, in turn, were based on the U.S. Department of Labor's 
Occupational Safety and Health Administration (``OSHA'') standards for 
sanitation and temporary labor camps at 29 CFR 1910.141 and 1910.142, 
modified as appropriate for the railroad environment. See FRA's 
Guidelines for Clean, Safe, and Sanitary Railroad Provided Camp Cars 
(1990 Guidelines), 55 FR 30892 (July 27, 1990), codified at 49 CFR part 
228, app. C. In developing new subpart E, FRA coordinated with the U.S. 
Department of Labor, as required by the Congressional mandate.
    In addition, FRA consulted with officials of the only American 
railroad currently known to be regularly utilizing camp cars as 
sleeping quarters, Norfolk Southern Railway Company (NS), to determine 
what actions it has taken to conform to the statutory requirements that 
the cars be not only clean, safe, and sanitary and provide an 
opportunity for rest uninterrupted by noise under the control of the 
railroad, but also have ``indoor toilet facilities, potable water, and 
other features to protect the health'' of employees and MOW workers and 
not be placed in the immediate vicinity of certain ``switching or 
humping operations'' as defined in FRA regulations at 49 CFR 
228.101(c)(3). NS assured FRA that all of its camp cars comply with 
statutory requirements; NS disagrees with FRA's conclusion that camp 
cars exclusively occupied by MOW workers are subject to 49 U.S.C. 
21106(a)(2).
    MOW workers have been given protection by limits of how close their 
sleeping quarters are to switching and humping operations. That 
protection formerly only applied to train employees, signal employees, 
and dispatching service employees. In 1976, Congress required that all 
sleeping quarters, ``including crew quarters, camp or bunk cars, and 
trailers,'' provided by a railroad to its ``employees'' be ``clean, 
safe, and sanitary'' and provide an opportunity for rest without 
interruptions caused by noise under the control of the railroad. Pub. 
L. 94-348, sec. 4, adding subsection (a)(3) to section 2 of the Hours 
of Service Act, then codified at 45 U.S.C. 62(a)(3) (1976) and now 
codified as amended at 49 U.S.C. 21106(a)(1).\1\ Again, the term 
``employees'' included only those who, in the terminology of the 
present statute, are called ``train employees,'' ``signal employees,'' 
or ``dispatching service employees,'' and did not include MOW workers. 
In the same legislation, Congress prohibited railroads from beginning, 
on or after July 8, 1976, the construction or reconstruction of 
sleeping quarters for ``employees'' ``within or in the immediate 
vicinity (as determined in accordance with rules prescribed by the 
Secretary) of any area where railroad switching or humping operations 
are performed.'' Pub. L. 94-348, sec. 4, adding subsection (a)(4) to 
section 2 of the Hours of Service Act, then codified at 45 U.S.C. 
62(a)(4) (1976) and now codified as amended at 49 U.S.C. 21106(a)(2).
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    \1\ In the 1994 recodification of Federal transportation laws, 
the Hours of Service Act was repealed, and its provisions were 
reenacted as revised, and recodified as positive law primarily in 49 
U.S.C. chapter 211. Pub. L. 103-272, July 5, 1994.
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    To carry out the 1976 statutory amendment at section 2(a)(3) of the 
Hours of Service Act, FRA published interpretative guidance and a 
statement of policy regarding the provision requiring ``clean, safe, 
and sanitary'' sleeping quarters for employees free from railroad-
controlled noise that would interrupt rest. Amendment to appendix A to 
49 CFR part 228, 43 FR 30803 (July 18, 1978).
    To carry out the 1976 amendment at section 2(a)(4) of the Hours of 
Service Act, FRA published regulations codified at 49 CFR part 228, 
subpart C (subpart C). 43 FR 31012 (July 19, 1978). As stated in the 
preamble to those regulations,

[t]he primary impetus of this amendment to the Hours of Service Act 
was the accident that occurred at Decatur, Illinois, on July 19, 
1974. (H.R. Report No. 94-1166 (1976) at page 11.) Seven employees 
were killed and another 33 were injured when an explosion demolished 
crew quarters that were located between and adjacent to two 
classification yards and did other extensive damage in the middle of 
the Norfolk and Western yard. Three hundred sixteen persons who 
lived or worked in the surrounding area were also injured. The 
explosion resulted from accidental release of product which occurred 
during the switching of hazardous materials. * * *
    In enacting the 1976 amendment to the law, Congress determined 
that additional

[[Page 67075]]

protection from accidents such as the one that occurred at Decatur, 
Illinois, is required for crew quarters.

43 FR 31009.
    Subpart C defines key terms in section 2(a)(4) of the Hours of 
Service Act, permits railroads to request a determination by FRA that a 
particular proposed site is not within the ``immediate vicinity,'' and 
states the criteria by which FRA will make the determination. See 49 
CFR 228.101(a). FRA approval is necessary before a railroad may begin 
the ``construction or reconstruction'' of sleeping quarters for 
employees within the distance of switching or humping operations 
specified in the regulations. 49 CFR 228.101. The distance triggering 
the need for approval is one-half mile ``as measured from the nearest 
rail of the nearest trackage where switching or humping operations are 
performed to the point on the site where the carrier proposes to 
construct or reconstruct the exterior wall of the structure, or portion 
of such wall, which is closest to such operations.'' 49 CFR 228.101(b). 
``Switching or humping operations'' is defined to include ``the 
classification of placarded railroad cars according to commodity or 
destination, assembling of placarded cars for train movements * * *'' 
49 CFR 228.101(c)(3). ``Placarded car'' is defined to mean ``a railroad 
car required to be placarded by DOT hazardous materials regulations (49 
CFR 172.504).'' 49 CFR 228.101(c)(4). ``Construction'' includes the 
``[p]lacement of a mobile or modular facility,'' which includes 
placement of a camp car. 49 CFR 228.101(c)(1)(iii). On or after July 8, 
1976, any railroad placing a camp car occupied by an employee near 
switching or humping operations must obtain FRA approval before doing 
so. 49 CFR 228.101(a).
    In 1988, Congress redefined ``employee'' for purpose of section 
2(a)(3) of the Hours of Service Act (now codified at 49 U.S.C. 
21106(a)(1)) so as to include MOW workers, thereby making all sleeping 
quarters provided by a railroad to MOW workers subject to the same 
statutory standard. Pub. L. 100-342, sec. 19(b). It should be noted, 
however, that the 1988 amendment did not make MOW workers ``employees'' 
for purposes of the ``location'' requirement at section 2(a)(4) of the 
Hours of Service Act. Consequently, a camp car occupied only by 
employees or by both employees and MOW workers is subject to subpart C, 
but a camp car occupied only by MOW workers is not subject to subpart 
C.
    To carry out the 1988 statutory amendment, FRA issued an 
interpretation in 1990 of the terms ``clean,'' ``safe,'' and 
``sanitary'' as applied to railroad-provided camp cars occupied by 
employees, MOW workers, or both based on standards established by OSHA. 
49 CFR part 228, app. C. In FRA's 1990 Guidelines, the agency noted 
that--

    FRA believes that camp cars, either because of express 
limitations of local codes, or by virtue of their physical mobility, 
are generally not subject to state or local housing, sanitation, 
health, electrical or fire codes. Therefore, FRA is unable to rely 
upon state or local authorities to ensure that persons covered by 
the [Hours of Service] Act who reside in camp cars are afforded an 
opportunity for rest in `clean,' `safe,' and `sanitary' conditions. 
Accordingly, FRA must determine what adverse conditions might 
reasonably be expected to interfere with the ordinary person's 
ability to rest, so as to enunciate policy guidelines to be applied 
by FRA in enforcing the words `clean,' `safe,' and `sanitary' for 
purposes of the Act.

55 FR 30892, 30893, July 27, 1990.

    Twenty years after the 1988 statutory amendment, Congress enacted 
section 420 of RSIA. Congress added requirements that all sleeping 
quarters provided by railroads to employees or MOW workers have 
``indoor toilets, potable water, and other features to protect the 
health of [employees and MOW workers]'' (amending 49 U.S.C. 
21106(a)(1)); that any railroad that uses camp cars must ``fully 
retrofit or replace'' such cars to be in compliance with 49 U.S.C. 
21106(a) by December 31, 2009 (see new 49 U.S.C. 21106(b)); and that 
the Secretary prescribe regulations to implement 49 U.S.C. 21106(a)(1), 
requiring compliance by December 31, 2010 (see new 49 U.S.C. 21106(c)).
    FRA has considered whether Congress intended for railroad-provided 
camp cars occupied by MOW workers to be subject to the restrictions of 
49 U.S.C. 21106(a)(2) on their location. Clearly, by the express text 
of 49 U.S.C. 21106(c), the regulations mandated by that subsection are 
intended ``to implement subsection (a)(1)'' (i.e., 49 U.S.C. 
21106(a)(1), and not to implement both 49 U.S.C. 21106(a)(1) and 49 
U.S.C. 21106(a)(2)). Just as clearly, Congress did not amend 49 U.S.C. 
21106(a)(2) itself, which bars beginning such construction or 
reconstruction of sleeping quarters for covered-service employees on or 
after July 8, 1976; Congress did not, for example, add language to 
subsection (a)(2) to prohibit beginning construction or reconstruction 
of railroad-provided camp cars used as sleeping quarters for MOW 
workers, with a new effective date in subsection (a)(2) itself.
    In the end, however, FRA concludes that Congress did intend such 
location restrictions in subsection (a)(2) to apply to camp cars 
exclusively occupied by MOW workers, based primarily on the language of 
subsection (b), which reads as follows:

    (b) Camp cars.--Not later than December 31, 2009, any railroad 
carrier that uses camp cars shall fully retrofit or replace such 
cars in compliance with subsection (a).

(Emphasis added). 49 U.S.C. 21106(b). Congress could have written that 
the camp cars must be in compliance with ``subsection (a)(1),'' but it 
did not; instead Congress required compliance with subsection (a) as a 
whole, a two-paragraph provision that includes the prohibition on 
placing camp cars (and other forms of sleeping quarters) near certain 
switching or humping operations. It is a basic canon of statutory 
construction that all words of a statute should be given effect.
    To give subsection (b) meaning, with respect to requiring camp cars 
to be in compliance with the old mandate of subsection (a)(2), some act 
must be required that is possible to perform in the future, 
specifically not later than the December 31, 2009, date stated in 
subsection (b). FRA reads that extra requirement imposed by subsection 
(b) to be that camp cars exclusively occupied by MOW workers be subject 
to subsection (a)(2). With respect to subsection (a)(2), which contains 
a compliance date about 32 years before the enactment of subsection 
(a)(2), a new compliance date would be necessary in order to avoid 
creating an unconstitutional, ex post facto law, and that is what 
Congress provided with the new statutory deadline for compliance of 
December 31, 2009. FRA does not read subsection (b) as supplanting the 
July 8, 1976, effective date of the prohibition in subsection (a)(2) 
with respect to construction or reconstruction of sleeping quarters 
occupied by train employees, signal employees, or dispatching service 
employees. Rather, FRA reads the text of section 21106(b) as a direct, 
statutory requirement that railroads using camp cars as sleeping 
quarters see to it that the cars exclusively occupied by MOW workers 
comply with the statutory requirements of not only subsection (a)(1), 
but also subsection (a)(2), and to do so by December 31, 2009.
    Of course, it could be argued that Congress simply made a technical 
error in requiring that camp cars comply with all of subsection (a) and 
that it meant to say ``subsection (a)(1),'' particularly given that the 
requirement is to ``retrofit or replace'' the cars, not to ``retrofit 
or replace and position'' the cars. FRA thinks that the legislative 
history of

[[Page 67076]]

section 420 of RSIA argues against such a strict interpretation. That 
legislative history indicates that Congress invited FRA to take a new, 
more protective look at camp cars. The House precursor to section 420 
of RSIA would have directly prohibited the use of camp cars entirely by 
statute, effective one year after the date of enactment. See section 
202 of H.R. 2095 as reported by the House Committee on Transportation 
and Infrastructure in H.R. Rep. No. 110-336 and analysis at p. 39. The 
Senate precursor to section 420 of RSIA would have authorized FRA to 
prohibit railroads' use of camp cars as sleeping quarters (i.e., by 
regulation or order) ``if necessary to protect the health and safety of 
the employees.'' See section 410 of S. 1889 as reported by the Senate 
Committee on Commerce, Science, and Transportation in S. Rep. No. 110-
270. Based on the plain meaning of 49 U.S.C. 21106 and the legislative 
history of section 420 of RSIA, FRA believes its interpretation 
applying the location requirement of subsection (a)(2) to camp cars 
occupied exclusively by MOW workers is both correct and appropriate.
    To carry out this statutory interpretation, FRA is proposing an 
amendment to subpart C. The statutory authority to conduct this aspect 
of the rulemaking is FRA's authority under 49 U.S.C. 21106(a)(2) to 
prescribe regulations to implement that statutory provision, which 
reads (as revised during the 1994 recodification of the rail safety 
laws effected by Public Law No. 103-272) as follows:

    A railroad carrier * * * (2) may not begin, after July 7, 1976, 
construction or reconstruction of sleeping quarters * * * in an area 
or in the immediate vicinity of an area, as determined under 
regulations prescribed by the Secretary of Transportation, in which 
railroad switching or humping operations are performed.

[Emphasis added.] This is the authority under which FRA originally 
prescribed subpart C. 41 FR 53070, Dec. 3, 1976.

B. Comments on the NPRM

    FRA received two sets of comments on the NPRM, one from the 
Brotherhood of Maintenance of Way Employes Division of the 
International Brotherhood of Teamsters (BMWED) and one from the 
Association of American Railroads (AAR). FRA appreciated and carefully 
considered both of these sets of comments. The final rule differs from 
the proposed rule in part because of the concerns raised by the 
commenters. FRA, however, believes that its lacks the authority to 
address all of the issues raised. Comments are addressed thematically.
1. Statutory Limitations
    BMWED requested a prohibition on the use of railroad-provided camp 
cars as sleeping quarters for employees and MOW workers within five 
years of the effective date of the rule. FRA does not believe Congress 
intended to give FRA such authority. The statutory section requiring 
FRA to regulate camp cars begins, ``A railroad carrier and its officers 
and agents may provide sleeping quarters * * * for employees, and any 
individuals employed to maintain the right of way of a railroad carrier 
* * *'' 49 U.S.C. 21106(a)(1). With this language, Congress has 
expressly given permission to railroads to provide sleeping quarters as 
long as they meet the applicable statutory or regulatory standard, or 
both. FRA may not prohibit by regulation what Congress has explicitly 
permitted by statute.
    FRA has also attempted to comply with the statutory language by 
limiting the applicability section of subpart C. Congress was 
specifically concerned with sleeping quarters provided to employees by 
a railroad and camp car sleeping quarters provided to MOW workers by a 
railroad. As a result, FRA stated that subpart C applies to railroads 
but not subcontractors or contractors, something BMWED commented on. If 
a railroad provides a substandard camp car to an employee or MOW 
worker, however, the railroad will be held liable, whether the camp car 
was directly provided by the railroad or whether the railroad was 
leasing a camp car from a contractor. See 49 CFR 228.303(b) and 
228.305. FRA is concerned that including contractor-provided sleeping 
quarters would inadvertently encompass rooms in commercial motels or 
hotels open to the general public that a railroad provided to its 
employees. To further clarify FRA's position, however, FRA has modified 
the language of Sec.  228.303 to expressly state that the requirements 
of this subpart apply to contractors and subcontractors that provide 
camp cars.
    BMWED also took issue with another matter in which FRA was, in 
part, trying to comply with the statute. BMWED argued that the 
temporary labor camps regulations of the Occupational Safety and Health 
Administration (OSHA) should not be a basis for subpart E. FRA did not 
extensively rely on temporary labor camp regulations in creating 
subpart E; however, they did provide the basic framework for the 
previous camp car guidelines, and FRA found it necessary to use those 
guidelines in creating this subpart. FRA was also required by section 
420 of the RSIA to work in consultation with the Department of Labor in 
creating these regulations, and FRA found its regulations helpful. FRA 
does recognize that there are significant differences between temporary 
labor camps and the current way that NS uses camp cars, but found 
OSHA's regulations to be helpful, as there are few other Federal 
regulations regarding employer-provided sleeping quarters. The only 
other comment in which statutory provisions were at issue came from 
AAR. As mentioned in the NPRM, NS disagreed with FRA's statutory 
interpretation that sleeping quarters provided to MOW workers were, 
like those provided to covered-service employees, restricted on how 
close they may be to switching and humping operations. AAR stated that 
it supports NS's interpretation. There is ample discussion regarding 
FRA's position on this issue stated above and in the NPRM.
    For its part, BMWED expressed its support for FRA's interpretation 
on this issue, but expressed concerns that the rights of MOW workers 
were not adequately protected. Specifically, BMWED wanted FRA to 
expressly say that the recognized representatives of the MOW workers be 
given the same notice when a railroad attempts to obtain permission to 
begin to construct or reposition a camp car too close to switching and 
humping operations. Under Sec.  228.103(d), representatives of railroad 
employees of camp cars must be given such notice. BMWED's request is 
unnecessary, as the proposed rule states that for the purposes of Sec.  
228.103, ``employees'' ``shall be read to include MOW workers.'' With 
this language found in Sec.  228.102(b), FRA is requiring that the same 
rights and notice given to the employees and their recognized 
representatives under Sec.  228.103 is given to MOW workers and their 
recognized representatives.
2. Life Safety Issues
a. Smoke Alarms and Fire Extinguishers
    BMWED recommended that each camp car be equipped ``with a portable 
fire extinguisher(s) meeting the requirements of 29 CFR 1910.157, a 
fire detection system meeting the requirements of 29 CFR 1910.164, and 
permanently wired, with battery backup, smoke detector(s) and carbon 
monoxide detector(s).''
    FRA agrees in principle with the desire for these life safety 
protection items; however, some of the proposed devices are not 
practical. Requiring smoke detectors and carbon monoxide detectors to 
be hard-wired may result in

[[Page 67077]]

added cost and complexity where simple battery-powered detectors can be 
used with little difference in protection. Many newer model smoke 
detectors are equipped with 10-year lithium batteries.
    A fire detection system meeting the requirements of 29 CFR 1910.164 
is not appropriate. The standard cited by BMWED is a performance 
specification for systems intended to meet other specific OSHA 
standards such as those for fuel or flammable materials storage areas. 
While meeting this OSHA standard is not necessary for camp cars, FRA 
will add paragraph (c) to Sec.  228.331 as set forth in the regulatory 
text of this final rule.
b. Weather and Medical Information
    BMWED also recommended requiring each camp car to have emergency 
evacuation instructions and information regarding the nearest hospital 
and have a weather radio. FRA agrees that camp car occupants need to 
have access to information in case of weather and medical emergencies, 
but has decided to address these needs by adding paragraph (d) to Sec.  
228.331 as set forth in the regulatory text of this final rule.
c. First Aid Kits (Proposed Sec.  228.331)
    AAR objected to FRA's proposed Sec.  228.331, which specified and 
listed the minimum contents of first aid kits. AAR urged FRA to take a 
consistent approach to first aid kits. FRA's proposed Sec.  228.331 
differed from its regulation on passenger train emergency preparedness 
at 49 CFR 239.101(a)(6) by adding the requirements of a first aid 
booklet, aspirin, antibiotic ointment packages, and hydrocortisone 
ointment packets. FRA agrees that it should be consistent. As a result, 
FRA has changed the requirements for the first aid kit required by this 
subpart to conform with those of 49 CFR 239.101(a)(6).
3. Camp Car Environment
    BMWED requested that FRA restrict the locations where camp cars are 
located to avoid standing water and other potential hazards. 
Specifically, it requested the following requirements:

    All camp car locations must be adequately drained, graded, and 
rendered free from depressions that pose a tripping hazard or allow 
water to collect. Camp car locations shall not be subject to 
periodic flooding, nor located within 200 feet of swamps, pools, 
sink holes, or other surface collections of water. The discharge of 
``gray water'' from camp car lavatories and showers shall be 
prohibited unless permitted by local laws and ordinances; however, 
in no case shall ``gray water'' from lavatories and showers be 
discharged closer than 200 feet of any camp car. Camp cars shall be 
located so the drainage from and through the location will not 
endanger any domestic or public water supply.

FRA recognizes that the issues identified in this comment may arise in 
some circumstances; however, they are not within the scope of the 
mandate nor within the agency's scope of regulatory expertise. The 
mandate language at 49 U.S.C. 21106(c) clearly is intended to address 
the camp cars themselves, not the conditions of the railroad property 
or adjacent private property on or near which they are located.
    BMWED asked FRA to require gender-separated camp car facilities for 
``sleeping, showering, washing, urination and defecation.'' FRA does 
not believe that this provision is necessary at this time, nor is FRA 
aware of any problems stemming from a lack of such gender-separated 
facilities. FRA is, however, concerned about the possibility that a 
married couple might be working together, and the railroad might want 
to respect that couple's wish to stay in the same camp car. If FRA 
learns of problems stemming from the lack of gender-separated 
facilities, it will take appropriate action.
4. Furnishings (Proposed Sec.  228.311)
    BMWED also had suggestions on the furnishings provided to camp car 
occupants. It recommended, among other things, a prohibition against 
cots, multi-deck bunks (which are built into or against a wall, such as 
in a Pullman car), and multi-level bunk beds (which are movable). FRA 
agrees that a prohibition on multi-deck bunks and multi-level bunk beds 
is a reasonable prohibition, given that falls from multi-deck bunks and 
multi-level bunk beds are possible and falls from an upper deck would 
obviously tend to cause more severe injury than falls from an ordinary, 
single-level bunk or single-level bed. The U.S. Consumer Product Safety 
Commission determined that multi-level bunks and multi-level bunk beds 
provided a sufficient hazard so as to require regulations to limit 
their hazards. See 16 CFR part 1213 et seq. FRA also notes that BMWED 
states that this prohibition would not have any cost, as NS does not 
currently use multi-level bunks or multi-level bunk beds in its camp 
cars for employees and MOW workers.
    FRA, however, disagrees with BMWED's suggested prohibition on 
``cots'' at this time. FRA realizes that cots can vary widely, and FRA 
expects any bed or cot provided under Sec.  228.311 to be a unit for 
sleeping, consisting of a base and mattress. NS, the only railroad that 
uses camp cars as sleeping quarters for employees or MOW workers, uses 
beds only and does not use a cot in the sense of a unit used for 
sleeping made of canvas over a frame that can be folded up and lacking 
a mattress. If NS or another railroad chooses to use a cot that does 
not have a mattress in a camp car that it provides as sleeping 
quarters, FRA will revisit this issue.
    BMWED also requested that the lockers provided to the employees and 
MOW workers be lockable. FRA finds this to be a reasonable request, as 
the cost of locks should be minimal. Employees and MOW workers live in 
these camp cars for days or weeks at a time, and being able to secure 
their valuables could help alleviate stress and anxiety regarding the 
potential theft.
5. Minimum Lateral Spacing Requirement (Proposed Sec.  228.311)
    FRA's proposed Sec.  228.31(b) would have required that beds not be 
closer than 36 inches laterally, with modular units subject to a 30-
inch minimum and double-deck bunks no closer than 48 inches laterally. 
AAR objected that the provision would be problematic for some in-
service camp cars. It mentioned that the width of highway-capable camp 
cars is limited by existing DOT restrictions. AAR suggested, and FRA 
adopts, the following change: ``Except where partitions are provided, 
such beds or similar facilities must be spaced not closer than 36 
inches laterally (except in rail-mounted modular units, where the beds 
shall be spaced not closer than 30 inches, and highway trailer units, 
where the beds shall be spaced not closer than 26 inches) and 30 inches 
end to end, and must be elevated at least 12 inches from the floor.''
6. Cleaning (Proposed Sec.  228.329)
    BMWED also commented on cleaning requirements. For example, BMWED 
suggested that FRA change the requirement in Sec.  228.329(a) from 
simply stating that a camp car must be kept ``clean'' to use the phrase 
``clean, healthful, and sanitary,'' and include a short explanation of 
the division of responsibility between the railroad and camp car 
occupants. FRA agrees that railroads are responsible for the regular 
and thorough cleaning of all camp car facilities, and that camp car 
occupants should use good housekeeping practices. FRA, however, does 
not believe that this suggestion substantively changes the proposed 
requirements, and so refrains from altering the proposed language of 
the regulation itself. FRA believes that the requirements of this 
subpart ensure that camp cars will be kept clean, healthful, and 
sanitary.

[[Page 67078]]

    BMWED also requested that FRA require railroads to provide each 
occupant with two sets of clean bed linens and also exchange them, upon 
request, for clean linens when they are soiled. NS has notified FRA 
that, under the terms of two differing collective bargaining 
agreements, railroad employees either currently receive reimbursement 
for providing and laundering linens or are given reimbursement for 
providing their own linens. FRA will not interfere regarding linens 
when they are being provided under the terms of a collective bargaining 
agreement. FRA recognizes, however, that sweat and body fluids can 
accumulate on linens, posing a health hazard from potential viruses and 
bacteria growing in them. Health risks are compounded if someone sleeps 
on the unwashed sheets of another. FRA believes a collective bargaining 
agreement is the most appropriate method to ensure that occupants have 
clean sheets, but has added a requirement that clean linens be provided 
if a provision on the subject of linens in the applicable collective 
bargaining agreement does not exist.
Inspections
    BMWED asked for a regulatory right for a representative of the 
employee labor organization to accompany FRA inspectors during a camp 
car inspection. It points out that OSHA allows for a representative of 
employee labor organizations to accompany OSHA inspectors. FRA declines 
to create such a right. FRA prefers to have unannounced inspections. If 
a camp car occupant has a concern that these regulations are not being 
adhered to, that employee or an employee's representative may alert 
FRA. When an individual contacts FRA regarding a railroad's failure to 
adhere to the law, FRA investigates the complaints and makes every 
effort to comply with statutory prohibitions and agency policy not to 
reveal the identity of that individual unless the individual has 
consented to the release. See 49 U.S.C. 20109(i).
7. Definitions (Proposed Sec.  228.5)
a. ``Camp Car'' Definition
    In its comment, AAR recommended that FRA modify the definition of 
``camp car'' to explicitly exclude office cars, inspection cars, and 
specialized maintenance equipment. FRA does not intend to include any 
cars in this subpart that are not used as sleeping quarters or 
ancillary to such sleeping quarters. FRA does not consider track 
geometry cars and similar cars to ``house or accommodate'' MOW workers 
in the way that sleeping and dining room cars do. For clarity, however, 
FRA has amended the definition of ``camp car'' to make this intent 
explicit.
b. ``MOW Worker'' Definition in Proposed Sec.  228.5
    In the NPRM, FRA proposed a definition of ``MOW worker'' as someone 
who was ``an individual employed to maintain the right of way of a 
railroad,'' which is the singular language of the hours of service 
laws, slightly shortened. See 49 U.S.C. 21106(a)(1) (``any individuals 
employed to maintain the right of way of a railroad carrier''). BMWED 
suggested that definition be elaborated to say ``an individual employed 
to inspect, install, construct, repair or maintain track, roadbed, 
bridges, buildings, roadway facilities, roadway maintenance machines, 
electric traction systems, and right of way of a railroad.'' To clarify 
the scope of the definition, FRA has accepted this change in the 
definition intact except to add a comma after ``repair.'' It is not 
necessary for the individual to be employed by a railroad; the 
individual may be employed by a contractor or subcontractor to a 
railroad.
8. Minimum Space Standards and Bathroom Requirements (Proposed 
Sec. Sec.  228.311, 228.317 to 228.321)
    Proposed Sec.  228.311 suggested a minimum amount of 50 square feet 
of floor space for each occupant of a camp car used for sleeping. BMWED 
disputed that this amount of space was sufficient, and suggested that 
more appropriate standards included a minimum of 80 square feet with a 
maximum occupancy of four people per car. The organization pointed out 
that the cost of compliance for this standard is essentially zero, as 
NS already provides this minimum amount of space. FRA agrees that this 
suggested change is reasonable and will prevent overcrowding.
    In addition, for camp cars that are used for general living as well 
as cooking, BMWED recommended that the minimum square feet per occupant 
be increased from 90 to 120 square feet. FRA also agrees with this 
change to help prevent overcrowding. FRA notes that adopting this 
amendment should present no current cost to any railroad, as NS does 
not presently use camp cars in which occupants both sleep and cook.
    In the NPRM, FRA proposed a minimum of two toilet rooms and two 
showers in each camp car that provides sleeping facility and an 
additional toilet room and shower for every one to five more people 
after ten occupants. The NPRM suggested only two lavatories per camp 
car. BMWED recommended that if a camp car has more than four occupants, 
an additional toilet room and shower and lavatory should be required 
for every one or two more people. For its part, AAR requested requiring 
a fewer number of showers, lavatories, and toilets when there were 
fewer than four occupants. FRA sees the value in each of these 
proposals, and notes that the projected cost of this change from the 
NPRM is zero, as NS already complies with BMWED's proposal. FRA has 
lowered the minimum number of these fixtures required when a camp car 
has fewer than four occupants. The final rule requires one functional 
lavatory, shower, and toilet per camp car for up to two occupants, and 
one additional functional lavatory, shower, and toilet if there are 
three or four occupants in the camp car.
9. Lighting (Proposed Sec.  228.309)
    BMWED requested that the minimum lighting for toilet and shower 
rooms be increased from the 10 foot-candles required in the proposed 
Sec.  228.309(f)(2) to 30 foot-candles. OSHA standards require only 10 
foot-candles for indoor toilets; 30 foot-candles are required for 
areas, such as offices, where more visually demanding tasks are done. 
29 CFR 1926.56(a). Because of the limited size of toilet rooms, FRA 
does not believe that it is necessary for the requirements for lighting 
in bathrooms to be increased to the same level as an office.
10. Temperature of Camp Car (Proposed Sec.  228.309)
    The NPRM proposed that each car must have equipment so that it can 
maintain a minimum temperature of 68 degrees Fahrenheit ([deg]F) in 
cold weather and a maximum temperature of 75 [deg]F in hot weather. 
Sec.  228.309(g). BMWED requested that the minimum temperature be 
changed to 70 [deg]F. FRA declines to do so, as it is likely that such 
a small difference is within the reading error of some thermometers. 
AAR also objected to FRA's proposed temperature requirement.
    AAR requested that FRA prescribe a maximum temperature of 78 
[deg]F, as was set forth in appendix C to part 228. AAR stated that it 
was unaware of any problems with the 78 [deg]F threshold. It also 
objected to a change proposed by FRA that was different from the 
guidelines of appendix C and allowed the maximum temperature to be only 
20 [deg]F below the ambient temperature. AAR stated that

[[Page 67079]]

differential cooling systems are limited by what they can achieve 
relative to the ambient temperature. FRA declines to make these 
changes.
    FRA believes that modern air conditioning equipment on these cars 
is capable of providing the requisite cooling to offer the workers a 
respite from warm conditions that could interfere with the ability to 
get adequate rest. If a temperature of 78 [deg]F is achievable by these 
systems, it seems unlikely that 75 [deg]F would not be. With respect to 
the absence of the 20 [deg]F differential from ambient as an 
alternative cooling standard, FRA believes this could lead to 
permitting significantly higher allowable temperatures that would have 
an adverse impact on the workers' ability to get adequate rest, 
particularly in some of the warmer climates in which these cars 
operate.
11. Emergency Egress (Proposed Sec.  228.309)
    AAR requested that doors for emergency egress not be required at 
each end, as would be required by the proposed Sec.  228.309(e). FRA 
agrees that the NPRM language is needlessly specific and agrees to 
amend that section.
    In addition, AAR suggested that FRA modify its proposed requirement 
of Sec.  228.309(f) for illumination of exit pathways. AAR stated,

[p]roposed paragraph 228.309(f)(1) requires that pathways not 
immediately accessible to occupants should be illuminated at all 
times. However, literally interpreted, this requirement could be 
read as requiring that lights be kept on in sleeping quarters, which 
would, of course, disturb the sleep of occupants. If the sleeping 
quarters are at opposite ends of a camp car, under this paragraph 
the sleeping quarters would have to be illuminated because the 
occupants would have to pass through the sleeping quarters to get to 
the secondary exits, i.e., an occupant in one end of the car would 
have to pass through sleeping quarters to get to the exit at the 
other end of the car.

FRA agrees that the NPRM language is somewhat ambiguous and agrees to 
adopt the AAR's proposed change, with two additional commas, as 
follows:

    Sec.  228.309(f)(1) When occupants are present, the pathway to 
any exit not immediately accessible to occupants, such as through an 
interior corridor, shall be illuminated at all times to values of at 
least 1 foot-candle measured at the floor, provided that where the 
pathway passes through a sleeping compartment, the pathway up to the 
compartment will be illuminated, but illumination is not required 
inside the sleeping compartment.

12. Water Issues
a. Potability (Proposed Sec. Sec.  228.319-228.323)
    In its comment, BMWED stated its opposition to allowing non-potable 
water to be used for the washing and showering of persons. See proposed 
Sec. Sec.  228.319-228.323. It pointed to OSHA's regulation, 29 CFR 
1910.141(b)(1)(i), which requires potable water for the washing of the 
person in places of employment. FRA will follow OSHA's lead in 
requiring that water used for personal cleansing in the sinks and 
showers of camp cars be potable. FRA has changed the rule text 
accordingly.
    For its part, AAR objected to the requirement of proposed Sec.  
228.323 that a railroad must obtain a certificate of compliance with 
EPA drinking water regulations every time potable water is drawn from a 
different local source. AAR stated that this was impractical and is 
unnecessary. It argued that, most of the time, water for camp cars came 
from a municipal community water system via spigots on the outside of 
buildings.
    FRA does not agree with AAR's arguments. Its assertions that water 
drawn from a municipal community water system must be assumed to be 
potable, even after being conveyed through a portable, removable system 
of connections, pipes, and tanks, is not credible. In fact, during a 
visit to a NS camp, the water system was connected to a municipal 
building through a series of pipes and hoses on the surface of a 
parking lot. This circumstance could easily lead to a compromised 
system that could introduce contamination into the water, rendering it 
non-potable.
    FRA agrees that community water sources are regulated and the water 
is potable when leaving the water supplier. However, FRA has no means 
of assurance that the water from the taps AAR mentions is in fact of 
the same quality. Further, the minority of circumstances where the 
water is not drawn from a community water system source are minimally 
addressed in the AAR comments. While the materials and systems 
components used by NS may be made of FDA-approved materials, that does 
not preclude the introduction of contamination into the system due to 
improper procedures setting up the connections, nor through damage to 
the components after they have been set up.
    FRA's desire for either a certificate of conformance, or a similar 
certificate from a laboratory is to ensure that the water entering the 
camp car system is, at the source, of potable quality. The other 
testing requirements contained in the section are intended to ensure 
that once potable water is introduced into the system, it is delivered 
in that form to the users. The FDA has specific regulations regarding 
the source quality of potable water for use on ``a conveyance engaged 
in interstate traffic'' at 21 CFR 1240.80, 1240.83, and, for treatment 
once aboard the conveyances, at 21 CFR 1240.90. FRA is simply restating 
these precepts.
b. Cleaning of Potable Water Systems (Proposed Sec.  228.323)
    AAR also objected to the requirement of proposed Sec.  
228.323(c)(4) that potable water systems be drained and flushed 
regularly and after any complaint. As discussed above, however, the 
introduction of contaminants into a water system can occur through any 
of a number of sources, both through damage to the system connections, 
as well as through back flow through any of the system's internal 
outlets. Even under normal circumstances of use, where the water is 
consumed and refilled on a frequent basis, quarterly disinfection and 
flushing have been used, under an FDA-approved process, on Amtrak 
passenger cars for a number of years. By AAR's own admission, camp cars 
may move on a frequent basis, thus the opportunities for introduction 
of contaminants into the potable water system exist. The two procedures 
established by this regulation thus parallel those used to protect 
Amtrak passengers and crews and should be no more burdensome, and in 
fact are likely less so, for NS since its fleet and movement frequency 
are much less.
c. Water Temperature (Proposed Sec.  228.319)
    In addition, BMWED also stated that there was no reason for Sec.  
228.319 to allow for only tepid water--as opposed to both hot and cold 
water--to be provided in lavatories. It stated that the water for sinks 
came from a plumbing system that provided both hot and cold water. 
Since this is a reasonable request that apparently can be provided with 
minimal or no cost to the only railroad actively using camp cars, FRA 
has changed Sec.  228.319 to require hot and cold water in lavatories.
d. Training (Proposed Sec.  228.323)
    BMWED also requested that any individual who fills a potable water 
system as required by this subpart be ``properly trained, qualified and 
designated by the employer.'' FRA's proposed Sec.  228.323(b)(5) 
required only that the person filling the potable water

[[Page 67080]]

system be trained. FRA does not see the value of BMWED's suggestion.
e. Response to Failed Test of Water (Proposed Sec.  228.323)
    The organization also requested that FRA prohibit the return to 
service of a camp car whose water system failed a total coliform test 
until test samples from that system show a satisfactory result. 
Proposed Sec.  228.323(c)(5) simply states that the system needs to be 
resampled and then it may be returned to service. The original language 
of the proposed regulation follows FDA-approved protocols currently 
used for water systems on conveyances in interstate commerce. The 
recommended change is not necessary.
13. Waste Disposal From a Food Service Facility (Proposed Sec.  
228.325)
    BMWED requested in its comment more stringent controls on waste 
disposal methods to protect the safety and health of occupants. It 
requested changes to be added to Sec.  228.325(c). FRA agrees with 
these changes and has adopted them in this final rule.
14. Repairs (Sec.  228.333)
    In the NPRM, FRA asked for comments regarding the amount of time 
that a railroad should be given to repair significant noncomplying 
conditions in a camp car under proposed Sec.  228.333, which gave the 
railroad 72 hours after notice of noncompliance with this subpart from 
FRA. In response, BMWED recommended the following substitute:

A railroad shall, within 24 hours after receiving a good faith 
notice from a camp car occupant or an employee labor organization 
representing camp car occupants or notice from the Federal Railroad 
Administration of noncompliance with this subpart, correct each non-
complying condition on the camp car or cease use of the camp car as 
sleeping quarters for each occupant. In the event that such a 
condition affects the safety or health of an occupant, such as, but 
not limited to, water, cooling, heating, or eating facilities, 
sanitation issues related to food storage, food handling or sewage 
disposal, vermin or pest infestation, electrical hazards, etc., the 
railroad must immediately upon notice provide alternative 
arrangements for housing and providing food to the employee or MOW 
worker until the condition adverse to the safety or health of the 
occupant(s) is corrected. As used in this section ``immediately'' 
means prompt, expeditious and without delay.

    While FRA does not believe a definition of ``immediately'' is 
necessary, it otherwise agrees with the recommended changes and has 
adopted them.

II. Section-by-Section Analysis

Part 228

Section 228.1 Scope
    FRA is revising the heading of 49 CFR part 228 to reflect all of 
its contents more explicitly. The name of the part is being changed 
from ``HOURS OF SERVICE OF RAILROAD EMPLOYEES'' to ``HOURS OF SERVICE 
OF RAILROAD EMPLOYEES; RECORDKEEPING AND REPORTING; SLEEPING 
QUARTERS''.

Subpart A of Part 228

    FRA is tailoring Sec.  228.1, Scope, to reflect the addition of new 
subpart E, Safety and Health Requirements for Camp Cars Provided by 
Railroads as Sleeping Quarters, such as by adding new paragraph (c).
Section 228.3 Application
    FRA also is amending Sec.  228.3, Application. Currently, paragraph 
(a) of that section says that, except as provided in paragraph (b), 
part 228 applies to all railroads and contractors and subcontractors of 
railroads. FRA is revising the section to indicate that although 
subparts B and D of part 228 apply to railroads and contractors and 
subcontractors of railroads, subparts C and E of part 228 apply only to 
railroads. (Subpart A contains no duties that apply to any entity.) In 
addition, Sec.  228.3 is being amended to clarify that plant railroads 
are exempt from the requirements of subparts B-E of part 228. The 
section is also being amended to note that tourist, scenic, historic, 
and excursion railroads that are not part of the general system are 
generally excepted from subparts B-E except as provided in Sec.  
228.413(d)(2). See 76 FR 50360, 50400 (August 12, 2011). Section 228.3 
also is being amended to move its existing reference to Sec.  228.401 
as the applicability section for subpart F, Substantive Hours of 
Service Regulations for Train Employees Engaged in Commuter or 
Intercity Rail Passenger Transportation, from paragraph (b) to 
paragraph (c). Id.
Section 228.5 Definitions
    Finally, FRA is amending Sec.  228.5, Definitions, by adding 
definitions of four terms. The terms ``plant railroad'' and ``tourist, 
scenic, historic, or excursion operations that are not part of the 
general railroad system of transportation'' are used in the proposed 
``application'' provisions of subpart A and the new subpart E, and both 
terms refer to types of operations that have traditionally been 
excluded from FRA regulations because they are not part of the general 
railroad system of transportation. (Note, however, that, e.g., all 
tourist railroads are subject to the substantive hours of service 
requirements of subpart F of part 228 as provided in 49 CFR 228.401 and 
the hours of service recordkeeping and reporting requirements of 
subpart B as provided in 49 CFR 228.413(d)(2).) There is a more 
extensive explanation of the general railroad system of transportation 
in appendix A to 49 CFR part 209, and it is explicitly defined there as 
``the network of standard gage track over which goods may be 
transported throughout the nation and passengers may travel between 
cities and within metropolitan and suburban areas.''
    The terms ``camp car'' and ``MOW worker'' are used in subparts C 
and E. ``Camp car'' is, in Sec.  228.5, defined as a trailer and/or on-
track vehicle, including an outfit, camp, bunk car, or modular home 
mounted on a flatcar, or any other mobile vehicle or mobile structure 
used to house or accommodate an employee or MOW worker. An office car, 
inspection car, specialized maintenance equipment, and a wreck train is 
not included.
    The longstanding definition of ``camp car'' in the guidelines of 49 
CFR part 228, app. C is clarified by adding ``or any other mobile 
vehicle or mobile structure'' as catch-all language. For example, a 
recreational vehicle used to accommodate or house an employee or MOW 
worker is a camp car within the meaning of Sec.  228.5. In addition, 
the phrase ``railroad employees'' in the existing definition of camp 
car is replaced with ``an employee or MOW worker.'' The term 
``employee'' is already defined in existing Sec.  228.5 and means a 
train employee, signal employee, or dispatching service employee. The 
term ``MOW worker'' is defined as ``an individual employed to inspect, 
install, construct, repair, or maintain track, roadbed, bridges, 
buildings, roadway facilities, roadway maintenance machines, electric 
traction systems, and right of way of a railroad.''

Subpart B of Part 228

Section 228.13 [Removed and Reserved]
    FRA is removing and reserving Sec.  228.13, Preemptive effect, for 
two reasons. First, the section is unnecessary because it is 
duplicative of statutory law at 49 U.S.C. 20106 and case law. Second, 
the section is incomplete because it omits reference to the preemptive 
effect of the hours of service laws (49 U.S.C. ch. 211), (the authority 
for 49 CFR part 228, subparts C, E, and F). The hours of service laws 
have been

[[Page 67081]]

interpreted by the Supreme Court as preempting State regulation of the 
hours of railroad employees. See Hill v. State of Florida ex rel. 
Watson, 325 U.S. 538, 553 (1945).
Section 228.6 Penalty
    In addition, FRA is redesignating two provisions in subpart B that 
are intended to apply to the entire part in order to move them to 
subpart A, General. In particular, FRA is redesignating Sec.  228.21, 
Civil penalty, and Sec.  228.23, Criminal penalty, as Sec.  228.6, 
Penalty.

Subpart C of Part 228

Heading of Subpart C
    FRA is changing the heading of subpart C from ``Construction of 
Employee Sleeping Quarters'' to ``Construction of Railroad-Provided 
Sleeping Quarters.'' ``Railroad-Provided'' is added to emphasize that 
the regulations apply only to sleeping quarters that are provided by a 
railroad, and the word ``Employee'' is deleted since the amended 
subpart applies not only to sleeping quarters occupied by an employee 
but also to sleeping quarters in the form of a camp car that are 
provided by a railroad to an MOW worker.
Section 228.101 Distance Requirement for Employee Sleeping Quarters; 
Definitions Used in This Subpart
    In Sec.  228.101, the heading is changed from ``Distance 
requirement; definitions'' to ``Distance requirement for railroad-
provided employee sleeping quarters; definitions used in this 
subpart.'' This revision is intended to reflect that paragraph (a) 
applies only to sleeping quarters for employees (not for MOW workers). 
That section reflects the 1976 statutory amendment discussed earlier in 
the preamble that carries a July 8, 1976, compliance date.
    In addition, some typographical errors in paragraph (b) are 
corrected. Specifically, ``Except as determined in accordance with the 
provisions of this subpart. `The immediate vicinity' '' is replaced 
with ``Except as determined in accordance with the provisions of this 
subpart, the `immediate vicinity' '' instead.
Sec.  228.102 Distance Requirement for Camp Cars Provided by Railroads 
as Sleeping Quarters Exclusively for MOW Workers
    In new Sec.  228.102, FRA is restating the statutory language at 49 
U.S.C. 21106(b) and 21106(a)(2) by saying that a railroad that uses 
camp cars must comply by December 31, 2009, with the prohibition in 49 
U.S.C. 21106(a)(2) with respect to those camp cars that are provided as 
sleeping quarters exclusively to MOW workers. (Camp cars for train 
employees, signal employees, or dispatching service employees and camp 
cars occupied by both covered-service employees and MOW workers are 
already subject to the July 8, 1976, compliance date in 49 U.S.C. 
21106(a)(2) and 49 CFR 228.101.) In other words, under the statute, 
starting December 31, 2009, a railroad must not begin construction or 
reconstruction of a camp car provided by the railroad as sleeping 
quarters exclusively for MOW workers within or in the immediate 
vicinity of any area where railroad switching or humping is performed. 
(Of course, compliance with the regulation itself would not be due 
until the date established in the final rule.) The key terms in new 
Sec.  228.102 are already defined in the subpart or at Sec.  228.5. In 
effect, absent FRA's special approval in accordance with subpart C, a 
railroad may not begin construction or reconstruction of a camp car 
(including the placement of a camp car) as sleeping quarters solely for 
MOW workers in or within the distance specified in the regulations at 
Sec.  228.101(b) (one-half mile from the location where such switching 
or humping of placarded cars takes place). Procedures on requesting 
FRA's special approval are found within that subpart and at 49 CFR part 
211. Section 228.102 notes that references to ``employees'' in the 
sections on procedures in Sec. Sec.  228.103-228.107 must be read to 
include MOW workers.

Subpart E of Part 228

    FRA is adding new subpart E entitled, ``Safety and Health 
Requirements for Camp Cars Provided by Railroads as Sleeping 
Quarters.''
Section 228.301 Purpose and Scope
    This section is a basic restatement of the legal mandate in section 
420 of RSIA that is codified at 49 U.S.C. 21106(c), which requires the 
issuance of regulations to implement 49 U.S.C. 21106(a)(1) with respect 
to certain camp cars. Section 21106(a)(1) of title 49 of the U.S. Code 
provides that sleeping quarters provided by a railroad to its covered-
service employees and MOW workers must be--

clean, safe, and sanitary, give those employees and individuals an 
opportunity for rest free from the interruptions caused by noise 
under the control of the carrier, and provide indoor toilet 
facilities, potable water, and other features to protect the health 
of employees * * *

Subpart E replaces the outdated guidelines at 49 CFR part 228, app. C 
consistent with RSIA's requirements.
Section 228.303 Application and Responsibility for Compliance
    This section defines the railroads that are covered by the new 
subpart. All railroads are covered, with the exception of three types 
of railroad operations. The three listed exceptions are for operations 
that are not part of the general railroad system of transportation: (1) 
Railroads that operate exclusively on track that is not part of that 
system (plant railroads, as that term is defined in Sec.  228.5); (2) 
tourist, scenic, historic, or excursion railroads that are not part of 
the general railroad system of transportation, a term also defined in 
Sec.  228.5 (tourist railroads); and (3) rapid transit operations in an 
urban area that are not connected to the general railroad system of 
transportation. See 49 CFR part 209, app. A for a discussion of 
``general railroad system of transportation.'' As a matter of policy, 
FRA almost never exercises its statutory jurisdiction over plant 
railroads and generally does not exercise its statutory jurisdiction 
over tourist railroads that operate only off the general system. (But 
see, e.g., 49 CFR part 228, subpart F, including Sec.  228.401, and the 
Bridge Safety Standards at 49 CFR part 237). FRA lacks statutory 
jurisdiction over urban rapid transit operations not connected to the 
general system. See 49 U.S.C. 20102, 20103.
    In addition, paragraph (b) explains that even though subpart E of 
part 228 applies only to railroads, a railroad may not avoid fulfilling 
the requirements of this subpart by using contractors or 
subcontractors. If, for example, a railroad uses a contractor to 
provide dining services for the occupants of a camp car, FRA will still 
enforce the provisions of Sec.  228.325 against the railroad to ensure 
that the food service is safe and sanitary.
Section 228.305 Compliance Date
    This section establishes the deadline for compliance. A December 
31, 2010, deadline for compliance with the regulations was set by 
Congress in section 420 of RSIA, but the final rule may not become 
effective until 60 days after it is published. The compliance date for 
this rule is December 30, 2011.
Section 228.307 Definitions
    This section defines key terms used in subpart E. Many of these 
definitions were originally set forth in FRA's 1990 Guidelines. In 
addition, many of these definitions have been taken from standards 
issued by OSHA.

[[Page 67082]]

Section 228.309 Structure, Emergency Egress, Lighting, Temperature, and 
Noise-Level Standards
    This section sets forth a series of requirements for camp cars 
provided by a railroad as sleeping quarters to employees or MOW workers 
or both. First, the section requires that the camp cars are constructed 
so as to provide protection from the elements. Second, the section 
requires that the camp cars provide an opportunity for rest free from 
interruptions caused by noise under the control of the railroad that 
provides the camp cars. The limit of 55 dB(A) is based on FRA's 
longstanding interpretation of an hours of service statutory provision 
related to sleeping quarters. 49 U.S.C. 21106(a)(1); 49 CFR part 228, 
app. A and C. It is notable that the 55 dB(A) level is typical of semi-
urban and suburban neighborhood outside ambient noise during the 
evening hours with minimal street traffic. Levels such as these have 
also been measured in the same neighborhoods on side streets during 
daylight hours; thus, the 55 dB(A) limit should not be difficult to 
achieve. Third, this section requires that the camp cars be able to 
maintain a minimum temperature during cold weather (68 [deg]F) and a 
maximum temperature during hot weather (75 [deg]F). Fourth, the section 
requires that camp cars provide an adequate means of egress in the 
event of an emergency situation. There must be at least two emergency 
exits. Finally, FRA is also establishing minimum lighting standards, 
including provisions requiring the interior pathway to an emergency 
exit not immediately accessible to the occupants to be illuminated at 
all times for emergency egress purposes, except that illumination of 
emergency pathways is not required inside sleeping compartments.
Section 228.311 Minimum Space Requirements, Beds, Storage, and Sanitary 
Facilities
    This section requires that, to prevent overcrowding, the camp car's 
occupants have at least 80 square feet each; in a camp car where 
occupants cook, live, and sleep, a minimum of 120 square feet per 
occupant must be provided. The section also requires certain types of 
furniture. This section also creates a limit of four occupants per car.
Section 228.313 Electrical System Requirements
    This section sets forth requirements regarding the safety of all 
electrical systems in the camp car, including, but not limited to, 
heating, cooking, ventilation, air conditioning, and water heating 
equipment. While the NPRM stated that these systems must be installed 
in accordance with all applicable provisions of the National Fire 
Protection Association's NFPA 70 (2008), ``National Electrical Code'' 
(NEC 2008), approved by the National Fire Protection Association (NFPA) 
Standards Council on July 26, 2007, with an effective date of August 
15, 2007, FRA realizes that this code is not the only industry standard 
that could be used to ensure safe and working electrical equipment. To 
allow greater flexibility, FRA has decided to allow railroads to 
utilize industry-recognized standards other than those set forth in NEC 
2008. These may include State-modified NEC Standards, other nationally-
recognized standards, or internationally-recognized standards. FRA 
expects all electrical systems installed to be compliant with whichever 
industry-recognized standard the railroad utilizes.
    This section of the rule does not specify any certain code that 
must be used for heating, ventilation, and air conditioning (HVAC) 
systems, but does require that all such systems be safe and working. 
FRA anticipates that, to ensure that these systems are safe and 
operable, railroads will require HVAC systems in their camp cars to 
meet widely-adopted standards, such as those of the standards of the 
Sheet Metal and Air Conditioning Contractors National Association; the 
American Society of Heating, Refrigerating, and Air-Conditioning 
Engineers; and the American National Standards Institute.
Section 228.315 Vermin Control
    This section sets forth requirements related to the prevention and 
resolution of vermin infestations.
Section 228.317 Toilets
    This section represents a substantial revision of the parallel 
provision in FRA's 1990 Guidelines to reflect a more appropriate number 
of toilets required. Further, the section requires that there be at 
least one toilet room located within a camp car that has sleeping 
facilities for a total of one or two occupants. If the camp car has 
three or four occupants, then at least two toilet rooms are required. 
FRA believes that this requirement provides an adequate standard for 
the minimum number of toilets. A toilet room must have a door that 
latches, one that is capable of being and staying securely closed, and 
the toilet room must be sufficient to assure privacy. Certain 
construction and cleanliness standards are also included in this 
section.
Section 228.319 Lavatories
    This section requires every camp car that provides a sleeping 
facility to have a basin with hot and cold potable running water, soap, 
and hand-drying equipment or towels. It also requires at least one 
basin per car with sleeping facilities.
Section 228.321 Showering Facilities
    The section mandates a minimum number of showers, construction 
requirements for the showers, and the provision of showering supplies.
Section 228.323 Potable Water
    This lengthy section sets forth requirements to ensure that the 
water provided to the occupants of camp cars is safe. Water uses such 
as personal oral hygiene, washing of the person, drinking as well as 
food washing, preparation, and cooking, and cleaning of the cooking 
utensils, cooking surfaces, and eating surfaces--all require the use of 
water that is potable. If the water supplied for these uses is provided 
by means of a system of tanks, lines, and other plumbing, the integrity 
and cleanliness of such systems need to be maintained.
    To facilitate these objectives, FRA has established a series of 
requirements in this section. Individuals who fill potable water 
systems servicing a camp car must be trained. The source for water 
provided to the occupants of a camp car must meet minimum standards put 
forth by the Environmental Protection Agency under 40 CFR part 141, 
National Primary Drinking Water Regulations. A railroad must obtain a 
certificate indicating this fact. Section 228.323 does not require that 
the water as it flows from any faucet within the camp be certified as 
potable, but rather that the source of the water itself be potable. A 
railroad may obtain the certificate even before a camp reaches any 
given location to avoid interrupting operations. Of course the expected 
connection must be somewhat imminent: a railroad could not, for 
example, legally rely on a certification that is six months old. The 
certificate must be kept with the camp car for the duration of the 
connection, after which the certificate must be sent to a centralized 
location, such as the railroad's system headquarters. This location 
must be the depository for all water certification records for the 
railroad. Further, equipment and construction employed to provide 
potable water to a camp car must be approved by the Food and Drug 
Administration. The water itself must be stored in sanitary containers 
and be

[[Page 67083]]

dispensed so that sanitary conditions are maintained. Distribution 
lines must have adequate pressure for simultaneous use. Potable water 
systems must be flushed and disinfected regularly, and the steps that 
are taken to do so must be recorded. Those records must be kept within 
the camp for the duration of the connection and then sent to a 
centralized location. Certain procedures must be followed in response 
to a report of a problem with the taste of the water or a report of a 
health problem because of the water.
Section 228.325 Food Service in a Camp Car or Separate Kitchen or 
Dining Car
    The section prohibits the presence of food and beverages in toilet 
rooms and toxic material areas, imposes requirements applicable when a 
central dining operation is provided, and requires that food service 
facilities and operations will operate hygienically. The limitations of 
paragraphs (c) and (d) do not apply to food service from nearby 
restaurants that are subject to State law.
Section 228. 327 Sewage and Waste Collection and Disposal
    This section addresses the necessity of wastes being disposed to 
ensure a sanitary environment. Timely removal of all kinds of waste is 
mandated by Sec.  228.329(a). Camp cars must be equipped with a method 
to dispose of sewage according to Sec.  228.329(b). Appropriate waste 
containers for both general waste and food waste are required by Sec.  
228.329(c) and (d), respectively.
Section 228.329 Housekeeping
    This section requires that each camp car be kept as clean as is 
practicable given the type of work performed by the occupants of the 
car. Railroads and camp car occupants share the obligation to keep the 
camp car facilities clean and in good care, meaning that railroads are 
responsible for the regular and thorough cleaning of all camp car 
facilities, and that camp car occupants should use good housekeeping 
practices. The section also requires elimination of splinters, 
unnecessary holes, and other conditions or features that impede 
cleaning.
Section 228.331 First Aid and Life Safety
    This section requires a first aid kit in each camp car with 
specified contents. This list is based on the requirements for first 
aid kits in passenger trains set forth in FRA's regulations on 
passenger train emergency preparedness at 49 CFR 239.101(a)(6). 
Railroads should add items to the first-aid kit as conditions warrant, 
for example, increasing the minimum number of bandages for a larger 
crew than normal or providing additional items if the occupants of the 
camp car regularly deal with hazardous material. Additional items that 
railroads may consider providing include ammonia inhalants, aspirin, 
and a splint.
    Each occupied sleeping room in a camp car must be equipped with a 
functional smoke alarm and carbon monoxide alarm or a combination 
device that incorporates both types of alarms, and there must be a 
functional fire extinguisher in each sleeping room of the camp car. The 
fire extinguisher must be ``Type ABC,'' a classification put forth by 
National Fire Protection Association and widely used. In addition, each 
camp car consist must have an emergency preparedness plan prominently 
displayed.
Section 228.333 Remedial Action
    As a reflection of FRA's enforcement policy, the section gives a 
limited amount of time for a railroad to take action after receiving 
specified notice to repair a camp car that does not comply with these 
regulations. The section also requires that a railroad provide 
alternate accommodations when a camp car does not provide the essential 
services such as proper cooling or heating. In addition, if a camp car 
is noncompliant with the requirements of this subpart, and the railroad 
otherwise would have provided meals for occupants, it must provide for 
alternate arrangement for meals.
Section 228.335 Electronic Recordkeeping
    This section provides for electronic recordkeeping of records 
required by this subpart.

Appendix A and Appendix C of Part 228

    Finally, conforming changes are being made to appendix A to part 
228, and appendix C to part 228 is being removed. Appendix A is revised 
(FRA's statement of agency policy and interpretation of the hours of 
service laws) by removing the paragraph discussing the 1990 Guidelines, 
codified in appendix C to part 228, and the rationale for establishing 
those guidelines because appendix C is eliminated and superseded by new 
49 CFR part 228, subparts C and E. Appendix C is removed to reflect 
that the guidelines with respect to camp cars are being revised and 
converted into regulations at 49 CFR part 228, subparts C and E, which 
become effective upon the compliance date.

III. Regulatory Impact and Notices

A. Executive Orders 12866 and 13563 and DOT Regulatory Policies and 
Procedures

    This rule has been evaluated in accordance with existing policies 
and procedures under Executive Orders 12866 and 13563 as well as and 
DOT policies and procedures and determined to be non-significant. FRA 
has prepared and placed in the docket a regulatory evaluation 
addressing the economic impact of this final rule. Document inspection 
and copying facilities are available at U.S. Department of 
Transportation, Docket Operations, West Building Ground Floor, Room 
W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590. Docket 
material is also available for inspection on the Internet at http://www.regulations.gov. Photocopies may also be obtained by submitting a 
written request to the FRA Docket Clerk at the Office of Chief Counsel, 
RCC-10, Mail Stop 10, Federal Railroad Administration, 1200 New Jersey 
Avenue, SE., Washington, DC 20590; please refer to Docket No. FRA-2009-
0042, Notice No. 2.
    To carry out a 2008 Congressional rulemaking mandate, FRA is 
creating a new Subpart E to title 49 Code of Federal Regulations (CFR) 
part 228. The new subpart prescribes minimum safety and health 
requirements for camp cars that railroads provide as sleeping quarters 
to train employees, signal employees, dispatching service employees, 
and individuals employed to maintain its right-of-way. The new 
regulation supplants existing guidelines that interpret previously 
enacted statutory requirements. The previous guidelines required 
railroad-provided camp cars to be clean, safe, and sanitary; and afford 
those employees and individuals an opportunity for rest--free from the 
interruptions caused by noise under the control of the railroad. In 
further response to the congressional mandate, the regulations include 
the additional statutory requirements that camp cars provide indoor 
toilets, potable water, and other features to protect the health of 
such workers.
    Under separate but related statutory authority, FRA is amending 
subpart C to 49 CFR part 228, Construction of Employee Sleeping 
Quarters. In accordance with the RSIA, FRA applies the location 
restrictions to include camp cars occupied exclusively for individuals 
employed to maintain the right-of-way.

[[Page 67084]]

    Finally, FRA is making conforming changes to part 228, clarifying 
its provision on applicability, removing an existing provision on the 
preemptive effect of part 228 as unnecessary; and moving, without 
changing, an existing provision on penalties for violation of part 228 
from subpart B to subpart A.
    FRA estimates costs and benefits for the final rule. In this case, 
only one railroad will be affected, NS. Since NS has already taken 
action to address the safety and health issues in an acceptable manner, 
this final rule will add only minimal costs. Some new requirements that 
will add costs are certification of the potable water source, lab tests 
when necessary, draining and flushing of the water system, and carbon 
monoxide detectors. As described in the regulatory evaluation, FRA 
estimates the annual costs of this rule will range between $61,000 and 
$80,000. The main benefit of this rule is the assurance that current 
safety and health levels of camp cars will be maintained in the future.

B. Regulatory Flexibility Act and Executive Order 13272

    To ensure potential impacts of rules on small entities are properly 
considered, FRA developed this final rule in accordance with Executive 
Order 13272 (``Proper Consideration of Small Entities in Agency 
Rulemaking'') and DOT's procedures and policies to promote compliance 
with the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
    The Regulatory Flexibility Act requires an agency to review 
regulations to assess their impact on small entities. An agency must 
conduct a regulatory flexibility analysis unless it determines and 
certifies that a rule is not expected to have a significant impact on a 
substantial number of small entities.
    As discussed earlier, FRA has initiated this rulemaking as a 
requirement of the RSIA. FRA is promulgating new regulations in a new 
Subpart E to part 228, prescribing minimum safety and health 
requirements for camp cars that a railroad provides as sleeping 
quarters to any of its train employees, signal employees, dispatching 
service employees, and individuals employed to maintain its right-of-
way. The new regulations supplant existing guidelines that interpret 
existing statutory requirements, enacted decades earlier, that 
railroad-provided camp cars be clean, safe, sanitary, and afford those 
employees and individuals an opportunity for rest free from the 
interruptions caused by noise under the control of the railroad. In 
further response to the rulemaking mandate, the new regulations include 
the additional statutory requirements, enacted in 2008, that camp cars 
be provided with indoor toilets, potable water, and other features to 
protect the health of such workers. In developing this final rule, FRA 
coordinated with the U.S. Department of Labor, as required by the 
congressional mandate.
    Under separate but related statutory authority, FRA is amending 
subpart C to 49 CFR part 228, Construction of Employee Sleeping 
Quarters. This subpart contains FRA's longstanding regulations 
implementing the statutory provision that prohibits railroads, 
effective July 8, 1976, from beginning the construction or 
reconstruction of railroad-provided sleeping quarters for train 
employees, signal employees, and dispatching service employees in an 
area or in the immediate vicinity of an area where railroad switching 
or humping of hazardous material occurs. Previously, these regulations 
affecting the location of sleeping quarters for covered service 
employees did not apply to sleeping quarters exclusively for 
individuals employed to maintain the right-of-way of a railroad. In 
particular, FRA is implementing a 2008 statutory amendment that, on and 
after December 31, 2009, camp cars provided by a railroad as sleeping 
quarters exclusively for individuals employed to maintain the right-of-
way of a railroad are within the scope of the prohibition against 
beginning construction or reconstruction of employee sleeping quarters 
near railroad switching or humping of hazardous material. FRA's 
existing guidelines with respect to the location of a camp car that is 
occupied exclusively by individuals employed to maintain a railroad's 
right-of-way will be replaced with regulatory amendments prohibiting a 
railroad from positioning such a camp car in the immediate vicinity of 
the switching or humping of hazardous material.
    Finally, the final rule makes conforming changes to Appendix A to 
part 228 and removes Appendix C to part 228. The rule also clarifies 
its provision on applicability, removes an existing provision on the 
preemptive effect of part 228 as unnecessary, and moves, without 
change, an existing provision on penalties for violation of part 228 
from subpart B to subpart A.
    Pursuant to the Regulatory Flexibility Act (5 U.S.C. 605(b)), FRA 
certifies that this final rule would not have a significant impact on a 
substantial number of small entities.
i. Description of Regulated Entities and Impacts
    This rule applies to railroads that provide camp cars to employees 
or MOW workers as sleeping quarters, contractors and subcontractors of 
railroads. ``Small entity'' is defined in 5 U.S.C. 601 as including a 
small business concern that is independently owned and operated, and is 
not dominant in its field of operation. The U.S. Small Business 
Administration (SBA) has authority to regulate issues related to small 
businesses, and stipulates in its size standards that a small entity in 
the railroad industry is a for profit ``line-haul railroad'' that has 
fewer than 1,500 employees, a ``short line railroad'' with fewer than 
500 employees, or a ``commuter rail system'' with annual receipts of 
less than $7 million. See ``Size Eligibility Provisions and 
Standards,'' 13 CFR part 121, subpart A.
    Federal agencies may adopt their own size standards for small 
entities in consultation with SBA and in conjunction with public 
comment. Pursuant to that authority, FRA has published a final 
statement of agency policy that formally establishes small entities or 
``small businesses'' as being railroads, contractors, and hazardous 
materials shippers that meet the revenue requirements of a Class III 
railroad as set forth in 49 CFR Sec.  1201.1-1, which is $20 million or 
less in inflation-adjusted annual revenues, and commuter railroads or 
small governmental jurisdictions that serve populations of 50,000 or 
less.\2\ The $20 million limit is based on the Surface Transportation 
Board's revenue threshold for a Class III railroad carrier. Railroad 
revenue is adjusted for inflation by applying a revenue deflator 
formula in accordance with 49 CFR Sec.  1201.1-1.
---------------------------------------------------------------------------

    \2\ See 68 FR 24891, May 9, 2003, codified at Appendix C to 49 
CFR Part 209.
---------------------------------------------------------------------------

    This final rule does not affect any small entities.
Criteria for Substantial Number
    There is only one railroad that will be affected by this 
regulation. It is a Class I railroad that is not a small entity. 
Consequently, this regulation does not burden a substantial number of 
small entities.
Criteria for Significant Economic Impacts
    The factual basis for the certification that this final rule, if 
promulgated, will not have a significant economic impact on a 
substantial number of small entities is that no railroads that are 
considered small entities will be affected by the regulation. This 
regulation does not

[[Page 67085]]

disproportionately place any small railroads that are small entities at 
a significant competitive disadvantage. There are no small railroads 
that house employees or MOW workers in camp cars.
Outreach to Small Entities
    Outreach to small entities is not necessary since the final rule 
does not affect any small entities. FRA requested comments on this 
assumption in the NPRM and received none.
ii. Certification
    Pursuant to the Regulatory Flexibility Act, 5 U.S.C. Sec.  605(b), 
the FRA Administrator certifies that the final rule will not have a 
significant economic impact on a substantial number of small entities.

C. Federalism Implications

    Executive Order 13132, ``Federalism'' (64 FR 43255 (Aug. 10, 
1999)), requires FRA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' are defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.'' Under 
Executive Order 13132, the agency may not issue a regulation with 
federalism implications that imposes substantial direct compliance 
costs and that is not required by statute, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by State and local governments, the agency consults with 
State and local governments, or the agency consults with State and 
local government officials early in the process of developing the 
regulation. Where a regulation has federalism implications and preempts 
State law, the agency seeks to consult with State and local officials 
in the process of developing the regulation.
    This final rule has been analyzed in accordance with the principles 
and criteria contained in Executive Order 13132. This rule will not 
have a substantial effect on the States or their political 
subdivisions; it will not impose any direct compliance costs on State 
and local governments; and it will not affect the relationships between 
the Federal government and the States or their political subdivisions, 
or the distribution of power and responsibilities among the various 
levels of government. FRA has also determined that this rule will not 
impose substantial direct compliance costs on State and local 
governments. Therefore, the consultation and funding requirements of 
Executive Order 13132 do not apply.
    However, this rule may have preemptive effect by operation of law 
under a provision of the former Federal Railroad Safety Act of 1970, 49 
U.S.C. 20106 (Section 20106), and case law interpreting the statutory 
predecessor of the hours of service laws at 49 U.S.C. ch. 211 (the 
Hours of Service Act). See Pub. L. 103-272. Section 20106 provides that 
States may not adopt or continue in effect any law, regulation, or 
order related to railroad safety or security that covers the subject 
matter of a regulation prescribed or order issued by the Secretary of 
Transportation (with respect to railroad safety matters) or the 
Secretary of Homeland Security (with respect to railroad security 
matters), except when the State law, regulation, or order qualifies 
under the ``local safety or security hazard'' exception to Section 
20106. The Hours of Service Act has been interpreted by the Supreme 
Court as preempting State regulation of the hours of railroad 
employees. See Hill v. State of Florida ex rel. Watson, 325 U.S. 538, 
553 (1945).
    In sum, FRA has analyzed this rule in accordance with the 
principles and criteria contained in Executive Order 13132. As 
explained above, FRA has determined that this rule has no federalism 
implications, other than the possible preemption of State laws. 
Accordingly, FRA has determined that preparation of a federalism 
summary impact statement for this rule is not required.

D. International Trade Impact Assessment

    The Trade Agreement Act of 1979 prohibits Federal agencies from 
engaging in any standards or related activities that create unnecessary 
obstacles to the foreign commerce of the United States. Legitimate 
domestic objectives, such as safety, are not considered unnecessary 
obstacles. The statute also requires consideration of international 
standards and where appropriate, that they be the basis for U.S. 
standards. This rulemaking is purely domestic in nature and is not 
expected to affect trade opportunities for U.S. firms doing business 
overseas or for foreign firms doing business in the United States.

E. Paperwork Reduction Act

    The information collection requirements in this final 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:

----------------------------------------------------------------------------------------------------------------
                                                           Total annual       Average time per     Total annual
          CFR Section            Respondent  universe       responses             response         burden hours
----------------------------------------------------------------------------------------------------------------
                                             228.323--Potable water
----------------------------------------------------------------------------------------------------------------
Water Hydrants (Inspections)..  1 Railroad............  740 inspections..  3 minutes............              37
Water Hydrants (Records)......  1 Railroad............  740 records......  2 minutes............           24.67
Inspection Records--Copy to     1 Railroad............  740 record copies  10 seconds...........            2.06
 Central Location.
Training--For Individuals to    1 Railroad............  37 trained         15 minutes...........            9.25
 Fill Potable Water Systems.                             employees.
Training Materials/Records....  1 Railroad............  1 set of training  4 hours..............               4
                                                         materials.
Certification from State/local  1 Railroad............  666 certificates.  1 hour...............             666
 Health Authority.
Certification by Laboratory...  1 Railroad............  74 certificates..  20 minutes...........           24.67
Copy of Certificate when        1 Railroad............  740 certification  10 seconds...........            2.06
 Connection Is Terminated.                               copies.
Draining, Flushing and Record.  1 Railroad............  111 records......  30 minutes...........            55.5
Occupant Reports of Taste       1 Railroad............  10 taste reports.  10 seconds...........            0.03
 Problem.
Draining/Flushing and Record,   1 Railroad............  10 records.......  30 minutes...........               5
 when Taste Report.
Lab Tests from Taste Report...  1 Railroad............  10 tests/          20 minutes...........            3.33
                                                         certificates.
Lab Report Copies.............  1 Railroad............  10 lab copies....  2 minutes............            0.33
Signage (for non-potable        1 Railroad............  740 signs........  2.5 minutes..........           30.83
 Water).
----------------------------------------------------------------------------------------------------------------

[[Page 67086]]

 
                                       228.331--First aid and life safety
----------------------------------------------------------------------------------------------------------------
Master Emergency Plan.........  1 Railroad............  1 master           1.5 hours............             1.5
                                                         emergency plan.
Master Emergency Plan Copies..  1 Railroad............  292 copies.......  3 seconds............            0.24
Emergency Plan (at each         1 Railroad............  740 modified       15 minutes...........             185
 Location).                                              plans.
Emergency Plan Copies.........  1 Railroad............  5,840 copies.....  3 seconds............            4.87
----------------------------------------------------------------------------------------------------------------
                                            228.333--Remedial actions
----------------------------------------------------------------------------------------------------------------
Oral Report of Needed Repair..  1 Railroad............  30 oral reports..  10 seconds...........           0.083
----------------------------------------------------------------------------------------------------------------
                                      Total 11,532 responses 1,056.42 hours
----------------------------------------------------------------------------------------------------------------

    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), FRA solicits comments concerning the following: whether 
these information collection requirements are necessary for the proper 
performance of the functions of FRA, including whether the information 
has practical utility; the accuracy of FRA's estimates of the burden of 
the information collection requirements; the quality, utility, and 
clarity of the information to be collected; and whether the burden of 
collection of information on those who are to respond, including 
through the use of automated collection techniques or other forms of 
information technology, may be minimized. For information or a copy of 
the paperwork package submitted to OMB, contact Mr. Robert Brogan, 
Information Clearance Officer, Office of Railroad Safety, at (202) 493-
6292, or Ms. Kimberly Toone, Office of Information Technology, at (202) 
493-6132.
    Organizations and individuals desiring to submit comments on the 
collection of information requirements should direct them to the Office 
of Management and Budget, Office of Information and Regulatory Affairs, 
725 17th St. NW., Washington, DC 20503, attn: FRA Desk Officer. 
Comments may also be sent via email to OMB at the following address: 
[email protected].
    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 is not authorized to impose a penalty on persons for violating 
information collection requirements which do not display a current OMB 
control number, if required. FRA intends to obtain current OMB control 
numbers for any new information collection requirements resulting from 
this rulemaking action prior to the effective date of the final rule. 
The OMB control number, when assigned, will be announced by separate 
notice in the Federal Register.

F. Unfunded Mandates Reform Act of 1995

    Pursuant to Section 201 of the Unfunded Mandates Reform Act of 1995 
(Pub. L. 104-4, 2 U.S.C. 1531), each Federal agency ``shall, unless 
otherwise prohibited by law, assess the effects of Federal regulatory 
actions on State, local, and tribal governments, and the private sector 
(other than to the extent that such regulations incorporate 
requirements specifically set forth in law).'' Section 202 of the Act 
(2 U.S.C. 1532) further requires that ``before promulgating any general 
notice of proposed rulemaking that is likely to result in the 
promulgation of any rule that includes any Federal mandate that may 
result in expenditure by State, local, and tribal governments, in the 
aggregate, or by the private sector, of $100,000,000 or more (adjusted 
annually for inflation) in any 1 year, and before promulgating any 
final rule for which a general notice of proposed rulemaking was 
published, the agency shall prepare a written statement'' detailing the 
effect on State, local, and tribal governments and the private sector. 
For the year 2010, this monetary amount of $100,000,000 has been 
adjusted to $140,800,000 to account for inflation. This final rule will 
not result in the expenditure of more than $140,800,000 by the public 
sector in any one year, and thus preparation of such a statement is not 
required.

G. Environmental Assessment

    FRA has evaluated this rule in accordance with its ``Procedures for 
Considering Environmental Impacts'' (FRA's Procedures) (64 FR 28545, 
May 26, 1999) as required by the National Environmental Policy Act (42 
U.S.C. 4321 et seq.), other environmental statutes, Executive Orders, 
and related regulatory requirements. FRA has determined that this rule 
is not a major FRA action (requiring the preparation of an 
environmental impact statement or environmental assessment) because it 
is categorically excluded from detailed environmental review pursuant 
to section 4(c)(20) of FRA's Procedures. See 64 FR 28547, May 26, 1999. 
Section 4(c)(20) reads as follows:

    (c) Actions categorically excluded. Certain classes of FRA 
actions have been determined to be categorically excluded from the 
requirements of these Procedures as they do not individually or 
cumulatively have a significant effect on the human environment.
* * * * *
    The following classes of FRA actions are categorically excluded:
* * * * *
    (20) Promulgation of railroad safety rules and policy statements 
that do not result in significantly increased emissions or air or 
water pollutants or noise or increased traffic congestion in any 
mode of transportation.

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

H. Energy Impact

    Executive Order 13211 requires Federal agencies to prepare a 
Statement of Energy Effects for any ``significant energy action.'' 66 
FR 28355, May 22, 2001. Under the Executive Order, a ``significant 
energy action'' is defined as any action by an agency (normally 
published in the Federal Register) that promulgates or is expected to 
lead to the promulgation of a final rule or regulation, including 
notices of inquiry, advance notices of proposed

[[Page 67087]]

rulemaking, and notices of proposed rulemaking: (1)(i) That is a 
significant regulatory action under Executive Order 12866 or any 
successor order, and (ii) is likely to have a significant adverse 
effect on the supply, distribution, or use of energy; or (2) that is 
designated by the Administrator of the Office of Information and 
Regulatory Affairs as a significant energy action. FRA has evaluated 
this rule in accordance with Executive Order 13211. FRA has determined 
that this rule is not likely to have a significant adverse effect on 
the supply, distribution, or use of energy. Consequently, FRA has 
determined that this rule is not a ``significant energy action'' within 
the meaning of Executive Order 13211.

I. Privacy Act

    FRA wishes to inform all potential commenters that anyone is able 
to search the electronic form of all comments received into any agency 
docket by the name of the individual submitting the comment (or signing 
the comment, if submitted on behalf of an association, business, labor 
union, etc.). You may review DOT's complete Privacy Act Statement in 
the Federal Register published on April 11, 2000 (65 FR 19477-78).

List of Subjects in 49 CFR Part 228

    Administrative practice and procedures, Buildings and facilities, 
Hazardous materials transportation, Noise control, Penalties, Railroad 
employees, Railroad safety, Reporting and recordkeeping requirements.

The Final Rule

    For the reasons discussed in the preamble, FRA is amending part 228 
of chapter II, subtitle B of title 49, Code of Federal Regulations as 
follows:

PART 228--HOURS OF SERVICE OF RAILROAD EMPLOYEES; RECORDKEEPING AND 
REPORTING; SLEEPING QUARTERS

0
1. The authority citation for part 228 is revised to read as follows:

    Authority:  49 U.S.C. 20103, 20107, 21101-21109; Sec. 108, Div. 
A, Public Law 110-432, 122 Stat. 4860-4866, 4893-4894; 49 U.S.C. 
21301, 21303, 21304, 21311; 28 U.S.C. 2461, note; 49 CFR 1.49; and 
49 U.S.C. 103.


0
2. The heading of part 228 is revised to read as set forth above.

0
3. Section 228.1 is amended by--
0
a. Removing the word ``employee'' from paragraph (b); and
0
b. Adding paragraph (c) to read as follows:


Sec.  228.1  Scope.

* * * * *
    (c) Establishes minimum safety and health standards for camp cars 
provided by a railroad as sleeping quarters for its employees and 
individuals employed to maintain its rights of way; and
* * * * *

0
4. Section 228.3 is revised to read as follows:


Sec.  228.3  Application and responsibility for compliance.

    (a) Except as provided in paragraph (b) of this section, subparts B 
and D of this part apply to all railroads, all contractors for 
railroads, and all subcontractors for railroads. Except as provided in 
paragraph (b) of this section, subparts C and E of this part apply only 
to all railroads.
    (b) Subparts B through E of this part do not apply to:
    (1) A railroad, a contractor for a railroad, or a subcontractor for 
a railroad that operates only on track inside an installation that is 
not part of the general railroad system of transportation (i.e., a 
plant railroad as defined in Sec.  228.5);
    (2) Tourist, scenic, historic, or excursion operations that are not 
part of the general railroad system of transportation as defined in 
Sec.  228.5, except as provided in Sec.  228.413(d)(2); or
    (3) Rapid transit operations in an urban area that are not 
connected to the general railroad system of transportation.
    (c) The application of subpart F of this part is set forth in Sec.  
228.401.

0
5. Section 228.5 is amended by adding definitions for ``Camp car,'' 
``MOW worker,'' ``Plant railroad,'' and ``Tourist, scenic, historic, or 
excursion operations that are not part of the general railroad system 
of transportation'' in alphabetical order to read as follows:


Sec.  228.5  Definitions.

* * * * *
    Camp car means a trailer and/or on-track vehicle, including an 
outfit, camp, bunk car, or modular home mounted on a flatcar, or any 
other mobile vehicle or mobile structure used to house or accommodate 
an employee or MOW worker. An office car, inspection car, specialized 
maintenance equipment, or wreck train is not included.
* * * * *
    MOW worker means an individual employed to inspect, install, 
construct, repair, or maintain track, roadbed, bridges, buildings, 
roadway facilities, roadway maintenance machines, electric traction 
systems, and right of way of a railroad.
* * * * *
    Plant railroad means a plant or installation that owns or leases a 
locomotive, uses that locomotive to switch cars throughout the plant or 
installation, and is moving goods solely for use in the facility's own 
industrial processes. The plant or installation could include track 
immediately adjacent to the plant or installation if the plant railroad 
leases the track from the general system railroad and the lease 
provides for (and actual practice entails) the exclusive use of that 
trackage by the plant railroad and the general system railroad for 
purposes of moving only cars shipped to or from the plant. A plant or 
installation that operates a locomotive to switch or move cars for 
other entities, even if solely within the confines of the plant or 
installation, rather than for its own purposes or industrial processes, 
will not be considered a plant railroad because the performance of such 
activity makes the operation part of the general railroad system of 
transportation.
* * * * *
    Tourist, scenic, historic, or excursion operations that are not 
part of the general railroad system of transportation means a tourist, 
scenic, historic, or excursion operation conducted only on track used 
exclusively for that purpose (i.e., there is no freight, intercity 
passenger, or commuter passenger railroad operation on the track).
* * * * *

0
6. Section 228.6 is added to subpart A to read as follows:


Sec.  228.6  Penalties.

    (a) Civil penalties. Any person (an entity of any type covered 
under 1 U.S.C. 1, including but not limited to the following: a 
railroad; a manager, supervisor, official, or other employee or agent 
of a railroad; any owner, manufacturer, lessor, or lessee of railroad 
equipment, track, or facilities; any independent contractor providing 
goods or services to a railroad; and any employee of such owner, 
manufacturer, lessor, lessee, or independent contractor) who violates 
any requirement of this part or causes the violation of any such 
requirement is subject to a civil penalty of at least $650 and not more 
than $25,000 per violation, except that: penalties may be assessed 
against individuals only for willful violations, and, where a grossly 
negligent violation or a pattern of repeated violations has created an 
imminent hazard of death or injury to persons, or has caused death or 
injury, a penalty not to exceed $100,000 per violation may be assessed. 
Each day a

[[Page 67088]]

violation continues shall constitute a separate offense. See appendix B 
to this part for a statement of agency civil penalty policy. Violations 
of the hours of service laws themselves (e.g., requiring an employee to 
work excessive hours or beginning construction of sleeping quarters 
subject to approval under subpart C of this part without prior 
approval) are subject to penalty under 49 U.S.C. 21303.
    (b) Criminal penalties. Any person who knowingly and willfully 
falsifies a report or record required to be kept under this part or 
otherwise knowingly and willfully violates any requirement of this part 
may be liable for criminal penalties of a fine under title 18 of the 
U.S. Code, imprisonment for up to two years, or both, in accordance 
with 49 U.S.C. 21311(a).


Sec.  228.13  [Removed and Reserved]

0
7. Section 228.13 is removed and reserved.


Sec.  228.21  [Removed and Reserved]

0
8. Section 228.21 is removed and reserved.


Sec.  228.23  [Removed and Reserved]

0
9. Section 228.23 is removed and reserved.

0
10. The heading of subpart C of part 228 is revised to read as follows:

Subpart C--Construction of Railroad-Provided Sleeping Quarters

0
11. Section 228.101 is amended by--
0
a. Revising the section heading to read as set forth below; and
0
b. In paragraph (b), by removing ``Except as determined in accordance 
with the provisions of this subpart. `The immediate vicinity' '' and 
inserting in its place, ``Except as determined in accordance with the 
provisions of this subpart, the `immediate vicinity'.''


Sec.  228.101  Distance requirement for employee sleeping quarters; 
definitions used in this subpart.

* * * * *

0
12. Section 228.102 is added to subpart C to read as follows:


Sec.  228.102  Distance requirement for camp cars provided as sleeping 
quarters exclusively to MOW workers.

    (a) The hours of service laws at 49 U.S.C. 21106(b) provide that a 
railroad that uses camp cars must comply with 49 U.S.C. 21106(a) no 
later than December 31, 2009. Accordingly, on or after December 31, 
2009, a railroad shall not begin construction or reconstruction of a 
camp car provided by the railroad as sleeping quarters exclusively for 
MOW workers within or in the immediate vicinity of any area where 
railroad switching or humping of placarded cars is performed.
    (b) This subpart includes definitions of most of the relevant terms 
(Sec.  228.101(b) and (c)), the procedures under which a railroad may 
request a determination by the Federal Railroad Administration that a 
particular proposed site for the camp car is not within the ``immediate 
vicinity'' of railroad switching or humping operations (Sec. Sec.  
228.103 and 228.105), and the basic criteria utilized in evaluating 
proposed sites. See Sec.  228.5 for definitions of other terms. For 
purposes of this Sec.  228.102, references to ``employees'' in 
Sec. Sec.  228.103 through 228.107 shall be read to include MOW 
workers.

0
13. Subpart E is added to read as follows:
Subpart E--Safety and Health Requirements for Camp Cars Provided by 
Railroads as Sleeping Quarters
Sec.
228.301 Purpose and scope.
228.303 Application and responsibility for compliance.
228.305 Compliance date.
228.307 Definitions.
228.309 Structure, emergency egress, lighting, temperature, and 
noise-level standards.
228.311 Minimum space requirements, beds, storage, and sanitary 
facilities.
228.313 Electrical system requirements.
228.315 Vermin control.
228.317 Toilets.
228.319 Lavatories.
228.321 Showering facilities.
228.323 Potable water.
228.325 Food service in a camp car or separate kitchen or dining 
facility in a camp.
228.327 Waste collection and disposal.
228.329 Housekeeping.
228.331 First aid and life safety.
228.333 Remedial action.
228.335 Electronic recordkeeping.

Subpart E--Safety and Health Requirements for Camp Cars Provided by 
Railroads as Sleeping Quarters


Sec.  228.301  Purpose and scope.

    The purpose of this subpart is to prescribe standards for the 
design, operation, and maintenance of camp cars that a railroad uses as 
sleeping quarters for its employees or MOW workers or both so as to 
protect the safety and health of those employees and MOW workers and 
give them an opportunity for rest free from the interruptions caused by 
noise under the control of the railroad, and provide indoor toilet 
facilities, potable water, and other features to protect the health and 
safety of the employees and MOW workers.


Sec.  228.303  Application and responsibility for compliance.

    (a) This subpart applies to all railroads except the following:
    (1) Railroads that operate only on track inside an installation 
that is not part of the general railroad system of transportation 
(i.e., plant railroads, as defined in Sec.  228.5);
    (2) Tourist, scenic, historic, or excursion operations that are not 
part of the general railroad system of transportation as defined in 
Sec.  228.5; or
    (3) Rapid transit operations in an urban area that are not 
connected to the general railroad system of transportation.
    (b) Although the duties imposed by this subpart are generally 
stated in terms of the duty of a railroad, each person, including a 
contractor or subcontractor for a railroad, who performs any task or 
provides camp cars covered by this subpart, shall do so in accordance 
with this subpart.


Sec.  228.305  Compliance date.

    On and after December 30, 2011, a railroad shall not provide a camp 
car for use as sleeping quarters by an employee or MOW worker unless 
the camp car complies with all requirements of this subpart.


Sec.  228.307  Definitions.

    As used in this subpart--
    dB(A) means the sound pressure level in decibels measured on the A-
weighted scale.
    Decibel (dB) means a logarithmic unit of measurement that expresses 
the magnitude of a physical quantity (usually power or intensity) 
relative to a specified reference level. For the measurement of noise 
in this subpart, the reference level for the intensity of sound 
pressure in air is 20 micropascals.
    Foot-candle means a one lumen of light density per square foot.
    HVAC means heating, ventilation, and air conditioning.
    Lavatory means a basin or similar vessel used primarily for washing 
of the hands, arms, face, and head.
    Leq(8) means the equivalent steady state sound level 
that in 8 hours would contain the same acoustic energy as the time-
varying sound level during the same time period.
    Nonwater carriage toilet means a toilet not connected to a sewer.
    Occupant means an employee or an MOW worker (both as defined in 
Sec.  228.5) whose sleeping quarters are a camp car.

[[Page 67089]]

    Ppm means parts per million.
    Potable water means water that meets the quality standards 
prescribed in the U.S. Environmental Protection Agency's National 
Primary Drinking Water Standards set forth in 40 CFR part 141.
    Potable water system means the containers, tanks, and associated 
plumbing lines and valves that hold, convey, and dispense potable water 
within a camp car.
    Toilet means a chemical toilet, a recirculating toilet, a 
combustion toilet, or a toilet that is flushed with water; however, a 
urinal is not a toilet.
    Toilet room means a room containing a toilet.
    Toxic material means a material in concentration or amount of such 
toxicity as to constitute a recognized hazard that is causing or is 
likely to cause death or serious physical harm.
    Watering means the act of filling potable water systems.


Sec.  228.309  Structure, emergency egress, lighting, temperature, and 
noise-level standards.

    (a) General. Each camp car must be constructed in a manner that 
will provide protection against the elements.
    (b) Floors. Floors must be of smooth and tight construction and 
must be kept in good repair.
    (c) Windows and other openings. (1) All camp cars must be provided 
with windows the total area of which must be not less than 10 percent 
of the floor area. At least one-half of each window designed to be 
opened must be so constructed that it can be opened for purposes of 
ventilation. Durable opaque window coverings must be provided to reduce 
the entrance of light during sleeping hours.
    (2) All exterior openings must be effectively screened with 16-mesh 
material. All screen doors must be equipped with self-closing devices.
    (d) Steps, entry ways, passageways, and corridors. All steps, entry 
ways, passageways, and corridors providing normal entry to or between 
camp cars must be constructed of durable weather-resistant material and 
properly maintained. Any broken or unsafe fixtures or components in 
need of repair must be repaired or replaced promptly.
    (e) Emergency egress. Each camp car must be constructed in a manner 
to provide adequate means of egress in an emergency situation. At a 
minimum, a means of emergency egress must be located in at least two 
places in camp car for emergency exits.
    (f) Lighting. Each habitable room in a camp car including but not 
limited to a toilet room, that is provided to an occupant must be 
provided with adequate lighting as specified below:
    (1) When occupants are present, the pathway to any exit not 
immediately accessible to occupants, such as through an interior 
corridor, shall be illuminated at all times to values of at least 1 
foot-candle measured at the floor, provided that where the pathway 
passes through a sleeping compartment, the pathway up to the 
compartment will be illuminated, but illumination is not required 
inside the sleeping compartment.
    (2) Toilet and shower rooms shall have controlled lighting that 
will illuminate the room to values of at least 10 foot-candles measured 
at the floor.
    (3) Other areas shall have controlled lighting that will illuminate 
the room area to values of at least 30 foot-candles measured at the 
floor.
    (g) Temperature. Each camp car must be provided with equipment 
capable of maintaining a temperature of at least 68 degrees Fahrenheit 
(F.) during cold weather and no greater than 75 degrees F. during hot 
weather. A temperature of at least 68 degrees F. during cold weather 
and no greater than 75 degrees F. during hot weather must be maintained 
within an occupied camp car unless the equipment is individually 
controlled by its occupant(s).
    (h) Noise control. Noise levels attributable to noise sources under 
the control of the railroad shall not exceed an Leq(8) value 
of 55 dB(A), with windows and doors closed and exclusive of noise from 
cooling, heating, and ventilating equipment, for any 480-minute period 
during which the facility is occupied.


Sec.  228.311  Minimum space requirements, beds, storage, and sanitary 
facilities.

    (a) Each camp car used for sleeping purposes must contain at least 
80 square feet of floor space for each occupant, with a maximum of four 
occupants per car. At least a 7-foot ceiling, measured at the entrance 
to the car, must be provided.
    (b) A bed, cot, or bunk for each occupant and suitable lockable 
storage facility, such as a lockable wall locker, or space for a 
lockable foot locker for each occupant's clothing and personal articles 
must be provided in every room used for sleeping purposes. Except where 
partitions are provided, such beds or similar facilities must be spaced 
not closer than 36 inches laterally (except in rail-mounted modular 
units, where the beds shall be spaced not closer than 30 inches, and 
highway trailer units, where the beds shall be spaced not closer than 
26 inches) and 30 inches end to end, and must be elevated at least 12 
inches from the floor. Multi-deck bunks, multi-deck bunk beds, and 
multi-deck similar facilities may not be used.
    (c) Unless otherwise provided by a collective bargaining agreement, 
clean linens must be provided to each occupant.
    (d) In a camp car where occupants cook, live, and sleep, a minimum 
of 120 square feet of floor space per occupants must be provided. 
Sanitary facilities must be provided for storing and preparing food. 
See also Sec.  228.325.


Sec.  228.313  Electrical system requirements.

    (a) All heating, cooking, ventilation, air conditioning, and water 
heating equipment must be installed in accordance with an industry-
recognized standard. Upon request by FRA, the railroad must identify 
the industry-recognized standard that it utilizes and establish its 
compliance with that standard.
    (b) All electrical systems installed, including external electrical 
supply connections, must be compliant with an industry-recognized 
standard. Upon request by FRA, the railroad must identify the industry-
recognized standard that it utilizes and establish its compliance with 
that standard.
    (c) Each occupied camp car shall be equipped with or serviced by a 
safe and working HVAC system.


Sec.  228.315  Vermin control.

    Camp cars shall be constructed, equipped, and maintained to prevent 
the entrance or harborage of rodents, insects, or other vermin. A 
continuing and effective extermination program shall be instituted 
where the presence of vermin is detected.


Sec.  228.317  Toilets.

    (a) Number of toilets provided. Each individual camp car that 
provides sleeping facilities must have one room with a functional 
toilet for a total of one or two occupants, and one additional room 
with a functional toilet if there are a total of three or four 
occupants.
    (b) Construction of toilet rooms. Each toilet room must occupy a 
separate compartment with a door that latches and have walls or 
partitions between fixtures sufficient to assure privacy.
    (c) Supplies and sanitation. (1) An adequate supply of toilet paper 
must be provided in each toilet room, unless provided to the occupants 
individually.
    (2) Each toilet must be kept in a clean and sanitary condition and 
cleaned regularly when the camp car is being used. In the case of a 
non-water carriage toilet facility, it must be cleaned and changed 
regularly when the camp car is being used.
    (d) Sewage disposal facilities. (1) All sanitary sewer lines and 
floor drains

[[Page 67090]]

from a camp car toilet facility must be connected to a public sewer 
where available and practical, unless the car is equipped with a 
holding tank that is emptied in a sanitary manner.
    (2) The sewage disposal method must not endanger the health of 
occupants.
    (3) For toilet facilities connected to a holding tank, the tank 
must be constructed in a manner that prevents vermin from entry and 
odors from escaping into the camp car.


Sec.  228.319  Lavatories.

    (a) Number. Each camp car that provides a sleeping facility must 
contain at least one functioning lavatory for a total of one or two 
occupants and an additional functional lavatory if there is a total of 
three or four occupants.
    (b) Water. Each lavatory must be provided with hot and cold potable 
running water. The water supplied to a lavatory must be from a potable 
water source supplied through a system maintained as required in Sec.  
228.323.
    (c) Soap. Unless otherwise provided by a collective bargaining 
agreement, hand soap or similar cleansing agents must be provided.
    (d) Means of drying. Unless otherwise provided by a collective 
bargaining agreement, individual hand towels, of cloth or paper, warm 
air blowers, or clean sections of continuous cloth toweling must be 
provided near the lavatories.


Sec.  228.321  Showering facilities.

    (a) Number. Each individual camp car that provides sleeping 
facilities must contain a minimum of one shower for a total of one or 
two occupants and an additional functional shower if the camp car 
contains a total of three or four occupants.
    (b) Floors. (1) Shower floors must be constructed of non-slippery 
materials;
    (2) Floor drains must be provided in all shower baths and shower 
rooms to remove waste water and facilitate cleaning;
    (3) All junctions of the curbing and the floor must be sealed; and
    (4) There shall be no fixed grate or other instrument on the shower 
floor significantly hindering the cleaning of the shower floor or 
drain.
    (c) Walls and partitions. The walls and partitions of a shower room 
must be smooth and impervious to the height of splash.
    (d) Water. An adequate supply of hot and cold running potable water 
must be provided for showering purposes. The water supplied to a shower 
must be from a potable water source supplied through a system 
maintained as required in Sec.  228.323.
    (e) Showering necessities. (1) Unless otherwise provided by a 
collective bargaining agreement, body soap or other appropriate 
cleansing agent convenient to the showers must be provided.
    (2) Showers must be provided with hot and cold water feeding a 
common discharge line.
    (3) Unless otherwise provided by a collective bargaining agreement, 
each occupant who uses a shower must be provided with an individual 
clean towel.


Sec.  228.323  Potable water.

    (a) General requirements. (1) Potable water shall be adequately and 
conveniently provided to all occupants of a camp car for drinking, 
personal oral hygiene, washing of person, cooking, washing of foods, 
washing of cooking or eating utensils, and washing of premises for food 
preparation or processing.
    (2) Open containers such as barrels, pails, or tanks for drinking 
water from which the water must be dipped or poured, whether or not 
they are fitted with a cover, are prohibited.
    (3) A common drinking cup and other common utensils are prohibited.
    (b) Potable water source. (1) If potable water is provided in 
bottled form, it shall be stored in a manner recommended by the 
supplier in order to prevent contamination in storage. Bottled water 
shall not be provided as a substitute for the hot and cold running 
potable water required to be supplied in lavatories, showers, and sinks 
under this section. Bottled water shall contain a label identifying the 
packager and the source of the water.
    (2) If potable water is drawn from a local source, the source must 
meet the drinking water standards established by the U.S. Environmental 
Protection Agency under 40 CFR part 141, National Primary Drinking 
Water Regulations.
    (3) All equipment and construction used for supplying potable water 
to a camp car water system (e.g., a hose, nozzle, or back-flow 
prevention) shall be approved by the Food and Drug Administration.
    (4) Water hydrants. Each water hydrant, hose, or nozzle used for 
supplying potable water to a camp car water system shall be inspected 
prior to use. Each such hose or nozzle used shall be cleaned and 
sanitized as part of the inspection. A signed, dated record of this 
inspection shall be kept within the camp for the period of the 
connection. When the connection is terminated, a copy of each of these 
records must be submitted promptly to a centralized location for the 
railroad and maintained for one year from the date the connection was 
terminated.
    (5) Training. Only a trained individual is permitted to fill the 
potable water systems. Each individual who fills a potable water system 
shall be trained in--
    (i) The approved method of inspecting, cleaning, and sanitizing 
hydrants, hoses, and nozzles used for filling potable water systems; 
and
    (ii) The approved procedures to prevent contamination during 
watering.
    (6) Certification. Each time that potable water is drawn from a 
different local source, the railroad shall obtain a certificate from a 
State or local health authority indicating that the water from this 
source is of a quality not less than that prescribed in 40 CFR part 
141, National Primary Drinking Water Regulations promulgated by the 
U.S. Environmental Protection Agency, or obtain such a certificate by a 
certified laboratory following testing for compliance with those 
standards. The current certification shall be kept within the camp for 
the duration of the connection. When the connection is terminated, a 
copy of each of these records must be submitted promptly to a 
centralized location for the railroad and maintained for one year from 
the date the connection was terminated.
    (c) Storage and distribution system. (1) Storage. Potable water 
shall be stored in sanitary containers that prevent external 
contaminants from entering the potable water supply. Such contaminants 
include biological agents or materials and substances that can alter 
the taste or color or are toxic.
    (2) Dispensers. Potable drinking water dispensers shall be 
designed, constructed, and serviced so that sanitary conditions are 
maintained, must be capable of being closed, and shall be equipped with 
a tap.
    (3) Distribution lines. The distribution lines must be capable of 
supplying water at sufficient operating pressures to all taps for 
normal simultaneous operation.
    (4) Flushing. Each potable water system shall be drained and 
flushed with a disinfecting solution at least once every 120 days. The 
railroad shall maintain a record of the draining and flushing of each 
separate system within the camp for the last two drain and flush 
cycles. The record shall contain the date of the work and the name(s) 
of the individual(s) performing the work. The original record shall be 
maintained with the camp. A copy of each of these records shall be sent 
to a centralized location for the railroad and maintained for one year.

[[Page 67091]]

    (i) The solution used for flushing and disinfection shall be a 100 
parts per million by volume (ppm) chlorine solution.
    (ii) The chlorine solution shall be held for one hour in all parts 
of the system to ensure disinfection.
    (iii) The chlorine solution shall be purged from the system by a 
complete refilling and draining with fresh potable water.
    (iv) The draining and flushing shall be done more frequently if an 
occupant reports a taste or health problem associated with the water, 
or following any plumbing repair.
    (5) Reported problems. Following any report of a taste problem with 
the water from a system or a health problem resulting from the water in 
a system, samples of water from each tap or dispensing location on the 
system shall be collected and sent to a laboratory approved by the U.S. 
Environmental Protection Agency for testing for heterotrophic plate 
counts, total coliform, and fecal coliform. If a single sample fails 
any of these tests, the system must be treated as follows:
    (i) Heterotrophic plate count. Drain and flush the system within 
two days, and then return it to service.
    (ii) Total coliform. Remove the system from service, drain and 
flush system, resample the system, and then return the system to 
service.
    (iii) Fecal coliform. Remove the system from service, drain and 
flush the system, resample the system, and do not return the system to 
service until a satisfactory result on the test of the samples is 
obtained from the laboratory.
    (6) Reports. All laboratory reports pertaining to the water system 
of the camp car shall be maintained with the car. Within 15 days of the 
receipt of such a laboratory report, a copy of the report shall be 
posted for a minimum of 10 calendar days at a conspicuous location 
within the camp car or cars affected for review by occupants. The 
report shall be maintained in the camp for the duration of the same 
connection. When the connection is terminated, the certification must 
be submitted promptly to a centralized location for the railroad and 
maintained for one year from the date the connection was terminated.
    (d) Signage. Any water outlet/faucet within the camp car facility 
that supplies water not from a potable source or that is from a potable 
source but supplied through a system that is not maintained as required 
in this section, the outlet/faucet must be labeled with a sign, visible 
to the user and bearing a message to the following effect: ``The water 
is not suitable for human consumption. Do not drink the water.''


Sec.  228.325  Food service in a camp car or separate kitchen or dining 
facility in a camp.

    (a) Sanitary storage. No food or beverage may be stored in a toilet 
room or in an area exposed to a toxic material.
    (b) Consumption of food or beverage on the premises. No occupant 
shall be allowed to consume a food or beverage in a toilet room or in 
any area exposed to a toxic material.
    (c) Kitchens, dining halls, and feeding facilities. (1) In each 
camp car where central dining operations are provided by the railroad 
or its contractor(s) or subcontractor(s), the food handling facilities 
shall be maintained in a clean and sanitary condition. See Sec.  
228.323, Potable water, generally.
    (i) All surfaces used for food preparation shall be disinfected 
after each use.
    (ii) The disinfection process shall include removal of chemical 
disinfectants that would adulterate foods prepared subsequent to 
disinfection.
    (2) All perishable food shall be stored either under refrigeration 
or in a freezer. Refrigeration and freezer facilities shall be provided 
with a means to monitor temperature to ensure proper temperatures are 
maintained. The temperature of refrigerators shall be maintained at 
40[emsp14][deg]F or below; the temperature of freezers shall be 
maintained at 0[emsp14][deg]F or below at all times.
    (3) All non-perishable food shall be stored to prevent vermin and 
insect infestation.
    (4) All food waste disposal containers shall be constructed to 
prevent vermin and insect infestation.
    (i) All food waste disposal containers used within a camp car shall 
be emptied after each meal, or at least every four hours, whichever 
period is less.
    (ii) All food waste disposal containers used outside a camp car 
shall be located to prevent offensive odors from entering the sleeping 
quarters.
    (iii) All kitchen area camp car sinks used for food washing and 
preparation and all kitchen area floor drains shall be connected to a 
public sewer where available and practicable, unless the car is 
equipped with a holding tank that is emptied in a sanitary manner. For 
kitchen area sinks and floor drains identified in this paragraph 
(c)(4)(iii) connected to a holding tank, the tank must be constructed 
in a manner that prevents vermin from entry into the tank or odors from 
escaping into any camp car.
    (iv) The sewage disposal method must not endanger the health of 
occupants.
    (5) When a separate kitchen or dining hall car is provided, there 
must be a closeable door between the living or sleeping quarters into a 
kitchen or dining hall car.
    (d) Food handling. (1) All food service facilities and operations 
for occupants of a camp car by the railroad or its contractor(s) or 
subcontractor(s) shall be carried out in accordance with sound hygienic 
principles. In all places of employment where all or part of the food 
service is provided, the food dispensed must be wholesome, free from 
spoilage, and must be processed, prepared, handled, and stored in such 
a manner as to be protected against contamination. See Sec.  228.323, 
Potable water, generally.
    (2) No person with any disease communicable through contact with 
food or a food preparation item may be employed or permitted to work in 
the preparation, cooking, serving, or other handling of food, 
foodstuffs, or a material used therein, in a kitchen or dining facility 
operated in or in connection with a camp car.
    (e) The limitations of paragraphs (c) and (d) of this section do 
not apply to food service from restaurants near the camp car consist 
that are subject to State law.


Sec.  228.327  Waste collection and disposal.

    (a) General disposal requirements. All sweepings, solid or liquid 
wastes, refuse, and garbage in a camp must be removed in such a manner 
as to avoid creating a menace to health and as often as necessary or 
appropriate to maintain a sanitary condition.
    (b) General waste receptacles. Any exterior receptacle used for 
putrescible solid or liquid waste or refuse in a camp shall be so 
constructed that it does not leak and may be thoroughly cleaned and 
maintained in a sanitary condition. Such a receptacle must be equipped 
with a solid tight-fitting cover, unless it can be maintained in a 
sanitary condition without a cover. This requirement does not prohibit 
the use of receptacles designed to permit the maintenance of a sanitary 
condition without regard to the aforementioned requirements.
    (c) Food waste disposal containers provided for the interior of 
camp cars. An adequate number of receptacles constructed of smooth, 
corrosion resistant, easily cleanable, or disposable materials, must be 
provided and used for the disposal of waste food. Receptacles must be 
provided with a solid, tight-fitting cover unless sanitary conditions 
can be maintained without use of a cover. The number, size, and 
location of such receptacles must

[[Page 67092]]

encourage their use and not result in overfilling. They must be emptied 
regularly and maintained in a clean, safe, and sanitary condition.


Sec.  228.329  Housekeeping.

    (a) A camp car must be kept clean to the extent allowed by the 
nature of the work performed by the occupants of the camp car.
    (b) To facilitate cleaning, every floor, working place, and 
passageway must be kept free from protruding nails, splinters, loose 
boards, and unnecessary holes and openings.


Sec.  228.331  First aid and life safety.

    (a) An adequate first aid kit must be maintained and made available 
for occupants of a camp car for the emergency treatment of an injured 
person.
    (b) The contents of the first aid kit shall be placed in a 
weatherproof container with individual sealed packages for each type of 
item, and shall be checked at least weekly when the camp car is 
occupied to ensure that the expended items are replaced. The first aid 
kit shall contain, at a minimum, the following:
    (1) Two small gauze pads (at least 4 x 4 inches);
    (2) Two large gauze pads (at least 8 x 10 inches);
    (3) Two adhesive bandages;
    (4) Two triangular bandages;
    (5) One package of gauge roller bandage that is at least 2 inches 
wide;
    (6) Wound cleaning agent, such as sealed moistened towelettes;
    (7) One pair of scissors;
    (8) One set of tweezers;
    (9) One roll of adhesive tape;
    (10) Two pairs of latex gloves; and
    (11) One resuscitation mask.
    (c) Each sleeping room shall be equipped with the following:
    (1) A functional portable Type ABC fire extinguisher; and
    (2) Either a functional smoke alarm and a carbon monoxide alarm, or 
a functional combined smoke-carbon-monoxide alarm.
    (d) Each camp car consist shall have an emergency preparedness plan 
prominently displayed so all occupants of the camp car consist can view 
it at their convenience. The plan shall address the following subjects 
for each location where the camp car consist is used to house railroad 
employees or MOW workers:
    (1) The means used to be aware of and notify all occupants of 
impending weather threats, including thunderstorms, tornados, 
hurricanes, floods, and other major weather-related risks;
    (2) Shelter-in-place and emergency and evacuation instructions for 
each of the specific threats identified; and
    (3) The address and telephone number of the nearest emergency 
medical facility and directions on how to get there from the camp car 
consist.


Sec.  228.333  Remedial action.

    A railroad shall, within 24 hours after receiving a good faith 
notice from a camp car occupant or an employee labor organization 
representing camp car occupants or notice from a Federal Railroad 
Administration inspector, including a certified State inspector under 
part 212 of this chapter, of noncompliance with this subpart, correct 
each non-complying condition on the camp car or cease use of the camp 
car as sleeping quarters for each occupant. In the event that such a 
condition affects the safety or health of an occupant, such as, but not 
limited to, water, cooling, heating, or eating facilities, sanitation 
issues related to food storage, food handling or sewage disposal, 
vermin or pest infestation, or electrical hazards, the railroad must 
immediately upon notice provide alternative arrangements for housing 
and providing food to the employee or MOW worker until the condition 
adverse to the safety or health of the occupant(s) is corrected.


Sec.  228.335  Electronic recordkeeping.

    (a) Each railroad shall keep records as required by Sec.  228.323 
either--
    (1) On paper forms provided by the railroad, or
    (2) By electronic means that conform with the requirements of 
subpart D of this part.
    (b) Records required to be kept shall be made available to the 
Federal Railroad Administration as provided by 49 U.S.C. 20107.


Appendix A to Part 228  [Amended]

0
14. The last paragraph of the discussion headed ``Sleeping Quarters'' 
in Appendix A to part 228 is removed.


Appendix C to Part 228  [Removed and Reserved]

0
15. Appendix C to part 228 is removed and reserved.

    Issued in Washington, DC, on October 24, 2011.
 Joseph C. Szabo,
Administrator.
[FR Doc. 2011-27818 Filed 10-28-11; 8:45 am]
BILLING CODE 4910-06-P