[Federal Register Volume 76, Number 1 (Monday, January 3, 2011)]
[Proposed Rules]
[Pages 64-78]
[FR Doc No: 2010-32924]

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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 228

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

Safety and Health Requirements Related to Camp Cars

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

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: To carry out a 2008 Congressional rulemaking mandate, FRA is
proposing to create 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 and individuals employed to maintain its
right of way. The proposed regulations would supplant existing
guidelines that interpret existing statutory requirements, enacted
decades earlier, that railroad-provided camp cars 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 rulemaking mandate, the
proposed regulations would 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.
    Under separate but related statutory authority, FRA is proposing to
amend regulations on construction of employee sleeping quarters. In
particular, FRA proposes to implement 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, 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 would 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, FRA would make conforming changes, clarify a provision on
applicability, remove an existing provision on preemptive effect as
unnecessary, and move, without change, an existing provision on
penalties for violation of FRA regulations.

DATES: (1) Written comments must be received by March 4, 2011. Comments
received after that date will be considered to the extent possible
without incurring additional delay or expense.
    (2) FRA anticipates being able to resolve this rulemaking without a
public hearing. However, if FRA receives a specific request for a
public hearing prior to March 4, 2011, one will be scheduled, and FRA
will publish a supplemental notice in the Federal Register to inform
interested parties of the date, time, and location of any such hearing.

ADDRESSES: Comments, which should be identified by Docket No. FRA-2009-
0042, may be submitted by any one of the following methods:
     Fax: 1-202-493-2251;
     Mail: U.S. Department of Transportation, Docket
Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New
Jersey Avenue, SE., Washington, DC 20590;
     Hand Delivery: U.S. Department of Transportation, Docket
Operations, West Building Ground Floor, Room W12-140, 1200 New Jersey
Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday
through Friday, except Federal holidays; or
     Electronically through the Federal eRulemaking Portal,
http://www.regulations.gov. Follow the online instructions for
submitting comments.
    Instructions: All submissions must include the agency name, docket
name, and docket number or Regulatory Identification Number (RIN) for
this rulemaking. Note that all comments received will be posted without
change to http://www.regulations.gov, including any personal
information provided. Please see the Privacy Act section of this
document.
    Docket: For access to the docket to read background documents or
comments received, go to http://www.regulations.gov at any time or to
the U.S. Department of Transportation, Docket Operations, M-30, West
Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE.,
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday,
except Federal holidays.

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_ADDRESS>or Ann M. Landis, Trial
Attorney, Office of Chief Counsel, FRA, 1200 New Jersey Avenue, SE.,
Mail Stop 10, Washington, DC 20590 (telephone:<PHONE_NUMBER>),
<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

I. Statutory, Regulatory, and Factual Background

    This proposal is being issued primarily to help satisfy the
requirements of section 420 of the Rail Safety Improvement Act of 2008
(RSIA), Public Law 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).
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).

    FRA has 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. Currently, these regulations affecting the location of sleeping
quarters for covered service employees do not apply to sleeping
quarters exclusively for individuals employed to maintain the right of
way of a railroad.
    RSIA directly requires that railroads using camp cars must ``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 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
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.
    Proposed 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 addition, FRA has consulted with officials of the only railroad
currently known to be 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 has assured
FRA that all of its camp cars comply with statutory requirements, but
its interpretation asserts that camp cars exclusively occupied by MOW
workers are not 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 hump operations. That protection
formerly only applied to train employees, signal employees, and
dispatching 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. Public Law 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.'' Public Law
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 simultaneously repealed, reenacted as
revised, and recodified as positive law primarily in 49 U.S.C.
chapter 211. Public Law 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, on July 18, 1978, 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, on July 19, 1978, FRA published regulations codified at 49
CFR part 228, subpart C (subpart C). 43 FR 31012. 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 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 the Department of Transportation 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. Public Law 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 section 420 of RSIA argues against such a strict
interpretation. That legislative history indicates that 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 Pub. L. 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.

II. Section-by-Section Analysis

Part 228

    FRA proposes to revise the name of 49 CFR part 228 to reflect all
of its contents more explicitly. The current name of the part is
``HOURS OF SERVICE OF RAILROAD EMPLOYEES''. FRA proposes to rename the
part ``HOURS OF SERVICE OF RAILROAD EMPLOYEES; RECORDKEEPING AND
REPORTING; SLEEPING QUARTERS''.

Subpart A of Part 228

    FRA proposes to tailor 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).
    FRA also proposes to amend Sec.  228.3, Application. Currently,
that section, says that, in general, part 228 applies to railroads and
contractors and subcontractors of railroads. FRA proposes to revise the
section to indicate that although subparts B and D apply to railroads
and contractors and subcontractors of railroads, subparts C and E apply
only to railroads. Subpart A contains no duties that apply to any
entity; its definitions apply to terms in the part as a whole or
individual subparts. This section is being amended to clarify that both
plant railroads and tourist railroads that are not part of the general
railroad system of transportation are exempt from the requirements of
part 228.
    Finally, FRA proposes to amend 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 proposed subpart E, and
both terms refer to types of operations that have been traditionally
been excluded from FRA regulations because they are not part of the
general railroad system of transportation. There is a more extensive
explanation of this system 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 proposed subparts C
and E. ``Camp car'' would be 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. 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 would be a camp car. In addition, the phrase
``railroad employees'' is replaced with ``an employee or MOW worker.''
The term ``employee'' is defined in existing Sec.  228.5 and means a
train employee, signal employee, or dispatching service employee. The
term ``MOW worker'' would be defined as ``an individual employed to
maintain the right of way of a railroad''; the language of the
definition is based on the statutory provision at 49 U.S.C.
21106(a)(1).

Subpart B of Part 228

    FRA proposes to remove 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. chapter 211), the authority for 49 CFR
part 228, subparts C and E, as provided under case law. The hours of
service laws have 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 addition, FRA proposes to redesignate 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 proposes to redesignate Sec.
228.21, Civil penalty, and Sec.  228.23, Criminal penalty, as Sec.
228.6, Penalty.

Subpart C of Part 228

    FRA proposes to change 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 proposed
subpart would apply 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.
    In Sec.  228.101, the heading would be 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 the section
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.
Section 228.102 Distance Requirement for Camp Cars Provided by
Railroads as Sleeping Quarters Exclusively for MOW Workers
    In new Sec.  228.102, FRA proposes to restate 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 or those 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 the new proposed section 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) for MOW workers
in or within the distance

specified in the regulations at 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. The proposed section notes
that references to ``employees'' in the sections on procedures on
Sec. Sec.  228.103-228.107 must be read to include MOW workers if read
in conjunction with the proposed section.

Subpart E of Part 228

    FRA proposes to add new subpart E entitled, ``Safety and Health
Requirements for Camp Cars Provided by Railroads as Sleeping
Quarters.''
Section 228.301 Purpose and scope
    This proposed 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 * * *.

As previously discussed, FRA does not currently have regulations
addressing safety and health requirements for camp cars, but instead
has published guidelines that interpret pre-RSIA statutory
requirements. 49 CFR part 228, appendix C. The regulations proposed in
this NPRM would update and supplant the outdated guidelines consistent
with RSIA's requirements.
Section 228.303 Application and Responsibility for Compliance
    This proposed section defines the railroads that would be covered
by the proposed new subpart. All railroads would be 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. FRA lacks statutory jurisdiction over
urban rapid transit operations not connected to the general system. See
49 U.S.C. 20102, 20103.
    In addition, proposed paragraph (b) explains that even though the
subpart 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 to ensure that the food service
is safe and sanitary. FRA will hold the railroad liable for its
contractor's or subcontractor's failing to fulfill the requirements of
this proposed subpart.
Section 228.305 Compliance Date
    This proposed 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.
Section 228.307 Definitions
    This proposed section defines key terms used in proposed subpart E.
The definitions are set forth alphabetically. FRA intends these
definitions to clarify the meaning of terms as they are used in the
text of the proposed subpart. 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.
Section 228.309 Structure, Emergency Egress, Lighting, Temperature, and
Noise-Level Standards
    This proposed section sets forth a series of requirements for camp
cars provided by a railroad as sleeping quarters to employees and MOW
workers. 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) that FRA intends to
establish is based on the longstanding interpretation of the 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 and
a maximum temperature during hot weather. FRA invites comment on
whether the temperatures currently specified should be changed. Fourth,
the section requires that camp cars provide an adequate means of egress
in the event of an emergency situation. There must be an exit at both
ends of the camp car so that occupants may pass through each end frame.
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.
Section 228.311 Minimum Space Requirements
    This proposed section requires that, to prevent overcrowding, the
camp car's occupants have at least 50 square feet each; in a facility
where occupants cook, live, and sleep, a minimum of 90 square feet per
occupant must be provided. The proposed section also requires certain
types of furniture.
Section 228.313 Electrical System Requirements
    This proposed section sets forth requirements regarding the safety
of heating, cooking, ventilation, air conditioning, and water heating
equipment. These systems must be installed in accordance with all
applicable provisions of the 2008 version of the National Electrical
Code. In addition, all electrical systems installed must be compliant
with that code.
    This section of the proposed 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, American Society of
Heating, Refrigerating, and Air-Conditioning Engineers, and the
American National Standards Institute. FRA is requesting comments on an
appropriate standard to use for this provision as well as the
practicability of FRA's attempting to enforce such standards. Please
note that under 49 U.S.C. 20116, the date of adoption of a non-Federal
standard incorporated by reference in a rail safety rule must be stated
in the rule in order for the standard to become effective.
Section 228.315 Vermin Control
    This proposed section sets forth requirements related to the
prevention and resolution of vermin infestations.
Section 228.317 Toilets
    This proposed 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 proposed section
requires that there be at least two toilet rooms located within a camp
car that has sleeping facilities. Additionally, if a camp car is
lodging more than 10 occupants, then an additional toilet room must be
provided within the camp car for each group of one to five occupants in
excess of the 10. For example, if there are 12 occupants lodged in a
camp car, there must be a total of three toilet rooms in the camp car
(two for the first ten occupants and one for the additional two
occupants). 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 be sufficient to assure privacy. Certain construction and
cleanliness standards are also included in this section.
Section 228.319 Lavatories
    This proposed section requires every camp car that provides a
sleeping facility to have a basin with running water, soap, and hand-
drying equipment or towels. It also requires at least two basins per
car with sleeping facilities. If the running water available through a
basin is not potable, a sign to that effect must be posted nearby.
Section 228.321 Showering Facilities
    The proposed section mandates a minimum number of showers,
construction requirements for the showers, and the provision of
showering supplies. If the running water available through a shower is
not potable, a sign to that effect must be posted nearby.
Section 228.323 Potable Water
    This proposed section sets forth requirements to ensure that the
water provided to the occupants of camp cars is safe. Potable water may
be provided either as bottled water or as supplied through a plumbing
system. Water uses such as personal oral hygiene, drinking, food
washing, preparation, cooking, cleaning of the cooking utensils,
cooking surfaces, and eating surfaces, etc. all require the use of
potable water. 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 needs to be maintained. To ensure that this
is done, FRA intends to establish requirements to facilitate this
objective.
    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 49 CFR part 141, National Primary Drinking
Water Regulations. The railroad must obtain a certificate indicating
this fact, which must be kept with the camp car for the duration of the
connection, after which is must be sent to a centralized location, such
as the railroad's system headquarters. This location should be the
depository for all water certification records for the railroad.
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 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 must be
recorded. Those records must be kept within the camp for the duration
of the connection and then sent to a centralized location. The section
sets forth procedures to follow in the instance of 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 proposed section prohibits the presence of food and beverages
in toilet rooms and toxic materials areas, imposes requirements
applicable when a central dining operation is provided, and ensures
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 proposed section addresses the necessity of wastes being
disposed to ensure a sanitary environment. Timely removal of all kinds
of waste is mandated by proposed Sec.  228.329(a). Camp cars must be
equipped with a method to dispose of sewage according to proposed Sec.
228.329(b). Appropriate waste containers for both general waste and
food waste are required by proposed Sec.  228.329(c) and (d),
respectively.
Section 228.329 Housekeeping
    This proposed 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. The section also requires elimination of splinters,
unnecessary holes, and other conditions or features that impede
cleaning.
Section 228.331 First Aid
    This proposed 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), but
adds a requirement of two elastic wraps. 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 railroads may consider providing
include ammonia inhalants and a splint.
Section 228.333 Repairs
    The proposed section gives a limited amount of time for a railroad,
after receiving notice from FRA 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. 49 CFR
part 228, app. A and C. FRA is considering specifying exactly how
quickly a railroad must provide alternative accommodations for
occupants when a camp car lacks

essential services and invites comment on this issue.
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, the proposal would make conforming changes to appendix A
to part 228 and remove appendix C to part 228. The proposal would
revise appendix A (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 would be
eliminated and superseded by new 49 CFR part 228, subpart E. The
proposal would also remove appendix C to reflect that the guidelines
with respect to camp cars would be revised and converted into
regulations at 49 CFR part 228, subpart E, which would become effective
upon the date that compliance with the regulations is first required.

III. Regulatory Impact and Notices

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

    This rule has been evaluated in accordance with existing policies
and procedures, and determined to be non-significant under both
Executive Order 12866 and DOT policies and procedures. 44 FR 11034,
February 26, 1979. FRA has prepared and placed in the docket a
regulatory evaluation addressing the economic impact of this proposed
rulemaking. 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.
    To carry out a 2008 Congressional rulemaking mandate, FRA is
proposing to create a new subpart of part 228, subpart E, which would
prescribe 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 and individuals
employed to maintain its right of way. The proposed regulations would
supplant existing FRA guidelines that interpret existing statutory
requirements, enacted decades earlier, that railroad-provided camp cars
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
rulemaking mandate, the proposed regulations would 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.
    Under separate but related statutory authority, FRA is proposing to
amend subpart C of 49 CFR part 228, ``Construction of Employee Sleeping
Quarters.'' In accordance with the RSIA, FRA applies the location
restrictions applicable to employee occupied camp cars to railroad camp
cars occupied solely by MOW workers.
    Finally, the proposal would make conforming changes to appendix A
to part 228 and remove part appendix C to part 228. The proposal would
also clarify its provision on applicability, remove an existing
provision on the preemptive effect of part 228 as unnecessary, and
move, without change, an existing provision on penalties for violation
of part 228 from subpart B to subpart A.
    FRA estimates costs and benefits for the proposed rule. In this
case, only one railroad would be affected, NS. NS has asserted and FRA
assumes that they are in compliance due to statutory mandate or
voluntary compliance with the 1990 guidelines. FRA expects NS's costs
of complying with this proposed rule to be nominal and limited to such
requirements as the installation of non-potable water signage and
first-aid kit items. Consequently, NS is already experiencing the
benefits that would flow from this NPRM. Any increase in realized
benefits would be small. The main benefit of this proposed rule is the
assurance it will provide that the health and safety benefits reaped by
NS's upgrades will remain in place. FRA is confident that the benefits
will more than justify incurring the nominal costs associated with
implementation of the proposed rule. FRA is requesting comments on all
aspects of this economic analysis, including its underlying
assumptions.

B. Regulatory Flexibility Act and Executive Order 13272

    The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) and
Executive Order 13272 (67 FR 53461; August 16, 2002) require agency
review of proposed and final rules to assess their impact on small
entities. 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. Pursuant to the Regulatory
Flexibility Act of 1980, 5 U.S.C. 605(b), the FRA Administrator
certifies that this proposed rule will not have a significant economic
impact on a substantial number of small entities. No small railroads
will be affected by the rule. FRA has prepared and placed in the docket
this certification. FRA requests comments on this certification as well
as all other aspects of this NPRM.
    ``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 seven million dollars. See ``Size
Eligibility Provisions and Standards,'' 13 CFR part 121, subpart A.
Additionally, 5 U.S.C 601(5) defines as ``small entities'' governments
of cities, counties, towns, townships, villages, school districts, or
special districts with populations less than 50,000. Federal agencies
use a different standard 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
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. See 68 FR 24891, May 9, 2003,
codified at Appendix C to 49 CFR part 209. 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 1201.1-1. FRA is using this definition for this
rulemaking.
    The factual basis for the certification that this final rule will
not have a significant economic impact on a substantial number of small
entities is that no small entities are affected. This proposed rule
would affect only one railroad, the Norfolk Southern Railway, which is
a Class I railroad with revenues far exceeding inflation-adjusted $20
million. Accordingly, FRA does not consider this impact to be
significant. Nor does FRA anticipate that this regulation would result
in long-term or short-term insolvency for any small railroad.

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 NPRM has been analyzed in accordance with the principles and
criteria contained in Executive Order 13132. This proposed rule would
not have a substantial effect on the States or their political
subdivisions; it would not impose any direct compliance costs on State
and local governments; and it would 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
proposed rule would 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 proposed rule could 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. chapter 211 (the Hours of Service Act). See Public Law 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 proposed rule in accordance with the
principles and criteria contained in Executive Order 13132. As
explained above, FRA has determined that this proposed 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 proposed 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 proposed rule have
been submitted for approval to the Office of Management and Budget
(OMB) under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq.
The sections that contain the new information collection requirements
and the estimated time to fulfill each requirement are as follows:

----------------------------------------------------------------------------------------------------------------
                                      Respondent         Total annual      Average time per      Total annual
           CFR Section                 universe            responses           response          burden hours
----------------------------------------------------------------------------------------------------------------
228.319--Lavatories--Signs--Non-  1 Railroad........  600 signs.........  2.5 minutes.......  25 hours.
 use for Consumption of Non-
 potable water.
228.321--Showering Facilities--   1 Railroad........  300 signs.........  2.5 minutes.......  13 hours.
 Signs--Non-use for Consumption
 of Non-potable water.
228.323--Potable Water:
    --Water Hydrants--            1 Railroad........  370 inspections/    5 minutes.........  31 hours.
     Inspections/Records for                           records.
     Water Hydrants, Hoses,
     Nozzles Used for Supplying
     Potable Water.
    --Inspection Records--Copy    1 Railroad........  370 copies........  10 seconds........  1 hour.
     to Centralized Location
     When Connection Terminated.
    Training--For Individuals     1 Railroad........  37 trained          15 minutes........  9 hours.
     Permitted to Fill Potable                         employees.
     Water Systems.
    --Certification by            1 Railroad........  370 certificates..  16 hours..........  5,920 hours.
     Laboratory for Potable
     Water Drawn from a
     Different Source.
    --Copy of Certificate to      1 Railroad........  370 copies........  10 seconds........  1 hour.
     Centralized Location When
     Connection Terminated.

    --Flushing--Record for Each   1 Railroad........  584 records.......  2 hours...........  1,168 hours.
     Potable Water System
     Drained and Flushed with
     Disinfectant Every 120 days.
    --Occupant Reports of Taste   1 Railroad........  10 oral reports...  10 seconds........  .028 hour.
     Problem.
    --Draining/Flushing and       1 Railroad........  10 records + 10     2 hours + 16 hours  180 hours.
     Required Record Resulting                         tests/certif.
     from Occupant Taste Reports
     Plus Necessary Lab Tests/
     Certificates.
    --Lab Report Copies.........  1 Railroad........  10 copies.........  2 minutes.........  .3333 hour.
----------------------------------------------------------------------------------------------------------------

    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: 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 Mr. Robert
Brogan or Ms. Kimberly Toone, Federal Railroad Administration, 1200 New
Jersey Avenue, SE., 3rd Floor, Washington, DC 20590. Comments may also
be submitted via e-mail to Mr. Brogan or Ms. Toone at the following
address: Robert.Brogan @dot.gov; or<EMAIL_ADDRESS>    OMB is required to make a decision concerning the collection of
information requirements contained in this proposed rule between 30 and
60 days after publication of this document in the Federal Register.
Therefore, a comment to OMB is best assured of having its full effect
if OMB receives it within 30 days of publication. The final rule will
respond to any OMB or public comments on the information collection
requirements contained in this proposal.
    FRA 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 million or more (adjusted
annually for inflation) [$140.8 million in 2010] 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. This final rule would not result in
the expenditure, in the aggregate, of $140.8 million or more in any one
year, and thus preparation of such a statement is not required.

G. Environmental Assessment

    FRA has evaluated this proposed 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 proposed 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
proposed 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 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 NPRM in accordance
with Executive Order 13211. FRA has determined that this NPRM is not
likely to have a significant adverse effect on the supply,
distribution, or use of energy. Consequently, FRA has determined that
this NPRM 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 Proposed Rule

    For the reasons discussed in the preamble, FRA proposes to amend
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

    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.

    2. The heading of part 228 is revised to read as set forth above.
    3. Section 228.1 is amended by--
    a. Removing the semicolon and the word ``and'' at the end of
paragraph (a), and adding a period in their place;
    b. Removing the word ``employee'' from paragraph (b); and
    c. Adding a new 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.
    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
A, 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) This part does 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; or
    (3) Rapid transit operations in an urban area that are not
connected to the general railroad system of transportation.
    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. A wreck train is not included.
* * * * *
    MOW worker means an individual employed to maintain the 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).
* * * * *
    6. Section 228.6 is added to subpart A to read as follows:

Sec.  228.6  Penalties.

    (a) 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 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 Act itself (e.g., requiring an employee to work
excessive hours or beginning construction of a sleeping quarters
subject to approval under subpart C of this part without prior
approval) are subject to penalty under that Act's penalty provision, 45
U.S.C. 64a.
    (b) 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 up to $5,000, imprisonment for up to two years, or
both, in accordance with 49 U.S.C. 21311(a).

Sec.  228.13  [Removed and Reserved]

    7. Section 228.13 is removed and reserved.

Sec.  228.21  [Removed and Reserved]

    8. Section 228.21 is removed and reserved.

Sec.  228.23  [Removed and Reserved]

    9. Section 228.23 is removed and reserved.
    10. The heading of subpart C of part 228 is revised to read as
follows:

Subpart C--Construction of Railroad-Provided Sleeping Quarters

    11. The heading of Sec.  228.101 is revised to read as follows:

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

* * * * *
    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)-(c)), 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-
228.107 shall be read to include MOW workers.
    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.
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 Sewage and waste collection and disposal.
228.329 Housekeeping.
228.331 First aid.
228.333 Repairs.
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 and MOW workers 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
covered by this subpart, shall perform that task in accordance with
this subpart.

Sec.  228.305  Compliance date.

    On and after [INSERT DATE 60 DAYS AFTER PUBLICATION OF THE FINAL
RULE], 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 is a railroad-provided camp car.
    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 living quarters 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 each end of the
camp car for passage through each end frame.
    (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;
    (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.
    (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.

    (a) Each camp car used for sleeping purposes must contain at least
50 square feet of floor space for each occupant. At least a 7-foot
ceiling, measured at the entrance to the car, must be provided.
    (b) A bed, cot, or bunk and suitable storage facility such as a
wall locker or space for a foot locker for 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 modular
units, which shall be spaced not closer than 30 inches) and 30 inches
end to end, and must be elevated at least 12 inches from the floor. If
double-deck bunks are used, they must be spaced not less than 48 inches
both laterally and end to end. The minimum clear space between the
lower and upper bunk must be not less than 27 inches. Triple-deck bunks
may not be used.
    (c) In a facility where occupants cook, live, and sleep, a minimum
of 90 square feet of floor space per occupants must be provided.
Sanitary facilities must be provided for storing and preparing food.

Sec.  228.313  Electrical system requirements.

    (a) The National Electrical Code to which paragraphs (b) and (c) of
this section refer is the 2008 version, approved by the National Fire
Protection Association (NFPA) Standards Council on July 26, 2007 with
an effective date of August 15, 2007.
    (b) All heating, cooking, ventilation, air conditioning, and water
heating equipment must be installed in accordance with the National
Electrical Code governing such installations.
    (c) All electrical systems installed must be compliant with the
National Electrical Code, including external electrical supply
connections.
    (d) 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. (1) For each individual camp car
that provides sleeping facilities, a minimum of two toilet rooms within
the car is required. If a camp car has more than 10 occupants, an
additional toilet room within the car for each additional group of one
to five occupants is required.
    (2) A toilet rooms must be equipped with at least one functional
toilet to count toward the minimum requirements of this section.
    (b) Construction of toilet rooms. Each toilet room must occupy a
separate compartment with a door that latches and 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 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 two functioning lavatories.
    (b) Water. Each lavatory must be provided with either hot and cold
running water or tepid running water. If the water supplied to a
lavatory is not from a potable source or not supplied through a system
maintained as required in Sec.  228.323, the lavatory area must contain
a sign, visible to the user when the lavatory is being used, bearing a
message to the following effect: ``The water is not suitable for human
consumption. Do not drink the water.''
    (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. For each individual camp car that provides sleeping
facilities, a minimum of two showers within the car is required. If a
camp car has more than 10 occupants, an additional shower within the
car for each additional group of one to five occupants is required.
    (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 water must be
provided for showering purposes.
    (e) Signage. If the water supplied to the showers is not from a
potable source or is from a potable source but supplied through a
system that is not maintained as required in Sec.  228.323, the shower
area must contain a sign, visible to the user when the shower is being
used, bearing a message to the following effect: ``The water is not
suitable for human consumption. Do not drink the water.''
    (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, 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 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 the 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.
    (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.

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[deg] Fahrenheit or below; the temperature of freezers shall be
maintained at 0[deg] Fahrenheit 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.
    (5) When 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.

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 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.

    (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 4x4 inches);
    (2) Two large gauze pads (at least 8x10 inches);
    (3) Two adhesive bandages;
    (4) Two triangular bandages;
    (5) One package of gauge roller bandage that is at least two inches
wide;
    (6) Wound cleaning agent, such as sealed moistened towelettes;
    (7) Two elastic wraps;
    (8) Five antibiotic ointment packages;
    (9) Two packets of aspirin;
    (10) Two hydrocortisone ointment packets;
    (11) One pair of scissors;
    (12) One set of tweezers;
    (13) One roll of adhesive tape;
    (14) Two pairs of latex gloves;
    (15) One resuscitation mask; and
    (16) One first aid instruction booklet.

Sec.  228.333  Repairs.

    A railroad shall, within 72 hours after 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 water,
cooling, heating, or eating facilities, 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 in accordance with Sec.
228.323 pertaining to its compliance with this subpart. Records may be
kept either on paper forms provided by the railroad or by electronic
means in a manner that conforms with Sec.  228.323.
    (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]

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

Appendix C to Part 228 [Removed]

    15. Appendix C to part 228 is removed.

    Issued in Washington, DC, on December 23, 2010.
Jo Strang,
Associate Administrator for Railroad Safety/Chief Safety Officer,
Federal Railroad Administration.
[FR Doc. 2010-32924 Filed 12-30-10; 8:45 am]
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