[Federal Register Volume 76, Number 210 (Monday, October 31, 2011)]
[Rules and Regulations]
[Pages 67073-67092]
[FR Doc No: 2011-27818]

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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 228

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

Safety and Health Requirements Related to Camp Cars

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

ACTION: Final rule.

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

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

FOR FURTHER INFORMATION CONTACT: Alan Misiaszek, Certified Industrial
Hygienist, Staff Director, Industrial Hygiene Division, Office of
Safety Assurance and Compliance, Office of Railroad Safety, FRA, 1200
New Jersey Avenue SE., Mail Stop 25, Washington, DC 20590 (telephone:
(202) 493-6002<EMAIL_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. Background Information

A. Statutory, Regulatory, and Factual Background

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

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

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

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

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

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

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

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

55 FR 30892, 30893, July 27, 1990.

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

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

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

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

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

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

B. Comments on the NPRM

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

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

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

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

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

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

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

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

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

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

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

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

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

II. Section-by-Section Analysis

Part 228

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

Subpart A of Part 228

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

Subpart B of Part 228

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

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

Subpart C of Part 228

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

Subpart E of Part 228

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

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

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

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

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

Appendix A and Appendix C of Part 228

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

III. Regulatory Impact and Notices

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

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

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

B. Regulatory Flexibility Act and Executive Order 13272

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

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

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

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

C. Federalism Implications

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

D. International Trade Impact Assessment

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

E. Paperwork Reduction Act

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

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

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

    All estimates include the time for reviewing instructions;
searching existing data sources; gathering or maintaining the needed
data; and reviewing the information. Pursuant to 44 U.S.C.
3506(c)(2)(B), FRA solicits comments concerning the following: whether
these information collection requirements are necessary for the proper
performance of the functions of FRA, including whether the information
has practical utility; the accuracy of FRA's estimates of the burden of
the information collection requirements; the quality, utility, and
clarity of the information to be collected; and whether the burden of
collection of information on those who are to respond, including
through the use of automated collection techniques or other forms of
information technology, may be minimized. For information or a copy of
the paperwork package submitted to OMB, contact Mr. Robert Brogan,
Information Clearance Officer, Office of Railroad Safety, at (202) 493-
6292, or Ms. Kimberly Toone, Office of Information Technology, at (202)
493-6132.
    Organizations and individuals desiring to submit comments on the
collection of information requirements should direct them to the Office
of Management and Budget, Office of Information and Regulatory Affairs,
725 17th St. NW., Washington, DC 20503, attn: FRA Desk Officer.
Comments may also be sent via email to OMB at the following address:
<EMAIL_ADDRESS>    OMB is required to make a decision concerning the collection of
information requirements contained in this final rule between 30 and 60
days after publication of this document in the Federal Register.
Therefore, a comment to OMB is best assured of having its full effect
if OMB receives it within 30 days of publication.
    FRA is not authorized to impose a penalty on persons for violating
information collection requirements which do not display a current OMB
control number, if required. FRA intends to obtain current OMB control
numbers for any new information collection requirements resulting from
this rulemaking action prior to the effective date of the final rule.
The OMB control number, when assigned, will be announced by separate
notice in the Federal Register.

F. Unfunded Mandates Reform Act of 1995

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

G. Environmental Assessment

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

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

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

H. Energy Impact

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

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

I. Privacy Act

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

List of Subjects in 49 CFR Part 228

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

The Final Rule

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

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

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

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

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

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

Sec.  228.1  Scope.

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

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

Sec.  228.3  Application and responsibility for compliance.

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

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

Sec.  228.5  Definitions.

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

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

Sec.  228.6  Penalties.

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

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

Sec.  228.13  [Removed and Reserved]

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7. Section 228.13 is removed and reserved.

Sec.  228.21  [Removed and Reserved]

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8. Section 228.21 is removed and reserved.

Sec.  228.23  [Removed and Reserved]

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9. Section 228.23 is removed and reserved.

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

Subpart C--Construction of Railroad-Provided Sleeping Quarters

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

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

* * * * *

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

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

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

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

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

Sec.  228.301  Purpose and scope.

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

Sec.  228.303  Application and responsibility for compliance.

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

Sec.  228.305  Compliance date.

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

Sec.  228.307  Definitions.

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

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

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

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

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

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

Sec.  228.313  Electrical system requirements.

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

Sec.  228.315  Vermin control.

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

Sec.  228.317  Toilets.

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

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

Sec.  228.319  Lavatories.

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

Sec.  228.321  Showering facilities.

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

Sec.  228.323  Potable water.

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

    (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.