Safety and Health Requirements Related to Camp Cars, 64-78 [2010-32924]

Agencies

• Federal Railroad Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 76, Number 1 (Monday, January 3, 2011)]
[Proposed Rules]
[Pages 64-78]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-32924]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 228

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


Safety and Health Requirements Related to Camp Cars

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

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: To carry out a 2008 Congressional rulemaking mandate, FRA is 
proposing to create regulations prescribing minimum safety and health 
requirements for camp cars that a railroad provides as sleeping 
quarters to any of its train employees, signal employees, and 
dispatching service employees and individuals employed to maintain its 
right of way. The proposed regulations would supplant existing 
guidelines that interpret existing statutory requirements, enacted 
decades earlier, that railroad-provided camp cars be clean, safe, and 
sanitary, and afford those employees and individuals an opportunity for 
rest free from the interruptions caused by noise under the control of 
the railroad. In further response to the rulemaking mandate, the 
proposed regulations would include the additional statutory 
requirements, enacted in 2008, that camp cars be provided with indoor 
toilets, potable water, and other features to protect the health of 
such workers.
    Under separate but related statutory authority, FRA is proposing to 
amend regulations on construction of employee sleeping quarters. In 
particular, FRA proposes to implement a 2008 statutory amendment that, 
on and after December 31, 2009, camp cars provided by a railroad as 
sleeping quarters exclusively for individuals employed to maintain the 
right of way of a railroad are within the scope of the prohibition 
against beginning construction or reconstruction of employee sleeping 
quarters near railroad switching or humping of hazardous material. 
FRA's existing guidelines with respect to the location, in relation to 
switching or humping of hazardous material, of a camp car that is 
occupied exclusively by individuals employed to maintain a railroad's 
right of way would be replaced with regulatory amendments prohibiting a 
railroad from positioning such a camp car in the immediate vicinity of 
the switching or humping of hazardous material.
    Finally, FRA would make conforming changes, clarify a provision on 
applicability, remove an existing provision on preemptive effect as 
unnecessary, and move, without change, an existing provision on 
penalties for violation of FRA regulations.

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

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

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

SUPPLEMENTARY INFORMATION:

I. Statutory, Regulatory, and Factual Background

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

clean, safe, and sanitary, give those employees and individuals an 
opportunity for rest free from the interruptions caused by

[[Page 65]]

noise under the control of the carrier, and provide indoor toilet 
facilities, potable water, and other features to protect the health 
of employees.

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

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

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

43 FR 31009.

    Subpart C defines key terms in section 2(a)(4) of the Hours of 
Service Act, permits railroads to request a determination by FRA that a 
particular proposed site is not within the ``immediate vicinity,'' and 
states the criteria by which FRA will make the determination. See 49 
CFR 228.101(a). FRA approval is necessary before a railroad may begin 
the ``construction or reconstruction'' of sleeping quarters for 
employees within the distance of switching or humping operations 
specified in the regulations. 49 CFR 228.101. The distance triggering 
the need for approval is one-half mile ``as measured from the nearest 
rail of the nearest trackage where switching or humping operations are 
performed to the point on the site where the carrier proposes to 
construct or reconstruct the exterior wall of the structure, or portion 
of such wall, which is closest to such operations.'' 49 CFR 228.101(b). 
``Switching or humping operations'' is defined to include ``the 
classification of placarded railroad cars according to commodity or 
destination, assembling

[[Page 66]]

of placarded cars for train movements, * * * .'' 49 CFR 228.101(c)(3). 
``Placarded car'' is defined to mean ``a railroad car required to be 
placarded by the Department of Transportation hazardous materials 
regulations (49 CFR 172.504).'' 49 CFR 228.101(c)(4). ``Construction'' 
includes the ``[p]lacement of a mobile or modular facility,'' which 
includes placement of a camp car. 49 CFR 228.101(c)(1)(iii). On or 
after July 8, 1976, any railroad placing a camp car occupied by an 
employee near switching or humping operations must obtain FRA approval 
before doing so. 49 CFR 228.101(a).
    In 1988, Congress redefined ``employee'' for purpose of section 
2(a)(3) of the Hours of Service Act (now codified at 49 U.S.C. 
21106(a)(1)) so as to include MOW workers, thereby making all sleeping 
quarters provided by a railroad to MOW workers subject to the same 
statutory standard. Public Law 100-342, sec. 19(b). It should be noted, 
however, that the 1988 amendment did not make MOW workers ``employees'' 
for purposes of the ``location'' requirement at section 2(a)(4) of the 
Hours of Service Act. Consequently, a camp car occupied only by 
employees or by both employees and MOW workers is subject to subpart C, 
but a camp car occupied only by MOW workers is not subject to subpart 
C.
    To carry out the 1988 statutory amendment, FRA issued an 
interpretation in 1990 of the terms ``clean,'' ``safe,'' and 
``sanitary'' as applied to railroad-provided camp cars occupied by 
employees, MOW workers, or both based on standards established by OSHA. 
49 CFR part 228, app. C. In FRA's 1990 Guidelines, the agency noted 
that--

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

55 FR 30892, 30893, July 27, 1990.

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

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

(Emphasis added). 49 U.S.C. 21106(b). Congress could have written that 
the camp cars must be in compliance with ``subsection (a)(1),'' but it 
did not; instead Congress required compliance with subsection (a) as a 
whole, a two-paragraph provision that includes the prohibition on 
placing camp cars (and other forms of sleeping quarters) near certain 
switching or humping operations. It is a basic canon of statutory 
construction that all words of a statute should be given effect.
    To give subsection (b) meaning, with respect to requiring camp cars 
to be in compliance with the old mandate of subsection (a)(2), some act 
must be required that is possible to perform in the future, 
specifically not later than the December 31, 2009, date stated in 
subsection (b). FRA reads that extra requirement imposed by subsection 
(b) to be that camp cars exclusively occupied by MOW workers be subject 
to subsection (a)(2). With respect to subsection (a)(2), which contains 
a compliance date about 32 years before the enactment of subsection 
(a)(2), a new compliance date would be necessary in order to avoid 
creating an unconstitutional, ex post facto law, and that is what 
Congress provided with the new statutory deadline for compliance of 
December 31, 2009. FRA does not read subsection (b) as supplanting the 
July 8, 1976, effective date of the prohibition in subsection (a)(2) 
with respect to construction or reconstruction of sleeping quarters 
occupied by train employees, signal employees, or dispatching service 
employees. Rather, FRA reads the text of section 21106(b) as a direct, 
statutory requirement that railroads using camp cars as sleeping 
quarters see to it that the cars exclusively occupied by MOW workers 
comply with the statutory requirements of not only subsection (a)(1), 
but also subsection (a)(2), and to do so by December 31, 2009.
    Of course, it could be argued that Congress simply made a technical 
error in requiring that camp cars comply with all of subsection (a) and 
that it meant to say ``subsection (a)(1),'' particularly given that the 
requirement is to ``retrofit or replace'' the cars, not to ``retrofit 
or replace and position'' the cars. FRA thinks that the legislative 
history of section 420 of RSIA argues against such a strict 
interpretation. That legislative history indicates that that Congress 
invited FRA to take a new, more protective look at camp cars. The House 
precursor to section 420 of RSIA would have directly prohibited the use 
of camp cars entirely by statute, effective one year after the date of 
enactment. See section 202 of H.R. 2095 as reported by the House 
Committee on Transportation and Infrastructure in H.R. Rep. No. 110-336 
and analysis at p. 39. The Senate precursor to section 420 of RSIA 
would have authorized FRA to prohibit railroads' use of camp cars as 
sleeping quarters (i.e., by regulation or order) ``if necessary to 
protect the health and safety of the employees.'' See section 410 of S. 
1889 as reported by the Senate Committee on Commerce, Science, and 
Transportation in S. Rep. No. 110-270. Based on the plain meaning of 49 
U.S.C. 21106 and the legislative history of section 420 of RSIA, FRA 
believes its interpretation applying the location requirement of 
subsection (a)(2) to camp cars occupied exclusively by MOW workers is 
both correct and appropriate.
    To carry out this statutory interpretation, FRA is proposing an

[[Page 67]]

amendment to subpart C. The statutory authority to conduct this aspect 
of the rulemaking is FRA's authority under 49 U.S.C. 21106(a)(2) to 
prescribe regulations to implement that statutory provision, which 
reads (as revised during the 1994 recodification of the rail safety 
laws effected by Pub. L. 103-272) as follows:

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

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

II. Section-by-Section Analysis

Part 228

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

Subpart A of Part 228

    FRA proposes to tailor Sec.  228.1, Scope, to reflect the addition 
of new subpart E, Safety and Health Requirements for Camp Cars Provided 
by Railroads as Sleeping Quarters such as by adding new paragraph (c).
    FRA also proposes to amend Sec.  228.3, Application. Currently, 
that section, says that, in general, part 228 applies to railroads and 
contractors and subcontractors of railroads. FRA proposes to revise the 
section to indicate that although subparts B and D apply to railroads 
and contractors and subcontractors of railroads, subparts C and E apply 
only to railroads. Subpart A contains no duties that apply to any 
entity; its definitions apply to terms in the part as a whole or 
individual subparts. This section is being amended to clarify that both 
plant railroads and tourist railroads that are not part of the general 
railroad system of transportation are exempt from the requirements of 
part 228.
    Finally, FRA proposes to amend Sec.  228.5, Definitions, by adding 
definitions of four terms. The terms ``plant railroad'' and ``tourist, 
scenic, historic, or excursion operations that are not part of the 
general railroad system of transportation'' are used in the proposed 
``application'' provisions of subpart A and proposed subpart E, and 
both terms refer to types of operations that have been traditionally 
been excluded from FRA regulations because they are not part of the 
general railroad system of transportation. There is a more extensive 
explanation of this system in appendix A to 49 CFR part 209, and it is 
explicitly defined there as ``the network of standard gage track over 
which goods may be transported throughout the nation and passengers may 
travel between cities and within metropolitan and suburban areas.'' The 
terms ``camp car'' and ``MOW worker'' are used in proposed subparts C 
and E. ``Camp car'' would be defined as ``a trailer and/or on-track 
vehicle, including an outfit, camp, bunk car, or modular home mounted 
on a flatcar, or any other mobile vehicle or mobile structure used to 
house or accommodate an employee or MOW worker. A wreck train is not 
included.''
    The longstanding definition of ``camp car'' in the guidelines of 49 
CFR part 228, app. C is clarified by adding ``or any other mobile 
vehicle or mobile structure'' as catch-all language. For example, a 
recreational vehicle would be a camp car. In addition, the phrase 
``railroad employees'' is replaced with ``an employee or MOW worker.'' 
The term ``employee'' is defined in existing Sec.  228.5 and means a 
train employee, signal employee, or dispatching service employee. The 
term ``MOW worker'' would be defined as ``an individual employed to 
maintain the right of way of a railroad''; the language of the 
definition is based on the statutory provision at 49 U.S.C. 
21106(a)(1).

Subpart B of Part 228

    FRA proposes to remove Sec.  228.13, Preemptive effect, for two 
reasons. First, the section is unnecessary because it is duplicative of 
statutory law at 49 U.S.C. 20106 and case law. Second, the section is 
incomplete because it omits reference to the preemptive effect of the 
hours of service laws (49 U.S.C. chapter 211), the authority for 49 CFR 
part 228, subparts C and E, as provided under case law. The hours of 
service laws have been interpreted by the Supreme Court as preempting 
State regulation of the hours of railroad employees. See Hill v. State 
of Florida ex rel. Watson, 325 U.S. 538, 553 (1945).
    In addition, FRA proposes to redesignate two provisions in subpart 
B that are intended to apply to the entire part in order to move them 
to subpart A, General. In particular, FRA proposes to redesignate Sec.  
228.21, Civil penalty, and Sec.  228.23, Criminal penalty, as Sec.  
228.6, Penalty.

Subpart C of Part 228

    FRA proposes to change the heading of subpart C from ``Construction 
of Employee Sleeping Quarters'' to ``Construction of Railroad-Provided 
Sleeping Quarters.'' ``Railroad-Provided'' is added to emphasize that 
the regulations apply only to sleeping quarters that are provided by a 
railroad, and the word ``Employee'' is deleted since the proposed 
subpart would apply not only to sleeping quarters occupied by an 
employee but also to sleeping quarters in the form of a camp car that 
are provided by a railroad to an MOW worker.
    In Sec.  228.101, the heading would be changed from ``Distance 
requirement; definitions'' to ``Distance requirement for railroad-
provided employee sleeping quarters; definitions used in this 
subpart.'' This revision is intended to reflect that the section 
applies only to sleeping quarters for employees (not for MOW workers). 
That section reflects the 1976 statutory amendment discussed earlier in 
the preamble that carries a July 8, 1976, compliance date.
Section 228.102 Distance Requirement for Camp Cars Provided by 
Railroads as Sleeping Quarters Exclusively for MOW Workers
    In new Sec.  228.102, FRA proposes to restate the statutory 
language at 49 U.S.C. 21106(b) and 21106(a)(2) by saying that a 
railroad that uses camp cars must comply by December 31, 2009, with the 
prohibition in 49 U.S.C. 21106(a)(2) with respect to those camp cars 
that are provided as sleeping quarters exclusively to MOW workers. 
(Camp cars for train employees, signal employees, or dispatching 
service employees or those occupied by both covered service employees 
and MOW workers are already subject to the July 8, 1976, compliance 
date in 49 U.S.C. 21106(a)(2) and 49 CFR 228.101.) In other words, 
under the statute, starting December 31, 2009, a railroad must not 
begin construction or reconstruction of a camp car provided by the 
railroad as sleeping quarters exclusively for MOW workers within or in 
the immediate vicinity of any area where railroad switching or humping 
is performed. (Of course, compliance with the regulation itself would 
not be due until the date established in the final rule.) The key terms 
in the new proposed section are already defined in the subpart or at 
Sec.  228.5. In effect, absent FRA's special approval in accordance 
with subpart C, a railroad may not begin construction or reconstruction 
of a camp car (including the placement of a camp car) for MOW workers 
in or within the distance

[[Page 68]]

specified in the regulations at 228.101(b) (one-half mile from the 
location where such switching or humping of placarded cars takes 
place). Procedures on requesting FRA's special approval are found 
within that subpart and at 49 CFR part 211. The proposed section notes 
that references to ``employees'' in the sections on procedures on 
Sec. Sec.  228.103-228.107 must be read to include MOW workers if read 
in conjunction with the proposed section.

Subpart E of Part 228

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

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

As previously discussed, FRA does not currently have regulations 
addressing safety and health requirements for camp cars, but instead 
has published guidelines that interpret pre-RSIA statutory 
requirements. 49 CFR part 228, appendix C. The regulations proposed in 
this NPRM would update and supplant the outdated guidelines consistent 
with RSIA's requirements.
Section 228.303 Application and Responsibility for Compliance
    This proposed section defines the railroads that would be covered 
by the proposed new subpart. All railroads would be covered, with the 
exception of three types of railroad operations. The three listed 
exceptions are for operations that are not part of the general railroad 
system of transportation: (1) Railroads that operate exclusively on 
track that is not part of that system (plant railroads, as that term is 
defined in Sec.  228.5); (2) tourist, scenic, historic, or excursion 
railroads that are not part of the general railroad system of 
transportation, a term also defined in Sec.  228.5 (tourist railroads); 
and (3) rapid transit operations in an urban area that are not 
connected to the general railroad system of transportation. See 49 CFR 
part 209, app. A for a discussion of ``general railroad system of 
transportation.'' As a matter of policy, FRA almost never exercises its 
statutory jurisdiction over plant railroads and generally does not 
exercise its statutory jurisdiction over tourist railroads that operate 
only off the general system. FRA lacks statutory jurisdiction over 
urban rapid transit operations not connected to the general system. See 
49 U.S.C. 20102, 20103.
    In addition, proposed paragraph (b) explains that even though the 
subpart applies only to railroads, a railroad may not avoid fulfilling 
the requirements of this subpart by using contractors or 
subcontractors. If, for example, a railroad uses a contractor to 
provide dining services for the occupants of a camp car, FRA will still 
enforce the provisions of Sec.  228.325 to ensure that the food service 
is safe and sanitary. FRA will hold the railroad liable for its 
contractor's or subcontractor's failing to fulfill the requirements of 
this proposed subpart.
Section 228.305 Compliance Date
    This proposed section establishes the deadline for compliance. A 
December 31, 2010 deadline for compliance with the regulations was set 
by Congress in section 420 of RSIA, but the final rule may not become 
effective until 60 days after it is published.
Section 228.307 Definitions
    This proposed section defines key terms used in proposed subpart E. 
The definitions are set forth alphabetically. FRA intends these 
definitions to clarify the meaning of terms as they are used in the 
text of the proposed subpart. Many of these definitions were originally 
set forth in FRA's 1990 Guidelines. In addition, many of these 
definitions have been taken from standards issued by OSHA.
Section 228.309 Structure, Emergency Egress, Lighting, Temperature, and 
Noise-Level Standards
    This proposed section sets forth a series of requirements for camp 
cars provided by a railroad as sleeping quarters to employees and MOW 
workers. First, the section requires that the camp cars are constructed 
so as to provide protection from the elements. Second, the section 
requires that the camp cars provide an opportunity for rest free from 
interruptions caused by noise under the control of the railroad that 
provides the camp cars. The limit of 55 dB(A) that FRA intends to 
establish is based on the longstanding interpretation of the hours of 
service statutory provision related to sleeping quarters. 49 U.S.C. 
21106(a)(1); 49 CFR part 228, app. A and C. It is notable that the 55 
dB(A) level is typical of semi-urban and suburban neighborhood outside 
ambient noise during the evening hours with minimal street traffic. 
Levels such as these have also been measured in the same neighborhoods 
on side streets during daylight hours; thus, the 55 dB(A) limit should 
not be difficult to achieve. Third, this section requires that the camp 
cars be able to maintain a minimum temperature during cold weather and 
a maximum temperature during hot weather. FRA invites comment on 
whether the temperatures currently specified should be changed. Fourth, 
the section requires that camp cars provide an adequate means of egress 
in the event of an emergency situation. There must be an exit at both 
ends of the camp car so that occupants may pass through each end frame. 
Finally, FRA is also establishing minimum lighting standards, including 
provisions requiring the interior pathway to an emergency exit not 
immediately accessible to the occupants to be illuminated at all times 
for emergency egress purposes.
Section 228.311 Minimum Space Requirements
    This proposed section requires that, to prevent overcrowding, the 
camp car's occupants have at least 50 square feet each; in a facility 
where occupants cook, live, and sleep, a minimum of 90 square feet per 
occupant must be provided. The proposed section also requires certain 
types of furniture.
Section 228.313 Electrical System Requirements
    This proposed section sets forth requirements regarding the safety 
of heating, cooking, ventilation, air conditioning, and water heating 
equipment. These systems must be installed in accordance with all 
applicable provisions of the 2008 version of the National Electrical 
Code. In addition, all electrical systems installed must be compliant 
with that code.
    This section of the proposed rule does not specify any certain code 
that must be used for heating, ventilation, and air conditioning (HVAC) 
systems, but does require that all such systems be safe and working. 
FRA anticipates that, to ensure that these systems are safe and 
operable, railroads will require HVAC systems in their camp cars to 
meet widely-adopted standards, such as those of the standards of the 
Sheet Metal and Air

[[Page 69]]

Conditioning Contractors National Association, American Society of 
Heating, Refrigerating, and Air-Conditioning Engineers, and the 
American National Standards Institute. FRA is requesting comments on an 
appropriate standard to use for this provision as well as the 
practicability of FRA's attempting to enforce such standards. Please 
note that under 49 U.S.C. 20116, the date of adoption of a non-Federal 
standard incorporated by reference in a rail safety rule must be stated 
in the rule in order for the standard to become effective.
Section 228.315 Vermin Control
    This proposed section sets forth requirements related to the 
prevention and resolution of vermin infestations.
Section 228.317 Toilets
    This proposed section represents a substantial revision of the 
parallel provision in FRA's 1990 Guidelines to reflect a more 
appropriate number of toilets required. Further, the proposed section 
requires that there be at least two toilet rooms located within a camp 
car that has sleeping facilities. Additionally, if a camp car is 
lodging more than 10 occupants, then an additional toilet room must be 
provided within the camp car for each group of one to five occupants in 
excess of the 10. For example, if there are 12 occupants lodged in a 
camp car, there must be a total of three toilet rooms in the camp car 
(two for the first ten occupants and one for the additional two 
occupants). FRA believes that this requirement provides an adequate 
standard for the minimum number of toilets. A toilet room must have a 
door that latches, one that is capable of being and staying securely 
closed and be sufficient to assure privacy. Certain construction and 
cleanliness standards are also included in this section.
Section 228.319 Lavatories
    This proposed section requires every camp car that provides a 
sleeping facility to have a basin with running water, soap, and hand-
drying equipment or towels. It also requires at least two basins per 
car with sleeping facilities. If the running water available through a 
basin is not potable, a sign to that effect must be posted nearby.
Section 228.321 Showering Facilities
    The proposed section mandates a minimum number of showers, 
construction requirements for the showers, and the provision of 
showering supplies. If the running water available through a shower is 
not potable, a sign to that effect must be posted nearby.
Section 228.323 Potable Water
    This proposed section sets forth requirements to ensure that the 
water provided to the occupants of camp cars is safe. Potable water may 
be provided either as bottled water or as supplied through a plumbing 
system. Water uses such as personal oral hygiene, drinking, food 
washing, preparation, cooking, cleaning of the cooking utensils, 
cooking surfaces, and eating surfaces, etc. all require the use of 
potable water. If the water supplied for these uses is provided by 
means of a system of tanks, lines and other plumbing, the integrity and 
cleanliness of such systems needs to be maintained. To ensure that this 
is done, FRA intends to establish requirements to facilitate this 
objective.
    Individuals who fill potable water systems servicing a camp car 
must be trained. The source for water provided to the occupants of a 
camp car must meet minimum standards put forth by the Environmental 
Protection Agency under 49 CFR part 141, National Primary Drinking 
Water Regulations. The railroad must obtain a certificate indicating 
this fact, which must be kept with the camp car for the duration of the 
connection, after which is must be sent to a centralized location, such 
as the railroad's system headquarters. This location should be the 
depository for all water certification records for the railroad. 
Equipment and construction employed to provide potable water to a camp 
car must be approved by the Food and Drug Administration. The water 
itself must be stored in sanitary containers and be dispensed so that 
sanitary conditions are maintained. Distribution lines must have 
adequate pressure for simultaneous use. Potable water systems must be 
flushed and disinfected regularly, and the steps that are taken must be 
recorded. Those records must be kept within the camp for the duration 
of the connection and then sent to a centralized location. The section 
sets forth procedures to follow in the instance of a report of a 
problem with the taste of the water or a report of a health problem 
because of the water.
Section 228.325 Food Service in a Camp Car or Separate Kitchen or 
Dining Car
    The proposed section prohibits the presence of food and beverages 
in toilet rooms and toxic materials areas, imposes requirements 
applicable when a central dining operation is provided, and ensures 
that food service facilities and operations will operate hygienically. 
The limitations of paragraphs (c) and (d) do not apply to food service 
from nearby restaurants that are subject to State law.
Section 228.327 Sewage and Waste Collection and Disposal
    This proposed section addresses the necessity of wastes being 
disposed to ensure a sanitary environment. Timely removal of all kinds 
of waste is mandated by proposed Sec.  228.329(a). Camp cars must be 
equipped with a method to dispose of sewage according to proposed Sec.  
228.329(b). Appropriate waste containers for both general waste and 
food waste are required by proposed Sec.  228.329(c) and (d), 
respectively.
Section 228.329 Housekeeping
    This proposed section requires that each camp car be kept as clean 
as is practicable given the type of work performed by the occupants of 
the car. The section also requires elimination of splinters, 
unnecessary holes, and other conditions or features that impede 
cleaning.
Section 228.331 First Aid
    This proposed section requires a first-aid kit in each camp car 
with specified contents. This list is based on the requirements for 
first-aid kits in passenger trains set forth in FRA's regulations on 
passenger train emergency preparedness at 49 CFR 239.101(a)(6), but 
adds a requirement of two elastic wraps. Railroads should add items to 
the first-aid kit as conditions warrant, for example, increasing the 
minimum number of bandages for a larger crew than normal or providing 
additional items if the occupants of the camp car regularly deal with 
hazardous material. Additional items railroads may consider providing 
include ammonia inhalants and a splint.
Section 228.333 Repairs
    The proposed section gives a limited amount of time for a railroad, 
after receiving notice from FRA to repair a camp car that does not 
comply with these regulations. The section also requires that a 
railroad provide alternate accommodations when a camp car does not 
provide the essential services such as proper cooling or heating. In 
addition, if a camp car is noncompliant with the requirements of this 
subpart, and the railroad otherwise would have provided meals for 
occupants, it must provide for alternate arrangement for meals. 49 CFR 
part 228, app. A and C. FRA is considering specifying exactly how 
quickly a railroad must provide alternative accommodations for 
occupants when a camp car lacks

[[Page 70]]

essential services and invites comment on this issue.
Section 228.335 Electronic Recordkeeping
    This section provides for electronic recordkeeping of records 
required by this subpart.

Appendix A and Appendix C of Part 228

    Finally, the proposal would make conforming changes to appendix A 
to part 228 and remove appendix C to part 228. The proposal would 
revise appendix A (FRA's statement of agency policy and interpretation 
of the hours of service laws) by removing the paragraph discussing the 
1990 Guidelines, codified in appendix C to part 228, and the rationale 
for establishing those guidelines because appendix C would be 
eliminated and superseded by new 49 CFR part 228, subpart E. The 
proposal would also remove appendix C to reflect that the guidelines 
with respect to camp cars would be revised and converted into 
regulations at 49 CFR part 228, subpart E, which would become effective 
upon the date that compliance with the regulations is first required.

III. Regulatory Impact and Notices

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

    This rule has been evaluated in accordance with existing policies 
and procedures, and determined to be non-significant under both 
Executive Order 12866 and DOT policies and procedures. 44 FR 11034, 
February 26, 1979. FRA has prepared and placed in the docket a 
regulatory evaluation addressing the economic impact of this proposed 
rulemaking. Document inspection and copying facilities are available at 
U.S. Department of Transportation, Docket Operations, West Building 
Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 
20590. Docket material is also available for inspection on the Internet 
at https://www.regulations.gov. Photocopies may also be obtained by 
submitting a written request to the FRA Docket Clerk at the Office of 
Chief Counsel, RCC-10, Mail Stop 10, Federal Railroad Administration, 
1200 New Jersey Avenue, SE., Washington, DC 20590; please refer to 
Docket No. FRA-2009-0042.
    To carry out a 2008 Congressional rulemaking mandate, FRA is 
proposing to create a new subpart of part 228, subpart E, which would 
prescribe minimum safety and health requirements for camp cars that a 
railroad provides as sleeping quarters to any of its train employees, 
signal employees, and dispatching service employees and individuals 
employed to maintain its right of way. The proposed regulations would 
supplant existing FRA guidelines that interpret existing statutory 
requirements, enacted decades earlier, that railroad-provided camp cars 
be clean, safe, and sanitary, and afford those employees and 
individuals an opportunity for rest free from the interruptions caused 
by noise under the control of the railroad. In further response to the 
rulemaking mandate, the proposed regulations would include the 
additional statutory requirements, enacted in 2008, that camp cars be 
provided with indoor toilets, potable water, and other features to 
protect the health of such workers.
    Under separate but related statutory authority, FRA is proposing to 
amend subpart C of 49 CFR part 228, ``Construction of Employee Sleeping 
Quarters.'' In accordance with the RSIA, FRA applies the location 
restrictions applicable to employee occupied camp cars to railroad camp 
cars occupied solely by MOW workers.
    Finally, the proposal would make conforming changes to appendix A 
to part 228 and remove part appendix C to part 228. The proposal would 
also clarify its provision on applicability, remove an existing 
provision on the preemptive effect of part 228 as unnecessary, and 
move, without change, an existing provision on penalties for violation 
of part 228 from subpart B to subpart A.
    FRA estimates costs and benefits for the proposed rule. In this 
case, only one railroad would be affected, NS. NS has asserted and FRA 
assumes that they are in compliance due to statutory mandate or 
voluntary compliance with the 1990 guidelines. FRA expects NS's costs 
of complying with this proposed rule to be nominal and limited to such 
requirements as the installation of non-potable water signage and 
first-aid kit items. Consequently, NS is already experiencing the 
benefits that would flow from this NPRM. Any increase in realized 
benefits would be small. The main benefit of this proposed rule is the 
assurance it will provide that the health and safety benefits reaped by 
NS's upgrades will remain in place. FRA is confident that the benefits 
will more than justify incurring the nominal costs associated with 
implementation of the proposed rule. FRA is requesting comments on all 
aspects of this economic analysis, including its underlying 
assumptions.

B. Regulatory Flexibility Act and Executive Order 13272

    The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) and 
Executive Order 13272 (67 FR 53461; August 16, 2002) require agency 
review of proposed and final rules to assess their impact on small 
entities. The Regulatory Flexibility Act requires an agency to review 
regulations to assess their impact on small entities. An agency must 
conduct a regulatory flexibility analysis unless it determines and 
certifies that a rule is not expected to have a significant impact on a 
substantial number of small entities. Pursuant to the Regulatory 
Flexibility Act of 1980, 5 U.S.C. 605(b), the FRA Administrator 
certifies that this proposed rule will not have a significant economic 
impact on a substantial number of small entities. No small railroads 
will be affected by the rule. FRA has prepared and placed in the docket 
this certification. FRA requests comments on this certification as well 
as all other aspects of this NPRM.
    ``Small entity'' is defined in 5 U.S.C. 601 as including a small 
business concern that is independently owned and operated, and is not 
dominant in its field of operation. The U.S. Small Business 
Administration (SBA) has authority to regulate issues related to small 
businesses, and stipulates in its size standards that a ``small 
entity'' in the railroad industry is a for profit ``line-haul 
railroad'' that has fewer than 1,500 employees, a ``short line 
railroad'' with fewer than 500 employees, or a ``commuter rail system'' 
with annual receipts of less than seven million dollars. See ``Size 
Eligibility Provisions and Standards,'' 13 CFR part 121, subpart A. 
Additionally, 5 U.S.C 601(5) defines as ``small entities'' governments 
of cities, counties, towns, townships, villages, school districts, or 
special districts with populations less than 50,000. Federal agencies 
use a different standard for small entities, in consultation with SBA 
and in conjunction with public comment. Pursuant to that authority FRA 
has published a final statement of agency policy that formally 
establishes ``small entities'' or ``small businesses'' as being 
railroads, contractors and hazardous materials shippers that meet the 
revenue requirements of a Class III railroad as set forth in 49 CFR 
1201.1-1, which is $20 million or less in inflation-adjusted annual 
revenues, and commuter railroads or small governmental jurisdictions 
that serve populations of 50,000 or less. See 68 FR 24891, May 9, 2003, 
codified at Appendix C to 49 CFR part 209. The $20 million limit is 
based on the Surface Transportation Board's

[[Page 71]]

revenue threshold for a Class III railroad carrier. Railroad revenue is 
adjusted for inflation by applying a revenue deflator formula in 
accordance with 49 CFR 1201.1-1. FRA is using this definition for this 
rulemaking.
    The factual basis for the certification that this final rule will 
not have a significant economic impact on a substantial number of small 
entities is that no small entities are affected. This proposed rule 
would affect only one railroad, the Norfolk Southern Railway, which is 
a Class I railroad with revenues far exceeding inflation-adjusted $20 
million. Accordingly, FRA does not consider this impact to be 
significant. Nor does FRA anticipate that this regulation would result 
in long-term or short-term insolvency for any small railroad.

C. Federalism Implications

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

D. International Trade Impact Assessment

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

E. Paperwork Reduction Act

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

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

[[Page 72]]

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

    All estimates include the time for reviewing instructions; 
searching existing data sources; gathering or maintaining the needed 
data; and reviewing the information. Pursuant to 44 U.S.C. 
3506(c)(2)(B), FRA solicits comments concerning: whether these 
information collection requirements are necessary for the proper 
performance of the functions of FRA, including whether the information 
has practical utility; the accuracy of FRA's estimates of the burden of 
the information collection requirements; the quality, utility, and 
clarity of the information to be collected; and whether the burden of 
collection of information on those who are to respond, including 
through the use of automated collection techniques or other forms of 
information technology, may be minimized. For information or a copy of 
the paperwork package submitted to OMB, contact Mr. Robert Brogan, 
Information Clearance Officer, Office of Railroad Safety, at 202-493-
6292, or Ms. Kimberly Toone, Office of Information Technology, at 202-
493-6132.
    Organizations and individuals desiring to submit comments on the 
collection of information requirements should direct them to Mr. Robert 
Brogan or Ms. Kimberly Toone, Federal Railroad Administration, 1200 New 
Jersey Avenue, SE., 3rd Floor, Washington, DC 20590. Comments may also 
be submitted via e-mail to Mr. Brogan or Ms. Toone at the following 
address: Robert.Brogan @dot.gov; or Kimberly.Toone@dot.gov.
    OMB is required to make a decision concerning the collection of 
information requirements contained in this proposed rule between 30 and 
60 days after publication of this document in the Federal Register. 
Therefore, a comment to OMB is best assured of having its full effect 
if OMB receives it within 30 days of publication. The final rule will 
respond to any OMB or public comments on the information collection 
requirements contained in this proposal.
    FRA is not authorized to impose a penalty on persons for violating 
information collection requirements which do not display a current OMB 
control number, if required. FRA intends to obtain current OMB control 
numbers for any new information collection requirements resulting from 
this rulemaking action prior to the effective date of the final rule. 
The OMB control number, when assigned, will be announced by separate 
notice in the Federal Register.

F. Unfunded Mandates Reform Act of 1995

    Pursuant to Section 201 of the Unfunded Mandates Reform Act of 1995 
(Pub. L. 104-4, 2 U.S.C. 1531), each Federal agency ``shall, unless 
otherwise prohibited by law, assess the effects of Federal regulatory 
actions on State, local, and Tribal governments, and the private sector 
(other than to the extent that such regulations incorporate 
requirements specifically set forth in law).'' Section 202 of the Act 
(2 U.S.C. 1532) further requires that ``before promulgating any general 
notice of proposed rulemaking that is likely to result in the 
promulgation of any rule that includes any Federal mandate that may 
result in expenditure by State, local, and Tribal governments, in the 
aggregate, or by the private sector, of $100 million or more (adjusted 
annually for inflation) [$140.8 million in 2010] in any 1 year, and 
before promulgating any final rule for which a general notice of 
proposed rulemaking was published, the agency shall prepare a written 
statement'' detailing the effect on State, local, and Tribal 
governments and the private sector. This final rule would not result in 
the expenditure, in the aggregate, of $140.8 million or more in any one 
year, and thus preparation of such a statement is not required.

G. Environmental Assessment

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

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

    In accordance with section 4(c) and (e) of FRA's Procedures, the 
agency has further concluded that no extraordinary circumstances exist 
with respect to this regulation that might trigger the need for a m