Safety and Health Requirements Related to Camp Cars, 67073-67092 [2011-27818]

Agencies

• Federal Railroad Administration
• DEPARTMENT OF TRANSPORTATION

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


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 228

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


Safety and Health Requirements Related to Camp Cars

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

ACTION: Final rule.

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

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

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

[[Page 67074]]

I. Background Information

A. Statutory, Regulatory, and Factual Background

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

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

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

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

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

[[Page 67075]]

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

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

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

55 FR 30892, 30893, July 27, 1990.

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

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

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

[[Page 67076]]

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

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

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

B. Comments on the NPRM

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

[[Page 67077]]

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

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

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

[[Page 67078]]

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

[[Page 67079]]

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

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

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

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

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

[[Page 67080]]

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

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

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

II. Section-by-Section Analysis

Part 228

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

Subpart A of Part 228

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

Subpart B of Part 228

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

[[Page 67081]]

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

Subpart C of Part 228

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

Subpart E of Part 228

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

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

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

[[Page 67082]]

Section 228.309 Structure, Emergency Egress, Lighting, Temperature, and 
Noise-Level Standards
    This section sets forth a series of requirements for camp cars 
provided by a railroad as sleeping quarters to employees or MOW workers 
or both. First, the section requires that the camp cars are constructed 
so as to provide protection from the elements. Second, the section 
requires that the camp cars provide an opportunity for rest free from 
interruptions caused by noise under the control of the railroad that 
provides the camp cars. The limit of 55 dB(A) is based on FRA's 
longstanding interpretation of an hours of service statutory provision 
related to sleeping quarters. 49 U.S.C. 21106(a)(1); 49 CFR part 228, 
app. A and C. It is notable that the 55 dB(A) level is typical of semi-
urban and suburban neighborhood outside ambient noise during the 
evening hours with minimal street traffic. Levels such as these have 
also been measured in the same neighborhoods on side streets during 
daylight hours; thus, the 55 dB(A) limit should not be difficult to 
achieve. Third, this section requires that the camp cars be able to 
maintain a minimum temperature during cold weather (68 [deg]F) and a 
maximum temperature during hot weather (75 [deg]F). Fourth, the section 
requires that camp cars provide an adequate means of egress in the 
event of an emergency situation. There must be at least two emergency 
exits. Finally, FRA is also establishing minimum lighting standards, 
including provisions requiring the interior pathway to an emergency 
exit not immediately accessible to the occupants to be illuminated at 
all times for emergency egress purposes, except that illumination of 
emergency pathways is not required inside sleeping compartments.
Section 228.311 Minimum Space Requirements, Beds, Storage, and Sanitary 
Facilities
    This section requires that, to prevent overcrowding, the camp car's 
occupants have at least 80 square feet each; in a camp car where 
occupants cook, live, and sleep, a minimum of 120 square feet per 
occupant must be provided. The section also requires certain types of 
furniture. This section also creates a limit of four occupants per car.
Section 228.313 Electrical System Requirements
    This section sets forth requirements regarding the safety of all 
electrical systems in the camp car, including, but not limited to, 
heating, cooking, ventilation, air conditioning, and water heating 
equipment. While the NPRM stated that these systems must be installed 
in accordance with all applicable provisions of the National Fire 
Protection Association's NFPA 70 (2008), ``National Electrical Code'' 
(NEC 2008), approved by the National Fire Protection Association (NFPA) 
Standards Council on July 26, 2007, with an effectiv