Tuesday, January 2, 2001

Part II

Department of Transportation Federal Railroad Administration

49 CFR Part 229 Locomotive Cab Sanitation Standards; Proposed Rule

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DEPARTMENT OF TRANSPORTATION Administration, 1120 Vermont Avenue, injuries due to the unexpected NW., Mail Stop 25, Washington, DC movement of the equipment. FRA Federal Railroad Administration 20590 (telephone: 202–493–6326), or addresses the risk of falling from Christine Beyer, Office of Chief Counsel, railroad bridges and of being struck by 49 CFR Part 229 Federal Railroad Administration, 1120 moving trains in 49 CFR Part 214. Vermont Avenue, NW., Mail Stop 10, As a general rule, FRA exercises its [Docket No. FRA 2000±8545, Notice No. 1] Washington, D.C. 20590 (telephone: statutory jurisdiction over railroad RIN 2130±AA89 202–493–6027). employee working conditions where SUPPLEMENTARY INFORMATION: employees are engaged in duties that are Locomotive Cab Sanitation Standards intrinsic to railroad operations, that Background could not occur in typical industrial AGENCY: Federal Railroad I. Statutory and Regulatory Framework settings, and when the hazard falls Administration (FRA), Department of within the scope of FRA’s expertise to Transportation (DOT). The Federal Railroad Administration regulate. Often, railroad working ACTION: Notice of proposed rulemaking. (FRA) has broad statutory authority to regulate all areas of railroad safety. Until conditions are so unique that a regulatory body other than FRA would SUMMARY: FRA proposes to amend its July 5, 1994, the Federal railroad safety not possess the requisite expertise to regulations by adding standards that statutes existed as separate acts found determine appropriate safety standards. address toilet and washing facilities for primarily in Title 45 of the United Historically, the concept of ‘‘railroad employees who work in locomotive States Code. On that date all of the acts safety’’ has been viewed to include the cabs. The proposal provides exceptions were repealed and their provisions were health and safety of employees when for certain existing equipment and recodified into Title 49. The older safety they are engaged in railroad operations. operations, and establishes servicing laws were enacted in piecemeal In its Statement of Policy concerning requirements. approach and addressed specific fields of railroad safety. Pertinent to this employee workplace safety published in DATES: Written Comments: Written proceeding, the Locomotive Inspection 1978, FRA stated comments must be received on or before Act (the ‘‘LIA’’), enacted in 1911, The term ‘‘safety’’ includes health-related March 5, 2001. Comments received after prohibits the use of unsafe locomotives aspects of railroad safety to the extent such that date will be considered to the and authorizes FRA to issue standards considerations are integrally related to extent possible without incurring for locomotive maintenance and testing. operational safety hazards or measures taken additional expense or delay. (Formerly 45 U.S.C. 22–34, now 49 to abate such hazards. Public Hearing: A public hearing will U.S.C. 20701–20703.) In order to further 43 FR 10585. Hazards that impact the be held, if requested, in Washington, FRA’s ability to respond effectively to health of railroad employees engaged in D.C. to allow interested parties the contemporary safety problems and railroad operations may also result in opportunity to comment on specific hazards as they arise in the railroad adverse impacts on railroad safety, and issues addressed in the NPRM. FRA will industry, the Congress enacted the so there is often a logical connection announce at a later date in the Federal Federal Railroad Safety Act in 1970 (the between railroad safety and employee Register if a hearing has been requested ‘‘Safety Act’’). (Formerly 45 U.S.C. 421, health. and the date and location of the hearing. 431 et seq., now Subtitle V of Title 49.) In part 229 of Title 49 of the Code of ADDRESSES: Written Comments: Submit The Safety Act grants the Secretary Federal Regulations, FRA established one copy to the Department of rulemaking authority over all areas of minimum federal safety standards for Transportation Central Docket railroad safety and confers all powers locomotives. These regulations Management Facility located in Room necessary to detect and penalize prescribe inspection and testing PL–401 at the Plaza level of the Nassif violations of any rail safety law. This requirements for locomotive Building, 400 Seventh Street, S.W., authority was subsequently delegated to components and systems, and minimum Washington, D.C. 20590. All docket the FRA Administrator. (49 CFR 1.49.) locomotive cab safety requirements. material on the proposed rule will be Pursuant to this statutory authority, However, FRA’s existing locomotive available for inspection at this address FRA promulgates and enforces a safety standards do not require and on the Internet at http:// comprehensive regulatory program to sanitation facilities for employees doms.dot.gov. Docket hours at the Nassif address railroad track, signal systems, working in the cab. Building are Monday-Friday, 10:00 a.m. railroad communications, rolling stock, The statutory and regulatory to 5:00 p.m., excluding Federal operating practices, passenger train treatment of locomotive cab sanitation holidays. Persons desiring notification emergency preparedness, alcohol and by the pertinent federal and state bodies that their comments have been received drug testing, locomotive engineer is complex, and has caused some should submit their comments with a certification, and workplace safety. In confusion in the industry. For purposes stamped, self-addressed postcard. The the area of workplace safety, the agency of this rulemaking, it is important to postcard will be returned to the has issued a variety of standards understand where the legal tensions addressee with a notation of the date on designed to protect the health of occur. Generally, requirements for which the comments were received. railroad employees. For instance, FRA sanitation in the workplace are Public Hearing: If requested by a promulgated ladder and handhold governed by the U.S. Occupational member of the public, the date and requirements for rail equipment in order Safety and Health Administration location of a public hearing will be to prevent employee falls (49 CFR Part (OSHA); 1 however a Federal agency can announced in this publication. Requests 231), and requires locomotive cab floors oust OSHA jurisdiction by issuing for a public hearing must be in writing, and passageways to remain clear of sanitation standards of its own, as FRA and must be addressed to the FRA debris and oil to prevent employee docket clerk at the address above. slips, trips, and falls (49 CFR 229.119). 1 See, 29 CFR Part 1910 (general industry FOR FURTHER INFORMATION CONTACT: standards); 29 CFR Part 1926 (construction industry In Part 218, FRA requires blue signal standards); 29 CFR Part 1917 (marine terminals); 29 Brenda Hattery, Office of Safety protection to prevent employees CFR Part 1918 (longshoring operations); and 29 CFR Compliance, Federal Railroad working on railroad equipment from Part 1928 (agricultural operations).

VerDate 112000 18:26 Dec 29, 2000 Jkt 194001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4702 E:\FR\FM\02JAP2.SGM pfrm03 PsN: 02JAP2 Federal Register / Vol. 66, No. 1 / Tuesday, January 2, 2001 / Proposed Rules 137 is proposing to do in this proceeding.2 throughout the railroad industry. In prostate hypertrophy, prostate cancer, OSHA’s sanitation standards generally order to determine whether regulations prostatitis, renal stone disease, apply to permanent places of would be necessary, Congress asked hypertension, diabetes, stroke, and employment, and some courts have FRA to conditions of the central nervous system determined that a locomotive assess the extent to which environmental, and spinal cord. These factors constitutes a ‘permanent place of sanitary and other working conditions in underscore the importance of providing employment’ for purposes of OSHA’s locomotive cabs affect productivity, health adequate access to toilet and washing jurisdiction.3 However, by operation of and the safe operation of locomotives. facilities for employees in the 8 an existing legislative option, a state The interest Congress placed on workplace. may withdraw from the Federal OSHA locomotive cab sanitation reflected In response to the Congressional program, and develop and enforce its concerns for railroad safety, employee mandate set forth in Section 10 of RSERA, FRA studied a variety of own occupational safety and health productivity, and the serious health 4 working conditions in locomotive cabs, regulations. If a locomotive is situated consequences that may result if including sanitation, noise, temperature, in a ‘Federal-OSHA state,’ the Federal employees are exposed to unsanitary air quality, ergonomics, and vibration. OSHA standard would most likely conditions or lack access to facilities. It FRA prepared the Locomotive apply, so long as the pertinent is widely known that exposure to Crashworthiness and Cab Working reviewing court concurred with the human fecal matter or untreated sewage Conditions Report to Congress determination that a locomotive waste can lead to diarrheal diseases (‘‘Report’’), dated September 1996, that constitutes a permanent place of such as amebiasis, giardiasis, shigellosis outlines the results of these studies. employment. However, if the and viral diseases such as hepatitis. (The Report is available for review in locomotive resides in a ‘State-Plan Transmission of some illnesses can the docket of this matter.) state,’ any state locomotive sanitation occur through physical contact with standard may be nullified because the waste, or with the toilet or other II. The Report to Congress LIA has been interpreted to occupy the surfaces used by an infected human. field of locomotive safety, including FRA conducted a survey of Given the right environmental locomotive cab sanitation facilities and appurtenances in locomotives. conditions, transmission may also occur Consequently, the LIA would preempt an evaluation of the chemicals used to through inhalation of affected clean, disinfect, and deodorize toilets. state provisions relating to microorganisms. In addition, disease appurtenances in locomotives,5 and The primary focus of the survey was transmission may occur through hand- equipment owned by Class I railroad federal courts have held that a toilet to-mouth ingestion after physical constitutes an appurtenance.6 carriers, but units operated by small contact with an infected source. The entities were also included in the study. Conversely, and despite the prevailing risk of contracting these illnesses alternate view, certain state courts in FRA found a wide range of conditions underscores the importance of in the course of the survey. The ‘Federal-OSHA states’ have ruled that maintaining clean, operable toilet and the LIA does not preempt state conditions varied due to many factors, washing facilities in the workplace, including weather, type of sanitation regulation of flush toilets on including locomotive cabs. locomotives, and those states have system in place, carrier maintenance In addition to the disease and service programs, and locomotive promulgated and enforce such standards transmission concerns outlined above, within their boundaries.7 model. In addition, some locomotives there are health affects that may arise surveyed were not equipped with In 1992, Congress enacted Section 10 when access to toilet facilities is limited of The Rail Safety Enforcement and sanitation facilities. or prevented. Healthy adults consuming FRA surveyed 234 locomotives during Review Act (RSERA) (Public Law 102– the recommended amounts of fluids can 365, September 3, 1992, codified at 49 both typical and environmentally expect to void once every four hours extreme working conditions. As the U.S.C. 20103, note) in response to during the day and once during the concerns raised by employee Report states, FRA found unsanitary, night. The urination process begins unpleasant conditions, and in some organizations, congressional members, when the kidneys filter waste and water and recommendations of the National instances, inoperable units. FRA from the blood to form urine. The urine inspectors observed dirty floors and Transportation Safety Board concerning travels to the bladder and the nervous working conditions in locomotive cabs. toilet seats, missing toilet seats, poor system sends ‘full’ signals to the ventilation, offensive odors, and lack of In this legislation, Congress included muscles that it is time to urinate. If mandates concerning locomotive urination doesn’t occur when needed, 8 crashworthiness and cab working See, Rowland RG, Foster RS, Donohoe JP, Adult incontinence, urinary tract infections, and Pediatric Urology, St. Louis, Mosby-Year Book, conditions. Section 10 of RSERA, and kidney infections may occur. Inc. (1996); Barry MJ, Fowler, FJ, Bin L, Pitts CJ, entitled Locomotive Crashworthiness Mulley AG, The Natural History of Patients with Prolonged distention of the bladder may Benign Prostatic Hyperplasia as Diagnosed by and Working Conditions, required FRA lead to a disturbance of the elastic ‘‘to consider prescribing regulations to North American Urologists, J. Urol., 157, 10–15, components of the bladder wall, which (1997); Lapides, J., The Key to Urinary Infection, improve the safety and working could weaken the evacuation power of The Female Patient, 5, 11–13 (1980); Lapides, J., conditions of locomotive cabs’’ Primary Cause of Recurrent Urinary Tract Infection the bladder. When the bladder is unable in Women, Journal of Urology, 100, 552–555 (1968); to empty completely, residual urine 2 29 U.S.C. 653(b)(1). Darlow, H.M. and Bale, W. R., Infective Hazards of Water-Closets, Lancet 1: 1196–1200 (1959); 3 State of Maine v. Springfield Terminal Ry., CV– remains and can cause infection. Hendlev, J., Wenzel, H., Gwaltney, H., Transmission 90–258, citing Gade v. National Solid Waste Delaying bowel movements can lead to of Rhinovirus C Colds by Self-Inocculation, New Management Ass’n, 505 U.S. 88 (1992). chronic constipation and other England Journal of Medicine, 288, 1361–1364 4 29 U.S.C. 667. intestinal problems, and chronic (1973); Gaber, C., Wallis, C., and Melnick, J., 5 Napier v. Atlantic Coast Line RR., 272 U.S. 605 constipation is often a factor in Microbiological Hazards of Household Toilets: (1926). abnormal bladder emptying. In addition, Droplet Production and the Fate of Residual 6 CSX Transportation v. Pitz, 699 F.Supp. 127 Organisms, Applied Microbiology 30: 229–236 (W.D. Mich. 1988). a variety of health conditions may alter (1975); U.S. Occupational Safety and Health 7 Norfolk and Western Ry. v. Pennsylvania Public or increase the need to urinate and Administration, Field Sanitation, Final Rule, 52 FR Utility Comm’n, 413 A.2d 1037 (Pa. 1980). defecate, including pregnancy, benign 16050 (1987).

VerDate 112000 18:26 Dec 29, 2000 Jkt 194001 PO 00000 Frm 00003 Fmt 4701 Sfmt 4702 E:\FR\FM\02JAP2.SGM pfrm03 PsN: 02JAP2 138 Federal Register / Vol. 66, No. 1 / Tuesday, January 2, 2001 / Proposed Rules toilet paper. During the winter months, III. Railroad Safety Advisory Committee The Committee includes representation FRA inspectors noted that certain toilet Recommendations to FRA from all of the agency’s major customer systems would freeze and become Following publication of the Report, groups, including railroad carriers, labor inoperable. Of the cabs surveyed, FRA continued to receive employee organizations, suppliers, manufacturers, approximately thirty percent were complaints about the state of sanitation and other interested parties. FRA deficient in some manner related to the in locomotive cabs, and the health and typically assigns a task to RSAC, and use of sanitation facilities. safety risks associated with working in after consideration and debate, RSAC During the survey, FRA determined an unsanitary area. Generally, may accept or reject the task. If accepted, RSAC establishes a working that both employees and railroads play throughout the national railroad system, group that possesses the appropriate a role in the condition of sanitary employees continued to encounter dirty expertise and representation to develop facilities; poor sanitary conditions conditions and facilities in need of recommendations to FRA for action on aboard locomotives are caused by maintenance, and in some the task. These recommendations are inadequate maintenance and/or heavy circumstances, difficulty in obtaining developed by consensus. If a working use or misuse by operating crews. FRA access to facilities at all. FRA also received complaints from group comes to consensus on determined that most railroad carriers recommendations for action, the have programs in place to service toilet employees of one carrier concerning the disposal method required by a package is presented to the full RSAC and washing units, and that the program for a vote. If the proposal is accepted by requirements often vary from property particular sanitation system in use. The system, by design, involves the a simple majority of the RSAC, the to property depending on degree of use, proposal is formally recommended to toilet system in place, and weather placement and temporary storage of plastic bags containing untreated waste FRA. If the working group is unable to conditions. In addition, FRA found that reach consensus on recommendations adherence to the servicing programs is into sealed waste containers, and presents perceived health concerns to for action, FRA will move ahead to uneven throughout the industry, and resolve the issue through traditional that in many situations, poor servicing some who handle the bags, and others in proximity to the waste containers. In rulemaking proceedings. is the primary cause of unsanitary, addition, there were concerns about the When FRA presented the subject of offensive sanitation facilities. expansion of this system as the locomotive cab working conditions to FRA also determined that nearly all of railroad’s territory increased, the RSAC in June 1997, the agency stated the cleaning agents used to disinfect and increase of ‘power sharing’ the purpose of the task as follows: to deodorize locomotive cabs are over-the- arrangements among the carriers, and safeguard the health of locomotive counter products available to the the administrative difficulties that crews and to promote the safe operation general public. However, a small would arise in maintaining disparate of trains. RSAC accepted this task, percentage of the cleaning agents used systems as railroad equipment is mixed formed a Locomotive Cab Working involve health risks, and so among carriers. Conditions Working Group (‘‘Working management supervision and employee Finally, some State agencies Group’’), and designated this training must take place in order to expressed frustration with FRA assignment Task No. 97–2. As to safeguard employee health. The Report concerning the practical effect of the sanitation, RSAC asked the Working explains that the locomotive safety interplay of OSHA’s program, the broad Group to standards (49 CFR part 229) do not preemption provisions found in the LIA, Research comparable workplace require sanitation facilities in and the uneven treatment given requirements in an effort to develop locomotive cabs, and some of the oldest locomotive sanitation by the state and minimum acceptable regulations, guidelines, equipment surveyed had no sanitation federal courts. The presence of LIA or standards as appropriate for the locomotive cab environment. facilities on board. The Report also preemption and the inconsistent notes that there is some disparity in the application of locomotive cab sanitation The Working Group established by legal treatment of sanitation in standards prevented certain State RSAC consists of representatives of the locomotive cabs among state and federal agencies from regulating this area of following organizations, in addition to regulatory and enforcement bodies (as sanitation. FRA: discussed in greater detail above), and In light of these concerns, FRA American Association of State Highway confusion exists among industry determined that cab sanitation must be & Transportation Officials members concerning applicable revisited and addressed so that cab American Public Transit Association standards and guidelines. employees would have access to American Short Line and Regional adequate sanitary facilities, and to Railroad Association In conclusion, the Report notes FRA’s ensure uniform application of the law. Association of American Railroads concern about the potential for disparate Despite the considerable acrimony that Brotherhood of Locomotive Engineers regulatory treatment of sanitation in had developed in the industry Brotherhood of Maintenance of Way locomotives, and the unsanitary surrounding this issue, FRA remained Employes (Nonvoting Member) conditions that existed on some convinced that it should be addressed International Brotherhood of Electrical properties. Nonetheless, given the cooperatively, with the assistance of the Workers significant role that basic servicing stakeholders who possess the National Railroad Passenger Corporation plays in creating a sanitary workplace, knowledge and expertise to resolve the (Amtrak) and the relative ease with which problem effectively. Therefore, on June Railway Progress Institute servicing programs may be instituted, 24, 1997, FRA presented the subject of Sheet Metal Workers’ International FRA was hopeful that the issue of locomotive cab working conditions, Association locomotive sanitation could be resolved including sanitation, to the Railroad Transport Workers Union of America through management and labor Safety Advisory Committee (RSAC). United Transportation Union cooperation to resolve the problem of RSAC was formed by FRA in March The Working Group’s goal was to absent, defective, or unsanitary facilities 1996 to provide a forum for consensual produce recommendations for on locomotive cabs. rulemaking and program development. locomotive cab sanitation standards

VerDate 112000 18:26 Dec 29, 2000 Jkt 194001 PO 00000 Frm 00004 Fmt 4701 Sfmt 4702 E:\FR\FM\02JAP2.SGM pfrm03 PsN: 02JAP2 Federal Register / Vol. 66, No. 1 / Tuesday, January 2, 2001 / Proposed Rules 139 warranted by an assessment of the that railroad employees receive at least and inorganic chemicals and available information and data, an equivalent level of protection as contaminants, turbidity, radium, including the FRA survey of sanitary other employees in the United States. particle radioactivity, and other facilities and complaint information. Listed below is a summary of the hazardous agents that may not be The Working Group, or its designated regulatory treatment of potable water, exceeded in public water systems. The subgroup, met regularly over a period of toilet and washing facilities, and access EPA standards also prescribe 15 months to discuss locomotive cab to facilities, which FRA reviewed in monitoring, notification, filtration, and sanitation in the railroad industry. The preparation of this proposal. This disinfection requirements, and address discussions covered all aspects of summary is not exhaustive, but attempts the control of lead and copper in public sanitation facilities in the locomotive to capture the overall regulatory water systems. Therefore, FDA requires cab, including toilet systems, washing approach taken to the topic of sanitation public water systems used for human facilities, potable water, ventilation, in the workplace. consumption to meet all of the MCL’s lighting, trash disposal, provisions for and administrative standards set forth in Potable Water toilet paper and bottled water, servicing, EPA’s standards. and unique operations or characteristics In common parlance, potable water is OSHA defines potable water in that might require specialized regulatory water that is fit or safe to drink. essentially identical fashion [29 CFR treatment. Generally, regulations promulgated by 1910.141(a)(v), 29 CFR 1926.51(a)(6)], As a result of its deliberations, the the U.S. Food and Drug Administration but the definition includes an outdated Working Group provided to the full (FDA) and the U.S. Environmental citation, which may unnecessarily RSAC recommendations for locomotive Protection Agency (EPA) govern the confuse the issue. OSHA states that cab sanitation standards. On December quality and public consumption of potable water is water that meets the 7, 2000, the full RSAC voted to forward water. As part of FDA’s program to quality standards set forth in the U.S. these recommendations to FRA for control communicable diseases (21 CFR Public Health Service Drinking Water rulemaking action, and in large part 1240) and to control interstate Standards, located at 42 CFR part 72. measure, this Notice of Proposed conveyance sanitation (21 CFR part The Public Health Service administered rulemaking (NPRM) incorporates the 1250), FDA requires operators of a federal safe drinking water programs Working Group’s product. FRA worked conveyance engaged in interstate traffic prior to EPA, but EPA’s current closely with the Working Group in the to provide only potable water for standards (40 CFR part 141) supersede development of its recommendations, drinking and culinary purposes. 21 CFR the old regulations referred to in and believes they comprehensively and 1240.80 and 1250.82. Interstate traffic is OSHA’s definition. effectively address sanitation for cab ‘‘the movement of any conveyance or Where nonpotable water is in use, employees. FRA has greatly benefitted the transportation of persons or FDA and OSHA require operators and from the open, informed exchange of property’’ within a State and between employers to post signs to indicate that information that has taken place in the states, but does not include movement the water is not suitable for drinking, Working Group meetings. Although all exclusively for repair, rehabilitation, or washing, or culinary purposes. 29 CFR participants may not agree on each storage. 21 CFR 1240.3(h). The term 1910.141(b)(2), 29 CFR 1926.51(b), 21 recommendation offered, there is ‘‘conveyance’’ means any land or air CFR 1250.67(b). In addition, systems general consensus among labor, carrier, and most passenger ships and that carry nonpotable water or other management, and manufacturers towing vessels. 21 CFR 1250.3(e). nonpotable substances must be designed concerning the primary principles FRA OSHA regulates the quality of water and operated to prevent backflow or sets forth in this NPRM. FRA believes in most workplaces, and requires seepage into the potable water system. that the expertise the Working Group employers to provide potable water for 29 CFR 1910.141(b)(2); 29 CFR industry representatives possess drinking, washing, and cooking. 29 CFR 1926.51(b); 21 CFR 1250.30(d), 1250.42, enhance the value of the 1910.141(b), 29 CFR 1926.51(a). These and 1250.67. Nonpotable water may be recommendations, and FRA has made OSHA standards would not apply to used for cleaning work premises in every effort to incorporate them in this workplaces covered by another federal limited circumstances and where the proposal. Also, FRA and the Working agency’s regulations on point; where nonpotable water doesn’t contain Group will reassemble after the Memoranda of Understanding between unsanitary or harmful products such as comment period for this NPRM has OSHA and other federal agencies oust chemicals and fecal coliform. closed to consider all comments OSHA’s authority; where operation of Nonpotable water may not be used for received, and make recommendations statutory preemption clauses oust cleaning areas where food preparation concerning development of a final OSHA’s authority; or where OSHA has takes place, or in toilet, shower or wash standard. approved a State to address rooms. 29 CFR 1920.141(2). occupational safety and health issues. FDA requires water systems in IV. Regulatory Treatment of Sanitation 29 U.S.C. 651, et seq. (For the most part, conveyances to be ‘‘complete and closed by Other Governmental Agencies states that have chosen to run their own from the filling ends to the discharge In addition to incorporating many of occupational safety and health program, taps, except for protected vent the recommendations of the Working issue standards quite similar to the openings.’’ In addition, filling pipes or Group in this proposal, FRA reviewed federal OSHA standard, except where a connections used for filling tanks on the existing body of regulatory local concern requires more rigorous conveyances, must be positioned on requirements concerning sanitation in treatment.) both sides of all new railway the workplace across the governmental FDA defines potable water as water conveyances and on existing spectrum, in order to gain insight on that meets EPA’s Primary Drinking conveyances when they undergo heavy useful regulatory approaches to a Water Regulations, which are set forth repairs. The filling connections must be subject that is fraught with subjectivity in 40 CFR part 141. EPA’s primary easy to clean, and located and protected and potential enforcement difficulties. drinking water standards do not to minimize the risk of contamination. FRA has utilized language and succinctly define potable water; rather, On all new or reconstructed fundamental concepts from these the standards set maximum conveyances, water coolers must be an standards, where appropriate, to ensure contaminant levels (MCL’s) for organic integral part of the closed water system.

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Water filters may be used only if they set forth federal standards for toilet and must ‘‘provide accessible washing and are maintained to prevent washing facilities that apply to most toilet facilities sufficient for the sanitary contamination. Constant temperature workplaces. The general industry requirements of employees’’ that are bottles and other containers used for standards require employers to provide ‘‘readily accessible at the work site.’’ storing potable water must be kept clean toilet facilities at all places of The marine and longshoring facilities and subjected to effective bacteriological employment, except where mobile must include water, soap, hand towels treatment as necessary to prevent any crews or typically unattended work or blowers, and fixed or portable toilets contamination. 21 CFR 1250.42. (In locations are involved. 29 CFR with latch-equipped doors, and the another section of part 1250, FDA 1910.141(c). In the case of mobile crews washing and toilet facilities must ‘‘be defines ‘‘new railroad conveyance’’ as and unattended work stations, regularly cleaned and maintained in ‘‘any conveyance placed into service for employers may avoid providing toilet good order.’’ the first time after July 1, 1972.’’ 21 CFR facilities, so long as ‘‘these employees OSHA’s regulations for field 1250.51. Presumably this definition working at these locations have sanitation in the agricultural industries applies to all requirements in part 1250, transportation immediately available to (29 CFR 1928.110) apply to any but that is unclear from the structure of nearby toilet facilities.’’ OSHA defines agricultural establishment where 11 or the subpart.) toilet facility as a fixture maintained more employees are engaged on any FDA has authority to approve water within a toilet room for the purposes of given day in hand-labor operations in systems. Generally, FDA approves defecation or urination, or both. 29 CFR the field. OSHA defines toilet facility watering points that meet EPA’s Primary 1910.141(a)(2). The general industry here as Drinking Water Regulations, and where standards require employers to provide a fixed or portable facility designed for the the methods of delivery, facilities used specific numbers of toilets, based on the purpose of adequate collection and for delivery, and the sanitary conditions number of employees at the site. The containment of the products of both surrounding the delivery of water sewage disposal method must not defecation and urination, which is supplied prevent the introduction, transmission, endanger the health of the employees. with toilet paper adequate to employee or spread of communicable diseases. 29 CFR 1910.141(c). needs. Toilet facility includes biological, This approval may be based on the With regard to temporary labor chemical, flush and combustion toilets and sanitary privies. investigations of State departments of camps, OSHA’s general industry health. 21 CFR 1240.83. The FDA will standards require employers to provide These toilet facilities must be approve the treatment of water aboard toilet facilities ‘‘adequate for the ‘‘adequately ventilated,’’ screened, and conveyances if the system or apparatus capacity of the camp.’’ 29 CFR have doors that can be locked. The toilet produces potable water. This approval 1910.142(d). The toilet rooms must be facilities must be ‘‘maintained in may be based on investigations located within 200 feet of the sleeping accordance with appropriate public conducted by State representatives. 21 rooms, and the number of toilets health sanitation practices,’’ must ‘‘be CFR 1240.90. provided must be in a ratio of one per operational and maintained in clean and The states may regulate the quality 15 employees. 29 CFR 1910.142(d). The sanitary condition,’’ and ‘‘disposal of and consumption of water through their toilet rooms must be lighted naturally or wastes from facilities shall not cause general public health authority. artificially with other ‘‘safe lighting at unsanitary conditions.’’ Generally, the states define and treat the all hours of the day and night,’’ and ‘‘an FDA has promulgated standards for subject of potable water in the same way adequate supply of toilet paper must be toilet facilities on conveyances. Toilet that federal agencies do. The term is provided.’’ Toilets must ‘‘be kept in a and lavatories for food-handling defined in a number of ways, but all sanitary condition’’ and ‘‘cleaned at employees must be of ‘‘suitable design have essentially the same meaning: least daily.’’ 29 CFR 1910.142(d). and construction’’ and must be Water that has been approved by the OSHA’s construction standards ‘‘maintained in a clean condition.’’ 21. State department of health (Tennessee); require employers to provide toilets at CFR 250.38. In addition, FDA requires water that is fit for human consumption all sites. Under temporary field that in accordance with accepted water conditions, employers must provide at where toilet and lavatory facilities are supply principles and practices least one toilet. 29 CFR 1926.51(c). provided on conveyances they shall be so (Illinois); water that complies with the However, job sites not equipped with a designed as to permit ready cleaning. On standard for water systems under the sanitary sewer must have a privy, conveyances not equipped with retention California Safe Drinking Water Act chemical toilet, recirculating toilet, or facilities, toilet hoppers shall be of such (California); water that is safe for combustion toilet, unless prohibited by design and so located as to prevent spattering of water filling pipes or hydrants. drinking, culinary, and domestic local health codes. 29 CFR purposes, and which meets the 1926.51(c)(3). These requirements do 21 CFR 1250.50. When railroad requirements of the department of not apply to mobile crews so long as the conveyances that are ‘‘occupied or open health (Colorado); or water having crews have ‘‘transportation readily to occupancy by travelers, are at a bacteriological, physical, radiological, available to nearby toilet facilities.’’ 29 station or servicing area,’’ toilets must and chemical qualities that make it safe CFR 1926.51(c)(4). be kept locked unless measures are and suitable for human drinking, In addition to the construction and taken to prevent contamination of the cooking, and washing uses (Louisiana). general industry standards, OSHA has area or station. 21 CFR 1250.51(c). The states generally require that only promulgated standards for marine work Human waste may not be discharged potable water be used for human sites, longshoring operations, and from any new railroad conveyance, consumption, and any sources that agricultural workers. The standards for except at servicing areas approved by contain nonpotable water must be marine terminals (29 CFR 1917.127) and the FDA. However, human waste that marked as unsuitable for consumption. longshoring operations (29 CFR has been treated to prevent the spread 1918.95) are nearly identical. Marine of communicable diseases may be Toilet and Washing Facilities terminal employers must provide discharged from conveyances, except at OSHA’s general industry standards ‘‘accessible washing and toilet facilities stations. 21 CFR 1250.51(a). New (29 CFR part 1910) and construction sufficient for the sanitary requirements railroad conveyance used here means industry standards (29 CFR part 1926) of employees.’’ Longshoring operations any equipment placed into service after

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July 1, 1972. Equipment initiated into with an adequate supply of potable product plants, California provides that service prior to July 1972, may not water, soap and single-use towels.’’ 29 ‘‘a suitable toilet, with self-closing door, discharge untreated waste, except where CFR 1928.110(b). Washing facilities and lavatory facilities, soap, and clean a passenger conveyance operator has must be maintained towels shall be provided for filed for and received an extension of in accordance with appropriate public health employees.’’ Cal Food & Agr Code time in which to comply. 21 CFR sanitation practices, including * * * hand section 33777. Also, California adopted 1250.51(b). washing facilities shall be refilled with a standard for toilets in railroad OSHA’s general industry standards potable water as necessary to ensure an cabooses: adequate supply and shall be maintained in require that washing facilities ‘‘be It shall be unlawful for any owner or operator a clean and sanitary condition. * * * maintained in a sanitary condition.’’ of a railroad running through * * * Lavatories must be provided in all 29 CFR 1928.110(c)(3). California * * * to operate for or transport places of employment. However, Generally, the federal OSHA the public or its employees in a caboose lavatories need not be present where workplace sanitation standards preempt which is not provided with flush-type toilet mobile crews or unattended work sites state workplace sanitation standards, facilities, or chemical type toilet facilities. are involved, so long as employees at except where a state has chosen to *** these locations have ‘‘transportation operate its own occupational safety and Cal Pub Util Code section 7614. readily available to nearby washing health regulatory program. These Oregon has promulgated sanitation facilities.’’ 29 CFR 1910.141(d). Each programs must be approved by OSHA. standards that vary slightly from the lavatory must have hot and cold, or [The State-Plan States are Alaska, federal OSHA standards. For instance, tepid running water; hand soap or Arizona, California, Connecticut, Oregon’s sanitation requirements for similar cleansing agent; and hand Hawaii, Indiana, Iowa, Kentucky, construction projects provide that every towels or blowers. For purposes of these Maryland, Michigan, Minnesota, construction project estimated to cost $1 requirements, lavatory is ‘‘a basin or Nevada, New Mexico, New York (covers million or more must have toilet similar vessel used exclusively for public employees only), North Carolina, facilities and facilities for maintaining washing of the hands, arms, face, and Oregon, Puerto Rico, South Carolina, personal cleanliness for employees. The head.’’ 29 CFR 1910.141(a). Tennessee, Utah, Vermont, Virgin workplace must include flush toilets, OSHA’s construction industry Islands, Virginia, Washington, and washing facilities with warm water, standards require employers to provide Wyoming.] The State-Plan states inspect wash basins, and soap. ORS section adequate washing facilities for and enforce their state standards 654.150. Oregon also enforces sanitation employees engaged in the application of utilizing state personnel. Any fines standards for agricultural workers, and paints, coating, herbicides, or insecticides, or collected go into the federal general requires toilet facilities to be in other operations where contaminants may treasury fund, which are usually ‘‘maintained in clean and sanitary be harmful to the employees. Such facilities syphoned back to OSHA and then to the condition.’’ In addition, ‘‘hand washing shall be in near proximity to the work site state. facilities must provide clean water, soap and shall be so equipped as to enable or other suitable cleansing agent, paper employees to remove such substances. For the most part, the State-Plan states adopt and enforce the federal OSHA towels, and a method for disposal of 29 CFR 1926.51(f). Washing facilities general industry (29 CFR part 1910) and used towels.’’ ORS section 654.174. must be ‘‘maintained in a sanitary construction industry (29 CFR part Aside from these State-Plan state condition.’’ Lavatories must be provided 1926) standards concerning sanitation regulations, a few states that are at all work sites, except where mobile facilities in the workplace. However, generally covered by the federal OSHA crews or unattended work sites are some of the State-Plan states may adopt program have promulgated sanitation involved and employees at these a different standard. For instance, standards for employees not covered by locations have ‘‘transportation readily California has issued regulations in the the OSHA’s standards. Texas issued available to nearby washing facilities.’’ State Labor Code, Sanitary Conditions sanitation standards that apply to Lavatories must have hot and cold, or employees of city, county, and state in Factories and Establishments, which tepid running water; hand soap or offices, who are typically exempted provide similar cleansing agents; and hand from OSHA’s protections. These towels or blowers. 29 CFR 1926.51(f). Every factory, workshop, mercantile or other regulations require that ‘‘adequate toilet OSHA’s regulations for marine establishment in which one or more persons facilities’’ and water closets be terminals and longshoring activities are employed, shall be kept clean and free provided, and that the sewage or from the effluvia arising from any drain or require employers to provide washing other nuisance, and shall be provided, within treatment system comply with the local facilities that include, hot, cold, or tepid reasonable access, with a sufficient number health authority requirements. 25 TAC running water at one accessible of toilet facilities for the use of the section 295.106(n)(2). For purposes of location. Where work is being done employees. Where there are five or more this requirement, ‘‘toilet facility’’ is a away from permanent facilities, potable employees who are not all of the same water-flushed fixture maintained in a water may provided in lieu of running gender, a sufficient number of separate toilet toilet room for the purpose of water. 29 CFR 1917.127(a); 29 CFR facilities shall be provided for the use of each defecation, and ‘‘water closet’’ is a toilet 1918.95(a). Also, the facilities must sex, which shall be plainly so designated. facility that is connected to a sewer and include soap, and hand towels or Cal. Lab. Code section 2350. The State flushed with water. 25 TAC section blowers. The washing facilities must be has also issued several sanitation 295.106(d). ‘‘regularly cleaned and maintained in standards for food establishments that The Texas standard also includes good order.’’ include employee facilities. In general, ventilation rates that must be met. If OSHA’s washing standards for the standards provide that sanitation there is no applicable local ventilation agricultural operations where 11 or facilities must be kept separate from requirement, the standard imposes a more employees are working on any food processing and handling, toilet rate measured in cubic feet, per minute, given day, require one hand washing paper must be provided, and the per person. Also, the standard facility for every 20 employees. 29 CFR facilities must be ‘‘maintained in a clean references ventilation recommendations 1928.110(c)(2). Hand washing facility and sanitary condition.’’ Cal Health & published by the American Society of means a ‘‘basin, container, or outlet Saf Code section 113335. For milk Heating and Ventilation Engineers and

VerDate 112000 18:26 Dec 29, 2000 Jkt 194001 PO 00000 Frm 00007 Fmt 4701 Sfmt 4702 E:\FR\FM\02JAP2.SGM pfrm03 PsN: 02JAP2 142 Federal Register / Vol. 66, No. 1 / Tuesday, January 2, 2001 / Proposed Rules the American Conference of be easily cleaned, and provided with OSHA’s agricultural field sanitation Governmental Industrial Hygienists. some sort of ventilation. Portable toilet standards (29 CFR 1928.110) provide The standard requires toilet rooms to be facilities must be readily accessible, more detail in outlining how an provided with a minimum ventilation private, ventilated mechanically or by employer must provide access to rate of 35 cubic feet of air per minute, use of screening, and where waste is sanitary facilities. Toilet and hand per water closet or urinal installed. 25 stored in a tank, the tank must be vented washing facilities must be ‘‘accessibly TAC section 295.106(k). An ‘‘adequate to the outside. 25 TAC section located’’ and in close proximity to each supply of toilet paper with holder shall 295.166(b). In temporary places of other. The facilities must be located be provided at every water closet.’’ 25 employment, employers must provide ‘‘within a one-quarter mile walk’’ of TAC section 295.106(n). The Texas hand washing facilities that are each hand laborer’s location in the field. standard also permits the use of convenient and maintained in a sanitary If this is not possible because of the chemical toilets, so long as they are condition. They must have running, local terrain, the facility must be located maintained ‘‘in a sanitary condition’’ potable water, a ‘‘suitable cleansing ‘‘at the point of closest vehicular and are the type approved by local agent,’’ and hand towels and proper access.’’ Also, access to on-site toilet health authorities. 25 TAC section receptacles for disposal. 25 TAC section and hand washing facilities is not 295.106(q). 295.167(a). required at all for employees who Also, Texas has issued sanitation perform field work for a period of 3 Access to Sanitation Facilities regulations that apply to temporary hours or less, including transportation places of employment, including The federal OSHA general industry time to and from the field during the maintenance-of-way operations on and construction industry standards work day. Employers must notify railroads, agricultural operations, require employers to provide sanitation employees of the location of the transitory or seasonal work, and work of facilities at nearly all work sites. sanitation facilities and water, and must a mobile nature that may involve a However, where mobile crews or give employees ‘‘reasonable series of locations and movement unattended work locations are involved, opportunities during the workday to use between them. 25 TAC section 295.161. sanitation facilities are not required on- them.’’ OSHA also requires agricultural These regulations do not apply to places site so long as employees ‘‘have employers to explain the importance of of employment already covered by transportation immediately available to good hygiene, such as using all federal OSHA standards or to the nearby toilet facilities’’ that otherwise facilities, drinking sufficient water, operation of railroad rolling stock. meet the federal requirements. 29 CFR washing hands, and so forth. Employers who have no more than ‘‘6 1910.141; 29 CFR 1926.51(c). In For the most part, the states regulate employees working at a temporary place addition to the concept of the presence access to sanitation facilities in similar of employment on any work day may, of facilities, the employer must permit fashion. There are a few notable on such days,’’ are exempt from employees to use the available facilities exceptions. Texas’ standard for providing toilet and hand washing as the need arises. In a recent sanitation at temporary places of facilities, so long as the employer interpretation released April 6, 1998, employment requires that where a site arranges for ‘‘immediate transportation’’ OSHA explains that employers may not has only 6 employees on any given work to nearby facilities. Employers must impose unreasonable restrictions on day, the employer may avoid providing provide toilet facilities for all temporary employee use of sanitary facilities. In on-site facilities so long as the employer places of employment, that are ‘‘readily support of this interpretation, OSHA has arranged for ‘‘immediate accessible to all employees during all states that this view is implicit in the transportation for these persons to travel working hours and rest periods.’’ The language of the regulation. Furthermore, to and from nearby facilities.’’ 25 TAC facility may be fixed or portable. 25 OSHA states that individuals vary 295.161(d). Also, the Texas standard TAC section 295.166(a). Toilet facility is greatly as to the frequency with which sets a maximum unimpeded walking a ‘‘plumbing device for the purpose of distance of no more than 440 yards (400 defecation or urination, or both, they need to use sanitary facilities. This meters or 1⁄4 mile) from the work site to including water closets and biological or is due to a variety of factors, including the facility. If the walk is impeded chemical toilets and urinals.’’ 25 TAC pregnancy, stress incontinence, (requires some climbing), the distance section 295.162. Toilet rooms and prostatic hypertrophy, use of certain must be shorter, and not to exceed 5 facilities must be medications, environmental factors such as cold temperatures, high fluid intake, minutes. If it is not possible to comply maintained in a sanitary condition, free of and diet. Access to toilet facilities as with this travel distance, the employer objectionable toilet odors, during all work needed is critical to preventing the must provide facilities at the nearest hours and rest periods. * * * An adequate supply of toilet paper in a suitable holder adverse health affects that may develop possible location, and must arrange for shall be maintained for each toilet. Covered from voluntary retention. transportation during both work and waste receptacles shall be provided in all OSHA regulates access to sanitary rest periods for immediate travel to and toilet rooms used by women. facilities in the marine terminal, from the facilities. The time needed to 25 TAC section 295.166(a)(6). Texas has longshoring, and agricultural reach the facility may not exceed 5 one of the few standards that attempts workplaces as well. In the marine minutes. 25 TAC 295.161(f). The Texas to define ‘‘sanitary condition.’’ It is terminal standards, the access issue is sanitation standard for temporary ‘‘that condition of good order and handled minimally: ‘‘the employer must workplaces also requires that facilities cleanliness which precludes the provide accessible washing and toilet be ‘‘readily accessible to all employees probability of disease transmission.’’ 25 facilities sufficient for the sanitary during all working hours and rest TAC section 295.162. requirements of employees.’’ 29 CFR periods.’’ 25 TAC 295.166(a). This Texas standard also sets 1917.127 (a). The treatment is similar in North Dakota has issued sanitation specifications for toilets at fixed the longshoring regulation: ‘‘Accessible regulations that address access in a facilities and portable toilets. At fixed washing and toilet facilities sufficient different manner than OSHA. The North facilities, the toilets must be in a for the sanitary requirements of Dakota standard requires facilities to be compartment equipped with a latch, employees shall be readily accessible at readily accessible to all employees. Toilet installed so that the space around it can the work site.’’ 29 CFR 1918.95(a). facilities so located that employees must use

VerDate 112000 18:26 Dec 29, 2000 Jkt 194001 PO 00000 Frm 00008 Fmt 4701 Sfmt 4702 E:\FR\FM\02JAP2.SGM pfrm03 PsN: 02JAP2 Federal Register / Vol. 66, No. 1 / Tuesday, January 2, 2001 / Proposed Rules 143 more than one floor-to-floor flight of stairs to required on the door of the sanitation provide packs of bottled water to cab or from them are not considered as readily compartment. As proposed, the modesty employees. Also, on many of the newer accessible. As far as is practicable, toilet lock is a lock or latch that is operated locomotives, there is no large water facilities should be located within two by the occupant of the sanitation holding tank for employee use, and hundred feet of all locations at which workers are regularly employed. compartment to provide privacy while carriers with these units also utilize the in use. It is not required that a modesty convenience and safety aspects of N.D. Admin. Code 33–03–20–06. lock be designed to prevent deliberate commercially available bottled water. Section-by-Section Analysis forced entry. For example, some locks FRA sees no adverse consequences could be designed to provide emergency associated with this usage, and believes It is important to note that FRA’s access, to accommodate carrier concerns it may decrease the risk of illness to cab proposed rule text set forth below that access may be required in the event employees. differs in some respects from the other of an accident or health problem. Such The NPRM proposes definitions for federal and state standards because of access could be gained, for example, by the terms sanitary and unsanitary, the unique characteristics of the railroad using a coin to turn a slotted pin or respectively, which involve the absence operating environment. The working using a pencil inserted into a hole to or presence of filth, trash, and waste environment for railroad cab employees slide a latch. Such simple measures that would cause a reasonable person to is quite different than the typical would prevent inadvertent intrusion, believe that the condition might American worker. Existing locomotive thereby maintaining privacy while constitute a health hazard; and toilet systems and corresponding allowing prompt emergency access. persistent odor sufficient to deter maintenance needs are not uniform Most locomotives are now equipped normal use of the facility or to give rise throughout the industry. Employees with a modesty lock that would meet to a reasonable concern with respect to may work on a different locomotive and the proposed definition, and these exposure to hazardous fumes. FRA a variety of routes each day of the week. existing locks vary from property to believes that providing these definitions Employee assignments and actual time property. In addition, there are a variety would add clarity to this issue and spent in the cab may vary significantly of products available on the market that would ultimately help the industry to during a typical week, and toilet would meet the requirements of this comply with the proposed standard. systems might vary significantly on each proposed definition, which vary in These terms when used in ordinary of these occasions. The time it takes to price, sophistication, and size. For discussion are somewhat subjective, and complete a particular route might vary example, a very simple surface-applied might produce different inferences greatly from day-to-day, due to traffic, slide latch may be employed to meet the among different people. Therefore, load, and weather conditions. Small requirements of the proposed definition. FRA’s proposed definition incorporates operators typically possess older At this time, FRA sees no need to the perceptions of a reasonable person, equipment, and some units may not be prescribe more specific requirements for or the average reaction to sanitation equipped with toilet facilities at all. On the modesty lock, so that each railroad facilities, and includes specific these properties, employees may carrier may choose the best device examples that would constitute generally have access to adequate among the variety of products available unsanitary conditions. Sanitary sanitation facilities along the right-of- to suit their equipment and cost needs, conditions are thus defined as the way, but there may be occasions when and so that existing locks which serve absence of those conditions. The list that is difficult to achieve. provided in the proposal is illustrative, the intended purpose of privacy may There are significant economic and not exhaustive, and should serve as remain in place. operational barriers to requiring a ‘‘one- guidance to the industry of what FRA size-fits-all’’ sanitation standard, given The proposed definition for potable would consider noncompliant. all of these factors, and consequently water references the requirements of the Undoubtedly, FRA inspectors and the FRA has made every effort in this U.S. Environmental Protection Agency industry will have to utilize on-the-spot proposal to be flexible. The basic drinking water standards, which are judgments in order to distinguish requirement set forth in the proposal is recognized as the pertinent reference conditions that are acceptable from that each cab employee should have standard. This proposed definition also those that are not. These proposed access to clean, operable toilet facilities, states that commercially available definitions are inserted to guide those as the need arises for each individual. bottled water is deemed to be potable local decisions in an area that can be There may be instances where that basic water for purposes of the sanitation very subjective. FRA invites comment principle is frustrated, but FRA believes standards. So long as employees have on these definitions, including the proposal minimizes that likelihood potable water available in adequate additional or alternate language that to the fullest extent possible. supply for drinking and washing may enhance the clarity of the terms. purposes, that is bottled and a In discussions subsequent to the last Definitions recognized commercial product, the Working Group meeting, some of the The NPRM begins with proposed running water that might be present in railroad representatives expressed definitions for key terms used, which the sanitation facility on some frustration at the subjective nature of would be placed in section 229.5 with locomotives would not have to strictly defining terms like ‘‘sanitary’’ and the other definitions established for part meet the EPA drinking water guidelines. ‘‘unsanitary’’ and proposed an alternate 229. The definitions are set forth On many older locomotives in use, definition for the term ‘‘sanitary.’’ alphabetically. For the terms commuter tanks of water are present, and may The railroad’s suggested language service, switching service, and transfer have been used at one time for drinking suggests that only an ‘‘accumulation’’ of train service, please see the detailed and washing purposes. Nothing in this filth, trash, or human waste is discussion of the exceptions to the proposal would require the removal of unacceptable whereas visible dirt would general requirements, discussed in these water tanks. However, with the not constitute an unsanitary condition. conjunction with section 229.137(b) advent of bottled water, and the On this point, the RSAC parties below. The proposed definition of the knowledge that it is sometimes difficult generally accept that immaculate term modesty lock relates to a to maintain ‘‘potable’’ water in the large, conditions cannot be expected, any rudimentary lock that would be on-board tanks, carriers typically now more than one would expect such

VerDate 112000 18:26 Dec 29, 2000 Jkt 194001 PO 00000 Frm 00009 Fmt 4701 Sfmt 4702 E:\FR\FM\02JAP2.SGM pfrm03 PsN: 02JAP2 144 Federal Register / Vol. 66, No. 1 / Tuesday, January 2, 2001 / Proposed Rules conditions in a public rest room in an parties. This is a very difficult area, and The definition for toilet facility also airport or office building. However, one in which other regulatory bodies includes the terms ‘‘harmful’’ and sanitation compartments are expected to have opted to leave these terms ‘‘offensive,’’ which may give rise to be clean and tidy following periodic undefined. Nonetheless, FRA would differing subjective interpretations. FRA servicing and cleaning. However, since like to arrive at suitable definitions for and the Working Group discussed these the duty to remedy an unsanitary these subjective terms that are words and ultimately determined that a condition arises only at the daily consistent with the spirit of the Working certain amount of subjectivity is inspection, it is particularly appropriate Group discussions, and that provide inevitable when personal preferences to specify a standard that describes adequate notice to the industry as to for cleanliness are involved. Individuals conditions most people would find what constitutes compliance. may differ as to what seems ‘‘offensive’’ unacceptable. The definitions of FRA proposes to define sanitation or even ‘‘harmful.’’ FRA intends that the sanitary and unsanitary that appear in compartment as an enclosed toilet system must effectively remove or the proposed rule text reflect compartment on a locomotive that treat the waste so that odors generated consideration of this issue of contains a toilet for employee use. in the toilet area do not linger and accumulation by including the phrase Depending on the type of locomotive, penetrate the cab working environment. ‘‘any significant amount of filth, trash, these compartments may be located in FRA will use its reasonable judgment in or human waste.’’ the nose of the unit or behind the determining whether odors rise to the The Working Group further discussed engineer’s seat. Further discussions level of offensiveness or harmfulness. another important issue raised by the below explain in detail what each FRA proposes to define washing railroads’ suggested language: what sanitation compartment must contain. system as a system for use by employees perception must the reasonable person FRA proposes to define toilet facility to maintain personal cleanliness. As have before a condition is unacceptable? as a system that automatically or on defined here, the facility may include a What amount of filth, trash, or human command of the user removes waste to secured sink, water, antibacterial soap waste is considered significant by the a place where it is treated, eliminated, and paper towels; or antibacterial reasonable person? FRA’s approach to or retained such that no solid or non- waterless soap; or antibacterial moist the subject is governed by the need to treated liquid waste is thereafter towelettes and paper towels; or any encourage use of sanitary facilities on a permitted to be released into the bowl, combination of antibacterial cleansing regular basis as a matter of good health. urinal, or room and that prevents agents. It is critical that all employees Even if a condition is objectively harmful discharges of gases or persistent have available to them a system in harmless (as determined by later offensive odors. FRA developed this which they are able to clean and laboratory analysis), the fact that it gives proposed definition with the assistance sanitize their hands after using the the appearance of possible of the Working Group. There are a toilet. FRA wishes to be as flexible as unhealthfulness could discourage use of variety of toilets available on the market possible in prescribing washing systems the facility and contribute to degraded for use on board locomotives, and FRA for locomotive cabs. There are a variety health. did not wish to exclude the use of any of antibacterial agents available on the The railroads’ suggested language of the systems that effectively meet market that effectively sanitize and tries to address the topic of to what human sanitation needs. Therefore, this disinfect after toilet use. In addition, extent the railroad is responsible for definition attempts to establish there are many locomotive units that do conditions there were left behind by performance criteria that all of the not possess sinks and running water for careless employees or trespassers. To adequate facilities meet when operating employees to use as washing facilities. limit the disruption of service because as intended. As a result of discussions with the of conditions over which the carrier has To clarify FRA’s intent concerning Working Group, it is FRA’s limited control, the carriers suggested some of the language proposed with understanding that most cab crews that certain conditions be treated as respect to toilet facility, ‘‘automatically receive a package of items for use on unsanitary only if ‘‘caused by * * * removing the waste’’ does not each trip, and this ‘‘crew pack’’ mechanical or maintenance failure in mean that waste is removed by gravity. typically includes the sort of washing the compartment.’’ This language may Rather, this language is intended to system that is permitted by this present enforcement difficulties for FRA cover systems that possess sensors definition. Therefore, so long as in determining whether a mechanical or which flush waste once the occupant employees are provided with one of the maintenance failure has occurred. This leaves the toilet area. It is FRA’s options included in the definition, or raises issues that could legitimately bear understanding that some toilets that others that may be developed in the on the exercise of FRA enforcement may be used on locomotives utilize this future that provide an equivalent level discretion, yet FRA believes such issues feature, and FRA believes it is an of sanitation, this portion of the shouldn’t serve as a defense to failure to effective tool. However, FRA does not sanitation requirement has been met. address unsanitary conditions at the intend that systems, without a device to Members of the Working Group daily inspection. No railroad employee separate the waste tank from the user expressed concern about restrictions on should have to contend with unsanitary (such as a deflector), which simply the placement of ‘‘crew packs.’’ Some conditions left behind by a trespasser or permit waste to flow to holding tanks items in these packages are used by prior employee user of the facility. below the toilet bowl and remain there employees while in the sanitation With the exception of branch lines until emptied, meet this proposed compartment, but these packages also discussed elsewhere in the preamble, as definition. These systems are prone to include items that employees use while of the daily inspection, railroads should overfilling and noxious odors, and may working or eating in the cab, such as be prepared to clean a sanitation go uncleaned for some time because the paper towels. In addition, crew packs compartment and service a toilet facility cleaning or emptying process is very are available for pick up by locomotive or to place the unit in a trailing position unpleasant and hence doesn’t get crews at on-duty points throughout the if the sanitation compartment is no accomplished. The term ‘‘on command railroad network, and employees often longer sanitary or operative. of the user’’ means that a flush grab several of them to keep in the cab. FRA invites comment on these mechanism is present and functions as It is likely that some of these packs proposed definitions from all interested intended. won’t be placed in the sanitation

VerDate 112000 18:26 Dec 29, 2000 Jkt 194001 PO 00000 Frm 00010 Fmt 4701 Sfmt 4702 E:\FR\FM\02JAP2.SGM pfrm03 PsN: 02JAP2 Federal Register / Vol. 66, No. 1 / Tuesday, January 2, 2001 / Proposed Rules 145 compartment when brought on board, in the new proposed sections 229.137 located in the engine room, which is and will be placed, as a convenience, and 229.139. However, FRA invites enclosed by a door and otherwise meet near the employee cab stand for use comment on this and all other the requirements of this paragraph. For throughout the work shift. For these provisions set forth in the NPRM. purposes of this standard, FRA proposes reasons, FRA sees no reason to require that the engine room on those Amtrak Amendment to Section 229.21, Daily by regulation that crew packs remain at units constitutes the sanitation Inspection all times in the sanitation compartment compartment for those units. and so, this proposal would not place FRA proposes to revise section 229.21 The sanitation compartment must be restrictions on the placement or to be consistent with the new proposed adequately ventilated; equipped with a contents of crew packs issued by the requirements in sections 137 and 139. door that closes and possesses a railroad carrier. As currently written, section 229.21 modesty lock; equipped with a toilet FRA will revisit these definitions to requires railroad carriers to repair all facility that meets the requirements of determine if they may be streamlined items noted on the daily inspection the definition described above; without losing clarity, and whether we report prior to using the locomotive. equipped with a washing system that should provide additional definitions However, the new sections 137 and 139 meets the requirements of the definition for terms used in the rule text. For would permit locomotive units with described above, unless the railroad instance, a definition of ‘‘defective’’ certain non-complying conditions to otherwise provides the washing might be helpful to understanding the remain in service beyond the date on products to employees when they report application of this rule. FRA invites which the daily inspection occurs. For for duty or occupy the cab for duty comment from the industry about all of instance, carriers may utilize a (typically in crew packs), or where the the definitions proposed here and any locomotive with a defective toilet locomotive possesses a stationary sink other terms that should be defined. facility in switching service for a period that is located outside the sanitation of up to 10 days, at which time the unit compartment; equipped with sufficient Amendment to Section 229.9, must be repaired or used in the trailing toilet paper to meet employee needs, Movement of Non-Complying position. Also, the railroad may unless the railroad carrier otherwise Locomotives continue to use a locomotive that provides toilet paper to employees FRA proposes to add paragraph (g) to possesses a defective modesty lock until when they report for duty or occupy the section 229.9, which prescribes the next 92-day inspection, at which cab for duty (typically in crew packs); requirements for the movement of non- time the modesty lock must be repaired. and equipped with a trash receptacle, complying locomotives. The purpose of The fourth sentence of paragraphs (a) unless the railroad carrier otherwise this addition is to clarify that the and (b) have been revised to note this provides portable trash receptacles for provisions set forth in proposed sections change as a result of the new proposed use in the sanitation compartment to 229.137 and 229.139 establish criteria requirements in sections 137 and 139. In employees upon reporting for duty or for the movement or handling of addition, the fifth sentence of occupying the cab for duty (typically in locomotives that are discovered to have paragraphs (a) and (b) has been crew packs). defective or unsanitary sanitation modified to note that the railroads may With respect to ventilation in the compartments at the time of the daily choose to record repairs of conditions sanitation compartment, the Working inspection. These new, proposed that don’t comply with sections 229.137 Group and FRA determined that, on criteria for units with defective and 229.139 electronically, rather than much of the existing equipment, a sanitation compartments would on the daily inspection report. Some of simple vent in the sanitation supercede those set forth in paragraphs the carriers have stated that they have compartment that opens to facilitate the (a)–(c) of section 229.9, which require electronic repair reporting systems in exchange of fresh air with air in the moving designated locomotives as lite place that work more efficiently than toilet area sufficiently addresses or dead, under certain circumstances, paper records. FRA sees no reason to ventilation. According to discussions and sometimes require en route failures thwart these ongoing programs, so long with the Working Group, which consists to be addressed at the nearest forward as they are capable of being audited and of parties who use and maintain point where the necessary repairs can be effectively track repairs. locomotives, these vents adequately accomplished. These new, proposed diffuse offensive odors, so long as the Section 229.137(a) Sanitation, General criteria for units with defective toilet is sanitary and operating. This Requirements sanitation compartments would also vent must be capable of opening or supercede the language in section This portion of the proposed closing on command or control of the 229.21(a) and (b), that requires defective sanitation standard sets forth the user in order to meet the requirement of items to be repaired prior to departure. primary requirements for equipping ‘‘adequately ventilated.’’ Other As FRA and the Working Group lead locomotives in use with sanitation ventilation systems in place on older examined the issue of sanitation on facilities. FRA’s primary concern is locomotive equipment must operate as locomotives, it was determined that providing locomotive crews in the lead intended, evacuating the air in the alternative requirements would be more units with access to private toilet and sanitation compartment, in order to appropriate for the handling of washing facilities, that are equipped meet the proposed standard. locomotives that are otherwise fit for with adequate ventilation, toilet paper, The ventilation systems on new service, but possess a defective toilet or and trash containers. Paragraph (a)(1) locomotive equipment is more complex. ventilation system in the sanitation proposes that each lead locomotive in The cab’s air flow is controlled and compartment. The power available in use must contain a sanitation pressurized to maximize air flow and these units can be utilized in the train compartment, except as indicated in equipment performance, and minimize consist, without introducing safety paragraph (b) where proposed noise levels in the cab. In order to meet hazards associated with the equipment exceptions to this requirement are set the proposed requirement concerning and train movement. The hazards forth, or where a unit is designed such ventilation for these newer units, that employees face in the presence of that no sanitation compartment exists. portion of the ventilation system defective or unsanitary facilities are For instance, certain locomotive units required to provide air movement in the addressed by the requirements set forth used by Amtrak have toilet facilities sanitation compartment must be

VerDate 112000 18:26 Dec 29, 2000 Jkt 194001 PO 00000 Frm 00011 Fmt 4701 Sfmt 4702 E:\FR\FM\02JAP2.SGM pfrm03 PsN: 02JAP2 146 Federal Register / Vol. 66, No. 1 / Tuesday, January 2, 2001 / Proposed Rules operative, or other, effective alternative inside the toilet compartment that than specifying units by name in the provisions for ventilation of the prevents entry by a person who is not definition, so that effective existing sanitation compartment must be made. aware that the compartment is systems and systems not yet developed, If the ventilation system for the occupied. A modesty lock can typically would not be unintentionally excluded. sanitation compartment is defective as be disabled from the outside in the As discussed above, FRA does not of the daily inspection, the railroad event of an emergency that requires wish to prescribe a particular type of carrier may not use the unit in the lead entry from outside the toilet washing system. However, each lead position, unless repaired. If not compartment. FRA believes employees locomotive must have one of the repaired, the railroad carrier may use should have the expectation of privacy systems outlined in the proposed the locomotive in trailing position, in when using toilet facilities, consistent definition available for employee use. switching service consistent with the with similar standards issued by other As currently proposed, this paragraph requirements of section 137, paragraph regulatory bodies and common sense. A states that the washing system must be (b)(1)(ii), or in transfer train service door that closes and that possesses a located in the sanitation compartment, consistent with the requirements of modesty lock provides that privacy. unless it is otherwise provided to section 137, paragraph (b)(1)(iii). The The railroad carriers on the Working employees when they report for duty, rationale for permitting this usage when Group expressed some concerns about a enter the cab for duty, or where the the ventilation system is inoperative, is modesty lock that would prevent entry locomotive possesses a stationary sink that trailing units are typically in the event of an emergency, such as an that is not located in the sanitation unoccupied, and so no harm would accident or health problem. As defined compartment. Based on discussions come from utilizing the locomotive in in this proposal, the railroads may with the Working Group, FRA that position, and the exceptions set utilize modesty locks that can be understands that on some locomotives forth in section 139(b)(1)(ii) and (iii) disabled in an emergency, so long as the washing systems are located in the toilet require the carriers to provide access to lock prevents an accidental or compartment, but in many cases they adequate facilities elsewhere. unnecessary intrusion. FRA does not are provided to employees in crew It is important to note that a clean, prescribe specific requirements packs. Many railroads give crew packs operable toilet facility will prevent concerning the form of the modesty lock to employees as they begin each work harmful gases or persistent, offensive in this NPRM. Some of the railroad shift, and they typically contain odors from developing in the first place, carriers utilize fairly sophisticated, antibacterial soap, paper towels or moist and so the most productive way to expensive devices, and some utilize an towelettes, toilet paper, and perhaps eliminate the risk of noxious air in the inexpensive, rudimentary slide device. bottled water. As stated above, FRA sees cab is to focus attention on maintaining These achieve the desired level of no need to require the railroad carrier to the toilet facility properly. It is also privacy, and also provide the employer maintain washing products in the important to note that if the toilet room with the ability to enter the sanitation compartment, so long as door is designed to be equipped with compartment in the event of an employees receive them in crew packs seals, when the seals are maintained emergency. Either would meet the at the beginning of their shift. The crew and replaced as needed, odors are less requirement proposed in this paragraph. packs will be made available to crews at likely to migrate to the interior of the As FRA understands it, most their reporting point or onboard the cab. If applicable, replacing faulty locomotives are currently equipped locomotive. The employer must provide sanitation compartment door seals with closing doors that have modesty these items to employees in order to would be advisable to further protect locks, and if not, the costs associated meet the proposed standard. the cab occupants from offensive odors, with adding modesty locks to This paragraph also permits sinks although this proposal does not require unequipped units are minimal. In the located adjacent to the sanitation such replacement. Working Group discussions, the compartment to remain outside the In section 137(a)(2), FRA proposes industry representatives indicated that sanitation compartment. According to that the sanitation compartment must all units could be equipped with information received from the Working possess a door that closes, and the door modesty locks by [18 months after Group, at least one Class I railroad must be equipped with a modesty lock. publication of the final rule]. carrier maintains locomotives with A door which closes is one that, by As currently drafted, this proposal stationary sinks that are not in, or design or device, stays shut when the would require all sanitation capable of being placed in, the user closes it. For instance, a typical compartments to be equipped with a sanitation compartment. FRA sees no interior, residential door with a door closing door as of the daily inspection. safety or health risk associated with this knob is a door that closes. Also, a door However, if the modesty lock is configuration and, therefore, the that possesses a spring device that pulls defective as of the daily inspection, the proposed standard would not prohibit the door closed after opening constitutes railroad carrier would not be required to this. a door that closes. Similarly, doors used remove a locomotive from service. The Section 229.137(a)(5) proposes that to enclose bathrooms on airplanes close carrier would be required to repair the the sanitation compartment contain when pulled shut, by way of a device modesty lock on or before the next 92- toilet paper in sufficient quantity to similar to a door knob, and would meet day inspection required by part 229. meet employee needs, unless the the proposed standard set forth here. The requirements proposed in railroad carrier otherwise provides (These doors also possess modesty locks § 229.137(a)(3)–(a)(4) require toilets and employees with toilet paper when they to prevent unwanted intrusion). FRA washing systems in lead locomotives in report for duty or occupy the cab for does not mandate the type of closing use. FRA understands that there are duty. FRA chose not to prescribe a door the locomotive must possess, so many varieties of toilet facilities that specific amount of toilet paper for each long as the door closes by design or on function effectively on board employee in the cab, believing that this command of the user. This proposed locomotives, and there are likely to be issue is best handled through common requirement is necessary to provide technological improvements that will sense decision making at the local level. basic privacy to employees using the bring about new units in the future. The As FRA understands it, some railroad sanitation facilities. A modesty lock is a proposal takes a performance approach carriers maintain toilet paper in the device operated by the occupant from to toilet and washing systems, rather sanitation compartment, and some rely

VerDate 112000 18:26 Dec 29, 2000 Jkt 194001 PO 00000 Frm 00012 Fmt 4701 Sfmt 4702 E:\FR\FM\02JAP2.SGM pfrm03 PsN: 02JAP2 Federal Register / Vol. 66, No. 1 / Tuesday, January 2, 2001 / Proposed Rules 147 on crew packs for dissemination of crew packs when they report for duty or facilities, and employees must not be toilet paper. FRA believes either method occupy the cab for duty. placed in situations where they are is adequate, so long as reasonable forced to request permission to use the Section 229.137(b) Exceptions amounts of toilet paper are provided to sanitation facilities of foreign meet typical daily needs. If it is Paragraph (b) of section 229.137 sets establishments during the workday. So determined during the daily inspection forth exceptions to the general long as these conditions are met, and that a locomotive is not equipped with requirements proposed in paragraph (a), because the nature of commuter sufficient toilet paper, the unit must be discussed above. Paragraph (b)(1)(i)–(v), operations affords employees the equipped prior to departure. For most set forth exceptions to the general opportunity for frequent access railroads, this requirement would be requirement of a sanitation throughout the shift, FRA sees no reason accomplished by the use of crew packs, compartment in each lead locomotive in to impose a new, costly requirement for which contain ample toilet paper for use. These exceptions are proposed in cab toilets on commuter railroad each employee’s work shift. order to accommodate certain unique locomotives. Section 229.137(a)(6) proposes to circumstances. Paragraph (b)(1)(ii) would permit all require that each sanitation Paragraph (b)(1)(i) would exempt locomotives engaged in switching compartment contain a trash receptacle, locomotives used in commuter service, where employees have access to unless the railroad carrier provides operations where employees have railroad carrier-provided sanitation portable trash receptacles in the access to sanitation facilities at frequent facilities outside of the cab, to operate employee crew packs. This proposed intervals, either at stations or elsewhere without a sanitation compartment in the requirement attempts to provide on the train. For purposes of this cab. For purposes of this paragraph, flexibility to the railroad carrier where proposal, commuter service means switching service is defined as the space limitations in locomotive commuter or short-haul railroad classification of freight cars according to sanitation compartments prevent the passenger service in a metropolitan or commodity or destination; assembling application of an across-the-board suburban area, and commuter service cars for train movements; changing the requirement for permanent trash cans or that was operated by the Consolidated position of cars for purposes of loading, similar fixtures in all sanitation Rail Corporation on January 1, 1979, unloading, or weighing; placing compartments. Therefore, as drafted that runs on rails or electromagnetic locomotives and cars for repair or here, the trash receptacle may be a guideways, but does not include rapid storage; or moving rail equipment in permanent trash can or similar fixture transit operations in an urban area that connection with work service that does located in the sanitation compartment, are not connected to the general railroad not constitute a train movement. This or the trash receptacle may be a small system of transportation. (See, 49 CFR definition has developed over time in plastic bag that hangs from the door part 209, Appendix A) This definition is the railroad industry, and as used here, handle or is posted to an interior wall. consistent with the types of railroads is consistent with customary usage. In addition, where the space limitations that Congress intended to be subject to This exception is similar to and based in the sanitation compartment prohibit FRA’s jurisdiction under the Safety Act; on the same general principle as the placing any sort of trash receptacle in see 49 U.S.C. 20102(1). Most commuter exception proposed for commuter the sanitation compartment, portable runs are relatively short in duration, service. Employees engaged in trash bags that can be included in the providing multiple times during the switching service are typically in the employee crew packs may be placed day’s work shift when facilities can be cab for relatively short periods of time, outside the sanitation compartment. In used at downtown or outlying and have access to sanitation facilities these instances, the Working Group and terminals. Typically, cab crews on in rail yard buildings or at railroad FRA expect that the trash bags will be commuter operations may use sanitation carrier facilities along the right-of-way placed at a location that is as far from facilities in the stations they service in as needed. Generally, these employees the cab stand as possible, such as in the the course of their route, or in the are not captive in a locomotive cab for nose of the cab. FRA and members of passenger cars they are hauling. interminable time periods, where a the Working Group wish to segregate Therefore, FRA sees no need to require sanitation facility clearly must be sanitation-related trash from the area the locomotive cabs on commuter provided. Therefore, FRA proposes that where employees work and often eat operations to also possess a sanitation locomotives involved in switching during the course of the work shift. In facility. In most cases, the configuration service need not possess a toilet in the large measure, where a trash receptacle of commuter locomotives differs from cab, so long as employees have ready cannot be placed in the sanitation traditional freight locomotives. Most do access to railroad carrier-provided compartment, the location of the not currently possess sanitation sanitation facilities along the right-of- portable trash bags will be controlled by compartments and there may be no way or in yard facilities at frequent the employees working in the cab, who additional space to add such a intervals during the work shift. If a have a natural interest in keeping the compartment. railroad carrier is unable to conform sanitation-related trash away from the This exception makes clear that the with this concept, this proposed work and eating areas of the cab. sanitation facilities employees use must exception could not apply. If the As currently drafted, if it is be provided by the commuter railroad switching routes place cab employees at determined during the daily inspection carrier. In other words, the employer remote locations where railroad carrier that the sanitation compartment is not may not utilize this exception to the sanitation facilities are not accessible to equipped with a trash receptacle, or the general requirement if employees are employees, then the carrier must crew has not been provided one in a forced to use sanitation facilities in provide a locomotive that is equipped crew pack, the railroad carrier must businesses along the right-of-way that with all of the items required by equip the locomotive with a trash have no connection to the employer, paragraph (a) of this section, which is receptacle prior to departure. This may such as restaurants, manufacturing discussed below. (It is important to note be accomplished by placing a trash plants, or convenience stores. FRA that this NPRM would prohibit the receptacle in the sanitation believes that each commuter railroad removal of toilet facilities from compartment, or by providing portable operation subject to these standards is locomotives engaged in switching trash receptacles to employees in their responsible for providing sanitation service, where those locomotives are

VerDate 112000 18:26 Dec 29, 2000 Jkt 194001 PO 00000 Frm 00013 Fmt 4701 Sfmt 4702 E:\FR\FM\02JAP2.SGM pfrm03 PsN: 02JAP2 148 Federal Register / Vol. 66, No. 1 / Tuesday, January 2, 2001 / Proposed Rules equipped with a toilet on the effective purchasing new locomotives would be will be available during every work date of the final standards. This is out of the question for these companies, shift. discussed in greater detail below.) and spending considerable funds to Paragraph (b)(1)(v) proposes that the Paragraph (b)(1)(iii) relates to transfer retrofit old units could mean that locomotives of scenic, tourist, historic, trains, and tracks the same logic as the critical safety programs in other or excursion railroads, which are not exceptions proposed for commuter disciplines would suffer. The older steam-powered, which operate on the operations and switching service. locomotive equipment generally general system, and are otherwise Transfer trains are trains that travel cascades down to the Class III railroad covered by the locomotive safety between a point of origin and a point of carriers, and over time the Class III standards set forth in 49 CFR part 229 final destination not exceeding twenty railroad carriers will acquire toilet- would not be required to be equipped miles and do not perform switching equipped locomotives. Currently, many with compliant toilet facilities, so long service. See, 49 CFR 232.13(e)(1) of the older locomotive units are not as employees working in these (Specifying the air brake test required equipped with toilet facilities, and some locomotives have access to appropriate for transfer trains.) Because the cab of the units actually lack space for toilet facilities at frequent intervals during employees engaged in transfer train facilities, depending on the purpose it their work shift. The rationale for this service generally have the opportunity was originally intended to serve. FRA proposal is similar to the proposed to use railroad carrier-provided believes that it would create great exceptions for Class III entities. The sanitation facilities, as needed during financial hardship for these entities to railroads addressed by this paragraph, the course of their work shift, FRA require sanitation retrofits or new for the most part, have limited profit proposes that the existing locomotives locomotive purchases. Some of the margins and utilize older equipment used in transfer service need not possess small operators might simply opt out of that may not possess sanitation facilities a sanitation compartment. These the market, and for others, the diversion on board. The costs to retrofit these employees are less likely to face long of funds could create safety problems units would adversely impact the periods of time in the locomotive elsewhere. Therefore, FRA proposes this viability of these operations, and on without access to sanitation facilities in exception to ensure that the proposed some of the present equipment, may not rail yard buildings or at railroad carrier- sanitation standards do not give rise to be possible. FRA believes that so long as owned facilities along the right-of-way. additional safety concerns or destroy the employees who work on these units If the railroad carrier is unable to otherwise productive business concerns. are provided appropriate facilities provide such facilities to accommodate However, the Class III railroad carriers throughout the course of the work shift, employee needs, then the carrier must that choose to avail themselves of this there would be no reason to require utilize locomotives that possess toilet exception must provide or arrange for these locomotives to be equipped with facilities that otherwise meet the adequate sanitation facilities, which sanitation facilities. FRA invites requirements of this proposal. (It is means they must be available to comment on this, and all other important to note that this NPRM would employees readily, frequently, and as proposals set forth in the NPRM, prohibit the removal of toilet facilities needed along the right-of-way. particularly with respect to long- from locomotives engaged in transfer distance excursion operations that service, where those locomotives are This proposed exception would not typically employ locomotives already equipped with a toilet on the effective permit a Class III railroad carrier to equipped with toilet facilities. Finally, date of the final standards. Also, all advise employees to use sanitation it’s important to note that locomotives manufactured after the facilities at restaurants and other public representatives of tourist and excursion effective date of the final rule in this establishments that have no business railroads have suggested that FRA matter must be equipped with a toilet connection to the carrier. These Class III modify the language in this paragraph to facility accessible without going outside employers may not assume that clarify that the tourist operator is the locomotive. These requirements are employees will locate sufficient responsible for providing access to discussed in greater detail below.) sanitation facilities on their own. The adequate toilet facilities rather than the Paragraph (b)(1)(iv) proposes to Class III railroad carrier must take railroad owner of the track on which the exempt locomotives of Class III railroad affirmative action to see that the cab tourist organization travels. FRA carriers that are not equipped with toilet employees have frequent access as believes that this would be advisable in facilities, and that are not engaged in needed to adequate sanitary facilities. If the final rule, and invites comment on switching or transfer train service, from it is not possible for the railroad carrier it now. the requirement of having a toilet to provide adequate sanitary facilities It is difficult to define with specificity facility in the cab. However, as is stated along the right-of-way, then it is the terms ‘‘ready access’’ and ‘‘frequent in the proposed exception, these Class expected that the carrier will consult intervals,’’ which are used in paragraphs III railroad carriers must provide or with customers or other businesses (b)(1)(i)–(b)(1)(v) of this section of the arrange for sanitation facilities along the along the route for the specific purpose NPRM. FRA and the Working Group right-of-way. (It is important to note that of garnering access to adequate spent a great deal of time discussing the the NPRM would prohibit the removal sanitation facilities for employees who terms and the concepts they infer. All of toilet facilities from locomotives, if must work in cabs without sanitation struggled with appropriate language that those locomotives are equipped with a compartments. In addition, the Class III would capture the concepts accurately toilet on the effective date of the final railroad carrier must communicate to and still provide sufficient flexibility to standards. This is discussed in detail employees the locations and, as accommodate the changeable nature of below.) appropriate, hours of availability of railroad operations. The Working Group Class III railroad carriers are small access to the sanitation facilities discussed establishing specific time businesses with limited capital margins. provided by the carrier via customers or periods or distances traveled that might (The current definition of these entities, other businesses along the route. FRA equate to a satisfactory and concise as established by the Surface and the Working Group expect that the definition of these terms. However, Transportation Board, is a railroad Class III carrier will consider 24-hour members of the Working Group carrier that earns $20 million or less in railroad operations in these recognized that individuals’ access annual operating revenues.) Typically, determinations, and which facilities needs vary greatly from person-to-

VerDate 112000 18:26 Dec 29, 2000 Jkt 194001 PO 00000 Frm 00014 Fmt 4701 Sfmt 4702 E:\FR\FM\02JAP2.SGM pfrm03 PsN: 02JAP2 Federal Register / Vol. 66, No. 1 / Tuesday, January 2, 2001 / Proposed Rules 149 person and from day-to-day. Further, purposes of sanitation, FRA expects that retrofit and the railroad carrier’s own the Working Group noted that it may the carrier will ensure that those OSHA plan to replace the units, FRA believes take 5 hours to traverse 5 miles on a standards concerning the presence and that in this instance an exception is given day, depending on traffic, condition of toilet and washing facilities appropriate. Finally, it is important to weather, load, and other considerations. will be met. If this proposed standard is note that this carrier objects to and Therefore, the Working Group rejected adopted as a final rule, FRA would be disagrees with any inference or the notion of a hard and fast time or exercising jurisdiction over cab statement that the current systems in mileage limit as an appropriate solution employee access to sanitary facilities, place are inadequate or are not properly to this question. specific sanitation equipment on rolling maintained. Instead, the Working Group offered an stock, and the servicing and use of that As written, this exception would explanation of the concept of adequate equipment on rolling stock. FRA does apply only to the Class I railroad carrier access to sanitation facilities, where not intend to oust OSHA’s existing that FRA knows possesses these toilet locomotives covered by these authority with respect to sanitation systems. FRA is unaware of any other exceptions are not equipped with a equipment, or its maintenance, where it railroad carriers that utilize this toilet. toilet facility: The crew members would exists elsewhere. However, FRA requests comments from have immediate accommodations made Paragraphs (b)(2)(i) and (b)(2)(ii) the industry as to whether this system by the local railroad carrier officials on propose temporary exceptions to the exists on other properties, and if so, reasonable demand or need by a crew requirement of a toilet facility that what plans those employers may have member to provide access to a railroad conforms with the proposed definition for retiring or replacing the toilets. If the carrier’s sanitation facilities at frequent of toilet facility, until those system is more prevalent than FRA now intervals during the course of their work nonconforming toilet facilities have believes it is, final rule text language shift. As used here, the term ‘‘immediate been replaced with compliant ones. may need to be altered to accommodate accommodations’’ means that the Paragraph (b)(2)(i) addresses a specific the use of the systems on those employer would begin the process of type of toilet facility that a Class I properties. In making this providing access to sanitation facilities railroad carrier possesses on determination, FRA would consider a when the employee requests it. approximately 500 locomotive units. variety of factors, including the number The general principle that FRA and This toilet, referred to as a ‘‘Bogan,’’ is of toilets involved, the operational the Working Group intend to capture similar to portable toilets that are often characteristics of the railroad operations with these terms is that employees used at outdoor events, where the need in which the toilets are used, the would have access to sanitation for mobile, basic toilet facilities exists. programs the employer has in place to facilities, as the need arises, that are This toilet, which does not meet the retire or retrofit the toilets, the economic located in close proximity to the work requirements of the proposed definition status of the railroad carrier involved, site, and that are owned or operated by for toilet facility, has no flush and the effectiveness of the existing the railroad carrier. In many mechanism and simply permits waste to maintenance and servicing program for circumstances, these terms simply mean flow to a tank below the toilet seat for the toilet. As is stated above, FRA an employee could disembark from a storage, treatment, and periodic wishes to restrict and eventually locomotive in a yard, use a toilet in a disposal. Chemicals are placed in the eliminate the use of toilets that do not nearby building, and then return to the storage tank to treat the waste and meet the definition of toilet facility locomotive cab. However, if employees minimize odors that would otherwise proposed in this NPRM. In connection work in remote locations where accumulate. Maintenance of these with this exception and the exception sanitation facilities do not exist, the toilets may be a greater challenge than set forth in paragraph (b)(2)(ii) below, it railroad carrier would be required to is the case with more contemporary is important to note that certain provide employees with alternate technology, and failure to properly enforceable state standards may require transportation to a nearby site, in order maintain them could result in flush toilets for cab employees, and the to make use of one of the proposed unacceptable conditions. final standard FRA issues in this exceptions listed above. These terms The Class I railroad carrier owner of proceeding would preempt those follow the logic of the OSHA standards the Bogan toilets is replacing these units standards. Therefore, FRA wishes to and recent interpretation, which place as they become defective, and is retiring make every effort to minimize the use of priority on access as the need arises. them as the locomotives on which they non-flush systems in this proceeding. This principle is important because of are situated are retired. The Bogan Clearly, FRA and the Working Group the adverse health effects that may toilets are being replaced with toilets have no desire to issue or recommend occur if access is denied. Also, this that incorporate advanced technology. standards that ultimately permit the use principle enhances an employee’s For that reason, the Working Group of systems that are more rudimentary ability to focus on the work being done, recommended that FRA permit these than those permitted by existing state and improves the likelihood that safe toilets to remain in use until they are standards. However, FRA understands train movements will occur. retired by the railroad carrier as part of that certain accommodations may be It is important to note that each of the railroad carrier’s retirement plan. necessary in the short term in order to these exceptions would require the The proposed rule text permits the achieve that goal. carriers to provide facilities that ‘‘meet Bogan toilet to remain in service on this Paragraph (b)(2)(ii) addresses a similar otherwise applicable sanitation Class I railroad carrier until they situation that exists on another Class I standards.’’ With this language, FRA become defective or are replaced with railroad carrier, in which the toilet intends that the alternate sanitation conforming units, whichever occurs facility in place on a majority of the facilities offered by the carrier must first. Although FRA would prefer more carrier’s locomotives does not comply meet the standards for sanitation modern systems in place on all with the proposed definition of toilet equipment and servicing that apply to locomotives, FRA is not presently aware facility. These toilet facilities utilize that workplace. For instance, if the of an imminent, serious safety or health carrier-provided plastic liners to collect alternate facility is located in an office risk associated with this type of unit human waste; these liners are then building along the right-of-way that falls that would mandate immediate removal. sealed, placed in sealed waste within the authority of OSHA for Given the costs associated with toilet containers, and delivered by the

VerDate 112000 18:26 Dec 29, 2000 Jkt 194001 PO 00000 Frm 00015 Fmt 4701 Sfmt 4702 E:\FR\FM\02JAP2.SGM pfrm03 PsN: 02JAP2 150 Federal Register / Vol. 66, No. 1 / Tuesday, January 2, 2001 / Proposed Rules employees to the carrier for disposal. exists on other properties, and if so, employees may require changes in train Although the carrier believes that this what plans those employers may have consist where imminent safety hazards system adequately addresses sanitation for retiring or replacing the toilets. If the are present. Nothing in this proposal needs for cab employees, concerns system is more prevalent than FRA now would alter that process. about the system have been raised by believes it is, final rule text language The requirement set forth in employees, landowners along the right- may need to be altered to accommodate paragraph (c) reflects the fundamental of-way, and certain State agencies. the use of the systems on those need to provide employees with a clean, Further, as the carrier recognizes, proper properties. In making this safe workplace. It is inconsistent with administration of this system off the determination, FRA would consider a notions of decency and the minimum carrier’s home lines sometimes is not variety of factors, including the number requirements for workplaces in other practicable, and ‘‘power sharing’’ of toilets involved, the operational industries to expect employees to work arrangements in the railroad industry characteristics of the railroad operations effectively and safely if unsanitary are growing. FRA agrees that this system in which the toilets are used, the waste or deplorable odors are present. should be retired, but also recognizes programs the railroad carrier has in The Working Group agrees with this the significant capital and labor costs place to retire or retrofit the toilets, the principle and believes that the proposed associated with a massive retrofit economic status of the railroad carrier standard in the NPRM is appropriate for campaign. The carrier has initiated a involved, and the effectiveness of the the railroad industry. replacement program in which existing maintenance and servicing In order for a locomotive to be placed approximately 30 locomotives per program for the toilet. As is stated or remain in the lead position as of the month are being retrofitted with new above, FRA wishes to restrict and daily inspection, all aspects of the toilet toilet facilities that would satisfy this eventually eliminate the use of toilets facility must be operating as intended proposed rule. In addition, this carrier that do not meet the definition of toilet and it must be clean. The chemicals has decided not to deliver locomotives facility proposed in this NPRM. required by certain systems must be with the older toilet facilities in the lead However, FRA understands that certain supplied in the appropriate amount so position to other carriers in interchange, accommodations may be necessary in that the toilet will operate as intended; and this proposal would incorporate the short term in order to achieve that if the system calls for antifreeze, it must that restriction for the period of retrofit. goal. be present during winter months to Finally, this carrier has stated its With respect to paragraphs (b)(2)(i) prevent freezing; any integral flush intention to make every reasonable and (b)(2)(ii), it is important to clarify mechanisms or sensors must operate as effort to place compliant locomotives in that the proposed exceptions relate only intended; and all components of the the lead position on its system wherever to the type of toilet facility in use. The system intended to be present must be present. possible. This sort of consist other proposed requirements set forth in As discussed above, FRA has management commitment is sometimes this NPRM would apply to these proposed definitions for the terms difficult to achieve, given the competing railroads and their equipment according to their terms. For instance, the ‘unsanitary’ and ‘sanitary’ to assist the priorities that other safety requirements industry and FRA inspectors to and safety risks present. However, FRA requirements set forth in paragraphs (a)(1)–(2), and (a)(4)–(6) would apply to determine conditions that are and the Working Group are satisfied at noncompliant. FRA believes that most this point in time that the retrofit these locomotive units. Similarly, section 229.139, which relates to individuals have a general sense of program and the carrier’s commitment servicing and operative equipment, conditions that would constitute to place locomotives with compliant would require the units covered by unsanitary facilities, and FRA toilets in the lead where possible, is the paragraphs (b)(2)(i) and (b)(2)(ii) to inspectors would utilize that sensible best solution to the problem presented. operate as intended and be located in approach to enforcing this standard, but Based on the number of units in need sanitation compartments that are the definition should provide additional of retrofit, FRA and the Working Group ventilated and free of debris and waste. clarity to that process. As for mandating estimate that all of the carrier’s Paragraph (c) of section 137 would specific servicing requirements, FRA locomotives are capable of being in prohibit a railroad carrier from placing and the Working Group currently compliance with the proposed a locomotive with an unsanitary or believe that the railroad carriers, in sanitation standards by July 1, 2003. defective toilet facility in the lead consultation with their labor forces, are Therefore, based on all information position. This determination would be in the best position to determine when currently available, FRA proposes to made as of the time of the daily toilet facilities must be emptied and permit the Class I railroad carrier to inspection required by 49 CFR § 229.21. cleaned. These decisions are based on a operate locomotives in the lead position En route failures that occur after the variety of factors, including degree of on its lines with non-compliant units daily inspection would impose no use, length of trip, weather conditions, until July 1, 2003. After that date, all burden on the railroad carrier, until the size of crew, and the specifications of lead units would be required to possess next daily inspection is due. However, the system in place. However, FRA may compliant toilet facilities. Finally, it is according to Working Group members, consider adopting more specific important to note that this carrier the current railroad practice with requirements for servicing the toilets, objects to and disagrees with any respect to en route toilet failures due to concerns that have been raised by inference or statement that the current involves moving defective toilet units railroad employees, and this issue is systems in place are inadequate or are into a trailing position, where it is discussed in greater detail below. not properly maintained. possible to do so. Although the NPRM In discussions with members of the As written, this exception would does not require such movement, the Working Group subsequent to the last apply only to the Class I railroad carrier enhanced focus on sanitation facilities Working Group meeting, some of the that FRA knows possesses these toilet that will naturally occur as a result of carriers raised concerns about the systems. FRA is unaware of any other this standard should increase the difficulties of providing a substitute railroad carriers that utilize this toilet. likelihood that the practice will locomotive that possesses a sanitary, However, FRA requests comments from proliferate. In addition, Working Group operable toilet facility on branch lines the industry as to whether this system members stated that currently, in remote locations. The carriers stated

VerDate 112000 18:26 Dec 29, 2000 Jkt 194001 PO 00000 Frm 00016 Fmt 4701 Sfmt 4702 E:\FR\FM\02JAP2.SGM pfrm03 PsN: 02JAP2 Federal Register / Vol. 66, No. 1 / Tuesday, January 2, 2001 / Proposed Rules 151 that in remote areas, there may be only employees aren’t exposed to strong, proposed rule that use the terms ‘‘ready one locomotive available and if it does persistent chemical or human waste access to carrier-provided sanitation not comply with the sanitation odors sufficient to deter use of the facilities outside of the locomotive, that standards as of the daily inspection, the facility or to give rise to a reasonable meet otherwise applicable sanitation crew could not move the locomotive for concern with respect to exposure to standards, at frequent intervals during repair or to another location where hazardous fumes; and the course of their work shift.’’ In view additional units would be available. —The locomotive must be repaired, of the fact that the branch line situation Presumably, the crew would have to cleaned or switched with a compliant typically involves remote locations wait for a compliant locomotive to unit at the next daily inspection or the where ‘‘ready access’’ may be arrive at the remote location, and this next location at which such service can unavailable and should occur rarely, the would give rise to other issues, such as take place, whichever occurs first. proposed rule would impose a different hours of service restrictions, traffic It is important to note that this standard than is required in other problems, and the availability of exception cannot be used where a operational settings. sanitation facilities. Therefore, this second locomotive exists, but it also Paragraph (d) of section 137 provides NPRM contains an exception to the contains a defective or unsanitary that if a railroad carrier determines that requirement set forth in paragraph (c) sanitation compartment. The proposed a toilet facility is defective or unsanitary for branch lines where locomotives with rule does not encourage deferral of at the time of the daily inspection, the defective or unsanitary toilet facilities as necessary maintenance and cleaning carrier may utilize the unit in a trailing of the daily inspection may be located where locomotives can reasonably be position. However, if the unit is and the facilities cannot be repaired, expected to be pressed into service as subsequently used to haul employees, cleaned, or switched with another, lead units at any time. This proposed the unit must be cleaned prior to compliant locomotive. Although this exception is available only where there occupancy and defective toilet facilities situation is probably rare, FRA and the is just one locomotive available and it must be clearly marked as unavailable Working Group believe it would be possesses a defective or unsanitary for use. This paragraph and others that prudent to craft an exception to cover sanitation compartment, or where there follow establish the requirement that this scenario. The proposal includes this is no additional track to use to facilitate occupied locomotives should not exception, but we invite comment from switching a compliant locomotive into expose employees to unsanitary members of the industry on whether the the lead position, and all of the other conditions. FRA recognizes that language could be refined further to conditions listed above and in the rule locomotive toilets periodically more artfully capture the narrow text are present. Some members of the malfunction. The railroad carrier should instances in which the exception is Working Group expressed concern not be penalized for these events, and intended to apply. Conventional about how this exception might play out under prescribed circumstances, should industry language may use the term when push-pull service is in use on a be able to utilize the available power in ‘‘branch line’’ where it has broad branch line. FRA invites comment on the equipment. However, the railroad meaning and application, and FRA does this issue from the industry. FRA does carrier must minimize employee not wish to insert that broader meaning not believe that the proposal would be exposure to the hazards of untreated here. The exception is intended to cover unworkable in push-pull service, but waste and other unsanitary conditions. remote locations where traffic is limited, asks interested parties to discuss any Therefore, the carrier should clean any and FRA invites comment on how the difficulties that might arise. trailing units if they will be occupied, language might be improved to state this It is also important to note that to use and must mark defective toilet facilities clearly. Paragraph (c)(i) sets forth all of this exception, the proposed rule so that employees understand the toilet the conditions that must be present in requires the railroad carrier to arrange facility cannot be used. order for the railroad to utilize this for access to a toilet facility outside the During this process, the Working exception and continue to use the lead locomotive, upon reasonable Group did not believe it necessary to locomotive: request of an employee assigned to work recommend specific requirements for —The defective or unsanitary onboard the locomotive. While it identifying defective sanitation units, condition must be discovered at a remains the responsibility of the and FRA sees no reason to do so either. location where there are no other railroad to provide access to a toilet The Working Group will reassemble to suitable (i.e., has sufficient power to facility, in most cases, FRA expects consider comments to this proposed complete the haul) locomotives access will be achieved by a means as rule and develop recommendations for available for use, it isn’t possible to simple as the crew making use of a toilet the final standard, and so may switch another locomotive into the lead facility at a known place of business, reconsider this issue at that time. position, or which is not equipped for such as a restaurant, that is regularly Currently, some carriers use a red tag to repair or cleaning; frequented by the crew during their indicate defective conditions, and some —The locomotive, while breaks. On the other hand, access to a railroads tape the toilet seat so that it noncompliant, didn’t travel through a toilet facility outside the locomotive cannot be used. Either method, and location where it could have been that meets otherwise applicable others that may be in use, are sufficient, cleaned, repaired or switched with a sanitation standards may not be so long as a reasonable person entering compliant locomotive since its last available to the crew during the work the cab would understand that the toilet required daily inspection; shift for reasons such as personal safety facility is defective and should not be —Upon reasonable request, the while not on railroad property or simply used. carriers must arrange for access to toilet that the time required for an employee Paragraph (e) proposes that when it is facilities for employees assigned to work to walk to a toilet facility may impede determined during the daily inspection on the locomotive during the time they railroad operations. In such situations, that a road locomotive toilet facility is must work on it; the railroad may meet a reasonable defective, but sanitary, the railroad —If unsanitary conditions exist, the request by providing transportation to a carrier may move the locomotive into sanitation compartment door must be toilet facility during the work shift. This switching or transfer train service for a closed and sufficient ventilation concept is distinct from the other very brief period of time, consistent provided to the cab compartment so that exceptions in paragraph 137(b) of the with the requirements for that service,

VerDate 112000 18:26 Dec 29, 2000 Jkt 194001 PO 00000 Frm 00017 Fmt 4701 Sfmt 4702 E:\FR\FM\02JAP2.SGM pfrm03 PsN: 02JAP2 152 Federal Register / Vol. 66, No. 1 / Tuesday, January 2, 2001 / Proposed Rules as discussed above. The unit may be locomotive in that position. In addition, the toilet facility. FRA strongly believes used in this service for a period not to the exceptions set forth in section that this proposed paragraph is exceed 10 days, at which time it must 137(b)(1)(ii) and (iii) require the carriers necessary to ensure that employee be repaired or used in trailing position. to provide access to adequate facilities protections in the area of sanitation are If the railroad carrier chooses to utilize elsewhere, and so employees would be not diminished as a result of this the equipment in this manner prior to using ventilated facilities in those rulemaking. It would be ironic and its repair, the carrier must clearly mark circumstances. unwise if FRA initiated a rulemaking, in the defective toilet facility so that a Paragraph (h) of section 137 provides consultation with industry reasonable person would know not to that if the sanitation compartment is not representatives, to improve employee use the toilet facility. The Working equipped with a door that closes when working conditions and railroad safety, Group and FRA do not expect the pulled shut as of the daily inspection, which ultimately resulted in a railroads to reassign locomotives from the door must be repaired prior to workplace that was more hazardous to road to yard service solely for the departure, or the locomotive must be employees and railroad safety. Based on purpose of circumventing any part of moved from lead position to trailing, the proposed exceptions for switching this regulation. FRA understands that transfer service, or switching service. In and transfer train service, some railroad there are overriding incentives for addition, this paragraph proposes that if carriers might opt to remove toilet railroads to keep road units with the modesty lock, required to be present facilities in units being used in that defective toilets in trailing road service in order to prevent unintended service, to avoid maintenance and until the next periodic inspection, intrusion, is defective as of the daily servicing costs. FRA proposes here to rather than reassigning them to yard inspection, the locomotive may remain eliminate that alternative. Railroad service. [It is also important to note here in use in the lead so long as the lock is carriers must retain toilets in equipped that this 10-day period may be repaired by the date on which the next units in order to provide the most shortened due to the fact the carriers 92-day inspection. [See discussion for accommodating access to sanitation may not need this amount of time to section 229.139(e) below.] The rationale facilities available—an operable toilet make effective repairs. See the for this proposed paragraph is that the on board the locomotive. Clearly, a discussion for proposed requirement for first priority for cab employees is to toilet facility on the locomotive is section 229.139(d) below for a more have the benefit of a door that closes preferable to one along the right-of-way. detailed discussion of this issue.] while using toilet facilities, for each Employees can utilize it as the need Paragraph (f) of this section proposes assignment in a lead locomotive in use. arises, which diminishes the risk of that if the railroad carrier discovers Therefore, the door must close as health problems. They would not be during the daily inspection that a lead designed, as of the daily inspection. So forced to leave running equipment on locomotive is not equipped with long as the compartment door closes as the track or slow planned operations, sufficient toilet paper, washing it should, a unit with a defective which can create safety risks. Also, as facilities, or a trash receptacle, the modesty lock may remain in service older locomotives cascade down to the carrier must equip the unit prior to until the date on which the next 92-day Class III railroads carriers, this proposal departure. This proposal reflects FRA’s inspection would be required. FRA enhances the likelihood that small belief that it would be unwise to require believes that affirming an employee’s entities will inherit locomotives a railroad carrier to change the consist expectation of privacy while using toilet equipped with toilet facilities. makeup due to a lack of toilet paper, facilities will contribute to appropriate Paragraph (j) proposes that all new washing facilities, or a trash bag. use of the facilities and consequent good locomotive purchases made subsequent However, FRA believes these items health, and that this proposal to the effective date of this rule, with would be relatively easy to locate and accomplishes that end effectively. The two narrow exceptions, must include a supply to cab crews, and so should be proposal balances legitimate employee toilet facility accessible to cab provided before any employee is privacy needs, by requiring a door that employees without walking outside. expected to depart. Therefore, the closes, and the legitimate difficulties The design may require walking out of railroad carrier must simply equip the associated with making use of a the cab into other compartments of the locomotive with these items prior to locomotive while moving it to the locomotive, but walking outside to use departure. As FRA understands present correct repair facility, by permitting the the toilet is disfavored. This paragraph railroad practice, most railroad carriers locomotive with a defective modesty reflects FRA’s desire that all cab supply these items to cab employees as lock to remain in service for a limited employees will work in a locomotive they begin their work shift, and so this time period. equipped with a toilet facility in the proposed requirement should not Paragraph (i) provides that all future. impose excessive burdens on the locomotives which are equipped with a The two narrow exceptions to this industry. toilet facility on the effective date of the proposed requirement relate to Paragraph (g) proposes that when it is final sanitation rule, must retain and switching units that are built discovered during the daily inspection maintain those toilet facilities, even exclusively for switching service and that the sanitation compartment where the locomotive units might be commuter locomotives designed ventilation is defective, the carrier must relegated to switching service or transfer exclusively for commuter service. With repair it prior to departure, or place the train service, where toilet facilities are respect to the switching service locomotive in trailing position, in not always required by this proposal. exception, the Working Group and FRA switching service consistent with the There is a small exception to this recognize that these units that are requirements of paragraph (b)(1)(ii), or proposed requirement, which involves created exclusively for yard service, and in transfer service consistent with the cabs that are not occupied. Where a are often too small and oddly shaped to requirements of (b)(1)(iii). As discussed railroad carrier downgrades a accommodate a toilet facility. Also, earlier, the rationale for permitting this locomotive to ‘‘booster’’ or ‘‘slug’’ because of their size and configuration, usage when the ventilation system is service, removing many of the interior these units are not used on long hauls inoperative, is that trailing units are appurtenances, so that the unit is no over the road on which employees typically unoccupied, and so no harm longer intended to be occupied in would clearly need toilet facilities in the would come from utilizing the movement, the carrier may also remove cab. Under all circumstances, these

VerDate 112000 18:26 Dec 29, 2000 Jkt 194001 PO 00000 Frm 00018 Fmt 4701 Sfmt 4702 E:\FR\FM\02JAP2.SGM pfrm03 PsN: 02JAP2 Federal Register / Vol. 66, No. 1 / Tuesday, January 2, 2001 / Proposed Rules 153 units would be used in yard service, with the requirements of sections 137 program for each of the toilet systems in where railroad carrier-provided and 139, and must be maintained so that service on their property for the sanitation facilities exist along the right- they operate as intended. In this NPRM, purposes of the servicing requirements of-way, and are available for employee FRA does not dictate when and how in section 139. FRA could simply use. New units used in transfer train railroad carriers must empty, clean, and establish a requirement that all railroads service would be required to be fitted service toilets. Members of the Working follow the manufacturer’s maintenance with toilet facilities. Group advised FRA that these decisions program for the toilet system in use. Similarly, the Working Group and vary greatly from property to property, Alternatively, FRA could establish a FRA presently believe that commuter and depend on weather conditions, requirement that each railroad would operations provide cab employees with degree of use, and the toilet system in develop a maintenance program to meet sufficient access to sanitation facilities, place. These members further advised appropriate effectiveness measures for along the right-of-way and elsewhere on that a federal standard that established each part of the toilet system. For the train. Therefore, FRA believes that specific thresholds and time limits example, to work properly, the aerobic the new construction requirements could result in unnecessary costs for bacteriological treatment toilet system proposed in this paragraph need not some entities, and could actually reduce presently employed by some carriers include commuter locomotives. the level of safety and sanitation on requires that, first, the treatment remain With this requirement, FRA does not others. Based on that information, FRA aerobic, and second, that bacteria be wish to chill innovation in the design of proposes language that requires each killed as the effluent exits the system. new equipment, but believes that toilet railroad carrier to develop an effective Although other chemicals or technology facilities should be located in close servicing program that suits the traffic, methods may be available in the future, proximity to cab employees in lead use, weather, equipment and other presently, this second step is performed locomotives, switching service, and needs of the system so that cab through the use of chlorine. As the transfer train service. Members of the employees are not exposed to full toilet aerobic bacteriological process must industry agree that this proposal is bowls, missing seats, offensive odors, remain intact and not go septic, appropriate. frozen units, dirty floors, ineffective converting to anaerobic conditions, Finally, paragraph (k) requires that ventilation systems, or any other clear effectiveness indicators are where the washing system in place on condition that can reasonably be required. Indicators that the process is the lead locomotive includes the use of deemed unsanitary. no longer intact include very strong, water, the water must be potable. This Following the Working Group’s final putrid odors; observance that a full proposed requirement is consistent with meeting on sanitation and after FRA treatment tank will not drain; or large the principle that nonpotable water initially formulated this NPRM, a labor air bubbles returning to the toilet bowl should not be used by humans for organization submitted information to via the waste flap following the flush personal cleanliness, due to bacteria FRA concerning a toilet system cycle. To ensure the effectiveness that may be present. As discussed prevalent in the industry that utilizes a measure of a railroad’s maintenance of above, railroad carriers may use bacteriological treatment system. When the whole aerobic bacteriological waterless soaps, now available this system functions as intended, water treatment toilet system may require commercially, which would not require (with no biohazards remaining) is statistical sampling of effluent for live water; they may use bottled water that discharged to the track structure. The organisms, including the bacteria. FRA is potable; or they may use water in commenter alleges that this system may might also require that, if such a toilet holding tanks located in the toilet expose employees along the right-of- system ceases to function properly, compartment, so long as it meets the way to untreated human waste, or to presenting a risk that untreated waste safe drinking water standards. substances that are otherwise harmful if might be discharged to the track, the the railroad carrier fails to service the Section 229.139 Sanitation, Servicing unit must be plugged to prevent any toilet properly. This toilet meets the Requirements such leakage in order to be used in a proposed definition of toilet facility, trailing position pending servicing. FRA Section 229.139 proposes minimum and presumably would continue to exist seeks comments from all industry servicing standards to ensure that in large numbers throughout the members on these proposals, the rule sanitation compartments in occupied industry after publication of any final text language set forth in the NPRM, locomotives are not unsanitary or rule in this proceeding. The regulations defective. Paragraph (a) states that the of the FDA, discussed above, prohibit alternative language that would railroad carrier must service the the discharge of untreated waste from effectively eliminate the risks that sanitation compartments of lead railroad equipment placed in service employees along the right-of-way may locomotives in use so that they are after July 1, 1972, and permit the face, and any other hazards that may sanitary. This proposed requirement discharge of waste that has been exist which FRA has not addressed in means that the floors, toilet facility, and suitably treated to prevent disease. The this paragraph. FRA notes that a washing system must be free of trash bacteriological toilet system at issue performance-oriented approach to this and waste. It is reasonable to expect meets the requirements of this FDA issue is preferred by FRA and others in that, as a locomotive is used, some standard, so long as the system is being the Working Group. However, FRA amount of dust and trash would serviced and maintained to operate as needs more information to determine accumulate. However, in order to meet intended. Based on the information how successful implementation of a the requirements of paragraph (a), the provided concerning instances in which performance-oriented approach could trash must be removed at regular railroad employees along the right-of- be monitored. FRA seeks comments on intervals, and used, soiled paper way may be placed at risk if this system the issues and options associated with products or human waste may not be is not maintained properly, FRA will this type of toilet system. These present on the floor. consider whether more specific comments will be considered by the Paragraph (b) of section 139 requires servicing requirements are necessary in Working Group prior to issuance of a that all components required by the final rule. final rule. paragraph (a) of section 137 for the lead For instance, FRA could require that Paragraph (c) of section 139 proposes locomotive must be present consistent all railroads follow a maintenance that any unit used in switching service,

VerDate 112000 18:26 Dec 29, 2000 Jkt 194001 PO 00000 Frm 00019 Fmt 4701 Sfmt 4702 E:\FR\FM\02JAP2.SGM pfrm03 PsN: 02JAP2 154 Federal Register / Vol. 66, No. 1 / Tuesday, January 2, 2001 / Proposed Rules transfer train service, or in the trailing provide the cab employees affected and balances the privacy concerns that position that is equipped with a toilet access to sanitation facilities to meet led to the modesty lock requirement, facility, must be sanitary if the otherwise applicable sanitation against the industry’s interest in keeping locomotive is occupied. This standards. [As discussed previously, otherwise fit locomotives in service. requirement would address those units these defective units may also be FRA believes that this proposal reaches that might fall within the exceptions utilized in trailing position where there a reasonable accommodation of both proposed in sections 229.137(b)(1)(ii) is less likelihood that employees will be aims. and (b)(1)(iii) because of the operations affected at all.] In addition to the foregoing issues, the they are engaged in, but nonetheless Requiring that these defective units Working Group discussed blue signal possess a toilet facility on board. If that can remain in service for a period not protection for railroad employees is the case, employees may opt not to to exceed 10 calendar days, at which involved in the servicing of the use the toilet facility, preferring to time they must be repaired or used in sanitation compartment, and the utilize other facilities along the right-of- trailing position, is consistent with substance of those discussions should way. However, carriers must not expose FRA’s and the Working Group’s desire be illuminated here. FRA issued these employees to unsanitary to preserve optimum access to regulations that require protections for conditions while they are in the units. sanitation facilities where they currently employees engaged in the inspection, Therefore, the toilet facilities may exist. If a locomotive is equipped with testing, repair, and servicing of rolling actually be defective while the unit is a toilet facility, FRA recognizes that it equipment, where those activities occupied, but they cannot be may become defective and yet the require employees to work on, under, or unsanitary. locomotive can continue to operate between equipment, and where the Paragraph (d) proposes that where a without jeopardizing the employee’s danger of personal injury exists. See 49 locomotive is equipped with a toilet health. However, the toilet facility CFR part 218. These regulations state facility that has become defective, and should not be allowed to remain that ‘‘servicing’’ does not include the locomotive is utilized briefly in defective indefinitely. The Working supplying locomotives with sanitary switching or transfer train service Group and FRA do not expect the supplies. Therefore, employees engaged consistent with the requirements of railroads to reassign locomotives from in replenishing toilet paper in the sections 229.137(b)(1)(ii) and (b)(1)(iii), road to yard service solely for the sanitation compartment would not be the railroad carrier must mark the toilet purpose of circumventing any part of ‘‘servicing’’ the locomotive for purposes facility as defective. The locomotive this regulation. FRA understands that of part 218, and, therefore, would not with the defective, but sanitary toilet there are overriding incentives for require blue signal protection. However, facility, can be used in switching or railroads to keep road units with other duties that employees may be transfer train service for a period not to defective toilets in trailing road service engaged in relating to the repair, service, exceed 10 calendar days from the date until the next periodic inspection, maintenance or emptying of the on which it became defective, at which rather than reassigning them to yard locomotive toilet facility likely would time it must be repaired. However, the service. fall within the scope of Part 218 and facility must remain sanitary in this The 10-day period was selected as a would require the protections set forth short period while it is occupied. The result of Working Group discussions, in there. This determination may depend date on which the toilet facility became which the carriers noted that a period of on the toilet system in place, and so defective must be noted on the daily 10 days may be required to get each railroad carrier must assess the inspection report, so the unit will be appropriate parts needed for repair to need for blue signal protection on its repaired within the prescribed time remote locations where these defective property based on the configuration of period. The carriers may need to units may be situated. However, in the system in place and the functions institute new internal procedures to subsequent discussions, the carriers employees perform relative to it. ensure that these defects are corrected indicated that they would likely haul Finally, this NPRM does not propose within the required time frame, because the defective units to repair facilities, new lighting requirements for the (as some members of the Working Group rather than wait for parts to be sent to sanitation compartment. The existing have suggested), defects that need not be remote locations. Also, Working Group locomotive safety standards already repaired on a daily basis, as section members have stated that, in some require that ‘‘Cab passageways and 229.21 requires with many defective instances, the carriers would only need compartments shall have adequate conditions, may be forgotten. This additional time to make yard illumination.’’ 49 CFR 229.127(b). This proposal would amend section 229.21(a) movements so that a compliant existing requirement effectively and (b) to permit the railroads to record locomotive can replace the defective addresses the need for lighting in the repairs made electronically, rather than one. Therefore, FRA is considering sanitation compartment. The on the daily inspection report. Several reducing this 10-day time period to compartment must be illuminated so carriers noted that they currently accurately reflect what would be that occupants can clearly see all employ an electronic tracking system of reasonable given prevalent practice. appurtenances, fixtures, and items defects and repairs, and would like to FRA invites comment on this issue from present within the toilet area. include violations of sections 229.137 interested parties concerning the time Appendix and 229.139 in the existing electronic needed to haul units for repair, the time program. FRA wishes to facilitate this needed to replace the defective unit FRA plans to revise Appendix B to process, and so long as the system is with another in the yard, and the extent part 229, Schedule of Civil Penalties, to capable of being audited, FRA does not to which those practices will occur. include penalties for violations of those believe it is necessary to regulate this Paragraph (e) proposes to require the provisions as set forth in this proposal internal mechanism with great railroad carrier to repair a defective that will become part of the final rule. specificity. modesty lock prior to the next 92-day Because such penalty schedules are During this 10-day period, the inspection that the locomotive is subject statements of policy, notice and exceptions set forth for switching and to, pursuant to the requirements of part comment are not required prior to their transfer train service would apply, and 229. This proposal was recommended issuance. See U.S.C. 553(b)(3)(A). so the carrier would be required to by all members of the Working Group Nevertheless, interested parties are

VerDate 112000 18:26 Dec 29, 2000 Jkt 194001 PO 00000 Frm 00020 Fmt 4701 Sfmt 4702 E:\FR\FM\02JAP2.SGM pfrm03 PsN: 02JAP2 Federal Register / Vol. 66, No. 1 / Tuesday, January 2, 2001 / Proposed Rules 155 welcome to submit their views on what Seventh Street, SW., Washington, DC consultation with SBA and in penalties may be appropriate. 20590. conjunction with public comment. As part of the regulatory impact Pursuant to that authority, FRA has Environmental Impact analysis, FRA has assessed quantitative published an interim policy which FRA has evaluated this proposal in measurements of costs and a qualitative formally establishes ‘‘small entities’’ as accordance with its procedures for discussion of the benefits expected from being railroads which meet the line ensuring full consideration of the the adoption of this proposed rule. Over haulage revenue requirements of a Class potential environmental impacts of FRA a twenty-year period, the Present Value III railroad. Currently, the revenue actions, as required by the National (PV) of the estimated costs is $75.4 requirements are $20 million or less in Environmental Policy Act (42 U.S.C. million. annual operating revenue. The $20 4321, et seq.) and related directives. The The major costs anticipated from million limit is based on the Surface regulation of sanitation facilities on adopting this proposed rule include: the Transportation Board’s (STB’s) locomotives gives rise to two potential on-going maintenance and servicing of threshold of a Class III railroad carrier, environmental concerns. The first toilet facilities that are not currently which is adjusted by applying the relates to the handling of chemicals being serviced properly; an increase in railroad revenue deflator adjustment (49 used to treat human waste while in the daily inspection burden to include CFR part 1201). The same dollar limit transit or in storage awaiting permanent additional components of the sanitation on revenues is established to determine disposal. These chemical substances compartment; and providing a separate whether a railroad shipper or contractor and employee exposure to them are trash receptacle in the sanitation is a small entity. FRA proposes to use currently regulated by EPA and OSHA, compartment and the removal of trash this alternative definition of ‘‘small respectively, in order to prevent receptacles in regular intervals. entity’’ for this rulemaking. Since this is degradation of the environment and The major benefits anticipated from an alternative definition, FRA is using it harm to employees. Nothing in this implementing this final rule include: in consultation with the SBA and proposal alters those regulations, which guaranteed access to sanitary facilities; requests public comments on its use. protect the environment and employees assurance that toilet facilities are For this rulemaking there are over 550 from the hazards associated with maintained in a clean and sanitary small railroads that could potentially be regulated chemicals. manner; and the assurance that cab affected by these proposals. FRA The second concern relates to the employees will have potable water to estimates that small railroads own disposal of untreated waste along the use. In addition, railroads should incur approximately 3,500 locomotives. In railroad right-of-way, which would give some savings from having a national addition, the Agency estimates that only rise to potential environmental and and uniform regulation governing about one-third of these or less possess employee health hazards. As FRA sanitation facilities. In the long-term, a toilet facility. FRA does not expect understands it, nearly all locomotives the FRA should see a decrease in this proposal to impose a significant utilize sanitation systems that either complaints and correspondence related burden on small railroads because it treat or burn the waste on board and to toilet facilities. provides them an exception from the release products that do not introduce Regulatory Flexibility Act requirement to have a functioning toilet in the lead occupied locomotive, so long environmental or personal safety The Regulatory Flexibility Act of 1980 hazards; or haul the waste in treatment as the railroad provides employee (5 U.S.C. 601 et seq.) requires a review access to toilet and washing facilities at containers to a site where it is removed of proposed and final rules to assess and stored for approved processing. In frequent intervals. their impact on small entities. FRA has The impacts from this proposal are any event, regulations promulgated by prepared and placed in the docket an the FDA prohibit the release of primarily a result of some of the Initial Regulatory Flexibility compliance requirements for untreated human waste along the Assessment (IRFA) which assesses the railroad right-of-way, and nothing in locomotives that have functioning toilet small entity impact of this proposal. facilities. The most significant impacts this proposal alters that requirement. Document inspection and copying Therefore, FRA has determined that this are from compliance items associated facilities are available at 1120 Vermont with the proposed toilet facility proposal will not have a deleterious Avenue, 7th Floor, Washington, DC. impact on the environment. requirements which include a trash Photocopies may also be obtained by receptacle in the toilet compartment, Regulatory Impact submitting a written request to the FRA marking defective toilet facilities, and Docket Clerk at Office of Chief Counsel, the daily inspection requirements. Most Executive Order 12866 and DOT Federal Railroad Administration, 400 small railroads own locomotives that Regulatory Policies and Procedures Seventh Street, SW., Washington, DC never had toilet facilities on them, or This proposal has been evaluated in 20590. previously had them removed. FRA accordance with existing policies and ‘‘Small entity’’ is defined in 5 U.S.C. estimates that only six percent of the procedures, and determined to be non- 601 as a small business concern that is Regulatory Impact Analysis’ (RIA) total significant under both Executive Order independently owned and operated, and cost over 20 years would impact small 12866 and DOT policies and procedures is not dominant in its field of operation. railroads. (44 FR 11034; February 26, 1979). FRA The U.S. Small Business Administration The proposed requirement which has prepared and placed in the docket (SBA) has authority to regulate issues impacts small railroads most is the a regulatory analysis addressing the related to small businesses, and requirement to provide ready access to economic impact of this proposed rule. stipulates in its size standards that a appropriate toilet facilities. FRA has Document inspection and copying ‘‘small entity’’ in the railroad industry is interpreted this requirement to mean facilities are available at 1120 Vermont a railroad business ‘‘line-haul that small railroad carriers must arrange Avenue, 7th Floor, Washington, DC. operation’’ that has fewer than 1,500 for en route access to toilet facilities. Photocopies may also be obtained by employees and a ‘‘switching and The RIA has estimated that there would submitting a written request to the FRA terminal’’ establishment with fewer than be a 2-hour burden per affected railroad Docket Clerk at Office of Chief Counsel, 500 employees. SBA’s ‘‘size standards’’ during the first year of implementation. Federal Railroad Administration, 400 may be altered by Federal agencies, in This burden is estimated to cost

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$22,545. The burden for the following In order to determine the significance of based on principles of interstate years is only 20 minutes per railroad per the economic impact for the final rule’s commerce and the need for uniformity year to modify the toilet facility Regulatory Flexibility Assessment of national standards. In addition, some arrangements. FRA understands that it (RFA), FRA invites comments from all State agencies have expressed the need is common practice today for a Class III interested parties concerning the for federal regulation in this area to railroads to comply with the general potential economic impact on small provide uniform treatment and to requirements of providing ready access. entities caused by this proposed rule. prevent situations in which employees Currently it is customary for a small The Agency will consider the comments work without sanitation facilities where railroad to drive out to a locomotive to and data it receives, or lack thereof, in the State is powerless to enforce its carry a crew member to sanitary making a decision on the RFA for the requirements, due to operation of the facilities when called. Hence, the final rule. occupational safety and health and concept of providing ready access to railroad safety laws. Federalism toilet facilities is not a new or Consistent with the requirements of significant burden for most Class III FRA has analyzed the proposed rule Executive Order 13132, FRA has and railroads since most of these railroads according to the principles of Executive will continue to consult with State currently provide this service for their Order 13132 (‘‘Federalism’’). FRA has agencies as this rulemaking proceeds. locomotive cab employees. determined that this proposal, if This will be achieved primarily through The Class III exemption from the adopted as a final rule, may have the full RSAC Committee, which requirement to have a toilet facility in federalism implications. FRA’s final includes representatives of State the lead occupied locomotive is sanitation standards would preempt all interests. FRA will publish a federalism provided to ensure that feasible lower state efforts to regulate the nature and impact statement in the final rule that cost alternatives are provided for the type of access to sanitation facilities explains the concerns of the States, a potentially affected small entities. FRA generally required for cab employees. description of the consultations with the and the Working Group understand the Further, FRA’s final sanitation states, and a statement of the extent to difficulties of retrofitting older standards would preempt the which the concerns of the States have locomotive units and see no reason to maintenance of sanitation facilities been met in any final standards that are unduly burden small railroads, so long located on board trains. As discussed issued. as access can be provided by alternative above, the Locomotive Inspection Act Paperwork Reduction Act means. The Working Group and FRA has been interpreted to occupy the field believe that this exception is both of locomotive safety, including the The information collection necessary and acceptable. regulation of appurtenances in requirements in this proposed rule have The IRFA concludes that this locomotives, such as toilets. been submitted for approval to the proposed rule would not have a Nonetheless, some state regulatory Office of Management and Budget significant economic impact on a bodies have promulgated and enforce (OMB) under the Paperwork Reduction substantial number of small entities. state standards that require toilet Act of 1995, 44 U.S.C. 3501 et seq. The Thus, FRA certifies that this proposed facilities in locomotive cabs. FRA’s sections that contain the new rule is not expected to have a sanitation standards would preempt information collection requirements and ‘‘significant’’ economic impact on a those state standards. FRA believes this the estimated time to fulfill each ‘‘substantial’’ number of small entities. regulatory action is warranted, however, requirement are as follows:

Average time Total annual CFR section Respondent Total annual per response burden hours Total annual universe responses (seconds) (hours) burden cost

229.137(d)ÐSanitationÐLocomotive Defective or Unsanitary Class I & II 15,600 no- 90 390 $3,250 Toilet Facility Placed in Trailing ServiceÐ Clear Mark- railroads. tices. ingsÐ Unavailable for Use. 229.137(e)±SanitationÐLocomotive Defective Toilet FacilityÐ Class I & II 5,200 notices 90 130 3,250 Clear MarkingsÐUnavailable for Use. railroads. 229.139(d)ÐServicingÐLocomotive Used in Transfer/Switch- Class I & II 936,000 no- 30 780 19,500 ing Service with Defective Toilet FacilityÐDate Defective. railroads. tations.

All estimates include the time for collection of information on those who reporting burdens; (ii) ensure that it reviewing instructions; searching are to respond, including through the organizes information collection existing data sources; gathering or use of automated collection techniques requirements in a ‘‘user friendly’’ format maintaining the needed data; and or other forms of information to improve the use of such information; reviewing the information. Pursuant to technology, may be minimized. For and (iii) accurately assess the resources 44 U.S.C. 3506(c)(2)(B), the FRA solicits information or a copy of the paperwork expended to retrieve and produce comments concerning: Whether these package submitted to OMB contact information requested. See 44 U.S.C. information collection requirements are Robert Brogan at 202–493–6292. 3501. necessary for the proper performance of FRA believes that soliciting public Comments must be received no later the function of FRA, including whether comment will promote its efforts to than March 5, 2001. Organizations and the information has practical utility; the reduce the administrative and individuals desiring to submit accuracy of FRA’s estimates of the paperwork burdens associated with the comments on the collection of burden of the information collection collection of information mandated by information requirements should direct requirements; the quality, utility, and Federal regulations. In summary, FRA them to Robert Brogan, Federal Railroad clarity of the information to be reasons that comments received will Administration, RRS–21, Mail Stop 17, collected; and whether the burden of advance three objectives: (i) Reduce

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1120 Vermont Ave., NW., MS–17, ‘‘Switching service’’, ‘‘Transfer train’’, Sanitation compartment means an Washington. DC 20590. ‘‘Toilet facility’’, ‘‘Unsanitary’’, and enclosed compartment on a railroad OMB is required to make a decision ‘‘Washing system’. locomotive that contains a toilet facility concerning the collection of information for employee use. § 229.5 Definitions. requirements contained in this proposed * * * * * rule between 30 and 60 days after * * * * * Switching service means the publication of this document in the Commuter service means commuter or classification of railroad freight cars Federal Register. Therefore, a comment other short-haul railroad passenger according to commodity or destination; to OMB is best assured of having its full service in a metropolitan or suburban assembling cars for train movements; effect if OMB receives it within 30 days area and commuter railroad service that changing the position of cars for of publication. The final rule will was operated by the Consolidated Rail purposes of loading, unloading, or respond to any OMB or public Corporation on January 1, 1979, that weighing; placing locomotives and cars comments on the information collection runs on rails or electromagnetic for repair or storage; or moving rail requirements contained in this proposal. guideways, but does not include rapid equipment in connection with work FRA cannot impose a penalty on transit operations in an urban area that service that does not constitute a train persons for violating information are not connected to the general system movement. collection requirements which do not of transportation. See also, 49 CFR part Transfer train means a train that display a current OMB control number, 209, Appendix A. travels between a point of origin and a if required. FRA intends to obtain * * * * * point of final destination not exceeding current OMB control numbers for any Modesty lock means a latch that can 20 miles and that is not performing new information collection be operated in the normal manner only switching service. requirements resulting from this from within the sanitary compartment, Toilet facility means a system that rulemaking action prior to the effective that is designed to prevent entry of automatically or on command of the date of a final rule. The OMB control another person when the sanitary user removes human waste to a place number, when assigned, will be compartment is in use. A modesty lock where it is treated, eliminated, or announced by separate notice in the may be designed to allow deliberate retained such that no solid or non- Federal Register. forced entry in the event of an treated liquid waste is thereafter Comments Requested emergency. permitted to be released into the bowl, * * * * * urinal, or room and that prevents FRA has made every attempt in this harmful discharges of gases or persistent proposal to capture the principles of Potable water means water that meets offensive odors. accessible, sanitary, toilet and washing the requirements of 40 CFR part 141, the Unsanitary means any condition in facilities for locomotive cab employees, Environmental Protection Agency’s which any significant amount of filth, in such a way that railroad operations Primary Drinking Water Regulations, or trash, human waste are present in such will not be adversely affected. However, water that has been approved for a manner that a reasonable person FRA invites comment from all drinking and washing purposes by the would believe that the condition might interested parties on all aspects of this pertinent state or local authority having constitute a health hazard; or strong, proposal. FRA and the Working Group jurisdiction. For purposes of this persistent, chemical or human waste made every effort to discuss and address section, commercially available, bottled odors sufficient to deter use of the cab sanitation comprehensively in this drinking water is deemed potable water. facility or to give rise to a reasonable NPRM, but there may be issues, * * * * * concern with respect to exposure to equipment, or operations that require Sanitary means the absence of any hazardous fumes. Such conditions further information and consideration. significant amount of filth, trash, human include, but are not limited to, a toilet FRA requests comments from the public waste present in such a manner that a bowl filled with human waste, soiled and experts on the scope and exceptions reasonable person would believe that toilet paper, or other products used in set forth in this proposal, the definitions the condition might constitute a health the toilet compartment, that are present established to identify equipment and hazard; or of strong, persistent, chemical due to a defective toilet facility that will procedures, the proposed servicing or human waste odors sufficient to deter not flush or otherwise remove the waste; requirements, and anything not use of the facility, or give rise to a visible human waste residue on the addressed by this proposal that deserves reasonable concern with respect to floor or toilet seat that is present due to consideration. exposure to hazardous fumes. Such a toilet facility that overflowed; an List of Subjects in 49 CFR Part 229 conditions include, but are not limited accumulation of soiled paper towels or to, a toilet bowl filled with human soiled toilet paper on the floor, toilet Locomotives, Penalties, Railroad waste, soiled toilet paper, or other facility, or sink; an accumulation of safety. products used in the toilet visible dirt or human waste on the floor, For the reasons set forth in the compartment, that are present due to a toilet facility, or sink; and strong preamble, 49 CFR Part 229 is amended defective toilet facility that will not persistent chemical or human waste as follows. flush or otherwise remove the waste; odors in the compartment. 1. The authority citation for part 229 visible human waste residue on the Washing system means a system for continues to read as follows: floor or toilet seat that is present due to use by railroad employees to maintain Authority: 49 U.S.C. 20102–03, 20133, a toilet facility that overflowed; an personal cleanliness that includes a 20137–38, 20143, 20701–03, 21301–02, accumulation of soiled paper towels or secured sink or basin, water, 21304; 49 CFR 1.49. soiled toilet paper on the floor, toilet antibacterial soap, and paper towels; or 2. Section 229.5 is amended by facility or sink; an accumulation of antibacterial waterless soap and paper adding in alphabetical order new visible dirt or human waste on the floor, towels; or antibacterial moist towelettes definitions of ‘‘Commuter service’’, toilet facility, or sink; and strong, and paper towels; or any other ‘‘Modesty lock’’, ‘‘Potable water’’, persistent chemical or human waste combination of suitable antibacterial ‘‘Sanitary’’, ‘‘Sanitation compartment’’, odors in the compartment. cleansing agents.

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3. Section 229.9 is amended by railroad carrier otherwise provides the which employees have ready access to adding paragraph (g) to read as follows: washing system to employees upon railroad carrier-provided sanitation reporting for duty or occupying the cab facilities outside of the locomotive, that § 229.9 Movement of non-complying for duty, or where the locomotive is meet otherwise applicable sanitation locomotives. equipped with a stationary sink that is standards, at frequent intervals during * * * * * located outside of the sanitation the course of their work shift. (g) Paragraphs (a), (b), and (c) of this compartment; (2) Paragraph (a)(3) of this section section shall not apply to § 229.137 and (5) Equipped with toilet paper in shall not apply to: § 229.139. Sections 229.137 and 229.139 sufficient quantity to meet employee (i) Locomotives of a Class I railroad set forth specific requirements for the needs, unless the railroad carrier carrier which, prior to [the effective date movement and repair of locomotives otherwise provides toilet paper to of this section], were equipped with a with defective sanitation compartments. employees upon reporting for duty or toilet facility in which human waste 4. Section 229.21 is amended by occupying the cab for duty; and falls via gravity to a holding tank where removing the fourth and fifth sentences (6) Equipped with a trash receptacle, it is stored and periodically emptied, of paragraph (a) and adding in their unless the railroad carrier otherwise which does not conform to the place three new sentences and by provides portable trash receptacles to definition of toilet facility set forth in removing the fourth sentence of employees upon reporting for duty or this section. For these locomotives, the paragraph (b) and adding in its place occupying the cab for duty. requirements of this section pertaining three new sentences to read as follows: (b) Exceptions. to the type of toilet facilities required (1) Paragraph (a) of this section shall § 229.21 Daily inspection. shall be effective as these toilets become not apply to: defective or are replaced with (a) * * * Except as provided in (i) Locomotives engaged in commuter conforming units, whichever occurs §§ 229.9, 229.137, and 229.139, any service on which employees have ready first. All other requirements set forth in conditions that constitute non- access to railroad carrier-provided this section shall apply to these compliance with any requirement of sanitation facilities outside of the locomotives as of [the effective date of this part shall be repaired before the locomotive or elsewhere on the train, this section]; and locomotive is used. Except with respect that meet otherwise applicable (ii) With respect to the locomotives of to conditions that don’t comply with sanitation standards, at frequent a Class I railroad carrier which, prior to §§ 229.137 or 229.139, a notation shall intervals during the course of their work [the effective date of this section], were be made on the report indicating the shift; equipped with a sanitation system other nature of the repairs that have been (ii) Locomotives engaged in switching than the units addressed by paragraph made. Repairs made for conditions that service on which employees have ready (b)(2)(i) of this section, that contains and don’t comply with §§ 229.137 or access to railroad carrier-provided removes human waste by a method that 229.139 may be noted on the report, or sanitation facilities outside of the does not conform with the definition of in electronic form. * * * locomotive, that meet otherwise toilet facility as set forth in this section, (b) * * * Except as provided in applicable sanitation standards, at the requirements of this section §§ 229.9, 229.137, and 229.139, any frequent intervals during the course of pertaining to the type of toilet facilities conditions that constitute non- their work shift; shall apply on locomotives in use shall compliance with any requirement of (iii) Locomotives engaged in transfer apply on July 1, 2003. However, the this part shall be repaired before the train service on which employees have Class I railroad carrier subject to this locomotive is used. Except with respect ready access to railroad carrier-provided exception shall not deliver to conditions that don’t comply with sanitation facilities outside of the noncompliant toilet facilities to other §§ 229.137 or 229.139, a notation shall locomotive, that meet otherwise railroad carriers for use, in the lead be made on the report indicating the applicable sanitation standards, at position, during the time between [the nature of the repairs that have been frequent intervals during the course of effective date of this rule] and July 1, made. Repairs made for conditions that their work shift; 2003. All other requirements set forth in don’t comply with §§ 229.137 or (iv) Locomotives of Class III railroad this section shall apply to the 229.139 may be noted on the report, or carriers engaged in operations other locomotives of this Class I railroad in electronic form. * * * than switching service or transfer train carrier as of [the effective date of this 5. Sections 229.137 and 229.139 are service, that are not equipped with a section]. added to subpart C to read as follows: sanitation compartment as [of the (c) Defective, unsanitary toilet facility; § 229.137 Sanitation, general effective date of this section]. Where an prohibition in lead position. Except as requirements. unequipped locomotive of a Class III provided in paragraphs (c)(1) through (a) Sanitation compartment. Except as railroad carrier is engaged in operations (5) of this section, if the railroad carrier provided in paragraph (b) of this other than switching or transfer train determines during the daily inspection section, all lead locomotives in use shall service, employees shall have ready required by § 229.21 that a locomotive be equipped with a sanitation access to carrier-provided sanitation toilet facility is defective or is compartment. Each sanitation facilities outside of the locomotive that unsanitary, or both, the railroad carrier compartment shall be: meet otherwise applicable sanitation shall not use the locomotive in the lead (1) Adequately ventilated; standards, at frequent intervals during position. The railroad carrier may (2) Equipped with a door that: the course of their work shift, or the continue to use a lead locomotive with (i) Closes, and carrier shall arrange for en route access a toilet facility that is defective or (ii) Possesses a modesty lock by [18 to such facilities; and unsanitary as of the daily inspection months after publication of the final (v) Locomotives of tourist, scenic, only where all of the following rule]; historic, or excursion operations, which conditions are met: (3) Equipped with a toilet facility, as are otherwise covered by this part (1) The unsanitary or defective defined in this part; because they are not propelled by steam condition is discovered at a location (4) Equipped with a washing system, power and operate on the general where there are no other locomotives as defined in this part, unless the railroad system of transportation, but on available for use, it is not possible to

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All locomotives manufactured location where it could have been inspection required by § 229.21 that the after [Effective date of the final rule], cleaned if unsanitary, repaired if lead locomotive is not equipped with except switching units built exclusively defective, or switched with another toilet paper in sufficient quantity to for switching service and locomotives compliant locomotive, since its last meet employee needs, or a washing built exclusively for commuter service daily inspection required by this part; system as required by paragraph (a)(4) of shall be equipped with a sanitation (3) Upon reasonable request of a this section, or a trash receptacle as compartment accessible to cab locomotive crewmember operating a required by paragraph (a)(6) of this employees without exiting to the out-of- locomotive with a defective or section, the locomotive shall be doors for use. unsanitary toilet facility, the railroad equipped with these items prior to carrier arranges for access to a toilet departure. (k) Potable water. The railroad carrier facility outside the locomotive that (g) Inadequate ventilation. If the shall utilize potable water where the meets otherwise applicable sanitation railroad carrier determines during the washing system includes the use of standards; daily inspection required by § 229.21 water. (4) If the sanitation compartment is that the sanitation compartment of the § 229.139 Sanitation, servicing unsanitary, the sanitation compartment lead locomotive in use is not adequately requirements. door shall be closed and adequate ventilated as required by paragraph ventilation shall be provided in the cab (a)(1) of this section, the railroad carrier (a) The sanitation compartment of so that it is habitable; and shall repair the ventilation prior to each lead locomotive in use shall be (5) The locomotive shall not continue departure, or place the locomotive in sanitary. in service in the lead position beyond a trailing position, in switching service as (b) All components required by location where the defective or set forth in paragraph (b)(1)(ii) of this § 229.137(a) for the lead locomotive in unsanitary condition can be corrected or section, or in transfer train service as set use shall be present consistent with the replaced with another compliant forth in paragraph (b)(1)(iii) of this requirements of this part, and shall locomotive, or the next daily inspection section. operate as intended. required by this part, whichever occurs (h) Door closure and modesty lock. If (c) The sanitation compartment of first. the railroad carrier determines during each occupied locomotive used in (d) Defective, unsanitary toilet facility; the daily inspection required by use in trailing position. If the railroad § 229.21 that the sanitation switching service pursuant to carrier determines during the daily compartment on the lead locomotive is § 229.137(b)(1)(ii), in transfer train inspection required by § 229.21 that a not equipped with a door that closes, as service pursuant to § 229.137(b)(1)(iii), locomotive toilet facility is defective or required by paragraph (a)(2)(i) of this or in a trailing position when the is unsanitary, or both, the railroad section, the railroad carrier shall repair locomotive is occupied, shall be carrier may use the locomotive in the door prior to departure, or place the sanitary. trailing position. If the railroad carrier locomotive in trailing position, in (d) Where the railroad carrier uses a places the locomotive in trailing switching service as set forth in locomotive pursuant to § 229.137(e) in position, the carrier shall not haul paragraph (b)(1)(ii) of this section, or in switching or transfer train service with employees in the unit unless the transfer train service as set forth in a defective toilet facility, such use shall sanitation compartment is made paragraph (b)(1)(iii) of this section. If the not exceed 10 calendar days from the sanitary prior to occupancy. If the toilet railroad carrier determines during the date on which the defective toilet facility is defective and the unit daily inspection required by § 229.21 facility became defective. The date on becomes occupied, the railroad carrier that the modesty lock required by which the toilet facility becomes shall clearly mark the defective toilet paragraph (a)(2)(ii) of this section is defective shall be entered on the daily facility as unavailable for use. defective, the modesty lock shall be inspection report. (e) Defective, sanitary toilet facility; repaired pursuant to the requirements of (e) Where it is determined that the use in switching, transfer train service. § 229.139(e). modesty lock required by § 229.137(a)(2) If the railroad carrier determines during (i) Equipped units; retention and is defective, the railroad carrier shall the daily inspection required by maintenance. Except where a railroad repair the modesty lock on or before the § 229.21 that a locomotive toilet facility carrier downgrades a locomotive to next 92-day inspection required by this is defective, but sanitary, the carrier service in which it will never be part. may use the locomotive in switching occupied, where a locomotive is service, as set forth in paragraph equipped with a toilet facility as of [the Issued in Washington, D.C. on the 15th of (b)(1)(ii) of this section, or in transfer effective date of the final rule], the December, 2000. train service, as set forth in paragraph railroad carrier shall retain and Jolene M. Molitoris, (b)(1)(iii) of this section for a period not maintain the toilet facility in the Administrator. to exceed 10 days. In this instance, the locomotive consistent with the [FR Doc. 00–33363 Filed 12–29–00; 8:45 am] railroad carrier shall clearly mark the requirements of this part, including BILLING CODE 4910±06±P

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