[Federal Register: April 4, 2002 (Volume 67, Number 65)]

[Rules and Regulations]

[Page 16032-16052]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr04ap02-14]

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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 229

[Docket No. FRA 2000-8545, Notice No. 3]

RIN 2130-AA89

Locomotive Cab Sanitation Standards

AGENCY: Federal Railroad Administration (FRA), Department of

Transportation (DOT).

ACTION: Final rule.

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SUMMARY: FRA amends its regulations by adding standards that address

toilet and washing facilities for employees who work in locomotive

cabs. This rule provides exceptions for certain existing equipment and

operations, and establishes servicing requirements.

DATES: This final rule will become effective on June 3, 2002.

ADDRESSES: Any petition for reconsideration should reference FRA Docket

No. FRA 2000-8545, Notice No. 3, and be submitted to the Department of

Transportation Central Docket Management Facility located in Room PL-

401 at the Plaza level of the Nassif Building, 400 Seventh Street, SW.,

Washington, DC 20590. All docket material related to this proceeding

will be available for inspection at this address and on the Internet at

http://dms.dot.gov. Docket hours at Nassif are Monday-Friday, 10 a.m.

to 5 p.m., except on federal holidays.

FOR FURTHER INFORMATION CONTACT: Lou Klein, Office of Safety Assurance

and Compliance, Federal Railroad Administration, 1120 Vermont Avenue,

NW., Mail Stop 25, Washington, DC 20590, (telephone: 202-493-6235); or

Christine Beyer, Office of Chief Counsel, Federal Railroad

Administration, 1120 Vermont Avenue, NW., Mail Stop 10, Washington, DC

20590, (telephone: 202-493-6027).

SUPPLEMENTARY INFORMATION:

I. Background

In 1992, Congress enacted Section 10 of The Rail Safety Enforcement

and Review Act (RSERA) (Pub. L. 102-365, September 3, 1992, codified at

49 U.S.C. 20103, note) in response to concerns raised by employee

organizations, congressional members, and recommendations of the

National Transportation Safety Board concerning working conditions in

locomotive cabs. In this legislation, Congress issued mandates

concerning locomotive crashworthiness and cab working conditions.

Section 10 of RSERA, entitled Locomotive Crashworthiness and Working

Conditions, required FRA ``to consider prescribing regulations to

improve the safety and working conditions of locomotive cabs'

throughout the railroad industry. In order to determine whether

regulations would be necessary, Congress asked FRA to

assess the extent to which environmental, sanitary and other working

conditions in locomotive cabs affect productivity, health and the

safe operation of locomotives.

In response to Section 10 of RSERA, FRA studied a variety of

working conditions in locomotive cabs, including sanitation, noise,

temperature, air quality, ergonomics, and vibration. In September 1996,

FRA submitted its Locomotive Crashworthiness and Cab Working Conditions

Report (``Report'') to Congress, which describes the results of these

studies. The Report is available for review in the docket of this

matter and was discussed in detail in FRA's Notice of Proposed

Rulemaking (NPRM) on Locomotive Cab Sanitation Standards. See, 66 FR

136, January 2, 2001.

In short, FRA surveyed in excess of 200 locomotives to assess cab

sanitation facilities. FRA found a wide range of conditions, which

varied due to weather, type of sanitation system in place, carrier

maintenance and service programs, locomotive model, and economic status

of the railroad. In addition, some locomotives were not equipped with

sanitation facilities. FRA found dirty floors and toilet seats, missing

toilet seats, poor ventilation, offensive odors, and lack of toilet

paper. In very cold weather, some units tend to freeze and become

inoperable. Of the cabs surveyed, approximately thirty percent were

deficient in some manner related to the use of sanitation facilities.

The Report noted that employees and rail management play a role in

the condition of sanitary facilities; poor sanitary conditions aboard

locomotives are caused by inadequate maintenance and/or heavy use or

misuse by operating crews. Nearly all railroads had programs in place

to service toilet and washing units, although the program requirements

vary from property to property depending on degree of use, toilet

system in place, and weather conditions. In addition, FRA found that

adherence to the servicing programs was uneven throughout the industry,

and that poor servicing was often the primary cause of unsanitary

facilities.

The Report also explained that there was disparity in the legal

treatment of locomotive cab sanitation among state and federal

regulatory and enforcement bodies and confusion existed among industry

members concerning applicable standards and guidelines. See NPRM, 66 FR

136-7.

The Report concluded that, given the significant role that

servicing and use play in maintaining a sanitary workplace and the

relative ease with which servicing and use may be modified, the issue

of locomotive sanitation could best be resolved through rail management

and labor cooperation.

Following publication of the Report, FRA continued to receive

employee complaints about the state of sanitation in locomotive cabs,

and the health and safety risks associated with working in an

unsanitary area. FRA also received complaints from employees of one

railroad concerning the disposal method used in a particular sanitation

system. By design, this system requires temporary storage of untreated

waste in sealed waste containers, which gave rise to perceived health

and safety concerns. There were also concerns about the expansion of

this system as the railroad's territory increased, the increase of

``power sharing'' arrangements among the carriers, and the

administrative difficulties that would arise in maintaining and mixing

different systems. Finally, some State agencies expressed frustration

with FRA concerning federal preemption of certain state sanitation

regulations, and the uneven treatment given locomotive sanitation by

the state and federal courts.

In light of these concerns, FRA determined that cab sanitation must

be revisited and addressed so that cab employees would have access to

adequate sanitary facilities, and to ensure uniform application of the

law. Despite the considerable acrimony that had developed in the

industry surrounding this issue, FRA remained convinced that it should

be addressed cooperatively, with the assistance of the stakeholders who

possess the knowledge and expertise to resolve the problem effectively.

Therefore, on June 24, 1997, FRA presented the subject of locomotive

cab working conditions, including sanitation, to the Railroad Safety

Advisory Committee (RSAC).

RSAC was formed by FRA in March 1996 to provide a forum for

consensual

[[Page 16033]]

rulemaking and program development. The Committee includes

representation from all of the agency's major customer groups,

including railroads, labor organizations, suppliers, manufacturers, and

other interested parties. FRA typically assigns a task to RSAC, and

after consideration and debate, RSAC may accept or reject the task. If

accepted, RSAC establishes a working group that possesses the

appropriate expertise and representation to develop recommendations to

FRA for action on the task. These recommendations are developed by

consensus. If a working group comes to consensus on recommendations for

action, the package is presented to the full RSAC for a vote. If the

proposal is accepted by a simple majority of the RSAC, the proposal is

formally recommended to FRA. If the working group is unable to reach

consensus on recommendations for action, FRA may, as necessary, move

ahead to resolve the issue through traditional rulemaking proceedings.

When FRA presented the subject of locomotive cab working conditions

to RSAC, the agency stated the purpose of the task as follows: to

safeguard the health of locomotive crews and to promote the safe

operation of trains. RSAC accepted this task, formed a Locomotive Cab

Working Conditions Working Group (``Working Group''), and designated

this assignment Task No. 97-2. As to sanitation, RSAC asked the Working

Group to

research comparable workplace requirements in an effort to develop

minimum acceptable regulations, guidelines, or standards as

appropriate for the locomotive cab environment.

The Working Group consists of representatives of the following

organizations, in addition to FRA:

American Association of State Highway & Transportation Officials

American Public Transportation Association

American Short Line and Regional Railroad Association

Association of American Railroads

Brotherhood of Locomotive Engineers

Brotherhood of Maintenance of Way Employes (Nonvoting Member)

International Brotherhood of Electrical Workers

National Railroad Passenger Corporation (Amtrak)

Railway Progress Institute

Sheet Metal Workers' International Association

Transport Workers Union of America

United Transportation Union.

The Working Group's goal was to produce recommendations for

locomotive cab sanitation standards warranted by an assessment of the

available information, including the FRA survey of sanitary facilities

and complaint information. The Working Group met several times for over

a period of nearly two years to discuss locomotive cab sanitation in

the railroad industry. The discussions covered all aspects of

sanitation facilities in the locomotive cab, including toilet systems,

washing facilities, potable water, ventilation, lighting, trash

disposal, provisions for toilet paper and bottled water, servicing, and

unique operations or characteristics that might require specialized

regulatory treatment.

The Working Group reached consensus on a series of recommendations

for a proposed sanitation standard, referred them to the full RSAC, and

RSAC approved them on December 7, 2000. On January 2, 2001, FRA

published the NPRM, which incorporated many of the Working Group's

recommendations. FRA held a public hearing on April 2, 2001, to gather

comments from interested parties, and then reconvened the Working Group

on August 22, 2001. The Working Group considered all comments received,

and again reached consensus on recommendations for a final standard.

These recommendations were presented to the full RSAC and on December

10, 2001, RSAC voted by simple majority to forward the recommendations

to FRA as the basis for a final sanitation standard.

The discussion that follows outlines the nature of each comment,

the Working Group's recommendation for addressing the comment, and how

FRA resolves the comment in this final rule.

II. Summary of Comments and Conclusions Reached

FRA received comments to the cab sanitation NPRM from approximately

13 organizations and individuals, and these are available to the public

for review in DOT's electronic docket (http://dms.dot.gov). Some of the

commenters expressed appreciation that the subject of locomotive

sanitation would now be addressed by a federal standard, many expressed

broad support for the basic principles and approach taken in the NPRM,

and some of the commenters raised issues they believe are not addressed

appropriately in the proposed standard. Some of these are not difficult

to cure, and some will require additional investigation.

The American Public Transportation Association (APTA) has been a

member of the Working Group, participated in developing recommendations

for the NPRM, and is generally supportive of the proposed standard.

However, when its member organizations reviewed the NPRM, they

identified an issue concerning commuter work trains that is not

addressed in the NPRM. Commuter railroads and their contractors use

work trains to maintain the right-of-way along their routes, and

typically use older locomotives that are not equipped with sanitary

facilities to power these work trains. The operation of these trains is

very similar to switching, transfer, and some Class III service, in

which employees are not captive in the cab for an entire work shift,

and have access to toilet facilities along the right-of-way. APTA

states in its comments that all of the commuter railroads that own and

maintain their rights-of-way provide alternate access to sanitation

facilities if the locomotives are not equipped with toilets. There are

a variety of methods used to accomplish access: portable toilets are

placed at the work site; cabooses with toilet facilities are attached

to the work train; crews are provided with keys to passenger station

facilities; portable toilets are placed on flat cars and attached to

the work train; a passenger coach equipped with facilities is attached

to the work train; and highway vehicles are provided to shuttle

employees to the nearest facility.

The basis for the exceptions provided in the NPRM for switching,

transfer service and Class III service is that employees must be given

adequate access to sanitation facilities, even though the locomotive on

which they work is not equipped with a toilet. Retrofitting locomotive

cabs with new toilet facilities is extremely costly and labor-

intensive. Therefore, the Working Group recommended that FRA provide an

exception in the final rule to address commuter work trains in which

the locomotives are not equipped with toilet facilities, so long as the

employees are given appropriate access to facilities. FRA agrees that

such an exception is appropriate.

APTA also requested a new definition for the final rule to properly

identify the trains covered by this exception: a non-revenue service

train used in the administration and upkeep of the railroad. The

proposed definition is very similar to one published in the revised

power brake rule (See, 49 CFR 232.407(a)(4)), except that it does not

include a reference to the train's tonnage. The issue of tonnage has no

bearing on access to sanitation facilities, and therefore, FRA concurs

that there is no reason to include this in the new definition. However,

FRA believes the definition should be clarified to indicate that only

commuter work trains are covered by the exception. The Working Group

and FRA did not contemplate

[[Page 16034]]

such an exception for freight railroads, whose facilities are often

much more dispersed geographically; and therefore, the definition and

exception as they appear in the final rule apply only to commuter work

trains. Section 137(b)(1)(i) of the final rule now includes commuter

work trains in the exception that previously applied only to commuter

service.

The National Railroad Passenger Corporation (Amtrak) participated

in the Working Group meetings and submitted comments to the docket

following publication of the NPRM. Amtrak initially raised three issues

in need of attention, but subsequently notified FRA that its concerns

regarding two of the issues were no longer significant. However, Amtrak

noted that the definition for ``switching service'' in the NPRM did not

include passenger operations, as it traditionally has in other

regulations and in practice. FRA and the Working Group agreed that the

NPRM was in error, and the definition of ``switching service'' now

includes passenger, as well as, freight operations.

In the course of the Working Group discussions in August 2001,

Amtrak raised concerns about cab cars used in push-pull in which the

lead unit may not be equipped with toilet facilities in a few areas of

the country. This practice is restricted to very few cars and the

employees working on these trains have access to facilities in the

passenger coaches of the train. In addition, cars that do not possess

toilets are decreasing in the Amtrak system, and will not be replaced

with unequipped units. The traditional Amtrak locomotives and cab cars

are equipped with compliant toilet facilities for the cab crew. Amtrak

requested and the Working Group recommended that FRA insert a narrow

exception in the rule text to permit Amtrak to run these cab cars so

long as employees have adequate access to sanitation facilities in the

passenger coaches of the train or at passenger stations along the

route. FRA agrees that, given the limited circumstances in which these

cars are used in the lead position and that the employees have access

to facilities elsewhere, a narrow exception is appropriate. Therefore,

FRA adds a new exception in this final rule, in Sec. 229.137(b)(1)(vi).

The Association of Railway Museums (ARM) is a member of the full

RSAC Committee, representing tourist, scenic, historic and excursion

railroads. ARM commented on the NPRM and supports the approach it

takes, particularly with respect to tourist railroads. However, ARM

notes that some of its members do not operate on the general system of

railroad transportation and suggests that FRA should clarify in this

document that this sanitation standard does not apply to non-general

system railroads.

This sanitation standard will become part of the locomotive safety

standards, 49 CFR part 229. Section 229.3 states that the locomotive

standards do not apply to ``a railroad that operates only on track

inside an installation which is not a part of the general system of

transportation * * *'' As used here, the phrase ``on track inside an

installation'' includes entities such as tourist, scenic, historic and

excursion railroads. Therefore, if these railroads operate only within

installations that are not part of the general system of

transportation, they are not covered by part 229 and will not be

covered by the sanitation standard. This is true regardless of whether

the railroad is insular or not; insularity is not an issue in part 229.

(See, e.g., 49 CFR 234.3(c).)

The Tourist Railroad Association (TRAIN) is a member of the full

RSAC Committee and represents approximately 300 tourist railroads and

railroad museums. TRAIN submitted comments to the NPRM which suggest

one minor change to the rule text. TRAIN states that their members may

not be ``carriers'' pursuant to certain federal law, and therefore that

term should be removed from the exception that relates to tourist

railroads, Sec. 229.137(b)(1)(v). As used here, of course, ``carrier''

has the meaning conveyed by the railroad safety laws (See, 49 U.S.C.

20102) which clearly cover tourist operations. Nevertheless, to avoid

any implication with regard to other statutes, FRA has omitted the word

``carrier'' from the rule. The rule text now states that employees must

have access to ``railroad-provided sanitation facilities,'' rather than

``railroad carrier-provided facilities'' as stated in the NPRM.

Two individual locomotive engineers submitted comments to the NPRM.

Mr. P.R. Wilcox, Local Chairman of the Brotherhood of Locomotive

Engineers Division 848, wrote to underscore the unsanitary conditions

that are present on many locomotives and to encourage FRA and the

Working Group to complete the task with a final standard. Mr. E.M.

Hendricks, an engineer in Tucson, Arizona, also stated that the

conditions are at times egregious and that a federal regulation is

necessary to correct these problems. Mr. Hendricks believes that lack

of proper servicing is typically the problem and that sanitation

facilities should be added to the locomotive daily inspection so that

employees in the lead locomotive begin their shift with sanitary

facilities. FRA and the Working Group concur with these commenters and

the final standard addresses their concerns.

The Legislative Board of Arizona of the Brotherhood of Locomotive

Engineers (BLE) submitted a comment concerning the juxtaposition of

difficult working conditions resulting from poor sanitation facilities

and the difficult working conditions that result when cabs in the

Southwest are not air conditioned. The Arizona BLE states that most

engineers would prefer to work in an air conditioned unit during the

summer months, so long as the consist includes one locomotive with

operating, sanitary facilities. If given a choice, engineers would most

often work in an air conditioned locomotive without a proper sanitation

facility, so long as one locomotive in the consist possessed

appropriate facilities. The Arizona BLE suggests that the crew should

have the discretion to determine if a noncompliant, air conditioned

unit would be taken out of the lead position in favor of a non-air

conditioned unit that possesses a compliant sanitation facility.

The Working Group and FRA grappled with this issue in discussions

prior to and following publication of the NPRM. The choice would be a

difficult one to make and cannot be resolved in the context of this

rulemaking procedure. FRA cannot issue a final sanitation standard that

includes requirements concerning air conditioning, because it would

exceed the scope of this rulemaking as established in the NPRM. Even

assuming FRA could address air conditioning in this final rule, a very

complicated list of considerations would have to be reviewed in order

to determine which locomotive should be placed in the lead position. A

highly subjective hierarchy of ``palatable'' working conditions would

have to be devised; the age, condition and power of each locomotive

would have to be assessed in relation to the load carried; power

sharing arrangements between the major carriers would have to be

examined to prevent interruptions in service; and weather conditions

and geography would have to be anticipated. This sort of ``consist

management'' requirement, though desirable, is extremely difficult to

contrive on a national basis given the enormity of variation among

railroads, operations, regions, and personal preferences across the

industry. FRA will continue to seek methods to minimize safety and

health hazards for cab employees with the assistance of the Working

Group, but the issue of cab temperature cannot be addressed in this

final standard.

[[Page 16035]]

The United Transportation Union (UTU) participated in all of the

Working Group discussions and made a statement at the public hearing.

The UTU stated that the Working Group worked hard to reach appropriate

solutions for existing problems concerning sanitation and the the NPRM,

if adopted as a final rule, would improve the level of safety in the

industry. The UTU encouraged FRA to move forward with a final standard.

The Association of American Railroads (AAR) participated in the

Working Group discussions, submitted comments to the NPRM, and took

part in the public hearing. The AAR's comments respond to requests for

input that FRA issued in the NPRM. First, FRA invited comment on the

policy of permitting locomotives with defective toilets to be used as

trailing units in a train or in other limited circumstances. The AAR

supports this proposal, stating that the condition of toilets in

trailing units is not relevant so long as the lead, occupied unit

possesses a compliant unit.

FRA asked whether two types of sanitation systems currently in use,

the dry hopper and the bogan, which must be phased out pursuant to the

new rule, are used pervasively throughout the industry. The AAR states

that these systems are isolated to the two carriers the Working Group

and FRA were aware of when preparing the NPRM. FRA was concerned that

the temporary exception proposed in the NPRM for continued use of these

systems, although they do not comply with the new definition of

``toilet facility,'' would be more widespread than anticipated when the

exception was proposed. As is explained in greater detail below, each

of these systems is being phased out over time and replaced with

compliant toilets.

FRA also asked for assistance in clarifying Sec. 229.137(c), which

permits use of a lead unit with a defective toilet when several

conditions exist that make it impossible to move the train without use

of that locomotive. FRA thought that the language of the exception

might be refined to appear less complicated. The AAR notes that the

carriers will rely on this section rarely, but that the need for the

exception is inevitable on occasion. The AAR concurs that the proposal

accurately captures all conditions that must be present in order to

take advantage of the exception and that shortening or refining the

language in Sec. 229.137(c) is not possible.

FRA also asked for comment on how Sec. 229.137(c) would affect

push-pull operations. The AAR states that push-pull service is used

only in commuter service, not in freight railroading. The proposal and

the final rule provide an exception for commuter service so that

Sec. 229.137(c) will never come into play where push-pull service is

used.

FRA stated in the NPRM that it would consider reducing the 10-day

period during which a railroad can use a defective toilet in switching

or transfer service to reflect common practice (Sec. 229.139(d)). The

AAR argues in its comments that shortening this 10-day period would not

provide the railroads with sufficient time to repair defective units,

and as written in the NPRM, would provide no health benefit because

employees must be given access to facilities during the 10-day period.

Based on this information, the fact that the Working Group consented to

this time period, and an absence of evidence that the 10-day period is

excessive or harmful, FRA has retained this provision in

Sec. 229.139(d) of the final rule.

Finally, the AAR responded to FRA's request for information on the

Microphor toilet system. This system has been used pervasively

throughout the industry for at least twenty years, and several

questions concerning its maintenance and operation surfaced during the

Working Group discussions and in comments to the NPRM. The Microphor is

a biological treatment system in which waste is flushed into a chamber

where biological agents reduce the waste to harmless by-product. Then

the by-product is chemically treated to neutralize the biological

agent, and the solution is slowly released into the atmosphere. When

working properly, the effluent is clear liquid, or liquid with small

amounts of inert material dissolved or suspended in it. The U.S. Food

and Drug Administration (FDA) has statutory authority to regulate the

disposal of human waste in interstate transportation, and has issued

standards that prohibit disposing untreated waste and permit

discharging waste that has been treated to prevent disease. See 21 CFR

part 1250. In 1973, the FDA examined the Microphor system pursuant to

its authority and determined that it meets the standard if operating as

intended.

The AAR stated in its comments and at the public hearing that more

than one thousand Microphor systems are in use in the industry today.

The AAR is not aware of any injury or illness caused by the use of the

Microphor system. In addition, the AAR states that the Microphor

flushes and processes waste without exposing employees to contact with

the waste or chemicals. The system works on water, air pressure, and

chlorine; no electricity is needed. Finally, the AAR notes that the

system has been improved over time. The AAR believes that the chemical

configuration and delivery methods used to process waste have been

improved for efficiency and safety in handling. Also, more efficient

flushing designs have been developed to lower water and chlorine

consumption and increase capacity.

FRA asked commenters to consider the need for explicit servicing

requirements for the Microphor, which might include following the

manufacturer's recommended maintenance plan or periodically testing the

effluent to determine whether the treatment process is working

properly. In its written comments, the AAR stated that these changes

are not necessary because the carriers follow specific maintenance

programs that suit local conditions and the system has not resulted in

any known injuries or illnesses.

Following the Working Group meeting in August 2001, the AAR

reconsidered its view that testing the discharge was not necessary.

Based on persistent complaints from labor organizations that the

Microphor often discharged untreated waste along the right-of-way, the

railroads agreed to conduct testing under a variety of operational

conditions. The initial testing indicated that some units perform as

intended, but some apparently do not. According to the AAR, the testing

results revealed inconsistencies in the operation of the Microphor

system, which may be due to design changes, maintenance, usage, or

other factors. In September 2001, the AAR notified FRA that certain

freight and passenger carriers and the manufacturer developed a test

plan to validate the effectiveness of the Microphor system. The test

plan would begin in the fall of 2001 and continue for approximately

three months. Under the test plan, the carriers would gather usage

patterns and operating conditions, such as weather, across the

industry, and then subject a large number of the toilets to these

``real world'' conditions. The AAR will consult with FRA when the test

results have been gathered.

The Brotherhood of Maintenance-of-Way Employes (BMWE) and the

Brotherhood of Railroad Signalmen (BRS) submitted written comments and

participated in the public hearing of this matter. Both organizations

are members of the full RSAC, and the BMWE is a non-voting member of

the Working Group. These organizations represent railroad employees who

work along the railroad right-of-way and are directly impacted by

discharge from the Microphor system.

[[Page 16036]]

The BRS and the BMWE assert that the discharge is often untreated

or poorly treated waste, which exposes employees to the risk of illness

or, at the very least, a highly unpleasant work environment. The

organizations state that waste treatment in the Microphor is time-

dependent, and suggest that waste is not always in contact with the

chlorine for a sufficient length of time. This problem may arise when

very frequent flushing occurs, when the chlorine concentration has

diminished substantially, when the flushing mechanism lacks sufficient

water, or when the bowl is clogged. In addition, the BRS and BMWE state

that the manufacturer's design changes over the last twenty years have

reduced the efficiency of the treatment process.

Both organizations urge the FRA to prohibit any discharge from the

Microphor system along the right-of-way until more information has been

gathered to determine the nature of the discharge. If FRA chooses not

to prohibit discharge (as is the case in the final rule), they urge FRA

to require the railroads to engage in an active testing program to

ensure that the system and maintenance plan are working properly. The

BRS also suggested that the railroads install holding tanks beneath the

Microphor that would hold any discharge until the locomotive is at a

location where the waste can be emptied into a larger container or

treatment process. The BRS and BMWE representatives on the full RSAC

Committee did not concur with the Working Group's recommendation to the

full RSAC that FRA publish a final rule substantially consistent with

the NPRM. Instead, these organizations voted to send the work product

back to the Working Group for further analysis.

FRA agrees with the BRS and BMWE that this issue is serious and in

need of investigation and analysis. However, FRA has determined that

the final rule should not include a strict prohibition on discharge

from the Microphor. The subject matter of this rulemaking is sanitary

conditions in the locomotive. FRA does not have primary responsibility

over discharges from interstate conveyances, and even if it becomes

necessary for FRA to regulate in this area to protect employee health,

there is no reason to delay the present final rule in order to address

the issue of discharges. Further, given the number of units currently

in use throughout the country, the adverse impact of such a prohibition

would be enormous. Most likely, there would be a substantial increase

in the number of unsanitary toilet compartments, clogged commodes, and

unhealthy conditions for cab employees, who are often required to be

present in the cab for 8 or more hours. If the railroads took all of

these locomotives out of service, the industry and the economy it

generates could not function.

However, FRA has added language to the rule text in Sec. 229.139 to

more fully describe the conditions that must be present in order for

the toilet to be ``operating as intended.'' FRA and the Working Group

believe that this change from the NPRM will help to resolve some of the

issues surrounding the Microphor and the composition of its discharge.

FRA has been testing the Microphor system and its discharge at

selected locations during the last several months, and plans to do

additional testing. Thus far, FRA has not collected enough data on

which to draw reliable conclusions concerning the system and its

ability to treat human waste prior to discharge. When FRA has completed

the testing, FRA will consult with the industry concerning any

questions or conclusions reached, and to compare results with the tests

completed by the AAR member organizations. Further, FRA will consult

with the FDA to determine what actions that agency deems appropriate

under its current rules or through further rulemaking. At that point,

FRA will be in a better position to determine whether the FRA

sanitation standard should address the characteristics of the effluent.

The Working Group was asked to address sanitation facilities for

locomotive cab employees and worked tirelessly for three years to

develop workable solutions that cab employees and rail management can

support. FRA believes it is very important to publish the standard now

to correct ongoing problems that affect cab employees, to hasten the

retirement of older systems, and to remedy the uneven state and federal

treatment of this issue in the state legislatures and the courts.

III. Section-by-Section Analysis

It is important to note that FRA's final rule text set forth below

differs in some respects from the other federal and state sanitation

standards because of the unique characteristics of the railroad

operating environment. The working environment for railroad cab

employees is quite different than the typical American worker. Existing

locomotive toilet systems and corresponding maintenance needs are not

uniform throughout the industry. Employees may work on a different

locomotive and a variety of routes each day of the week. Employee

assignments and actual time spent in the cab may vary significantly

during a typical week, and toilet systems might vary significantly on

each of these occasions. The time it takes to complete a particular

route might vary greatly from day-to-day, due to traffic, load, and

weather conditions. Small operators typically possess older equipment,

and some units may not be equipped with toilet facilities at all. On

these properties, employees may generally have access to adequate

sanitation facilities along the right-of-way, but there may be

occasions when that is difficult to achieve.

As FRA discussed in the NPRM, there are significant economic and

operational barriers to requiring a ``one-size-fits-all'' sanitation

standard, given all of these factors, and consequently FRA has made

every effort in this proceeding to be flexible. The basic requirement

set forth in the rule is that each cab employee should have access to

clean, operable toilet facilities, as the need arises for each

individual. There may be instances where that basic principle is

frustrated, but FRA believes the rule minimizes that likelihood to the

fullest extent possible.

Definitions

The final rule provides definitions for key terms used in this

amendment, and these will be placed in Sec. 229.5 with the other

definitions established for part 229. The definitions are set forth

alphabetically.

For the terms ``commuter service'', ``other short-haul passenger

service'', ``switching service'', and ``transfer service'', please see

the detailed discussion of the exceptions to the general requirements,

discussed in conjunction with Sec. 229.137(b) below. FRA has defined

the term ``commuter service'' to track the agency's definition in 49

CFR part 209, Appendix A. FRA has added a definition of ``other short-

haul passenger service'' to track the definition put forth in Appendix

A, as well. This term was used in the NPRM within the exception for

commuter service, and had not been previously defined in part 229.

FRA added a definition for the term ``commuter work train'', in

response to comments received from APTA. FRA agrees that a definition

should be provided and uses the definition that has been used for work

trains on freight railroads, without any restriction on tonnage. The

definition of work train developed for freight railroads involves power

brake application, and so tonnage in the work train is extremely

important. In this rule, tonnage has nothing to do with sanitation

facilities on commuter lines, and so FRA did not include any

restriction on tonnage.

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The definition of the term ``modesty lock'' relates to a

rudimentary lock that would be required on the door of the sanitation

compartment. The modesty lock is a lock or latch that is operated by

the occupant of the sanitation compartment to provide privacy while in

use. The rule does not require the modesty lock to be designed to

prevent deliberate forced entry. For example, some locks could be

designed to provide emergency access, to accommodate carrier concerns

that access may be required in the event of an accident or health

problem. Such access could be gained, for example, by using a coin to

turn a slotted pin or using a pencil inserted into a hole to slide a

latch. Such simple measures would prevent inadvertent intrusion,

thereby maintaining privacy while allowing prompt emergency access.

Most locomotives are now equipped with a modesty lock that meets the

definition, and these existing locks vary from property to property. In

addition, there are a variety of products available on the market that

would meet the requirements of this definition, which vary in price,

sophistication, and size. For example, a very simple surface-applied

slide latch may be employed to meet the requirements of the definition.

At this time, FRA sees no need to prescribe more specific requirements

for the modesty lock, so that each railroad may choose the best device