[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]
=======================================================================
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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.
[[Page 16037]]
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
among the variety of products available to suit their equipment and
cost needs, and so that existing locks which serve the intended purpose
of privacy may remain in place.
The definition of ``potable water'' references the requirements of
the U.S. Environmental Protection Agency drinking water standards,
which are widely recognized as the pertinent reference standards. This
definition also states that commercially available bottled water is
deemed to be potable water for purposes of the sanitation standards. So
long as employees have potable water available in adequate supply for
drinking and washing purposes that is bottled and a recognized
commercial product, the running water that might be present in the
sanitation facility on some locomotives does not have to strictly meet
the EPA drinking water guidelines. On many older locomotives in use,
tanks of water are present, and may have been used at one time for
drinking and washing purposes. Nothing in the rule requires removing
these water tanks. However, with the advent of bottled water, and the
knowledge that it is sometimes difficult to maintain ``potable'' water
in the large, on-board tanks, carriers typically now provide packs of
bottled water to cab employees. Also, on many of the newer locomotives,
there is no large water holding tank for employee use, and carriers
with these units also utilize the convenience and safety aspects of
commercially available bottled water. FRA sees no adverse consequences
associated with this usage, and believes it may decrease the risk of
illness to cab employees.
The final rule includes definitions for the terms ``sanitary'' and
``unsanitary,'' which involve the absence or presence of filth, trash,
and waste that cause a reasonable person to believe that the condition
might constitute a health hazard; and persistent odor sufficient to
deter normal use of the facility or to give rise to a reasonable
concern with respect to exposure to hazardous fumes. FRA believes that
providing these definitions adds clarity to this issue and ultimately
helps the industry comply with the standard. These terms when used in
ordinary discussion are somewhat subjective, and might produce
different inferences among different people. Therefore, FRA's
definition incorporates the perceptions of a reasonable person, or the
average reaction to sanitation facilities, and includes specific
examples that would constitute unsanitary conditions. Sanitary
conditions are thus defined as the absence of those conditions. The
list provided in the definition is illustrative, not exhaustive, and
serves as guidance to the industry of what FRA will consider compliant.
Undoubtedly, FRA inspectors and the industry will have to utilize on-
the-spot judgments in order to distinguish conditions that are
acceptable from those that are not. These definitions are inserted to
guide those local decisions in an area that can be very subjective. The
Working Group and FRA generally accept that immaculate conditions
cannot be expected, any more than one would expect such conditions in a
public rest room in an airport or office building. However, sanitation
compartments are expected to be clean and orderly following periodic
servicing and cleaning. Since the duty to remedy an unsanitary
condition arises only at the daily inspection, it is particularly
appropriate to specify a standard that describes conditions most people
would find unacceptable.
As stated in the NPRM, the Working Group discussed what perception
the ``reasonable person'' must have before a condition is deemed
unacceptable. For instance, what amount of filth, trash, or human waste
is considered significant by the reasonable person? FRA's approach to
this is governed by the need to encourage use of sanitary facilities on
a regular basis as a matter of good health. Even if a condition is
objectively harmless (as determined by later laboratory analysis), the
fact that it gives the appearance of possible unhealthfulness could
discourage use of the facility and contribute to degraded health.
To limit disruption of service because of conditions over which the
carrier has limited control, the railroads suggested that certain
conditions be treated as unsanitary only if ``caused by mechanical or
maintenance failure in the compartment.'' This language would present
enforcement difficulties for FRA in determining whether a mechanical or
maintenance failure has occurred. This raises issues that could
legitimately bear on the exercise of FRA enforcement discretion, yet
FRA believes such issues shouldn't serve as a defense to failure to
address unsanitary conditions at the daily inspection. No railroad
employee should have to contend with unsanitary conditions left behind
by a trespasser or prior employee user of the facility.
With the exception of branch lines discussed below, as of the daily
inspection, railroads should be prepared to clean a sanitation
compartment and service a toilet facility or to place the unit in a
trailing position if the sanitation compartment is no longer sanitary
or operative.
The final rule defines ``sanitation compartment'' as an enclosed
compartment on a locomotive that contains a toilet for employee use.
Depending on the type of locomotive, these compartments may be located
in the nose of the unit or at the back of the cab behind the engineer's
seat. Further discussions below explain in detail what each sanitation
compartment must contain.
FRA defines ``toilet facility'' as a system that automatically or
on command of the user removes waste to a place where it is treated,
eliminated, or retained such that no solid or non-treated liquid waste
is thereafter permitted to be released into the bowl, urinal, or room
and that prevents harmful discharges of gases or persistent offensive
odors. FRA developed this definition with the assistance of the Working
Group. There are a variety of toilets available for use on locomotives,
and FRA did not wish to exclude the use of any of the systems that
effectively meet human sanitation needs. Therefore, this definition
attempts to establish performance criteria that all of the adequate
facilities meet when operating as intended.
[[Page 16038]]
To clarify FRA's intent concerning some of the terms in the
definition, ``automatically * * * removing the waste'' does not mean
that waste is removed by gravity. Rather, this language is meant to
cover systems that possess sensors that flush when the occupant leaves
the toilet area. It is FRA's understanding that some toilets that may
be used on locomotives utilize this feature, and FRA believes it is an
effective method. However, FRA does not intend that systems without a
device to separate the waste tank from the user (such as a deflector),
which simply permit waste to flow to holding tanks below the toilet
bowl and remain there until emptied, meet this definition. These
systems are prone to overfilling and noxious odors, and may go
uncleaned for some time because the cleaning or emptying process is
very unpleasant and hence doesn't get accomplished. The term ``on
command of the user'' means that a flush mechanism is present and
functions as intended.
The definition for toilet facility also includes the terms
``harmful'' and ``offensive,'' which may give rise to differing
subjective interpretations. FRA and the Working Group discussed these
words and ultimately determined that a certain amount of subjectivity
is inevitable when personal preferences for cleanliness are involved.
Individuals may differ as to what seems ``offensive'' or even
``harmful.'' FRA intends that the toilet system must effectively remove
or treat waste so that odors generated in the toilet area do not linger
and penetrate the cab working environment. FRA will use its reasonable
judgment in determining whether odors rise to the level of
offensiveness or harmfulness.
The final rule defines ``washing system'' as a system for use by
employees to maintain personal cleanliness. As defined here, the
facility may include a secured sink, water, antibacterial soap and
paper towels; or antibacterial waterless soap; or antibacterial moist
towelettes and paper towels; or any combination of antibacterial
cleansing agents. It is critical that all employees have available to
them a system in which they are able to clean and sanitize their hands
after using the toilet. There are a variety of antibacterial agents
available on the market that effectively sanitize and disinfect after
toilet use. In addition, there are many locomotive units that do not
possess sinks and running water for employees to use as washing
facilities. As a result of discussions with the Working Group, FRA
understands that most cab crews receive a package of items for use on
each trip, and this ``crew pack'' typically includes the sort of
washing system that is permitted by this definition. Therefore, so long
as employees are provided with one of the options included in the
definition, or others that may be developed in the future that provide
an equivalent level of sanitation, this portion of the sanitation
requirement has been met.
Members of the Working Group expressed concern about restrictions
on the placement of ``crew packs.'' Some items in these packages are
used by employees while in the sanitation compartment, but these
packages also include items that employees use while working or eating
in the cab, such as paper towels. In addition, crew packs are available
for pick up by locomotive crews at on-duty points throughout the
railroad network, and employees often grab several of them to keep in
the cab. It is likely that some of these packs won't be placed in the
sanitation compartment when brought on board, and will be placed, as a
convenience, near the employee cab stand for use throughout the work
shift. For these reasons, FRA sees no reason to require by regulation
that crew packs remain at all times in the sanitation compartment and
so, the rule does not restrict the placement or contents of crew packs
issued by the railroad.
The only comment FRA received concerning the definitions involves
the term ``commuter work train'' as discussed above. Therefore, FRA did
not make changes to the definitions set forth in the NPRM, with the
exception of adding ``commuter work train.'' FRA added this term to the
definitions, in order to incorporate these trains in the exception for
``commuter service'' as discussed above. In addition, FRA changed the
definition ``transfer train'' which was used in the NPRM, to ``transfer
service'' here in the final rule, in order to avoid any confusion
between the meaning intended in this rule and the meaning intended for
``transfer train'' in the power brake rules (49 CFR 232.5). ``Transfer
train'' in the power brake context expressly includes trains that pick
up or set out cars at industries while en route, and ``transfer
service'' in this rule refers to trains that travel from a point of
origin to a point of destination that do not engage in switching.
Finally, FRA added a definition for ``other short-haul passenger
service'' because this term, which had previously been incorporated in
the definition of commuter service, but is now expressly included in
the same exception as ``commuter service'' requires a definition in
accordance with the one FRA has previously published in its
interpretive statement in 49 CFR part 209, Appendix A. This addition
does not represent any substantive change from the NPRM.
Amendment to Sec. 229.9, Movement of Non-Complying Locomotives
The final rule adds paragraph (g) to Sec. 229.9, which prescribes
requirements for the movement of non-complying locomotives. The purpose
of this addition is to clarify that the provisions set forth in the new
Secs. 229.137 and 229.139 establish criteria for the movement or
handling of locomotives that are discovered to have defective or
unsanitary sanitation compartments at the time of the daily inspection.
These new criteria for units with defective sanitation compartments
supercede those set forth in paragraphs (a)-(c) of Sec. 229.9, which
require moving designated locomotives as lite or dead, under certain
circumstances, and sometimes require enroute failures to be addressed
at the nearest forward point where the necessary repairs can be
accomplished. These new criteria for units with defective sanitation
compartments also supercede the language in Sec. 229.21(a) and (b),
that requires defective items to be repaired prior to departure. As FRA
and the Working Group examined the issue of sanitation on locomotives,
it was determined that alternative requirements would be more
appropriate for the handling of locomotives that are otherwise fit for
service, but possess a defective toilet or ventilation system in the
sanitation compartment. The power available in these units can be
utilized in the train consist, without introducing safety and health
hazards associated with the equipment and train movement. The hazards
employees face in the presence of defective or unsanitary facilities
are addressed by the requirements set forth in the new Secs. 229.137
and 229.139.
Amendment to Sec. 229.21, Daily Inspection
The final rule revises Sec. 229.21 to be consistent with the new
requirements in Secs. 137 and 139. As currently written, Sec. 229.21
requires railroads to repair all items noted on the daily inspection
report prior to using the locomotive. However, the new Secs. 137 and
139 permit locomotive units with certain non-complying conditions to
remain in service beyond the date on which the daily inspection occurs.
For instance, carriers may use a locomotive with a defective toilet
facility in switching service for a period of up to 10 days, at which
time the unit must be repaired or used in the trailing position. Also,
the
[[Page 16039]]
railroad may continue to use a locomotive that possesses a defective
modesty lock until the next 92-day inspection, at which time the
modesty lock must be repaired.
The fourth sentence of paragraphs (a) and (b) have been revised to
note this change as a result of the new requirements in Secs. 137 and
139. In addition, the fifth sentence of paragraphs (a) and (b) has been
modified to note that the railroads may choose to record repairs of
conditions that don't comply with Secs. 229.137 and 229.139
electronically, rather than on the daily inspection report. Some of the
carriers have stated that they have electronic repair reporting systems
in place that work more efficiently than paper records. FRA sees no
reason to thwart these ongoing programs, so long as they are capable of
being audited and effectively track repairs.
Section 229.137(a) Sanitation, General Requirements
This portion of the sanitation standard sets forth the primary
requirements for equipping lead locomotives in use with sanitation
facilities. FRA's primary concern is providing locomotive crews in the
lead units with access to private toilet and washing facilities, that
are equipped with adequate ventilation, toilet paper, and trash
containers. Paragraph (a)(1) requires each lead locomotive in use to
contain a sanitation compartment, except as indicated in paragraph (b)
where exceptions to this requirement are set forth, or where a unit is
designed such that no sanitation compartment exists. For instance,
certain locomotive units used by Amtrak have toilet facilities located
in the engine room, which is enclosed by a door and otherwise meet the
requirements of this paragraph. For purposes of this standard, the
engine room on these Amtrak units constitutes the sanitation
compartment.
The sanitation compartment must be adequately ventilated; equipped
with a door that closes and possesses a modesty lock; equipped with a
toilet facility that meets the requirements of the definition described
above; equipped with a washing system that meets the requirements of
the definition described above, unless the railroad otherwise provides
the washing products to employees when they report for duty or occupy
the cab for duty (typically in crew packs), or where the locomotive
possesses a stationary sink that is located outside the sanitation
compartment; equipped with sufficient toilet paper to meet employee
needs, unless the railroad otherwise provides toilet paper to employees
when they report for duty or occupy the cab for duty (typically in crew
packs); and equipped with a trash receptacle, unless the railroad
otherwise provides portable trash receptacles for use in the sanitation
compartment to employees upon reporting for duty or occupying the cab
for duty (typically in crew packs).
The Working Group and FRA determined that ventilation in the
sanitation compartment on much of the existing equipment is a simple
vent in the wall that opens to facilitate the exchange of fresh air
with air in the toilet area sufficiently addresses ventilation.
According to discussions with the Working Group, which consists of
parties who use and maintain locomotives, these vents adequately
diffuse offensive odors, so long as the toilet is sanitary and
operating. This vent must be capable of opening or closing on command
or control of the user in order to meet the requirement of ``adequately
ventilated.'' Other ventilation systems on older locomotive equipment
must operate as intended, evacuating the air in the sanitation
compartment, in order to meet the proposed standard.
The ventilation systems on new locomotive equipment are more
complex. The cab's air flow is controlled and pressurized to maximize
air flow and equipment performance, and minimize noise levels in the
cab. In order to comply with the requirement concerning ventilation for
these newer units, that portion of the ventilation system required to
provide air movement in the sanitation compartment must be operative,
or other, effective alternative provisions for ventilation of the
sanitation compartment must be made.
If the ventilation system for the sanitation compartment is
defective as of the daily inspection, the railroad may not use the unit
in the lead position, unless repaired. If not repaired, the railroad
may use the locomotive in trailing position, in switching service
consistent with the requirements of section 137, paragraph (b)(1)(ii),
or in transfer service consistent with the requirements of section 137,
paragraph (b)(1)(iii). The rationale for permitting this usage when the
ventilation system is inoperative is that trailing units are
unoccupied, and so no harm would come from utilizing the locomotive in
that position, and the exceptions set forth in section 139(b)(1)(ii)
and (iii) require the carriers to provide access to adequate facilities
elsewhere.
It is important to note that a clean, operable toilet facility will
prevent harmful gases or persistent, offensive odors from developing in
the first place, and so the most productive way to eliminate the risk
of noxious air in the cab is to focus attention on maintaining the
toilet facility properly. It is also important to note that if the
toilet room door is designed to be equipped with seals, when the seals
are maintained and replaced as needed, odors are less likely to migrate
to the interior of the cab. If applicable, replacing faulty sanitation
compartment door seals would be advisable to further protect the cab
occupants from offensive odors, although the final rule does not
require such replacement.
Section 137(a)(2) requires the sanitation compartment to possess a
door that closes, and the door must be equipped with a modesty lock. A
door which closes is one that, by design or device, stays shut when the
user closes it. For instance, a typical interior, residential door with
a door knob is a door that closes. Also, a door that possesses a spring
device that pulls the door closed after opening constitutes a door that
closes. Similarly, doors used to enclose bathrooms on airplanes close
when pulled shut, by way of a device similar to a door knob, and would
meet the standard set forth here. (These doors also possess modesty
locks to prevent unwanted intrusion). FRA does not mandate the type of
closing door the locomotive must possess, so long as the door closes by
design or on command of the user. This requirement is necessary to
provide basic privacy to employees using the sanitation facilities. A
modesty lock is a device operated by the occupant from inside the
toilet compartment that prevents entry by a person who is not aware
that the compartment is occupied. A modesty lock can typically be
disabled from the outside in the event of an emergency that requires
entry from outside the toilet compartment. FRA believes employees
should have the expectation of privacy when using toilet facilities,
consistent with similar standards issued by other regulatory bodies and
common sense. A door that closes and that possesses a modesty lock
provides that privacy.
The railroads on the Working Group expressed some concerns about a
modesty lock that would prevent entry in the event of an emergency,
such as an accident or health problem. As defined in the rule, the
railroads may utilize modesty locks that can be disabled in an
emergency, so long as the lock prevents an accidental or unnecessary
intrusion. FRA does not prescribe specific requirements concerning the
form of the modesty lock. Some of the railroads
[[Page 16040]]
utilize fairly sophisticated expensive devices, and some utilize an
inexpensive, rudimentary slide device. These achieve the desired level
of privacy, and also provide the employer with the ability to enter the
compartment in the event of an emergency. Either meet the requirement.
As FRA understands it, most locomotives are currently equipped with
closing doors that have modesty locks, and if not, the costs associated
with adding modesty locks to unequipped units are minimal. In the
Working Group discussions, the industry representatives indicated that
all units could be equipped with modesty locks by October 6, 2003.
The rule requires all sanitation compartments to be equipped with a
closing door as of the daily inspection. However, if the modesty lock
is defective as of the daily inspection, the railroad is not required
to remove a locomotive from service. The railroad is required to repair
the modesty lock on or before the next 92-day inspection required by
part 229.
Section 229.137(a)(3)-(a)(4) require toilets and washing systems in
lead locomotives in use. FRA understands that there are many varieties
of toilet facilities that function effectively on board locomotives,
and there are likely to be technological improvements that will bring
about new units in the future. The rule takes a performance approach to
toilet and washing systems, rather than specifying units by name in the
definition, so that effective existing systems and systems not yet
developed, are not unintentionally excluded.
As discussed above, FRA does not wish to prescribe a particular
type of washing system. However, each lead locomotive must have one of
the systems outlined in the definition available for employee use. This
paragraph states that the washing system must be located in the
sanitation compartment, unless it is otherwise provided to employees
when they report for duty, enter the cab for duty, or where the
locomotive possesses a stationary sink that is not located in the
sanitation compartment. Based on discussions with the Working Group,
FRA understands that on some locomotives, washing systems are located
in the toilet compartment, but in many cases they are provided to
employees in crew packs. Many railroads give crew packs to employees as
they begin each work shift, and they typically contain antibacterial
soap, paper towels or moist towelettes, toilet paper, and perhaps
bottled water. As stated above, FRA sees no need to require the
railroad to maintain washing products in the sanitation compartment, so
long as employees receive them in crew packs at the beginning of their
shift. The crew packs will be made available to crews at their
reporting point or onboard the locomotive. The employer must provide
these items to employees.
This paragraph also permits sinks located adjacent to the
sanitation compartment to remain outside the sanitation compartment.
According to information received from the Working Group, at least one
Class I railroad maintains locomotives with stationary sinks that are
not in, or capable of being placed in, the sanitation compartment. FRA
sees no safety or health risk associated with this configuration and,
therefore, the standard does not prohibit this.
Section 229.137(a)(5) states that the sanitation compartment must
contain toilet paper in sufficient quantity to meet employee needs,
unless the railroad otherwise provides employees with toilet paper when
they report for duty or occupy the cab for duty. FRA chose not to
prescribe a specific amount of toilet paper for each employee in the
cab, believing that this issue is best handled through common sense
decision making at the local level. As FRA understands it, some
railroads maintain toilet paper in the sanitation compartment, and some
rely on crew packs for dissemination of toilet paper. FRA believes
either method is adequate, so long as reasonable amounts of toilet
paper are provided to meet typical daily needs. If it is determined
during the daily inspection that a locomotive is not equipped with
sufficient toilet paper, the unit must be equipped prior to departure.
For most railroads, this requirement will be accomplished by the use of
crew packs, which contain ample toilet paper for each employee's work
shift.
Section 229.137(a)(6) requires each sanitation compartment to
contain a trash receptacle, unless the railroad provides portable trash
receptacles in the employee crew packs. This requirement attempts to
provide flexibility to the railroad where space limitations in
locomotive sanitation compartments prevent an across-the-board
requirement for permanent trash cans or similar fixtures in all
sanitation compartments. Therefore, the trash receptacle may be a
permanent trash can or similar fixture in the sanitation compartment,
or the trash receptacle may be a small plastic bag that hangs from the
door handle or is posted to an interior wall. In addition, where the
space limitations in the sanitation compartment prohibit placing any
sort of trash receptacle in the sanitation compartment, portable trash
bags that can be included in the employee crew packs may be placed
outside the sanitation compartment. In these instances, the Working
Group and FRA expect that the trash bags will be placed at a location
that is as far from the cab stand as possible, such as in the nose of
the cab. FRA and members of the Working Group wish to segregate
sanitation-related trash from the area where employees work and often
eat during the course of the work shift. In large measure, the location
of the portable trash bags will be controlled by the employees working
in the cab, who have a natural interest in keeping the sanitation-
related trash away from the work and eating areas of the cab.
If it is determined during the daily inspection that the sanitation
compartment is not equipped with a trash receptacle, or the crew has
not been provided one in a crew pack, the railroad must equip the
locomotive with a trash receptacle prior to departure. This may be
accomplished by placing a trash receptacle in the sanitation
compartment, or by providing portable trash receptacles to employees in
their crew packs when they report for duty or occupy the cab for duty.
Section 229.137(b) Exceptions
Paragraph (b) of Sec. 229.137 sets forth exceptions to the general
requirements proposed in paragraph (a), discussed above. Paragraph
(b)(1)(i)-(v), set forth exceptions to the general requirement of a
sanitation compartment in each lead locomotive in use. These exceptions
accommodate unique circumstances.
Paragraph (b)(1)(i) exempts locomotives used in commuter service or
other short-haul passenger service where employees have access to
sanitation facilities at frequent intervals, either at stations or
elsewhere on the train. ``Commuter service'' and ``other short-haul
passenger service'' are defined at length in 49 CFR part 209, Appendix
A. Most commuter and other short-haul runs are relatively short in
duration, and provide many opportunities during a work shift to use
facilities at downtown or outlying terminals. Typically, cab crews in
commuter service may use sanitation facilities in the stations they
service in the course of their route, or in the passenger cars they are
hauling. Therefore, FRA sees no need to require the locomotive cabs in
commuter operations to also possess a sanitation facility. In most
cases, the configuration of commuter locomotives differs from
traditional freight locomotives. Most do not currently possess
sanitation compartments and there may be no
[[Page 16041]]
additional space to add such a compartment.
This exception makes clear that the sanitation facilities employees
use must be provided by the railroad. In other words, the employer may
not utilize this exception to the general requirement if employees are
forced to use sanitation facilities in businesses along the right-of-
way that have no connection to the employer, such as restaurants,
plants, or convenience stores. The rule requires each commuter railroad
operation subject to these standards to provide sanitation facilities,
and employees must not be placed in situations where they are forced to
request permission to use the sanitation facilities of foreign
establishments during the workday. So long as these conditions are met,
and because the nature of commuter operations affords employees the
opportunity for frequent access throughout the shift, FRA sees no
reason to impose a new, costly requirement for cab toilets on commuter
railroad locomotives.
Paragraph (b)(1)(ii) permits all locomotives engaged in switching
service, where employees have access to railroad-provided sanitation
facilities outside of the cab, to operate without a sanitation
compartment in the cab. ``Switching service'' is defined as the
classification of freight and passenger cars according to commodity or
destination; assembling cars for train movements; changing the position
of cars for purposes of loading, unloading, or weighing; placing
locomotives and cars for repair or storage; or moving rail equipment in
connection with work service that does not constitute a train movement.
This definition is taken from the power brake regulations (49 CFR
232.5) and will be construed as the term is used in those rules.
The exception for switching service is similar to and based on the
same general principle as the exception provided for commuter service.
Employees engaged in switching service are typically in the cab for
relatively short periods of time, and have access to sanitation
facilities in rail yard buildings or railroad facilities along the
right-of-way. Generally, these employees are not captive in a
locomotive cab for long time periods, where a sanitation facility
clearly must be provided. Therefore, the rule permits locomotives used
in switching service to operate without a toilet in the cab, so long as
employees have ready access to railroad-provided sanitation facilities
along the right-of-way or in yard facilities at frequent intervals
during the work shift. If a railroad is unable to provide the alternate
access, this exception cannot apply. If the switching activity places
cab employees at locations where railroad sanitation facilities are not
accessible to employees, then the carrier must provide a locomotive
that is equipped with all of the items required by paragraph (a) of
this section.
Paragraph (b)(1)(iii) relates to transfer service, and tracks the
same logic as the exceptions proposed for commuter operations and
switching service. Transfer service involves trains that travel between
a point of origin and a point of final destination not exceeding twenty
miles and that do not perform switching service. Because the cab
employees engaged in transfer service generally have the opportunity to
use railroad-provided sanitation facilities, as needed during the
course of their work shift, the existing locomotives used in transfer
service do not have to contain a sanitation compartment. These
employees are less likely to face long periods of time in the
locomotive without access to sanitation facilities in rail yard
buildings or at railroad-owned facilities along the right-of-way. If
the railroad is unable to provide such facilities to accommodate
employee needs, then the carrier must utilize locomotives that possess
toilet facilities that otherwise meet the requirements of this
proposal. (It is important to note that these requirements prohibit
removal of toilet facilities from locomotives engaged in transfer
service, if the locomotives are equipped with a toilet on the effective
date of the final standards. Also, all locomotives manufactured after
the effective date of the final rule must be equipped with a toilet
facility accessible without going outside the locomotive. These
requirements are discussed in greater detail below.) Finally, it is
important to note that ``transfer service'' has a different meaning
than the term ``transfer train'' as used the freight power brake
regulations (49 CFR 232.5). In the power brake rules, trains that pick
up or deliver cars at industries before arriving at the point of
destination are nevertheless transfer trains. However, in this rule,
made clear by the NPRM definition of ``transfer train'' FRA and the
working group did not intend to include in the exception trains that
stop en route to perform switching, because employees on such trains
often are captive in the cab for long periods of time without an
opportunity to use bathroom facilities.
Paragraph (b)(1)(iv) exempts locomotives of Class III railroads
that are not equipped with toilet facilities, and that are not engaged
in switching or transfer service, from the requirement of having a
toilet facility in the cab. However, these Class III railroads must
provide or arrange for sanitation facilities along the right-of-way.
(It is important to note that these requirements prohibit removing
toilet facilities from locomotives, if those locomotives are equipped
with a toilet on the effective date of the final standards. This is
discussed in detail below.)
Most Class III railroads are small businesses with limited capital
margins. (The current definition of these entities, as established by
the Surface Transportation Board, is a railroad that earns $20 million
or less in annual operating revenues.) Typically, purchasing new
locomotives would be out of the question for these companies, and
spending considerable funds to retrofit old units could mean that
critical safety programs in other disciplines would suffer. The older
locomotive equipment generally cascades down to the Class III
railroads, and over time the Class III railroads will acquire toilet-
equipped locomotives. Currently, many of the older locomotive units are
not equipped with toilet facilities, and some of the units actually
lack space for toilet facilities, depending on the purpose it was
originally intended to serve. FRA believes that it would create great
financial hardship for these entities to require sanitation retrofits
or new locomotive purchases. Some of the small operators might simply
opt out of the industry, and for others, the diversion of funds could
create safety problems elsewhere. Therefore, this exception should help
to ensure that the sanitation standards do not give rise to additional
safety concerns or destroy otherwise productive business concerns.
However, the Class III railroads that choose to avail themselves of
this exception must provide or arrange for adequate sanitation
facilities, which means they must be available to employees readily,
frequently, and as needed along the right-of-way.
This exception does not permit a Class III railroad to advise
employees to use sanitation facilities at restaurants and other public
establishments that have no business connection to the carrier. These
Class III employers may not assume that employees will locate
sufficient sanitation facilities on their own. The Class III railroad
must take affirmative action to see that the cab employees have
frequent access, as needed, to adequate sanitary facilities. If it is
not possible for the railroad to provide adequate sanitary facilities
along the right-of-way, then it will consult with customers or other
businesses along the route for the
[[Page 16042]]
specific purpose of garnering access to adequate sanitation facilities
for employees. In addition, the Class III railroad must communicate to
employees the locations and, as appropriate, hours of availability of
access to the sanitation facilities provided by the carrier via
customers or other businesses along the route. FRA and the Working
Group expect that the Class III railroad will consider 24-hour railroad
operations in these determinations, and which facilities will be
available during every work shift.
Paragraph (b)(1)(v) states that locomotives of scenic, tourist,
historic, or excursion railroads, which are not steam-powered, which
operate on the general system, and are otherwise covered by the
locomotive safety standards set forth in 49 CFR part 229, are not
required to be equipped with compliant toilet facilities, so long as
employees working in these locomotives have access to appropriate
facilities at frequent intervals during their work shift. The rationale
for this proposal is similar to the proposed exceptions for Class III
entities. The railroads addressed by this paragraph have limited profit
margins and utilize older equipment that may not possess sanitation
facilities on board. The costs to retrofit these units would adversely
impact the viability of these operations, and on some of the present
equipment, may not be possible. FRA believes that so long as the
employees who work on these units are provided appropriate facilities
throughout the course of the work shift, there would be no reason to
require these locomotives to be equipped with sanitation facilities.
Representatives of tourist and excursion railroads suggested that
this paragraph should be changed to state that the tourist operator or
employer is responsible for providing access to adequate toilet
facilities rather than the ``railroad carrier.'' Some tourist
operations may not be ``carriers'' under other federal laws. Also, as
written in the NPRM, there may be confusion concerning whether the
tourist operator or the owner of the track on which the tourist
organization travels is responsible for providing access to facilities.
FRA has changed the final rule to state that the tourist railroad must
arrange for sanitary facilities.
It is difficult to define with specificity the terms ``ready
access'' and ``frequent intervals,'' which are used in paragraphs
(b)(1)(i)-(b)(1)(vi). FRA and the Working Group spent a great deal of
time discussing the terms and the concepts they convey. All struggled
with appropriate language that would capture the concepts accurately
and still provide sufficient flexibility to accommodate the changeable
nature of railroad operations. The Working Group discussed establishing
specific time periods or distances traveled that might equate to a
satisfactory and concise definition of these terms. However, members of
the Working Group recognized that individuals' access needs vary
greatly from person-to-person and from day-to-day. Further, the Working
Group noted that it may take 5 hours to traverse 5 miles on a given
day, depending on traffic, weather, load, and other considerations.
Therefore, the Working Group rejected the notion of a hard and fast
time or mileage limit as an appropriate solution to this question.
Instead, the Working Group offered an explanation of the concept of
adequate access to sanitation facilities, where locomotives covered by
these exceptions are not equipped with a toilet facility: on reasonable
demand or need by a crew member, the local railroad officials would
make immediate accommodations to provide access to the railroad's
sanitation facilities at frequent intervals during the course of their
work shift. As used here, the term ``immediate accommodations'' means
that the employer would begin the process of providing access to
sanitation facilities when the employee requests it.
The general principle that FRA and the Working Group intend to
capture with these terms is that employees would have access to
sanitation facilities, as the need arises, that are located in close
proximity to the work site, and that are owned or operated by the
railroad. In many circumstances, these terms simply mean an employee
could disembark from a locomotive in a yard, use a toilet in a nearby
building, and then return to the locomotive. However, if employees work
in remote locations where sanitation facilities do not exist, the
railroad would be required to provide employees with alternate
transportation to a nearby site, in order to make use of one of the
exceptions listed above. These terms follow the logic of standards
promulgated by the U.S. Occupational Safety and Health Administration
(OSHA) and its recent interpretation, which place priority on access as
the need arises. This principle is important because of the adverse
health effects that may occur if access is denied. Also, this principle
enhances an employee's ability to focus on the work being done, and
improves the likelihood that safe train movements will occur.
It is important to note that each of these exceptions require the
carriers to provide facilities that ``meet otherwise applicable
sanitation standards.'' This means that the alternate sanitation
facilities offered by the carrier must meet the state or federal
standards for sanitation equipment and servicing that apply to that
workplace. For instance, if the alternate facility is located in an
office building along the right-of-way that falls within the authority
of OSHA for purposes of sanitation, this rule requires the railroads to
select facilities that meet OSHA standards concerning the presence and
condition of toilet and washing facilities. FRA is exercising
jurisdiction over cab employee access to sanitary facilities, specific
sanitation equipment on rolling stock, and the servicing and use of
that equipment on rolling stock. FRA does not intend to oust OSHA's
existing authority with respect to sanitation equipment, or its
maintenance, where it exists elsewhere. Of course, FRA will not enforce
the ``otherwise applicable standards;'' the agency with enforcement
authority (OSHA in the example set forth here) must do so. In addition,
FRA will not determine the applicability or correct interpretation of
another agency's sanitation standards or whether those standards have
been violated. That will also fall within the authority of the agency
that promulgated the applicable standard and FRA will rely on the
determinations of those other agencies.
Paragraphs (b)(2)(i) and (b)(2)(ii) provide exceptions to the
requirement of a toilet facility that conforms with the definition of
toilet facility, until those nonconforming toilet facilities have been
replaced with compliant ones. Paragraph (b)(2)(i) addresses a specific
type of toilet facility that a Class I railroad possesses on
approximately 500 locomotive units. This toilet, referred to as a
``bogan,'' is similar to portable toilets that are often used at
outdoor events, where the need for mobile, basic toilet facilities
exists. This toilet does not meet the requirements of the definition
for toilet facility, has no flush mechanism and simply permits waste to
fall to a tank below the toilet seat for storage, treatment, and
periodic disposal. Chemicals are placed in the storage tank to treat
waste and minimize odors that would otherwise accumulate. Maintenance
of these toilets may be a greater challenge than is the case with more
contemporary technology, and failure to properly maintain them could
result in unacceptable conditions.
The Class I railroad owner of the bogan toilets is replacing these
units as they become defective, and is retiring them as the locomotives
on which they are situated are retired. The bogan toilets are being
replaced with toilets that incorporate advanced technology.
[[Page 16043]]
For that reason, the Working Group recommended that FRA permit these
toilets to remain in use until they are retired by the carrier as part
of the railroad's plan for replacing them. The rule text permits the
bogan toilets to remain in service on this Class I railroad until they
become defective or are replaced with conforming units, whichever
occurs first. Although FRA would prefer more modern systems in place on
all locomotives, FRA is not presently aware of an imminent, serious
safety or health risk associated with the bogan that calls for
immediate removal. Given the costs associated with toilet retrofit and
the carrier's own plan to replace the units, FRA believes that an
exception is appropriate. Finally, it is important to note that this
carrier objects to and disagrees with any inference or statement that
the current systems in place are inadequate or are not properly
maintained.
This exception applies only to the Class I railroad that FRA knows
possesses these toilet systems. FRA is unaware of any other railroads
that use this toilet, and after requesting comments, believes the unit
is isolated on this particular railroad.
In connection with this exception and the exception set forth in
paragraph (b)(2)(ii), it is important to note that certain state
standards may require flush toilets for cab employees, and this final
rule preempts those standards. Therefore, FRA wishes to make every
effort to minimize the use of non-flush systems. FRA and the Working
Group have no desire to issue or recommend standards that ultimately
permit the use of systems that are more rudimentary than those
permitted by existing state standards. However, FRA understands that
certain accommodations may be necessary in the short term in order to
achieve that goal.
Paragraph (b)(2)(ii) addresses a similar situation that exists on
another Class I railroad, in which the toilet facility in place on a
majority of the carrier's locomotives does not comply with the proposed
definition of toilet facility. These toilet facilities use railroad-
provided plastic liners to collect human waste; these liners are then
sealed, placed in sealed waste containers, and delivered by the
employees to the railroad for disposal. Although the carrier believes
this system adequately addresses sanitation needs for cab employees,
concerns about the system have been raised by employees, landowners
along the right-of-way, and certain State agencies. Further, as the
carrier recognizes, proper administration of this system off the
carrier's home lines sometimes is not practicable, and ``power
sharing'' arrangements in the railroad industry are growing. FRA agrees
that this system should be retired, but also recognizes the significant
capital and labor costs associated with a massive retrofit campaign.
The railroad has initiated a replacement program in which approximately
30 locomotives per month are being retrofitted with new toilet
facilities that comply with the rule. In addition, this carrier has
decided not to deliver locomotives with the older toilet facilities in
the lead position to other railroads in interchange, and the final rule
incorporates that restriction for the period of retrofit. Finally, this
carrier has stated its intention to make every reasonable effort to
place compliant locomotives in the lead position on its system wherever
possible. FRA and the Working Group are satisfied at this point in time
that the retrofit program and the carrier's commitment to place
locomotives with compliant toilets in the lead where possible, is the
best solution to the problem presented.
Based on the number of units in need of retrofit, FRA and the
Working Group estimate that all of the railroad's locomotives are
capable of being in compliance with the final rule by July 1, 2003.
Therefore, the rule permits the Class I railroad to operate locomotives
in the lead position on its lines with non-compliant units until July
1, 2003. After that date, all lead units must possess compliant toilet
facilities. Finally, it is important to note that this carrier objects
to and disagrees with any inference or statement that the current
systems in place are inadequate or are not properly maintained.
This exception applies only to the Class I railroad that FRA knows
possesses these toilet systems. FRA is unaware of any other railroads
that utilize this toilet, and the AAR has confirmed that in its
comments.
Paragraphs (b)(2)(i) and (b)(2)(ii) relate only to the type of
toilet facility in use. The other requirements set forth apply to these
railroads and their equipment according to their terms. For instance,
the requirements set forth in paragraphs (a)(1)-(2), and (a)(4)-(6)
apply to these locomotives. Similarly, Sec. 229.139, which relates to
servicing and operative equipment, requires the units covered by
paragraphs (b)(2)(i) and (b)(2)(ii) to operate as intended and be
located in sanitation compartments that are ventilated and free of
debris and waste.
Paragraph (c) of section 137 prohibits a railroad from placing a
locomotive with an unsanitary or defective toilet facility in the lead
position. This determination is made as of the time of the daily
inspection required by 49 CFR 229.21. En route failures that occur
after the daily inspection impose no burden on the railroad, until the
next daily inspection is due. However, according to Working Group
members, the current railroad practice concerning en route toilet
failures is to move defective toilet units into a trailing position,
where it is possible to do so. Although the final rule does not require
such movement, the enhanced focus on sanitation facilities that will
naturally occur as a result of this standard should increase the
likelihood that the practice will proliferate.
The requirement set forth in paragraph (c) reflects the fundamental
need to provide employees with a clean, safe workplace. It is
inconsistent with notions of decency and the minimum requirements for
workplaces in other industries to expect employees to work effectively
and safely if unsanitary waste or deplorable odors are present. The
Working Group agrees with this principle and believes that the final
rule is appropriate for the railroad industry. In order for a
locomotive to be placed or remain in the lead position as of the daily
inspection, all aspects of the toilet facility must be operating as
intended and it must be clean. The chemicals required by certain
systems must be supplied in the appropriate amount so that the toilet
will operate properly; if the system calls for antifreeze, it must be
present during winter months to prevent freezing; any integral flush
mechanisms or sensors must operate as intended; and all components of
the system intended to be present must be present.
As discussed above, the rule defines the terms ``unsanitary'' and
``sanitary'' to help the industry and FRA inspectors determine which
conditions may be noncompliant. FRA believes that most individuals have
a general sense of conditions that constitute unsanitary facilities,
and FRA inspectors will utilize that sensible approach to enforcing
this standard. The definitions should provide additional clarity to
that process.
In discussions prior to publication of the NPRM, members of the
Working Group raised concerns about the difficulties of providing a
substitute locomotive that possesses a sanitary, operable toilet
facility on branch lines in remote locations. Although rare, these
instances might occur where no compliant locomotives are available, and
so a defective unit and its freight could not move for repair.
Therefore, FRA and the Working Group developed an exception for these
instances, proposed it in the NPRM, and placed it
[[Page 16044]]
in the final rule in paragraph (c). All of the conditions listed below
must be present in order for the exception to apply:
--The defective or unsanitary condition must be discovered at a
location where there are no other suitable (i.e., having sufficient
power to complete the haul) locomotives available for use. Where it is
not possible to switch another locomotive into the lead position due to
space or track limitations, or where the location is not equipped to
repair or clean the locomotive, there are `no locomotives available for
use';
--The locomotive, while noncompliant, has not traveled through a
location where it could have been cleaned, repaired or switched with a
compliant locomotive since its last required daily inspection;
--Upon reasonable request, the carriers must arrange for access to
toilet facilities for employees assigned to work on the locomotive
during the time they must work on it;
--If unsanitary conditions exist, the sanitation compartment door must
be closed and sufficient ventilation provided to the cab compartment so
that employees aren't exposed to strong, persistent chemical or human
waste odors sufficient to deter use of the facility or to give rise to
a reasonable concern with respect to exposure to hazardous fumes; and
--The locomotive must be repaired, cleaned or switched with a compliant
unit at the next daily inspection or the next location at which such
service can take place, whichever occurs first.
This exception cannot be used where a second locomotive exists, but
it also contains a defective or unsanitary sanitation compartment. The
rule does not encourage deferral of necessary maintenance and cleaning
where locomotives can reasonably be expected to be pressed into service
as lead units at any time. This exception is available only where there
is just one locomotive available and it possesses a defective or
unsanitary sanitation compartment, or where there is no additional
track to use to facilitate switching a compliant locomotive into the
lead position, and all of the other conditions listed in the rule text
are present.
In order to fall within this exception, the rule requires the
railroad to arrange for access to a toilet facility outside the lead
locomotive, upon reasonable request of an employee assigned to work
onboard the locomotive. While it remains the responsibility of the
railroad to provide access to a toilet facility, FRA expects that
access will be achieved by a means as simple as the crew making use of
a toilet facility at a known place of business, such as a restaurant,
that is regularly frequented by the crew during their breaks. However,
access to a toilet facility outside the locomotive that meets otherwise
applicable sanitation standards may not be available to the crew during
the work shift for reasons such as personal safety while not on
railroad property, or simply because the time required for to walk to a
toilet facility may impede railroad operations. In these situations,
the railroad may meet a reasonable request by providing transportation
to a toilet facility during the work shift.
This exception is distinct from the other exceptions in paragraph
137(b) that use the terms ``ready access to railroad-provided
sanitation facilities outside of the locomotive, that meet otherwise
applicable sanitation standards, at frequent intervals during the
course of their work shift.'' Because the branch line situation
typically involves remote locations where ``ready access'' in not
possible and should occur rarely, the rule imposes a different standard
than is required in other operational settings.
Paragraph (d) of section 137 requires that when a railroad finds a
toilet facility defective or unsanitary at the time of the daily
inspection, the carrier may utilize the unit in a trailing position.
However, if the unit is subsequently used to haul employees, it must be
cleaned prior to occupancy and defective toilet facilities must be
clearly marked as unavailable for use. This paragraph and others that
follow establish the requirement that occupied locomotives should not
expose employees to unsanitary conditions. FRA recognizes that
locomotive toilets periodically malfunction. The railroad should not be
penalized for these events, and under prescribed circumstances, should
be able to utilize the available power in the equipment. However, the
railroad must minimize employee exposure to the hazards of untreated
waste and other unsanitary conditions. Therefore, the carrier must
clean any trailing units if they will be occupied, and must mark
defective toilet facilities so that employees understand the toilet
facility cannot be used.
During this process, the Working Group did not believe it necessary
to require a standard method for identification of defective sanitation
units, and FRA sees no reason to do so either. Some carriers use a red
tag to indicate defective conditions, and some railroads tape the
toilet seat so that it cannot be used. Either method, and others that
may be in use, are sufficient, so long as a reasonable person entering
the cab would understand that the toilet facility is defective and
should not be used.
Paragraph (e) states that when it is determined during the daily
inspection that a road locomotive toilet facility is defective, but
sanitary, the railroad may move the locomotive into switching or
transfer service for a very brief period of time, consistent with the
requirements for that service, as discussed above. The unit may be used
in this service for a period not to exceed 10 days, at which time it
must be repaired or used in trailing position. If the railroad chooses
to utilize the equipment in this manner prior to its repair, the
carrier must clearly mark the defective toilet facility so that a
reasonable person would know not to use the toilet facility. The
Working Group and FRA do not expect the railroads to reassign
locomotives from road to yard service solely for the purpose of
circumventing any part of this regulation. FRA understands that there
are overriding incentives for railroads to keep road units with
defective toilets in trailing road service until the next periodic
inspection, rather than reassigning them to yard service.
Paragraph (f) of this section requires that if a carrier discovers
during the daily inspection that a lead locomotive is not equipped with
sufficient toilet paper, washing facilities, or a trash receptacle, the
carrier must equip the unit prior to departure. This reflects FRA's
belief that it would be unwise to require a railroad to change the
consist makeup due to a lack of toilet paper, washing facilities, or a
trash bag. These items are relatively easy to locate and supply to cab
crews, and so should be provided before any employee is expected to
depart. Therefore, the railroad must simply equip the locomotive with
these items prior to departure. Most railroads supply these items to
cab employees as they begin their work shift, and so this requirement
should not impose burdens on the industry.
Paragraph (g) states that when it is discovered during the daily
inspection that the sanitation compartment ventilation is defective,
the carrier must repair it prior to departure, or place the locomotive
in trailing position, in switching service consistent with the
requirements of paragraph (b)(1)(ii), or in transfer service consistent
with the requirements of (b)(1)(iii). As discussed earlier, the
rationale for permitting this usage when the ventilation system is
inoperative is that trailing units are
[[Page 16045]]
typically unoccupied, and so no harm would come from utilizing the
locomotive in that position. In addition, the exceptions set forth in
section 137(b)(1)(ii) and (iii) require the carriers to provide access
to adequate facilities elsewhere, and so employees would be using
ventilated facilities in those circumstances.
Paragraph (h) of section 137 provides that if the sanitation
compartment is not equipped with a door that closes when pulled shut as
of the daily inspection, the door must be repaired prior to departure,
or the locomotive must be moved from lead position to trailing,
transfer service, or switching service. In addition, this paragraph
states that if the modesty lock, required to be present in order to
prevent unintended intrusion, is defective as of the daily inspection,
the locomotive may remain in use in the lead so long as the lock is
repaired by the date on which the next 92-day inspection is due. (See
discussion for Sec. 229.139(e) below.) The rationale for this
requirement is that the first priority for cab employees is to have the
benefit of a door that closes while using toilet facilities for each
assignment in a lead locomotive in use. Therefore, the door must close
as designed, as of the daily inspection. So long as the compartment
door closes as it should, a unit with a defective modesty lock may
remain in service until the date on which the next 92-day inspection is
required. FRA believes that affirming an employee's expectation of
privacy while using toilet facilities will contribute to appropriate
use of the facilities and consequent good health. The rule balances
legitimate employee privacy needs, by requiring a door that closes, and
the legitimate difficulties associated with making use of a locomotive
while moving it to the correct repair facility, by permitting the
locomotive with a defective modesty lock to remain in service for a
limited time period.
Paragraph (i) provides that all locomotives which are equipped with
a toilet facility on the effective date of the final sanitation rule
must retain and maintain those toilet facilities, even where the
locomotive units might be relegated to switching service or transfer
service where toilet facilities are not always required by this
proposal. There is a small exception to this proposed requirement,
which involves cabs that are not occupied. If a railroad downgrades a
locomotive to ``booster'' or ``slug'' service, removing many of the
interior appurtenances so that the unit is no longer intended to be
occupied in movement, the carrier may also remove the toilet facility.
Railroads must retain toilets in equipped units in order to provide the
most accommodating access to sanitation facilities available--an
operable toilet on board the locomotive. A toilet facility on the
locomotive is preferable to one along the right-of-way. Employees can
utilize it as the need arises, which diminishes the risk of health
problems. They would not be forced to leave running equipment on the
track or slow planned operations, which can create safety risks. Also,
as older locomotives cascade down to the Class III railroads, this
requirement enhances the likelihood that small entities will inherit
locomotives equipped with toilet facilities.
Paragraph (j) requires all locomotives manufactured after the
effective date of this rule to include a toilet facility accessible to
cab employees without walking outside. The design may require walking
out of the cab into other compartments of the locomotive, but walking
outside to use the toilet is disfavored. This paragraph prohibits
railroads from using any locomotive built after the rule's effective
date unless it is so designed. This paragraph reflects FRA's desire
that all cab employees will work in a locomotive equipped with a toilet
facility in the future.
There are two narrow exceptions to this standard relating to
switching units that are built exclusively for switching service and
commuter locomotives designed exclusively for commuter service. With
respect to the switching service exception, the Working Group and FRA
recognize that units that are created exclusively for yard service are
often too small and oddly shaped to accommodate a toilet facility.
Also, because of their size and configuration, these units are not used
on long hauls over the road on which employees would need toilet
facilities in the cab. Under all circumstances, these units would be
used in yard service, where railroad-provided sanitation facilities
exist along the right-of-way, and are available for employee use. New
units used in transfer service would be required to be fitted with
toilet facilities.
Similarly, the Working Group and FRA believe that commuter
operations provide cab employees with sufficient access to sanitation
facilities, along the right-of-way and elsewhere on the train.
Therefore, FRA believes that the new construction requirements proposed
in this paragraph need not include commuter locomotives.
With this requirement, FRA does not wish to chill innovation in the
design of new equipment, but believes that toilet facilities should be
located in close proximity to cab employees in lead locomotives,
switching service, and transfer service. Members of the industry agree
that this requirement is appropriate.
Finally, Sec. 229.137(k) requires that where the washing system in
place on the lead locomotive includes the use of water, the water must
be potable. This requirement is consistent with the principle that
nonpotable water should not be used by humans for personal cleanliness,
due to bacteria that may be present. As discussed above, railroads may
use waterless soaps, now available commercially, that do not require
water; they may use bottled water that is potable; or they may use
water in holding tanks located in the toilet compartment, so long as it
meets the safe drinking water standards.
Section 229.139 Sanitation, Servicing Requirements
Section 229.139 establishes minimum servicing standards to ensure
that sanitation compartments in occupied locomotives are not unsanitary
or defective. Paragraph (a) states that the railroad must service the
sanitation compartments of lead locomotives in use so that they are
sanitary. This requirement means that the floors, toilet facility, and
washing system must be free of trash and waste. It is reasonable to
expect that, as a locomotive is used, some amount of dust and trash
would accumulate. However, in order to meet the requirements of
paragraph (a), the trash must be removed at regular intervals, and
used, soiled paper products or human waste may not be present on the
floor.
As drafted in the NPRM, paragraph (b) of section 139 required that
all components required by paragraph (a) of section 137 for the lead
locomotive must be present consistent with the requirements of sections
137 and 139, and must be maintained so that they operate as intended.
FRA did not dictate when and how railroads must empty, clean, and
service toilets. Members of the Working Group initially recommended
that these decisions vary greatly from property to property, and depend
on weather conditions, degree of use, and the toilet system in place.
These members further advised that a federal standard establishing
specific thresholds and time limits could result in unnecessary costs
for some entities, and could actually reduce the level of safety and
sanitation on others. Based on that information, FRA proposed language
that required each railroad to develop an effective servicing program
that suits the traffic, use, weather, equipment and other needs of the
system so that cab employees would not be exposed to full toilet bowls,
missing seats, offensive odors, frozen units, dirty
[[Page 16046]]
floors, ineffective ventilation systems, or any other condition that
could reasonably be deemed unsanitary. As for mandating specific
servicing requirements, FRA and the Working Group determined that the
railroads, in consultation with their labor forces, are in the best
position to determine when toilet facilities must be emptied and
cleaned. These decisions are based on a variety of factors, including
degree of use, length of trip, weather conditions, size of crew, and
the specifications of the system in place. However, FRA stated that it
would consider more specific requirements for servicing the toilets and
invited comments.
When FRA reconvened the Working Group in August 2001 to discuss
comments to the NPRM, members raised several questions about this
paragraph and how the phrase ``operating as intended'' would be
enforced. It became clear in the course of the discussion that there
were a variety of interpretations for the phrase. Therefore, the
railroads would differ in their determinations of which locomotives
could remain in the lead position, cab employees would have a difficult
time determining what constituted a defect to be listed on the daily
inspection report, and FRA inspectors would probably apply different
standards across the industry in enforcing the rule. Given this
confusion, FRA and the Working Group worked to list general factors
that must exist in order for a toilet to ``operate as intended''. This
list has been added to the rule text in this paragraph, and applies to
any compliant toilet system in use in the industry. The conditions are:
All mechanical systems must function as designated; water must be
present in sufficient amounts to permit flushing; for systems that use
chemicals for treatment, such as the Microphor, the chemicals (chlorine
tablets or any comparable oxidizing agent) must be present; and the
bowl must be free of blockage that prevents the waste from evacuating
the bowl. Paragraph (c) of section 139 states that any unit used in
switching service, transfer service, or in the trailing position that
is equipped with a toilet facility must be sanitary if the locomotive
is occupied. This requirement addresses the units that might fall
within the exceptions proposed in Sec. 229.137(b)(1)(ii) and
(b)(1)(iii) because of the operations they are engaged in, but
nonetheless possess a toilet facility on board. If that is the case,
employees may opt not to use the toilet facility, preferring to utilize
other facilities along the right-of-way. However, carriers must not
expose these employees to unsanitary conditions while they are in the
units. Therefore, the toilet facilities may actually be defective while
the unit is occupied, but they cannot be unsanitary.
Paragraph (d) states that where a locomotive is equipped with a
toilet facility that has become defective, and the locomotive is
utilized briefly in switching or transfer service consistent with the
requirements of Secs. 229.137(b)(1)(ii) and (b)(1)(iii), the railroad
must mark the toilet facility as defective. The locomotive with the
defective, but sanitary, toilet facility can be used in switching or
transfer service for a period not to exceed 10 calendar days from the
date on which it became defective, at which time it must be repaired.
However, the facility must remain sanitary in this short period while
the locomotive is occupied. The date on which the toilet facility
became defective must be noted on the daily inspection report, so that
the unit will be repaired within the prescribed time period. The
carriers may need to institute new internal procedures to ensure that
these defects are corrected within the required time frame, because (as
some members of the Working Group have suggested), defects that need
not be repaired on a daily basis, as Sec. 229.21 requires with many
defective conditions, may be forgotten. This final rule amends
Sec. 229.21(a) and (b) to permit the railroads to record repairs
electronically, rather than on the daily inspection report. Several
carriers noted that they currently employ an electronic tracking system
of defects and repairs, and would like to include violations of
Secs. 229.137 and 229.139 in the existing electronic program. FRA
wishes to facilitate this process, and so long as the system is capable
of being audited, FRA does not believe it is necessary to regulate this
internal mechanism with great specificity.
During this 10-day period, the exceptions set forth for switching
and transfer service apply, and so the railroad is required to provide
the affected cab employees access to sanitation facilities that meet
otherwise applicable sanitation standards. (As discussed previously,
these defective units may also be utilized in trailing position where
there is less likelihood that employees will be affected at all.)
Providing that these defective units can remain in service for a
period not to exceed 10 calendar days, at which time they must be
repaired or used in trailing position, is consistent with FRA's and the
Working Group's desire to preserve optimum access to sanitation
facilities where they currently exist. If a locomotive is equipped with
a toilet facility, FRA recognizes that it may become defective and yet
the locomotive can continue to operate without jeopardizing the
employee's health. However, the toilet facility should not be allowed
to remain defective indefinitely. The Working Group and FRA do not
expect the railroads to reassign locomotives from road to yard service
solely for the purpose of circumventing any part of this regulation.
FRA understands that there are overriding incentives for railroads to
keep road units with defective toilets in trailing road service until
the next periodic inspection, rather than reassigning them to yard
service.
The 10-day period was selected as a result of Working Group
discussions, in which the carriers noted that a period of 10 days may
be required to get appropriate parts needed for repair to remote
locations where these defective units may be situated. FRA invited
comment on this time period, and the AAR stated that shortening it
might impede the railroad's ability to correct defective units.
Depending on where a locomotive is situated in relation to a repair
point and the nature of the repair needed, the carriers believe ten
days is an appropriate window of time. There were no other comments on
this issue.
Paragraph (e) requires the railroad to repair a defective modesty
lock prior to the next 92-day inspection that the locomotive is subject
to, pursuant to the requirements of part 229. This was recommended by
all members of the Working Group and balances the privacy concerns that
led to the modesty lock requirement, against the industry's interest in
keeping otherwise fit locomotives in service. FRA believes that this
paragraph reaches a reasonable accommodation of both aims.
In addition to the foregoing issues, the Working Group discussed
blue signal protection for railroad employees involved in servicing the
sanitation compartment, and the substance of those discussions should
be illuminated here. FRA issued regulations that require protections
for employees engaged in the inspection, testing, repair, and servicing
of rolling equipment, where those activities require employees to work
on, under, or between equipment, and where the danger of personal
injury exists. See 49 CFR part 218. These regulations state that
``servicing'' does not include supplying locomotives with sanitary
supplies. See definition of ``worker'' at 49 CFR 218.5. Therefore,
employees engaged in replenishing toilet paper in the sanitation
compartment would not be ``servicing'' the locomotive for purposes of
part 218, and would not
[[Page 16047]]
require blue signal protection. However, other duties that employees
may be engaged in relating to the repair, service, maintenance or
emptying of the locomotive toilet facility likely would fall within the
scope of part 218 and would require the protections set forth there.
This determination may depend on the toilet system in place, and so
each railroad must assess the need for blue signal protection on its
property based on the configuration of the system in place and the
functions employees perform relative to it.
Finally, this rule does not establish lighting requirements for the
sanitation compartment. The existing locomotive safety standards
require that ``Cab passageways and compartments shall have adequate
illumination.'' See, 49 CFR 229.127(b). This existing requirement
effectively addresses the need for lighting in the sanitation
compartment. The compartment must be illuminated so that occupants can
clearly see all appurtenances, fixtures, and items present within the
toilet area.
Appendix
FRA amended appendix B to part 229, Schedule of Civil Penalties, to
include penalties for violations of the provisions as set forth in this
rule. Please note that reading this or any penalty schedule may be
confusing without first reading the corresponding rule text. There is
very limited space in the penalty schedule to describe the action or
omission that constitutes a violation of a particular section or
paragraph. Generally, the penalty schedule is provided to give notice
of the typical penalty that will be assessed for a violation. When
there is not enough space to list the way(s) in which a paragraph has
been violated, summaries of the requirement or forbidden act is
provided. If in doubt, the rule text clearly states what is required,
and the penalty schedule is provided to indicate what penalty is
typically assessed.
Environmental Impact
FRA has evaluated this rule in accordance with its procedures for
ensuring full consideration of the potential environmental impacts of
FRA actions, as required by the National Environmental Policy Act (42
U.S.C. 4321, et seq.) and related directives. The regulation of
sanitation facilities on locomotives gives rise to two potential
environmental concerns. The first relates to handling chemicals used to
treat human waste while in transit or in storage awaiting permanent
disposal. These chemical substances and employee exposure to them are
currently regulated by EPA and OSHA, respectively, in order to prevent
degradation of the environment and harm to employees. Nothing in this
final rule alters those regulations, which protect the environment and
employees from the hazards associated with regulated chemicals.
The second concern relates to the disposal of untreated waste along
the railroad right-of-way, which would give rise to potential
environmental and employee health hazards. As FRA understands it,
nearly all locomotives utilize sanitation systems that either treat or
burn the waste on board and release products that do not introduce
environmental or personal safety hazards; or haul the waste in
treatment containers to a site where it is removed and stored for
approved processing. In any event, regulations promulgated by the FDA
prohibit the release of untreated human waste along the railroad right-
of-way, and nothing in this proposal alters that requirement.
Therefore, FRA has determined that this rule will not have a
deleterious impact on the environment.
Regulatory Impact
Executive Order 12866 and DOT Regulatory Policies and Procedures
This rule has been evaluated in accordance with existing policies
and procedures, and determined to be non-significant under both
Executive Order 12866 and DOT policies and procedures. 44 FR 11034;
February 26, 1979. FRA has prepared and placed in the docket a
regulatory analysis addressing the economic impact of this final rule.
These documents may be reviewed and downloaded from the Department's
electronic docket system or photocopies may be obtained by submitting a
written request to the FRA Docket Clerk at Office of Chief Counsel,
Federal Railroad Administration, 400 Seventh Street, SW., Washington,
DC 20590.
As part of the regulatory impact analysis FRA has assessed
quantitative measurements of costs and a qualitative discussion of the
benefits expected from the adoption of this final rule. Over a twenty
year period, the Present Value (PV) of the estimated costs is $70.1
million.
The major costs anticipated from adopting this final rule include:
the on-going maintenance and servicing of toilet facilities that are
not currently being serviced properly; an increase in the daily
inspection burden to include additional components of the sanitation
compartment; and providing for a separate trash receptacle in the
sanitation compartment and the removal of the trash receptacles in
regular intervals.
The major benefits anticipated from implementing this final rule
include: guaranteed access to sanitary facilities; assurance that
toilet facilities are maintained in a clean and sanitary manner; and
the assurance that cab employees will have potable water to use. In
addition, railroads should incur some savings from having a national
and uniform regulation governing sanitation facilities. In the long-
term the FRA should see a decrease in complaints and correspondence
related to toilet facilities.
Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980 (the Act) (5 U.S.C. 601 et
seq.) requires a review of proposed and final rules to assess their
impact on small entities. FRA has prepared and placed in the docket a
Regulatory Flexibility Assessment (RFA) which assesses the small entity
impact. These documents may be reviewed and downloaded from the
Department's electronic docket system or photocopies may be obtained by
submitting a written request to the FRA Docket Clerk at Office of Chief
Counsel, Federal Railroad Administration, 400 Seventh Street, SW.,
Washington, DC 20590.
The U.S. Small Business Administration (SBA) stipulates in its
``Size Standards'' that the largest a railroad business firm that is
``for-profit'' may be, and still be classified as a ``small entity'' is
1,500 employees for ``Line-Haul Operating Railroads,'' and 500
employees for ``Switching and Terminal Establishments.'' ``Small
entity,'' is defined in the Act as a small business concern that is
independently owned and operated, and is not dominant in its field of
operation. SBA's ``size standards'' may be altered by federal agencies
after consultation with SBA and in conjunction with public comment.
Pursuant to that authority, FRA has published an interim policy which
formally establishes ``small entities'' as being railroads that meet
the line haulage revenue requirements of a Class III railroad.
Currently, the revenue requirements are $20 million or less in annual
operating revenue. The $20 million limit is based on the Surface
Transportation Board's (STB's) threshold of a Class III railroad, which
is adjusted by applying the railroad revenue deflator adjustment. See,
49 CFR part 1201. In its policy statement, FRA applied this same dollar
limit to determine when a railroad shipper or contractor is a small
entity for purposes of the Act and the RFA. FRA proposed to use this
alternative definition of
[[Page 16048]]
``small entity'' for this rulemaking in the NPRM. FRA received no
comments on the definition, and so FRA continues to apply this
definition to the final rule.
In this proceeding, there are over 550 small railroads that could
potentially be affected by these standards. FRA estimates that small
railroads own approximately 3,500 locomotives. In addition, the Agency
estimates that only about one-third of these or less have a toilet
facility on them. FRA does not expect this final rule to impose a
significant burden on small railroads. This is because these railroads
are provided an exemption from the requirement to have a functioning
toilet in any lead occupied locomotive, if the railroad provides
employee access to facilities at frequent intervals.
The impacts from this final rule are primarily a result of some of
the compliance requirements for locomotives that have functioning
toilet facilities. The most significant impacts arise from complying
with the sanitation compartment requirements, including providing a
trash receptacle, marking defective toilet facilities, and conducting
the daily inspection. Most small railroads own locomotives that never
had toilet facilities on them, or previously had them removed. FRA
estimates that only six percent of the Regulatory Impact Analysis'
(RIA) total cost over 20 years would impact small railroads.
The requirement in the final rule that will impact small railroads
the most is providing cab employees ready access to appropriate toilet
facilities. This standard means that small railroads must arrange for
en route access to toilet facilities for cab employees. The RIA has
estimated that there would be a 2-hour burden per affected railroad
during the first year of implementation. In aggregate, this burden is
estimated to cost approximately $22,000. The burden for the following
years is only 30 minutes per railroad per year to modify the toilet
facility arrangements. FRA understands that it is common practice today
for Class III railroads to comply with the general requirements of
providing ready access. Currently, it is customary for a small railroad
to transport a crew member from a locomotive without a toilet to
sanitary facilities upon request. Hence, the concept of providing ready
access to toilet facilities is not a new or significant burden for most
Class III railroads.
The Class III exemption from the requirement to have a toilet
facility in the lead occupied locomotive is provided to ensure that a
feasible lower cost alternative is available for affected small
entities that need it. FRA and the Working Group understood the
difficulties of retrofitting older locomotive units and saw no reason
to unduly burden small railroads so long as access can be provided by
alternative means. The Working Group believed that this alternative is
both necessary and acceptable.
In order to determine the significance of the economic impact for
the final rule's RFA, FRA invited comments from all interested parties
concerning the potential economic impact on small entities caused by
this final rule during the notice of proposed rulemaking stage. The
Agency has considered the lack of comments and data it received in
making a decision on the RFA for the final rule. Thus, FRA concludes
and certifies that this final rule is not expected to have an
``significant'' economic impact on a ``substantial'' number of small
entities.
Federalism
FRA analyzed this rulemaking proceeding according to the principles
of Executive Order 13132 (``Federalism''), which was in effect when the
final rule was prepared. FRA has determined that this final rule may
have federalism implications. FRA's final sanitation standards preempt
all state efforts to regulate the nature and type of access to
sanitation facilities for cab employees. Further, FRA's final
sanitation standards preempt the maintenance of sanitation facilities
located on board trains. As was discussed in the NPRM (See, 66 FR 137),
the Locomotive Inspection Act has been interpreted to occupy the field
of locomotive safety, including the regulation of appurtenances in
locomotives, such as toilets. Nonetheless, some state regulatory bodies
have promulgated and enforce state standards that require toilet
facilities in locomotive cabs. FRA's sanitation standards preempt those
state standards. FRA believes this regulatory action is warranted,
however, based on principles of interstate commerce and the need for
uniformity of national standards. In addition, some State agencies have
expressed the need for federal regulation in this area to provide
uniform treatment and to prevent situations in which employees work
without sanitation facilities where the State is powerless to enforce
its requirements, due to operation of the occupational safety and
health and railroad safety laws.
Consistent with the requirements of Executive Order 13132, FRA has
consulted with State agencies during the course of this rulemaking.
This was achieved primarily through the full RSAC Committee, which
includes representatives of State interests. FRA briefed the RSAC
members on several occasions concerning this standard, published
notices concerning it, and held a public hearing. None of the States or
their representative organizations raised concerns about any aspect of
this standard. FRA made every effort to cover the subject matter
comprehensively so that the federal standard does not provide less
protection than any of the individual state standards, and to prevent
preemption of a state law or rule without replacing it with a
comparable federal standard. The States have supported FRA's rulemaking
proceeding on sanitation facilities for locomotive cab employees.
Paperwork Statement--Locomotive Cab Sanitation Standards
The information collection requirements in this proposed rule have
been submitted for approval to the Office of Management and Budget
(OMB) under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq.
The sections that contain the new information collection requirements
and the estimated time to fulfill each requirement are as follows:
----------------------------------------------------------------------------------------------------------------
Average time
CFR section Respondent Total annual per response Total annual Total annual
universe responses (in seconds) burden hours burden cost
----------------------------------------------------------------------------------------------------------------
229.137(d)--Sanitation--Locom Class I & II 15,600 notices. 90 390 $9,750
otive Defective or railroads.
Unsanitary Toilet Facility
Placed in Trailing Service--
Clear Markings--Unavailable
for Use.
229.137(e)--Sanitation--Locom Class I & II 15,600 notices. 90 390 9,750
otive Defective Toilet railroads.
Facility--Clear Markings--
Unavailable for Use.
[[Page 16049]]
229.139(d)--Servicing--Locomo Class I & II 93,600 30 780 19,500
tive Used in Transfer/ railroads. notations.
Switching Service with
Defective Toilet Facility--
Date Defective.
----------------------------------------------------------------------------------------------------------------
All estimates include the time for reviewing instructions;
searching existing data sources; gathering or maintaining the needed
data; and reviewing the information. Pursuant to 44 U.S.C.
3506(c)(2)(B), the FRA solicits comments concerning: whether these
information collection requirements are necessary for the proper
performance of the function of FRA, including whether the information
has practical utility; the accuracy of FRA's estimates of the burden of
the information collection requirements; the quality, utility, and
clarity of the information to be collected; and whether the burden of
collection of information on those who are to respond, including
through the use of automated collection techniques or other forms of
information technology, may be minimized.
Organizations and individuals desiring to submit comments on the
collection of information requirements should direct them to the Office
of Management and Budget, FRA Desk Officer, Washington, DC 20503. OMB
is required to make a decision concerning the collection of information
requirements contained in this final rule between 30 and 60 days after
publication of this document in the Federal Register. Therefore, a
comment to OMB is best assured of having its full effect if OMB
receives it within 30 days of publication.
FRA hereby provides notice that it cannot impose a penalty on
persons for violating information collection requirements (ICRs) which
do not display a current OMB control number, if required. FRA intends
to obtain current OMB control numbers for any new ICRs resulting from
this rulemaking action prior to the effective date of the agency's
final rule. The OMB control number, when assigned, will be announced by
separate notice in the Federal Register.
List of Subjects in 49 CFR Part 229
Locomotives, Penalties, Railroad safety, Sanitation.
For the reasons set forth in the preamble, 49 CFR part 229 is
amended as follows:
PART 229--RAILROAD LOCOMOTIVE SAFETY STANDARDS
1. The authority citation for part 229 continues to read as
follows:
Authority: 49 U.S.C. 20102-03, 20133, 20137-38, 20143, 20701-03,
21301-02, 21304; 49 CFR 1.49.
2. Section 229.5 is amended by adding in alphabetical order new
definitions of ``Commuter service'', ``Commuter work train'', ``Modesty
lock'', ``Other short-haul passenger service'', ``Potable water'',
``Sanitary'', ``Sanitation compartment'', ``Switching service'',
``Toilet facility'', ``Transfer service'', ``Unsanitary'', and
``Washing system'.
Sec. 229.5 Definitions.
* * * * *
Commuter service means the type of railroad service described under
the heading ``Commuter Operations'' in 49 CFR part 209, Appendix A.
* * * * *
Commuter work train is a non-revenue service train used in the
administration and upkeep service of the commuter railroad.
* * * * *
Modesty lock means a latch that can be operated in the normal
manner only from within the sanitary compartment, that is designed to
prevent entry of another person when the sanitary compartment is in
use. A modesty lock may be designed to allow deliberate forced entry in
the event of an emergency.
* * * * *
Other short-haul passenger service means the type of railroad
service described under the heading ``Other short-haul passenger
service'' in 49 CFR part 209, Appendix A.
Potable water means water that meets the requirements of 40 CFR
part 141, the Environmental Protection Agency's Primary Drinking Water
Regulations, or water that has been approved for drinking and washing
purposes by the pertinent state or local authority having jurisdiction.
For purposes of this section, commercially available, bottled drinking
water is deemed potable water.
* * * * *
Sanitary means lacking any condition in which any significant
amount of filth, trash, or human waste is present in such a manner that
a reasonable person would believe that the condition might constitute a
health hazard; or of strong, persistent, chemical or human waste odors
sufficient to deter use of the facility, or give rise to a reasonable
concern with respect to exposure to hazardous fumes. Such conditions
include, but are not limited to, a toilet bowl filled with human waste,
soiled toilet paper, or other products used in the toilet compartment,
that are present due to a defective toilet facility that will not flush
or otherwise remove the waste; visible human waste residue on the floor
or toilet seat that is present due to a toilet facility that
overflowed; an accumulation of soiled paper towels or soiled toilet
paper on the floor, toilet facility or sink; an accumulation of visible
dirt or human waste on the floor, toilet facility, or sink; and strong,
persistent chemical or human waste odors in the compartment.
Sanitation compartment means an enclosed compartment on a railroad
locomotive that contains a toilet facility for employee use.
* * * * *
Switching service means the classification of railroad freight and
passenger cars according to commodity or destination; assembling cars
for train movements; changing the position of cars for purposes of
loading, unloading, or weighing; placing locomotives and cars for
repair or storage; or moving rail equipment in connection with work
service that does not constitute a train movement.
Toilet facility means a system that automatically or on command of
the user removes human waste to a place where it is treated,
eliminated, or retained such that no solid or non-treated liquid waste
is thereafter permitted to be released into the bowl, urinal, or room
and that prevents harmful discharges of gases or persistent offensive
odors.
Transfer service means a freight train that travels between a point
of origin and a point of final destination not exceeding 20 miles and
that is not performing switching service.
Unsanitary means having any condition in which any significant
amount of filth, trash, or human waste is present in such a manner that
a
[[Page 16050]]
reasonable person would believe that the condition might constitute a
health hazard; or strong, persistent, chemical or human waste odors
sufficient to deter use of the facility or to give rise to a reasonable
concern with respect to exposure to hazardous fumes. Such conditions
include, but are not limited to, a toilet bowl filled with human waste,
soiled toilet paper, or other products used in the toilet compartment,
that are present due to a defective toilet facility that will not flush
or otherwise remove the waste; visible human waste residue on the floor
or toilet seat that is present due to a toilet facility that
overflowed; an accumulation of soiled paper towels or soiled toilet
paper on the floor, toilet facility, or sink; an accumulation of
visible dirt or human waste on the floor, toilet facility, or sink; and
strong persistent chemical or human waste odors in the compartment.
Washing system means a system for use by railroad employees to
maintain personal cleanliness that includes a secured sink or basin,
water, antibacterial soap, and paper towels; or antibacterial waterless
soap and paper towels; or antibacterial moist towelettes and paper
towels; or any other combination of suitable antibacterial cleansing
agents.
3. Section 229.9 is amended by adding paragraph (g) to read as
follows:
Sec. 229.9 Movement of non-complying locomotives.
* * * * *
(g) Paragraphs (a), (b), and (c) of this section shall not apply to
sanitation conditions covered by Secs. 229.137 and 229.139. Sections
229.137 and 229.139 set forth specific requirements for the movement
and repair of locomotives with defective sanitation compartments.
4. Section 229.21 is amended by removing the fourth and fifth
sentences of paragraph (a) and adding in their place three new
sentences and by removing the fourth sentence of paragraph (b) and
adding in its place three new sentences to read as follows:
Sec. 229.21 Daily inspection.
(a) * * * Except as provided in Secs. 229.9, 229.137, and 229.139,
any conditions that constitute non-compliance with any requirement of
this part shall be repaired before the locomotive is used. Except with
respect to conditions that do not comply with Sec. 229.137 or
Sec. 229.139, a notation shall be made on the report indicating the
nature of the repairs that have been made. Repairs made for conditions
that do not comply with Sec. 229.137 or Sec. 229.139 may be noted on
the report, or in electronic form. * * *
(b) * * * Except as provided in Secs. 229.9, 229.137, and 229.139,
any conditions that constitute non-compliance with any requirement of
this part shall be repaired before the locomotive is used. Except with
respect to conditions that do not comply with Sec. 229.137 or
Sec. 229.139, a notation shall be made on the report indicating the
nature of the repairs that have been made. Repairs made for conditions
that do not comply with Sec. 229.137 or Sec. 229.139 may be noted on
the report, or in electronic form. * * *
5. Sections 229.137 and 229.139 are added to subpart C to read as
follows:
Sec. 229.137 Sanitation, general requirements.
(a) Sanitation compartment. Except as provided in paragraph (b) of
this section, all lead locomotives in use shall be equipped with a
sanitation compartment. Each sanitation compartment shall be:
(1) Adequately ventilated;
(2) Equipped with a door that:
(i) Closes, and
(ii) Possesses a modesty lock by [18 months after publication of
the final rule];
(3) Equipped with a toilet facility, as defined in this part;
(4) Equipped with a washing system, as defined in this part, unless
the railroad otherwise provides the washing system to employees upon
reporting for duty or occupying the cab for duty, or where the
locomotive is equipped with a stationary sink that is located outside
of the sanitation compartment;
(5) Equipped with toilet paper in sufficient quantity to meet
employee needs, unless the railroad otherwise provides toilet paper to
employees upon reporting for duty or occupying the cab for duty; and
(6) Equipped with a trash receptacle, unless the railroad otherwise
provides portable trash receptacles to employees upon reporting for
duty or occupying the cab for duty.
(b) Exceptions. (1) Paragraph (a) of this section shall not apply
to:
(i) Locomotives engaged in commuter service or other short-haul
passenger service and commuter work trains on which employees have
ready access to railroad-provided sanitation facilities outside of the
locomotive or elsewhere on the train, that meet otherwise applicable
sanitation standards, at frequent intervals during the course of their
work shift;
(ii) Locomotives engaged in switching service on which employees
have ready access to railroad-provided sanitation facilities outside of
the locomotive, that meet otherwise applicable sanitation standards, at
frequent intervals during the course of their work shift;
(iii) Locomotives engaged in transfer service on which employees
have ready access to railroad-provided sanitation facilities outside of
the locomotive, that meet otherwise applicable sanitation standards, at
frequent intervals during the course of their work shift;
(iv) Locomotives of Class III railroads engaged in operations other
than switching service or transfer service, that are not equipped with
a sanitation compartment as of June 3, 2002. Where an unequipped
locomotive of a Class III railroad is engaged in operations other than
switching or transfer service, employees shall have ready access to
railroad-provided sanitation facilities outside of the locomotive that
meet otherwise applicable sanitation standards, at frequent intervals
during the course of their work shift, or the railroad shall arrange
for enroute access to such facilities;
(v) Locomotives of tourist, scenic, historic, or excursion railroad
operations, which are otherwise covered by this part because they are
not propelled by steam power and operate on the general railroad system
of transportation, but on which employees have ready access to
railroad-provided sanitation facilities outside of the locomotive, that
meet otherwise applicable sanitation standards, at frequent intervals
during the course of their work shift; and
(vi) Except as provided in Sec. 229.14 of this part, control cab
locomotives designed for passenger occupancy and used in intercity
push-pull service that are not equipped with sanitation facilities,
where employees have ready access to railroad-provided sanitation in
other passenger cars on the train at frequent intervals during the
course of their work shift.
(2) Paragraph (a)(3) of this section shall not apply to:
(i) Locomotives of a Class I railroad which, prior to [the
effective date of this section], were equipped with a toilet facility
in which human waste falls via gravity to a holding tank where it is
stored and periodically emptied, which does not conform to the
definition of toilet facility set forth in this section. For these
locomotives, the requirements of this section pertaining to the type of
toilet facilities required shall be effective as these toilets become
defective or are replaced with conforming units, whichever occurs
first. All other requirements set forth in this section shall apply to
these locomotives as of June 3, 2002; and
[[Page 16051]]
(ii) With respect to the locomotives of a Class I railroad which,
prior to June 3, 2002, were equipped with a sanitation system other
than the units addressed by paragraph (b)(2)(i) of this section, that
contains and removes human waste by a method that does not conform with
the definition of toilet facility as set forth in this section, the
requirements of this section pertaining to the type of toilet
facilities shall apply on locomotives in use on July 1, 2003. However,
the Class I railroad subject to this exception shall not deliver
locomotives with such sanitation systems to other railroads for use, in
the lead position, during the time between June 3, 2002, and July 1,
2003. All other requirements set forth in this section shall apply to
the locomotives of this Class I railroad as of June 3, 2002.
(c) Defective, unsanitary toilet facility; prohibition in lead
position. Except as provided in paragraphs (c)(1) through (5) of this
section, if the railroad determines during the daily inspection
required by Sec. 229.21 that a locomotive toilet facility is defective
or is unsanitary, or both, the railroad shall not use the locomotive in
the lead position. The railroad may continue to use a lead locomotive
with a toilet facility that is defective or unsanitary as of the daily
inspection only where all of the following conditions are met:
(1) The unsanitary or defective condition is discovered at a
location where there are no other suitable locomotives available for
use, ie., where it is not possible to switch another locomotive into
the lead position, or the location is not equipped to clean the
sanitation compartment if unsanitary or repair the toilet facility if
defective;
(2) The locomotive, while noncompliant, did not pass through a
location where it could have been cleaned if unsanitary, repaired if
defective, or switched with another compliant locomotive, since its
last daily inspection required by this part;
(3) Upon reasonable request of a locomotive crewmember operating a
locomotive with a defective or unsanitary toilet facility, the railroad
arranges for access to a toilet facility outside the locomotive that
meets otherwise applicable sanitation standards;
(4) If the sanitation compartment is unsanitary, the sanitation
compartment door shall be closed and adequate ventilation shall be
provided in the cab so that it is habitable; and
(5) The locomotive shall not continue in service in the lead
position beyond a location where the defective or unsanitary condition
can be corrected or replaced with another compliant locomotive, or the
next daily inspection required by this part, whichever occurs first.
(d) Defective, unsanitary toilet facility; use in trailing
position. If the railroad determines during the daily inspection
required by Sec. 229.21 that a locomotive toilet facility is defective
or is unsanitary, or both, the railroad may use the locomotive in
trailing position. If the railroad places the locomotive in trailing
position, they shall not haul employees in the unit unless the
sanitation compartment is made sanitary prior to occupancy. If the
toilet facility is defective and the unit becomes occupied, the
railroad shall clearly mark the defective toilet facility as
unavailable for use.
(e) Defective, sanitary toilet facility; use in switching, transfer
service. If the railroad determines during the daily inspection
required by Sec. 229.21 that a locomotive toilet facility is defective,
but sanitary, the railroad may use the locomotive in switching service,
as set forth in paragraph (b)(1)(ii) of this section, or in transfer
service, as set forth in paragraph (b)(1)(iii) of this section for a
period not to exceed 10 days. In this instance, the railroad shall
clearly mark the defective toilet facility as unavailable for use.
After expiration of the 10-day period, the locomotive shall be repaired
or used in the trailing position.
(f) Lack of toilet paper, washing system, trash receptacle. If the
railroad determines during the daily inspection required by Sec. 229.21
that the lead locomotive is not equipped with toilet paper in
sufficient quantity to meet employee needs, or a washing system as
required by paragraph (a)(4) of this section, or a trash receptacle as
required by paragraph (a)(6) of this section, the locomotive shall be
equipped with these items prior to departure.
(g) Inadequate ventilation. If the railroad determines during the
daily inspection required by Sec. 229.21 that the sanitation
compartment of the lead locomotive in use is not adequately ventilated
as required by paragraph (a)(1) of this section, the railroad shall
repair the ventilation prior to departure, or place the locomotive in
trailing position, in switching service as set forth in paragraph
(b)(1)(ii) of this section, or in transfer service as set forth in
paragraph (b)(1)(iii) of this section.
(h) Door closure and modesty lock. If the railroad determines
during the daily inspection required by Sec. 229.21 that the sanitation
compartment on the lead locomotive is not equipped with a door that
closes, as required by paragraph (a)(2)(i) of this section, the
railroad shall repair the door prior to departure, or place the
locomotive in trailing position, in switching service as set forth in
paragraph (b)(1)(ii) of this section, or in transfer service as set
forth in paragraph (b)(1)(iii) of this section. If the railroad
determines during the daily inspection required by Sec. 229.21 that the
modesty lock required by paragraph (a)(2)(ii) of this section is
defective, the modesty lock shall be repaired pursuant to the
requirements of Sec. 229.139(e).
(i) Equipped units; retention and maintenance. Except where a
railroad downgrades a locomotive to service in which it will never be
occupied, where a locomotive is equipped with a toilet facility as of
[the effective date of the final rule], the railroad shall retain and
maintain the toilet facility in the locomotive consistent with the
requirements of this part, including locomotives used in switching
service pursuant to paragraph (b)(1)(ii) of this section, and in
transfer service pursuant to paragraph (b)(1)(iii) of this section.
(j) Newly manufactured units; in-cab facilities. All locomotives
manufactured after June 3, 2002, except switching units built
exclusively for switching service and locomotives built exclusively for
commuter service, shall be equipped with a sanitation compartment
accessible to cab employees without exiting to the out-of-doors for
use. No railroad may use a locomotive built after June 3, 2002, that
does not comply with this subsection.
(k) Potable water. The railroad shall utilize potable water where
the washing system includes the use of water.
Sec. 229.139 Sanitation, servicing requirements.
(a) The sanitation compartment of each lead locomotive in use shall
be sanitary.
(b) All components required by Sec. 229.137(a) for the lead
locomotive in use shall be present consistent with the requirements of
this part, and shall operate as intended such that:
(1) All mechanical systems shall function;
(2) Water shall be present in sufficient quantity to permit
flushing;
(3) For those systems that utilize chemicals for treatment, the
chemical (chlorine or other comparable oxidizing agent) used to treat
waste must be present; and
(4) No blockage is present that prevents waste from evacuating the
bowl.
(c) The sanitation compartment of each occupied locomotive used in
switching service pursuant to Sec. 229.137(b)(1)(ii), in transfer
service pursuant to Sec. 229.137(b)(1)(iii), or in a
[[Page 16052]]
trailing position when the locomotive is occupied, shall be sanitary.
(d) Where the railroad uses a locomotive pursuant to
Sec. 229.137(e) in switching or transfer service with a defective
toilet facility, such use shall not exceed 10 calendar days from the
date on which the defective toilet facility became defective. The date
on which the toilet facility becomes defective shall be entered on the
daily inspection report.
(e) Where it is determined that the modesty lock required by
Sec. 229.137(a)(2) is defective, the railroad shall repair the modesty
lock on or before the next 92-day inspection required by this part.
6. Appendix B of part 229 is amended by adding entries for
Secs. 229.137 and 229.139 to the Schedule of Civil Penalties to read as
follows:
Appendix B to Part 229.--Schedule of Civil Penalties
------------------------------------------------------------------------
Willful
Section Violation violation
-----------------------------------------------------------------\1\----
* * * *
* * *
------------------------------------------------------------------------
Subpart C--Safety Requirements
------------------------------------------------------------------------
* * * *
* * *
229.137 Sanitation, general:
(a) Sanitation compartment in lead unit, $5,000 $10,000
complete failure to provide required
items...................................
(1) Ventilation...................... 2,500 5,000
(2) Door missing..................... 2,000 4,000
(2)(i) Door doesn't close............ 1,000 2,000
(2)(ii) No modesty lock.............. 1,000 2,000
(3) Not equipped with toilet in lead. 5,000 10,000
(4) Not equipped with washing system. 1,000 2,000
(5) Lack of paper.................... 1,000 2,000
(6) Lack of trash receptacle......... 1,000 2,000
(b) Exceptions:
(1)(i) Commuter service, failure to 2,500 5,000
meet conditions of exception........
(1)(ii) Switching service, failure to 2,500 5,000
meet conditions of exception........
(1)(iii) Transfer service, failure to 2,500 5,000
meet conditions of exception........
(1)(iv) Class III, failure to meet 2,500 5,000
conditions of exception.............
(1)(v) Tourist, failure to meet 2,500 5,000
conditions of exception.............
(1)(vi) Control cab locomotive, 2,500 5,000
failure to meet conditions of
exception...........................
(2) Noncompliant toilet.............. 5,000 10,000
(c) Defective/unsanitary toilet in lead 2,500 5,000
unit....................................
(1-5) Failure to meet conditions of 2,500 5,000
exception...........................
(d) Defective/unsanitary unit; failure to 2,500 5,000
meet conditions for trailing position...
(e) Defective/sanitary unit; failure to 2,500 5,000
meet conditions for switching/transfer
service.................................
(f) Paper, washing, trash holder; failure 2,500 5,000
to equip prior to departure.............
(g) Inadequate ventilation; failure to 2,500 5,000
repair or move prior to departure.......
(h) Door closure/modesty lock; failure to 1,000 2,000
repair or move..........................
(i) Failure to retain/maintain of 2,500 5,000
equipped units..........................
(j) Failure to equip new units/in-cab 2,500 5,000
facility................................
(k) Failure to provide potable water..... 2,500 5,000
229.139 Servicing requirements:
(a) Lead occupied unit not sanitary...... 2,500 5,000
(b) Components not present/operating..... 2,500 5,000
(c) Occupied unit in switching, transfer 2,500 5,000
service, in trailing position not
sanitary................................
(d) Defective unit used more than 10 days 2,500 5,000
(e) Failure to repair defective modesty 1,000 2,000
lock....................................
------------------------------------------------------------------------
* * * * *
Issued in Washington, DC, on March 22, 2002.
Allan Rutter,
Administrator.
[FR Doc. 02-8077 Filed 4-3-02; 8:45 am]
BILLING CODE 4910-06-P