64 Federal Register / Vol. 76, No. 1 / Monday, January 3, 2011 / Proposed Rules 

2.17(b)(3) through various means, 

including webinars and the Web site 

distribution of Frequently Asked 

Questions as appropriate, rather than 

through the issuance of a Federal 

Register notice. 

OFCCP invites any interested party to 

comment on the proposal to rescind the 

Standards and the Voluntary 

Guidelines. 

Patricia A. Shiu, 

Director, Office of Federal Contract 

Compliance Programs. 

[FR Doc. 2010–32602 Filed 12–30–10; 8:45 am] 

BILLING CODE 4510–45–P 

DEPARTMENT OF TRANSPORTATION 

Federal Railroad Administration 

49 CFR Part 228 

[Docket No. FRA–2009–0042] 

RIN 2130–AC13 

Safety and Health Requirements 

Related to Camp Cars 

AGENCY: Federal Railroad 

Administration (FRA), Department of 

Transportation (DOT). 

ACTION: Notice of proposed rulemaking 

(NPRM). 

SUMMARY: To carry out a 2008 

Congressional rulemaking mandate, 

FRA is proposing to create regulations 

prescribing minimum safety and health 

requirements for camp cars that a 

railroad provides as sleeping quarters to 

any of its train employees, signal 

employees, and dispatching service 

employees and individuals employed to 

maintain its right of way. The proposed 

regulations would supplant existing 

guidelines that interpret existing 

statutory requirements, enacted decades 

earlier, that railroad-provided camp cars 

be clean, safe, and sanitary, and afford 

those employees and individuals an 

opportunity for rest free from the 

interruptions caused by noise under the 

control of the railroad. In further 

response to the rulemaking mandate, the 

proposed regulations would include the 

additional statutory requirements, 

enacted in 2008, that camp cars be 

provided with indoor toilets, potable 

water, and other features to protect the 

health of such workers. 

Under separate but related statutory 

authority, FRA is proposing to amend 

regulations on construction of employee 

sleeping quarters. In particular, FRA 

proposes to implement a 2008 statutory 

amendment that, on and after December 

31, 2009, camp cars provided by a 

railroad as sleeping quarters exclusively 

for individuals employed to maintain 

the right of way of a railroad are within 

the scope of the prohibition against 

beginning construction or 

reconstruction of employee sleeping 

quarters near railroad switching or 

humping of hazardous material. FRA’s 

existing guidelines with respect to the 

location, in relation to switching or 

humping of hazardous material, of a 

camp car that is occupied exclusively by 

individuals employed to maintain a 

railroad’s right of way would be 

replaced with regulatory amendments 

prohibiting a railroad from positioning 

such a camp car in the immediate 

vicinity of the switching or humping of 

hazardous material. 

Finally, FRA would make conforming 

changes, clarify a provision on 

applicability, remove an existing 

provision on preemptive effect as 

unnecessary, and move, without change, 

an existing provision on penalties for 

violation of FRA regulations. 

DATES: (1) Written comments must be 

received by March 4, 2011. Comments 

received after that date will be 

considered to the extent possible 

without incurring additional delay or 

expense. 

(2) FRA anticipates being able to 

resolve this rulemaking without a public 

hearing. However, if FRA receives a 

specific request for a public hearing 

prior to March 4, 2011, one will be 

scheduled, and FRA will publish a 

supplemental notice in the Federal 

Register to inform interested parties of 

the date, time, and location of any such 

hearing. 

ADDRESSES: Comments, which should 

be identified by Docket No. FRA–2009– 

0042, may be submitted by any one of 

the following methods: 

• Fax: 1–202–493–2251; 

• Mail: U.S. Department of 

Transportation, Docket Operations, M– 

30, West Building Ground Floor, Room 

W12–140, 1200 New Jersey Avenue, SE., 

Washington, DC 20590; 

• Hand Delivery: U.S. Department of 

Transportation, Docket Operations, 

West Building Ground Floor, Room 

W12–140, 1200 New Jersey Avenue, SE., 

Washington, DC 20590, between 9 a.m. 

and 5 p.m., Monday through Friday, 

except Federal holidays; or 

• Electronically through the Federal 

eRulemaking Portal, http:// 

www.regulations.gov. Follow the online 

instructions for submitting comments. 

Instructions: All submissions must 

include the agency name, docket name, 

and docket number or Regulatory 

Identification Number (RIN) for this 

rulemaking. Note that all comments 

received will be posted without change 

to http://www.regulations.gov, including 

any personal information provided. 

Please see the Privacy Act section of this 

document. 

Docket: For access to the docket to 

read background documents or 

comments received, go to http:// 

www.regulations.gov at any time or to 

the U.S. Department of Transportation, 

Docket Operations, M–30, West 

Building Ground Floor, Room W12–140, 

1200 New Jersey Avenue, SE., 

Washington, DC, between 9 a.m. and 5 

p.m., Monday through Friday, except 

Federal holidays. 

FOR FURTHER INFORMATION CONTACT: 

Alan Misiaszek, Certified Industrial 

Hygienist, Staff Director, Industrial 

Hygiene Division, Office of Safety 

Assurance and Compliance, Office of 

Railroad Safety, FRA, 1200 New Jersey 

Avenue, SE., Mail Stop 25, Washington, 

DC 20590 (telephone: (202) 493–6002), 

alan.misiaszek@dot.gov or Ann M. 

Landis, Trial Attorney, Office of Chief 

Counsel, FRA, 1200 New Jersey Avenue, 

SE., Mail Stop 10, Washington, DC 

20590 (telephone: (202) 493–6064), 

ann.landis@dot.gov. 

SUPPLEMENTARY INFORMATION: 

I. Statutory, Regulatory, and Factual 

Background 

This proposal is being issued 

primarily to help satisfy the 

requirements of section 420 of the Rail 

Safety Improvement Act of 2008 (RSIA), 

Public Law 110–432, Div. A, 122 Stat. 

4848, October 16, 2008 (amending a 

provision of the hours of service laws at 

49 U.S.C. 21106). RSIA requires the 

Secretary of Transportation (Secretary) 

to adopt regulations no later than April 

1, 2010 establishing minimum standards 

for ‘‘employee sleeping quarters’’ in the 

form of ‘‘camp cars’’ that are provided by 

railroads. 49 U.S.C. 21106(a)(1), (c). 

Specifically, RSIA instructs the 

Secretary to prescribe regulations ‘‘to 

implement [49 U.S.C. 21106(a)(1)] to 

protect the safety and health of any 

employees and individuals employed to 

maintain the right of way of a railroad 

carrier that use camp cars. * * * ’’ 49 

U.S.C. 21106(c). The statutory term 

‘‘employee’’ is defined in 49 U.S.C. 

21101(3) to include a train employee, a 

signal employee, and a dispatching 

service employee, who as a group are 

sometimes referred to as ‘‘covered 

service employees.’’ As amended 

through 2008, 49 U.S.C. 21106(a)(1) 

provides that such camp cars must be— 

clean, safe, and sanitary, give those 

employees and individuals an opportunity 

for rest free from the interruptions caused by 


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Federal Register / Vol. 76, No. 1 / Monday, January 3, 2011 / Proposed Rules 65 

1 In the 1994 recodification of Federal 

transportation laws, the Hours of Service Act was 

simultaneously repealed, reenacted as revised, and 

recodified as positive law primarily in 49 U.S.C. 

chapter 211. Public Law 103–272, July 5, 1994. 

noise under the control of the carrier, and 

provide indoor toilet facilities, potable water, 

and other features to protect the health of 

employees. 

49 U.S.C. 21106(a)(1). RSIA requires the 

Secretary to conduct this rulemaking ‘‘in 

coordination with the Secretary of 

Labor,’’ and to ‘‘assess the action taken 

by any railroad carrier to fully retrofit or 

replace its camp cars. * * * ’’ 49 U.S.C. 

21106(c). 

FRA has longstanding regulations 

implementing the statutory provision 

that prohibits railroads, effective July 8, 

1976, from beginning the construction 

or reconstruction of railroad-provided 

sleeping quarters for train employees, 

signal employees, and dispatching 

service employees in an area or in the 

immediate vicinity of an area where 

railroad switching or humping of 

hazardous material occurs. Currently, 

these regulations affecting the location 

of sleeping quarters for covered service 

employees do not apply to sleeping 

quarters exclusively for individuals 

employed to maintain the right of way 

of a railroad. 

RSIA directly requires that railroads 

using camp cars must ‘‘fully retrofit or 

replace such cars in compliance with 

[49 U.S.C. 20106(a)]’’ by December 31, 

2009. 49 U.S.C. 21106(b). As will be 

further explained below, FRA interprets 

49 U.S.C. 21106(b) as applying the 

prohibition in 49 U.S.C. 21106(a)(2) 

against beginning construction or 

reconstruction of employee sleeping 

quarters near switching or humping 

operations to camp cars provided by 

railroads as sleeping quarters for 

individuals employed to maintain the 

railroad right of way (MOW workers) 

and setting a compliance date of 

December 31, 2009, with respect to such 

camp cars exclusively for MOW 

workers. 

The Secretary has delegated the 

responsibility to carry out his 

responsibilities under RSIA to the 

Administrator of FRA. 74 FR 26981, 

26982, June 5, 2009, codified at 49 CFR 

1.49(oo). See also 49 CFR 1.49(d), 

delegating the Secretary’s authority to 

carry out the hours of service laws to the 

Administrator of FRA, and 49 U.S.C. 

103. 

Proposed subpart E is based 

extensively on FRA guidelines already 

in place, which, in turn, were based on 

the U.S. Department of Labor’s 

Occupational Safety and Health 

Administration (‘‘OSHA’’) standards for 

sanitation and temporary labor camps at 

29 CFR 1910.141 and 1910.142, 

modified as appropriate for the railroad 

environment. See FRA’s Guidelines for 

Clean, Safe, and Sanitary Railroad 

Provided Camp Cars (1990 Guidelines), 

55 FR 30892, July 27, 1990, codified at 

49 CFR part 228, app. C. 

In addition, FRA has consulted with 

officials of the only railroad currently 

known to be utilizing camp cars as 

sleeping quarters, Norfolk Southern 

Railway Company (NS), to determine 

what actions it has taken to conform to 

the statutory requirements that the cars 

be not only clean, safe, and sanitary and 

provide an opportunity for rest 

uninterrupted by noise under the 

control of the railroad, but also have 

‘‘indoor toilet facilities, potable water, 

and other features to protect the health’’ 

of employees and MOW workers and 

not be placed in the immediate vicinity 

of certain ‘‘switching or humping 

operations’’ as defined in FRA 

regulations at 49 CFR 228.101(c)(3). NS 

has assured FRA that all of its camp cars 

comply with statutory requirements, but 

its interpretation asserts that camp cars 

exclusively occupied by MOW workers 

are not subject to 49 U.S.C. 21106(a)(2). 

MOW workers have been given 

protection by limits of how close their 

sleeping quarters are to switching and 

hump operations. That protection 

formerly only applied to train 

employees, signal employees, and 

dispatching employees. In 1976, 

Congress required that all sleeping 

quarters, ‘‘including crew quarters, camp 

or bunk cars, and trailers,’’ provided by 

a railroad to its ‘‘employees’’ be ‘‘clean, 

safe, and sanitary’’ and provide an 

opportunity for rest without 

interruptions caused by noise under the 

control of the railroad. Public Law 94– 

348, sec. 4, adding subsection (a)(3) to 

section 2 of the Hours of Service Act, 

then codified at 45 U.S.C. 62(a)(3) 

(1976) and now codified as amended at 

49 U.S.C. 21106(a)(1).1 Again, the term 

‘‘employees’’ included only those who, 

in the terminology of the present statute, 

are called ‘‘train employees,’’ ‘‘signal 

employees,’’ or ‘‘dispatching service 

employees,’’ and did not include MOW 

workers. In the same legislation, 

Congress prohibited railroads from 

beginning, on or after July 8, 1976, the 

construction or reconstruction of 

sleeping quarters for ‘‘employees’’ 

‘‘within or in the immediate vicinity (as 

determined in accordance with rules 

prescribed by the Secretary) of any area 

where railroad switching or humping 

operations are performed.’’ Public Law 

94–348, sec. 4, adding subsection (a)(4) 

to section 2 of the Hours of Service Act, 

then codified at 45 U.S.C. 62(a)(4) 

(1976) and now codified as amended at 

49 U.S.C. 21106(a)(2). 

To carry out the 1976 statutory 

amendment at section 2(a)(3) of the 

Hours of Service Act, on July 18, 1978, 

FRA published interpretative guidance 

and a statement of policy regarding the 

provision requiring ‘‘clean, safe, and 

sanitary’’ sleeping quarters for 

employees free from railroad-controlled 

noise that would interrupt rest. 

Amendment to appendix A to 49 CFR 

part 228, 43 FR 30803, July 18, 1978. 

To carry out the 1976 amendment at 

section 2(a)(4) of the Hours of Service 

Act, on July 19, 1978, FRA published 

regulations codified at 49 CFR part 228, 

subpart C (subpart C). 43 FR 31012. As 

stated in the preamble to those 

regulations, 

[t]he primary impetus of this amendment 

to the Hours of Service Act was the accident 

that occurred at Decatur, Illinois, on July 19, 

1974. (H.R. Report No. 94–1166 (1976) at 

page 11.) Seven employees were killed and 

another 33 were injured when an explosion 

demolished crew quarters that were located 

between and adjacent to two classification 

yards and did other extensive damage in the 

middle of the Norfolk and Western yard. 

Three hundred sixteen persons who lived or 

worked in the surrounding area were also 

injured. The explosion resulted from 

accidental release of product which occurred 

during the switching of hazardous materials. 

* * * 

In enacting the 1976 amendment to the 

law, Congress determined that additional 

protection from accidents such as the one 

that occurred at Decatur, Illinois, is required 

for crew quarters. 

43 FR 31009. 

Subpart C defines key terms in section 

2(a)(4) of the Hours of Service Act, 

permits railroads to request a 

determination by FRA that a particular 

proposed site is not within the 

‘‘immediate vicinity,’’ and states the 

criteria by which FRA will make the 

determination. See 49 CFR 228.101(a). 

FRA approval is necessary before a 

railroad may begin the ‘‘construction or 

reconstruction’’ of sleeping quarters for 

employees within the distance of 

switching or humping operations 

specified in the regulations. 49 CFR 

228.101. The distance triggering the 

need for approval is one-half mile ‘‘as 

measured from the nearest rail of the 

nearest trackage where switching or 

humping operations are performed to 

the point on the site where the carrier 

proposes to construct or reconstruct the 

exterior wall of the structure, or portion 

of such wall, which is closest to such 

operations.’’ 49 CFR 228.101(b). 

‘‘Switching or humping operations’’ is 

defined to include ‘‘the classification of 

placarded railroad cars according to 

commodity or destination, assembling 


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66 Federal Register / Vol. 76, No. 1 / Monday, January 3, 2011 / Proposed Rules 

of placarded cars for train movements, 

* * * .’’ 49 CFR 228.101(c)(3). 

‘‘Placarded car’’ is defined to mean ‘‘a 

railroad car required to be placarded by 

the Department of Transportation 

hazardous materials regulations (49 CFR 

172.504).’’ 49 CFR 228.101(c)(4). 

‘‘Construction’’ includes the 

‘‘[p]lacement of a mobile or modular 

facility,’’ which includes placement of a 

camp car. 49 CFR 228.101(c)(1)(iii). On 

or after July 8, 1976, any railroad 

placing a camp car occupied by an 

employee near switching or humping 

operations must obtain FRA approval 

before doing so. 49 CFR 228.101(a). 

In 1988, Congress redefined 

‘‘employee’’ for purpose of section 

2(a)(3) of the Hours of Service Act (now 

codified at 49 U.S.C. 21106(a)(1)) so as 

to include MOW workers, thereby 

making all sleeping quarters provided 

by a railroad to MOW workers subject 

to the same statutory standard. Public 

Law 100–342, sec. 19(b). It should be 

noted, however, that the 1988 

amendment did not make MOW 

workers ‘‘employees’’ for purposes of the 

‘‘location’’ requirement at section 2(a)(4) 

of the Hours of Service Act. 

Consequently, a camp car occupied only 

by employees or by both employees and 

MOW workers is subject to subpart C, 

but a camp car occupied only by MOW 

workers is not subject to subpart C. 

To carry out the 1988 statutory 

amendment, FRA issued an 

interpretation in 1990 of the terms 

‘‘clean,’’ ‘‘safe,’’ and ‘‘sanitary’’ as applied 

to railroad-provided camp cars occupied 

by employees, MOW workers, or both 

based on standards established by 

OSHA. 49 CFR part 228, app. C. In 

FRA’s 1990 Guidelines, the agency 

noted that— 

FRA believes that camp cars, either 

because of express limitations of local codes, 

or by virtue of their physical mobility, are 

generally not subject to state or local housing, 

sanitation, health, electrical or fire codes. 

Therefore, FRA is unable to rely upon state 

or local authorities to ensure that persons 

covered by the [Hours of Service] Act who 

reside in camp cars are afforded an 

opportunity for rest in ‘clean,’ ‘safe,’ and 

‘sanitary’ conditions. Accordingly, FRA must 

determine what adverse conditions might 

reasonably be expected to interfere with the 

ordinary person’s ability to rest, so as to 

enunciate policy guidelines to be applied by 

FRA in enforcing the words ‘clean,’ ‘safe,’ 

and ‘sanitary’ for purposes of the Act. 

55 FR 30892, 30893, July 27, 1990. 

Twenty years after the 1988 statutory 

amendment, Congress enacted section 

420 of RSIA. Congress added 

requirements that all sleeping quarters 

provided by railroads to employees or 

MOW workers have ‘‘indoor toilets, 

potable water, and other features to 

protect the health of [employees and 

MOW workers] (amending 49 U.S.C. 

21106(a)(1));’’ that any railroad that uses 

camp cars must ‘‘fully retrofit or 

replace’’ such cars to be in compliance 

with 49 U.S.C. 21106(a) by December 

31, 2009 (see new 49 U.S.C. 21106(b)); 

and that the Secretary prescribe 

regulations to implement 49 U.S.C. 

21106(a)(1), requiring compliance by 

December 31, 2010 (see new 49 U.S.C. 

21106(c)). 

FRA has considered whether Congress 

intended for railroad-provided camp 

cars occupied by MOW workers to be 

subject to the restrictions of 49 U.S.C. 

21106(a)(2) on their location. Clearly, by 

the express text of 49 U.S.C. 21106(c), 

the regulations mandated by that 

subsection are intended ‘‘to implement 

subsection (a)(1)’’ (i.e., 49 U.S.C. 

21106(a)(1)), and not to implement both 

49 U.S.C. 21106(a)(1) and 49 U.S.C. 

21106(a)(2). Just as clearly, Congress did 

not amend 49 U.S.C. 21106(a)(2) itself, 

which bars beginning such construction 

or reconstruction of sleeping quarters 

for covered service employees on or 

after July 8, 1976; Congress did not, for 

example, add language to subsection 

(a)(2) to prohibit beginning construction 

or reconstruction of railroad-provided 

camp cars used as sleeping quarters for 

MOW workers, with a new effective 

date in subsection (a)(2) itself. 

In the end, however, FRA concludes 

that Congress did intend such location 

restrictions in subsection (a)(2) to apply 

to camp cars exclusively occupied by 

MOW workers, based primarily on the 

language of subsection (b), which reads 

as follows: 

(b) Camp cars.—Not later than December 

31, 2009, any railroad carrier that uses camp 

cars shall fully retrofit or replace such cars 

in compliance with subsection (a). 

(Emphasis added). 49 U.S.C. 21106(b). 

Congress could have written that the 

camp cars must be in compliance with 

‘‘subsection (a)(1),’’ but it did not; 

instead Congress required compliance 

with subsection (a) as a whole, a twoparagraph provision that includes the 

prohibition on placing camp cars (and 

other forms of sleeping quarters) near 

certain switching or humping 

operations. It is a basic canon of 

statutory construction that all words of 

a statute should be given effect. 

To give subsection (b) meaning, with 

respect to requiring camp cars to be in 

compliance with the old mandate of 

subsection (a)(2), some act must be 

required that is possible to perform in 

the future, specifically not later than the 

December 31, 2009, date stated in 

subsection (b). FRA reads that extra 

requirement imposed by subsection (b) 

to be that camp cars exclusively 

occupied by MOW workers be subject to 

subsection (a)(2). With respect to 

subsection (a)(2), which contains a 

compliance date about 32 years before 

the enactment of subsection (a)(2), a 

new compliance date would be 

necessary in order to avoid creating an 

unconstitutional, ex post facto law, and 

that is what Congress provided with the 

new statutory deadline for compliance 

of December 31, 2009. FRA does not 

read subsection (b) as supplanting the 

July 8, 1976, effective date of the 

prohibition in subsection (a)(2) with 

respect to construction or reconstruction 

of sleeping quarters occupied by train 

employees, signal employees, or 

dispatching service employees. Rather, 

FRA reads the text of section 21106(b) 

as a direct, statutory requirement that 

railroads using camp cars as sleeping 

quarters see to it that the cars 

exclusively occupied by MOW workers 

comply with the statutory requirements 

of not only subsection (a)(1), but also 

subsection (a)(2), and to do so by 

December 31, 2009. 

Of course, it could be argued that 

Congress simply made a technical error 

in requiring that camp cars comply with 

all of subsection (a) and that it meant to 

say ‘‘subsection (a)(1),’’ particularly 

given that the requirement is to ‘‘retrofit 

or replace’’ the cars, not to ‘‘retrofit or 

replace and position’’ the cars. FRA 

thinks that the legislative history of 

section 420 of RSIA argues against such 

a strict interpretation. That legislative 

history indicates that that Congress 

invited FRA to take a new, more 

protective look at camp cars. The House 

precursor to section 420 of RSIA would 

have directly prohibited the use of camp 

cars entirely by statute, effective one 

year after the date of enactment. See 

section 202 of H.R. 2095 as reported by 

the House Committee on Transportation 

and Infrastructure in H.R. Rep. No. 110– 

336 and analysis at p. 39. The Senate 

precursor to section 420 of RSIA would 

have authorized FRA to prohibit 

railroads’ use of camp cars as sleeping 

quarters (i.e., by regulation or order) ‘‘if 

necessary to protect the health and 

safety of the employees.’’ See section 

410 of S. 1889 as reported by the Senate 

Committee on Commerce, Science, and 

Transportation in S. Rep. No. 110–270. 

Based on the plain meaning of 49 U.S.C. 

21106 and the legislative history of 

section 420 of RSIA, FRA believes its 

interpretation applying the location 

requirement of subsection (a)(2) to camp 

cars occupied exclusively by MOW 

workers is both correct and appropriate. 

To carry out this statutory 

interpretation, FRA is proposing an 


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Federal Register / Vol. 76, No. 1 / Monday, January 3, 2011 / Proposed Rules 67 

amendment to subpart C. The statutory 

authority to conduct this aspect of the 

rulemaking is FRA’s authority under 49 

U.S.C. 21106(a)(2) to prescribe 

regulations to implement that statutory 

provision, which reads (as revised 

during the 1994 recodification of the rail 

safety laws effected by Pub. L. 103–272) 

as follows: 

A railroad carrier * * * (2) may not begin, 

after July 7, 1976, construction or 

reconstruction of sleeping quarters * * * in 

an area or in the immediate vicinity of an 

area, as determined under regulations 

prescribed by the Secretary of 

Transportation, in which railroad switching 

or humping operations are performed. 

[Emphasis added.] This is the authority 

under which FRA originally prescribed 

subpart C. 41 FR 53070, Dec. 3, 1976. 

II. Section-by-Section Analysis 

Part 228 

FRA proposes to revise the name of 49 

CFR part 228 to reflect all of its contents 

more explicitly. The current name of the 

part is ‘‘HOURS OF SERVICE OF 

RAILROAD EMPLOYEES’’. FRA 

proposes to rename the part ‘‘HOURS 

OF SERVICE OF RAILROAD 

EMPLOYEES; RECORDKEEPING AND 

REPORTING; SLEEPING QUARTERS’’. 

Subpart A of Part 228 

FRA proposes to tailor § 228.1, Scope, 

to reflect the addition of new subpart E, 

Safety and Health Requirements for 

Camp Cars Provided by Railroads as 

Sleeping Quarters such as by adding 

new paragraph (c). 

FRA also proposes to amend § 228.3, 

Application. Currently, that section, 

says that, in general, part 228 applies to 

railroads and contractors and 

subcontractors of railroads. FRA 

proposes to revise the section to 

indicate that although subparts B and D 

apply to railroads and contractors and 

subcontractors of railroads, subparts C 

and E apply only to railroads. Subpart 

A contains no duties that apply to any 

entity; its definitions apply to terms in 

the part as a whole or individual 

subparts. This section is being amended 

to clarify that both plant railroads and 

tourist railroads that are not part of the 

general railroad system of transportation 

are exempt from the requirements of 

part 228. 

Finally, FRA proposes to amend 

§ 228.5, Definitions, by adding 

definitions of four terms. The terms 

‘‘plant railroad’’ and ‘‘tourist, scenic, 

historic, or excursion operations that are 

not part of the general railroad system 

of transportation’’ are used in the 

proposed ‘‘application’’ provisions of 

subpart A and proposed subpart E, and 

both terms refer to types of operations 

that have been traditionally been 

excluded from FRA regulations because 

they are not part of the general railroad 

system of transportation. There is a 

more extensive explanation of this 

system in appendix A to 49 CFR part 

209, and it is explicitly defined there as 

‘‘the network of standard gage track over 

which goods may be transported 

throughout the nation and passengers 

may travel between cities and within 

metropolitan and suburban areas.’’ The 

terms ‘‘camp car’’ and ‘‘MOW worker’’ 

are used in proposed subparts C and E. 

‘‘Camp car’’ would be defined as ‘‘a 

trailer and/or on-track vehicle, 

including an outfit, camp, bunk car, or 

modular home mounted on a flatcar, or 

any other mobile vehicle or mobile 

structure used to house or accommodate 

an employee or MOW worker. A wreck 

train is not included.’’ 

The longstanding definition of ‘‘camp 

car’’ in the guidelines of 49 CFR part 

228, app. C is clarified by adding ‘‘or 

any other mobile vehicle or mobile 

structure’’ as catch-all language. For 

example, a recreational vehicle would 

be a camp car. In addition, the phrase 

‘‘railroad employees’’ is replaced with 

‘‘an employee or MOW worker.’’ The 

term ‘‘employee’’ is defined in existing 

§ 228.5 and means a train employee, 

signal employee, or dispatching service 

employee. The term ‘‘MOW worker’’ 

would be defined as ‘‘an individual 

employed to maintain the right of way 

of a railroad’’; the language of the 

definition is based on the statutory 

provision at 49 U.S.C. 21106(a)(1). 

Subpart B of Part 228 

FRA proposes to remove § 228.13, 

Preemptive effect, for two reasons. First, 

the section is unnecessary because it is 

duplicative of statutory law at 49 U.S.C. 

20106 and case law. Second, the section 

is incomplete because it omits reference 

to the preemptive effect of the hours of 

service laws (49 U.S.C. chapter 211), the 

authority for 49 CFR part 228, subparts 

C and E, as provided under case law. 

The hours of service laws have been 

interpreted by the Supreme Court as 

preempting State regulation of the hours 

of railroad employees. See Hill v. State 

of Florida ex rel. Watson, 325 U.S. 538, 

553 (1945). 

In addition, FRA proposes to 

redesignate two provisions in subpart B 

that are intended to apply to the entire 

part in order to move them to subpart 

A, General. In particular, FRA proposes 

to redesignate § 228.21, Civil penalty, 

and § 228.23, Criminal penalty, as 

§ 228.6, Penalty. 

Subpart C of Part 228 

FRA proposes to change the heading 

of subpart C from ‘‘Construction of 

Employee Sleeping Quarters’’ to 

‘‘Construction of Railroad-Provided 

Sleeping Quarters.’’ ‘‘Railroad-Provided’’ 

is added to emphasize that the 

regulations apply only to sleeping 

quarters that are provided by a railroad, 

and the word ‘‘Employee’’ is deleted 

since the proposed subpart would apply 

not only to sleeping quarters occupied 

by an employee but also to sleeping 

quarters in the form of a camp car that 

are provided by a railroad to an MOW 

worker. 

In § 228.101, the heading would be 

changed from ‘‘Distance requirement; 

definitions’’ to ‘‘Distance requirement for 

railroad-provided employee sleeping 

quarters; definitions used in this 

subpart.’’ This revision is intended to 

reflect that the section applies only to 

sleeping quarters for employees (not for 

MOW workers). That section reflects the 

1976 statutory amendment discussed 

earlier in the preamble that carries a 

July 8, 1976, compliance date. 

Section 228.102 Distance Requirement 

for Camp Cars Provided by Railroads as 

Sleeping Quarters Exclusively for MOW 

Workers 

In new § 228.102, FRA proposes to 

restate the statutory language at 49 

U.S.C. 21106(b) and 21106(a)(2) by 

saying that a railroad that uses camp 

cars must comply by December 31, 

2009, with the prohibition in 49 U.S.C. 

21106(a)(2) with respect to those camp 

cars that are provided as sleeping 

quarters exclusively to MOW workers. 

(Camp cars for train employees, signal 

employees, or dispatching service 

employees or those occupied by both 

covered service employees and MOW 

workers are already subject to the July 

8, 1976, compliance date in 49 U.S.C. 

21106(a)(2) and 49 CFR 228.101.) In 

other words, under the statute, starting 

December 31, 2009, a railroad must not 

begin construction or reconstruction of 

a camp car provided by the railroad as 

sleeping quarters exclusively for MOW 

workers within or in the immediate 

vicinity of any area where railroad 

switching or humping is performed. (Of 

course, compliance with the regulation 

itself would not be due until the date 

established in the final rule.) The key 

terms in the new proposed section are 

already defined in the subpart or at 

§ 228.5. In effect, absent FRA’s special 

approval in accordance with subpart C, 

a railroad may not begin construction or 

reconstruction of a camp car (including 

the placement of a camp car) for MOW 

workers in or within the distance 


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68 Federal Register / Vol. 76, No. 1 / Monday, January 3, 2011 / Proposed Rules 

specified in the regulations at 

228.101(b) (one-half mile from the 

location where such switching or 

humping of placarded cars takes place). 

Procedures on requesting FRA’s special 

approval are found within that subpart 

and at 49 CFR part 211. The proposed 

section notes that references to 

‘‘employees’’ in the sections on 

procedures on §§ 228.103–228.107 must 

be read to include MOW workers if read 

in conjunction with the proposed 

section. 

Subpart E of Part 228 

FRA proposes to add new subpart E 

entitled, ‘‘Safety and Health 

Requirements for Camp Cars Provided 

by Railroads as Sleeping Quarters.’’ 

Section 228.301 Purpose and scope 

This proposed section is a basic 

restatement of the legal mandate in 

section 420 of RSIA that is codified at 

49 U.S.C. 21106(c), which requires the 

issuance of regulations to implement 49 

U.S.C. 21106(a)(1) with respect to 

certain camp cars. Section 21106(a)(1) of 

title 49 of the U.S. Code provides that 

sleeping quarters provided by a railroad 

to its covered service employees and 

MOW workers must be— 

clean, safe, and sanitary, give those 

employees and individuals an opportunity 

for rest free from the interruptions caused by 

noise under the control of the carrier, and 

provide indoor toilet facilities, potable water, 

and other features to protect the health of 

employees * * *. 

As previously discussed, FRA does not 

currently have regulations addressing 

safety and health requirements for camp 

cars, but instead has published 

guidelines that interpret pre-RSIA 

statutory requirements. 49 CFR part 228, 

appendix C. The regulations proposed 

in this NPRM would update and 

supplant the outdated guidelines 

consistent with RSIA’s requirements. 

Section 228.303 Application and 

Responsibility for Compliance 

This proposed section defines the 

railroads that would be covered by the 

proposed new subpart. All railroads 

would be covered, with the exception of 

three types of railroad operations. The 

three listed exceptions are for 

operations that are not part of the 

general railroad system of 

transportation: (1) Railroads that operate 

exclusively on track that is not part of 

that system (plant railroads, as that term 

is defined in § 228.5); (2) tourist, scenic, 

historic, or excursion railroads that are 

not part of the general railroad system 

of transportation, a term also defined in 

§ 228.5 (tourist railroads); and (3) rapid 

transit operations in an urban area that 

are not connected to the general railroad 

system of transportation. See 49 CFR 

part 209, app. A for a discussion of 

‘‘general railroad system of 

transportation.’’ As a matter of policy, 

FRA almost never exercises its statutory 

jurisdiction over plant railroads and 

generally does not exercise its statutory 

jurisdiction over tourist railroads that 

operate only off the general system. FRA 

lacks statutory jurisdiction over urban 

rapid transit operations not connected 

to the general system. See 49 U.S.C. 

20102, 20103. 

In addition, proposed paragraph (b) 

explains that even though the subpart 

applies only to railroads, a railroad may 

not avoid fulfilling the requirements of 

this subpart by using contractors or 

subcontractors. If, for example, a 

railroad uses a contractor to provide 

dining services for the occupants of a 

camp car, FRA will still enforce the 

provisions of § 228.325 to ensure that 

the food service is safe and sanitary. 

FRA will hold the railroad liable for its 

contractor’s or subcontractor’s failing to 

fulfill the requirements of this proposed 

subpart. 

Section 228.305 Compliance Date 

This proposed section establishes the 

deadline for compliance. A December 

31, 2010 deadline for compliance with 

the regulations was set by Congress in 

section 420 of RSIA, but the final rule 

may not become effective until 60 days 

after it is published. 

Section 228.307 Definitions 

This proposed section defines key 

terms used in proposed subpart E. The 

definitions are set forth alphabetically. 

FRA intends these definitions to clarify 

the meaning of terms as they are used 

in the text of the proposed subpart. 

Many of these definitions were 

originally set forth in FRA’s 1990 

Guidelines. In addition, many of these 

definitions have been taken from 

standards issued by OSHA. 

Section 228.309 Structure, Emergency 

Egress, Lighting, Temperature, and 

Noise-Level Standards 

This proposed section sets forth a 

series of requirements for camp cars 

provided by a railroad as sleeping 

quarters to employees and MOW 

workers. First, the section requires that 

the camp cars are constructed so as to 

provide protection from the elements. 

Second, the section requires that the 

camp cars provide an opportunity for 

rest free from interruptions caused by 

noise under the control of the railroad 

that provides the camp cars. The limit 

of 55 dB(A) that FRA intends to 

establish is based on the longstanding 

interpretation of the hours of service 

statutory provision related to sleeping 

quarters. 49 U.S.C. 21106(a)(1); 49 CFR 

part 228, app. A and C. It is notable that 

the 55 dB(A) level is typical of semiurban and suburban neighborhood 

outside ambient noise during the 

evening hours with minimal street 

traffic. Levels such as these have also 

been measured in the same 

neighborhoods on side streets during 

daylight hours; thus, the 55 dB(A) limit 

should not be difficult to achieve. Third, 

this section requires that the camp cars 

be able to maintain a minimum 

temperature during cold weather and a 

maximum temperature during hot 

weather. FRA invites comment on 

whether the temperatures currently 

specified should be changed. Fourth, 

the section requires that camp cars 

provide an adequate means of egress in 

the event of an emergency situation. 

There must be an exit at both ends of 

the camp car so that occupants may pass 

through each end frame. Finally, FRA is 

also establishing minimum lighting 

standards, including provisions 

requiring the interior pathway to an 

emergency exit not immediately 

accessible to the occupants to be 

illuminated at all times for emergency 

egress purposes. 

Section 228.311 Minimum Space 

Requirements 

This proposed section requires that, to 

prevent overcrowding, the camp car’s 

occupants have at least 50 square feet 

each; in a facility where occupants cook, 

live, and sleep, a minimum of 90 square 

feet per occupant must be provided. The 

proposed section also requires certain 

types of furniture. 

Section 228.313 Electrical System 

Requirements 

This proposed section sets forth 

requirements regarding the safety of 

heating, cooking, ventilation, air 

conditioning, and water heating 

equipment. These systems must be 

installed in accordance with all 

applicable provisions of the 2008 

version of the National Electrical Code. 

In addition, all electrical systems 

installed must be compliant with that 

code. 

This section of the proposed rule does 

not specify any certain code that must 

be used for heating, ventilation, and air 

conditioning (HVAC) systems, but does 

require that all such systems be safe and 

working. FRA anticipates that, to ensure 

that these systems are safe and operable, 

railroads will require HVAC systems in 

their camp cars to meet widely-adopted 

standards, such as those of the 

standards of the Sheet Metal and Air 


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Federal Register / Vol. 76, No. 1 / Monday, January 3, 2011 / Proposed Rules 69 

Conditioning Contractors National 

Association, American Society of 

Heating, Refrigerating, and AirConditioning Engineers, and the 

American National Standards Institute. 

FRA is requesting comments on an 

appropriate standard to use for this 

provision as well as the practicability of 

FRA’s attempting to enforce such 

standards. Please note that under 49 

U.S.C. 20116, the date of adoption of a 

non-Federal standard incorporated by 

reference in a rail safety rule must be 

stated in the rule in order for the 

standard to become effective. 

Section 228.315 Vermin Control 

This proposed section sets forth 

requirements related to the prevention 

and resolution of vermin infestations. 

Section 228.317 Toilets 

This proposed section represents a 

substantial revision of the parallel 

provision in FRA’s 1990 Guidelines to 

reflect a more appropriate number of 

toilets required. Further, the proposed 

section requires that there be at least 

two toilet rooms located within a camp 

car that has sleeping facilities. 

Additionally, if a camp car is lodging 

more than 10 occupants, then an 

additional toilet room must be provided 

within the camp car for each group of 

one to five occupants in excess of the 

10. For example, if there are 12 

occupants lodged in a camp car, there 

must be a total of three toilet rooms in 

the camp car (two for the first ten 

occupants and one for the additional 

two occupants). FRA believes that this 

requirement provides an adequate 

standard for the minimum number of 

toilets. A toilet room must have a door 

that latches, one that is capable of being 

and staying securely closed and be 

sufficient to assure privacy. Certain 

construction and cleanliness standards 

are also included in this section. 

Section 228.319 Lavatories 

This proposed section requires every 

camp car that provides a sleeping 

facility to have a basin with running 

water, soap, and hand-drying equipment 

or towels. It also requires at least two 

basins per car with sleeping facilities. If 

the running water available through a 

basin is not potable, a sign to that effect 

must be posted nearby. 

Section 228.321 Showering Facilities 

The proposed section mandates a 

minimum number of showers, 

construction requirements for the 

showers, and the provision of showering 

supplies. If the running water available 

through a shower is not potable, a sign 

to that effect must be posted nearby. 

Section 228.323 Potable Water 

This proposed section sets forth 

requirements to ensure that the water 

provided to the occupants of camp cars 

is safe. Potable water may be provided 

either as bottled water or as supplied 

through a plumbing system. Water uses 

such as personal oral hygiene, drinking, 

food washing, preparation, cooking, 

cleaning of the cooking utensils, 

cooking surfaces, and eating surfaces, 

etc. all require the use of potable water. 

If the water supplied for these uses is 

provided by means of a system of tanks, 

lines and other plumbing, the integrity 

and cleanliness of such systems needs 

to be maintained. To ensure that this is 

done, FRA intends to establish 

requirements to facilitate this objective. 

Individuals who fill potable water 

systems servicing a camp car must be 

trained. The source for water provided 

to the occupants of a camp car must 

meet minimum standards put forth by 

the Environmental Protection Agency 

under 49 CFR part 141, National 

Primary Drinking Water Regulations. 

The railroad must obtain a certificate 

indicating this fact, which must be kept 

with the camp car for the duration of the 

connection, after which is must be sent 

to a centralized location, such as the 

railroad’s system headquarters. This 

location should be the depository for all 

water certification records for the 

railroad. Equipment and construction 

employed to provide potable water to a 

camp car must be approved by the Food 

and Drug Administration. The water 

itself must be stored in sanitary 

containers and be dispensed so that 

sanitary conditions are maintained. 

Distribution lines must have adequate 

pressure for simultaneous use. Potable 

water systems must be flushed and 

disinfected regularly, and the steps that 

are taken must be recorded. Those 

records must be kept within the camp 

for the duration of the connection and 

then sent to a centralized location. The 

section sets forth procedures to follow 

in the instance of a report of a problem 

with the taste of the water or a report 

of a health problem because of the 

water. 

Section 228.325 Food Service in a 

Camp Car or Separate Kitchen or Dining 

Car 

The proposed section prohibits the 

presence of food and beverages in toilet 

rooms and toxic materials areas, 

imposes requirements applicable when 

a central dining operation is provided, 

and ensures that food service facilities 

and operations will operate 

hygienically. The limitations of 

paragraphs (c) and (d) do not apply to 

food service from nearby restaurants 

that are subject to State law. 

Section 228.327 Sewage and Waste 

Collection and Disposal 

This proposed section addresses the 

necessity of wastes being disposed to 

ensure a sanitary environment. Timely 

removal of all kinds of waste is 

mandated by proposed § 228.329(a). 

Camp cars must be equipped with a 

method to dispose of sewage according 

to proposed § 228.329(b). Appropriate 

waste containers for both general waste 

and food waste are required by 

proposed § 228.329(c) and (d), 

respectively. 

Section 228.329 Housekeeping 

This proposed section requires that 

each camp car be kept as clean as is 

practicable given the type of work 

performed by the occupants of the car. 

The section also requires elimination of 

splinters, unnecessary holes, and other 

conditions or features that impede 

cleaning. 

Section 228.331 First Aid 

This proposed section requires a firstaid kit in each camp car with specified 

contents. This list is based on the 

requirements for first-aid kits in 

passenger trains set forth in FRA’s 

regulations on passenger train 

emergency preparedness at 49 CFR 

239.101(a)(6), but adds a requirement of 

two elastic wraps. Railroads should add 

items to the first-aid kit as conditions 

warrant, for example, increasing the 

minimum number of bandages for a 

larger crew than normal or providing 

additional items if the occupants of the 

camp car regularly deal with hazardous 

material. Additional items railroads may 

consider providing include ammonia 

inhalants and a splint. 

Section 228.333 Repairs 

The proposed section gives a limited 

amount of time for a railroad, after 

receiving notice from FRA to repair a 

camp car that does not comply with 

these regulations. The section also 

requires that a railroad provide alternate 

accommodations when a camp car does 

not provide the essential services such 

as proper cooling or heating. In 

addition, if a camp car is noncompliant 

with the requirements of this subpart, 

and the railroad otherwise would have 

provided meals for occupants, it must 

provide for alternate arrangement for 

meals. 49 CFR part 228, app. A and C. 

FRA is considering specifying exactly 

how quickly a railroad must provide 

alternative accommodations for 

occupants when a camp car lacks 


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70 Federal Register / Vol. 76, No. 1 / Monday, January 3, 2011 / Proposed Rules 

essential services and invites comment 

on this issue. 

Section 228.335 Electronic 

Recordkeeping 

This section provides for electronic 

recordkeeping of records required by 

this subpart. 

Appendix A and Appendix C of Part 

228 

Finally, the proposal would make 

conforming changes to appendix A to 

part 228 and remove appendix C to part 

228. The proposal would revise 

appendix A (FRA’s statement of agency 

policy and interpretation of the hours of 

service laws) by removing the paragraph 

discussing the 1990 Guidelines, codified 

in appendix C to part 228, and the 

rationale for establishing those 

guidelines because appendix C would 

be eliminated and superseded by new 

49 CFR part 228, subpart E. The 

proposal would also remove appendix C 

to reflect that the guidelines with 

respect to camp cars would be revised 

and converted into regulations at 49 

CFR part 228, subpart E, which would 

become effective upon the date that 

compliance with the regulations is first 

required. 

III. Regulatory Impact and Notices 

A. Executive Order 12866 and DOT 

Regulatory Policies and Procedures 

This rule has been evaluated in 

accordance with existing policies and 

procedures, and determined to be nonsignificant under both Executive Order 

12866 and DOT policies and 

procedures. 44 FR 11034, February 26, 

1979. FRA has prepared and placed in 

the docket a regulatory evaluation 

addressing the economic impact of this 

proposed rulemaking. Document 

inspection and copying facilities are 

available at U.S. Department of 

Transportation, Docket Operations, 

West Building Ground Floor, Room 

W12–140, 1200 New Jersey Avenue, SE., 

Washington, DC 20590. Docket material 

is also available for inspection on the 

Internet at http://www.regulations.gov. 

Photocopies may also be obtained by 

submitting a written request to the FRA 

Docket Clerk at the Office of Chief 

Counsel, RCC–10, Mail Stop 10, Federal 

Railroad Administration, 1200 New 

Jersey Avenue, SE., Washington, DC 

20590; please refer to Docket No. FRA– 

2009–0042. 

To carry out a 2008 Congressional 

rulemaking mandate, FRA is proposing 

to create a new subpart of part 228, 

subpart E, which would prescribe 

minimum safety and health 

requirements for camp cars that a 

railroad provides as sleeping quarters to 

any of its train employees, signal 

employees, and dispatching service 

employees and individuals employed to 

maintain its right of way. The proposed 

regulations would supplant existing 

FRA guidelines that interpret existing 

statutory requirements, enacted decades 

earlier, that railroad-provided camp cars 

be clean, safe, and sanitary, and afford 

those employees and individuals an 

opportunity for rest free from the 

interruptions caused by noise under the 

control of the railroad. In further 

response to the rulemaking mandate, the 

proposed regulations would include the 

additional statutory requirements, 

enacted in 2008, that camp cars be 

provided with indoor toilets, potable 

water, and other features to protect the 

health of such workers. 

Under separate but related statutory 

authority, FRA is proposing to amend 

subpart C of 49 CFR part 228, 

‘‘Construction of Employee Sleeping 

Quarters.’’ In accordance with the RSIA, 

FRA applies the location restrictions 

applicable to employee occupied camp 

cars to railroad camp cars occupied 

solely by MOW workers. 

Finally, the proposal would make 

conforming changes to appendix A to 

part 228 and remove part appendix C to 

part 228. The proposal would also 

clarify its provision on applicability, 

remove an existing provision on the 

preemptive effect of part 228 as 

unnecessary, and move, without change, 

an existing provision on penalties for 

violation of part 228 from subpart B to 

subpart A. 

FRA estimates costs and benefits for 

the proposed rule. In this case, only one 

railroad would be affected, NS. NS has 

asserted and FRA assumes that they are 

in compliance due to statutory mandate 

or voluntary compliance with the 1990 

guidelines. FRA expects NS’s costs of 

complying with this proposed rule to be 

nominal and limited to such 

requirements as the installation of nonpotable water signage and first-aid kit 

items. Consequently, NS is already 

experiencing the benefits that would 

flow from this NPRM. Any increase in 

realized benefits would be small. The 

main benefit of this proposed rule is the 

assurance it will provide that the health 

and safety benefits reaped by NS’s 

upgrades will remain in place. FRA is 

confident that the benefits will more 

than justify incurring the nominal costs 

associated with implementation of the 

proposed rule. FRA is requesting 

comments on all aspects of this 

economic analysis, including its 

underlying assumptions. 

B. Regulatory Flexibility Act and 

Executive Order 13272 

The Regulatory Flexibility Act of 1980 

(5 U.S.C. 601 et seq.) and Executive 

Order 13272 (67 FR 53461; August 16, 

2002) require agency review of proposed 

and final rules to assess their impact on 

small entities. The Regulatory 

Flexibility Act requires an agency to 

review regulations to assess their impact 

on small entities. An agency must 

conduct a regulatory flexibility analysis 

unless it determines and certifies that a 

rule is not expected to have a significant 

impact on a substantial number of small 

entities. Pursuant to the Regulatory 

Flexibility Act of 1980, 5 U.S.C. 605(b), 

the FRA Administrator certifies that this 

proposed rule will not have a significant 

economic impact on a substantial 

number of small entities. No small 

railroads will be affected by the rule. 

FRA has prepared and placed in the 

docket this certification. FRA requests 

comments on this certification as well 

as all other aspects of this NPRM. 

‘‘Small entity’’ is defined in 5 U.S.C. 

601 as including a small business 

concern that is independently owned 

and operated, and is not dominant in its 

field of operation. The U.S. Small 

Business Administration (SBA) has 

authority to regulate issues related to 

small businesses, and stipulates in its 

size standards that a ‘‘small entity’’ in 

the railroad industry is a for profit ‘‘linehaul railroad’’ that has fewer than 1,500 

employees, a ‘‘short line railroad’’ with 

fewer than 500 employees, or a 

‘‘commuter rail system’’ with annual 

receipts of less than seven million 

dollars. See ‘‘Size Eligibility Provisions 

and Standards,’’ 13 CFR part 121, 

subpart A. Additionally, 5 U.S.C 601(5) 

defines as ‘‘small entities’’ governments 

of cities, counties, towns, townships, 

villages, school districts, or special 

districts with populations less than 

50,000. Federal agencies use a different 

standard for small entities, in 

consultation with SBA and in 

conjunction with public comment. 

Pursuant to that authority FRA has 

published a final statement of agency 

policy that formally establishes ‘‘small 

entities’’ or ‘‘small businesses’’ as being 

railroads, contractors and hazardous 

materials shippers that meet the revenue 

requirements of a Class III railroad as set 

forth in 49 CFR 1201.1–1, which is $20 

million or less in inflation-adjusted 

annual revenues, and commuter 

railroads or small governmental 

jurisdictions that serve populations of 

50,000 or less. See 68 FR 24891, May 9, 

2003, codified at Appendix C to 49 CFR 

part 209. The $20 million limit is based 

on the Surface Transportation Board’s 


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revenue threshold for a Class III railroad 

carrier. Railroad revenue is adjusted for 

inflation by applying a revenue deflator 

formula in accordance with 49 CFR 

1201.1–1. FRA is using this definition 

for this rulemaking. 

The factual basis for the certification 

that this final rule will not have a 

significant economic impact on a 

substantial number of small entities is 

that no small entities are affected. This 

proposed rule would affect only one 

railroad, the Norfolk Southern Railway, 

which is a Class I railroad with revenues 

far exceeding inflation-adjusted $20 

million. Accordingly, FRA does not 

consider this impact to be significant. 

Nor does FRA anticipate that this 

regulation would result in long-term or 

short-term insolvency for any small 

railroad. 

C. Federalism Implications 

Executive Order 13132, ‘‘Federalism’’ 

(64 FR 43255, Aug. 10, 1999), requires 

FRA to develop an accountable process 

to ensure ‘‘meaningful and timely input 

by State and local officials in the 

development of regulatory policies that 

have federalism implications.’’ ‘‘Policies 

that have federalism implications’’ are 

defined in the Executive Order to 

include regulations that have 

‘‘substantial direct effects on the States, 

on the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government.’’ Under Executive 

Order 13132, the agency may not issue 

a regulation with federalism 

implications that imposes substantial 

direct compliance costs and that is not 

required by statute, unless the Federal 

government provides the funds 

necessary to pay the direct compliance 

costs incurred by State and local 

governments, the agency consults with 

State and local governments, or the 

agency consults with State and local 

government officials early in the process 

of developing the regulation. Where a 

regulation has federalism implications 

and preempts State law, the agency 

seeks to consult with State and local 

officials in the process of developing the 

regulation. 

This NPRM has been analyzed in 

accordance with the principles and 

criteria contained in Executive Order 

13132. This proposed rule would not 

have a substantial effect on the States or 

their political subdivisions; it would not 

impose any direct compliance costs on 

State and local governments; and it 

would not affect the relationships 

between the Federal government and 

the States or their political subdivisions, 

or the distribution of power and 

responsibilities among the various 

levels of government. FRA has also 

determined that this proposed rule 

would not impose substantial direct 

compliance costs on State and local 

governments. Therefore, the 

consultation and funding requirements 

of Executive Order 13132 do not apply. 

However, this proposed rule could 

have preemptive effect by operation of 

law under a provision of the former 

Federal Railroad Safety Act of 1970, 49 

U.S.C. 20106 (Section 20106), and case 

law interpreting the statutory 

predecessor of the hours of service laws 

at 49 U.S.C. chapter 211 (the Hours of 

Service Act). See Public Law 103–272. 

Section 20106 provides that States may 

not adopt or continue in effect any law, 

regulation, or order related to railroad 

safety or security that covers the subject 

matter of a regulation prescribed or 

order issued by the Secretary of 

Transportation (with respect to railroad 

safety matters) or the Secretary of 

Homeland Security (with respect to 

railroad security matters), except when 

the State law, regulation, or order 

qualifies under the ‘‘local safety or 

security hazard’’ exception to Section 

20106. The Hours of Service Act has 

been interpreted by the Supreme Court 

as preempting State regulation of the 

hours of railroad employees. See Hill v. 

State of Florida ex rel. Watson, 325 U.S. 

538, 553 (1945). 

In sum, FRA has analyzed this 

proposed rule in accordance with the 

principles and criteria contained in 

Executive Order 13132. As explained 

above, FRA has determined that this 

proposed rule has no federalism 

implications, other than the possible 

preemption of State laws. Accordingly, 

FRA has determined that preparation of 

a federalism summary impact statement 

for this proposed rule is not required. 

D. International Trade Impact 

Assessment 

The Trade Agreement Act of 1979 

prohibits Federal agencies from 

engaging in any standards or related 

activities that create unnecessary 

obstacles to the foreign commerce of the 

United States. Legitimate domestic 

objectives, such as safety, are not 

considered unnecessary obstacles. The 

statute also requires consideration of 

international standards and where 

appropriate, that they be the basis for 

U.S. standards. This rulemaking is 

purely domestic in nature and is not 

expected to affect trade opportunities 

for U.S. firms doing business overseas or 

for foreign firms doing business in the 

United States. 

E. Paperwork Reduction Act 

The information collection 

requirements in this proposed rule have 

been submitted for approval to the 

Office of Management and Budget 

(OMB) under the Paperwork Reduction 

Act of 1995, 44 U.S.C. 3501 et seq. The 

sections that contain the new 

information collection requirements and 

the estimated time to fulfill each 

requirement are as follows: 

CFR Section Respondent universe Total annual 

responses 

Average time per 

response 

Total annual burden 

hours 

228.319—Lavatories—Signs—Non-use for 

Consumption of Non-potable water.

1 Railroad .................. 600 signs ................... 2.5 minutes ................ 25 hours. 

228.321—Showering Facilities—Signs—Nonuse for Consumption of Non-potable water.1 Railroad .................. 300 signs ................... 2.5 minutes ................ 13 hours. 

228.323—Potable Water: 

—Water Hydrants—Inspections/Records 

for Water Hydrants, Hoses, Nozzles 

Used for Supplying Potable Water.

1 Railroad .................. 370 inspections/ 

records.

5 minutes ................... 31 hours. 

—Inspection Records—Copy to Centralized Location When Connection Terminated.1 Railroad .................. 370 copies ................. 10 seconds ................ 1 hour. 

Training—For Individuals Permitted to 

Fill Potable Water Systems.

1 Railroad .................. 37 trained employees 15 minutes ................. 9 hours. 

—Certification by Laboratory for Potable 

Water Drawn from a Different Source.

1 Railroad .................. 370 certificates ........... 16 hours ..................... 5,920 hours. 

—Copy of Certificate to Centralized Location When Connection Terminated.1 Railroad .................. 370 copies ................. 10 seconds ................ 1 hour. 


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72 Federal Register / Vol. 76, No. 1 / Monday, January 3, 2011 / Proposed Rules 

CFR Section Respondent universe Total annual 

responses 

Average time per 

response 

Total annual burden 

hours 

—Flushing—Record for Each Potable 

Water System Drained and Flushed 

with Disinfectant Every 120 days.

1 Railroad .................. 584 records ................ 2 hours ....................... 1,168 hours. 

—Occupant Reports of Taste Problem .. 1 Railroad .................. 10 oral reports ........... 10 seconds ................ .028 hour. 

—Draining/Flushing and Required 

Record Resulting from Occupant 

Taste Reports Plus Necessary Lab 

Tests/Certificates.

1 Railroad .................. 10 records + 10 tests/ 

certif.

2 hours + 16 hours .... 180 hours. 

—Lab Report Copies .............................. 1 Railroad .................. 10 copies ................... 2 minutes ................... .3333 hour. 

All estimates include the time for 

reviewing instructions; searching 

existing data sources; gathering or 

maintaining the needed data; and 

reviewing the information. Pursuant to 

44 U.S.C. 3506(c)(2)(B), FRA solicits 

comments concerning: whether these 

information collection requirements are 

necessary for the proper performance of 

the functions of FRA, including whether 

the information has practical utility; the 

accuracy of FRA’s estimates of the 

burden of the information collection 

requirements; the quality, utility, and 

clarity of the information to be 

collected; and whether the burden of 

collection of information on those who 

are to respond, including through the 

use of automated collection techniques 

or other forms of information 

technology, may be minimized. For 

information or a copy of the paperwork 

package submitted to OMB, contact Mr. 

Robert Brogan, Information Clearance 

Officer, Office of Railroad Safety, at 

202–493–6292, or Ms. Kimberly Toone, 

Office of Information Technology, at 

202–493–6132. 

Organizations and individuals 

desiring to submit comments on the 

collection of information requirements 

should direct them to Mr. Robert Brogan 

or Ms. Kimberly Toone, Federal 

Railroad Administration, 1200 New 

Jersey Avenue, SE., 3rd Floor, 

Washington, DC 20590. Comments may 

also be submitted via e-mail to Mr. 

Brogan or Ms. Toone at the following 

address: Robert.Brogan @dot.gov; or 

Kimberly.Toone@dot.gov. 

OMB is required to make a decision 

concerning the collection of information 

requirements contained in this proposed 

rule between 30 and 60 days after 

publication of this document in the 

Federal Register. Therefore, a comment 

to OMB is best assured of having its full 

effect if OMB receives it within 30 days 

of publication. The final rule will 

respond to any OMB or public 

comments on the information collection 

requirements contained in this proposal. 

FRA is not authorized to impose a 

penalty on persons for violating 

information collection requirements 

which do not display a current OMB 

control number, if required. FRA 

intends to obtain current OMB control 

numbers for any new information 

collection requirements resulting from 

this rulemaking action prior to the 

effective date of the final rule. The OMB 

control number, when assigned, will be 

announced by separate notice in the 

Federal Register. 

F. Unfunded Mandates Reform Act of 

1995 

Pursuant to Section 201 of the 

Unfunded Mandates Reform Act of 1995 

(Pub. L. 104–4, 2 U.S.C. 1531), each 

Federal agency ‘‘shall, unless otherwise 

prohibited by law, assess the effects of 

Federal regulatory actions on State, 

local, and Tribal governments, and the 

private sector (other than to the extent 

that such regulations incorporate 

requirements specifically set forth in 

law).’’ Section 202 of the Act (2 U.S.C. 

1532) further requires that ‘‘before 

promulgating any general notice of 

proposed rulemaking that is likely to 

result in the promulgation of any rule 

that includes any Federal mandate that 

may result in expenditure by State, 

local, and Tribal governments, in the 

aggregate, or by the private sector, of 

$100 million or more (adjusted annually 

for inflation) [$140.8 million in 2010] in 

any 1 year, and before promulgating any 

final rule for which a general notice of 

proposed rulemaking was published, 

the agency shall prepare a written 

statement’’ detailing the effect on State, 

local, and Tribal governments and the 

private sector. This final rule would not 

result in the expenditure, in the 

aggregate, of $140.8 million or more in 

any one year, and thus preparation of 

such a statement is not required. 

G. Environmental Assessment 

FRA has evaluated this proposed rule 

in accordance with its ‘‘Procedures for 

Considering Environmental Impacts’’ 

(FRA’s Procedures) (64 FR 28545, May 

26, 1999) as required by the National 

Environmental Policy Act (42 U.S.C. 

4321 et seq.), other environmental 

statutes, Executive Orders, and related 

regulatory requirements. FRA has 

determined that this proposed rule is 

not a major FRA action (requiring the 

preparation of an environmental impact 

statement or environmental assessment) 

because it is categorically excluded from 

detailed environmental review pursuant 

to section 4(c)(20) of FRA’s Procedures. 

See 64 FR 28547, May 26, 1999. Section 

4(c)(20) reads as follows: 

(c) Actions categorically excluded. Certain 

classes of FRA actions have been determined 

to be categorically excluded from the 

requirements of these Procedures as they do 

not individually or cumulatively have a 

significant effect on the human environment. 

* * * 

The following classes of FRA actions are 

categorically excluded: 

* * * 

(20) Promulgation of railroad safety rules 

and policy statements that do not result in 

significantly increased emissions or air or 

water pollutants or noise or increased traffic 

congestion in any mode of transportation. 

In accordance with section 4(c) and 

(e) of FRA’s Procedures, the agency has 

further concluded that no extraordinary 

circumstances exist with respect to this 

regulation that might trigger the need for 

a more detailed environmental review. 

As a result, FRA finds that this 

proposed rule is not a major Federal 

action significantly affecting the quality 

of the human environment. 

H. Energy Impact 

Executive Order 13211 requires 

Federal agencies to prepare a Statement 

of Energy Effects for any ‘‘significant 

energy action.’’ 66 FR 28355, May 22, 

2001. Under the Executive Order, a 

‘‘significant energy action’’ is defined as 

any action by an agency (normally 

published in the Federal Register) that 

promulgates or is expected to lead to the 

promulgation of a final rule or 

regulation, including notices of inquiry, 

advance notices of proposed 

rulemaking, and notices of proposed 

rulemaking: (1)(i) That is a significant 

regulatory action under Executive Order 

12866 or any successor order, and (ii) is 

likely to have a significant adverse effect 

on the supply, distribution, or use of 

energy; or (2) that is designated by the 


srobinson on DSKHWCL6B1PROD with PROPOSALS
Federal Register / Vol. 76, No. 1 / Monday, January 3, 2011 / Proposed Rules 73 

Administrator of the Office of 

Information and Regulatory Affairs as a 

significant energy action. FRA has 

evaluated this NPRM in accordance 

with Executive Order 13211. FRA has 

determined that this NPRM is not likely 

to have a significant adverse effect on 

the supply, distribution, or use of 

energy. Consequently, FRA has 

determined that this NPRM is not a 

‘‘significant energy action’’ within the 

meaning of Executive Order 13211. 

I. Privacy Act 

FRA wishes to inform all potential 

commenters that anyone is able to 

search the electronic form of all 

comments received into any agency 

docket by the name of the individual 

submitting the comment (or signing the 

comment, if submitted on behalf of an 

association, business, labor union, etc.). 

You may review DOT’s complete 

Privacy Act Statement in the Federal 

Register published on April 11, 2000 

(65 FR 19477–78). 

List of Subjects in 49 CFR Part 228 

Administrative practice and 

procedures, Buildings and facilities, 

Hazardous materials transportation, 

Noise control, Penalties, Railroad 

employees, Railroad safety, Reporting 

and recordkeeping requirements. 

The Proposed Rule 

For the reasons discussed in the 

preamble, FRA proposes to amend part 

228 of chapter II, subtitle B of title 49, 

Code of Federal Regulations as follows: 

PART 228—HOURS OF SERVICE OF 

RAILROAD EMPLOYEES; 

RECORDKEEPING AND REPORTING; 

SLEEPING QUARTERS 

1. The authority citation for part 228 

is revised to read as follows: 

Authority: 49 U.S.C. 20103, 20107, 21101– 

21109; Sec. 108, Div. A, Public Law 110–432, 

122 Stat. 4860–4866, 4893–4894; 49 U.S.C. 

21301, 21303, 21304, 21311; 28 U.S.C. 2461, 

note; 49 CFR 1.49; and 49 U.S.C. 103. 

2. The heading of part 228 is revised 

to read as set forth above. 

3. Section 228.1 is amended by— 

a. Removing the semicolon and the 

word ‘‘and’’ at the end of paragraph (a), 

and adding a period in their place; 

b. Removing the word ‘‘employee’’ 

from paragraph (b); and 

c. Adding a new paragraph (c) to read 

as follows: 

§ 228.1 Scope. 

* * * * * 

(c) Establishes minimum safety and 

health standards for camp cars provided 

by a railroad as sleeping quarters for its 

employees and individuals employed to 

maintain its rights of way. 

4. Section 228.3 is revised to read as 

follows: 

§ 228.3 Application and responsibility for 

compliance. 

(a) Except as provided in paragraph 

(b) of this section, subparts A, B, and D 

of this part apply to all railroads, all 

contractors for railroads, and all 

subcontractors for railroads. Except as 

provided in paragraph (b) of this 

section, subparts C and E of this part 

apply only to all railroads. 

(b) This part does not apply to— 

(1) A railroad, a contractor for a 

railroad, or a subcontractor for a railroad 

that operates only on track inside an 

installation that is not part of the 

general railroad system of transportation 

(i.e., a plant railroad as defined in 

§ 228.5); 

(2) Tourist, scenic, historic, or 

excursion operations that are not part of 

the general railroad system of 

transportation as defined in § 228.5; or 

(3) Rapid transit operations in an 

urban area that are not connected to the 

general railroad system of 

transportation. 

5. Section 228.5 is amended by 

adding definitions for ‘‘Camp car,’’ 

‘‘MOW worker,’’ ‘‘Plant railroad,’’ and 

‘‘Tourist, scenic, historic, or excursion 

operations that are not part of the 

general railroad system of 

transportation’’ in alphabetical order to 

read as follows: 

§ 228.5 Definitions. 

* * * * * 

Camp car means a trailer and/or ontrack vehicle, including an outfit, camp, 

bunk car, or modular home mounted on 

a flatcar, or any other mobile vehicle or 

mobile structure used to house or 

accommodate an employee or MOW 

worker. A wreck train is not included. 

* * * * * 

MOW worker means an individual 

employed to maintain the right of way 

of a railroad. 

* * * * * 

Plant railroad means a plant or 

installation that owns or leases a 

locomotive, uses that locomotive to 

switch cars throughout the plant or 

installation, and is moving goods solely 

for use in the facility’s own industrial 

processes. The plant or installation 

could include track immediately 

adjacent to the plant or installation if 

the plant railroad leases the track from 

the general system railroad and the lease 

provides for (and actual practice entails) 

the exclusive use of that trackage by the 

plant railroad and the general system 

railroad for purposes of moving only 

cars shipped to or from the plant. A 

plant or installation that operates a 

locomotive to switch or move cars for 

other entities, even if solely within the 

confines of the plant or installation, 

rather than for its own purposes or 

industrial processes, will not be 

considered a plant railroad because the 

performance of such activity makes the 

operation part of the general railroad 

system of transportation. 

* * * * * 

Tourist, scenic, historic, or excursion 

operations that are not part of the 

general railroad system of 

transportation means a tourist, scenic, 

historic, or excursion operation 

conducted only on track used 

exclusively for that purpose (i.e., there 

is no freight, intercity passenger, or 

commuter passenger railroad operation 

on the track). 

* * * * * 

6. Section 228.6 is added to subpart 

A to read as follows: 

§ 228.6 Penalties. 

(a) Any person (an entity of any type 

covered under 1 U.S.C. 1, including but 

not limited to the following: A railroad; 

a manager, supervisor, official, or other 

employee or agent of a railroad; any 

owner, manufacturer, lessor, or lessee of 

railroad equipment, track, or facilities; 

any independent contractor providing 

goods or services to a railroad; and any 

employee of such owner, manufacturer, 

lessor, lessee, or independent 

contractor) who violates any 

requirement of this part or causes the 

violation of any such requirement is 

subject to a civil penalty of at least $650 

and not more than $25,000 per 

violation, except that: Penalties may be 

assessed against individuals only for 

willful violations, and, where a grossly 

negligent violation or a pattern of 

repeated violations has created an 

imminent hazard of death or injury to 

persons, or has caused death or injury, 

a penalty not to exceed $100,000 per 

violation may be assessed. Each day a 

violation continues shall constitute a 

separate offense. See appendix B to this 

part for a statement of agency civil 

penalty policy. Violations of the Hours 

of Service Act itself (e.g., requiring an 

employee to work excessive hours or 

beginning construction of a sleeping 

quarters subject to approval under 

subpart C of this part without prior 

approval) are subject to penalty under 

that Act’s penalty provision, 45 U.S.C. 

64a. 

(b) Any person who knowingly and 

willfully falsifies a report or record 

required to be kept under this part or 

otherwise knowingly and willfully 


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74 Federal Register / Vol. 76, No. 1 / Monday, January 3, 2011 / Proposed Rules 

violates any requirement of this part 

may be liable for criminal penalties of 

a fine up to $5,000, imprisonment for up 

to two years, or both, in accordance 

with 49 U.S.C. 21311(a). 

§ 228.13 [Removed and Reserved] 

7. Section 228.13 is removed and 

reserved. 

§ 228.21 [Removed and Reserved] 

8. Section 228.21 is removed and 

reserved. 

§ 228.23 [Removed and Reserved] 

9. Section 228.23 is removed and 

reserved. 

10. The heading of subpart C of part 

228 is revised to read as follows: 

Subpart C—Construction of RailroadProvided Sleeping Quarters 

11. The heading of § 228.101 is 

revised to read as follows: 

§ 228.101 Distance requirement for 

railroad-provided employee sleeping 

quarters; definitions used in this subpart. 

* * * * * 

12. Section 228.102 is added to 

subpart C to read as follows: 

§ 228.102 Distance requirement for camp 

cars provided as sleeping quarters 

exclusively to MOW workers. 

(a) The hours of service laws at 49 

U.S.C. 21106(b) provide that a railroad 

that uses camp cars must comply with 

49 U.S.C. 21106(a) no later than 

December 31, 2009. Accordingly, on or 

after December 31, 2009, a railroad shall 

not begin construction or reconstruction 

of a camp car provided by the railroad 

as sleeping quarters exclusively for 

MOW workers within or in the 

immediate vicinity of any area where 

railroad switching or humping of 

placarded cars is performed. 

(b) This subpart includes definitions 

of most of the relevant terms 

(§ 228.101(b)–(c)), procedures under 

which a railroad may request a 

determination by the Federal Railroad 

Administration that a particular 

proposed site for the camp car is not 

within the ‘‘immediate vicinity’’ of 

railroad switching or humping 

operations (§§ 228.103 and 228.105), 

and the basic criteria utilized in 

evaluating proposed sites. See § 228.5 

for definitions of other terms. For 

purposes of this § 228.102, references to 

‘‘employees’’ in §§ 228.103–228.107 

shall be read to include MOW workers. 

13. Subpart E is added to read as 

follows: 

Subpart E—Safety and Health 

Requirements for Camp Cars Provided by 

Railroads as Sleeping Quarters 

Sec. 

228.301 Purpose and scope. 

228.303 Application and responsibility for 

compliance. 

228.305 Compliance date. 

228.307 Definitions. 

228.309 Structure, emergency egress, 

lighting, temperature, and noise-level 

standards. 

228.311 Minimum space requirements. 

228.313 Electrical system requirements. 

228.315 Vermin control. 

228.317 Toilets. 

228.319 Lavatories. 

228.321 Showering facilities. 

228.323 Potable water. 

228.325 Food service in a camp car or 

separate kitchen or dining facility in a 

camp. 

228.327 Sewage and waste collection and 

disposal. 

228.329 Housekeeping. 

228.331 First aid. 

228.333 Repairs. 

228.335 Electronic recordkeeping. 

Subpart E—Safety and Health 

Requirements for Camp Cars Provided 

by Railroads as Sleeping Quarters 

§ 228.301 Purpose and scope. 

The purpose of this subpart is to 

prescribe standards for the design, 

operation, and maintenance of camp 

cars that a railroad uses as sleeping 

quarters for its employees and MOW 

workers so as to protect the safety and 

health of those employees and MOW 

workers and give them an opportunity 

for rest free from the interruptions 

caused by noise under the control of the 

railroad, and provide indoor toilet 

facilities, potable water, and other 

features to protect the health and safety 

of the employees and MOW workers. 

§ 228.303 Application and responsibility 

for compliance. 

(a) This subpart applies to all 

railroads except the following: 

(1) Railroads that operate only on 

track inside an installation that is not 

part of the general railroad system of 

transportation (i.e., plant railroads, as 

defined in § 228.5); 

(2) Tourist, scenic, historic, or 

excursion operations that are not part of 

the general railroad system of 

transportation as defined in § 228.5; or 

(3) Rapid transit operations in an 

urban area that are not connected to the 

general railroad system of 

transportation. 

(b) Although the duties imposed by 

this subpart are generally stated in terms 

of the duty of a railroad, each person, 

including a contractor or subcontractor 

for a railroad, who performs any task 

covered by this subpart, shall perform 

that task in accordance with this 

subpart. 

§ 228.305 Compliance date. 

On and after [INSERT DATE 60 DAYS 

AFTER PUBLICATION OF THE FINAL 

RULE], a railroad shall not provide a 

camp car for use as sleeping quarters by 

an employee or MOW worker unless the 

camp car complies with all 

requirements of this subpart. 

§ 228.307 Definitions. 

As used in this subpart— 

dB(A) means the sound pressure level 

in decibels measured on the A-weighted 

scale. 

Decibel (dB) means a logarithmic unit 

of measurement that expresses the 

magnitude of a physical quantity 

(usually power or intensity) relative to 

a specified reference level. For the 

measurement of noise in this subpart, 

the reference level for the intensity of 

sound pressure in air is 20 

micropascals. 

Foot-candle means a one lumen of 

light density per square foot. 

HVAC means heating, ventilation, and 

air conditioning. 

Lavatory means a basin or similar 

vessel used primarily for washing of the 

hands, arms, face, and head. 

Leq(8) means the equivalent steady 

state sound level that in 8 hours would 

contain the same acoustic energy as the 

time-varying sound level during the 

same time period. 

Nonwater carriage toilet means a 

toilet not connected to a sewer. 

Occupant means an employee or an 

MOW worker (both as defined in 

§ 228.5) whose sleeping quarters is a 

railroad-provided camp car. 

Ppm means parts per million. 

Potable water means water that meets 

the quality standards prescribed in the 

U.S. Environmental Protection Agency’s 

National Primary Drinking Water 

Standards set forth in 40 CFR part 141. 

Potable water system means the 

containers, tanks, and associated 

plumbing lines and valves that hold, 

convey, and dispense potable water 

within a camp car. 

Toilet means a chemical toilet, a 

recirculating toilet, a combustion toilet, 

or a toilet that is flushed with water; 

however, a urinal is not a toilet. 

Toilet room means a room containing 

a toilet. 

Toxic material means a material in 

concentration or amount of such 

toxicity as to constitute a recognized 

hazard that is causing or is likely to 

cause death or serious physical harm. 

Watering means the act of filling 

potable water systems. 


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§ 228.309 Structure, emergency egress, 

lighting, temperature, and noise-level 

standards. 

(a) General. Each camp car must be 

constructed in a manner that will 

provide protection against the elements. 

(b) Floors. Floors must be of smooth 

and tight construction and must be kept 

in good repair. 

(c) Windows and other openings. (1) 

All living quarters must be provided 

with windows the total area of which 

must be not less than 10 percent of the 

floor area. At least one-half of each 

window designed to be opened must be 

so constructed that it can be opened for 

purposes of ventilation. Durable opaque 

window coverings must be provided to 

reduce the entrance of light during 

sleeping hours. 

(2) All exterior openings must be 

effectively screened with 16-mesh 

material. All screen doors must be 

equipped with self-closing devices. 

(d) Steps, entry ways, passageways, 

and corridors. All steps, entry ways, 

passageways, and corridors providing 

normal entry to or between camp cars 

must be constructed of durable weatherresistant material and properly 

maintained. Any broken or unsafe 

fixtures or components in need of repair 

must be repaired or replaced promptly. 

(e) Emergency egress. Each camp car 

must be constructed in a manner to 

provide adequate means of egress in an 

emergency situation. At a minimum, a 

means of emergency egress must be 

located in each end of the camp car for 

passage through each end frame. 

(f) Lighting. Each habitable room in a 

camp car including but not limited to a 

toilet room, that is provided to an 

occupant must be provided with 

adequate lighting as specified below: 

(1) When occupants are present, the 

pathway to any exit not immediately 

accessible to occupants, such as through 

an interior corridor, shall be illuminated 

at all times to values of at least 1 footcandle measured at the floor; 

(2) Toilet and shower rooms shall 

have controlled lighting that will 

illuminate the room to values of at least 

10 foot-candles measured at the floor; 

(3) Other areas shall have controlled 

lighting that will illuminate the room 

area to values of at least 30 foot-candles 

measured at the floor. 

(g) Temperature. Each camp car must 

be provided with equipment capable of 

maintaining a temperature of at least 68 

degrees Fahrenheit (F.) during cold 

weather and no greater than 75 degrees 

F. during hot weather. 

(h) Noise control. Noise levels 

attributable to noise sources under the 

control of the railroad shall not exceed 

an Leq (8) value of 55 dB(A), with 

windows and doors closed and 

exclusive of noise from cooling, heating, 

and ventilating equipment, for any 480- 

minute period during which the facility 

is occupied. 

§ 228.311 Minimum space requirements. 

(a) Each camp car used for sleeping 

purposes must contain at least 50 square 

feet of floor space for each occupant. At 

least a 7-foot ceiling, measured at the 

entrance to the car, must be provided. 

(b) A bed, cot, or bunk and suitable 

storage facility such as a wall locker or 

space for a foot locker for clothing and 

personal articles must be provided in 

every room used for sleeping purposes. 

Except where partitions are provided, 

such beds or similar facilities must be 

spaced not closer than 36 inches 

laterally (except in modular units, 

which shall be spaced not closer than 30 

inches) and 30 inches end to end, and 

must be elevated at least 12 inches from 

the floor. If double-deck bunks are used, 

they must be spaced not less than 48 

inches both laterally and end to end. 

The minimum clear space between the 

lower and upper bunk must be not less 

than 27 inches. Triple-deck bunks may 

not be used. 

(c) In a facility where occupants cook, 

live, and sleep, a minimum of 90 square 

feet of floor space per occupants must 

be provided. Sanitary facilities must be 

provided for storing and preparing food. 

§ 228.313 Electrical system requirements. 

(a) The National Electrical Code to 

which paragraphs (b) and (c) of this 

section refer is the 2008 version, 

approved by the National Fire 

Protection Association (NFPA) 

Standards Council on July 26, 2007 with 

an effective date of August 15, 2007. 

(b) All heating, cooking, ventilation, 

air conditioning, and water heating 

equipment must be installed in 

accordance with the National Electrical 

Code governing such installations. 

(c) All electrical systems installed 

must be compliant with the National 

Electrical Code, including external 

electrical supply connections. 

(d) Each occupied camp car shall be 

equipped with or serviced by a safe and 

working HVAC system. 

§ 228.315 Vermin control. 

Camp cars shall be constructed, 

equipped, and maintained to prevent 

the entrance or harborage of rodents, 

insects, or other vermin. A continuing 

and effective extermination program 

shall be instituted where the presence of 

vermin is detected. 

§ 228.317 Toilets. 

(a) Number of toilets provided. (1) For 

each individual camp car that provides 

sleeping facilities, a minimum of two 

toilet rooms within the car is required. 

If a camp car has more than 10 

occupants, an additional toilet room 

within the car for each additional group 

of one to five occupants is required. 

(2) A toilet rooms must be equipped 

with at least one functional toilet to 

count toward the minimum 

requirements of this section. 

(b) Construction of toilet rooms. Each 

toilet room must occupy a separate 

compartment with a door that latches 

and walls or partitions between fixtures 

sufficient to assure privacy. 

(c) Supplies and sanitation. (1) An 

adequate supply of toilet paper must be 

provided in each toilet room, unless 

provided to the occupants individually. 

(2) Each toilet must be kept in a clean 

and sanitary condition and cleaned 

regularly when the camp car is being 

used. In the case of a non-water carriage 

toilet facility, it must be cleaned and 

changed regularly when the camp car is 

being used. 

(d) Sewage disposal facilities. (1) All 

sanitary sewer lines and floor drains 

from a camp car toilet facility must be 

connected to a public sewer where 

available and practical, unless the car is 

equipped with a holding tank that is 

emptied in a sanitary manner. 

(2) The sewage disposal method must 

not endanger the health of occupants. 

(3) For toilet facilities connected to a 

holding tank, the tank must be 

constructed in a manner that prevents 

vermin from entry and odors from 

escaping into the camp car. 

§ 228.319 Lavatories. 

(a) Number. Each camp car that 

provides a sleeping facility must contain 

at least two functioning lavatories. 

(b) Water. Each lavatory must be 

provided with either hot and cold 

running water or tepid running water. If 

the water supplied to a lavatory is not 

from a potable source or not supplied 

through a system maintained as 

required in § 228.323, the lavatory area 

must contain a sign, visible to the user 

when the lavatory is being used, bearing 

a message to the following effect: ‘‘The 

water is not suitable for human 

consumption. Do not drink the water.’’ 

(c) Soap. Unless otherwise provided 

by a collective bargaining agreement, 

hand soap or similar cleansing agents 

must be provided. 

(d) Means of drying. Unless otherwise 

provided by a collective bargaining 

agreement, individual hand towels, of 

cloth or paper, warm air blowers, or 

clean sections of continuous cloth 

toweling must be provided near the 

lavatories. 


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§ 228.321 Showering facilities. 

(a) Number. For each individual camp 

car that provides sleeping facilities, a 

minimum of two showers within the car 

is required. If a camp car has more than 

10 occupants, an additional shower 

within the car for each additional group 

of one to five occupants is required. 

(b) Floors. (1) Shower floors must be 

constructed of non-slippery materials; 

(2) Floor drains must be provided in 

all shower baths and shower rooms to 

remove waste water and facilitate 

cleaning; 

(3) All junctions of the curbing and 

the floor must be sealed; and 

(4) There shall be no fixed grate or 

other instrument on the shower floor 

significantly hindering the cleaning of 

the shower floor or drain. 

(c) Walls and partitions. The walls 

and partitions of a shower room must be 

smooth and impervious to the height of 

splash. 

(d) Water. An adequate supply of hot 

and cold running water must be 

provided for showering purposes. 

(e) Signage. If the water supplied to 

the showers is not from a potable source 

or is from a potable source but supplied 

through a system that is not maintained 

as required in § 228.323, the shower 

area must contain a sign, visible to the 

user when the shower is being used, 

bearing a message to the following 

effect: ‘‘The water is not suitable for 

human consumption. Do not drink the 

water.’’ 

(e) Showering necessities. (1) Unless 

otherwise provided by a collective 

bargaining agreement, body soap or 

other appropriate cleansing agent 

convenient to the showers must be 

provided. 

(2) Showers must be provided with 

hot and cold water feeding a common 

discharge line. 

(3) Unless otherwise provided by a 

collective bargaining agreement, each 

occupant who uses a shower must be 

provided with an individual clean 

towel. 

§ 228.323 Potable water. 

(a) General requirements. (1) Potable 

water shall be adequately and 

conveniently provided to all occupants 

of a camp car for drinking, personal oral 

hygiene, cooking, washing of foods, 

washing of cooking or eating utensils, 

and washing of premises for food 

preparation or processing. 

(2) Open containers such as barrels, 

pails, or tanks for drinking water from 

which the water must be dipped or 

poured, whether or not they are fitted 

with a cover, are prohibited. 

(3) A common drinking cup and other 

common utensils are prohibited. 

(b) Potable water source. (1) If potable 

water is provided in bottled form, it 

shall be stored in a manner 

recommended by the supplier in order 

to prevent contamination in storage. 

Bottled water shall contain a label 

identifying the packager and the source 

of the water. 

(2) If potable water is drawn from a 

local source, the source must meet the 

drinking water standards established by 

the U.S. Environmental Protection 

Agency under 40 CFR part 141, National 

Primary Drinking Water Regulations. 

(3) All equipment and construction 

used for supplying potable water to a 

camp car water system (e.g., a hose, 

nozzle, or back-flow prevention) shall 

be approved by the Food and Drug 

Administration. 

(4) Water hydrants. Each water 

hydrant, hose, or nozzle used for 

supplying potable water to a camp car 

water system shall be inspected prior to 

use. Each such hose or nozzle used shall 

be cleaned and sanitized as part of the 

inspection. A signed, dated record of 

this inspection shall be kept within the 

camp for the period of the connection. 

When the connection is terminated, a 

copy of each of these records must be 

submitted promptly to a centralized 

location for the railroad and maintained 

for one year from the date the 

connection was terminated. 

(5) Training. Only a trained 

individual is permitted to fill the 

potable water systems. Each individual 

who fills a potable water system shall be 

trained in— 

(i) The approved method of 

inspecting, cleaning, and sanitizing 

hydrants, hoses, and nozzles used for 

filling potable water systems; and 

(ii) The approved procedures to 

prevent contamination during watering. 

(6) Certification. Each time that 

potable water is drawn from a different 

local source, the railroad shall obtain a 

certificate from a State or local health 

authority indicating that the water from 

this source is of a quality not less than 

that prescribed in the National Primary 

Drinking Water Regulations 

promulgated by the U.S. Environmental 

Protection Agency or obtain such a 

certificate by a certified laboratory 

following testing for compliance with 

those standards. The current 

certification shall be kept within the 

camp for the duration of the connection. 

When the connection is terminated, a 

copy of each of these records must be 

submitted promptly to a centralized 

location for the railroad and maintained 

for one year from the date the 

connection was terminated. 

(c) Storage and distribution system— 

(1) Storage. Potable water shall be stored 

in sanitary containers that prevent 

external contaminants from entering the 

potable water supply. Such 

contaminants include biological agents 

or materials and substances that can 

alter the taste or color or are toxic. 

(2) Dispensers. Potable drinking water 

dispensers shall be designed, 

constructed, and serviced so that 

sanitary conditions are maintained, 

must be capable of being closed, and 

shall be equipped with a tap. 

(3) Distribution lines. The distribution 

lines must be capable of supplying 

water at sufficient operating pressures to 

all taps for normal simultaneous 

operation. 

(4) Flushing. Each potable water 

system shall be drained and flushed 

with a disinfecting solution at least once 

every 120 days The railroad shall 

maintain a record of the draining and 

flushing of each separate system within 

the camp for the last two drain and 

flush cycles. The record shall contain 

the date of the work and the name(s) of 

the individual(s) performing the work. 

The original record shall be maintained 

with the camp. A copy of each of these 

records shall be sent to a centralized 

location for the railroad and maintained 

for one year. 

(i) The solution used for flushing and 

disinfection shall be a 100 parts per 

million by volume (ppm) chlorine 

solution. 

(ii) The chlorine solution shall be 

held for one hour in all parts of the 

system to ensure disinfection. 

(iii) The chlorine solution shall be 

purged from the system by a complete 

refilling and draining with fresh potable 

water. 

(iv) The draining and flushing shall be 

done more frequently if an occupant 

reports a taste or health problem 

associated with the water, or following 

any plumbing repair. 

(5) Reported problems. Following any 

report of a taste problem with the water 

from a system or a health problem 

resulting from the water in a system, 

samples of water from each tap or 

dispensing location on the system shall 

be collected and sent to a laboratory 

approved by the U.S. Environmental 

Protection Agency for testing for 

heterotrophic plate counts, total 

coliform, and fecal coliform. If a single 

sample fails any of these tests, the 

system must be treated as follows: 

(i) Heterotrophic plate count. Drain 

and flush the system within two days, 

and then return it to service. 

(ii) Total coliform. Remove the system 

from service, drain and flush system, 

resample the system, and then return 

the system to service. 


srobinson on DSKHWCL6B1PROD with PROPOSALS
Federal Register / Vol. 76, No. 1 / Monday, January 3, 2011 / Proposed Rules 77 

(iii) Fecal coliform. Remove the 

system from service, drain and flush the 

system, resample the system, and do not 

return the system to service until a 

satisfactory result on the test of the 

samples is obtained from the laboratory. 

(6) Reports. All laboratory reports 

pertaining to the water system of the 

camp car shall be maintained with the 

car. Within 15 days of the receipt of 

such a laboratory report, a copy of the 

report shall be posted for a minimum of 

10 calendar days at a conspicuous 

location within the camp car or cars 

affected for review by occupants. The 

report shall be maintained in the camp 

for the duration of the same connection. 

When the connection is terminated, the 

certification must be submitted 

promptly to a centralized location for 

the railroad and maintained for one year 

from the date the connection was 

terminated. 

§ 228.325 Food service in a camp car or 

separate kitchen or dining facility in a 

camp. 

(a) Sanitary storage. No food or 

beverage may be stored in a toilet room 

or in an area exposed to a toxic material. 

(b) Consumption of food or beverage 

on the premises. No occupant shall be 

allowed to consume a food or beverage 

in a toilet room or in any area exposed 

to a toxic material. 

(c) Kitchens, dining halls, and feeding 

facilities. (1) In each camp car where 

central dining operations are provided 

by the railroad or its contractor(s) or 

subcontractor(s), the food handling 

facilities shall be maintained in a clean 

and sanitary condition. See § 228.323, 

Potable water, generally. 

(i) All surfaces used for food 

preparation shall be disinfected after 

each use. 

(ii) The disinfection process shall 

include removal of chemical 

disinfectants that would adulterate 

foods prepared subsequent to 

disinfection. 

(2) All perishable food shall be stored 

either under refrigeration or in a freezer. 

Refrigeration and freezer facilities shall 

be provided with a means to monitor 

temperature to ensure proper 

temperatures are maintained. The 

temperature of refrigerators shall be 

maintained at 40° Fahrenheit or below; 

the temperature of freezers shall be 

maintained at 0° Fahrenheit or below at 

all times. 

(3) All non-perishable food shall be 

stored to prevent vermin and insect 

infestation. 

(4) All food waste disposal containers 

shall be constructed to prevent vermin 

and insect infestation. 

(i) All food waste disposal containers 

used within a camp car shall be emptied 

after each meal, or at least every four 

hours, whichever period is less. 

(ii) All food waste disposal containers 

used outside a camp car shall be located 

to prevent offensive odors from entering 

the sleeping quarters. 

(5) When separate kitchen or dining 

hall car is provided, there must be a 

closeable door between the living or 

sleeping quarters into a kitchen or 

dining hall car. 

(d) Food handling. (1) All food service 

facilities and operations for occupants 

of a camp car by the railroad or its 

contractor(s) or subcontractor(s) shall be 

carried out in accordance with sound 

hygienic principles. In all places of 

employment where all or part of the 

food service is provided, the food 

dispensed must be wholesome, free 

from spoilage, and must be processed, 

prepared, handled, and stored in such a 

manner as to be protected against 

contamination. See § 228.323, Potable 

water, generally. 

(2) No person with any disease 

communicable through contact with 

food or a food preparation item may be 

employed or permitted to work in the 

preparation, cooking, serving, or other 

handling of food, foodstuffs, or a 

material used therein, in a kitchen or 

dining facility operated in or in 

connection with a camp car. 

§ 228.327 Waste collection and disposal. 

(a) General disposal requirements. All 

sweepings, solid or liquid wastes, 

refuse, and garbage in a camp must be 

removed in such a manner as to avoid 

creating a menace to health and as often 

as necessary or appropriate to maintain 

a sanitary condition. 

(b) General waste receptacles. Any 

exterior receptacle used for putrescible 

solid or liquid waste or refuse in a camp 

shall be so constructed that it does not 

leak and may be thoroughly cleaned and 

maintained in a sanitary condition. 

Such a receptacle must be equipped 

with a solid tight-fitting cover, unless it 

can be maintained in a sanitary 

condition without a cover. This 

requirement does not prohibit the use of 

receptacles designed to permit the 

maintenance of a sanitary condition 

without regard to the aforementioned 

requirements. 

(c) Food waste disposal containers 

provided for the interior of camp cars. 

An adequate number of receptacles 

constructed of smooth, corrosion 

resistant, easily cleanable, or disposable 

materials, must be provided and used 

for the disposal of waste food. 

Receptacles must be provided with a 

solid tight-fitting cover unless sanitary 

conditions can be maintained without 

use of a cover. The number, size, and 

location of such receptacles must 

encourage their use and not result in 

overfilling. They must be emptied 

regularly and maintained in a clean, 

safe, and sanitary condition. 

§ 228.329 Housekeeping. 

(a) A camp car must be kept clean to 

the extent allowed by the nature of the 

work performed by the occupants of the 

camp car. 

(b) To facilitate cleaning, every floor, 

working place, and passageway must be 

kept free from protruding nails, 

splinters, loose boards, and unnecessary 

holes and openings. 

§ 228.331 First aid. 

(a) An adequate first aid kit must be 

maintained and made available for 

occupants of a camp car for the 

emergency treatment of an injured 

person. 

(b) The contents of the first aid kit 

shall be placed in a weatherproof 

container with individual sealed 

packages for each type of item, and shall 

be checked at least weekly when the 

camp car is occupied to ensure that the 

expended items are replaced. The first 

aid kit shall contain, at a minimum, the 

following: 

(1) Two small gauze pads (at least 4×4 

inches); 

(2) Two large gauze pads (at least 

8×10 inches); 

(3) Two adhesive bandages; 

(4) Two triangular bandages; 

(5) One package of gauge roller 

bandage that is at least two inches wide; 

(6) Wound cleaning agent, such as 

sealed moistened towelettes; 

(7) Two elastic wraps; 

(8) Five antibiotic ointment packages; 

(9) Two packets of aspirin; 

(10) Two hydrocortisone ointment 

packets; 

(11) One pair of scissors; 

(12) One set of tweezers; 

(13) One roll of adhesive tape; 

(14) Two pairs of latex gloves; 

(15) One resuscitation mask; and 

(16) One first aid instruction booklet. 

§ 228.333 Repairs. 

A railroad shall, within 72 hours after 

notice from the Federal Railroad 

Administration of noncompliance with 

this subpart, correct each noncomplying condition on the camp car or 

cease use of the camp car as sleeping 

quarters for each occupant. In the event 

that such a condition affects the safety 

or health of an occupant, such as water, 

cooling, heating, or eating facilities, the 

railroad must immediately upon notice 

provide alternative arrangements for 


srobinson on DSKHWCL6B1PROD with PROPOSALS
78 Federal Register / Vol. 76, No. 1 / Monday, January 3, 2011 / Proposed Rules 

1 72 FR 3904; January 26, 2007. 

housing and providing food to the 

employee or MOW worker until the 

condition adverse to the safety or health 

of the occupant(s) is corrected. 

§ 228.335 Electronic recordkeeping. 

(a) Each railroad shall keep records in 

accordance with § 228.323 pertaining to 

its compliance with this subpart. 

Records may be kept either on paper 

forms provided by the railroad or by 

electronic means in a manner that 

conforms with § 228.323. 

(b) Records required to be kept shall 

be made available to the Federal 

Railroad Administration as provided by 

49 U.S.C. 20107. 

Appendix A to Part 228 [Amended] 

14. The last paragraph of the 

discussion headed ‘‘Sleeping Quarters’’ 

in Appendix A to part 228 is removed. 

Appendix C to Part 228 [Removed] 

15. Appendix C to part 228 is 

removed. 

Issued in Washington, DC, on December 

23, 2010. 

Jo Strang, 

Associate Administrator for Railroad Safety/ 

Chief Safety Officer, Federal Railroad 

Administration. 

[FR Doc. 2010–32924 Filed 12–30–10; 8:45 am] 

BILLING CODE 4910–06–P 

DEPARTMENT OF TRANSPORTATION 

National Highway Traffic Safety 

Administration 

49 CFR Part 571 

[Docket No. NHTSA–2007–26851] 

Federal Motor Vehicle Safety Standard; 

Engine Control Module Speed Limiter 

Device 

AGENCY: National Highway Traffic 

Safety Administration, DOT. 

ACTION: Grant of petition for rulemaking. 

SUMMARY: This notice grants two 

separate but similar petitions for 

rulemaking, one submitted by the 

American Trucking Associations and 

the other submitted by Road Safe 

America and a group of nine motor 

carriers (Schneider National, Inc., C.R. 

England, Inc., H.O. Wolding, Inc., ATS 

Intermodal, LLC, DART Transit 

Company, J.B. Hunt Transport, Inc., U.S. 

Xpress, Inc., Covenant Transport, Inc., 

and Jet Express, Inc.) to establish a 

safety standard to require devices that 

would limit the speed of certain heavy 

trucks. Based on information received in 

response to a request for comments,1 the 

National Highway Traffic Safety 

Administration believes that these 

petitions merit further consideration 

through the agency’s rulemaking 

process. In addition, because of the 

overlapping issues addressed in these 

two petitions, the agency will address 

them together in a single rulemaking 

activity. 

The National Highway Traffic Safety 

Administration plans to initiate the 

rulemaking process on this issue with a 

Notice of Proposed Rulemaking in 2012. 

The determination of whether to issue a 

rule will be made in the course of the 

rulemaking proceeding, in accordance 

with statutory criteria. 

FOR FURTHER INFORMATION CONTACT: For 

non-legal issues, you may call Mr. 

Markus Price, Office of Crash Avoidance 

Standards (Phone: 202–366–0098; FAX: 

202–366–7002). For legal issues, you 

may call Mr. Steve Wood, Assistant 

Chief Counsel for Vehicle Rulemaking 

and Harmonization, (Phone: 202–366– 

2992; FAX: 202–366–3820). You may 

send mail to this official at: National 

Highway Traffic Safety Administration, 

1200 New Jersey Avenue, SE., 

Washington, DC 20590. 

SUPPLEMENTARY INFORMATION: 

Background 

On October 20, 2006, the American 

Trucking Associations (ATA) submitted 

a petition to the National Highway 

Traffic Safety Administration (NHTSA) 

requesting that the agency initiate 

rulemaking to amend the Federal motor 

vehicle safety standards to require 

vehicle manufacturers to install a device 

to limit the speed of trucks with a gross 

vehicle weight rating (GVWR) greater 

than 26,000 pounds to no more than 68 

miles per hour (mph). The ATA claimed 

that reducing speed-related crashes 

involving trucks is critical to the safety 

mission of NHTSA, and that these new 

requirements are needed to reduce the 

number and severity of crashes 

involving large trucks. 

On September 8, 2006, Road Safe 

America and a group of nine motor 

carriers also petitioned the agency to 

require that manufacturers install a 

speed limiting device in vehicles with a 

GVWR over 26,000 pounds and that the 

devices be set at not more than 68 mph. 

They also requested that the 

requirements apply to all trucks 

manufactured after 1990. 

Summary of the Petitions 

A detailed discussion of the two 

petitions can be found in the request for 

comments notice. Items specific to 

NHTSA include the following requests 

from ATA: 

1. All newly manufactured trucks 

with a GVWR greater than 26,000 

pounds shall be equipped with an 

electronic control module (ECM) that is 

capable of limiting the maximum speed 

of the vehicle. 

2. The ECM shall be set at no more 

than 68 mph by the manufacturer. 

3. The ECM should be tamperresistant, and should be designed in a 

way that does not allow the speed 

limiter setting on the ECM to be 

adjusted to let the vehicle exceed 68 

mph. 

4. Immediately upon the rule taking 

effect, manufacturers should be 

prohibited from setting the ECM speed 

limiter to a maximum speed of greater 

than 68 mph. However, this requirement 

should not take effect earlier than the 

effective date of a Federal Motor Carrier 

Safety Administration (FMCSA) rule 

prohibiting vehicle owners or operators 

from setting the ECM speed limiter at a 

level greater than 68 mph for newly 

manufactured trucks. 

5. The effective date for installation of 

a tamper-resistant ECM should be 

established with a period of time that 

will allow manufacturers to undergo a 

systems integration process. The change 

to the engine ECM may affect other 

devices on the vehicle; therefore, 

manufacturers need some time to ensure 

that the vehicle functions properly. 

ATA encourages NHTSA to seek 

information from manufacturers to 

determine the length of time necessary 

to come into compliance with the rule. 

6. An appropriate tolerance to 

accommodate variations in 

manufacturing, wear, and maintenance 

throughout the lifecycle of the vehicle. 

For example, the same diameter heavy 

truck tire but with a different width and 

sidewall aspect ratio may have a 15–20 

revolutions per mile difference which 

will affect the actual top speed of the 

truck with a governed speed of 68 mph. 

ATA recommends that any rulemaking 

pertaining to this petition reference SAE 

J678, J862, and J1226 Recommended 

Practices. 

In addition to items similar to those in 

ATA’s petition, Road Safe America also 

included an item on retrofitting in its 

petition: 

1. Every class 7 and class 8 

commercial motor vehicle manufactured 

after the year 1990 shall be equipped 

with an electronic engine speed 

governor. 

Summary of Comments 

On January 26, 2007, NHTSA and 

FMCSA published a joint Request for 

Comments Notice in the Federal 

Register soliciting public comments on 


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