[Federal Register Volume 75, Number 192 (Tuesday, October 5, 2010)]
[Proposed Rules]
[Pages 61386-61410]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-24732]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 227

[Docket No. FRA-2009-0044, Notice No. 1]
RIN 2130-AC14


Emergency Escape Breathing Apparatus Standards

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

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: FRA is proposing to amend its regulations related to 
occupational safety and health in locomotive cabs in three ways. First 
and foremost, pursuant to a 2008 Congressional mandate, FRA is 
proposing to include requirements that railroads provide an appropriate 
atmosphere-supplying emergency escape breathing apparatus (EEBA) to the 
members of the train crew and certain other employees while they are 
occupying the locomotive cab of a freight train transporting a 
hazardous material that would pose an inhalation hazard in the event of 
release during an accident. Second, FRA is proposing to reflect the 
additional subject matter by changing the name of the part from 
``Occupational Noise Exposure'' to ``Occupational Safety and Health in 
the Locomotive Cab'' and by making other conforming amendments. Third, 
FRA is proposing to remove the provision on the preemptive effect of 
the requirements as unnecessary.

DATES: Written comments must be received by December 6, 2010. Comments 
received after that date will be considered to the extent possible 
without incurring additional delay or expense.
    FRA anticipates being able to resolve this rulemaking without a 
public, oral hearing. However, if FRA receives a specific request for a 
public, oral hearing prior to December 6, 2010, 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: You may submit comments related to Docket No. FRA-2009-0044, 
Notice No. 1, 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), [email protected] or Stephen N. Gordon, Trial 
Attorney, Office of Chief Counsel, FRA, 1200 New Jersey Avenue, SE., 
Mail Stop 10, Washington, DC 20590 (telephone: (202) 493-6001), 
[email protected].

SUPPLEMENTARY INFORMATION: 

Abbreviations and Terms Used in This Document

AAR--Association of American Railroads
BNSF--BNSF Railway Company
BLET--Brotherhood of Locomotive Engineers and Trainmen
CFR--Code of Federal Regulations
DOT--U.S. Department of Transportation
EEBA--emergency escape breathing apparatus
FRA--Federal Railroad Administration
FRSA--the former Federal Railroad Safety Act of 1970, repealed and 
reenacted as positive law at 49 U.S.C 20106
IDLH--immediate danger to life or health or immediately dangerous to 
life or health
ISO--International Organization for Standardization
LBIA--the former Locomotive (Boiler) Inspection Act, repealed and 
reenacted as positive law in 49 U.S.C. 20701-20703
NIOSH--National Institute for Occupational Safety and Health
NPRM--notice of proposed rulemaking
NS--Norfolk Southern Railway Company
NTSB--National Transportation Safety Board
OSHA--Occupational Safety and Health Administration
PHMSA--Pipeline and Hazardous Materials Safety Administration
PIH material--poison inhalation hazard material
ppm--parts per million
RCO--remote control operator
RSIA--Rail Safety Improvement Act of 2008, Public Law 110-432, 
Division A
SCBA--self-contained breathing apparatus
SBA--Small Business Administration
T&E employees--train and engine service employees

[[Page 61387]]

UP--Union Pacific Railroad Company
UTU--United Transportation Union

Table of Contents for Supplementary Information

I. Statutory Background and More Detailed Summary of Proposed 
Regulation
II. Regulatory Background
III. Accident History
IV. FRA-Sponsored Study
V. Selection of the Appropriate EEBA by Railroads
VI. Provision of EEBAs to Covered Employees
VII. Information and Recommendations Provided by the Railroad 
Industry and Railroad Labor Organizations After the Study
VIII. Section-by-Section Analysis
IX. Regulatory Impact
    A. Executive Order 12866 and DOT Regulatory Policies and 
Procedures
    B. Regulatory Flexibility Determination
    C. Federalism
    D. International Trade Impact Assessment
    E. Paperwork Reduction Act
    F. Compliance With the Unfunded Mandates Reform Act of 1995
    G. Environmental Assessment
    H. Energy Impact
    I. Privacy Act

I. Statutory Background and More Detailed Summary of Proposed 
Regulation

    The proposed regulation governing the provision of EEBAs is being 
promulgated primarily to satisfy the requirements of section 413 of the 
RSIA, Public Law 110-432, Div. A, 122 Stat. 4848, October 16, 2008 (49 
U.S.C. 20166). The RSIA mandates that the Secretary of Transportation 
(Secretary) adopt regulations requiring railroads to provide EEBAs for 
the train crews in the locomotive cabs of any freight train 
transporting a hazardous material in commerce that would present an 
inhalation hazard in the event of a release. Specifically, the statute 
instructs the Secretary to prescribe regulations requiring railroads 
to--(1) Ensure that EEBAs affording suitable ``head and neck coverage 
with respiratory protection'' are provided ``for all crewmembers'' in a 
locomotive cab on a freight train transporting ``hazardous materials 
that would pose an inhalation hazard in the event of a release''; (2) 
provide a place for convenient storage of EEBAs in the locomotive that 
will allow ``crewmembers to access such apparatus quickly''; (3) 
maintain EEBAs ``in proper working condition''; and (4) provide 
crewmembers with appropriate instruction in the use of EEBAs. The 
Secretary has delegated the responsibility to carry out his 
responsibilities under this section of the RSIA to the Administrator of 
FRA. 74 FR 26981, 26982, June 5, 2009, 49 CFR 1.49(oo). In addition, 
this proposed regulation is issued under the authority of 49 U.S.C. 
20103 and 49 U.S.C. 20701-20703, as delegated to the Administrator of 
FRA pursuant to 49 CFR 1.49(c) and (m).
    If adopted, proposed new subpart C of 49 CFR part 227 would require 
any railroad transporting a hazardous material that would pose an 
inhalation hazard if released during an accident to provide an 
appropriate atmosphere-supplying EEBA to train employees, direct 
supervisors of those train employees, deadheading employees, and, at 
the discretion of the railroad, other employees designated by the 
railroad in writing. FRA's concern in proposing the requirement for the 
provision of EEBAs is focused on inhalation hazards that can occur by 
one of two ways: either by displacement of oxygen in the atmosphere or 
by poisoning. Termed ``asphyxiants and PIH materials'' in the proposed 
regulation, the covered materials are flammable gases; non-flammable, 
nonpoisonous compressed gases; gases poisonous by inhalation; and 
certain other materials classified as poisonous by inhalation within 
the meaning of the PHMSA's Hazardous Materials Regulations. See 49 CFR 
parts 171-180. The EEBAs are intended to protect these employees from 
the risk of exposure to such hazardous materials during the period 
while the employees are located in the locomotive cab or escaping from 
the locomotive cab.
    The proposed regulation governing EEBAs would also require 
railroads that transport an asphyxiant or a PIH material on the general 
railroad system of transportation to establish and carry out a series 
of programs for the following purposes: Selection, procurement, and 
provision of the devices; inspection, maintenance, and replacement of 
the devices; and instruction of employees in the use of the devices. 
Railroads would be required to identify individual employees or 
positions to be placed in their general EEBA programs so that a 
sufficient number of EEBAs are available and to ensure that the 
identified employees or incumbents of the identified positions know how 
to use the devices. The proposed regulation would require that 
convenient storage be provided for EEBAs in the locomotive to enable 
employees to access the apparatus quickly in the event of a release of 
a hazardous material that poses an inhalation hazard.
    Because the new proposed regulation would be placed in 49 CFR part 
227, FRA also proposes to make conforming changes, minor corrections, 
and updates to the existing provisions of part 227. Finally, FRA 
proposes to remove the provision at 49 CFR 227.7 on the preemptive 
effect of that part. After considering revising the section to reflect 
the preemptive effect of 49 U.S.C. 20701-20703, FRA has decided to 
eliminate the section as duplicative of statutory law and case law.

II. Regulatory Background

    Hazardous materials that pose an inhalation hazard (termed 
``asphyxiants and PIH materials'' in the proposed regulation) fall into 
two, sometimes overlapping categories defined in the Hazardous 
Materials Regulations. In particular, asphyxiants and PIH materials are 
(1) the gases classified by 49 CFR 173.115 as ``Class 2, Division 2.1 
(Flammable gas)''; Class 2, ``Division 2.2 (non-flammable, nonpoisonous 
compressed gas--including compressed gas, liquefied gas, pressurized 
cryogenic gas, compressed gas in solution, asphyxiant gas and oxidizing 
gas)''; or Class 2, ``Division 2.3 (Gas poisonous by inhalation)'' and 
(2) the gases, liquids, and other materials defined as a ``material 
poisonous by inhalation'' by PHMSA's Hazardous Materials Regulations at 
49 CFR 171.8. Under 49 CFR 171.8--

    ``[m]aterial poisonous by inhalation'' means--
    (1) A gas meeting the defining criteria in Sec.  173.115(c) of 
this subchapter [i.e., Division 2.3 (Gas poisonous by inhalation)] 
and assigned to Hazard Zone A, B, C, or D in accordance with Sec.  
173.116(a) of this subchapter;
    (2) A liquid (other than as a mist) meeting the defining 
criteria in Sec.  173.132(a)(1)(iii) of this subchapter [regarding 
inhalation toxicity] and assigned to Hazard Zone A or B in 
accordance with Sec.  173.133(a) of this subchapter; or
    (3) Any material identified as an inhalation hazard by a special 
provision in column 7 of the Sec.  172.101 table.

    Asphyxiants and PIH materials that are regularly carried by 
railroads include, for example, carbon dioxide, chlorine gas, and 
anhydrous ammonia. Such commodities should be easily identifiable for 
train crews, because a ``rail car transporting any quantity of a 
hazardous material (including either a load or the residue \1\ of one 
of these covered materials) must be placarded on each side and each 
end'' pursuant to the requirements of 49 CFR 172.504 with

[[Page 61388]]

certain specified placards. A car containing a Class 2, Division 2.1 
material must have ``FLAMMABLE GAS'' placards. See 49 CFR 172.532. 
Class 2, Division 2.2 materials must have ``NON-FLAMMABLE GAS'' 
placards. See 49 CFR 172.528. A car transporting a Class 2, Division 
2.3 material, must have ``POISON GAS'' placards. See 49 CFR 172.540. 
Meanwhile, a car carrying any of the subset of Class 6, Division 6.1 
materials that is a ``material poisonous by inhalation'' must have 
``POISON INHALATION HAZARD'' placards, except that ``[f]or domestic 
transportation, a POISON INHALATION HAZARD placard is not required on a 
transport vehicle [including a rail car] or freight container that is 
already placarded with the POISON GAS placard.'' \2\ See 49 CFR 172.555 
and 49 CFR 172.504(f)(8). In summary, when a train crewmember observes 
a car placarded FLAMMABLE GAS, NON-FLAMMABLE GAS, POISON GAS, or POISON 
INHALATION HAZARD while the car is part of his or her train, the 
crewmember will know that EEBAs must be provided in the locomotive cab 
prior to the train beginning its movements.
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    \1\ ``Residue means the hazardous material remaining in a 
packaging, including a tank car, after its contents have been 
unloaded to the maximum extent practicable and before the packaging 
is either refilled or cleaned of hazardous material and purged to 
remove any hazardous vapors.'' 49 CFR 171.8.
    \2\ Class 6, Division 6.1 materials other than material 
poisonous by inhalation must be placarded ``POISON.'' See 49 CFR 
172.504, Table 2, and section on placard design at 49 CFR 172.554.
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III. Accident History

    The historical data suggest that crew injuries and fatalities 
related to the catastrophic release of a rail shipment (i.e., release 
of all or nearly all of a rail shipment, usually a loaded rail tank car 
or a placarded empty rail tank car, which contains a residue of the 
original shipment) of an asphyxiant or a PIH material are rare; 
however, such incidents have the potential to be deadly. For example, 
in the 42 years between 1965 (the year for which the earliest data are 
available) and 2006, there were approximately 2.2 million tank car 
shipments of chlorine. Out of these 2.2 million tank car shipments, 
there were only 788 accidents (0.00036 of all tank car chlorine 
shipments), 11 instances where there was catastrophic loss (i.e., a 
loss of all or nearly all) of the chlorine lading (0.000005 of all tank 
car chlorine shipments), and 4 of these incidents resulted in 
fatalities (0.0000018 of all tank car chlorine shipments). See Written 
Statement of Joseph H. Boardman, Administrator, FRA, before the 
Committee on Transportation and Infrastructure, United States House of 
Representatives, June 13, 2006. Of the four incidents with fatalities, 
two resulted in the fatalities of crewmembers. One occurred in Macdona, 
Texas in June of 2004, and the other in Graniteville, South Carolina in 
January of 2005. These two fatalities involving crewmembers will be 
discussed below.
    While even one death due to inhalation of an asphyxiant or a PIH 
material is too many, it is important to recognize that there have been 
dramatic improvements in the safety performance of rail operations 
since 1970. Accidents and casualty rates declined significantly during 
the 1970s, 1980s, and 1990s, with the past decade experiencing a 
leveling off of safety performance. These improvements in rail safety 
have resulted in the safer transportation of hazardous materials. The 
AAR has found a significant decrease in hazardous material incidents 
since 1980. According to AAR, hazardous material incident release rates 
are down 71 percent from 1980 and 56 percent from 1990, while hazardous 
material accident rates are down 90 percent from 1980 and 49 percent 
from 1990.\3\ Not surprisingly, there also has been a corresponding 
reduction in the number of accidents with a hazardous material release. 
Such incidents have fallen 76 percent since 1980 and 17 percent since 
1990. See Robert Fronczak, ``U.S. Railroad Safety Statistics and 
Trends,'' AAR, May 2005.
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    \3\ AAR data are used here because they permit longer term 
historical comparison of the numbers and rates of hazardous 
materials accidents and hazardous material incidents involving rail 
transportation of hazardous material than do the analogous data 
currently available from FRA's sister agency, PHMSA. PHMSA changed 
the definitions of what must be reported to that agency on those 
matters after the year 1998. As a result, PHMSA's data on hazardous 
materials accidents and incidents are not necessarily homogenous in 
nature and do not permit ready comparisons over as long a period of 
time.
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    FRA has analyzed the casualty data in its possession for on-duty 
employees in train and engine service (T&E) for the 10-year period from 
1997 to 2006. During this time frame, a total of 25,941 non-passenger 
T&E on-duty casualties were reported, with 25,904 injuries and 37 
fatalities. Table 1, below, examines those casualties resulting from 
collisions, derailments, and inhalation.

                                                Table 1--Non-Passenger T&E Employees--On-Duty Casualties
                                                [Source: FRA Safety Database--4.02 Casualty Data Reports]
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                                                     Total        Collision      Collision      Derailment     Derailment     Inhalation     Inhalation
                 Reporting year                    casualties     casualties     fatalities     casualties     fatalities     casualties     fatalities
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1997...........................................        2,834             96              8             38              0             58              0
1998...........................................        3,004             86              1             37              0             86              0
1999...........................................        3,211             76              7             54              1             73              0
2000...........................................        3,169             82              2             44              0             63              0
2001...........................................        2,872             86              4             50              0             68              0
2002...........................................        2,405             84              2             46              1             50              0
2003...........................................        2,281             75              2             44              1             63              0
2004...........................................        2,211             73              5             55              0             70              1
2005...........................................        2,102             84              0             27              0             69              1
2006...........................................        1,852             60              1             28              0             64              0
10-year Average per Year.......................        2,594.1           80.2            3.2           42.3            0.3           66.4            0.2
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    The table includes casualties from derailments and collisions 
because derailments and collisions represent the most likely events 
leading to a catastrophic hazardous material release with T&E personnel 
present. Similarly, these events also have the most potential for 
property damage or injury or death to members of the general public 
caused by the release of a hazardous material that renders an 
unprotected crew ineffective. As can be seen from the table, the 
overwhelming majority of injuries to T&E personnel are not attributable 
to the causes of inhalation, collision, or derailment. The 10-year 
average of about 193 T&E casualties (injured and killed) per year

[[Page 61389]]

due to inhalation, collision or derailment [80.2 + 3.2 + 42.3 + 0.3 + 
66.4 + 0.2] represents just 7.4 percent of the average number of 2,594 
T&E on-duty casualties per year during the same period. When just 
inhalation casualties are considered [66.4 + 0.2], the number falls to 
2.6 percent. Moreover, based on a review of the inhalation casualty 
data available to FRA, it appears that a large majority of the 
inhalation casualties identified involve (a) employees that were not 
performing train operations or (b) environments that fall outside the 
congressional mandate.
    Moreover, the information compiled in Table 1 suggests that 
collisions are the most life-threatening event experienced by T&E 
employees. Of the 37 T&E fatalities identified in the table, 86.4 
percent (32 out of 37) involved a collision. This compares to 8.1 
percent (3 out of 37) involving a derailment. Only 5.4 percent (2 out 
of 37) of T&E employee fatalities resulted from inhalation.
    To get a better understanding about the relative danger of 
inhalation fatalities, the number of deaths resulting from inhalation 
of a hazardous material can also be compared to the average yearly 
train-miles and number of hazardous material shipments. For the period 
1997-2006, the average for annual train-miles was 734.6 million. The 2 
on-duty T&E employee deaths resulting from the inhalation of hazardous 
material therefore can be expressed as a rate of 1 death per 3.67 
billion train-miles. Over the same period, this equates to 1 fatality 
per 5.7 million shipments of the top 125 hazardous materials. See 
``Annual Report of Hazardous Materials Transported by Rail, Calendar 
Year 2006,'' AAR, Bureau of Explosives, Report BOE 06-1, October 2007. 
The two inhalation fatalities in Table 1 represent the only known T&E 
employee deaths resulting from a hazardous material release. These 
inhalation casualties, both involving the release of chlorine, arose 
out of two separate incidents. The first occurred in 2004 near Macdona, 
Texas. The second occurred in 2005 in Graniteville, South Carolina. 
Each is discussed in turn.
    The incident near Macdona, Texas occurred on June 28, 2004. ``A 
westbound Union Pacific Railroad (UP) freight train traveling on the 
same main line track as an eastbound BNSF Railway Company (BNSF) 
freight train struck the midpoint of the 123-car BNSF train as the 
eastbound train was leaving the main line to enter a parallel siding. 
The accident occurred at the west end of the rail siding at Macdona, 
Texas, on the UP's San Antonio Service Unit. The collision derailed the 
4 locomotive units and the first 19 cars of the UP train as well as 17 
cars of the BNSF train. As a result of the derailment and pileup of 
railcars, the 16th car of the UP train, a pressure tank car loaded with 
liquefied chlorine, was punctured. Chlorine escaping from the punctured 
car immediately vaporized into a cloud of chlorine gas that engulfed 
the accident area to a radius of at least 700 feet before drifting away 
from the site. Three persons, including the conductor of the UP train 
and two local residents, died as a result of chlorine gas inhalation.'' 
See NTSB's report on the accident, ``Collision of Union Pacific 
Railroad Train MHOTU-23 With BNSF Railway Company Train MEAP-TUL-126-D 
With Subsequent Derailment and Hazardous Materials Release, Macdona, 
Texas, June 28, 2004,'' Railroad Accident Report NTSB/RAR-06/03, 
Washington, DC.
    The Graniteville, South Carolina incident occurred on January 6, 
2005, when a NS freight train encountered a switch that had been 
improperly lined. The improperly lined switch diverted the train from 
the main line onto an industry track. Once on the industry track, the 
train struck an unoccupied, parked train. The collision resulted in the 
derailment of two locomotives and 16 freight cars on the diverted 
train, as well as the locomotive and one of the two cars of the parked 
train. There were three tank cars containing chlorine among the 
derailed cars on the diverted train. One of the cars containing 
chlorine was breached causing a release of chlorine gas. As a result, 
``the train engineer and eight other people died as a result of 
chlorine gas inhalation.'' See NTSB's report on the accident, 
``Collision of Norfolk Southern Freight Train 192 With Standing Norfolk 
Southern Local Train P22 With Subsequent Hazardous Materials Release at 
Graniteville, South Carolina, January 6, 2005,'' Railroad Accident 
Report NTSB RAR-05/04, Washington, DC.
    Following the Macdona and Graniteville fatalities, the NTSB issued 
a recommendation that FRA--

    [d]etermine the most effective methods of providing emergency 
escape breathing apparatus for all crewmembers on freight trains 
carrying hazardous materials that would pose an inhalation hazard in 
the event of unintentional release, and then require railroads to 
provide these breathing apparatus to their crewmembers along with 
appropriate training.

(R-05-17). FRA responded to the NTSB recommendation by initiating a 
study of potential emergency escape breathing devices for use by 
crewmembers on freight trains transporting hazardous material that 
would pose an inhalation hazard if released.

IV. FRA-Sponsored Study

    Commissioned by FRA and in cooperation with the railroad industry 
and railroad labor, the study of EEBAs compiled factual information, 
performed technical, risk, and economic analyses, and made 
recommendations on ``the use of [EEBAs] by train crews who may have 
exposure to hazardous materials [that] would pose an inhalation hazard 
in the event of unintentional release.'' See ``Emergency Escape 
Breathing Apparatus,'' FRA Office of Research and Development, Final 
Report, May 2009, which is posted at http://www.fra.dot.gov/downloads/Research/ord0911.pdf and included in the docket of this rulemaking. 
Part of this preamble to the NPRM draws from the study; however, on 
further consideration of the issues involved and on further 
consultation with representatives of the railroad industry and railroad 
labor (as discussed under ``Section V,'' below), FRA has come to 
different conclusions on a number of matters. These matters include the 
minimum breathing time that EEBAs should provide, the analysis of 
different methods of distribution of the devices, and the costs and 
benefits of various EEBA alternatives.

V. Selection of the Appropriate EEBA by Railroads

    As previously discussed, section 413 of the RSIA requires the 
Secretary to promulgate regulations requiring railroad carriers--

to provide emergency escape breathing apparatus suitable to provide 
head and neck coverage with respiratory protection for all 
crewmembers in locomotive cabs on freight trains carrying hazardous 
materials that would pose an inhalation hazard in the event of 
release. * * *

49 U.S.C. 20166.

    EEBAs fall within the broad category of ``respirators.'' FRA has 
examined EEBA technologies to determine the type of EEBA best suited to 
satisfy this rulemaking mandate of the RSIA. Respirators generally fall 
into two categories: Air-purifying respirators and atmosphere-supplying 
respirators. Air-purifying respirators remove specific air contaminants 
by passing ambient air through an air-purifying element, such as an 
air-purifying filter, cartridge, or canister. Atmosphere-supplying 
respirators supply breathing air from a source independent from the 
ambient atmosphere. Types of atmosphere-supplying respirators include 
airline supplied-air respirators and SCBA units.

[[Page 61390]]

Based on the factors presented, FRA proposes requiring an atmosphere-
supplying respirator that provides adequate head and neck protection as 
well as giving sufficient time for its user to escape an IDLH 
atmosphere.
    Two main organizations have promulgated performance standards 
governing the use and maintenance of respirators. NIOSH, located within 
the Centers for Disease Control and Prevention of the U.S. Department 
of Health and Human Services, has worked with government and industry 
partners to develop certification standards for respirators. The NIOSH 
regulations codified at 42 CFR part 84 establish the requirements for 
NIOSH-certification of respirator equipment.\4\ NIOSH also has 
developed information on safe levels of exposure to toxic materials and 
harmful physical agents and issued recommendations for respirator use.
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    \4\ As of the date of publication for this NPRM, NIOSH is in the 
process of amending its regulations in 42 CFR part 84--subpart H, 
which are applicable to closed circuit respirators. See 73 FR 75207, 
December 10, 2008, re Docket No. HHS-OS-2009-0025 at http://www.regulations.gov. The proposed NIOSH regulations would be 
applicable to mine workers, but NIOSH provides that once the final 
rule is published it would be used to certify respirators in other 
work environments where escape respirators are supplied. See also 74 
FR 23815, May 21, 2009, which reopened the comment period until 
October 9, 2009.
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    A second entity that has established performance standards for 
respirator maintenance and use is the ISO. The ISO is a network of 
national standards institutes in 162 countries, including the United 
States through the American National Standards Institute. ISO develops 
international standards to assist in ensuring the safe performance of a 
wide range of EEBAs. While the ISO is not a government organization, it 
works to establish performance standards that have scientific and 
technological bases while ensuring that products falling within its 
purview are safe and reliable for consumers. The organization has 
promulgated ISO 23269-1:2008(E), ``Ships and marine technology--
Breathing apparatus for ships--Part 1: Emergency escape breathing 
devices (EEBD) for shipboard use.'' While ISO 23269-1 is directed 
towards EEBAs on ships and marine technology, FRA anticipates that this 
ISO standard can be reasonably transferred to the railroad environment. 
ISO 23269-1 establishes performance specifications for EEBAs that are 
intended to provide air or oxygen to a user to facilitate escape from 
accommodation and machinery spaces, similar to a locomotive cab, with a 
hazardous atmosphere. However, FRA believes that the minimum breathing 
capacity allowed by ISO 23269-1, which is 10 minutes, is insufficient 
for the anticipated use in a railroad environment. As a result, this 
NPRM proposes a minimum breathing capacity of 15 minutes, which would 
be equally applicable to EEBAs certified under the requirements of 
NIOSH. See 42 CFR part 84, or ISO 23269-1.
    Additionally, OSHA, located within the U.S. Department of Labor, is 
responsible for developing and enforcing general workplace safety and 
health regulations related to respiratory protection. In furtherance of 
this responsibility, OSHA has promulgated extensive regulations 
governing the use of respirators of all types, including emergency 
escape devices. See 29 CFR 1910.134. In drafting this NPRM, FRA has 
considered the requirements of both Federal agencies as well as ISO to 
assist in determining the possible types of EEBAs that may be used by 
railroad employees whom FRA proposes to cover under this rule.
    A comprehensive selection process for respirators has been 
developed by NIOSH. See http://www.cdc.gov/niosh/docs/2005-100/pdfs/05-100.pdf. For purposes of EEBAs deployed in the railroad environment, 
the two major NIOSH factors to consider in selecting a respirator are 
to determine whether the respirator is intended for (1) use in an 
oxygen-deficient atmosphere (i.e., less than 19.5 percent oxygen 
(O2)) and (2) use in entry into, or escape from, unknown or 
IDLH atmospheres (e.g., an emergency situation).
    FRA's investigation into the Graniteville accident found that the 
concentration of the toxic chlorine cloud over the accident site area 
was estimated to be approximately 2,000 ppm. See R. L. Buckley, 
Detailed Numerical Simulation of the Graniteville Train Collision, 
Savannah River National Laboratory, Report WSRC-MS-2005-00635 October 
2005. OSHA classifies chlorine as having an IDLH level of 10 ppm. FRA 
roughly estimated the distance between the final resting spot of the 
breached chlorine tank car in relation to the train crew, as well as 
the wind speed and size of breach, to determine that the chlorine plume 
reached the crew within two minutes. The coroner's report on the eight 
civilian fatalities in the Graniteville incident indicated that the 
primary cause of death was asphyxia, or lack of oxygen. The coroner 
listed the engineer's primary cause of death as lactic acidosis. 
Exposure to chlorine gas was attributed as the secondary cause of all 
deaths in the incident. Under the circumstances presented, it appears 
that both NIOSH selection criteria were met. There may have been an 
oxygen-deficient atmosphere, and there certainly was toxic-gas 
concentration exceeding IDLH levels.
    The Graniteville accident demonstrated that railroad hazardous 
material incidents (meaning collision, derailment, or other train 
accident) involving the catastrophic loss of certain asphyxiants and 
PIH materials have the potential to release IDLH concentrations and/or 
displace oxygen very quickly without the crew's knowledge. In such 
circumstances, the crew may need to respond to an incident by donning 
their EEBAs even before assessing the damage caused by an accident. 
Considering the variables associated with the transportation of 
hazardous materials via rail and the potential hazards that exist, FRA 
proposes, based on the NIOSH selection criteria, to require railroad to 
provide an escape-type respirator.
    The single function of escape-type EEBAs is to allow sufficient 
time for an individual working in a normally safe environment to escape 
from suddenly occurring respiratory hazards. Given this function, the 
selection of the device does not rely on assigned protection factors 
designated by OSHA.\5\ Instead, these escape-type respirators are 
selected based on a consideration of the time needed to escape in the 
event of IDLH or oxygen-deficient conditions.
---------------------------------------------------------------------------

    \5\ ``Assigned protection factor'' means the level of safety 
that a respirator or a class of respirators is expected to provide 
to employees. Assigned protection factors were developed by OSHA to 
designate to employers the proper type of device that is required in 
selecting a respirator. According to OSHA, assigned protection 
factors are not applicable to respirators used solely for escape.
---------------------------------------------------------------------------

    Pursuant to statutory requirements, FRA's proposed regulation would 
require the provision of a device with head and neck coverage. Escape-
type SCBA devices are commonly used with full-face pieces or hoods. 
Such devices are usually rated from 3- to 60-minute units depending on 
the supply of air.
    The following two types of atmosphere-supplying SCBA would satisfy 
the protection requirements of this proposed regulation:
     Open Circuit SCBA. These are typically classified as 
positive pressure, open circuit systems whereby the user receives 
(inhales) clean air with 21 percent O2 from a compressed air 
cylinder worn with a harness on the back. The user's exhaled breath 
contains significant amounts (15 percent) of unused oxygen that is 
vented to atmosphere. Because much of the user's exhaled breath vents 
to atmosphere, the size of open circuit systems is larger than closed 
circuit systems. Open

[[Page 61391]]

circuit SCBA systems may employ full face masks or hoods and typically 
require an airtight seal against the head, face, or aural/nasal area.
     Rebreathers. These can be positive-pressure or negative-
pressure systems. Classified as closed circuit O2 systems, 
re-breathers perform as their name implies. The user re-breathes his or 
her breath. A chemical scrubber removes the carbon dioxide 
(CO2) from the user's breath and makes up metabolized 
O2 from a small bottle of compressed 100-percent 
O2. Because the user is re-breathing his or her exhaled air 
containing 15 percent oxygen, a re-breather is four times more 
efficient than an open circuit system. As a result, such systems are 
capable of either lasting much longer than open circuit systems (if 
size were comparable) or providing the same breathing duration as an 
open circuit system but in a smaller package. Re-breathers may be 
employed with full-face masks or hoods. Negative pressure re-breathers 
do not require a tight seal.
    First responders (such as firefighters) commonly use open circuit 
positive pressure SCBA systems for entering the scene of an emergency 
event. However, such devices may not be best situated to the railroad 
environment. In addition to being heavy and cumbersome from 
incorporating a large compressed air cylinder mounted to a harness, 
they also commonly incorporate use of a full-face piece. Depending on 
the program developed by each railroad, the incorporation of a full-
face piece may be a logistically and economically difficult 
undertaking. To be effective, a full-face piece requires an airtight 
seal around the user's face, which means that each user must be 
personally fitted for the device. It also means the user must be 
cleanly shaven or otherwise free of excessive facial hair. The 
enforcement of such a requirement would be difficult at best.
    FRA believes that hoods provide a useful alternative to full-face 
masks while protecting the face and neck. Hoods are universal fitting 
devices and can be used with open and closed circuit SCBAs. Because 
they are universal fitting, hoods do not require personally fitting the 
user, and hoods operate efficiently regardless of most eyewear, facial 
features, or hair. Significantly, hoods also allow the wearer to 
communicate while using the SCBA.
    Experience has shown that a plume of hazardous material can travel 
quickly. As a result, it is vitally important that the train crew has 
adequate breathing time available to allow each member to move a 
significant distance from the site while protected from the ambient 
atmosphere. Because such incidents will often result from a collision, 
as was the case in Macdona and Graniteville, consideration should be 
given to those situations where additional time may be used to assist 
or extricate fellow crewmembers that may be hurt or trapped. For 
example, if it takes 10 minutes to assist a fellow crewmember and each 
is wearing a 15-minute open circuit respirator, each crewmember is left 
with 5 minutes to escape from any plume that may be present. Moreover, 
often individuals will have a tendency to over-breathe in stressful 
situations, which will shorten the breathing time available in a 
respirator. In selecting an EEBA with sufficient breathing time, each 
railroad should take into consideration these factors and others that 
contribute to the ``Murphy's Law'' effects of accidents such as an 
incident occurring at night or in tight terrain. As a result, FRA 
proposes a 15-minute minimum breathing capacity for an EEBA provided to 
a covered employee. Further, FRA encourages railroads to consider EEBAs 
with a longer breathing capacity, to provide an extra margin for escape 
under stressful circumstances.

VI. Provision of EEBAs to Covered Employees

    The proposed regulation does not specify a particular method by 
which a railroad is to provide EEBAs to the employees that Congress 
intended to cover. See discussion of covered employees at Section-by-
Section Analysis of proposed Sec. Sec.  227.201 and 227.211, below. FRA 
recognizes that there are differing methods for effectively 
distributing suitable EEBAs among a railroad's covered employees or its 
locomotive fleet or both. Each of these options has advantages and 
disadvantages. Given these factors, FRA believes that it is best to 
allow each railroad to choose the method of distribution that works for 
it as long as--(1) covered employees are provided with a suitable 
device while they are in the locomotive cab of a freight train 
transporting an asphyxiant or a PIH material and (2) transportation of 
a covered hazardous material is not unduly delayed, particularly where 
the covered train (or a locomotive intended to be used to haul a 
covered train) is interchanged from one railroad to another. See V. 
Information and Recommendations Provided by the Railroad Industry and 
Railroad Labor Organizations after the Study, for relevant remarks.
    Under the proposed regulation, EEBAs may be treated as part of an 
employee's permanently issued items, similar to eye protection, radios, 
and lanterns. This would allow railroads to permanently issue an EEBA 
to each potentially covered employee (e.g., for a freight railroad that 
regularly hauls one or more asphyxiants or PIH materials, possibly all 
of its train employees). The device would be in the user's control at 
all times, and each individual would be responsible for having the 
device in his or her possession. The carrier would still be responsible 
to ensure the state of the equipment through an inspection program; 
however, the company would be relieved of most of the responsibilities 
for EEBA management. Theoretically, this option would tend to result in 
better cared for equipment and lower replacement costs. Moreover, 
personal assignment allows for customization of the EEBA. Negative 
aspects of treating EEBAs as a permanently issued item include 
difficulty in monitoring the EEBA status and ensuring that the EEBA is 
with the user at all times that it is required to be available. 
Additionally, permanently issuing the EEBA would add to an already 
lengthy list of items expected to be carried by train employees.
    Alternatively, EEBAs may also be permanently assigned to an 
individual as a dedicated personal item that would be issued at the 
start of each shift and recovered at the end of each shift as part of 
the clock-in/clock-out process. This method allows for customization 
and allows the EEBA to be with the user at all times that the user is 
on duty, while supporting centralized inspection and maintenance. 
However, the railroad may experience greater costs due to the increased 
size of its EEBA inventory since all train employees that have the 
potential to work in the locomotive cab of a freight train transporting 
an asphyxiant or a PIH material would require stocked EEBAs. This 
alternative may also create difficulties in the provision of EEBAs if 
the train employees who must have access to the EEBAs have more than 
one on-duty location.
    The third option is to treat EEBAs as ``pool'' items not assigned 
to a specific individual that are issued randomly at the start of each 
shift and recovered at the end of each shift as part of the clock-in/
clock-out process. This option supports centralized inspection and 
maintenance while minimizing number of EEBAs required. Likewise, the 
EEBA would be with the user throughout his or her entire shift. 
However, this system may have hidden costs. The railroad will likely 
lose the benefits of ``ownership'' if EEBAs are treated as common 
property. This system also limits the railroad to use of generic, one-

[[Page 61392]]

size-fits-all EEBAs and increases the management burden for tracking 
and recovery of EEBAs.
    A fourth option would be to have EEBAs permanently mounted in each 
locomotive cab in the railroad's fleet. This method would ensure that 
consists transported by the railroad that include an asphyxiant or a 
PIH material are always adequately equipped, while supporting 
centralized inspection and maintenance. The negative aspects of 
permanently mounting the EEBA selected by the railroad in the cabs of 
the railroad's locomotive fleet include the increased size of the 
railroad's EEBA inventory if non-covered consists would transport the 
EEBAs, increased management burden for tracking/recovery, increased 
management burden for item inspection and maintenance, potential lack 
of flexibility as EEBAs must be provided for worst-case crewing 
(including possible supernumerary personnel such as deadheading 
employees), and unavailability of customized EEBAs.
    As will be discussed in V. Information and Recommendations Provided 
by the Railroad Industry and Railroad Labor Organizations After the 
Study, AAR has proposed that Class I railroads interchanging 
locomotives with each other provide the same type of EEBA using the 
method of equipping the locomotive, which would expedite interchange 
between two Class I railroads. However, the option of permanently 
mounting within each locomotive an EEBA selected by that railroad for 
its program could create delays at interchange if locomotives from 
nonparticipating railroads are offered in interchange to Class I 
railroads to haul covered trains. The delay could occur if the 
nonparticipating railroad delivers a locomotive in interchange that 
either lacks an EEBA of any kind or that has an EEBA that does not 
conform to the type specified under the Class I railroad's general EEBA 
program under proposed Sec.  227.211.
    EEBAs also could be temporarily mounted in the locomotive cab as 
the train containing a shipment of asphyxiant or PIH material is made 
up. This option would help to minimize the number of EEBAs required, 
while ensuring that each consist containing an asphyxiant or a PIH 
material is appropriately equipped. It would also allow the railroad to 
cater efficiently to differing crew sizes. Problems with this method 
include increased management burden for the initial issue of EEBAs to 
the consist, increased management burden for tracking/recovery, 
increased management burden for item inspection and maintenance, and 
unavailability of customized EEBAs.
    FRA recognizes that these are but a few of the numerous options for 
the provision of EEBAs, each having its own costs and benefits. Any of 
these options (or combination of these options), including options that 
have not been discussed above, would be acceptable under the proposed 
regulation as long as a suitable EEBA is provided by the railroad to 
each covered employee while he or she is in the locomotive cab of a 
covered train without unduly delaying the transportation of covered 
hazardous materials via rail.

VII. Information and Recommendations Provided by the Railroad Industry 
and Railroad Labor Organizations After the Study

    As previously mentioned, representatives of both the railroad 
industry and railroad labor cooperated with the FRA-sponsored study on 
the feasibility of providing EEBAs to train crews, the report of which 
was published in May 2009. More recently, the AAR, the UTU, and the 
BLET have exchanged information and ideas with FRA on issues related to 
this rulemaking.
    In July 2009, representatives of the AAR briefed FRA with 
information on the AAR's exploration of alternative ways by which the 
rulemaking mandate under section 413 of the RSIA might be carried out. 
The AAR has also offered recommendations to FRA on issues related to 
this rulemaking, including the type of EEBA and the mode of providing 
it that FRA should accept as satisfying the statutory mandate.
    Subsequently, in a letter to FRA dated January 13, 2010, which has 
been attached as Appendix A to this NPRM, an AAR representative said 
that--

    the railroads' Industrial Hygienists have finalized a 
specification for a device that meets the objective of the RSIA 
which is to provide for escape from the area where a release of 
hazardous materials has occurred that may pose an inhalation hazard. 
One of the important features of this specification is the provision 
for the device to have a 15 minute functional rating. Investigations 
and studies by the railroads' Industrial Hygienists have found that 
the area of destruction following a release is such that 15 minutes 
is a more than adequate time period to escape the area. Requiring a 
device with a greater capacity would result in one that is larger 
and heavier than called for in this specification. Real estate in 
the locomotive cab is already at a premium. It is problematic for 
the railroads to install brackets or holders for the [emergency 
escape breathing device] called for in this specification. Requiring 
a larger device in the regulation would complicate this issue by 
taking more space. Similarly, requiring a device with a greater 
functional rating would necessitate crew members to manage a device 
easily twice the size and weight of the six (6) pound unit preferred 
by the Industrial Hygienists.

Further, the letter said that the specification referenced earlier, 
``M-1005, is presently being worked through the approval process for 
AAR Standards. It is this specification that we recommend FRA include 
by reference in the forthcoming regulation.'' A copy of the January 20, 
2010, draft of that specification as provided by the AAR is at Appendix 
B to this NPRM.
    The draft specification would establish guidelines for vendors of 
EEBAs that would be used by Class I railroads. It requires that the 
EEBA provided by the vendor be certified by NIOSH as a ``Self-Contained 
Breathing Apparatus (SCBA)--Escape Only,'' or comply with some other 
``National/International standard such as ISO 23269-1:2007(E): 
Emergency Escape Breathing Device (EEBD).'' \6\ AAR's draft 
specification allows for EEBAs that are either Closed Circuit Escape 
Respirators or Open Circuit Escape Respirators. Each EEBA must have at 
least a 15-minute approval rating, meaning that the device must 
function for at least 15 minutes during 3-mph treadmill tests and 30 
minutes for stationary tests.\7\ The materials used in each EEBA must 
be resistant to IDLH levels of gaseous chlorine, anhydrous ammonia, and 
other toxic inhalation hazard (TIH) substances. Additionally, each EEBA 
shall provide respiratory, head, and neck protection when tested at 
challenge concentrations of 10,000 ppm anhydrous ammonia and chlorine 
gas with a hood that is sufficient in size to cover head and neck of 
larger than average head size. To facilitate transferability, under the 
proposed specification, the ``escape system must interchange with all 
Class [I] railroads.'' Id.
---------------------------------------------------------------------------

    \6\ FRA believes that AAR's reference to ISO 23269-1:2007(E) is 
a typographical error made either by AAR or the publisher. FRA has 
been informed that the first edition of ISO 23269-1 was published in 
2008, and that there is no 2007 version of this standard.
    \7\ AAR's draft specification provides an option for compliance 
by following ISO 23269-1. Yet, it also requires that the escape 
device ``function for at least 15 minutes.'' FRA recommends that AAR 
clarify the apparent inconsistency in its draft specification to 
indicate that the provision of ISO 23269-1 that calls for a 10-
minute minimum does not apply.
---------------------------------------------------------------------------

    AAR's draft specification also establishes requirements for 
mounting EEBAs on locomotives. The EEBAs and the mounting devices must 
be sufficiently small (5'' deep by 8'' wide by 10'' high) and light (6 
lbs. or less), so that they can be easily mounted in a locomotive cab 
and be easily accessible

[[Page 61393]]

in an emergency situation. Each wall mount case must be bright safety 
orange and contain a photoluminescent label marked with the text 
stating ``Emergency Escape Breathing Device.'' The draft specification 
further requires that the mount device contain a clear window that 
allows a train employee to easily view the oxygen gauge. For security 
purposes, the draft specification provides that the mount device shall 
contain a time-stamped seal and plastic tamper tie that is easily 
identifiable when broken. Additionally, each EEBA must have a small 
radio frequency indicator (RFID) tag that is attached to the EEBA and 
faces outward while in the mount device, which facilitates the use of 
an RFID handheld reader during inspections. Moreover, AAR's draft 
specification requires that the EEBA provided by a vendor to any Class 
I railroad must have undergone accelerated random vibration test using 
a typical locomotive cab profile and there must be evidence of impact 
and vibration resistance resulting from such testing. Assuming a 50-
percent duty life cycle, the device must have a 15-year service life 
based on escape device performance and mounting device structural 
integrity tests. Finally, the proposed specification requires that each 
EEBA be attachable to a train employee's belt and that the EEBA not be 
activated solely by its removal from wall mount case.
    Lastly, AAR's draft specification requires training support. The 
training shall include a video of various locomotive models and video 
portions including each Class I railroad. Subjects that must be covered 
during instruction include discussion about the proper techniques for 
donning the EEBA, requirements for maintenance, requirements for 
inspections, typical scenarios where an EEBA will be used, and 
requirements for training. The draft specification further requires 
seminars that allow train service trainers to be involved in hands-on 
and face-to-face ``train-the-trainer'' situations.
    Additionally, FRA representatives also met with UTU and BLET 
representatives on March 31, 2010 to brief FRA on issues related to the 
provision of EEBAs. AAR was also in attendance at this meeting. Prior 
to the meeting, UTU provided a discussion document, which is Appendix C 
to this NPRM, outlining some of its concerns about the provision of 
EEBAs on locomotives. UTU felt that EEBAs should be ``placed on all 
occupied locomotives which operate over a corridor where freight trains 
carry hazardous materials that pose an inhalation hazard in the event 
of a release.'' Under UTU's recommendation, each occupied locomotive 
would be required to have working EEBAs--even if the occupied 
locomotive is not part of a train carrying asphyxiants or PIH 
materials--as long the locomotive is operating over a rail line that 
carries such materials.
    During the March 31st meeting, UTU indicated that it opposed 
issuing EEBAs as personal items. UTU felt that adding an additional 
item to each train employee's required personal equipment would 
unnecessarily burden crewmembers. UTU was concerned with not only the 
added weight, but also the extra responsibility for care and 
maintenance that would fall to train employees in the event that EEBAs 
are provided as personal equipment. It contended that railroads are in 
a better position than the employees to maintain the devices and stated 
that treating EEBAs as personal equipment would not satisfy the intent 
of Congress in passing the legislation.
    Finally, UTU stressed that there must be sufficient training of 
train employees in the use of EEBAs. Such training would ensure that 
train employees would know how to use EEBAs if presented with a 
situation in the field where their use was required. UTU expressed a 
strong desire for regular, hands-on training with devices selected by 
the railroads to achieve these ends.
    FRA seeks comment on AAR's draft specification as well as UTU's 
discussion document. Specifically, FRA welcomes comments about whether 
it would be appropriate to incorporate a specification of the type that 
AAR has drafted into the final rule and whether it would be advisable 
for FRA to alter its proposed regulation based on either the AAR 
specification or the UTU discussion document.

VIII. Section-by-Section Analysis

Part 227--Occupational Safety and Health in the Locomotive Cab

    FRA proposes to change the name of the part from ``OCCUPATIONAL 
NOISE EXPOSURE'' to ``OCCUPATIONAL SAFETY AND HEALTH IN THE LOCOMOTIVE 
CAB'' in order to reflect the broader subject matter of the part. 
Previously, part 227 contained regulations related only to dangers from 
occupational noise exposure. FRA concluded that part 227 was the most 
natural place to put the proposed regulations related to the provision 
of EEBAs because the occupational noise regulations and the proposed 
EEBA regulations both concern dangers to the occupational safety and 
health of locomotive cab occupants. However, the inclusion of the 
proposed EEBA regulations requires broader language to accurately 
capture the subject matter that would be covered in part 227.

Subpart A--General

Section 227.1 Purpose and Scope

    FRA proposes to amend this section to reflect the expanded purpose 
and scope of this part.

Section 227.3 Applicability

    FRA proposes amending this section so that paragraphs (a) and (b) 
apply to subpart B only and that the title mentioned, ``Associate 
Administrator for Safety,'' is updated to reflect the current title, 
``Associate Administrator for Railroad Safety/Chief Safety Officer.'' 
New paragraphs (c) and (d) define the types of railroad operations to 
be covered by proposed subpart C. In particular, proposed subpart C 
applies to a railroad that transports an in-service freight train that 
carries an asphyxiant or a PIH material, including a residue of such 
asphyxiant or PIH material, on track that is part of the general 
railroad system of transportation. See 49 CFR part 209, appendix A. If 
a railroad does not haul such a material on the general system, it is 
not subject to this subpart. It should be noted that, with some 
exceptions, common carriers by railroad have a ``common carrier'' 
obligation to accept for rail transportation an asphyxiant or a PIH 
material if it is properly prepared for transportation. If a railroad 
accepts and transports a tank car containing a load or residue of an 
asphyxiant or a PIH material in an in-service freight train, even if 
the railroad has never done so before, the railroad would become 
subject to this rule. FRA realizes that triggering the applicability of 
this rule upon the company's first transporting of an asphyxiant or a 
PIH material in a freight train could delay the transportation of such 
material if the company did not voluntarily take the steps required by 
the rule (e.g., preparation of general EEBA program, procurement and 
distribution of EEBAs, and instruction of employees in the program) in 
advance. Further, a delay related to compliance with this proposed rule 
could conflict with the railroad's duty to expedite the transportation 
of hazardous material, pursuant to the Hazardous Materials Regulations 
at 49 CFR 174.14. Accordingly, FRA seeks comment on this aspect of the 
proposal.

Section 227.5 Definitions

    The proposed rulemaking would amend this section to add definitions 
for key terms used in subpart C. The terms

[[Page 61394]]

defined are set forth alphabetically. FRA intends these definitions to 
clarify the meaning of the terms for purposes of this part. Many of 
these definitions have been taken from the regulations issued by OSHA 
and NIOSH and are widely used by safety and health professionals, such 
as the definition of ``immediately dangerous to life or health 
(IDLH).'' Additionally, FRA defines ``asphyxiant or PIH material'' to 
clarify the universe of materials carried by freight trains for which 
EEBAs must be provided.

Section 227.7 Preemptive Effect

    FRA proposes deleting this section and reserving it for use 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 
former LBIA, repealed and recodified at 49 U.S.C. 20701-20703, see 
Public Law 103-272 (July 5, 1994), which has been held to preempt the 
entire field of locomotive safety. See Napier v. Atlantic Coast Line 
R.R., 272 U.S. 605, 613; 47 S.Ct. 207, 210 (1926). See ``Federalism,'' 
below.

Section 227.15 Information Collection

    FRA proposes to amend this section to note the provisions of this 
part, including subpart C, that have been reviewed and approved by the 
Office of Management and Budget (OMB) for compliance with the Paperwork 
Reduction Act of 1995. See 44 U.S.C. 3501 et seq.

Subpart B--Occupational Noise Exposure for Railroad Operating Employees

    FRA proposes a set of minor corrections to this subpart. The term 
``Class 1'' is removed wherever it appears and replaced with the 
corrected term ``Class I''. The incorrect term appears in, for example, 
Sec.  227.103(a)(1).

Subpart C--Emergency Escape Breathing Apparatus Standards

Section 227.201 Criteria for Requiring Availability of EEBAs in the 
Locomotive Cab

    Proposed Sec.  227.201(a)(1) requires that an EEBA be provided by a 
railroad to each of its train employees, direct supervisors of train 
employees, deadheading employees, and other employees designated by the 
railroad in writing and at the discretion of the railroad who are 
required to work in or occupy the cab of the locomotive of one of its 
covered trains (i.e., an in-service freight train that is transporting 
an asphyxiant or a PIH material). The EEBA provided must have been 
selected in accordance with the criteria in Sec.  227.203. Moreover, 
the EEBA provided shall have been inspected and determined to be in 
proper working condition under Sec.  227.207.
    Paragraph (a)(2) proposed in this section prohibits utilizing a 
locomotive to transport an asphyxiant or a PIH material in an in-
service freight train unless each of the employees identified in 
paragraph (a)(1) in the cab of the locomotive has access to an EEBA 
that was selected in accordance with Sec.  227.203 and that has been 
inspected and is in proper working order pursuant to Sec.  227.207. 
Paragraph (a)(2) makes clear that it is not enough for a railroad to 
merely issue an EEBA to an employee, e.g., as a uniform item; the EEBA 
must be physically available to the employee in the cab of the covered 
train. For instance, it is not a defense to a violation of Sec.  
227.201(a)(2) that the railroad provided the EEBA to the employee and 
instructed the employee to have it while in the cab, but the employee 
lost or forgot it.
    This proposed section also includes exceptions to its general 
requirements in paragraph (b). FRA has considered whether EEBAs should 
be required on intermodal trains that transport small quantities of 
asphyxiants and PIH materials. FRA proposes excluding intermodal trains 
from the requirements in this section. Railroads generally do not 
accept asphyxiants or PIH materials in intermodal shipments, and the 
risk of poisonous inhalation in the event of a release from an 
intermodal shipment is relatively low based on the quantities and 
packaging of materials carried by such trains. Therefore, there is not 
a substantial risk that the release of all or most of a shipment of an 
asphyxiant or a PIH material on an intermodal train would endanger the 
crew.
    FRA is also aware that certain activities involving low-speed, 
intra-yard movements involve little potential exposure to the kinds of 
circumstances that this rule is intended to protect against. Employees 
who are involved in those activities, such as moving a locomotive 
coupled to a car or group of cars containing an asphyxiant or a PIH 
material within a locomotive maintenance facility, or who make 
incidental movements for the purpose of inspection or maintenance, are 
also exempted from coverage.
    FRA considered exempting remote control operators (RCOs) who are 
not in the cab of a locomotive during the movement of an in-service 
freight train transporting an asphyxiant or a PIH material. FRA's 
concern was that an RCO who is on the ground and some distance away 
from the locomotive while the train is being moved normally would not 
be in a position to readily access the locomotive to don an EEBA in the 
event of a release. In such a circumstance, FRA would not want to 
encourage the RCO to move toward the locomotive cab to retrieve an EEBA 
that was provided according to a regulatory mandate when the best 
course of action is to immediately retreat to a safe distance away from 
the PIH material or asphyxiant. The AAR's January 13, 2010, letter also 
expresses this concern. However, FRA ultimately decided that it was 
unnecessary to provide a separate exclusion for RCO's conducting 
movements from the ground. An RCO is primarily on the ground when 
performing switching operations. These types of activities are not 
considered freight train movements under this part. Therefore, there 
would not be a requirement to provide EEBAs in the locomotive cab in 
such a circumstance. Alternatively, once switching operations have 
ceased and the crew is ready to leave the yard with an in-service 
freight train, FRA would expect the RCO to occupy the cab and ride in 
the locomotive from point A to point B. Once the RCO has entered the 
locomotive cab for this type of movement, the rationale for excluding 
RCOs ceases to exist, and FRA would expect the RCO to be provided an 
EEBA as a train employee who is occupying the locomotive cab if the 
movement of the in-service freight train includes transporting an 
asphyxiant or a PIH material.
    It should be noted that the AAR's January 13, 2010 letter to FRA 
asserts that ``there may not be a justified need for an [EEBA] in 
traditional operations involving Yard and Local Freight trains as 
well.'' The letter reasons that, like an RCO--

    a crewman may feel the need to walk through a product mist to 
the locomotive to obtain and apply the device rather than escaping 
to a nearby yard office without one. Therefore, Yard and Local 
Freight assignments should also be exempt from a requirement for 
[EEBAs].

The letter does not define ``Yard and Local Freight trains.'' The 
proposed rule applies only to freight trains, which are defined as 
excluding ``switching service,'' which is in turn defined as the 
classification of cars according to commodity or destination, 
assembling cars for train movements, changing the position of cars in 
order to load, unload, or weigh them, placing cars for repair or 
storage, and moving rail equipment in connection with work service does 
not constitute a train movement. FRA notes that yard limits sometimes 
cover a large

[[Page 61395]]

area and that a large amount of anhydrous ammonia is transported in 
freight trains by local crews. Accordingly, FRA has not proposed to 
exclude ``Yard and Local Freight trains.'' FRA requests comment on 
these issues.

    Finally, proposed paragraph (c) establishes that, notwithstanding 
the exceptions identified in Sec.  227.201, any employee who is found 
to have willfully tampered with or vandalized an EEBA will be subject 
to subpart C for enforcement purposes. As a result, an employee to whom 
the railroad is not required to provide an EEBA may become subject to 
this subpart by vandalizing or willfully tampering with an EEBA. By 
proposing this paragraph, FRA intends to foreclose a loophole that 
otherwise would preclude FRA from pursuing enforcement actions against 
mechanical employees and other employees who may have access to EEBAs, 
but for whom the railroads are not required to provide a device by 
these regulations.

Section 227.203 Criteria for Selecting EEBAs

    This proposed section provides the basis for selecting an EEBA. See 
general discussion at III. Selecting an Appropriate EEBA, above. The 
requirements for selection of EEBAs are based on the nature and extent 
of the potential hazard to be faced. To ensure that the EEBAs have met 
a standard set of testing criteria, NIOSH-certified (42 CFR part 84) or 
ISO-certified (ISO 23269-1:2008(E)) EEBAs, with 15-minute minimum 
breathing capacity are mandated. Among these EEBAs, the necessity to 
choose specific types of EEBAs that address the different asphyxiants 
and PIH materials carried by the railroad (or by locomotives 
interchanged by the railroad to another railroad), including their 
varying modes of toxicity and physical state, forces the selection of 
EEBA types that supply a breathable atmosphere to the wearer rather 
than types that simply filter out the toxic material.
    Filtering EEBAs, even those as advanced as military-style gas 
masks, cannot provide protection from a simple asphyxiant gas such as 
carbon dioxide or liquefied petroleum gas since the presence of this 
type of gas in sufficient concentration displaces the oxygen in the 
atmosphere. Filtering EEBAs approved for protection against specific 
materials usually are not approved for others of different chemical 
characteristics. For example, chlorine-filtering EEBAs do not also 
protect against ammonia. Filtering EEBAs also generally have an upper 
concentration limit to their protective capabilities. None are approved 
for use in IDLH environments. The IDLH limit for chlorine is 10 ppm, 
while the IDLH limit for ammonia is 300 ppm. In a situation such as the 
accident at Graniteville, SC, the concentration of chlorine was 
estimated to be several hundred times higher.
    Once the choice is forced to an atmosphere-supplying EEBA, the 
issues of useful life (how long a user under stress can breathe before 
consuming the limited air supply) and usability (e.g., the ease of 
donning and the ability to function wearing the EEBA) are critical. 
Over-breathing is a phenomenon that occurs when a person under stress 
breathes at a rate that exceeds the supply capability of the EEBA. This 
has two major consequences. First, any leaks around the sealing surface 
of the respirator will allow the toxic materials in the atmosphere to 
enter the breathing space. This may result in anything from simple 
irritation to incapacitation. Second, the increased breathing rate 
consumes the limited supply of air more quickly than anticipated. To 
ensure that the EEBA provides adequate oxygen to allow train employees 
to extricate themselves from an IDLH atmosphere, FRA proposes that the 
EEBA have a minimum breathing capacity of 15 minutes. While this 
minimum may differ from that provided for by NIOSH and ISO, FRA 
considers a 15-minute minimum necessary to allow an opportunity to 
escape from an asphyxiant or a PIH material in the railroad 
environment. Specifically, FRA is concerned that the 10-minute minimum 
provided for in ISO 23269-1 would not be sufficient to safely escape 
from an asphyxiant or a PIH material that has been released, given the 
potential for rough terrain for a comparatively long distance, 
uncertainty concerning the location of the release, and the possibility 
that other employees may be incapacitated.
    A related issue is that of user competence in donning such an EEBA 
properly before leaving the locomotive cab under accident conditions. 
Competence in this sense is meant to address whether, under severe 
stress and possibly suffering from injury, train employees will 
remember even to don the EEBA as well as how to do so properly. 
Anecdotal evidence from military experience in recent conflicts 
suggests that even soldiers who have trained repeatedly with chemical 
protective gear and EEBAs have difficulty under stressful conditions 
properly donning the EEBAs and other gear.
    The remaining issues involve face and neck protection, particularly 
preventing the possibly highly irritating materials from reaching the 
eyes. The EEBA selected must provide a means of protecting a user's 
eyes to facilitate the ability of the user to escape. This issue 
relates to the function of the respirator sealing surface to keep 
contaminants out of the breathing space. Some respirators use an 
elastomeric surface to seal the respirator to the face of the user, 
covering from the forehead to the chin. Others use a hood with a clear 
window, or with the hood made out of completely clear plastic, and 
having a flexible seal around the user's neck to provide this 
protection. Either of these designs is capable of accommodating users 
who wear eyeglasses. Respirators with the elastomeric face seal 
encounter more difficulty in accommodating those users who have very 
large or very small or oddly shaped facial features, facial 
deformities, or beards. It is anticipated that the EEBAs selected will 
accommodate these issues by either custom fitting of individuals or 
using EEBAs with hoods as the face piece.

Section 227.205 Storage Facilities for EEBAs

    This proposed section addresses the mandate in the RSIA that the 
rule require railroads to ``provide convenient storage in each freight 
train locomotive to enable crewmembers to access such apparatus 
quickly.'' FRA has adapted the storage requirements promulgated by OSHA 
at 29 CFR 1910.134(h)(2) to this NPRM. The storage requirements 
enumerated should assist railroads in maintaining viable EEBAs while 
providing the railroads with flexibility in meeting the statutory 
mandate. However, there may be a necessity for variation from those 
requirements to permit the storage of an EEBA assigned to an employee 
in the employee's luggage if the locomotive already has a separate 
locomotive-mounted EEBA. This change would be based on the shortage of 
free space in the locomotive cab. FRA requests comments on this 
possible revision and how it would square with the stated requirements.

Section 227.207 Railroad's Program for Inspection, Maintenance, and 
Replacement of EEBAs; Requirements for Procedures

    This proposed section requires each railroad to establish and carry 
out procedures intended to ensure that EEBAs required to be present in 
the locomotive cabs are fully functional. This section is adapted from 
OSHA's inspection documentation requirements. See 29 CFR 
1910.134(h)(3)(iv). Since the

[[Page 61396]]

EEBAs selected may have differing requirements for inspection, 
maintenance, and replacement, this section is, for the most part, 
written as a general performance standard. However, minimum repair and 
adjustment requirements also have been adapted from OSHA's regulations. 
See 29 CFR 1910.134(h)(4).
    Paragraph (b) of the section proposes a requirement that railroads 
create and maintain pre-trip and periodic inspection records, and 
retain these records for one year. Paragraph (d) requires railroads to 
create and maintain an accurate record of all turn-ins, maintenance, 
repair, and replacement of EEBAs required by paragraph (c) of this 
section, including EEBAs that are used; and retain these records for 
three years.

Section 227.209 Railroad's Program of Instruction on EEBAs

    This proposed section identifies the elements of the instructional 
program that the railroad must establish and carry out for train 
employees and other employees who are part of the railroad's general 
EEBA program under Sec.  227.211 and will be provided with EEBAs. The 
elements outlined in this section are partly adapted from OSHA's 
regulations. See 29 CFR 1910.134(k). The program proposed in this 
section should be considered the minimum, and the railroads are 
encouraged to provide additional relevant information depending on the 
types of EEBAs selected.
    Proposed paragraph (b)(2) would require that any railroad 
transporting an asphyxiant or PIH material must provide sufficient 
training to its subject employees. Such employees must be able to 
demonstrate knowledge concerning why an EEBA is necessary; how improper 
fit, usage, or maintenance can compromise the protective effect of an 
EEBA; the limitations and capabilities of the type of EEBA that has 
been provided by the railroad, including the limited time for use; how 
to deal with emergency situations involving the use of EEBAs or if an 
EEBA malfunctions; how to inspect, put on, remove, and use an EEBA, 
including the inspection of seals; procedures for maintenance and 
storage of EEBAs; the selection criteria for EEBAs under Sec.  227.203, 
employee responsibilities under subpart C; employee rights concerning 
access to records; and identification of hazardous materials that are 
classified as asphyxiants and PIH materials. FRA is particularly 
concerned that the employees know the limitations of the EEBAs provided 
so that the employees can avoid circumstances that would lead to 
reliance on the EEBAs for conditions or time frames beyond EEBA 
capabilities.
    This program may be integrated with the railroad's program of 
instruction on the railroad's operating rules required by 49 CFR 217.11 
or its program of instruction for hazmat employees under 49 CFR 
172.704. Under 49 CFR 172.704(a)(3)(ii), for example, hazmat employees 
(which includes crews of freight trains transporting hazardous 
material), must receive ``safety training'' on means ``to protect the 
employee from the hazards associated with hazardous materials to which 
they may be exposed in the work place, including special measures the 
hazmat employer has implemented to protect employees from exposure.''
    Proposed paragraph (c) establishes the timing of the initial and 
refresher training. Initial instruction must occur no later than 30 
days prior to the date of compliance for the subject railroad. New 
employees must receive initial instruction prior to being assigned to 
jobs where EEBAs are required to be provided on a locomotive. The 
initial instruction must be supplemented with periodic instruction at 
least once every three years.
    Proposed Sec.  227.209(d) requires railroads to create and maintain 
an accurate record of employees instructed in compliance with Sec.  
227.209; and retain these records for three years.

Section 227.211 Requirement To Implement a General EEBA Program; 
Criteria for Placing Employees in the General EEBA Program

    In this proposed section FRA requires railroads subject to subpart 
C to adopt and comply with a general EEBA program to ensure that the 
selection and distribution of the EEBAs is done in a technically 
appropriate, sustainable manner and supported by a comprehensive set of 
policies and procedures. These issues have already been discussed in 
detail at III. Selection of the Appropriate EEBA and IV. Provision of 
EEBAs to Covered Employees, above. Many of the procedures will likely 
be used as a basis for aspects of the required instructional program.
    Proposed Sec.  227.211(b)(4) requires the following to be placed in 
the railroad's general EEBA program: (1) Employees of railroads subject 
to this subpart who perform service subject to the provisions of the 
hours of service law governing ``train employees,'' see 49 U.S.C. 
21103, in the locomotive cabs of freight trains that carry an 
asphyxiant or a PIH material; (2) the direct supervisors of these train 
employees; and (3) any employees who deadhead in the locomotive cabs of 
such trains. The term ``train employee'' refers to employees who are 
engaged in functions traditionally associated with train, engine, and 
yard service; for example, engineers, conductors, brakemen, switchmen, 
and firemen. See 49 U.S.C. 21101(5); 49 CFR part 228, appendix A; and 
74 FR 30665, June 26, 2009. In general, these employees may reasonably 
be expected to encounter the kinds of exposures anticipated by this 
proposed rule while in the locomotive cab. Therefore, FRA intends to 
have their needs for protection addressed by explicitly identifying 
them here.
    A railroad may also identify other employees and designate them in 
writing to be included in its general EEBA program. In making this 
assessment, the railroad should consider an employee's work over the 
period of a year. In doing so, the railroads must think about how they 
use their workforces, i.e., review the work that their employees 
perform, determine which employees will occupy the cab of the 
locomotive of an in-service freight train and therefore experience the 
risk of the release of an inhalation-material from the consist, and 
then place those employees in the general EEBA program.
    Given the nature of the railroad industry, FRA is aware that some 
of these employees may not always work in the cab. Due to longstanding 
labor practices in the railroad industry concerning seniority 
privileges and concerning the ability of railroad employees to bid for 
different work assignments, these railroad employees are likely to 
change jobs frequently and to work for extended periods of time on 
assignments that involve duties outside the cab. For example, an 
employee might start the year in a job that involves mostly outside-
the-cab work, spend three months working primarily inside the cab, and 
then return to outside-the-cab work for the rest of the year. In this 
type of situation, these proposed regulations would govern the exposure 
of this employee throughout the year despite the fact that the employee 
only spent three months inside the cab. This employee would be covered 
by this part, because he spent time, no matter how little, in a 
locomotive cab where the use of an EEBA may be required. As a result, 
the railroad must ensure that the employee is properly instructed in 
how to inspect and use an EEBA and provide an EEBA for those time 
periods in which the employee is serving as a train employee, as a 
direct supervisor of a train employee, or in a capacity that the 
railroad has determined, in its

[[Page 61397]]

discretion and designated in writing, should be provided an EEBA while 
any of these individuals is working in the cab of the locomotive of an 
in-service freight train transporting an asphyxiant or a PIH material.
    Note that placement of an employee in the railroad's general EEBA 
program means different things depending on the nature of the program 
that the railroad chooses to adopt. For example, if the railroad's 
program states that the railroad will equip its fleet of locomotives 
with sets of EEBAs sufficient to accommodate the train crew and 
possible deadheading train employees, the railroad would provide the 
EEBA to the employee in that way, in the locomotive cab. On the other 
hand, if the railroad's program states that the railroad will provide 
the EEBA to the employee as part of his or her personal equipment, the 
railroad would have to provide the EEBA in that manner. If the employee 
for whatever reason did not have the EEBA with him or her while in the 
locomotive cab, the railroad would be prohibited from using the 
locomotive by proposed Sec.  227.201(a)(2), which bars using a 
locomotive to transport a covered train if a covered employee occupying 
the cab of the locomotive does not access to a working EEBA. One 
constant would be that all railroads subject to this part would be 
required to instruct employees placed in their general EEBA program in 
how to use EEBAs; the provision on instruction at proposed Sec.  
227.209 requires that all employees identified in proposed Sec.  
227.211 be provided instruction on EEBAs.
    Finally, proposed Sec.  227.211(c) requires railroads to maintain 
records concerning the persons and positions designated to be placed in 
its EEBA program and retain these records for the duration of the 
designation and for one year after the designation has ended.

Section 227.213 Employee's Responsibilities

    Since employees who must be provided the EEBAs are not always 
directly supervised by managers who can ensure the identified tasks are 
done at the appropriate time and frequency, this proposed section 
establishes certain responsibilities on the part of employees. Some of 
these tasks may involve making records of such tasks as pre-trip 
inspections that must be done to ensure the EEBAs are ready for use. 
Additionally, FRA proposes prohibiting employees from willfully 
tampering with or vandalizing an EEBA in an attempt to disable or 
damage the device. See 49 CFR part 209, appendix A for definition and 
discussion of ``willfully.''
    The AAR's second January 13, 2010, letter requests that FRA treat 
an EEBA as a ``safety device'' within the meaning of 49 CFR part 218, 
Railroad Operating Practices, subpart D, Prohibition Against Tampering 
With Safety Devices, in order to discourage tampering or vandalism by 
railroad employees. FRA has decided that categorizing EEBAs as ``safety 
devices'' for purposes of the part 218, subpart D, would not be 
appropriate. The purpose of that subpart ``is to prevent accidents and 
casualties that can result from the operation of trains when safety 
devices intended to improve the safety of their movement have been 
disabled.'' Part 218 defines ``safety device'' as--

    locomotive-mounted equipment that is used either to assure that 
the locomotive operator is alert, not physically incapacitated, 
aware of and complying with the indications of a signal system or 
other operational control system or to record data concerning the 
operation of that locomotive or the train it is powering.

FRA does not view the specific definition of ``safety device'' in part 
218 as being so broad that it encompasses an EEBA provided under this 
proposed rule. While an EEBA may be locomotive-mounted equipment and is 
used to ensure the alertness and physical capacity of the engineer, it 
does not ``assure'' that the engineer is ``complying with the 
indications of a signal system or other operational control system'' 
because an EEBA will not take over the operation of the locomotive or 
the train and, indeed, is primarily intended to facilitate a train 
employee's ability to escape from the locomotive, not to enable the 
engineer to operate the locomotive. Nor is an EEBA used to record data 
on the operation of the locomotive or the train. FRA's published 
interpretation reads the term ``safety device'' narrowly as including 
such items as event recorders, deadman pedals, alerters, automatic cab 
signals, cab signal whistles, automatic train stop equipment, and 
automatic train control equipment. See 49 CFR part 218, appendix C. Not 
classifying an EEBA as a safety device is consistent with that 
interpretation. Instead, FRA proposes to include a prohibition on 
willfully tampering with or vandalizing EEBAs as paragraph (b) of 
proposed Sec.  227.213.

Section 227.215 Recordkeeping in General

    Proposed Sec.  227.215 sets out some general recordkeeping 
provisions. The Secretary is granted authority to inspect relevant 
records by 49 U.S.C. 20107. Pursuant to that authority, delegated from 
the Secretary under 49 CFR 1.49 and from the Administrator through 
internal delegations, FRA inspectors must act within certain parameters 
when inspecting records. FRA inspectors who enter upon railroad 
property and inspect records must do so at a reasonable time and in a 
reasonable manner, must provide proper credentials upon request, and 
must limit their request to records that are relevant to FRA's 
investigation.
    Section 227.215(a) addresses the availability of required records. 
Section 227.215(a) provides that records required under this part, 
except for records of pre-trip inspections, be kept at system and 
division headquarters. It requires that a railroad make all records 
available for inspection and copying or photocopying by representatives 
of FRA upon request. The railroad must also make an employee's records 
available for inspection and copying or photocopying by that employee 
or such person's representative upon written authorization by such 
employee.
    Section 227.215(b) permits required records to be kept in 
electronic form. These requirements are almost identical to the 
electronic recordkeeping requirements found in FRA's existing Track 
Safety Standards, 49 CFR 213.241(e). Section 227.215(b) allows each 
railroad to design its own electronic system as long as the system 
meets the specified criteria in Sec.  227.215(b)(1) through (5), which 
are intended to safeguard the integrity and authenticity of each 
record.

Section 227.217 Compliance Dates

    The specific dates by which certain groups of railroads will be 
required to comply will be set upon publication of the final rule. FRA 
recognizes that it will take time to procure EEBAs, instruct employees 
on their use, and outfit locomotives with the appropriate equipment to 
carry the devices. FRA envisions staggering the compliance dates based 
on the size of the railroad, with larger railroads having to comply 
earlier. The AAR's January 13, 2010, letter referenced earlier requests 
``that FRA allow at least two years from the effective date of the 
final rule for the railroad to be compliant with the regulation.'' 
Under the proposed rule, FRA requires Class I railroads to be compliant 
within 24 months of publication of the final rule, with required 
compliance following for Class II railroads at 30 months and Class III 
and other railroads at 36 months. FRA seeks comment on whether a 
staggered compliance schedule with an initial two-year delay between 
the effective date and the compliance date for Class

[[Page 61398]]

I railroads is reasonable under the circumstances.

Appendix G--Schedule Of Civil Penalties

    Finally, FRA proposes to correct a heading within the civil penalty 
schedule by replacing ``Subpart B--General Requirements'' with 
``Subpart B--Occupational Noise Exposure for Railroad Operating 
Employees''.

IX. Regulatory Impact

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

    This rulemaking proposes regulations that would require railroads 
to provide effective EEBAs for crewmembers in locomotive cabs on 
freight trains transporting asphyxiants or PIH materials and provide 
training in their use. The proposed rule has been evaluated in 
accordance with existing policies and procedures. It is not considered 
a significant regulatory action under section 3(f) of Executive Order 
12866 and, therefore, was not reviewed by the Office of Management and 
Budget. This rule is not significant under the DOT Regulatory Policies 
and Procedures. 44 FR 11034. A Regulatory Evaluation addressing the 
economic impact of this proposed rule has been prepared and placed in 
the docket.
    FRA estimates that the present value of the total ten-year costs, 
which is expected to incur to comply with this proposed rule is either 
$73.9 million for the open loop/circuit EEBAs or $81.9 million for the 
closed loop/circuit EEBAs.
    The benefits associated with preventing the casualties identified 
by FRA as potentially preventable through the use of EEBAs would total 
close to $13.5 million. The EEBAs would have to be used properly and 
quickly for them to be fully effective. Based on historical experience, 
the discounted costs of implementing the proposed rule would likely 
exceed the expected benefits, even assuming 100 percent effectiveness 
of the EEBAs, not discounting the value of the benefits, or including 
indirect benefits. The number of fatalities or injury equivalents that 
would have to be prevented for the benefits to cover the costs would be 
many times greater than the railroad employee fatalities that actually 
occurred.
    Although the costs associated with implementation of the proposed 
rule would likely exceed the benefits, FRA is constrained by the 
requirements of RSIA, which specifically mandates that the Secretary 
require railroads to: (1) Ensure that EEBAs affording suitable ``head 
and neck coverage with respiratory protection'' are provided ``for all 
crewmembers'' in a locomotive cab on a freight train ``carrying 
hazardous materials that would pose an inhalation hazard in the event 
of release''; (2) provide a place for convenient storage of EEBAs in 
the locomotive that will allow ``crewmembers to access such apparatus 
quickly''; (3) maintain EEBAs ``in proper working condition''; and (4) 
provide crewmembers with appropriate instruction in the use of EEBAs. 
Nevertheless, FRA has taken several steps to provide railroads with 
flexibility in this proposed rule. For instance, FRA is not proposing a 
particular method of deployment of EEBAs, but rather leaving that to 
the railroad discretion. In addition, railroads will be able to elect 
the type of apparatus to use in their program (closed-loop or open-
loop). This allows railroads to deploy EEBAs in the manner best suited 
to their operation.

B. Regulatory Flexibility Determination

    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. Pursuant to the Regulatory Flexibility Act of 1980, 5 U.S.C. 
605(b), FRA has prepared and placed in the docket a Certification 
Statement that assesses the small entity impact of this proposed rule, 
and certifies that this proposed rule is not expected to have a 
significant economic impact on a substantial number of small entities.
    Document inspection and copying facilities are available at the DOT 
Central Docket Management Facility located in Room W12-140 on the 
Ground level of the West Building, 1200 New Jersey Avenue, SE., 
Washington, DC 20590. Docket material is also available for inspection 
electronically through the Federal eRulemaking Portal at http://www.regulations.gov. Photocopies may also be obtained by submitting a 
written request to the FRA Docket Clerk at the Office of the Chief 
Counsel, RCC-10, Mail Stop 10, Federal Railroad Administration, 1200 
New Jersey Avenue, SE., Washington, DC 20590; please refer to Docket 
No. FRA-2009-0044.
    The U.S. Small Business Administration (SBA) stipulates in its 
``Size Standards'' that the largest a railroad business firm that is 
``for-profit'' may be, and still be classified as a ``small entity,'' 
is 1,500 employees for ``Line-Haul Operating Railroads,'' and 500 
employees for ``Switching and Terminal Establishments.'' ``Small 
entity'' is defined in the Act as a small business that is 
independently owned and operated, and is not dominant in its field of 
operation. SBA's ``Size Standards'' may be altered by Federal agencies 
after consultation with SBA and in conjunction with public comment. 
Pursuant to that authority, FRA has published a final policy that 
formally establishes ``small entities'' as railroads that meet the line 
haulage revenue requirements of a Class III railroad. The revenue 
requirements are currently $20 million or less in annual operating 
revenue, based on 1991 dollars. The $20-million limit (which is 
adjusted by applying the railroad revenue deflator adjustment) is based 
on the Surface Transportation Board's threshold for a Class III 
railroad carrier. FRA uses the same revenue dollar limit to determine 
whether a railroad or shipper or contractor is a small entity. 
Additionally, section 601(5) defines as ``small entities'' governments 
of cities, counties, towns, townships, villages, school districts, or 
special districts with populations less than 50,000.
    There are 567 freight railroads. Information available to FRA 
indicates that approximately 110 railroads that meet the definition of 
``small entity'' would be impacted. However, FRA does not anticipate 
that the proposed rule would impose a significant impact on these small 
entities because they would be able to manage their EEBA programs in 
such a way as to minimize costs. Given their smaller size and limited 
territory in which they operate, they can develop a management system 
that allows them to optimally allocate EEBAs without necessarily having 
to purchase one for each locomotive or train and engine crewmember. In 
addition, many of these small railroads are subsidiaries of large short 
line holding companies with the expertise and resources comparable to 
larger railroads. The number of EEBAs a small railroad would have to 
install would vary in proportion to the number of locomotives used for 
transporting PIH materials or asphyxiants.
    FRA invites comments from all interested parties on this 
Certification. FRA particularly encourages small entities that could 
potentially be impacted by the proposed amendments to participate in 
the public comment process by submitting comments on this assessment or 
this rulemaking to the official DOT docket. A draft of the proposed 
rule has not been submitted to the SBA for formal review. However, FRA 
will consider any comments submitted by the SBA in developing the final 
rule.

[[Page 61399]]

C. Federalism

    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. FRA has determined that, 
if adopted, the proposed rule would not have substantial direct effects 
on the States, on the relationship between the national government and 
the States, nor on the distribution of power and responsibilities among 
the various levels of government. In addition, FRA has determined that 
this proposed rule will 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 certain provisions of the Federal railroad 
safety statutes, specifically the former FRSA, repealed and recodified 
at 49 U.S.C 20106, and the former LBIA, repealed and recodified at 49 
U.S.C. 20701-20703. See Public Law 103-272 (July 5, 1994). The former 
FRSA 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. Moreover, the former LBIA has been interpreted by the 
Supreme Court as preempting the entire field of locomotive safety. See 
Napier v. Atlantic Coast R.R., 272 U.S. 605, 611; 47 S.Ct. 207, 209 
(1926).
    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 under the former FRSA and the former LBIA. 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:

----------------------------------------------------------------------------------------------------------------
                                                                                                        Total
                                                             Total annual        Average time per       annual
           CFR section              Respondent universe        responses             response           burden
                                                                                                        hours
----------------------------------------------------------------------------------------------------------------
227.13--Waivers..................  200 Railroads.......  13 waiver requests..  16 hours............          208
227.201--Designations............  200 Railroads.......  700 designations....  3 minutes...........           35
    227.203--EEBA Selection        200 Railroads.......  67 written            2 hours.............          134
     Criteria--EEBA Adequacy                              justifications.
     Justification documents.
227.205--Copies of EEBA            200 Railroads.......  26,250 instr. copies  3 minutes...........        1,313
 Instructions.
227.207--Pre-trip and Periodic     200 Railroads.......  73,000 insp./records  1 minute............        1,217
 EEBA Inspections/Records.
    --Records of EEBA Returns,     200 Railroads.......  233 records.........  5 minutes...........           19
     Maintenance, Repairs/
     Replacements.
227.209--Employee Instruction on   200 Railroads.......  70,000 tr. employees  2 hours.............      140,000
 EEBA--Initial Training.
    --Periodic/Refresher Training  200 Railroads.......  23,333 tr. employees  15 minutes..........        5,833
    --Records of Initial Training  200 Railroads.......  70,000 records......  5 minutes...........        5,833
    --Records of Periodic          200 Railroads.......  23,333 records......  2 minutes...........          778
     Training.
227.211--General EEBA              200 Railroads.......  67 programs.........  80 hours............        5,360
 Implementation Program.
227.213--Notification to Railroad  200 Railroads.......  100 notifications...  1 minute............            2
 of EEBA Failure/Use Incidents.
227.215--Electronic                18 Railroads........  18 modified Systems.  120 hours...........        2,160
 Recordkeeping--Railroad
 Modification of Electronic
 Recordkeeping System to Meet FRA
 Requirements.
----------------------------------------------------------------------------------------------------------------


[[Page 61400]]

    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, at 202-493-6292, or Ms. Kimberly Toone 
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: [email protected]; [email protected].
    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. Compliance With the 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 $100,000,000 or more (adjusted 
annually for inflation) [currently $140,800,000] 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. The proposed rule would not result 
in the expenditure, in the aggregate, of $140,800,000 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 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) or 
you may visit http://www.regulations.gov/search/footer/privacyanduse.jsp.

List of Subjects in 49 CFR Part 227

    Hazardous materials transportation, Incorporation by reference, 
Locomotive noise control, Occupational safety and health, Penalties, 
Railroad employees, Railroad safety, Reporting and recordkeeping 
requirements.

The Proposal

    In consideration of the foregoing, FRA proposes to amend part 227 
of chapter II, subtitle B of title 49 of the Code of

[[Page 61401]]

Federal Regulations is amended as follows:

PART 227--OCCUPATIONAL SAFETY AND HEALTH IN THE LOCOMOTIVE CAB

    1. The authority citation for part 227 is amended to read as 
follows:

    Authority:  49 U.S.C. 103, 20103, 20103, note, 20166, 20701-
20703, 21301, 21302, 21304; 28 U.S.C. 2461, note; 49 CFR 1.49.

    2. The heading for part 227 is amended to read as set forth above.
    3. Section 227.1 is revised to read as follows:


Sec.  227.1  Purpose and scope.

    (a) General. The purpose of this part is to protect the 
occupational safety and health of certain employees who are exposed to 
occupational dangers while in the cab of the locomotive. This part 
prescribes minimum Federal safety and health standards for certain 
locomotive cab occupants. This part does not restrict a railroad or 
railroad contractor from adopting and enforcing additional or more 
stringent requirements.
    (b) Subpart B. The purpose of subpart B is to protect the 
occupational safety and health of employees whose predominant noise 
exposure occurs in the locomotive cab. This subpart prescribes minimum 
Federal safety and health noise standards for locomotive cab occupants.
    (c) Subpart C. The purpose of subpart C is to protect the 
occupational safety and health of train employees and certain other 
employees in the cab of the locomotive of a freight train that is 
transporting an asphxiant or a PIH material that, if released due to a 
railroad accident/incident, would pose an inhalation hazard to the 
occupants. In particular, subpart C is intended to protect these 
employees from the risk of exposure to the material while they are 
located in, or during escape from, the locomotive cab.
    4. Section 227.3 is amended as follows:
    a. In paragraph (a) remove the phrase ``this part'' and add 
``subpart B'' in its place.
    b. In the introductory text of paragraph (b) remove the phrase 
``This part'' and add ``Subpart B'' in its place.
    c. In paragraph (b)(5)--
    i. Remove the phrase ``Associate Administrator for Safety'' and add 
``Associate Administrator for Railroad Safety/Chief Safety Officer''; 
and
    ii. Remove the phrase ``this part'' and add ``subpart B'' in its 
place.
    d. Add paragraphs (c) and (d) to read as follows:


Sec.  227.3  Applicability.

* * * * *
    (c) Except as provided in paragraph (d) of this section, subpart C 
applies to any railroad that operates a freight train that transports 
an asphyxiant or a PIH material, including a residue of such an 
asphyxiant or PIH material, on standard gage track that is part of the 
general railroad system of transportation.
    (d) Subpart C does not apply to a railroad that operates only on 
track inside an installation that is not part of the general railroad 
system of transportation.
    5. Section 227.5 is amended by adding the following definitions to 
read as follows:


Sec.  227.5  Definitions.

* * * * *
    Accident/incident has the meaning that is assigned to that term by 
Sec.  225.5 of this chapter.
* * * * *
    Asphyxiant or PIH material means--
    (1) Any of the hazardous materials defined in Sec.  173.115 of this 
title as--
    (i) Class 2, Division 2.1 (Flammable gas);
    (ii) Class 2, Division 2.2 (non-flammable, non-poisonous compressed 
gas--including compressed gas, liquefied gas, pressurized cryogenic 
gas, compressed gas in solution, asphyxiant gas and oxidizing gas); or
    (iii) Class 2, Division 2.3 (Gas poisonous by inhalation);
    (2) Any of the hazardous materials that is a gas, liquid, or other 
material defined as a ``material poisonous by inhalation'' by Sec.  
171.8 of this title.
    The term ``asphyxiant or PIH material'' includes only the foregoing 
material that is in ``commerce'' as defined by Sec.  171.8 of this 
title. The term does not, for example, include personal care items and 
toiletries possessed by an occupant of a locomotive, such as aerosols 
containing chemicals that would be classified in Division 2.2 if they 
were in commerce (e.g., shaving cream and hair spray).
    Associate Administrator for Railroad Safety/Chief Safety Officer 
means the Associate Administrator for Railroad Safety/Chief Safety 
Officer, Federal Railroad Administration, 200 New Jersey Avenue, SE., 
Washington, DC 20590.
    Atmosphere immediately dangerous to life or health (IDLH) means an 
atmosphere that poses an immediate threat to life, would cause 
irreversible adverse health effects, or would impair an individual's 
ability to escape from a dangerous atmosphere.
    Atmosphere-supplying device means a respirator that supplies the 
respirator user with breathing air from a source that is independent of 
the ambient atmosphere. Such devices include supplied-air respirators 
and self-contained breathing apparatus units.
* * * * *
    Deadheading means the physical relocation of a train employee from 
one point to another as a result of a railroad-issued oral or written 
directive.
    Division headquarters means the location designated by the railroad 
where a high-level operating manager (e.g., a superintendent, division 
manager, or equivalent), who has jurisdiction over a portion of the 
railroad, has an office.
    Emergency escape breathing apparatus or EEBA means an atmosphere-
supplying respirator device that is designed for use only during escape 
from a hazardous atmosphere.
* * * * *
    Freight car means a vehicle designed to transport freight, or 
railroad personnel, by rail and includes a--
    (1) Box car;
    (2) Refrigerator car;
    (3) Ventilator car;
    (4) Stock car;
    (5) Gondola car;
    (6) Hopper car;
    (7) Flat car;
    (8) Special car;
    (9) Caboose;
    (10) Tank car; and
    (11) Yard car.
    Freight train means one or more locomotives coupled with one or 
more freight cars, except during switching service.
    Hazardous material has the meaning assigned to that term by Sec.  
171.8 of this title.
    Hazmat employee has the meaning assigned to that term by Sec.  
171.8 of this title.
* * * * *
    In service or in-service when used in connection with a freight 
train, means each freight train subject to this part unless the train--
    (1) Is in a repair shop or on a repair track;
    (2) Is on a storage track and its cars are empty; or
    (3) Has been delivered in interchange but has not been accepted by 
the receiving carrier.
    Intermodal container means a freight container designed and 
constructed to permit it to be used interchangeably in two or more 
modes of transportation.
    ISO means the International Organization for Standardization, a 
network of national standards institutes in 162 countries, including 
the United States through the American National

[[Page 61402]]

Standards Institute, that develops international standards to assist in 
ensuring the safe performance of a wide range of devices, including 
EEBAs.
* * * * *
    NIOSH means the National Institute for Occupational Safety and 
Health, a Federal agency responsible for conducting research and making 
recommendations for the prevention of work-related injury and illness, 
which is part of the Centers for Disease Control and Prevention in the 
U.S. Department of Health and Human Services and certifies industrial-
type respirators in accordance with the NIOSH respiratory regulations 
(42 CFR part 84 (June 8, 1995)).
* * * * *
    PIH material means poison inhalation hazard material. See 
definition of asphyxiant or PIH material, above.
* * * * *
    Residue has the meaning assigned to the term by Sec.  171.8 of this 
title.
* * * * *
    Switching service means the classification of freight cars 
according to commodity or destination; assembling of cars for train 
movements; changing the position of cars for purposes of loading, 
unloading, or weighing; placing of locomotives and cars for repair or 
storage; or moving of rail equipment in connection with work service 
that does not constitute a train movement.
    System headquarters means the location designated by the railroad 
as the general office for the railroad system.
* * * * *
    Train employee means an individual who is engaged in or connected 
with the movement of a train, including a hostler, as defined in 49 
U.S.C. 21101.


Sec.  227.7  [REMOVED AND RESERVED]

    6. Remove and reserve Sec.  227.7.
    7. Section Sec.  227.15 is amended by revising paragraph (b) to 
read as follows:


Sec.  227.15  Information collection.

* * * * *
    (b) The information collection requirements are found in the 
following sections: Sec. Sec.  227.13, 227.103, 227.107, 227.109, 
227.111, 227.117, 227.119, 227.121, 227.201, 227.207, 227.209, 227.211, 
227.213, and 227.215.


Sec.  227.103  [AMENDED]

    8. Section 227.103 is amended as follows:
    a. In paragraph (a)(1) remove the phrase ``Class 1'' and add 
``Class I'' in its place.
    b. In paragraph (a)(2) remove the phrase ``Class 1'' and add 
``Class I'' in its place.


Sec.  227.109  [AMENDED]

    9. Section 227.109, paragraph (e)(2)(i) is amended by removing the 
phrase ``Class 1'' and adding ``Class I'' in its place.


Sec.  227.119  [AMENDED]

    10. Section 227.119, paragraph (b)(2) is amended by removing the 
phrase ``Class 1'' and adding ``Class I'' in its place.
    11. Add new subpart C to part 227 to read as follows:
Subpart C--Emergency Escape Breathing Apparatus Standards
Sec.
227.201 Criteria for requiring availability of EEBAs in the 
locomotive cab.
227.203 Criteria for selecting EEBAs.
227.205 Storage facilities for EEBAs.
227.207 Railroad's program for inspection, maintenance, and 
replacement of EEBAs; requirements for procedures.
227.209 Railroad's program of instruction on EEBAs.
227.211 Requirement to implement a general EEBA program; criteria 
for placing employees in the general EEBA program.
227.213 Employee's responsibilities.
227.215 Recordkeeping in general.
227.217 Compliance dates.

Subpart C--Emergency Escape Breathing Apparatus Standards


Sec.  227.201  Criteria for requiring availability of EEBAs in the 
locomotive cab.

    (a) In general. (1)(i) Except as specified in paragraph (b) of this 
section, a railroad is required to provide an EEBA to each of the 
following of its employees while the employee is located in the cab of 
a locomotive of an in-service freight train transporting an asphyxiant 
or a PIH material, including a residue of an asphyxiant or a PIH 
material:
    (A) Any train employee;
    (B) Any direct supervisor of the train employee;
    (C) Any employee who is deadheading; and
    (D) Any other employee designated by the railroad in writing and at 
the discretion of the railroad.
    (ii) Each EEBA provided to an employee identified in paragraph 
(a)(1)(i) of this section must meet the EEBA-selection criteria of 
Sec.  227.203 and must have been inspected and be in working order 
pursuant to the requirements of Sec.  227.207 at the time that the EEBA 
is provided to the employee.
    (2) Except as specified in paragraph (b) of this section, a 
railroad shall not use a locomotive to transport an asphyxiant or a PIH 
material, including a residue of an asphyxiant or a PIH material, in an 
in-service freight train unless each of the employees identified in 
paragraph (a)(1)(i) of this section while in the cab of the locomotive 
of the train has access to an EEBA that satisfies the EEBA-selection 
criteria in Sec.  227.203 and that has been inspected and is in working 
order pursuant to the requirements in Sec.  227.207.
    (b) Exceptions. (1) A railroad is not required to provide an EEBA, 
or make accessible an EEBA, to an employee while in the locomotive cab 
of an in-service freight train transporting an asphyxiant or a PIH 
material if all of the asphyxiants or PIH materials in the train, 
including a residue of an asphyxiant or a PIH material, are being 
hauled in one or more intermodal containers.
    (2) This subpart does not apply to any of the following:
    (i) Employees who are moving a locomotive or group of locomotives 
coupled to a car or group of cars transporting an asphyxiant or PIH 
material, including a residue of an asphyxiant or a PIH material, only 
within the confines of a locomotive repair or servicing area.
    (ii) Employees who are moving a locomotive or group of locomotives 
coupled to a car or group of cars transporting an asphyxiant or PIH 
material, including a residue of an asphyxiant or a PIH material for 
distances of less than 100 feet for inspection or maintenance purposes.
    (c) Notwithstanding any exceptions identified in this subpart, any 
employee who willfully tampers with or vandalizes an EEBA shall be 
subject to this subpart for purposes of enforcement relating to Sec.  
227.213 (Employee responsibilities).


Sec.  227.203  Criteria for selecting EEBAs.

    In selecting the appropriate EEBA to provide to an employee, the 
railroad shall do the following:
    (a) Select an atmosphere-supplying EEBA that protects against all 
asphyxiants or PIH materials (including their residue) that are being 
transported by the freight train while in service.
    (b) Ensure that the type of respirator selected has been certified 
for an escape only purpose by the National Institute for Occupational 
Safety and Health pursuant to 49 CFR part 84 or by the International 
Organization for Standardization pursuant to ISO 23269-1:2008(E).
    (c) Document the adequacy of protection for all potential hazardous 
atmospheres reasonably expected to be encountered and provide such 
documentation for inspection by FRA upon request.

[[Page 61403]]

    (d) Document, and provide such documentation for inspection by FRA 
upon request, the rationale for the final selection of an EEBA by 
addressing each of the following concerns:
    (1) Breathing time. Each EEBA must be fully charged and contain a 
minimum breathing capacity of 15 minutes at the time of the pre-trip 
inspection required under Sec.  227.207(a)(1).
    (2) Face and neck protection. The EEBA selected must provide a 
means of protecting the individual's face and neck to facilitate 
escape.
    (3) Accommodation for eyeglasses and a range of facial features. 
The EEBA selected must provide a means of protecting each employee who 
is required to be provided with the EEBA, including those who wear 
glasses, and allow for the reasonable accommodation of each such 
employee's facial features, including facial hair.


Sec.  227.205  Storage facilities for EEBAs.

    (a) A railroad may not use a locomotive if it is part of an in-
service freight train transporting an asphyxiant or a PIH material, 
including a residue of an asphyxiant or a PIH material, and the 
locomotive cab is occupied by an employee identified in Sec.  
227.201(a)(1)(i)(A)-(D) (subject employee), unless the locomotive cab 
has appropriate storage facilities to hold the number of EEBAs required 
to be provided.
    (b) The storage facility for each required EEBA must--
    (1) Prevent deformation of the face piece and exhalation valve, 
where applicable;
    (2) Protect the EEBA from incidental damage, contamination, dust, 
sunlight, extreme temperatures, excessive moisture, and damaging 
chemicals;
    (3) Provide each subject employee located in the locomotive cab 
with ready access to the EEBA during an emergency; and
    (4) Provide a means for each subject employee to locate the EEBA 
under adverse conditions such as darkness or disorientation.
    (c) A railroad must comply with the applicable manufacturer's 
instructions for storage of each required EEBA and must keep a copy of 
the instructions at its system headquarters for FRA inspection.


Sec.  227.207  Railroad's program for inspection, maintenance, and 
replacement of EEBAs; requirements for procedures.

    (a) General. Each railroad shall establish and comply with a 
written program for inspection, maintenance, and replacement of EEBAs 
that are required under this subpart. The program for inspection, 
maintenance, and replacement of EEBAs shall be maintained at the 
railroad's system headquarters and shall be amended, as necessary, to 
reflect any significant changes. This program shall include the 
following procedures:
    (1) Procedures for performing and recording a pre-trip inspection 
of each EEBA that is required to be provided on a locomotive being used 
to transport an asphyxiant or a PIH material and procedures for 
cleaning, replacing, or repairing each required EEBA, if necessary, 
prior to its being provided under Sec.  227.201(a);
    (2) Procedures for performing and recording periodic inspections 
and maintenance of each required EEBA in a manner and on a schedule in 
accordance with the manufacturer's recommendations; and
    (3) Procedures for turning in and obtaining a replacement for a 
defective, failed, or used EEBA and for recording those transactions.
    (b) Inspection procedures and records. (1) A railroad's procedures 
for pre-trip and periodic inspections of EEBAs shall require that the 
following information about each pre-trip and periodic inspection be 
accurately recorded on a tag or label that is attached to the storage 
facility for the EEBA or kept with the EEBA or in inspection reports 
stored as paper or electronic files:
    (i) The name of the railroad performing the inspection;
    (ii) The date that the inspection was performed;
    (iii) The name and signature of the individual who made the 
inspection;
    (iv) The findings of the inspection;
    (v) The required remedial action; and
    (vi) A serial number or other means of identifying the inspected 
EEBA.
    (2) A railroad shall maintain an accurate record of each pre-trip 
and periodic inspection required by this section and retain each of 
these records for one year.
    (c) Procedures applicable if EEBA fails an inspection or is used. 
An EEBA that fails an inspection required by this section, is otherwise 
found to be defective, or is used, shall be removed from service and be 
discarded, repaired, adjusted, or cleaned in accordance with the 
following procedures:
    (1) Repair, adjustment, and cleaning of EEBAs shall be done only by 
persons who are appropriately trained to perform such work and who 
shall use only the EEBA manufacturer's approved parts designed to 
maintain the EEBA in NIOSH-certified (49 CFR part 84) or ISO-certified 
(ISO 23269-1:2008(E)) condition.
    (2) Repairs shall be made according to the manufacturer's 
recommendations and specifications for the type and extent of repairs 
to be performed.
    (3) Where applicable, reducing and admission valves, regulators, 
and alarms shall be adjusted or repaired only by the manufacturer or a 
technician trained by the manufacturer.
    (d) Records of returns, maintenance, repair, and replacement. A 
railroad shall--
    (1) Maintain an accurate record of return, maintenance, repair, or 
replacement for each EEBA required by this subpart; and
    (2) Retain each of these records for three years.


Sec.  227.209  Railroad's program of instruction on EEBAs.

    (a) General. (1) A railroad shall adopt and comply with its written 
program of instruction on EEBAs for all of its employees in its general 
EEBA program under Sec.  227.211 (subject employees). The program of 
instruction shall be maintained at the railroad's system headquarters 
and shall be amended, as necessary, to reflect any significant changes.
    (2) This program may be integrated with the railroad's program of 
instruction on operating rules under Sec.  217.11 of this chapter or 
its program of instruction for hazmat employees under Sec.  172.704 of 
this title. If the program is not integrated with either of these 
programs, it must be written in a separate document that is available 
for inspection by FRA.
    (b) Subject matter. The railroad's program of instruction shall 
require that the subject employees demonstrate knowledge of at least 
the following:
    (1) Why the EEBA is necessary and how improper fit, usage, or 
maintenance can compromise the protective effect of the EEBA.
    (2) The capabilities and limitations of the EEBA, particularly the 
limited time for use.
    (3) How to use the EEBA effectively in emergency situations, 
including situations in which the EEBA malfunctions.
    (4) How to inspect, put on, remove, and use the EEBA, and how to 
check the seals of the EEBA.
    (5) Procedures for maintenance and storage of the EEBA that must be 
followed.
    (6) The EEBA-selection criteria in Sec.  227.203.
    (7) The requirements of this subpart related to the 
responsibilities of employees and the rights of employees to have 
access to records.

[[Page 61404]]

    (8) The hazardous materials classified as asphyxiants and PIH 
materials.
    (c) Dates of initial instruction and intervals for periodic 
instruction. (1) The instruction shall be provided for current subject 
employees on an initial basis no later than 30 days prior to the date 
of compliance identified in Sec.  227.217 or for new subject employees, 
before assignment to jobs where the deployment of EEBAs on a locomotive 
is required.
    (2) Initial instruction shall be supplemented with periodic 
instruction at least once every three years.
    (d) Records of instruction. A railroad shall maintain a record of 
employees provided instruction in compliance with this section and 
retain these records for three years.


Sec.  227.211  Requirement to implement a general EEBA program; 
criteria for placing employees in the general EEBA program.

    (a) In general. A railroad shall adopt and comply with a 
comprehensive, written, general program to implement this subpart that 
shall be maintained at the railroad's system headquarters. Each 
railroad shall amend its general EEBA program, as necessary, to reflect 
any significant changes.
    (b) Elements of the general EEBA program and criteria for placing 
employees in program. A railroad's general EEBA program shall--
    (1) Identify the individual that implements and manages the 
railroad's general EEBA program by name, title, and contact 
information. The individual must have suitable training and sufficient 
knowledge, experience, skill, and authority to enable him or her to 
manage properly a program for provision of EEBAs. If the individual is 
not directly employed by the railroad, the written program must 
identify the business relationship of the railroad to the individual 
fulfilling this role.
    (2) Describe the administrative and technical process for selection 
of EEBAs appropriate to the hazards that may be reasonably expected.
    (3) Describe the process used to procure and provide EEBAs in a 
manner to ensure the continuous and ready availability of an EEBA to 
each of the railroad's employees identified in Sec.  
227.201(a)(1)(i)(A)-(D) (while actually occupying the locomotive cab of 
a freight train in service transporting an asphyxiant or a PIH 
material). This description shall include--
    (i) A description of the method used for provision of EEBAs, 
including whether the EEBAs are individually assigned to employees, 
installed on locomotives as required equipment, or provided by other 
means. If EEBAs are installed on locomotives as required equipment, the 
means of securement shall be designated.
    (ii) The decision criteria used by the railroad to identify trains 
in which provision of EEBAs is not required.
    (iii) A description of what procedures will govern the railroad at 
interchange to ensure that the locomotive cab in each in-service 
freight train transporting an asphyxiant or a PIH material has an EEBA 
accessible to each of the employees identified in Sec.  
227.201(a)(1)(i)(A)-(D) while in the cab of the locomotive, including 
what procedures are in place to ensure that the EEBAs provided satisfy 
the EEBA-selection criteria in Sec.  227.203, satisfy the EEBA-storage 
criteria in Sec.  227.205, and have been inspected and are in working 
order pursuant to the requirements in Sec.  227.207.
    (4) Ensure that each of the following employees, except those 
excluded by Sec.  227.201(b), whose duties require regular work in the 
locomotive cabs of in-service freight trains transporting an asphyxiant 
or a PIH material, including a residue of an asphyxiant or a PIH 
material, has the required EEBA available when he or she does occupy 
the cab of such a train and knows how to use the EEBA:
    (i) Employees who perform service subject to 49 U.S.C. 21103 (train 
employees) on such trains;
    (ii) Direct supervisors of train employees on such trains;
    (iii) Deadheading employees on such trains; and
    (iv) Any other employees designated by the railroad in writing and 
at the discretion of the railroad.
    (c) Records of positions or individuals or both in the railroad's 
general EEBA program. A railroad shall maintain a record of all 
positions or individuals, or both, who are designated by the railroad 
to be placed in its general EEBA program pursuant to Sec.  
227.211(b)(4). The railroad shall retain these records for the duration 
of the designation and for one year thereafter.
    (d) Consolidated programs. A group of two or more commonly 
controlled railroads subject to this subpart may request in writing 
that the Associate Administrator for Railroad Safety/Chief Safety 
Officer (Associate Administrator) treat them as a single railroad for 
purposes of adopting and complying with the general EEBA program 
required by this section. The request must list the parent corporation 
that controls the group of railroads and demonstrate that the railroads 
operate in the United States as a single, integrated rail system. The 
Associate Administrator will notify the railroads of his or her 
decision in writing.


Sec.  227.213  Employee's responsibilities.

    (a) An employee to whom the railroad provides an EEBA shall--
    (1) Participate in training under Sec.  227.209;
    (2) Follow railroad procedures to ensure that the railroad's 
EEBAs--
    (i) Are maintained in a secure and accessible manner;
    (ii) Are inspected as required by this subpart and the railroad's 
program of inspection; and
    (iii) If found to be unserviceable upon inspection, are turned in 
to the appropriate railroad facility for repair, periodic maintenance, 
or replacement; and
    (3) Notify the railroad of EEBA failures and of use incidents in a 
timely manner.
    (b) No employee shall willfully tamper with or vandalize an EEBA 
that is provided pursuant to Sec.  227.201(a) in an attempt to disable 
or damage the EEBA.


Sec.  227.215  Recordkeeping in general.

    (a) Availability of records. (1) A railroad shall make all records 
required by this subpart available for inspection and copying or 
photocopying to representatives of FRA, upon request.
    (2) Except for records of pre-trip inspections of EEBAs under Sec.  
227.207, records required to be retained under this subpart must be 
kept at the system headquarters and at each division headquarters where 
the tests and inspections are conducted.
    (b) Electronic records. All records required by this subpart may be 
kept in electronic form by the railroad. A railroad may maintain and 
transfer records through electronic transmission, storage, and 
retrieval provided that all of the following conditions are met:
    (1) The electronic system is designed so that the integrity of each 
record is maintained through appropriate levels of security such as 
recognition of an electronic signature, or other means, which uniquely 
identify the initiating person as the author of that record. No two 
persons have the same electronic identity.
    (2) The electronic system ensures that each record cannot be 
modified in any way, or replaced, once the record is transmitted and 
stored.
    (3) Any amendment to a record is electronically stored apart from 
the record that it amends. Each amendment to a record is uniquely 
identified as to the individual making the amendment.
    (4) The electronic system provides for the maintenance of records 
as originally

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submitted without corruption or loss of data.
    (5) Paper copies of electronic records and amendments to those 
records that may be necessary to document compliance with this subpart 
are made available for inspection and copying or photocopying by 
representatives of FRA.


Sec.  227.217  Compliance dates.

    (a) Class I railroads subject to this subpart are required to 
comply with this subpart beginning no later than 24 months from the 
effective date of the final rule.
    (b) Class II railroads subject to this subpart are required to 
comply with this subpart beginning no later than 30 months from the 
effective date of the final rule.
    (c) Class III railroads subject to this subpart and any other 
railroads subject to this subpart are required to comply with this 
subpart beginning no later than 36 months from the effective date of 
the final rule.

Appendix G to Part 227--Schedule of Civil Penalties [AMENDED]

    10. In appendix G, remove ``Subpart B--General Requirements'' 
and add in its place ``Subpart B--Occupational Noise Exposure for 
Railroad Operating Employees''.

    Issued in Washington, DC, on September 28, 2010.
Karen J. Rae,
Deputy Administrator, Federal Railroad Administration.


    Note: The following appendices will not appear in the Code of 
Federal Regulations.

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