[Federal Register Volume 75, Number 192 (Tuesday, October 5, 2010)]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-24732]
DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
49 CFR Part 227
[Docket No. FRA-2009-0044, Notice No. 1]
Emergency Escape Breathing Apparatus Standards
AGENCY: Federal Railroad Administration (FRA), Department of
ACTION: Notice of proposed rulemaking (NPRM).
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
ADDRESSES: You may submit comments related to Docket No. FRA-2009-0044,
Notice No. 1, by any one of the following methods:
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
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
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),
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,
SCBA--self-contained breathing apparatus
SBA--Small Business Administration
T&E employees--train and engine service employees
UP--Union Pacific Railroad Company
UTU--United Transportation Union
Table of Contents for Supplementary Information
I. Statutory Background and More Detailed Summary of Proposed
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
B. Regulatory Flexibility Determination
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
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
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.
\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.
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
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.
\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
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]
Total Collision Collision Derailment Derailment Inhalation Inhalation
Reporting year casualties casualties fatalities casualties fatalities casualties fatalities
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
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
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
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,
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
(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.
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
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.
\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.
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
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-
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
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
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
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.
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
Section 227.5 Definitions
The proposed rulemaking would amend this section to add definitions
for key terms used in subpart C. The terms
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,''
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,
Subpart C--Emergency Escape Breathing Apparatus Standards
Section 227.201 Criteria for Requiring Availability of EEBAs in the
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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 annual Average time per annual
CFR section Respondent universe responses response burden
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.
227.205--Copies of EEBA 200 Railroads....... 26,250 instr. copies 3 minutes........... 1,313
227.207--Pre-trip and Periodic 200 Railroads....... 73,000 insp./records 1 minute............ 1,217
--Records of EEBA Returns, 200 Railroads....... 233 records......... 5 minutes........... 19
227.209--Employee Instruction on 200 Railroads....... 70,000 tr. employees 2 hours............. 140,000
--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
227.211--General EEBA 200 Railroads....... 67 programs......... 80 hours............ 5,360
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
Modification of Electronic
Recordkeeping System to Meet FRA
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
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
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
In consideration of the foregoing, FRA proposes to amend part 227
of chapter II, subtitle B of title 49 of the Code of
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
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
(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'';
ii. Remove the phrase ``this part'' and add ``subpart B'' in its
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
(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
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;
(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
Standards Institute, that develops international standards to assist in
ensuring the safe performance of a wide range of devices, including
* * * * *
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
* * * * *
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
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
227.201 Criteria for requiring availability of EEBAs in the
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
(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
(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.
(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
(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,
(2) Protect the EEBA from incidental damage, contamination, dust,
sunlight, extreme temperatures, excessive moisture, and damaging
(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
(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
(iv) The findings of the inspection;
(v) The required remedial action; and
(vi) A serial number or other means of identifying the inspected
(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
(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
(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
(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
(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.
(8) The hazardous materials classified as asphyxiants and PIH
(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
(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
(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
(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
(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
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
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[FR Doc. 2010-24732 Filed 10-4-10; 8:45 am]
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