```

[Federal Register Volume 89, Number 18 (Friday, January 26, 2024)]
[Rules and Regulations]
[Pages 5113-5135]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-01074]

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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 227

Docket No. FRA-2009-0044, Notice No. 2]

RIN 2130-AC14

Emergency Escape Breathing Apparatus Standards

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

ACTION: Final rule.

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SUMMARY: FRA is amending its regulations related to occupational noise 
exposure in three ways. First, in response to a congressional mandate, 
FRA is expanding those regulations to require that railroads provide an 
appropriate atmosphere-supplying emergency escape breathing apparatus 
to every train crew member and certain other employees while they are 
occupying a 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 changing the name of this part of 
its regulations from ``Occupational Noise Exposure'' to ``Occupational 
Safety and Health in the Locomotive Cab'' to reflect the additional 
subject matter of this final rule and to make other conforming 
amendments. Third, FRA is removing the provision stating the preemptive 
effect of this part of FRA's regulations because it is unnecessary.

DATES: This final rule is effective March 26, 2024. The incorporation 
by reference of certain publications listed in this rule is approved by 
the Director of the Federal Register as of March 26, 2024.

FOR FURTHER INFORMATION CONTACT: Michael Watson, Occupational Safety 
and Health Manager, Office of Railroad Safety, telephone 202-493-9544, 
email: [email protected] or Richard Baxley, Attorney-Adviser, 
Office of the Chief Counsel, telephone: 202-853-5053, email: 
[email protected].

SUPPLEMENTARY INFORMATION:

Abbreviations and Terms Used in This Document

AAR--Association of American Railroads
AIHA--American Industrial Hygiene Association
ANSI--American National Standards Institute
ASLRRA--American Short Line and Regional Railroad Association
BLET--Brotherhood of Locomotive Engineers and Trainmen
BNSF--BNSF Railway Company
BRS--Brotherhood of Railroad Signalmen
BS--British Standards Institution
CEN--European Committee for Standardization
CFR--Code of Federal Regulations
CO2--carbon dioxide
DOT--U.S. Department of Transportation
EEBA--emergency escape breathing apparatus
EN--European standard
FRA--Federal Railroad Administration
FRSA--the former Federal Railroad Safety Act of 1970, repealed and 
reenacted as positive law primarily at 49 U.S.C. ch. 201
HMIS--Hazardous Materials Information System
IDLH--immediate danger to life or health or immediately dangerous to 
life or health
IFRA--Initial Regulatory Flexibility Analysis
ISEA--International Safety Equipment Association
ISO--International Organization for Standardization

[[Page 5114]]

LBIA--the former Locomotive (Boiler) Inspection Act, repealed and 
reenacted as positive law in 49 U.S.C. 20701-20703
LPG--liquefied petroleum gas
NIOSH--National Institute for Occupational Safety and Health
NPRM--notice of proposed rulemaking
NS--Norfolk Southern Railway Company
NTSB--National Transportation Safety Board
O2--Oxygen
OMB--Office of Management and Budget
OSHA--Occupational Safety and Health Administration
PHMSA--Pipeline and Hazardous Materials Safety Administration
PIH material--poison inhalation hazard material
ppm--parts per million
PTC--positive train control
RCO--remote control operator
RFID--radio frequency identification
RIA--Regulatory Impact Analysis
RSIA--Rail Safety Improvement Act of 2008, Public Law 110-432, 
Division A
SBA--Small Business Administration
SCBA--self-contained breathing apparatus
SCSR--self-contained, self-rescuer
SNPRM--supplemental notice of proposed rulemaking
T&E employees--train and engine service employees
UP--Union Pacific Railroad Company
UTU--United Transportation Union

Table of Contents

I. Executive Summary
    A. Purpose of Regulatory Action
    B. Summary of Major Provisions
    C. Costs and Benefits
II. Statutory Authority
III. Background
    A. Accident History and NTSB Recommendation R-05-17
    B. FRA Sponsored Study
    C. FRA's 2016 Guidance for Developing an EEBA Program
IV. Selection of the Appropriate EEBA by Railroads
V. Provision of EEBAs to Covered Employees
VI. Information and Recommendations Provided by the Railroad 
Industry and Railroad Labor Organizations After the Study
VII. Public Comment on the SNPRM, with FRA's Response
    A. Introduction
    B. Comments on the Preamble, with FRA's Response
    C. Section-Specific Public Comments, with FRA's Response
    1. Comments on Sec.  227.201(a)(1), with FRA's Response
    2. Comments on Sec.  227.203(c), with FRA's Response
    3. Comments on Sec.  227.207, with FRA's Response
    4. Comments on Sec.  227.209, with FRA's Response
    5. Comments on Sec.  227.215, with FRA's Response
VIII. Section-by-Section Analysis
IX. Regulatory Impact and Notices
    A. Executive Order 12866 as Amended by Executive Order 14094
    B. Regulatory Flexibility Act and Executive Order 13272
    1. Statement of the need for, and objectives of, the rule
    2. Significant issues raised by public comments
    3. Response to comments filed by the Chief Counsel for Advocacy 
of the Small Business Administration
    4. Description and estimate of the number of small entities to 
which the rule will apply
    5. Description of the projected reporting, recordkeeping, and 
other compliance requirements of the rule
    6. A description of the steps the agency has taken to minimize 
the economic impact on small entities
    C. Federalism
    D. International Trade Impact Assessment
    E. Paperwork Reduction Act
    F. Compliance with the Unfunded Mandates Reform Act of 1995
    G. Environmental Assessment
    H. Energy Impact
    I. Analysis Under 1 CFR Part 51
    J. Environmental Justice
    K. Executive Order 13175 (Tribal Consultation)

I. Executive Summary

A. Purpose of Regulatory Action

    After railroad worker fatalities resulted from the inhalation of 
chlorine gas following rail accidents in 2004 and 2005, NTSB issued a 
recommendation that FRA require railroads to provide emergency escape 
breathing apparatuses (EEBAs) to their locomotive crewmembers.\1\ 
Subsequently, in October 2008, Congress enacted the RSIA.\2\ Section 
413 of the RSIA mandated that FRA issue regulations requiring railroads 
to provide EEBAs, and training in their use, for 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. The purpose of this final rule is to respond to that statutory 
mandate, and it also responds to NTSB Safety Recommendation R-05-17.\3\
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    \1\ NTSB Recommendation R-05-17. https://www.ntsb.gov/investigations/AccidentReports/Reports/RAR0504.pdf.
    \2\ Public Law 110-432, Div. A, 122 Stat. 4848, October 16, 2008 
(49 U.S.C. 20166).
    \3\ 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, 
which is posted at https://www.ntsb.gov/investigations/AccidentReports/Reports/RAR0504.pdf.
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    FRA first issued an NPRM responsive to the mandate of section 413 
in October 2010.\4\ Based on the cost-benefit analysis in the NPRM, and 
the comments received in response to the NPRM, FRA issued a guidance 
document \5\ rather than a final rule. FRA intended for railroads to 
use the guidance document to develop EEBA programs to protect railroad 
employees involved in transporting hazardous materials posing an 
inhalation hazard. However, NTSB found that the guidance document did 
not satisfy its recommendation, and the statutory mandate remained in 
place. FRA then issued an SNPRM, with some revisions to the NPRM, on 
March 22, 2023, to open the matter again to public comment. Having 
considered the public comments on the SNPRM, FRA is promulgating this 
final rule governing the provision of EEBAs as required by statute.
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    \4\ 75 FR 61386 (Oct. 5, 2010).
    \5\ Federal Railroad Administration Guidance for Developing an 
Atmosphere-Supplying Emergency Escape Breathing Apparatus Program 
(Dec. 2016). https://railroads.dot.gov/elibrary/federal-railroad-administration-guidance-developing-atmosphere-supplying-emergency-escape.
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B. Summary of Major Provisions

    This final rule amends subpart C of 49 CFR part 227 to require any 
freight railroad to provide a covered employee an appropriate 
atmosphere-supplying EEBA when occupying a locomotive cab of a train 
transporting a hazardous material that would pose an inhalation hazard 
if released during an accident. Employees covered under this final rule 
include train employees, their supervisor, a deadheading employee, and 
any other employee designated by the railroad who is in the cab of a 
locomotive. This this final rule addresses the inhalation hazards 
associated with the hazardous materials that PHMSA identifies as 
``materials poisonous by inhalation,'' which are commonly referred to 
as ``PIH materials'' and are defined by PHMSA's Hazardous Materials 
Regulations as: (1) a gas meeting the defining criteria in 49 CFR 
173.115(c) (i.e., Division 2.3--Gas poisonous by inhalation) and 
assigned to Hazard Zone A, B, C, or D in accordance with 49 CFR 
173.116(a); (2) a liquid, other than a mist, meeting the defining 
criteria regarding inhalation toxicity in 49 CFR 173.132(a)(1)(iii) and 
assigned to Hazard Zone A or B in accordance with 49 CFR 173.133(a); or 
(3) any material identified as an inhalation hazard by a special 
provision in column 7 of the table in 49 CFR 172.101.\6\
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    \6\ 49 CFR 171.8.
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    This final rule requires railroads that transport a PIH material on 
the general railroad system of transportation to establish and carry 
out programs for: selection, procurement, and provision of EEBAs; 
inspection, maintenance, and replacement of EEBAs; and instruction of 
employees in the use of EEBAs. Railroads are required to identify 
individual employees or positions to be

[[Page 5115]]

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. 
This final rule requires railroads to provide for storage of EEBAs in 
locomotive cabs 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 regulation is being placed in 49 CFR part 227, 
noncompliance with these regulations may trigger enforcement action and 
penalties as described in 49 CFR 227.9. FRA is also making conforming 
changes, minor corrections, and updates to some of the existing 
provisions of part 227. Further, FRA is removing the provision at 49 
CFR 227.7 on the preemptive effect of part 227 as it is unnecessary 
because it is duplicative of statutory law at 49 U.S.C. 20106 and case 
law. See Napier v. Atlantic Coast Line R.R., 272 U.S. 605, 613; 47 
S.Ct. 207, 210 (1926).

C. Costs and Benefits

    FRA analyzed the economic impact of this final rule. FRA estimated 
the costs to be incurred by railroads and the qualitative benefits of 
fewer injuries to crewmembers from PIH material releasing after an 
accident/incident.
    This final rule requires that a railroad provide an EEBA for each 
covered employee in a locomotive cab on a freight train transporting 
any PIH material. These EEBAs will provide neck and face coverage with 
respiratory protection for the covered employees. Railroads must also 
ensure that the equipment is maintained and in proper working 
condition. Finally, railroads are required to train covered employees 
on the use of the EEBAs. The main objective of this final rule is to 
protect covered employees from the risk of exposure to PIH materials 
while the employees are in the locomotive cab or escaping from a 
hazardous materials release posing an inhalation hazard.
    Details on the estimated costs of this final rule can be found in 
the Regulatory Impact Analysis (RIA), which FRA has prepared and placed 
in the docket (FRA-2009-0044). The RIA presents estimates of the costs 
likely to occur over the first 10 years of the final rule. The analysis 
includes estimates of costs associated with the purchase of EEBAs and 
installation, employee training, and recordkeeping.
    FRA has estimated costs for three options that are permissible 
under the final rule. These include:

     Option 1: Employee Assignment--EEBAs are assigned to 
all covered employees and considered part of their equipment.
     Option 2: Locomotive Assignment--EEBAs are assigned to 
and kept in locomotives.
     Option 3: Equipment Pooling--EEBAs are pooled at rail 
yards and kept in storage lockers where employees would check-in and 
check-out the EEBA when PIH is being hauled.

    For all three options, FRA developed estimates using a closed-
circuit EEBA.\7\ For the ``Employee Assignment'' option, FRA estimates 
that the costs associated with issuing each T&E employee (with an 
estimated 60,000 T&E employees) with an EEBA as their own personal 
equipment. The ``Locomotive Assignment'' option would require 
installing EEBA devices in all locomotives in a railroad's fleet, 
regardless of whether a locomotive is part of a train that is 
transporting PIH material. There are approximately 24,000 locomotives 
owned by Class I railroads, and FRA estimates that at least three 
apparatuses would have to be installed in each locomotive, one 
apparatus each for the conductor, the engineer, and an additional 
covered employee. In the ``Equipment Pooling'' option, FRA considered 
only having EEBAs provided in trainsets that were transporting PIH. 
EEBAs would be brought on board after a determination is made on a 
case-by-case basis.
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    \7\ A closed-circuit EEBA is a device designed for use as 
respiratory protection during entry into hazardous atmospheres that 
can be immediately dangerous to life and health and are described as 
an apparatus of the type in which the exhaled breath is rebreathed 
by the wearer after the CO2 has been effectively removed 
and oxygen concentration restored to suitable levels.
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    FRA estimates the 10-year costs of the final rule to be between 
$27.1 million to $91.9 million, discounted at 7 percent. The following 
table shows the total costs of this final rule, over the 10-year 
analysis period.
    Total 10-Year Costs (2021 Dollars) \8\
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    \8\ Numbers in this table and subsequent tables may not sum due 
to rounding.

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                                   10-Year cost    Present value   Present value   Annualized 7%   Annualized 3%
            Category                    ($)           7% ($)          3% ($)            ($)             ($)
----------------------------------------------------------------------------------------------------------------
Option 1: Employee Assignment...      92,327,892      79,247,309      86,066,845      11,283,034      10,089,660
Option 2: Locomotive Assignment.     107,153,842      91,909,968      99,855,523      13,085,912      11,706,114
Option 3: Equipment Pooling.....      33,546,542      27,116,550      30,415,557       3,860,787       3,565,631
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    The benefits associated with this final rule are qualitative in 
nature and relate to the prevention of causalities and injuries. This 
rule is expected to improve railroad safety by ensuring that all 
covered employees in locomotives on freight trains transporting PIH 
material can safely vacate the exposed area if a PIH material release 
were to occur. The primary benefits include heightened safety for 
covered employees and, as a result, earlier awareness/notification to 
the public of any catastrophic release of a PIH material. 
Implementation of this rule should mitigate the injuries to covered 
employees from PIH material releasing after an accident/incident.

II. Statutory Authority

    Section 413 of 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. 49

[[Page 5116]]

CFR 1.89(b). Additionally, FRA is issuing this final rule under the 
authority of 49 U.S.C. 20103 and 20701-20703, as delegated to the 
Administrator of FRA pursuant to 49 CFR 1.89(a).

III. Background

A. Accident History and NTSB Recommendation R-05-17

    As noted in the 2010 NPRM, historical data suggests limited train 
crew injuries and fatalities related to the catastrophic release of a 
PIH material; in the last decade (2013 to 2022), there were no PIH-
related fatalities of, or injuries to, T&E personnel.
    While rail accidents involving the release of PIH materials are 
rare; as demonstrated by the June 2004 rail accident in Macdona, Texas, 
and the January 2005 accident in Graniteville, South Carolina, such 
accidents can be deadly to both the crew members involved and others in 
the vicinity. Both the Macdona and Graniteville accidents involved the 
release of a PIH material (chlorine) and both accidents resulted in the 
deaths of crewmembers.
    The collision near Macdona occurred on June 28, 2004. According to 
the NTSB's report,\9\ a westbound freight train traveling on the same 
main line track as an eastbound freight train struck the midpoint of 
the 123-car eastbound train as it was leaving the main line to enter a 
parallel siding. The collision derailed the 4 locomotive units and the 
first 19 cars of the westbound train as well as 17 cars of the 
eastbound train. As a result of the derailment and pileup of railcars, 
the 16th car of the westbound train, a pressure car loaded with 
liquefied chlorine, was punctured. Chlorine escaping from this car 
immediately vaporized into a cloud of chlorine gas that engulfed the 
accident area to a radius of more than 700 feet. Three people, 
including the conductor of the westbound train and two local residents, 
died as a result of chlorine gas inhalation.
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    \9\ ``Collision of Union Pacific Railroad Train MHOTU-23 With 
BNSF Railway Company Train MEAP-TUL-126-D With Subsequent Derailment 
and Hazardous Materials Release, Macdona, Texas, June 28, 2004,'' 
Railroad Accident Report NTSB/RAR-06/03, Washington, DC.
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    The Graniteville accident occurred on January 6, 2005, when a 
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, which resulted in the train engineer 
and eight other people dying from chlorine gas inhalation.\10\
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    \10\ ``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.
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    Following the Macdona and Graniteville accidents, the NTSB issued 
Safety Recommendation R-05-17 to FRA recommending that FRA determine 
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 those 
breathing apparatus to their crewmembers along with appropriate 
training.

B. FRA Sponsored Study

    In response to NTSB Safety Recommendation R-05-17, FRA commissioned 
a study of EEBAs in cooperation with the railroad industry and railroad 
labor organizations. As part of the study, FRA 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.'' The study, published in 2009, 
provided information and recommendations on the use of EEBAs by train 
crews who may be exposed to hazardous materials that pose inhalation 
hazards. The study concluded that railroads should consider using EEBAs 
on trains transporting hazardous materials that pose an inhalation 
hazard.\11\ Part of the preamble to this final rule draws from the 
study; however, after further consideration of the issues involved and 
consultation with representatives of the railroad industry and railroad 
labor organizations (as discussed under ``Section VII. Information and 
Recommendations Provided by the Railroad Industry and Railroad Labor 
Organizations after the Study''), FRA has come to different conclusions 
on a number of matters, including 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.
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    \11\ See ``Emergency Escape Breathing Apparatus,'' FRA Office of 
Research and Development, Final Report, May 2009, which is posted at 
https://railroads.dot.gov/sites/fra.dot.gov/files/fra_net/1419/ord0911.pdf.
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C. FRA's 2016 Guidance for Developing an EEBA Program

    In December 2016, FRA published, in the absence of a final rule, 
Guidance for Developing an EEBA Program.\12\ This provided guidance to 
railroads for developing and implementing an individualized EEBA 
program to protect their crewmembers. The guidance highlights factors 
to consider when selecting an appropriate EEBA and explains various 
components to evaluate when developing an EEBA program. However, the 
statutory mandate remains in place, and NTSB found that the Guidance 
did not satisfy its recommendation. In addition, FRA is unaware of the 
Guidance leading to any railroad developing an EEBA program or making 
EEBAs generally available to their crewmembers.
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    \12\ Federal Railroad Administration Guidance for Developing an 
Atmosphere-Supplying Emergency Escape Breathing Apparatus Program 
(Dec. 2016). https://railroads.dot.gov/elibrary/federal-railroad-administration-guidance-developing-atmosphere-supplying-emergency-escape.
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IV. Selection of the Appropriate EEBA by Railroads

    As explained in the 2010 NPRM, EEBAs are ``respirators'' and 
generally there are two different types of respirators: air-purifying 
and atmosphere-supplying. 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 below, FRA is requiring an atmosphere-supplying 
respirator that provides adequate head and neck protection as well as 
giving sufficient time for its user to escape an IDLH atmosphere.\13\
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    \13\ NIOSH defines an IDLH as ``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.'' See 29 CFR 1910.134(b).
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    In the 2010 NPRM, FRA noted that it was aware of three main 
organizations that had promulgated standards governing the use and 
maintenance of respirators--NIOSH, OSHA, and the ISO.\14\ Since 
issuance of the 2010 NPRM, FRA has become aware of a

[[Page 5117]]

fourth organization, CEN, that has also developed two relevant 
standards.
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    \14\ 75 FR 61386, 61390 (Oct. 5, 2010).
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    As explained in the 2010 NPRM, NIOSH, located within the Centers 
for Disease Control and Prevention of the U.S. Department of Health and 
Human Services, 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. NIOSH has also developed 
information on safe levels of exposure to toxic materials and harmful 
physical agents and issued recommendations for respirator use.
    ISO has also established standards for respirator maintenance and 
use. 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 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, ``Ships 
and marine technology--Breathing apparatus for ships--Part 1: Emergency 
escape breathing devices (EEBD) for shipboard use, First Edition (2008-
02-01).'' While ISO 23269-1:2008 is directed towards EEBAs on ships and 
marine technology, the standard can be reasonably transferred to the 
railroad environment. ISO 23269-1:2008 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.\15\
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    \15\ However, as explained below, FRA believes that the minimum 
breathing capacity allowed by ISO 23269-1:2008, which is 10 minutes, 
is insufficient for the anticipated use in a railroad environment. 
As a result, the proposed rule requires 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-
1:2008.
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    CEN serves a similar purpose as ISO in that it develops consensus 
standards for European countries. In creating these standards, CEN 
relies on the input of technical experts, business and consumer groups, 
and other societal interest organizations. Additionally, there is a 
measure of interconnectedness between the ISO and CEN, as CEN has 
entered into a cooperative agreement with ISO to avoid duplicative 
standards. In the area of escape respirators, CEN has developed two 
standards that railroads could use to identify an appropriate EEBA to 
provide to an employee. The first standard establishes requirements for 
approving closed-circuit escape respirators, see BS EN 13794:2002, 
``Respiratory Protective Devices--Self-Contained, Closed-Circuit 
Breathing Apparatus for Escape--Requirements, Testing, Marking 
(November 2002),'' while the second standard establishes requirements 
for approving open-circuit escape respirators, see BS EN 1146:2005, 
``Respiratory Protective Devices--Self-Contained, Open-Circuit 
Compressed Air Breathing Apparatus Incorporating a Hood for Escape--
Requirements, Testing, Marking (February 2006).'' While BS EN 
13794:2002 and BS EN 1146:2005 are standards created for the European 
market, FRA finds that compliance with either standard would be 
adequate to establish the reliability of a device, subject to the 
provisions of this regulation, specifically, 49 CFR 227.203, which is 
discussed in detail below. See VIII. Public Comment on the NPRM, with 
FRA's Response and IX. Section-by-Section Analysis.
    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 maintenance, care, and use of respirators of all types, 
including emergency escape devices. See 29 CFR 1910.134.
    In drafting this final rule, FRA considered the comments submitted 
in response to the SNPRM and the requirements of both Federal agencies 
(NIOSH and OSHA) as well as the ISO and EN standards to assist in 
determining the possible types of EEBAs that may be used by railroad 
employees covered under this rule. To determine which type or types of 
EEBAs are appropriate, FRA has looked to the comprehensive selection 
process for respirators developed by NIOSH.\16\ 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 O2); and (2) use in, entry 
into, or escape from, unknown or IDLH atmospheres (e.g., an emergency 
situation).
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    \16\ https://www.cdc.gov/niosh/docs/2005-100/default.html.
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    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 parts per million (ppm).\17\ 
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 
fatalities to persons who were not railroad employees in the 
Graniteville accident 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 accident. 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.
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    \17\ See R.L. Buckley, Detailed Numerical Simulation of the 
Graniteville Train Collision, Savannah River National Laboratory, 
Report WSRC-MS-2005-00635 October 2005.
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    The Graniteville accident demonstrated that railroad hazardous 
material incidents (meaning collisions, derailments, or other train 
accidents) involving the catastrophic loss of certain 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 
is, based on the NIOSH selection criteria, proposing to require that 
railroads provide an escape-type respirator to covered employees.
    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.\18\ Instead,

[[Page 5118]]

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.
---------------------------------------------------------------------------

    \18\ ``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, and as proposed in the 2010 
NPRM and 2023 SNPRM, this final rule would require providing 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 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 that of 
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, 
rebreathers perform as their name implies. The user rebreathes his or 
her breath. A chemical scrubber removes the CO2 from the 
user's breath and makes up metabolized O2 from a small 
bottle of compressed 100-percent O2. Because the user is 
rebreathing his or her exhaled air containing 15 percent oxygen, a 
rebreather 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. 
Rebreathers may be employed with full-face masks or hoods. Negative 
pressure rebreathers 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 being 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 five minutes to escape from any plume that may be present. 
Moreover, often individuals will have a tendency to breathe rapidly and 
deeply 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 is proposing to require that EEBAs being provided to 
covered employees have at least a 15-minute minimum breathing capacity. 
Further, FRA encourages railroads to consider EEBAs with a longer 
breathing capacity, to provide an extra margin for escape under 
stressful circumstances.

V. Provision of EEBAs to Covered Employees

    FRA has decided not to mandate a specific method by which railroads 
must provide EEBAs to covered employees. See discussion of covered 
employees at IX. Section-by-Section Analysis of 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, its locomotive fleet, or both. Each of these options has 
advantages and disadvantages. Given these factors, FRA believes that 
the regulation most efficiently serves the RSIA mandate by allowing 
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 a 
PIH material; and (2) transportation of a covered hazardous material is 
not unduly delayed, thereby posing additional risk, 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 VII. 
Information and Recommendations Provided by the Railroad Industry and 
Railroad Labor Organizations after the Study, for relevant remarks. In 
the following paragraphs, FRA discusses five options available to 
railroads for providing EEBAs to covered employees.
    Under this final rule, EEBAs may be treated as part of an 
employee's permanently issued items, similar to eye protection, radios, 
and lanterns. This method of distribution 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 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 for ensuring 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. However, permanently issuing EEBAs to 
employees results in substantial costs. Over a 10-year period, total 
costs would be approximately $92 million. Other negative aspects of 
treating EEBAs as a permanently issued item include difficulty in 
monitoring the condition of

[[Page 5119]]

the EEBA and ensuring that the required EEBA is with the user at all 
times. 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 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 individual customization and 
allows the EEBA to be with the user at all times 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 who have the potential to work 
in the locomotive cab of a freight train transporting 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.
    A third option is to treat EEBAs as ``pool'' items. The EEBAs would 
not be assigned to a specific individual. They 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 option supports centralized 
inspection and maintenance while minimizing number of EEBAs required, 
which could reduce costs substantially. FRA estimates that trains 
transporting PIH materials amount to approximately 0.2 percent of all 
train traffic, as cars carrying PIH materials are concentrated in 
relatively few trains. If railroads chose this option, they could stock 
enough EEBAs to cover 10 percent of the entire locomotive fleet for 
approximately $33.5 million over a 10-year period. Equipping enough 
EEBAs to cover 10 percent of the entire locomotive fleet should allow 
for every locomotive that will be part of train transporting a PIH 
material to be equipped with the necessary devices for each covered 
employee provided that the railroads exercise adequate resource 
management with respect to EEBAs. This would ensure that the EEBA would 
be with the user throughout his or her entire shift. However, railroads 
likely would have to allocate or build space at one or more locations 
(depending on the size of the railroad) to warehouse EEBAs that are not 
being used by covered employees. Moreover, an employee must be assigned 
to monitor the handing out and returning of devices. This system also 
may have hidden costs, such as losing the potential benefits of a sense 
of employee ``ownership'' if EEBAs are treated as common property.
    A fourth option is to have EEBAs permanently mounted in each 
locomotive cab in the railroad's fleet. This method would ensure that 
trains transported by the railroad that include 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 and since EEBAs must be 
provided for worst-case crewing (including possible supernumerary 
personnel such as deadheading employees), increased management burden 
for tracking/recovery, increased management burden for item inspection 
and maintenance, and unavailability of customized EEBAs. Additionally, 
FRA has estimated that the total 10-year cost of outfitting all 
locomotives to be approximately $106.8 million. These estimates could 
be reduced if railroads opted to dedicate a portion of their locomotive 
fleet to service for trains transporting PIH materials, subject to 
balancing any impact on operating efficiencies.
    As discussed in section VII. 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 will provide the same type of EEBA while 
also using the same method of equipping the locomotive, which would 
expedite interchange between two Class I railroads. However, the option 
of permanently mounting a specific type of EEBA within each locomotive 
owned by a Class I railroad could create delays at interchange if the 
locomotives from nonparticipating railroads also 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 Sec.  227.211.
    A fifth option is for EEBAs to be temporarily mounted in the 
locomotive cab as the train containing a shipment of PIH material is 
made up. Using this option would help to minimize the number of EEBAs 
required, while ensuring that each consist containing a PIH material is 
appropriately equipped. It would also allow the railroad to cater 
efficiently to differing crew sizes. Drawbacks 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 only a few of the numerous options 
for the provision of EEBAs, each involving its own considerations. Any 
of these options (or combination of these options), including options 
that have not been discussed above, is acceptable under this final 
rule, as long as a suitable EEBA is provided by the railroad to each 
covered employee while they are in a locomotive cab of a covered train 
and the transportation of covered hazardous materials via rail is not 
unduly delayed.

VI. 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 organizations cooperated with the FRA-
sponsored study on the feasibility of providing EEBAs to train crews, 
the report of which was published in May 2009. AAR, UTU,\19\ and BLET 
also exchanged information and ideas with FRA on issues related to this 
rulemaking, as summarized below.
---------------------------------------------------------------------------

    \19\ UTU is now part of the International Association of Sheet 
Metal, Air, Rail and Transportation Workers (SMART).
---------------------------------------------------------------------------

    In July 2009, prior to the publication of the 2010 NPRM, 
representatives of AAR briefed FRA with information on AAR's 
exploration of alternative ways by which the rulemaking mandate under 
section 413 of the RSIA might be carried out. 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 AAR thought would 
satisfy the statutory mandate. Subsequently, in a letter to FRA dated 
January 13, 2010, AAR encouraged FRA to incorporate by reference a 
draft specification establishing guidelines for: (1) vendors of EEBAs 
that would be used by Class I railroads; (2) mounting EEBAs on 
locomotives; and (3) requiring training support.
    FRA considered incorporating by reference a finalized version of 
AAR's specification; however, FRA has ultimately decided not to do so. 
Many comments raised questions about the details of the specification, 
and FRA

[[Page 5120]]

believes this final rule provides a clearer standard for efficiently 
complying with the RSIA mandate. Of course, AAR is free to rely on a 
final specification to normalize EEBAs among Class I railroads, as long 
as the specification complies with the requirements in subpart C.
    Additionally, in the course of drafting the 2010 NPRM, FRA 
representatives met with UTU and BLET representatives on March 31, 
2010, who briefed FRA on issues related to the provision of EEBAs. AAR 
was also in attendance at this meeting. 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 PIH materials--
as long the locomotive is operating over a rail line that carries such 
materials.
    During the March 31, 2010, 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.
    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.

VII. Public Comment on the SNPRM, With FRA's Response

A. Introduction

    FRA received 7 sets of comments on the SNPRM from 8 different 
entities (AAR and ASLRRA jointly submitted comments), covering a broad 
spectrum of interests which resulted in revisions to this final rule. 
These commenters included the railroad industry, a labor organization, 
the NTSB, and concerned individuals. In revising this final rule, FRA 
has considered each issue raised by the commenters, and it addresses 
those issues in this section.

B. Comments on the Preamble, With FRA's Response

    AAR and ASLRRA argue that FRA has not adequately accounted for the 
costs of installation and recordkeeping associated with the managing of 
an EEBA program. They argue that FRA has not properly accounted for 
tasks such as developing and implementing testing and inspection 
protocols for devices, conducting scrap planning, tracking pilferage or 
damage, anticipating future EEBA purchases, assessing employee 
turnover, identifying EEBA reallocation needs, tracking wear and tear 
on mounting systems, and developing and implementing training for EEBA 
usage and management. However, FRA included these very considerations 
in the cost estimates presented in the SNPRM. FRA's estimates were not 
broken down into such granular detail, but those same administrative 
and management considerations were included. AAR and ASLRRA 
specifically point to the EEBA pooling option (the lowest cost option) 
as having the highest of these associated administrative costs. In 
response, FRA reexamined its initial administrative and management 
costs estimates, particularly as they relate to the EEBA pooling 
option, to ensure they are being properly accounted for and concluded 
the original cost estimates were correct.
    AAR and ASLRRA note that the hazmat exposure resulting from the 
2014 Texas incident addressed in the SNPRM () was to battery acid, 
which is not a PIH or an asphyxiant. FRA has examined this incident and 
concluded that AAR and ASLRRA are correct; this was not a hazmat 
release where an injury due to contact with the hazmat would have been 
prevented by an EEBA as contemplated in this rulemaking. FRA has also 
reexamined the other incident (2012, New Jersey) referred to in the 
SNPRM and arrived at the same conclusion. Accordingly, FRA has removed 
both incidents from its calculation of this rulemaking's benefits. AAR 
and ASLRRA also state that FRA does not address effective usage rates 
for EEBAs when determining the costs and benefits. However, usage rates 
have no impact on the costs and since FRA has removed the two above 
incidents the effective usage rate has no impact on the estimated 
benefits either.
    AAR and ASLRRA argue that ``[r]ailroads are safer now than they 
were when the RSIA was passed'' stating that since 2008 there has been 
a ``23 percent decrease in the mainline accident rate'' and that 
``hazmat accident rates have declined by 55 percent'' in the same 
period. They contend that ``operational changes related to the 
implementation of Positive Train Control, speed restrictions that are 
required for trains transporting poisonous-inhalation-hazard (PIH) 
materials, and improvements to tank cars have substantially reduced the 
likelihood of a PIH material release.'' They also note that in ``the 
SNPRM, FRA adjusts its 10-year benefit estimate downward from $13.5 
million to $63,720'' and that this ``amounts to an annualized societal 
benefit estimate of only $6,138.'' They argue that FRA should not 
advance this EEBA regulation and instead put its resources toward 
continuing to minimize the number and consequence of rail accidents 
involving hazardous materials. In response to these comments, FRA notes 
that the RSIA mandates that the Secretary adopt regulations requiring 
railroads to provide EEBAs for train crews occupying locomotive cabs of 
any freight train transporting a hazardous material in commerce that 
would present an inhalation hazard in the event of a release. Given 
this statutory mandate, FRA is issuing a rule that not only considers 
the costs, but also provides a mechanism to enhance safety for railroad 
employees transporting hazardous materials presenting an inhalation 
hazard if a release occurs. Moreover, FRA has recently undertaken a 
number of rulemaking initiatives in a variety of disciplines, including 
re-engineering tank cars (in cooperation with PHMSA), PTC, and 
amendments to operating rules, all designed to improve the safety of 
railroad operations, and thus reduce the rate of incidents, including 
those involving hazardous materials. As with all complex systems, 
however, there are occasions when failures do occur. This final rule 
provides an additional element of protection for covered employees 
should an accident with a PIH release occur in the future. AAR and 
ASLRRA also suggest that FRA has no reasonable basis for issuing a 
final rule if, in FRA's analysis, the costs exceed the benefits. 
However, a lack of quantifiable (i.e., monetized) benefits, or 
quantifiable costs exceeding quantifiable benefits, is not dispositive 
for an agency's rulemaking analysis. Indeed, OMB Circular A-4 directs 
agencies to describe benefits qualitatively when it is not possible to 
quantify or monetize all of a rule's important benefits. Agencies 
should also take other factors, such as statutory mandates, into 
account when comparing the anticipated costs and benefits of a 
rulemaking. Here, Congress, through the RSIA, established

[[Page 5121]]

a statutory mandate to promulgate regulations that require railroads to 
provide EEBAs for all crewmembers in locomotive cabs on freight trains 
carrying hazardous materials that would pose an inhalation hazard in 
the event of release and that alone provides a reasonable basis for 
issuing this final rule.
    The individual commenter also states that a new cost-benefit 
analysis should be conducted. However, FRA already conducted a new 
cost-benefit analysis in the SNPRM and again analyzed the costs and 
benefits in this final rule. The same individual commenter also 
questions whether the addition of EEBAs to locomotive cabs will 
increase the risk of fire. FRA has examined this issue and found that 
EEBAs do not themselves present a fire risk and that their inclusion in 
a locomotives cab will not increase its flammability.
    AAR and ASLRRA also commented on the deadlines for compliance which 
are 12, 12, and 18 months respectively for Class I, II, and III 
railroads. AAR and ASLRRA argue that the timeline of the 2010 NPRM (24, 
30, and 36 months respectively) is more appropriate. However, given the 
length of time since the publication of the 2008 RSIA mandate, 2010 
NPRM, FRA's issuance of guidance in 2016, and the 2023 SNPRM, railroads 
have been on notice about the need to provide EEBAs and the lengthy 
timelines from the 2010 NPRM are no longer necessary.
    AAR and ASLRRA's comments address concerns about the financial 
impact of the RSIA mandate on small entities in the railroad industry, 
which they contend lack pricing power to pass on the costs of this rule 
to their customers and have small capital budgets necessitating that 
other work, such as track maintenance, will have to be deferred to pay 
for it. AAR and ASLRRA contend that while the initial costs for Class 
III railroads may indeed be modest, the ongoing costs for inspection, 
maintenance, replacement, and enforcement penalties will result in 
permanent ongoing expenditures that will be particularly impactful on 
small railroads as they are likely to: (1) focus on the purchase of 
EEBAs based on crew terminals and number of customers, (2) face higher 
costs than estimated and have limited options to benefit for bulk 
orders; and (3) face disproportionately high training costs. AAR and 
ASLRRA estimate that the total compliance present costs \20\ (at 7%) to 
be borne by Class II and III railroads at over $6.6 million, or over 
$945,000 on an annualized basis. For just Class III railroads, ASLRRA 
projects total present costs (at 7%) to amount to almost $4.9 million, 
with the individual annualized cost to each of the 110 impacted 
railroads estimated to be $6,333 per year, or more than four times the 
cost estimated in the SNPRM. As such, AAR and ASLRRA ask that FRA 
exercise its discretion, in this particular instance, to provide a ``de 
minimis'' exception for railroad operations, similar to what FRA 
provided for PTC requirements, to exempt Class II and III railroads 
from the requirement to provide EEBAs.
---------------------------------------------------------------------------

    \20\ AAR and ASLRRA developed this estimate using an equipment 
pooling approach.
---------------------------------------------------------------------------

    While FRA understands ALSRRA's concerns, the agency is constrained 
by section 413 of the RSIA. Unlike with PTC, Congress did not carve out 
an exemption for Class II and Class III railroads from the statutory 
requirement. See section 104 of the RSIA. Instead, Congress used broad 
language that covers any railroad carrier transporting hazardous 
materials that would pose an inhalation hazard in the event of release. 
In light of this language, FRA cannot institute an exception for Class 
II and III railroads without congressional action. Notwithstanding 
these constraints, FRA has enacted measures to limit the costs for 
railroads. In particular, FRA has provided flexibility to allow 
railroads to pursue the most cost-effective way to provide EEBAs in 
accordance with the statutory requirements and this final rule. 
Additionally, small railroads could consider pooling resources wherever 
possible for requirements such as periodic training. Indeed, many small 
railroads are jointly owned by the same holding companies making 
resource pooling even easier. In light of the concerns raised above, 
FRA has reexamined its estimated costs for small railroads to ensure 
that their unique conditions are being properly accounted for and 
concluded they have been.

C. Section-Specific Public Comments, With FRA's Response

    FRA received comments on changes to Sec. Sec.  227.201(a)(1), 
227.203(c), 227.207, 227.209, and 227.215 of the SNPRM.
1. Comments on Sec.  227.201(a)(1), With FRA's Response
    BRS and an individual commenter suggested that EEBAs should also be 
provided to employees working outside the locomotive cab such as 
signalmen and yard employees. In particular, BRS suggests that 
signalmen would benefit from EEBAs as they are among the first 
responders to rail accidents and would benefit from respiratory 
protection systems in the event of a hazardous material release.
    The RSIA established a statutory mandate to promulgate regulations 
that require railroads to provide EEBAs ``for all crewmembers in 
locomotive cabs on freight trains carrying hazardous materials that 
would pose an inhalation hazard in the event of release.'' If Congress 
had wanted the Secretary to promulgate more expansive regulations 
covering areas outside the locomotive cab, then it would have chosen 
different language requiring that FRA cover personnel in areas other 
than locomotive cabs, including signalmen and employees in rail yards. 
Since Congress did not do so, FRA does not propose to include requiring 
the provision of EEBAs at strategically placed locations in rail yards. 
Furthermore, the purpose of EEBAs is to allow railroad employees 
located in the cab to better escape an accident, they are not intended 
for use by responders. However, the rule in no way prohibits railroads 
from voluntarily distributing EEBAs to their employees not covered by 
this regulation.
    AAR and ASLRRA argue that FRA has exercised discretion beyond the 
statutory mandate of the RSIA by requiring that persons, other than 
solely crewmembers, be provided EEBAs when located in the locomotive 
cab of an in-service freight train transporting a PIH material. FRA 
agrees that the RSIA's mandate is for an EEBA to be provided ``for all 
crewmembers.'' However, the RSIA does not limit which railroad 
employees in the cab of a locomotive must be provided with an EEBA and 
does not define crewmembers. FRA considered worst-case crewing 
scenarios that included possible supernumerary personnel such as 
supervisors and deadheading employees who might be in the locomotive 
cab during a PIH release and concluded that requiring the railroads 
provide such employees with EEBAs to be consistent with RSIA's mandate 
and in the general interest of employee safety.
2. Comments on Sec.  227.203(c), With FRA's Response
    AAR and ASLRRA note that Sec.  227.203(b) of the SNPRM proposed to 
require railroads to use an EEBA certified by NIOSH or meeting criteria 
set by specified industry organizations. Therefore, AAR and ASLRRA 
argue no further showing of the adequacy of the EEBA should be 
necessary and that Sec.  227.203(c) should be deleted. FRA disagrees 
because Sec.  227.203(c) provides considerations beyond the minimum 
criteria required under the NIOSH, ISO, or EN standard. For example, 
FRA has concluded that the minimum breathing capacity allowed by ISO 
23269-1:2008,

[[Page 5122]]

which is 10 minutes, is insufficient for the anticipated use in a 
railroad environment. As a result, this final rule requires a minimum 
breathing capacity of 15 minutes. FRA concluded, by the same logic, 
that the considerations for head and neck protection and accommodations 
for eyeglasses and a range of facial features contained in Sec.  
227.203(c) are necessary even if they go beyond the NIOSH, ISO, or EN 
standards. FRA is therefore keeping the requirements in Sec.  
227.203(c).
3. Comments on Sec.  227.207, With FRA's Response
    AAR and ASLRRA comment that FRA goes beyond the rulemaking 
discretion afforded it in the RSIA in requiring pre-trip inspections of 
EEBAs in Sec.  227.207(a)(1) and that such inspections would be overly 
burdensome. AAR suggests that FRA should rely instead on the periodic 
inspections required in Sec.  227.207(a)(2).
    The RSIA requires that EEBAs be maintained in proper working 
condition. FRA considers pre-trip inspections the most effective method 
of ensuring compliance with this statutory mandate because the final 
rule requires that an EEBA for each employee will be in the locomotive 
cab prior to departure. For example, FRA can envision scenarios where 
at least two crews could be relying on locomotive-mounted EEBAs and, 
absent a pre-trip inspection, the second crew would have no means to 
verify that the devices were present and ready for service. Such 
verification is essential to ensuring equipment is properly maintained. 
Therefore, FRA believes that the pre-trip inspection requirement is 
fully consistent with FRA's authority under the RSIA.
    FRA also disagrees that the pre-trip inspection is an overly 
burdensome requirement. FRA expects that the pre-trip inspection will 
be a quick check to ensure that the appropriate accompaniment of EEBAs 
is provided and that those devices are charged to provide a minimum 15-
minute breathing capacity, as well as any of other necessary checks 
that the manufacturer recommends. The nature of this pre-trip 
inspection may be as simple as visually inspecting and verifying that 
the case has not been tampered with and that all gauges and other 
indicators are in an acceptable range.
    AAR and ASLRRA also oppose the recordkeeping requirements in Sec.  
227.207 for the same reasons they oppose Sec.  227.207(a)(1) above. 
FRA's response is also the same; the RSIA mandates that EEBAs be 
maintained in proper working condition. Meeting this mandate requires 
some level of recordkeeping to ensure compliance. While FRA views pre-
trip inspection records as necessary to ensure compliance with the RSIA 
mandate, it should be noted that the record of pre-trip inspections, 
depending on the device selected, may be as simple as the check-off/
initialed card used on fire extinguishers. FRA also understands that 
some of the Class I carriers are considering using RFID tags to track 
and record the inspection of individual EEBA units. The use of this 
technology could possibly minimize the inspection and recordkeeping 
burden.
4. Comments on Sec.  227.209, With FRA's Response
    AAR and ASLRRA comment that ``there is simply no requirement in the 
statutory text and no functional safety rationale for FRA to require 
all railroad employees to be able to demonstrate knowledge of EEBA 
selection criteria, as proposed in Sec.  227.209(2)(b)(6).'' FRA 
believes that a demonstration of knowledge of EEBA selection criteria 
would ensure that employees know the purpose and limitations of the 
selected EEBAs (minimum breathing time, that it covers the full face, 
etc.). However, this information is duplicative of the other training 
requirements in Sec.  227.209(2)(b) and so FRA agrees with its removal.
5. Comments on Sec.  227.215, With FRA's Response
    AAR and ASLRRA comment that FRA goes beyond the rulemaking 
discretion afforded it in the RSIA in requiring that records be kept as 
required in Sec.  227.215. The RSIA mandates that EEBAs be provided to 
all crewmembers in the locomotive cab of a freight train transporting a 
hazardous material that would pose an inhalation hazard in the event of 
release and that all such equipment be maintained in proper working 
condition. Meeting this mandate necessarily requires some level of 
recordkeeping to ensure compliance and Sec.  227.215 simply lays out 
the reasonable requirements for keeping and making the records 
available.

VIII. Section-by-Section Analysis

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

    FRA is changing 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. Part 227 is the best place to put the 
regulations related to EEBAs because the occupational noise regulations 
and the EEBA regulations both concern dangers to the occupational 
safety and health of locomotive cab occupants. However, the inclusion 
of the EEBA regulations requires broadening the name of the part to 
accurately capture the new subject matter that is now covered in that 
part.

Subpart A--General

Section 227.1 Purpose and Scope

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

Section 227.3 Applicability

    FRA amends 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 subpart C. In particular, subpart C applies to a railroad 
transporting an in-service freight train that carries a PIH material on 
track that is part of the general railroad system of transportation. 
See 49 CFR part 209, appendix A.\21\ It should be noted that, with some 
exceptions, common carriers by railroad have a ``common carrier'' 
obligation to accept for rail transportation a PIH material if it is 
properly prepared for transportation. If a railroad accepts and 
transports a tank car containing a load or residue \22\ of 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 the applicability of this rule to a company's first time 
transporting 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 a general EEBA 
program, procurement and distribution of EEBAs,

[[Page 5123]]

and instruction of employees in the program) in advance. Further, a 
delay related to compliance with this final 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.
---------------------------------------------------------------------------

    \21\ As noted in the SNPRM, FRA has removed references to 
``asphyxiants'' that were included in the NPRM. The SNPRM explained 
the reasons for not including simple asphyxiants (i.e., non-PIH 
asphyxiants) as covered materials but invited public comment on 
whether they should be included. 88 FR 17302 at 17312-17313 (Mar. 
22, 2023). FRA received only one comment on this issue, which was 
supportive of removing asphyxiants from this rule.
    \22\ 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.
---------------------------------------------------------------------------

Section 227.5 Definitions

    The rulemaking amends 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).'' A definition of ``PIH material'' 
is included in this final rule to ensure that the universe of materials 
covered by this regulation is adequately described.

Section 227.15 Information Collection

    FRA amends this section to note the provisions of this part, 
including subpart C, that have been reviewed and approved by 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 is making 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 appeared in, for example, Sec.  
227.103(a)(1).

Subpart C--Emergency Escape Breathing Apparatus Standards

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

    Section 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 any other employees designated at 
the railroad's discretion and identified in writing whose duties 
require regular work in the locomotive cabs of in-service freight 
trains transporting 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.
    Section 227.201(a)(2) prohibits utilizing a locomotive to transport 
a PIH material in an in-service freight train unless each of the 
employees identified in paragraph (a)(1) 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 its employees, e.g., as a uniform item; the employee must 
have access to the EEBA 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.
    Section 227.201 also includes exceptions to its general 
requirements in paragraph (b). FRA excludes trains that contain PIH 
materials exclusively in intermodal containers from the requirements in 
this section. Further, employees who are involved in activities, such 
as moving a locomotive coupled to a car or group of cars containing 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.
    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.

Section 227.203 Criteria for Selecting EEBAs

    This section provides the requirements for selecting an EEBA. See 
general discussion at V. Selection of the Appropriate EEBA by 
Railroads, above. The requirements for selecting EEBAs are based on the 
nature and extent of the potential hazard to be faced. Due to the 
varying modes of toxicity and physical state of commodities carried by 
railroads, the selection of EEBA types is limited to those that supply 
a breathable atmosphere to the wearer, rather than types that simply 
filter out the toxic material. Filtering EEBAs cannot provide 
protection from gasses that can displace oxygen in the atmosphere. 
Filtering EEBAs approved for protection against specific materials 
usually are not approved for others of different chemical 
characteristics and generally have an upper concentration limit on 
their protective capabilities.
    Paragraph (a) of Sec.  227.203 requires a railroad to select an 
atmosphere-supplying EEBA that protects against all PIH materials 
(including residues of such commodities) that are being transported by 
an in-service freight train. To ensure that the EEBAs have met a 
standard set of testing criteria, paragraph (b) requires the selection 
of a NIOSH-certified (42 CFR part 84) or ISO-compliant (ISO 23269-
1:2008) EEBA, with 15-minute minimum breathing capacity. In addition, 
FRA has included language in paragraph (b) to permit selection of 
devices that comply with BS EN 13794:2002 or BS EN 1146:2005.
    To ensure that the EEBA provides adequate oxygen to allow train 
employees to extricate themselves from an IDLH atmosphere, FRA requires 
in paragraph (c)(1) that the EEBA must contain a minimum breathing 
capacity of 15 minutes under Sec.  227.207(a)(1).
    In paragraph (c)(2), FRA addresses head and neck protection. The 
EEBA selected by a railroad must facilitate escape from a hazardous 
atmosphere by providing a means of protecting a user's nose and throat 
from inhalation hazards while also protecting the user's eyes from 
irritation.

Section 227.205 Storage Facilities for EEBAs

    This 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 final rule.

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

    This 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 standard. However, minimum 
repair and adjustment requirements also have been adapted from OSHA's 
regulations. See 29 CFR 1910.134(h)(4).
    In paragraph (b), FRA requires that railroads create and maintain 
pre-trip and periodic inspection records and retain these records for a 
period of 92 days and one year, respectively. Paragraph (d) requires 
railroads to create and maintain an accurate record of all

[[Page 5124]]

turn-ins, maintenance, repair, and replacement of EEBAs required by 
paragraph (c) of this section, including EEBAs that are used; and 
retain these records for three years.

Section 227.209 Railroad's Program of Instruction on EEBAs

    This 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 required by this section should be 
considered the minimum, and the railroads are encouraged to provide 
additional relevant information depending on the types of EEBAs 
selected.
    Paragraph (b) requires that any railroad transporting a PIH 
material provide sufficient training to its covered employees. Such 
employees must be able to demonstrate knowledge of 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 provided by the railroad, including the timeframe for 
effective 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; employee responsibilities under 
subpart C; employee rights concerning access to records; and 
identification of hazardous materials that are classified as 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 the EEBA's capabilities.
    This program may be integrated with the railroad's program of 
instruction on the railroad's operating rules required by 49 CFR 217.11 
or its program of instruction for hazmat employees under 49 CFR 
172.704. Under 49 CFR 172.704(a)(3)(ii), for example, hazmat employees 
(which includes crews of freight trains transporting hazardous 
material), must receive ``safety training'' on means ``to protect the 
employee from the hazards associated with hazardous materials to which 
they may be exposed in the workplace, including special measures the 
hazmat employer has implemented to protect employees from exposure.''
    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 with subpart C for the subject railroad. New 
employees must receive initial instruction either by 30 days before the 
applicable date of compliance with subpart C or prior to being assigned 
to jobs where EEBAs are required to be provided on a locomotive, 
whichever is later. The initial instruction must be supplemented with 
periodic instruction at least once every three years.
    Section 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 at least three years.

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

    In this 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, as discussed in detail at section IV. FRA-
Sponsored Study and section V. Selection of the Appropriate EEBA by 
Railroads, above. Many of the procedures will likely be used as a basis 
for aspects of the required instructional program.
    Paragraph (b)(1) requires that each railroad's general program 
identify the railroad's EEBA manager by title and requires that the 
EEBA manager is qualified to oversee the program.
    Section 227.211(b)(4) requires the following individuals 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 
transport 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.
    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 consider 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 regulations govern the exposure of this 
employee throughout the year despite the fact that the employee only 
spent three months inside the cab. This employee is covered by this 
part because he or she 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 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 have to 
provide the EEBA to the employee in that way, in the locomotive cab. On 
the other hand, if the railroad's program

[[Page 5125]]

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 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 have access to a 
working EEBA. One constant is that all railroads, subject to this part, 
are required to instruct employees placed in their general EEBA program 
in how to use EEBAs; the provision on instruction at Sec.  227.209 
requires that all employees, identified in Sec.  227.211, be provided 
instruction on EEBAs.
    Finally, 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 EEBAs are not always directly 
supervised by managers who can ensure the identified tasks are done at 
the appropriate time and frequency, this 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 
prohibits 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.''

Section 227.215 Recordkeeping in General

    Section 227.215 sets out the general recordkeeping provisions for 
subpart C. Section 227.215(a) addresses the availability of required 
records. Section 227.215(a) provides that records required under this 
part, except for records of pre-trip inspections, be kept at system and 
division headquarters. It requires that a railroad make all records 
available for inspection and copying or photocopying by representatives 
of FRA upon request. The railroad must also make an employee's records 
available for inspection and copying or photocopying by that employee 
or such person's representative upon written authorization by such 
employee.
    Section 227.215(b) permits required records to be kept in 
electronic form. These requirements are almost identical to the 
electronic recordkeeping requirements found in FRA's existing Track 
Safety Standards, 49 CFR 213.241(e). Section 227.215(b) allows each 
railroad to design its own electronic system as long as the system 
meets the specified criteria in Sec.  227.215(b)(1) through (5), which 
are intended to safeguard the integrity and authenticity of each 
record.

Section 227.217 Compliance Dates

    The specific dates by which certain groups of railroads are 
required to comply are set forth in this section. 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 staggers the compliance dates based on the size of the 
railroad, with larger railroads having to comply earlier. Under the 
final rule, FRA requires Class I railroads to be compliant within 12 
months of the effective date of the final rule, with required 
compliance following for Class II railroads at 12 months and Class III 
and other railroads at 18 months.

Section 227.219 Incorporation by Reference

    Because subpart C incorporates by reference ISO 23269-1:2008, BS EN 
13794:2002, and BS EN 1146:2005, FRA is adding this section to comply 
with the requirements of 5 U.S.C. 552(a) and 1 CFR part 51. ISO 23269-
1:2008 provides specifications for emergency escape breathing devices 
intended to supply air or oxygen needed to escape from accommodation 
and machinery spaces with a hazardous atmosphere. BS EN 13794:2002 
provides specifications including requirements, testing, and marking 
for self-contained closed-circuit breathing apparatus intended for an 
escape from a hazardous atmosphere. BS EN 1146:2005 provides 
specifications including requirements, testing, and marking for self-
contained open-circuit compressed air breathing apparatus incorporating 
a hood and intended for an escape from a hazardous atmosphere. They are 
reasonably available to all interested parties online at https://webstore.ansi.org/ and https://shop.bsigroup.com, respectively. 
Further, FRA will maintain copies of the standards available for review 
at the Federal Railroad Administration, 1200 New Jersey Avenue SE, 
Washington, DC 20590.

IX. Regulatory Impact and Notices

A. Executive Order 12866 as Amended by Executive Order 14094

    This final rule is not a significant regulatory action within the 
meaning of Executive Order 12866, as amended by Executive Order 14094, 
``Modernizing Regulatory Review,'' \23\ and DOT Order 2100.6A 
(``Rulemaking and Guidance Procedures''). Details on the estimated 
costs of this final rule can be found in the RIA, which FRA has 
prepared and placed in the docket (FRA-2009-0044).
---------------------------------------------------------------------------

    \23\ 88 FR 21879 (April 6, 2023) located at https://www.federalregister.gov/documents/2023/04/11/2023-07760/modernizing-regulatory-review.
---------------------------------------------------------------------------

    FRA is issuing a final rule that enables covered employees to wear 
protective breathing apparatus in the event of a catastrophic release 
of PIH materials. This final rule requires that an EEBA be provided for 
each covered employee transporting PIH materials. These EEBAs will 
provide neck and face coverage with respiratory protection for these 
crewmembers. Railroads must also ensure that the equipment is 
maintained and in proper working condition. Finally, the final rule 
requires that railroads train crewmembers how to use the EEBAs.
    The RIA presents estimates of the costs likely to occur over the 
first 10 years of the final rule. The analysis includes estimates of 
costs associated with the purchase of EEBAs and installation, employee 
training, and recordkeeping.
    FRA has estimated costs for three options that are permissible 
under the rule. These include:

     Option 1: Employee Assignment--EEBAs are assigned to 
all relevant employees and considered part of their equipment.
     Option 2: Locomotive Assignment--EEBAs are assigned to 
and kept in locomotives.
     Option 3: Equipment Pooling--EEBAs are pooled at rail 
yards and kept in storage lockers where employees would check-in and 
check-out the EEBAs when PIH is being hauled.

    For all three options, estimates were developed using a closed-
circuit EEBA. For the ``Employee Assignment'' option, FRA estimates 
that the costs associated with issuing each T&E employee ($60,000) with 
an EEBA as their own personal equipment. The ``Locomotive Assignment'' 
option would require installing EEBAs in all locomotives in the covered 
railroad's fleet, regardless of whether a locomotive is part of a train 
that is transporting PIH material. There are approximately 24,000 
locomotives owned by Class I railroads, and three apparatuses would 
have to be installed in each locomotive, one apparatus each

[[Page 5126]]

for the conductor, the engineer, and a supervisor. In the ``Equipment 
Pooling'' option, FRA considered only having EEBAs provided in 
trainsets that were transporting PIH. EEBAs would be brought on board 
after a determination is made on a case-by-case basis.
    The analysis includes estimates of costs associated with the 
purchase of EEBAs and installation, employee training, and 
recordkeeping.
    FRA estimates the 10-year costs of the final rule to be between 
$27.1 million and $91.9 million, discounted at 7 percent. The following 
table shows the total costs of this final rule, over the 10-year 
analysis period.
---------------------------------------------------------------------------

    \24\ Numbers in this table and subsequent tables may not sum due 
to rounding.

                                               Total 10-Year Costs
                                               [2021 Dollars] \24\
----------------------------------------------------------------------------------------------------------------
                                   10-year cost    Present value   Present value  Annualized  7%  Annualized  3%
            Category                    ($)           7% ($)          3% ($)            ($)             ($)
----------------------------------------------------------------------------------------------------------------
Option 1: Employee Assignment...      92,327,892      79,247,309      86,066,845      11,283,034      10,089,660
Option 2: Locomotive Assignment.     107,153,842      91,909,968      99,855,523      13,085,912      11,706,114
Option 3: Equipment Pooling.....      33,546,542      27,116,550      30,415,557       3,860,787       3,565,631
----------------------------------------------------------------------------------------------------------------

    The benefits associated with this final rule are qualitative in 
nature and relate to the prevention of causalities and injuries. This 
rule is expected to improve railroad safety by ensuring that all 
covered employees can safely vacate the exposed area if a PIH material 
release were to occur. The primary benefits include heightened safety 
for crewmembers and, as a result, earlier awareness/notification to the 
public of PIH releases. Implementation of this rule should mitigate the 
injuries of covered employees from PIH material releasing after an 
accident/incident. Although the monetary costs associated with 
implementation of this rule would exceed the correspondingly measured 
benefits, under the RSIA, FRA must 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. Additionally, OMB Circular 
A-4 directs agencies to describe benefits qualitatively when it is not 
possible to quantify or monetize all of a rule's important benefits. 
Section 6 of the RIA discusses non-quantifiable benefits. FRA will not 
require a particular method of deployment of EEBAs, but rather leave 
that to the railroads' discretion. In addition, railroads will be 
allowed to select the type of apparatus to use in their program 
(closed-circuit or open-circuit). This allows railroads to deploy EEBAs 
in the manner best suited to their operations.

B. Regulatory Flexibility Act and Executive Order 13272

    The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) and 
E.O. 13272 (67 FR 53461, Aug. 16, 2002) require agency review of 
proposed and final rules to assess their impacts on small entities. FRA 
prepared this FRFA to evaluate the impact of the final rule on small 
entities and describe the effort to minimize the adverse impact. The 
estimated costs on small entities is not significant as it represents 
less than one percent of average annual revenue of affected entities. 
Even if FRA uses the estimated costs per small entity provided by 
ASLRRA, as discussed in section 5 below, the impact would still not be 
significant. Accordingly, the FRA Administrator hereby certifies that 
this rule will not have a significant economic impact on a substantial 
number of small entities.
1. Statement of the Need for, and Objectives of, the Rule
    This final rule requires railroads to provide an appropriate 
atmosphere-supplying EEBA, in proper working order, to train 
crewmembers, direct supervisors of train crewmembers, and certain other 
employees while these employees are occupying cabs of freight train 
locomotives transporting hazardous material that would pose an 
inhalation hazard in the event of release during an accident. This 
includes material poisonous by inhalation (poisonous-inhalation-hazard 
or PIH materials), gases poisonous by inhalation, and certain other 
materials classified as poisonous by inhalation. EEBAs are intended to 
protect covered employees from the risk of exposure to such hazardous 
materials while the employees escape from the locomotive cab during a 
catastrophic event.
    The rule requires railroads that transport PIH materials on the 
general railroad system to establish and carry out a series of programs 
for: inspection and maintenance of the devices; instruction of 
employees in the use of the devices; and selection, procurement, and 
provision of the devices. Railroads are required to identify individual 
employees or positions to be placed in their EEBA programs so that 
enough EEBAs are available and that those employees know how to use the 
devices. Finally, the rule requires that convenient storage be provided 
for EEBAs in the locomotive to enable employees to access such 
apparatuses quickly in the event of a release of a hazardous material 
that poses an inhalation hazard.
2. Significant Issues Raised by Public Comments
    FRA received several comments related to the anticipated costs of 
this rule. AAR and ASLRRA's comments address concerns about the 
financial impact of the RSIA mandate on small entities in the railroad 
industry, which they contend lack pricing power to pass on the costs of 
this rule to their customers and have small capital budgets 
necessitating that other work, such as track maintenance, will have to 
be deferred to pay for it. AAR and ASLRRA stated that while the initial 
costs for Class III railroads may indeed be modest the ongoing costs 
for inspection, maintenance, replacement, and enforcement penalties 
will result in permanent ongoing expenditures that will be particularly 
impactful on small railroads. The comment states that small railroads 
will likely focus on the purchase of EEBAs based on crew terminals and 
number of customers, face

[[Page 5127]]

higher costs than estimated, have limited options to benefit for bulk 
orders, and will face disproportionately high training costs. AAR and 
ASLRRA estimate that the total 10-year compliance costs to be borne by 
Class II and III railroads at over $6.6 million (PV, 7 percent), or 
over $945,000 on an annualized basis. For just Class III railroads, 
ASLRRA projects total costs to amount to almost $4.9 million (PV, 7 
percent), with the individual annualized cost to each of the 110 
impacted railroads estimated to be $6,333 per year, or more than four 
times the cost estimated in the SNPRM. As such, AAR and ASLRRA ask that 
FRA exercise its discretion, in this particular instance, to provide a 
``de minimis'' exception for railroad operations, similar to what FRA 
provided for PTC requirements, to exempt Class II and III railroads 
from the requirement to provide EEBAs.
    FRA understands ALSRRA's concerns, but the agency is constrained by 
section 413 of the RSIA. Unlike with PTC, Congress did not carve out an 
exemption for Class II and Class III railroads from the statutory 
requirement. See section 104 of the RSIA. Instead, Congress used broad 
language that covers any railroad carrier transporting hazardous 
materials that would pose an inhalation hazard in the event of release. 
In light of this language, FRA is constrained from instituting an 
exception for Class II and III railroads without congressional action. 
Notwithstanding these constraints, FRA has included measures to limit 
the costs for railroads. In particular, FRA will allow railroads to 
pursue the most cost-effective way to provide EEBAs in accordance with 
the statutory and regulatory requirements. Additionally, small 
railroads could consider pooling resources wherever possible for 
requirements such as periodic training. Indeed, many small railroads 
are jointly owned by the same holding companies making resource pooling 
even easier. In light of the concerns raised above, FRA has reexamined 
its estimated costs for small railroads based on comments received to 
the NPRM. In the regulatory impact analysis for the final rule, FRA has 
increased the cost estimate for Class III railroads to purchase EEBAs 
since each railroad may not purchase enough to secure a bulk discount 
on pricing. Therefore, FRA estimates that each EEBA for Class III 
railroads will be approximately $1,000, instead of $850 as was 
estimated in the RIA for the proposed rule.
3. Response to Comments Filed by the Chief Counsel for Advocacy of the 
Small Business Administration
    FRA did not receive a comment from the Small Business 
Administration.
4. Description and Estimate of the Number of Small Entities to Which 
the Rule Will Apply
    The Regulatory Flexibility Act of 1980 requires a review of 
proposed and final rules to assess their impact on small entities, 
unless the Secretary certifies that the rule would not have a 
significant economic impact on a substantial number of small entities. 
``Small entity'' is defined in 5 U.S.C. 601 as a small business concern 
that is independently owned and operated and is not dominant in its 
field of operation. The U.S. Small Business Administration (SBA) has 
authority to regulate issues related to small businesses, and 
stipulates in its size standards that a ``small entity'' in the 
railroad industry is a for-profit ``line-haul railroad'' that has fewer 
than 1,500 employees, a ``short line railroad'' with fewer than 1,500 
employees, a ``commuter rail system'' with annual receipts of less than 
$47.0 million dollars, or a contractor that performs support activities 
for railroads with annual receipts of less than $34.0 million.\25\
---------------------------------------------------------------------------

    \25\ U.S. Small Business Administration, ``Table of Small 
Business Size Standards Matched to North American Industry 
Classification System Codes, March 27, 2023. https://www.sba.gov/sites/sbagov/files/2023-06/Table%20of%20Size%20Standards_Effective%20March%2017%2C%202023%20%282%29.pdf.
---------------------------------------------------------------------------

    Federal agencies may adopt their own size standards for small 
entities in consultation with SBA and in conjunction with public 
comment. Under that authority, FRA has published a statement of agency 
policy that formally establishes ``small entities'' or ``small 
businesses'' as railroads, contractors, and hazardous materials 
shippers that meet the revenue requirements of a Class III railroad as 
set forth in 49 CFR part 1201, General Instruction 1-1, which is $20 
million or less in inflation-adjusted annual revenues,\26\ and commuter 
railroads or small governmental jurisdictions that serve populations of 
50,000 or less.\27\ FRA is using this definition for the final rule.
---------------------------------------------------------------------------

    \26\ The Class III railroad revenue threshold is $46.3 million 
or less, for 2022. https://www.ecfr.gov/current/title-49/subtitle-B/chapter-X/subchapter-C/part-1201.
    \27\ See 68 FR 24891 (May 9, 2003) (codified at appendix C to 49 
CFR part 209).
---------------------------------------------------------------------------

    When shaping the final rule, FRA considered the impact that the 
final rule will have on small entities. The final rule will be 
applicable to all railroads with locomotives that transport PIH 
materials. FRA estimates there are 733 Class III railroads that operate 
on the general system. These railroads are of varying size, with some 
belonging to larger holding companies. FRA is aware of 110 Class III 
railroads that transport PIH materials. The remaining Class III 
railroads do not transport PIH, and thus will not be impacted by this 
final rule.
5. Description of the Projected Reporting, Recordkeeping, and Other 
Compliance Requirements of the Rule
    Class III Railroads will have all the same requirements as larger 
railroads, reduced for the estimated number of locomotives and 
employees on Class III railroads. Small railroads may not be able to 
benefit from bulk discount rates on EEBAs, so FRA has adjusted that 
cost to not include the 15% discount for Class III railroads. All other 
cost components will be the same as larger railroads.
    The following table shows the annualized cost for Class III 
railroads over the 10-year analysis period. The total estimated 10-year 
costs for Class III railroads will be $1.1 million (PV, 7 percent) and 
the annualized cost for all Class III railroads will be $151,467 (PV, 7 
percent).

         Total 10-Year and Annualized Costs, Class III Railroads
------------------------------------------------------------------------
                                              Present value   Annualized
                  Category                        (7%)           (7%)
------------------------------------------------------------------------
EEBA and Installation......................         731,620      104,166
Training...................................         232,950       33,167
Records....................................          99,272       14,134
                                            ----------------------------
    Total..................................       1,063,841      151,467
------------------------------------------------------------------------

[[Page 5128]]

    The industry trade organization representing small railroads, 
ASLRRA, reports the average freight revenue per Class III railroad is 
$4.75 million. The following table summarizes the average annual costs 
and revenue for Class III railroads.

                                 Average Class III Railroads' Costs and Revenue
----------------------------------------------------------------------------------------------------------------
 Total cost for class                          Average annual cost                           Average annual cost
   III  railroads,      Number of class III       per class III        Average class III       as a percent of
    annualized 7%        railroads with PIH        railroad ($)        annual revenue ($)          revenue
a                                      b              c = a / b                      d              e = c / d
----------------------------------------------------------------------------------------------------------------
          151,467                    110                  1,377              4,750,000                  0.03%
----------------------------------------------------------------------------------------------------------------

    The average annual cost for a Class III railroad impacted by this 
rule will be $1,377. This represents a small percentage (0.03%) of the 
average annual revenue for a Class III railroad. The estimates above 
show that the burden on Class III railroads will not be a significant 
economic burden.
6. A Description of the Steps the Agency Has Taken To Minimize the 
Economic Impact on Small Entities
    When developing the final rule, FRA considered the impact that the 
final rule will have on small entities. FRA has included measures to 
limit the costs for railroads. In particular, FRA will allow railroads 
to pursue the most cost-effective way to provide EEBAs in accordance 
with the statutory and regulatory requirements. Small railroads could 
consider pooling resources wherever possible for requirements such as 
periodic training. Additionally, under the final rule, FRA allows 
additional time for Class III and other railroads to implement the 
rule. Class III railroads are allotted 18 months for implementation 
rather than 12 months.

C. Federalism

    Executive Order 13132, ``Federalism'' (64 FR 43255, Aug. 10, 1999), 
requires FRA to develop an accountable process to ensure ``meaningful 
and timely input by State and local officials in the development of 
regulatory policies that have federalism implications.'' ``Policies 
that have federalism implications'' are defined in the Executive order 
to include regulations that have ``substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government.'' Under Executive Order 13132, the agency 
may not issue a regulation with federalism implications that imposes 
substantial direct compliance costs and that is not required by 
statute, unless the Federal Government provides the funds necessary to 
pay the direct compliance costs incurred by State and local 
governments, or the agency consults with State and local government 
officials early in the process of developing the regulation. Where a 
regulation has federalism implications and preempts State law, the 
agency seeks to consult with State and local officials in the process 
of developing the regulation.
    This final rule has been analyzed in accordance with the principles 
and criteria contained in Executive Order 13132. FRA has determined 
that the final rule will 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 
final 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 final 
rule could have preemptive effect by operation of law under certain 
provisions of the Federal railroad safety statutes, specifically a 
provision of 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). A provision of the former 
FRSA provides that States may not adopt or continue in effect any law, 
regulation, or order related to railroad safety or security that covers 
the subject matter of a regulation prescribed or order issued by the 
Secretary of Transportation (with respect to railroad safety matters) 
or the Secretary of Homeland Security (with respect to railroad 
security matters), except when the State law, regulation, or order 
qualifies under the ``local safety or security hazard'' exception to 
section 20106. Moreover, the former LBIA has been interpreted by the 
Supreme Court as preempting the entire field of locomotive safety. See 
Napier v. Atlantic Coast R.R., 272 U.S. 605, 611; 47 S.Ct. 207, 209 
(1926).
    In sum, FRA has analyzed this final rule in accordance with the 
principles and criteria contained in Executive Order 13132. As 
explained above, FRA has determined that this final rule has no 
federalism implications, other than the possible preemption of State 
laws under a provision of the former FRSA and under the former LBIA. 
Accordingly, FRA has determined that preparation of a federalism 
summary impact statement for this final 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 final rule are 
being submitted for approval to OMB \28\ under the Paperwork Reduction 
Act of 1995.\29\ The information collection requirements and the 
estimated time to fulfill each requirement are as follows:
---------------------------------------------------------------------------

    \28\ FRA will be using the OMB control number (OMB No. 2130-
0620) that was issued when the previous NPRM was published in 2010 
for this information collection request.
    \29\ 44 U.S.C. 3501 et seq.

[[Page 5129]]

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                             Total annual    Total cost
              CFR section                    Respondent  universe        Total annual responses       Average time per          burden       equivalent
                                                                                                          response              (hours)        (hours)
                                                                        (A).....................  (B).....................     (C) = A * B     (D) = C *
                                                                                                                                               wage \30\
--------------------------------------------------------------------------------------------------------------------------------------------------------
227.201(a)--Criteria for requiring      128 railroads.................  600 designations........  3 minutes...............           30.00     $2,337.30
 availability of EEBAs in the
 locomotive cab--Employees designated
 by the railroad in writing.
227.203(c)--Criteria for selecting      128 railroads.................  43 written                2 hours.................           86.00      6,700.26
 EEBAs--Railroads to document the                                        justifications.
 adequacy of the EEBA and provide such
 documentation for inspection to FRA
 upon request.
227.205(c)--Storage facilities for      128 railroads.................  43 instruction copies...  1 minute................             .72         56.10
 EEBAs--Railroads to keep a copy of
 the instructions at their system
 headquarters for FRA inspection.
                                       -----------------------------------------------------------------------------------------------------------------
227.207(a)--Railroad's program for      The paperwork burden for this requirement is covered under Sec.   227.211.
 inspection, maintenance, and
 replacement of EEBAs; requirements
 for procedures--Written program for
 inspection, maintenance, and
 replacement of EEBAs.
                                       -----------------------------------------------------------------------------------------------------------------
    --(b) Inspection procedures and     128 railroads.................  10,000 inspection         30 seconds..............           83.33      6,492.24
     records--Tag or label that is                                       records.
     attached to the storage facility
     for the EEBA or kept with the
     EEBA or in inspection reports
     stored as paper or electronic
     files.
    --(d) Records of returns,           128 railroads.................  180 records.............  30 seconds..............            1.50        116.87
     maintenance, repair, and
     replacement--Recordkeeping and
     retention.
                                       -----------------------------------------------------------------------------------------------------------------
227.209(a)--Railroad's program of       The paperwork burden for this requirement is covered under Sec.   227.211.
 instruction on EEBAs--Written program
 of instruction on EEBAs.
                                       -----------------------------------------------------------------------------------------------------------------
    --(d) Records of instruction--      128 railroads.................  20,000 initial training   3 minutes...............        1,000.00     62,670.00
     Railroad to maintain a record of                                    records.
     employees provided instruction in
     compliance with this section and
     retain these records for three
     years \31\.
    --(d) Records of intervals for      128 railroads.................  2,000 refresher or new    3 minutes...............          100.00      6,267.00
     periodic instruction.                                               hire training records.
227.211(a), (b) and (d)--Requirement    128 railroads.................  45.67 written programs    80 hours + 2 hours + 80           351.33     30,167.83
 to implement a general EEBA program;                                    (2.33 Class I             hours.
 criteria for placing employees in the                                   railroads' programs +
 general EEBA program--Comprehensive                                     42.33 Class II and III
 written program.                                                        railroads' programs + 1
                                                                         generic program
                                                                         developed by ASLRRA).
                                       -----------------------------------------------------------------------------------------------------------------
    --(c) Records of positions or       The paperwork burden for this requirement is covered under Sec.  Sec.   227.201 and 227.209.
     individuals or both in the
     railroad's general EEBA--
     Designated employees by the
     railroad to be placed in its
     general EEBA program pursuant to
     Sec.   227.211(b)(4).
                                       -----------------------------------------------------------------------------------------------------------------
227.213(a)(3)--Employee's               128 railroads.................  1 notification..........  1 minute................             .02          1.25
 responsibilities--Notification to
 railroad of EEBA failures and of use
 incidents in a timely manner.
227.215(b)--Recordkeeping in general--  18 railroads..................  6 modified systems......  1 hour..................            6.00        467.46
 Electronic records to meet FRA
 requirements.
    --(b)(5) Paper copies of            128 railroads.................  43 copies...............  15 minutes..............           10.75        837.53
     electronic records and amendments
     to those records are made
     available for inspection and
     copying or photocopying by
     representatives of FRA.
                                       -----------------------------------------------------------------------------------------------------------------
        Total \32\....................  128 railroads.................  32,962 responses........  N/A.....................           1,670       116,114
--------------------------------------------------------------------------------------------------------------------------------------------------------

    All estimates include the time for reviewing instructions; 
searching existing data sources; gathering or maintaining the needed 
data; and reviewing the information.
---------------------------------------------------------------------------

    \30\ The dollar equivalent cost is derived from the Surface 
Transportation Board's Full Year Wage A&B data series using the 
appropriate employee group hourly wage rate that includes a 75-
percent overhead charge.
    \31\ The associated burden related to employees' training are 
calculated under the economic cost of the regulation.
    \32\ Totals may not add up due to rounding.
---------------------------------------------------------------------------

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) in any one year, and before promulgating any 
final rule for which a general notice of proposed rulemaking was 
published, the agency shall prepare a written statement'' detailing the 
effect on State, local, and tribal governments and the private sector. 
This final rule will not result in such an expenditure, and thus 
preparation of such a statement is not required.

[[Page 5130]]

G. Environmental Assessment

    FRA has evaluated this final rule in accordance with the National 
Environmental Policy Act (NEPA), the Council of Environmental Quality's 
NEPA implementing regulations, and FRA's NEPA implementing regulations. 
FRA has determined that this proposed rule is categorically excluded 
from environmental review and therefore does not require the 
preparation of an environmental assessment (EA) or environmental impact 
statement (EIS). Categorical exclusions (CEs) are actions identified in 
an agency's NEPA implementing procedures that do not normally have a 
significant impact on the environment and therefore do not require 
either an EA or EIS. Specifically, FRA has determined that this final 
rule is categorically excluded from detailed environmental review.
    This rulemaking would not directly or indirectly impact any 
environmental resources and would not result in significantly increased 
emissions of air or water pollutants or noise. In analyzing the 
applicability of a CE, FRA must also consider whether unusual 
circumstances are present that would warrant a more detailed 
environmental review. FRA has concluded that no such unusual 
circumstances exist with respect to this final rule and it meets the 
requirements for categorical exclusion.
    Pursuant to section 106 of the National Historic Preservation Act 
and its implementing regulations, FRA has determined this undertaking 
has no potential to affect historic properties. FRA has also determined 
that this rulemaking does not approve a project resulting in a use of a 
resource protected by section 4(f). Further, FRA reviewed this final 
rulemaking and found it consistent with Executive Order 14008, 
``Tackling the Climate Crisis at Home and Abroad.''

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). FRA evaluated this final rule in accordance 
with Executive Order 13211 and determined that this final rule is not a 
``significant energy action'' within the meaning of Executive Order 
13211.

I. Analysis Under 1 CFR Part 51

    As required by 1 CFR 51.5, FRA has summarized the standards it is 
incorporating by reference in the section-by-section analysis in this 
preamble. These standards summarized herein, are reasonably available 
to all interested parties for inspection. Copies can be obtained from 
the International Organization for Standardization, Chemin de 
Blandonnet 8, CP 401, 1214 Vernier, Geneva, Switzerland, telephone +41-
22-749-08-88 or https://www.iso.org/standard/50245.html and from the 
British Standards Institution, 12110 Sunset Hills Road, Suite 200, 
Reston, VA 20190-5902, telephone: 800-862-4977 or https://shop.bsigroup.com. They are also available for inspection at the 
Federal Railroad Administration, 1200 New Jersey Avenue SE, Washington, 
DC 20590; phone: (202) 493-6052; email: [email protected].

J. Environmental Justice

    Executive Order 12898, ``Federal Actions to Address Environmental 
Justice in Minority Populations and Low-Income Populations,'' requires 
DOT agencies to achieve environmental justice as part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects, including 
interrelated social and economic effects, of their programs, policies, 
and activities on minority populations and low-income populations. DOT 
Order 5610.2C (``U.S. Department of Transportation Actions to Address 
Environmental Justice in Minority Populations and Low-Income 
Populations'') instructs DOT agencies to address compliance with 
Executive Order 12898 and requirements within the DOT Order 5610.2C in 
rulemaking activities, as appropriate, and also requires consideration 
of the benefits of transportation programs, policies, and other 
activities where minority populations and low-income populations 
benefit, at a minimum, to the same level as the general population as a 
whole when determining impacts on minority and low-income 
populations.\33\ FRA has evaluated this final rule under Executive 
Orders 12898 and 14096 and DOT Order 5610.2C and has determined it will 
not cause disproportionate and adverse human health and environmental 
effects on communities with environmental justice concerns.
---------------------------------------------------------------------------

    \33\ Executive Order 14096, ``Revitalizing Our Nation's 
Commitment to Environmental Justice,'' issued on April 26, 2023, 
supplements Executive Order 12898, but is not currently referenced 
in DOT Order 5610.2C.
---------------------------------------------------------------------------

K. Executive Order 13175 (Tribal Consultation)

    FRA has evaluated this final rule in accordance with the principles 
and criteria contained in Executive Order 13175, ``Consultation and 
Coordination with Indian Tribal Governments,'' dated November 6, 2000. 
The final rule would not have a substantial direct effect on one or 
more Indian tribes, would not impose substantial direct compliance 
costs on Indian tribal governments, and would not preempt tribal laws. 
Therefore, the funding and consultation requirements of Executive Order 
13175 do not apply, and a tribal summary impact statement is not 
required.

List of Subjects in 49 CFR Part 227

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

The Final Rule

    For the reasons discussed in the preamble, FRA amends part 227 of 
chapter II, subtitle B of title 49 of the Code of Federal Regulations 
as follows:

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

0
1. The authority citation for part 227 is revised to read as follows:

    Authority: 49 U.S.C. 20103, 20103 note, 20166, 20701-20703, 
21301, 21302, 21304; 28 U.S.C. 2461 note; and 49 CFR 1.89.

0
2. Revise the heading for part 227 to read as set forth above.

0
3. Revise Sec.  227.1 to read as follows:

Sec.  227.1  Purpose and scope.

    (a) General. The purpose of this part is to protect the 
occupational safety and health of certain employees who are exposed to 
occupational dangers while in the cab of the locomotive. This part 
prescribes minimum Federal safety and health standards for certain 
locomotive cab occupants. This part does not restrict a railroad or 
railroad contractor from adopting and enforcing additional or more 
stringent requirements.
    (b) Subpart B of this part. The purpose of subpart B is to protect 
the occupational safety and health of employees whose predominant noise 
exposure occurs in the locomotive cab. Subpart B prescribes minimum 
Federal safety and health noise standards for locomotive cab occupants.
    (c) Subpart C of this part. 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 a poison inhalation hazard (PIH) material that, if 
released due to a railroad accident/incident, would pose an inhalation 
hazard to the occupants. In particular,

[[Page 5131]]

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.

0
4. Amend Sec.  227.3 by revising paragraphs (a), (b) introductory text, 
and (b)(5) and adding paragraphs (c) and (d) to read as follows:

Sec.  227.3  Application.

    (a) Except as provided in paragraph (b) of this section, subpart B 
of this part applies to all railroads and contractors to railroads.
    (b) Subpart B of this part does not apply to--
* * * * *
    (5) Foreign railroad operations that meet the following conditions: 
Employees of the foreign railroad have a primary reporting point 
outside of the U.S. but are operating trains or conducting switching 
operations in the U.S.; and the government of that foreign railroad has 
implemented requirements for hearing conservation for railroad 
employees; the foreign railroad undertakes to comply with those 
requirements while operating within the U.S.; and FRA's Associate 
Administrator for Railroad Safety/Chief Safety Officer determines that 
the foreign requirements are consistent with the purpose and scope of 
subpart B of this part. A ``foreign railroad'' refers to a railroad 
that is incorporated in a place outside the U.S. and is operated out of 
a foreign country but operates for some distance in the U.S.
    (c) Except as provided in paragraph (d) of this section, subpart C 
of this part applies to any railroad that operates a freight train that 
transports a PIH material, including a residue of such a PIH material, 
on standard gage track that is part of the general railroad system of 
transportation.
    (d) Subpart C of this part 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.

0
5. Amend Sec.  227.5 by adding, in alphabetical order, definitions for 
``Accident/incident'', ``Associate Administrator for Railroad Safety/
Chief Safety Officer'', ``Atmosphere immediately dangerous to life or 
health (IDLH)'', ``Atmosphere-supplying device'', ``Deadheading'', 
``Division headquarters'', ``Emergency escape breathing apparatus or 
EEBA'', ``Freight car'', ``Freight train'', ``Hazardous material'', 
``Hazmat employee'', ``In service or in-service'', ``Intermodal 
container'', ``ISO'', ``NIOSH'', ``PIH material'', ``Residue'', 
``State'', ``Switching service'', ``System headquarters'', ``Train 
employee'', and ``United States'' 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.
* * * * *
    Associate Administrator for Railroad Safety/Chief Safety Officer 
means the Associate Administrator for Railroad Safety/Chief Safety 
Officer, Federal Railroad Administration, 1200 New Jersey Avenue SE., 
Washington, DC 20590.
    Atmosphere immediately dangerous to life or health (IDLH) means an 
atmosphere that poses an immediate threat to life, would cause 
irreversible adverse health effects, or would impair an individual's 
ability to escape from a dangerous atmosphere.
    Atmosphere-supplying device means a respirator that supplies the 
respirator user with breathing air from a source that is independent of 
the ambient atmosphere. Such devices include supplied-air respirators 
and self-contained breathing apparatus units.
* * * * *
    Deadheading means the physical relocation of a train employee from 
one point to another as a result of a railroad-issued oral or written 
directive.
* * * * *
    Division headquarters means the location designated by the railroad 
where a high-level operating manager (e.g., a superintendent, division 
manager, or equivalent), who has jurisdiction over a portion of the 
railroad, has an office.
    Emergency escape breathing apparatus or EEBA means an atmosphere-
supplying respirator device that is designed for use only during escape 
from a hazardous atmosphere.
* * * * *
    Freight car means a vehicle designed to transport freight, or 
railroad personnel, by rail and includes, but is not limited to, a--
    (1) Box car;
    (2) Refrigerator car;
    (3) Ventilator car;
    (4) Stock car;
    (5) Gondola car;
    (6) Hopper car;
    (7) Flat car;
    (8) Special car;
    (9) Caboose;
    (10) Tank car; and
    (11) Yard car.
    Freight train means one or more locomotives coupled with one or 
more freight cars, except during switching service.
    Hazardous material has the meaning assigned to that term by Sec.  
171.8 of this title.
    Hazmat employee has the meaning assigned to that term by Sec.  
171.8 of this title.
* * * * *
    In service or in-service when used in connection with a freight 
train, means each freight train subject to this part unless the train--
    (1) Is in a repair shop or on a repair track;
    (2) Is on a storage track and its cars are empty; or
    (3) Has been delivered in interchange but has not been accepted by 
the receiving carrier.
    Intermodal container means a freight container designed and 
constructed to permit it to be used interchangeably in two or more 
modes of transportation.
    ISO means the International Organization for Standardization, a 
network of national standards institutes in 162 countries, including 
the United States through the American National Standards Institute, 
that develops international standards to assist in ensuring the safe 
performance of a wide range of devices, including EEBAs.
* * * * *
    NIOSH means the National Institute for Occupational Safety and 
Health, a Federal agency responsible for conducting research and making 
recommendations for the prevention of work-related injury and illness, 
which is part of the Centers for Disease Control and Prevention in the 
U.S. Department of Health and Human Services and which certifies 
industrial-type respirators in accordance with the NIOSH respiratory 
regulations (42 CFR part 84).
* * * * *
    PIH material means any of the hazardous materials that are a gas, 
liquid, or other material defined as a ``material poisonous by 
inhalation'' by Sec.  171.8 of this title.
* * * * *
    Residue has the meaning assigned to the term by Sec.  171.8 of this 
title.
* * * * *
    State means a State of the United States of America or the District 
of Columbia.
    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 freight train movement.

[[Page 5132]]

    System headquarters means the location designated by the railroad 
as the general office for the railroad system.
* * * * *
    Train employee means an individual who is engaged in or connected 
with the movement of a train, including a hostler, as defined in 49 
U.S.C. 21101.
    United States means all of the States and the District of Columbia.

Sec.  227.7  [Removed and Reserved]

0
6. Remove and reserve Sec.  227.7.

0
7. Amend Sec.  227.15 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, 227.203, 227.205, 227.207, 
227.209, 227.211, 227.213, and 227.215.

0
8. Amend Sec.  227.103 by revising paragraphs (a)(1) and (2) to read as 
follows:

Sec.  227.103  Noise monitoring program.

    (a) * * *
    (1) Class I, passenger, and commuter railroads no later than 
February 26, 2008.
    (2) Railroads with 400,000 or more annual employee hours that are 
not Class I, passenger, or commuter railroads no later than August 26, 
2008.
* * * * *

0
9. Amend Sec.  227.109 by revising paragraph (e)(2)(i) to read as 
follows:

Sec.  227.109  Audiometric testing program.

* * * * *
    (e) * * *
    (2) * * *
    (i) For all employees without a baseline audiogram as of February 
26, 2007, Class I, passenger, and commuter railroads, and railroads 
with 400,000 or more annual employee hours shall establish a valid 
baseline audiogram by February 26, 2009; and railroads with less than 
400,000 annual employee hours shall establish a valid baseline 
audiogram by February 26, 2010.
* * * * *

0
10. Amend Sec.  227.119 by revising paragraph (b)(2) to read as 
follows:

Sec.  227.119  Training program.

* * * * *
    (b) * * *
    (2) For employees hired on or before February 26, 2007, by Class I, 
passenger, and commuter railroads, and railroads with 400,000 or more 
annual employee hours, by no later than February 26, 2009;
* * * * *

0
11. Add subpart C, consisting of Sec. Sec.  227.201 through 227.219, to 
read as follows:
Subpart C--Emergency Escape Breathing Apparatus Standards
Sec.
227.201 Criteria for requiring availability of EEBAs in the 
locomotive cab.
227.203 Criteria for selecting EEBAs.
227.205 Storage facilities for EEBAs.
227.207 Railroad's program for inspection, maintenance, and 
replacement of EEBAs; requirements for procedures.
227.209 Railroad's program of instruction on EEBAs.
227.211 Requirement to implement a general EEBA program; criteria 
for placing employees in the general EEBA program.
227.213 Employee's responsibilities.
227.215 Recordkeeping in general.
227.217 Compliance dates.
227.219 Incorporation by reference.

Subpart C--Emergency Escape Breathing Apparatus Standards

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

    (a) In general. (1)(i) Except as specified in paragraph (b) of this 
section, a railroad is required to provide an EEBA to each of the 
following of its employees while the employee is located in the cab of 
a locomotive of an in-service freight train transporting a PIH 
material, including a residue of a PIH material:
    (A) Any train employee;
    (B) Any direct supervisor of the train employee;
    (C) Any employee who is deadheading; and
    (D) Any other employee designated by the railroad in writing and at 
the discretion of the railroad.
    (ii) Each EEBA provided to an employee identified in paragraph 
(a)(1)(i) of this section must meet the EEBA-selection criteria of 
Sec.  227.203 and must have been inspected and be in working order 
pursuant to the requirements of Sec.  227.207 at the time that the EEBA 
is provided to the employee.
    (2) Except as specified in paragraph (b) of this section, a 
railroad shall not use a locomotive to transport a PIH material, 
including a residue of a PIH material, in an in-service freight train 
unless each of the employees identified in paragraph (a)(1)(i) of this 
section while occupying a locomotive cab 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 a PIH material if all of 
the PIH materials in the train, including a residue of a PIH material, 
are being transported 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 a PIH material, 
including a residue of 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 a PIH material, 
including a residue of a PIH material for distances of less than 100 
feet for inspection or maintenance purposes.
    (c) Employee misconduct. 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.

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 
PIH materials (including their residue) that are being transported by 
the freight train while in service.
    (b) Ensure that the type of respirator selected meets the 
requirements of paragraph (c)(1) of this section regarding minimum 
breathing capacity and is--
    (1) Certified for an escape only purpose by NIOSH pursuant to 42 
CFR part 84; or
    (2) Declared by the manufacturer, based on verifiable testing by 
the manufacturer or an independent third party, to meet the criteria 
established by one of the following:
    (i) ISO 23269-1:2008 (incorporated by reference, see Sec.  
227.219);
    (ii) BS EN 13794:2002 (incorporated by reference, see Sec.  
227.219); or
    (iii) BS EN 1146:2005 (incorporated by reference, see Sec.  
227.219).
    (c) 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

[[Page 5133]]

minimum breathing capacity of 15 minutes at the time of the pre-trip 
inspection required under Sec.  227.207(a)(1).
    (2) Head and neck protection. The EEBA selected must provide a 
means of protecting the individual's head and neck from the irritating 
effects of PIH materials to facilitate escape.
    (3) Accommodation for eyeglasses and a range of facial features. 
The EEBA selected must provide a means of protecting each employee who 
is required to be provided with the EEBA, including those who wear 
glasses, and allow for the reasonable accommodation of each such 
employee's facial features, including facial hair.

Sec.  227.205  Storage facilities for EEBAs.

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

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

    (a) General. Each railroad shall establish and comply with a 
written program for inspection, maintenance, and replacement of EEBAs 
that are required under this subpart. The program for inspection, 
maintenance, and replacement of EEBAs shall be maintained at the 
railroad's system headquarters and shall be amended, as necessary, to 
reflect any significant changes. This program shall include the 
following procedures:
    (1) Procedures for performing and recording a pre-trip inspection 
of each EEBA that is required to be provided on a locomotive being used 
to transport a PIH material and procedures for cleaning, replacing, or 
repairing each required EEBA, if necessary, prior to its being provided 
under Sec.  227.201(a);
    (2) Procedures for performing and recording periodic inspections 
and maintenance of each required EEBA in a manner and on a schedule in 
accordance with the manufacturer's recommendations; and
    (3) Procedures for turning in and obtaining a replacement for a 
defective, failed, or used EEBA and for recording those transactions.
    (b) Inspection procedures and records. (1) A railroad's procedures 
for pre-trip and periodic inspections of EEBAs shall require that the 
following information about each pre-trip and periodic inspection be 
accurately recorded on a tag or label that is attached to the storage 
facility for the EEBA or kept with the EEBA or in inspection reports 
stored as paper or electronic files:
    (i) The name of the railroad performing the inspection;
    (ii) The date that the inspection was performed;
    (iii) The name and signature of the individual who made the 
inspection;
    (iv) The findings of the inspection;
    (v) The required remedial action; and
    (vi) A serial number or other means of identifying the inspected 
EEBA.
    (2) A railroad shall maintain an accurate record of each pre-trip 
and periodic inspection required by this section. Pre-trip inspection 
records shall be retained for a period of 92 days. Periodic inspection 
records shall be retained for a period of 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 or repaired, adjusted, or cleaned in accordance with the 
following procedures:
    (1) Repair, adjustment, and cleaning of EEBAs shall be done only by 
persons who are appropriately trained to perform such work and who 
shall use only the EEBA manufacturer's approved parts designed to 
maintain the EEBA in compliance with one of the following standards:
    (i) NIOSH at 42 CFR part 84;
    (ii) ISO 23269-1:2008 (incorporated by reference, see Sec.  
227.219);
    (iii) BS EN 1146:2005 (incorporated by reference, see Sec.  
227.219); or
    (iv) BS EN 13794:2002 (incorporated by reference, see Sec.  
227.219).
    (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.
    (4) An EEBA may not be returned to service unless it meets the 
requirements in Sec.  227.203.
    (d) Records of returns, maintenance, repair, and replacement. A 
railroad shall--
    (1) Maintain an accurate record of return, maintenance, repair, or 
replacement for each EEBA required by this subpart; and
    (2) Retain each of these records for three years.

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

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

[[Page 5134]]

    (7) The hazardous materials classified as PIH materials.
    (c) Dates of initial instruction and intervals for periodic 
instruction. (1) The instruction for current subject employees shall be 
provided on an initial basis no later than 30 days prior to the date of 
compliance identified in Sec.  227.217. Initial instruction of new 
subject employees shall occur either 30 days prior to the date of 
compliance identified in Sec.  227.217 or before assignment to jobs 
where the deployment of EEBAs on a locomotive is required, whichever is 
later.
    (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 who implements and manages the 
railroad's general EEBA program by title. 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) through (D) (while actually occupying the 
locomotive cab of a freight train in service transporting 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 a PIH material has an EEBA accessible to 
each of the employees identified in Sec.  227.201(a)(1)(i)(A) through 
(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 a PIH 
material, including a residue of a PIH material, has the required EEBA 
available when they occupy the cab of such a train and know 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 paragraph (b)(4) 
of this section. The railroad shall retain these records for the 
duration of the designation and for one year thereafter.
    (d) Consolidated programs. A group of two or more commonly 
controlled railroads subject to this subpart may request in writing 
that the Associate Administrator for Railroad Safety/Chief Safety 
Officer (Associate Administrator) treat them as a single railroad for 
purposes of adopting and complying with the general EEBA program 
required by this section. The request must list the parent corporation 
that controls the group of railroads and demonstrate that the railroads 
operate in the United States as a single, integrated rail system. The 
Associate Administrator will notify the railroads of his or her 
decision in writing.

Sec.  227.213  Employee's responsibilities.

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

Sec.  227.215  Recordkeeping in general.

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

[[Page 5135]]

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 12 months from March 
26, 2024.
    (b) Class II railroads subject to this subpart are required to 
comply with this subpart beginning no later than 12 months from March 
26, 2024.
    (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 18 months from March 26, 2024.

Sec.  227.219  Incorporation by reference.

    Certain material is incorporated by reference into this subpart 
with the approval of the Director of the Federal Register under 5 
U.S.C. 552(a) and 1 CFR part 51. This incorporation by reference (IBR) 
material is available for inspection at the FRA and the National 
Archives and Records Administration (NARA). Contact FRA at: Federal 
Railroad Administration, 1200 New Jersey Avenue SE, Washington, DC 
20590; phone: (202) 493-6052; email: [email protected]. For information 
on the availability of this material at NARA, visit www.archives.gov/federal-register/cfr/ibr-locations or email [email protected]. The 
material may be obtained from the following sources:
    (a) The British Standards Institution, 12110 Sunset Hills Road, 
Suite 200, Reston, VA 20190-5902, phone: 800-862-4977; website: 
shop.bsigroup.com.
    (1) BS EN 1146:2005, Respiratory protective devices--Self-
contained, open-circuit compressed air breathing apparatus 
incorporating a hood for escape--requirements, testing, marking; 
February 2, 2006; into Sec. Sec.  227.203(b) and 227.207(c).
    (2) BS EN 13794:2002, Respiratory protective devices--Self-
contained, closed-circuit breathing apparatus for escape--requirements, 
testing, marking, November 26, 2002; into Sec. Sec.  227.203(b) and 
227.207(c).
    (b) International Organization for Standardization, Chemin de 
Blandonnet 8, CP 401, 1214 Vernier, Geneva, Switzerland; phone +41-22-
749-08-88; website: www.iso.org.
    (1) ISO 23269-1:2008(E), Ships and marine technology--Breathing 
apparatus for ships--Part 1: Emergency escape breathing devices (EEBD) 
for shipboard use, First Edition, February 1, 2008; into Sec. Sec.  
227.203(b) and 227.207(c).
    (2) [Reserved]

    Issued in Washington, DC.
Amitabha Bose,
Administrator.
[FR Doc. 2024-01074 Filed 1-25-24; 8:45 am]
BILLING CODE 4910-06-P
```