number of EEBAs have been provided and that such EEBAs are charged to
provide a minimum of 15 of minutes breathing capacity, FRA finds that,
beyond these basic factors, the manufacturer is the best source of
information on the manner in which a given device is verified as ready
for service.
    AAR agrees with FRA's decision in proposed Sec.  227.207(a)(2) to
require periodic inspections ``in a manner and on a schedule in
accordance with the manufacturer's instructions''; however, it comments
that the proposed pre-trip inspection of EEBAs required by this
proposed section could be overly burdensome. As an alternative, AAR
suggests that the appropriate inspection procedure should depend on how
a railroad chooses to deploy EEBAs. While AAR agrees that a pre-trip
inspection would be appropriate if a railroad were to issue EEBAs
directly to its employees, either permanently or for a single trip, it
believes a calendar day inspection, as part of the required 49 CFR
229.21 inspection, is more appropriate if a railroad chooses to mount
EEBAs permanently in locomotive cabs.
    The RSIA requires 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. FRA
considers pre-trip inspections the most effective method of ensuring
compliance with the statutory mandate. FRA must anticipate many
different operating scenarios and means of providing the EEBAs to
crews. 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 present
are ready for service. As an example, if EEBAs were inspected as part
of calendar day inspection under part 229, the inspection could occur
well after the crew (or crews) used a locomotive to transport a PIH
material. This is because the calendar day inspection could be
performed legally after the crew or crews have completed their duties,
as long as the inspection was performed by midnight on the calendar day
that the locomotive was used. As a result, calendar day inspections
would not assure that the required EEBAs were in working order for the
crew or crews using the locomotive at the time that the train is
transporting a PIH material. Therefore, FRA does not think it is
appropriate to change the proposed pre-trip inspection requirement.
    Additionally, AAR asks that FRA clarify whether a pre-trip
inspection consists of a quick visual inspection to ensure that the
EEBAs appear to be in working order. It notes that because EEBAs are
sealed in air-tight containers, FRA cannot expect railroad employees to
break the seal of the device to inspect it. FRA has discussed what it
envisions as part of the pre-trip inspection in the preceding
paragraphs; however, AAR's comment presumes that the type of device
chosen by AAR will be used universally in the railroad industry. FRA
has written the proposed regulation to require the device selected to
have certain characteristics while allowing railroads to choose devices
best suited to their operations. FRA expects that the type of device
selected by each railroad will determine the nature of the inspection
required, presumably based on the recommendations of the manufacturer
of the device.
    AAR opposes the recordkeeping requirements in Sec.  227.207(b)(2).
Its objection is not targeted at the requirement to keep records of
inspections performed pursuant to manufacturer instructions, but to the
requirement that records of pre-trip inspections be kept for one year.
It asserts that keeping pre-trip inspection records for one year would
not provide a safety benefit. AAR suggests that if FRA were to require
daily inspections (as opposed to pre-trip inspections) in instances
where EEBAs are permanently installed in the locomotive cab, then
keeping records of those inspections as part of the daily inspection
report required by 49 CFR 229.21 would not be overly burdensome given
that daily inspection records are already maintained and kept for a
period of 92 days. However, AAR contends that railroads should not be
burdened with new recordkeeping requirements for pre-trip inspections,
which would not, according to AAR, yield useful information.
    AAR's comment draws an analogy to the daily inspections required
under 49 CFR 229.21, but FRA believes a more appropriate analogy is the
pre-trip inspection of a train's braking system as required under 49
CFR 229.46. While daily inspections may be more convenient, the nature
of the device being inspected, along with the

intended use (i.e., emergency escape) is similar in the context of
(personal) safety criticality to ensuring the braking systems in the
consist are working. Nevertheless, FRA does agree that there is little
reason to keep pre-trip inspection records for one year. The proposed
period of records retention for pre-trip inspections has, therefore,
been reduced to 92 days in this SNPRM. While FRA does view 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.
    Finally, AAR provided comments about proposed Sec.  227.207(d),
which requires railroads to maintain accurate records of return,
maintenance, repair, or replacement of each required EEBA for a period
of three years. AAR questions whether this provision would allow for
railroads to arrange for EEBA suppliers to maintain these records. It
is FRA's view that such an arrangement would be acceptable; however, as
AAR notes, the railroad would remain responsible for any failure on the
part of a third party to maintain such records for the required time
period or to provide FRA reasonable access to the records.
10. Comments on Proposed Sec.  227.209, With FRA's Response
    FRA received numerous comments on proposed Sec.  227.209 and has
adopted the provision without change, except for deleting reference to
asphyxiants. Section 227.209 establishes requirements for a railroad's
program of instruction on EEBAs. The section sets out a number of
subjects that must be covered in training including the importance of
proper fit, usage, and maintenance in the effectiveness of the EEBA;
the device's capabilities and limitations; and how to use an EEBA
effectively in an emergency situation. Additionally, following initial
training, it requires periodic training once every three years.
    NIOSH recommends that proposed Sec.  227.209 require annual
expectation training (i.e., training for use of Closed-Circuit Self
Contained Escape Respirators that simulates the initiation procedures,
heat, and breathing resistance the user will experience in the
respirator's performance) and ``hands-on'' training that goes over the
appropriate donning procedures. FRA expects that the proposed language
in Sec.  227.209(b)(4), which requires training on how to inspect, put
on, remove, and use the EEBA and how to check the seals of the EEBA,
will ensure that railroad employees are sufficiently familiar with the
EEBAs provided by their employing railroads.
    NIOSH, ISEA, and Draeger also recommend that proposed Sec.  227.209
be modified to follow Mine Safety and Health Administration
requirements for quarterly training of underground coal miners, see 30
CFR 75.1504, which requires that each miner undergoes ``hands-on''
training for donning and transferring of self-rescue devices as part of
the required evacuation drill at the start of underground work, with
this training provided at least four times a year. Moreover, ISEA and
Draeger raise specific concerns about the adequacy of training
personnel on a triennial basis because of concerns that people will
forget the training received.
    FRA believes there are significant differences in the operational
practices and risks faced by the employees in these two populations.
Miners report to a fixed site each day and face a significant frequency
of potential exposure to the materials against which these devices are
intended to protect. Railroad operating employees often report to duty
at different locations each day, and the frequency of potential
exposure to inhalation hazards are orders of magnitude less. FRA does
not view the three-year interval between training sessions as
presenting an obstacle to effective use of EEBAs in the very rare event
that the need for a device arises.
    It is also important to keep in mind that the proposed
instructional program established in Sec.  227.209 is a minimum
requirement. Railroads are encouraged to provide additional relevant
information depending on the types of EEBAs selected. FRA is aware
that, among the larger carriers, on-line refresher training is often
available to employees on an ad-hoc basis. FRA also believes that the
pre-trip inspections and contact with the devices will keep their use
``front of mind'' for the purposes of encouraging employees to take
advantage of the available on-line resources.
    Labor acknowledges that the RSIA mandates that appropriate training
for the use of the EEBAs be included in the rule, but it is wary that
testing will be used as a way to withhold certain employees from
service. It contends that even though the RSIA does not require
testing, it agrees that the employees should be proficient in the use
of the EEBA. However, Labor is ``concerned that some railroad will
establish unachievable, unnecessary or excessive performance
requirements that, if not satisfied, will be used to hold employees out
of service.'' As a result, Labor requests that FRA modify proposed
Sec.  227.209 to remove language requiring employees demonstrate
knowledge of each of the elements in Sec.  227.209(b) and that
employees only be required to show proficiency in how to inspect, put
on, remove, and use the EEBA and how to check the seals of the EEBA.
    FRA finds the language proposed in Sec.  227.209(b) as appropriate
for the proper use of these devices. The language requiring a
demonstration of knowledge was taken directly from OSHA's regulation
covering the provision of respirators in the workplace. See 29 CFR
1910.134(k)(1). The requirement is intended to ensure that after having
been trained, the subject employees have the knowledge and skills to
use the devices properly. Both the railroad and its employees have a
vital interest in ensuring the training is both effective and retained.
FRA does not believe the railroads have any incentive to establish
``unachievable, unnecessary or excessive performance requirements'' in
this regard.
    AAR requests the deletion of proposed paragraph Sec.
227.209(b)(3), which requires instruction on how to use the EEBA
effectively in emergency situations, including situations in which the
EEBA malfunctions. It does not understand what FRA envisions will be
taught other than to leave the scene as quickly as possible. As with
the other provisions in proposed Sec.  227.209(b), proposed paragraph
(b)(3) was borrowed directly from OSHA's regulation covering the
provision of respirators in the workplace. See 29 CFR
1910.134(k)(1)(iii). FRA finds no reason to delete the provision. While
these circumstances are likely to be rare, FRA believes that, as a
basic principle of emergency preparedness, it is useful to anticipate
the kinds of scenarios that might occur and plan for them. For
additional guidance, railroads can look to OSHA. See, e.g., 63 FR 1152,
1259 (Jan. 8, 1998).
11. Comments on Proposed Sec.  227.211, With FRA's Response
    AAR comments that there is no reason to require in proposed Sec.
227.211(b)(1) that a railroad identify by name the employee managing
the railroad's general EEBA program. AAR notes that

there could be frequent changes in the specific individual in charge of
the general EEBA program. As a result, AAR suggests deleting the
proposed requirement that the individual be identified by name. While
FRA is concerned with AAR's assertion that the name of the individual
managing a railroad's general EEBA program may change frequently, FRA
is deleting the proposed requirement that the person in charge of
implementing and managing the railroad's general EEBA program be
identified by name. It is sufficient to identify the person managing
the general EEBA program by title, with all additional requirements
remaining as proposed.
12. Comments on Proposed Sec.  227.217, With FRA's Response
    FRA received comments from Labor on proposed Sec.  227.217. This
provision proposed to establish a staggered compliance schedule, with
Class I railroads required to comply with the requirements of part 227,
subpart C no later than 24 months from the effective date of the final
rule, Class II railroads required to comply no later than 30 months
from the effective date, and Class III railroads required to comply no
later than 36 months from the effective date.
    Labor strongly encourages FRA to shorten the implementation
schedule to no more than 90 days following the date of publication of
the final rule. Labor contends that EEBAs ``will be a necessary safety
overlay for the totally unpredictable work schedules that are
commonplace in the industry today.'' Moreover, Labor contends that
there is not a logical reason to delay the implementation in the manner
suggested by AAR, and proposed by FRA in the NPRM, when devices are
readily available at this time.
    While FRA understands the desire for more immediate implementation
of EEBA programs, FRA cannot justify shortening the periods proposed in
the 2010 NPRM for compliance to 90 days. In the short term, it is not
necessarily true that the devices are readily available in the
quantities needed. The shortened time frames proposed by Labor would
also strain the capabilities of the railroads with respect to
developing the management infrastructure for deploying and maintaining
the devices, developing the required written programs and training, and
scheduling and conducting the training for all of the operating and
other employees likely to be covered. However, given the length of time
since the publication of the RSIA mandate as well as FRA's issuance of
guidance in 2016 the railroads have been on notice about the need to
provide EEBAs. Therefore, FRA proposes shortening the compliance
schedule from the original NPRM and now proposes that Class I railroads
be required to comply with the requirements of part 227, subpart C no
later than 12 months from the effective date of the final rule, Class
II railroads be required to comply no later than 12 months from the
effective date, and Class III railroads be required to comply no later
than 18 months from the effective date.

VIII. Section-by-Section Analysis

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

    FRA proposes to change the name of the part from ``OCCUPATIONAL
NOISE EXPOSURE'' to ``OCCUPATIONAL SAFETY AND HEALTH IN THE LOCOMOTIVE
CAB'' in order to reflect the broader subject matter of the part.
Previously, part 227 contained regulations related only to dangers from
occupational noise exposure. Part 227 is the most natural place to put
the proposed regulations related to the provision of 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 proposed 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 proposes to amend this section to reflect the expanded purpose
and scope of this part. In comparison to the NPRM, FRA has modified
paragraph (c) of this section in the final rule to remove reference to
asphyxiants.

Section 227.3 Applicability

    FRA proposes to amend 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
that transports an in-service freight train that carries a PIH
material. FRA has removed the references to asphyxiants that were in
the NPRM, including a residue of such PIH material, on track that is
part of the general railroad system of transportation. See 49 CFR part
209, appendix A. If a railroad does not haul such a material on the
general system, it is not subject to this subpart. It should be noted
that, with some exceptions, common carriers by railroad have a ``common
carrier'' obligation to accept for rail transportation a PIH material
if it is properly prepared for transportation. If a railroad accepts
and transports a tank car containing a load or residue of a PIH
material in an in-service freight train, even if the railroad has never
done so before, the railroad would become subject to this rule. FRA
realizes that triggering the applicability of this rule upon the
company's first transporting of a PIH material in a freight train could
delay the transportation of such material if the company did not
voluntarily take the steps required by the rule (e.g., preparation of
general EEBA program, procurement and distribution of EEBAs, and
instruction of employees in the program) in advance. Further, a delay
related to compliance with this proposed rule could conflict with the
railroad's duty to expedite the transportation of hazardous material,
pursuant to the Hazardous Materials Regulations at 49 CFR 174.14.
Accordingly, FRA sought comments on this aspect of the proposal, but
received none.

Section 227.5 Definitions

    The proposed rulemaking would amend this section to add definitions
for key terms used in subpart C. The terms defined are set forth
alphabetically. FRA intends these definitions to clarify the meaning of
the terms for purposes of this part. Many of these definitions have
been taken from the regulations issued by OSHA and NIOSH and are widely
used by safety and health professionals, such as the definition of
``immediately dangerous to life or health (IDLH).'' A definition of
``PIH material'' is included in this SNPRM to ensure that the universe
of materials covered by this regulation is adequately described.

Section 227.15 Information Collection

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

Subpart B--Occupational Noise Exposure for Railroad Operating Employees

    FRA proposes a set of minor corrections to this subpart. The term
``Class 1'' is removed wherever it

appears and replaced with the corrected term ``Class I.'' The incorrect
term 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

    Proposed 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 other employees designated by the
railroad in writing and at the discretion of the railroad who are
required to work in or occupy the cab of any locomotive of one of its
covered trains (i.e., an in-service freight train that is 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.
    Proposed 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) in the cab of the
locomotive has access to an EEBA that was selected in accordance with
Sec.  227.203 and that has been inspected and is in proper working
order pursuant to Sec.  227.207. Paragraph (a)(2) makes clear that it
is not enough for a railroad to merely issue an EEBA to an employee,
e.g., as a uniform item; the EEBA must be physically available to the
employee in the cab of the covered train. For instance, it is not a
defense to a violation of Sec.  227.201(a)(2) that the railroad
provided the EEBA to the employee and instructed the employee to have
it while in the cab, but the employee lost or forgot it.
    Proposed 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.
    Proposed paragraph (c) establishes that, notwithstanding the
exceptions identified in Sec.  227.201, any employee who is found to
have willfully tampered with or vandalized an EEBA will be subject to
subpart C for enforcement purposes. As a result, an employee to whom
the railroad is not required to provide an EEBA may become subject to
this subpart by vandalizing or willfully tampering with an EEBA. By
proposing this paragraph, FRA intends to foreclose a loophole that
otherwise would preclude FRA from pursuing enforcement actions against
mechanical employees and other employees who may have access to EEBAs,
but for whom the railroads are not required to provide a device by
these regulations.

Section 227.203 Criteria for Selecting EEBAs

    This proposed section provides the basis for selecting an EEBA. See
general discussion at V. Selection of the Appropriate EEBA by
Railroads, above. The proposed requirements for selection of 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 the 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 proposes to require 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 proposed language to 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, in paragraph
(c)(1), FRA has proposed 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 type that is 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 proposed section addresses the mandate in the RSIA that the
rule require railroads to ``provide convenient storage in each freight
train locomotive to enable crewmembers to access such apparatus
quickly.'' FRA has adapted the storage requirements promulgated by OSHA
at 29 CFR 1910.134(h)(2) to this proposed rule.

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

    This proposed section requires each railroad to establish and carry
out procedures intended to ensure that EEBAs required to be present in
the locomotive cabs are fully functional. This section is adapted from
OSHA's inspection documentation requirements. See 29 CFR
1910.134(h)(3)(iv). Since the EEBAs selected may have differing
requirements for inspection, maintenance, and replacement, this section
is, for the most part, written for 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 proposes 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) proposes to
require railroads to create and maintain an accurate record of all
turn-ins, maintenance, repair, and replacement of EEBAs required by
paragraph (c) of this section, including EEBAs that are used; and
retain these records for three years.

Section 227.209 Railroad's Program of Instruction on EEBAs

    This proposed section identifies the elements of the instructional
program that the railroad must establish and carry out for train
employees and other employees who are part of the railroad's general
EEBA program under Sec.  227.211 and will be provided with EEBAs. The
elements outlined in this section are partly adapted from OSHA's
regulations. See 29 CFR 1910.134(k). The program proposed 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.

    Proposed paragraph (b) requires that any railroad transporting a
PIH material must provide sufficient training to its subject employees.
Such employees must be able to demonstrate knowledge concerning why an
EEBA is necessary; how improper fit, usage, or maintenance can
compromise the protective effect of an EEBA; the limitations and
capabilities of the type of EEBA that has been provided by the
railroad, including the limited time for use; how to deal with
emergency situations involving the use of EEBAs or if an EEBA
malfunctions; how to inspect, put on, remove, and use an EEBA,
including the inspection of seals; procedures for maintenance and
storage of EEBAs; the selection criteria for EEBAs under Sec.  227.203,
employee responsibilities under subpart C; employee rights concerning
access to records; and identification of hazardous materials that are
classified as PIH materials. FRA is particularly concerned that the
employees know the limitations of the EEBAs provided so that the
employees can avoid circumstances that would lead to reliance on the
EEBAs for conditions or time frames beyond EEBA capabilities.
    This proposed 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.''
    Proposed paragraph (c) establishes the timing of the initial and
refresher training. Initial instruction must occur no later than 30
days prior to the date of compliance 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.
    Proposed 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 proposed section, FRA requires railroads subject to subpart
C to adopt and comply with a general EEBA program to ensure that the
selection and distribution of the EEBAs is done in a technically
appropriate, sustainable manner and supported by a comprehensive set of
policies and procedures. These issues have already been discussed in
detail at IV. FRA-Sponsored Study and 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.
    In paragraph (b)(1), FRA proposes that each railroad's general
program identify the railroad's EEBA manager by title. The important
concern is that the EEBA manager is qualified to oversee the program.
    Proposed 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 think about how they
use their workforces, i.e., review the work that their employees
perform, determine which employees will occupy the cab of the
locomotive of an in-service freight train and therefore experience the
risk of the release of an inhalation-material from the consist, and
then place those employees in the general EEBA program.
    Given the nature of the railroad industry, FRA is aware that some
of these employees may not always work in the cab. Due to longstanding
labor practices in the railroad industry concerning seniority
privileges and concerning the ability of railroad employees to bid for
different work assignments, these railroad employees are likely to
change jobs frequently and to work for extended periods of time on
assignments that involve duties outside the cab. For example, an
employee might start the year in a job that involves mostly outside-
the-cab work, spend three months working primarily inside the cab, and
then return to outside-the-cab work for the rest of the year. In this
type of situation, these 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
proposed part, because he spent time, no matter how little, in a
locomotive cab where the use of an EEBA may be required. As a result,
the railroad must ensure that the employee is properly instructed in
how to inspect and use an EEBA and provide an EEBA for those time
periods in which the employee is serving as a train employee, as a
direct supervisor of a train employee, or in a capacity that the
railroad has determined, in its discretion and designated in writing,
should be provided an EEBA while any of these individuals is working in
the cab of the locomotive of an in-service freight train transporting 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 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 access to a working EEBA. One
constant is that all railroads subject to this proposed 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, proposed Sec.  227.211(c) requires railroads to maintain
records concerning the persons and positions designated to be placed in
its EEBA program and retain these records for the duration of the
designation and for one year after the designation has ended.

Section 227.213 Employee's Responsibilities

    Since employees, who must be provided the EEBAs, are not always
directly supervised by managers who can ensure the identified tasks are
done at the appropriate time and frequency, this proposed section
establishes certain responsibilities on the part of employees. Some of
these tasks may involve making records of such tasks as pre-trip
inspections that must be done to ensure the EEBAs are ready for use.
Additionally, FRA proposes prohibiting employees from willfully
tampering with or vandalizing an EEBA in an attempt to disable or
damage the device. See 49 CFR part 209, appendix A for definition and
discussion of ``willfully.''

Section 227.215 Recordkeeping in General

    Proposed section 227.215 sets out the general recordkeeping
provisions for subpart C. Proposed 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 proposes
requiring 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.
    Proposed 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. The AAR's
January 13, 2010, letter referenced earlier requests ``that FRA allow
at least two years from the effective date of the final rule for the
railroad to be compliant with the regulation.'' Under the 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 proposes to incorporate 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 http://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

    This proposed rule is not a significant regulatory action within
the meaning of Executive Order 12866. Details on the estimated costs of
this SNPRM can be found in the RIA, which FRA has prepared and placed
in the docket (FRA-2009-0044).
    FRA is proposing a rule that would enable covered employees to wear
protective breathing apparatus in the event of a catastrophic release
of PIH materials. This rule would require that an EEBA be provided for
each covered employee transporting PIH materials. These EEBAs would
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 proposed rule
would require 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 proposed 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 EEBA 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 EEBA devices 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 apparatus
would have to be installed in each locomotive, one apparatus each 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 proposed rule to be between
$27.1 million and $91.6 million, discounted at 7 percent. The following
table shows the total costs of this proposed rule, over the 10-year
analysis period.

Total 10-Year Costs (2021 Dollars) \23\
---------------------------------------------------------------------------

    \23\ Numbers in this table and subsequent tables may not sum due
to rounding.

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                     10-Year cost    Present value 7%   Present value 3%   Annualized 7%   Annualized 3%
                             Category                                     ($)              ($)                ($)               ($)             ($)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Option 1: Employee Assignment.....................................     $92,006,767        $78,979,882        $85,771,368     $11,244,958     $10,055,021
Option 2: Locomotive Assignment...................................     106,793,579         91,611,301         99,524,731      13,043,388      11,667,335
Option 3: Equipment Pooling.......................................      33,527,842         27,100,467         30,398,108       3,858,497       3,563,586
--------------------------------------------------------------------------------------------------------------------------------------------------------

    The proposed 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 the SNPRM
should mitigate the injuries of covered employees from PIH material
releasing after an accident/incident. During a 10-year period, this
analysis finds $43,110 (PV, 7 percent) in safety benefits that could
accrue through injury prevention.

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                             10-Year benefits    Present value 7%    Present value 3%    Annualized 7%    Annualized 3%
                         Category                                   ($)                 ($)                 ($)               ($)              ($)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total Benefits from Injury Prevention.....................            $63,720             $43,110             $53,520           $6,138           $6,274
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Although the costs associated with implementation of the proposed
rule would almost certainly exceed the benefits, under 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.
However, FRA would not require a particular method of deployment of
EEBAs, but rather leave that to the railroads' discretion. In addition,
railroads would 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 operation.

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. An
agency must prepare an IRFA unless it determines and certifies that a
rule, if promulgated, would not have a significant economic impact on a
substantial number of small entities. FRA has not determined whether
this proposed rule would have a significant economic impact on a
substantial number of small entities. Therefore, FRA prepared this IRFA
to facilitate public comment on the potential small business impacts of
the requirements in this SNPRM.
    FRA invites all interested parties to submit data and information
regarding the potential economic impact on small entities that would
result from adoption of the proposals in this SNPRM. FRA particularly
encourages small entities that could potentially be impacted by the
proposed rule to participate in the public comment process. FRA will
consider all information and comments received in the public comment
process when making a determination of the economic impact on small
entities.
1. Reasons for Considering Agency Action
    Agency action is required under Section 413 of the RSIA.
2. A Succinct Statement of the Objectives of, and the Legal Basis for,
the Proposed Rule
    This proposed rule would help reduce the risk of injury to
crewmembers due to inhalation of PIH. Section 413 of the RSIA requires
the Secretary of Transportation to promulgate regulations that require
railroads to provide emergency escape breathing apparatus suitable to
provide head and neck coverage with respiratory protection for all
covered employees.
3. A Description of, and Where Feasible, an Estimate of the Number of
Small Entities to Which the Proposed Rule Would 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
$16.5 million dollars, or a contractor that performs support activities
for railroads with annual receipts of less than $16.5 million.\24\
---------------------------------------------------------------------------

    \24\ U.S. Small Business Administration, ``Table of Small
Business Size Standards Matched to North American Industry
Classification System Codes, August 19, 2019. https://www.sba.gov/sites/default/files/2019-08/SBA%20Table%20of%20Size%20Standards_Effective%20Aug%2019,%202019.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 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

1201.1-1, which is $20 million or less in inflation-adjusted annual
revenues,\25\ and commuter railroads or small Governmental
jurisdictions that serve populations of 50,000 or less. See 68 FR 24891
(May 9, 2003) (codified at Appendix C to 49 CFR part 209). FRA is using
this definition for the proposed rule.
---------------------------------------------------------------------------

    \25\ The Class III railroad revenue threshold is $40.4 million
or less, for 2021. (The Class II railroad threshold is between $40.4
million and $900 million.) See Surface Transportation Board (STB),
available at https://www.stb.gov/news-communications/latest-news/pr-21-16/.
---------------------------------------------------------------------------

    When shaping the proposed rule, FRA considered the impact that the
proposed rule would have on small entities. The proposed rule would 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 would not be impacted by this
proposed rule.
4. A Description of the Projected Reporting, Recordkeeping, and Other
Compliance Requirements of the Rule, Including an Estimate of the Class
of Small Entities That Would Be Subject to the Requirements and the
Type of Professional Skill Necessary for Preparation of the Report or
Record
    Railroads must keep records pertaining to pre-trip and periodic
inspections of EEBAs. The information about each pre-trip and periodic
inspection must 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. Railroads
would also be required to keep training records. Training records must
be kept at system and division headquarters. A railroad must also make
all records available for inspection and copying by representatives of
FRA upon request. The section permits that the required records can be
kept in electronic form.
    The type of professional skills needed by an employee responsible
for submitting a special approval request includes the ability to plan
and organize work. Such an employee would also need good verbal and
written communication skills and attention to detail.
5. Summary of Class III Railroad Costs
    Class III Railroads would have all the same cost components as
larger railroads, reduced for the estimated number of locomotives and
employees on Class III 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 would be $1.0 million (PV, 7 percent) and
the annualized cost for all Class III railroads would be $149,326 (PV,
7 percent).
Total 10-Year and Annualized Costs, Class III Railroads

------------------------------------------------------------------------
                                           Present value    Annualized
                Category                       (7%)            (7%)
------------------------------------------------------------------------
EEBA and Installation...................         716,580         102,025
Training................................         232,950          33,167
Records.................................          99,272          14,134
                                         -------------------------------
    Total...............................       1,048,802         149,326
------------------------------------------------------------------------

    The industry trade organization representing small railroads,
ASLRRA, reports the average freight revenue per Class III railroad is
$4.75 million.\26\ The following table summarizes the average annual
costs and revenue for Class III railroads.
---------------------------------------------------------------------------

    \26\ American Short Line and Regional Railroad Association,
Short Line and Regional Railroad Facts and Figures, p. 10 (2017
pamphlet).
---------------------------------------------------------------------------

Average Class III Railroads' Costs and Revenue

----------------------------------------------------------------------------------------------------------------
                                                               Average  annual                   Average  annual
     Total cost for class III railroads,      Number of class   cost per class   Average class      cost  as a
                annualized 7%                  III  railroads    III railroad      III annual      percent  of
                                                  with PIH           ($)          revenue  ($)       revenue
a                                                          b        c = a / b                d        e = c / d
----------------------------------------------------------------------------------------------------------------
$149,326....................................             110           $1,358       $4,750,000            0.03%
----------------------------------------------------------------------------------------------------------------

    The average annual cost for a Class III railroad impacted by this
rule would be $1,358. 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
would not be a significant economic burden. FRA requests comments on
this estimate and will consider all comments when making a
determination for the final rule.
6. Identification, to the Extent Practicable, of All Relevant Federal
Rules That May Duplicate, Overlap, or Conflict With the Proposed Rule
    FRA is not aware of any relevant Federal rule that duplicates,
overlaps with, or conflicts with this SNPRM.
7. A Description of Significant Alternatives to the Rule
    One alternative to this rule is the baseline approach. The baseline
alternative (no action) would not fulfill requirements under RSIA. This
proposed rule would allow railroads a significant amount of discretion
when determining their plan for the implementation of EEBAs. For
example, to reduce costs, FRA has allowed railroads to choose either
open or closed-circuit units. Railroads may also choose any of the
options described within this analysis or create any option that would
still allow the railroad to be in compliance with the rule.

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 proposed rule has been analyzed in accordance with the
principles and criteria contained in Executive Order 13132. FRA has
determined that the proposed 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 proposed rule will not impose substantial
direct compliance costs on State and local governments. Therefore, the
consultation and funding requirements of Executive Order 13132 do not
apply. However, this proposed rule could have preemptive effect by
operation of law under certain provisions of the Federal railroad
safety statutes, specifically 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 proposed rule in accordance with the
principles and criteria contained in Executive Order 13132. As
explained above, FRA has determined that this proposed rule has no
federalism implications, other than the possible preemption of State
laws under 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 proposed rule is not required.

D. International Trade Impact Assessment

    The Trade Agreement Act of 1979 prohibits Federal agencies from
engaging in any standards or related activities that create unnecessary
obstacles to the foreign commerce of the United States. Legitimate
domestic objectives, such as safety, are not considered unnecessary
obstacles. The statute also requires consideration of international
standards and where appropriate, that they be the basis for U.S.
standards. This proposed rulemaking is purely domestic in nature and is
not expected to affect trade opportunities for U.S. firms doing
business overseas or for foreign firms doing business in the United
States.

E. Paperwork Reduction Act

    The information collection requirements in this proposed rule are
being submitted for approval to OMB \27\ under the Paperwork Reduction
Act of 1995.\28\ The information collection requirements and the
estimated time to fulfill each requirement are as follows:
---------------------------------------------------------------------------

    \27\ FRA will be using the OMB control number (OMB No. 2130-
0620) that was issued when the previous NPRM was issued in 2010 for
this information collection request.
    \28\ 44 U.S.C. 3501 et seq.

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                Average time  per        Total annual        Total cost
             CFR section                  Respondent universe     Total annual responses           response          burden  (hours)       equivalent
                                       ........................  (A).....................  (B)....................        (C) = A * B     (D) = C * wage
                                                                                \29\
--------------------------------------------------------------------------------------------------------------------------------------------------------
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 \30\.
    --(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...............             351.33         $30,167.83
 to implement a general EEBA program;                             (2.33 Class I            + 2 hours..............
 criteria for placing employees in                                railroads' programs +    + 80 hours.............
 the general EEBA program--                                       42.33 Class II and III
 Comprehensive 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--Employee's responsibilities-- 128 railroads...........  1 notification..........  1 minute...............                .02              $1.25
 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 \31\...................  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. Pursuant to 44 U.S.C.
3506(c)(2)(B), FRA solicits comments concerning: whether these
information collection requirements are necessary for the proper
performance of the functions of FRA, including whether the information
has practical utility; the accuracy of FRA's estimates of the burden of
the information collection requirements; the quality, utility, and
clarity of the information to be collected; and whether the burden of
collection of information on those who are to respond, including
through the use of automated collection techniques or other forms of
information technology, may be minimized. Organizations and individuals
desiring to submit comments on the collection of information
requirements or to request a copy of the paperwork package submitted to
OMB should contact Ms. Arlette Mussington, Information Collection
Clearance Officer, at email: [email protected] or telephone:
(571) 609-1285 or Ms. Joanne Swafford, Information Collection Clearance
Officer, at email: [email protected] or telephone: (757) 897-
9908.
---------------------------------------------------------------------------

    \29\ 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.
    \30\ The associated burden related to employees' training are
calculated under the economic cost of the regulation.
    \31\ Totals may not add up due to rounding.
---------------------------------------------------------------------------

    OMB is required to make a decision concerning the collection of
information requirements contained in this proposed rule between 30 and
60 days after publication of this document in the Federal Register.
Therefore, a comment to OMB is best assured of having its full effect
if OMB receives it within 30 days of publication. The final rule will
respond to any OMB or public comments on the information collection
requirements contained in this proposal. FRA is not authorized to
impose a penalty on persons for violating information collection
requirements that do not display a current OMB control number, if
required.

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 proposed rule will not result
in such an expenditure, and thus preparation of such a statement is not
required.

G. Environmental Assessment

    FRA has evaluated this proposed rule in accordance with the
National Environmental Policy Act \32\ (NEPA), the Council of
Environmental Quality's NEPA implementing regulations,\33\ and FRA's
NEPA implementing regulations.\34\ 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.\35\ Specifically, FRA has determined that this proposed rule is
categorically excluded from detailed environmental review.\36\
---------------------------------------------------------------------------

    \32\ 42 U.S.C. 4321 et seq.
    \33\ 40 CFR parts 1500-1508.
    \34\ 23 CFR part 771.
    \35\ 40 CFR 1508.4.
    \36\ See 23 CFR 771.116(c)(15) (categorically excluding
``[p]romulgation of rules, the issuance of policy statements, the
waiver or modification of existing regulatory requirements, or
discretionary approvals that do not result in significantly
increased emissions of air or water pollutants or noise'').
---------------------------------------------------------------------------

    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.\37\ FRA has concluded that no such unusual
circumstances exist with respect to this proposed rule and it meets the
requirements for categorical exclusion.\38\
---------------------------------------------------------------------------

    \37\ 23 CFR 771.116(b).
    \38\ 23 CFR 771.116(c)(15).
---------------------------------------------------------------------------

    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.\39\ FRA has also
determined that this rulemaking does not approve a project resulting in
a use of a resource protected by Section 4(f).\40\ Further, FRA
reviewed this proposed rulemaking and found it consistent with
Executive Order 14008, Tackling the Climate Crisis at Home and
Abroad.\41\
---------------------------------------------------------------------------

    \39\ See 54 U.S.C. 306108.
    \40\ See Department of Transportation Act of 1966, as amended
(Pub. L. 89-670, 80 Stat. 931); 49 U.S.C. 303.
    \41\ 86 FR 7619 (Feb. 1, 2021).
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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 proposed rule in accordance
with Executive Order 13211 and determined that this proposed rule is
not a ``significant energy action'' within the meaning of Executive
Order 13211.

I. Privacy Act

    In accordance with 5 U.S.C. 553(c), DOT solicits comments from the
public to better inform its rulemaking process. DOT posts these
comments, without edit, including any personal information the
commenter provides, to http://www.regulations.gov, as described in the
system of records notice, which can be reviewed at http://www.dot.gov/privacy. To facilitate comment tracking and response, FRA encourages
commenters to provide their name, or the name of their organization;
however, submission of names is completely optional. Whether or not
commenters identify themselves, all timely comments will be fully
considered. If you wish to provide comments containing proprietary or
confidential information, please contact the agency for alternate
submission instructions.

J. 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.htmland from the
British Standards Institution, 12110 Sunset Hills Road, Suite 200,
Reston, VA 20190-5902, telephone:<PHONE_NUMBER> or http://shop.bsigroup.com. They are also available for inspection at the
Federal Railroad Administration, 1200 New Jersey Avenue SE, Washington,
DC 20590; phone:<PHONE_NUMBER>; email: [email protected].

K. Executive Order 12898 (Environmental Justice)

    Executive Order 12898, ``Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations'' \42\ and
DOT Order 5610.2C \43\ require 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. The DOT Order instructs DOT
agencies to address compliance with Executive Order 12898 and
requirements within the DOT Order 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. FRA has evaluated this
proposed rule under Executive Order 12898 and the DOT Order and has
determined it would not cause disproportionately high and adverse human
health and environmental effects on minority populations or low-income
populations.
---------------------------------------------------------------------------

    \42\ 59 FR 7629 (Feb. 16, 1994).
    \43\ Available at: https://www.transportation.gov/sites/dot.gov/files/Final-for-OST-C-210312-003-signed.pdf.
---------------------------------------------------------------------------

L. Executive Order 13175 (Tribal Consultation)

    FRA has evaluated this proposed 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 proposed 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 Proposed Rule

    For the reasons discussed in the preamble, FRA proposes to amend
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. The purpose of subpart B is to protect the
occupational safety and health of employees whose predominant noise
exposure occurs in the locomotive cab. This subpart prescribes minimum
Federal safety and health noise standards for locomotive cab occupants.
    (c) Subpart C. The purpose of subpart C is to protect the
occupational safety and health of train employees and certain other
employees in the cab of the locomotive of a freight train that is
transporting a PIH material that, if released due to a railroad
accident/incident, would pose an inhalation hazard to the occupants. In
particular, subpart C is intended to protect these employees from the
risk of exposure to the material while they are located in, or during
escape from, the locomotive cab.
0
4. Revise paragraph (a), the introductory text of paragraph (b), and
paragraph (b)(5), and add 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. In Sec.  227.5, add, 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'', ``foreign railroad'', ``freight car'', ``freight train'',
``hazardous material'', ``hazardous 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.

    As used in this part--
    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 (June 8, 1995)).
* * * * *
    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.
    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.
0
6. Remove and reserve Sec.  227.7.

Sec.  227.7  [Removed and Reserved]

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 (a)(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 to part 227 to read as follows:
Subpart C--Emergency Escape Breathing Apparatus Standards
Sec.
227.201 Criteria for requiring availability of EEBAs in the
locomotive cab.
227.203 Criteria for selecting EEBAs.
227.205 Storage facilities for EEBAs.
227.207 Railroad's program for inspection, maintenance, and
replacement of EEBAs; requirements for procedures.
227.209 Railroad's program of instruction on EEBAs.
227.211 Requirement to implement a general EEBA program; criteria
for placing employees in the general EEBA program.
227.213 Employee's responsibilities.
227.215 Recordkeeping in general.
227.217 Compliance dates.
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:
    (1) Any train employee;
    (2) Any direct supervisor of the train employee;
    (3) Any employee who is deadheading; and
    (4) 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) Notwithstanding any exceptions identified in this subpart, any
employee who willfully tampers with or vandalizes an EEBA shall be
subject to this subpart for purposes of enforcement relating to Sec.
227.213 (Employee's responsibilities).

Sec.  227.203  Criteria for selecting EEBAs.

    In selecting the appropriate EEBA to provide to an employee, the
railroad shall do the following:
    (a) Select an atmosphere-supplying EEBA that protects against all
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(E) (incorporated by reference, see Sec.
227.219);
    (ii) BS EN 13794:2002 E (incorporated by reference, see Sec.
227.219); or
    (iii) BS EN 1146:2005: E (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
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)-(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, 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(E) (incorporated by reference, see Sec.
227.219);
    (iii) BS EN 1146:2005: E (incorporated by reference, see Sec.
227.219); or
    (iv) BS EN 13794:2002 E (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.
    (d) Records of returns, maintenance, repair, and replacement. A
railroad shall--
    (1) Maintain an accurate record of return, maintenance, repair, or
replacement for each EEBA required by this subpart; and

    (2) Retain each of these records for three years.

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

    (a) General. (1) A railroad shall adopt and comply with its written
program of instruction on EEBAs for all of its employees in its general
EEBA program under Sec.  227.211 (subject employees). The program of
instruction shall be maintained at the railroad's system headquarters
and shall be amended, as necessary, to reflect any significant changes.
    (2) This program may be integrated with the railroad's program of
instruction on operating rules under Sec.  217.11 of this chapter or
its program of instruction for hazmat employees under Sec.  172.704 of
this title. If the program is not integrated with either of these
programs, it must be written in a separate document that is available
for inspection by FRA.
    (b) Subject matter. The railroad's program of instruction shall
require that the subject employees demonstrate knowledge of at least
the following:
    (1) Why the EEBA is necessary and how improper fit, usage, or
maintenance can compromise the protective effect of the EEBA.
    (2) The capabilities and limitations of the EEBA, particularly the
limited time for use.
    (3) How to use the EEBA effectively in emergency situations,
including situations in which the EEBA malfunctions.
    (4) How to inspect, put on, remove, and use the EEBA, and how to
check the seals of the EEBA.
    (5) Procedures for maintenance and storage of the EEBA that must be
followed.
    (6) The EEBA-selection criteria in Sec.  227.203.
    (7) The requirements of this subpart related to the
responsibilities of employees and the rights of employees to have
access to records.
    (8) 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 that 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)-(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)-(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 Sec.
227.211(b)(4). The railroad shall retain these records for the duration
of the designation and for one year thereafter.
    (d) Consolidated programs. A group of two or more commonly
controlled railroads subject to this subpart may request in writing
that the Associate Administrator for Railroad Safety/Chief Safety
Officer (Associate Administrator) treat them as a single railroad for
purposes of adopting and complying with the general EEBA program
required by this section. The request must list the parent corporation
that controls the group of railroads and demonstrate that the railroads
operate in the United States as a single, integrated rail system. The
Associate Administrator will notify the railroads of his or her
decision in writing.

Sec.  227.213   Employee's responsibilities.

    (a) An employee to whom the railroad provides an EEBA shall--
    (1) Participate in training under Sec.  227.209;
    (2) Follow railroad procedures to ensure that the railroad's
EEBAs--
    (i) Are maintained in a secure and accessible manner;
    (ii) Are inspected as required by this subpart and the railroad's
program of inspection; and
    (iii) If found to be unserviceable upon inspection, are turned in
to the appropriate railroad facility for repair, periodic maintenance,
or replacement; and

    (3) Notify the railroad of EEBA failures and of use incidents in a
timely manner.
    (b) No employee shall willfully tamper with or vandalize an EEBA
that is provided pursuant to Sec.  227.201(a) in an attempt to disable
or damage the EEBA.

Sec.  227.215   Recordkeeping in general.

    (a) Availability of records. (1) A railroad shall make all records
required by this subpart available for inspection and copying or
photocopying to representatives of FRA, upon request.
    (2) Except for records of pre-trip inspections of EEBAs under Sec.
227.207, records required to be retained under this subpart must be
kept at the system headquarters and at each division headquarters where
the tests and inspections are conducted.
    (b) Electronic records. All records required by this subpart may be
kept in electronic form by the railroad. A railroad may maintain and
transfer records through electronic transmission, storage, and
retrieval provided that all of the following conditions are met:
    (1) The electronic system is designed so that the integrity of each
record is maintained through appropriate levels of security such as
recognition of an electronic signature, or other means, which uniquely
identify the initiating person as the author of that record. No two
persons have the same electronic identity.
    (2) The electronic system ensures that each record cannot be
modified in any way, or replaced, once the record is transmitted and
stored.
    (3) Any amendment to a record is electronically stored apart from
the record that it amends. Each amendment to a record is uniquely
identified as to the individual making the amendment.
    (4) The electronic system provides for the maintenance of records
as originally 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 the
effective date of the final rule.
    (b) Class II railroads subject to this subpart are required to
comply with this subpart beginning no later than 12 months from the
effective date of the final rule.
    (c) Class III railroads subject to this subpart and any other
railroads subject to this subpart are required to comply with this
subpart beginning no later than 18 months from the effective date of
the final rule.

Sec.  227.219   Incorporation by reference.

    (a) 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:<PHONE_NUMBER>; email: [email protected]. For information
on the availability of this material at NARA, visit www.archives.gov/federal-register/cfr/ibr-locations.html or email
[email protected].Error! Hyperlink reference not valid. The
material may be obtained from the following sources:
    (b) 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.
    (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]
    (c) The British Standards Institution, 12110 Sunset Hills Road,
Suite 200, Reston, VA 20190-5902, telephone:<PHONE_NUMBER> or http://shop.bsigroup.com.
    (1) BS EN 13794:2002 E, Respiratory Protective Devices--Self-
Contained, Closed-Circuit Breathing Apparatus for Escape--Requirements,
Testing, Marking, November 2002 Sec. Sec.  227.203(b) and 227.207(c).
    (2) BS EN 1146:2005: E, Respiratory Protective Devices--Self-
Contained, Open-Circuit Compressed Air Breathing Apparatus
Incorporating a Hood for Escape--Requirements, Testing, Marking;
September 2005; into Sec. Sec.  227.203(b) and 227.207(c).

    Issued in Washington, DC.
Amitabha Bose,
Administrator.
[FR Doc. 2023-05074 Filed 3-21-23; 8:45 am]
BILLING CODE 4910-06-P