[Federal Register Volume 88, Number 55 (Wednesday, March 22, 2023)]
[Proposed Rules]
[Pages 17302-17334]
[FR Doc No: 2023-05074]

Vol. 88

Wednesday,

No. 55

March 22, 2023

Part II

Department of Transportation

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Federal Railroad Administration

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49 CFR Part 227

Emergency Escape Breathing Apparatus Standards; Proposed Rule

Federal Register / Vol. 88, No. 55 / Wednesday, March 22, 2023 /
Proposed Rules

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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 227

[Docket No. FRA-2009-0044, Notice No. 2]
RIN 2130-AC14

Emergency Escape Breathing Apparatus Standards

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

ACTION: Supplemental notice of proposed rulemaking (SNPRM).

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SUMMARY: FRA is proposing to amend its regulations related to
occupational noise exposure in three ways. First, in response to a
Congressional mandate, FRA is proposing to expand those regulations to
require that railroads provide an appropriate atmosphere-supplying
emergency escape breathing apparatus to every train crew member and
certain other employees while they are occupying a locomotive cab of a
freight train transporting a hazardous material that would pose an
inhalation hazard in the event of release during an accident. Second,
FRA is proposing to change the name of this part of its regulations
from ``Occupational Noise Exposure'' to ``Occupational Safety and
Health in the Locomotive Cab'' to reflect the additional subject matter
of this SNPRM and to make other conforming amendments. Third, FRA is
proposing to remove the provision stating the preemptive effect of this
part of FRA's regulations because it is unnecessary.

DATES: Written comments on the proposed rule must be received by June
20, 2023. FRA will consider comments received after that date to the
extent practicable.

ADDRESSES: Comments related to Docket No. FRA-2009-0044, Notice No. 2,
may be submitted by going to https://www.regulations.gov and following
the online instructions for submitting comments.
    Instructions: All submissions must include the agency name and
docket number (FRA-2009-0044) or Regulatory Identification Number (RIN)
for this rulemaking (2130-AC14). All comments received will be posted
without change to http://www.regulations.gov; this includes any
personal information. Please see the Privacy Act heading in the
SUPPLEMENTARY INFORMATION section of this document for Privacy Act
information related to any submitted comments or materials.
    Docket: For access to the docket to read background documents or
comments received, go to https://www.regulations.gov and follow the
online instructions for accessing the docket.

FOR FURTHER INFORMATION CONTACT: Michael Watson, Occupational Safety
and Health Manager, Office of Railroad Safety, telephone<PHONE_NUMBER>,
email: [email protected] or Richard Baxley, Attorney Adviser,
Office of the Chief Counsel, telephone:<PHONE_NUMBER>, email:
[email protected].

SUPPLEMENTARY INFORMATION:

Abbreviations and Terms Used in This Document

AAR--Association of American Railroads
AIHA--American Industrial Hygiene Association
ANSI--American National Standards Institute
ASLRRA--American Short Line and Regional Railroad Association
BLET--Brotherhood of Locomotive Engineers and Trainmen
BNSF--BNSF Railway Company
BS--British Standards Institution
CEN--European Committee for Standardization
CFR--Code of Federal Regulations
CO2--carbon dioxide
DOT--U.S. Department of Transportation
EEBA--emergency escape breathing apparatus
EN--European standard
FRA--Federal Railroad Administration
FRSA--the former Federal Railroad Safety Act of 1970, repealed and
reenacted as positive law primarily at 49 U.S.C. ch. 201
HMIS--Hazardous Materials Information System
IDLH--immediate danger to life or health or immediately dangerous to
life or health
IFRA--Initial Regulatory Flexibility Analysis
ISEA--International Safety Equipment Association
ISO--International Organization for Standardization
LBIA--the former Locomotive (Boiler) Inspection Act, repealed and
reenacted as positive law in 49 U.S.C. 20701-20703
LPG--liquefied petroleum gas
NIOSH--National Institute for Occupational Safety and Health
NPRM--notice of proposed rulemaking
NS--Norfolk Southern Railway Company
NTSB--National Transportation Safety Board
O2--Oxygen
OMB--Office of Management and Budget
OSHA--Occupational Safety and Health Administration
PHMSA--Pipeline and Hazardous Materials Safety Administration
PIH material--poison inhalation hazard material
ppm--parts per million
PTC--positive train control
RCO--remote control operator
RFID--radio frequency identification
RIA--Regulatory Impact Analysis
RSIA--Rail Safety Improvement Act of 2008, Public Law 110-432,
Division A
SBA--Small Business Administration
SCBA--self-contained breathing apparatus
SCSR--self-contained, self-rescuer
T&E employees--train and engine service employees
UP--Union Pacific Railroad Company
UTU--United Transportation Union

Table of Contents for Supplementary Information

I. Executive Summary
    A. Purpose of Regulatory Action
    B. Summary of Major Provisions
    C. Costs and Benefits
II. Statutory Authority
III. Background
    A. Accident History and NTSB Recommendation R-05-17
    B. FRA Sponsored Study
    C. FRA's 2016 Guidance for Developing an EEBA Program
IV. Selection of the Appropriate EEBA by Railroads
V. Provision of EEBAs to Covered Employees
VI. Information and Recommendations Provided by the Railroad
Industry and Railroad Labor Organizations After the Study
VII. Public Comment on the NPRM, With FRA's Response
    A. Introduction
    B. Comments on the Preamble, With FRA's Response
    C. Comments Recommending Additional Provisions, With FRA's
Response
    D. Section-Specific Public Comments, With FRA's Response
    1. Comments on Proposed Sec.  227.201(a)(1), With FRA's Response
    2. Comments on Proposed Sec.  227.201(a)(2), With FRA's Response
    3. Comments on Proposed Sec.  227.201(b), With FRA's Response
    4. Comments on Proposed Sec.  227.203(b), With FRA's Response
    5. Comments on Proposed Sec.  227.203(c), With FRA's Response
    6. Comments on Proposed Sec.  227.203(d)(1), With FRA's Response
    7. Comments on Proposed Sec.  227.203(d)(2), With FRA's Response
    8. Comments on Proposed Sec.  227.205, With FRA's Response
    9. Comments on Proposed Sec.  227.207, With FRA's Response
    10. Comments on Proposed Sec.  227.209, With FRA's Response
    11. Comments on Proposed Sec.  227.211, With FRA's Response
    12. Comments on Proposed Sec.  227.217, With FRA's Response
VIII. Section-by-Section Analysis
IX. Regulatory Impact and Notices
    A. Executive Order 12866
    B. Regulatory Flexibility Act and Executive Order 13272
    1. Reasons for Considering Agency Action
    2. A Succinct Statement of the Objectives of, and the Legal
Basis for, the Proposed Rule
    3. A Description of, and Where Feasible, an Estimate of the
Number of Small Entities to Which the Proposed Rule Would Apply
    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
    5. Summary of Class III Railroad Costs
    6. Identification, to the Extent Practicable, of All Relevant
Federal Rules That May Duplicate, Overlap, or Conflict With the
Proposed Rule
    7. A Description of Significant Alternatives to the Rule
    C. Federalism
    D. International Trade Impact Assessment
    E. Paperwork Reduction Act
    F. Compliance With the Unfunded Mandates Reform Act of 1995
    G. Environmental Assessment
    H. Energy Impact
    I. Privacy Act
    J. Analysis Under 1 CFR Part 51
    K. Executive Order 12898 (Environmental Justice)
    L. Executive Order 13175 (Tribal Consultation)

I. Executive Summary

A. Purpose of Regulatory Action

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

    This SNPRM proposes to amend subpart C of 49 CFR part 227 to
require any freight railroad transporting a hazardous material that
would pose an inhalation hazard if released during an accident to
provide certain employees an appropriate atmosphere-supplying EEBA when
occupying a locomotive cab. For reasons explained below, in FRA's
response to public comments, FRA has decided that the primary concern
in establishing the requirement for the provision of EEBAs should be
focused on hazards that can result in poisoning through inhalation.
This does not include simple asphyxiants but does include hazardous
materials that PHMSA identifies as ``materials poisonous by
inhalation,'' which are commonly referred to as ``PIH materials'' and
are defined by PHMSA's Hazardous Materials Regulations as: (1) a gas
meeting the defining criteria in 49 CFR 173.115(c) (i.e., Division
2.3--Gas poisonous by inhalation) and assigned to Hazard Zone A, B, C,
or D in accordance with 49 CFR 173.116(a); (2) a liquid, other than a
mist, meeting the defining criteria regarding inhalation toxicity in 49
CFR 173.132(a)(1)(iii) and assigned to Hazard Zone A or B in accordance
with 49 CFR 173.133(a); or (3) any material identified as an inhalation
hazard by a special provision in column 7 of the table in 49 CFR
172.101.\5\
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    \5\ 49 CFR 171.8.
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    PIH materials that are regularly carried by railroads include
chlorine gas, anhydrous ammonia, ethylene oxide, and anhydrous
hydrofluoric acid. Together these four products make up over 90 percent
of PIH material shipments by rail. Such commodities are readily
identifiable by train crews, both because a ``rail car transporting any
quantity of a hazardous material (including either a load or the
residue \6\ of one of these covered materials) must be placarded on
each side and each end'' pursuant to the requirements of 49 CFR 172.504
and because train crews ``must have a copy of a document for the
hazardous material being transported'' that provides details of the
hazardous material pursuant to 49 CFR 174.26. A car transporting a
Class 2, Division 2.3 material, must have ``POISON GAS'' placards \7\
and a car carrying any of the subset of Class 6, Division 6.1 materials
that is a ``material poisonous by inhalation'' must have ``POISON
INHALATION HAZARD'' placards, except that ``[f]or domestic
transportation, a POISON INHALATION HAZARD placard is not required on a
transport vehicle [including a rail car] or freight container that is
already placarded with the POISON GAS placard.'' \8\ As a result, when
a train crewmember observes a car placarded POISON GAS or POISON
INHALATION HAZARD while the car is part of his or her train, the
crewmember will know that EEBAs must be provided to covered employees
occupying the locomotive cab prior to the train beginning its
movements. EEBAs are intended to protect covered employees from the
risk of exposure to such hazardous materials during the period while
the employees are in the locomotive cab or escaping from a hazardous
materials release posing an inhalation hazard.
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    \6\ ``Residue means the hazardous material remaining in a
packaging, including a tank car, after its contents have been
unloaded to the maximum extent practicable and before the packaging
is either refilled or cleaned of hazardous material and purged to
remove any hazardous vapors.'' 49 CFR 171.8.
    \7\ 49 CFR 172.540.
    \8\ Class 6, Division 6.1 materials other than material
poisonous by inhalation must be placarded ``POISON.'' See 49 CFR
172.504, Table 2, and section on placard design at 49 CFR 172.554.
49 CFR 172.555 and 49 CFR 172.504(f)(8).
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    This SNPRM also proposes railroads that transport a PIH material on
the general railroad system of transportation establish and carry out
programs for: selection, procurement, and provision of EEBAs;
inspection, maintenance, and replacement of EEBAs; and instruction of
employees in the use of EEBAs. Railroads would be required to identify
individual employees or positions to be placed in their general EEBA
programs so that a sufficient number of EEBAs are available and to
ensure that the identified employees or incumbents of the identified
positions know how to use the devices. This SNPRM would require
railroads provide for storage of EEBAs in locomotive cabs to enable
employees to access the apparatus quickly in the event of a release of
a hazardous material that poses an inhalation hazard.
    Because the proposals in this SNPRM would add a new subpart to 49
CFR part 227, FRA is also proposing conforming changes, minor
corrections, and updates to the existing provisions of part 227.
Further, FRA is removing the provision at 49 CFR 227.7 on the
preemptive effect of part 227 as it is unnecessary because it is
duplicative of statutory law at 49

U.S.C. 20106 and case law. See Napier v. Atlantic Coast Line R.R., 272
U.S. 605, 613; 47 S.Ct. 207, 210 (1926).

C. Costs and Benefits

    FRA analyzed the economic impact of this SNPRM. FRA estimated the
costs estimated to be incurred by railroads and the benefits of fewer
injuries to crewmembers from PIH material releasing after an accident/
incident.
    FRA is proposing a rule that would enable covered employees in
locomotive cabs, whose freight train is transporting PIH materials, to
wear EEBAs in the event of a release of such materials. This proposed
rule would require that an EEBA be provided for each covered employee
in a locomotive cab on a freight train transporting any PIH material.
These EEBAs would provide neck and face coverage with respiratory
protection for these covered employees. As proposed, railroads must
also ensure that the equipment is maintained and in proper working
condition. Finally, railroads would be required to train covered
employees on the use of the EEBAs. The main objective of this proposed
rule is to protect to protect covered employees from the risk of
exposure to PIH materials while the employees are in the locomotive cab
or escaping from a hazardous materials release posing an inhalation
hazard.
    Details on the estimated costs of this SNPRM can be found in the
RIA, which FRA has prepared and placed in the docket (FRA-2009-0044).
The RIA presents estimates of the costs likely to occur over the first
10 years of the 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
covered employees and considered part of their equipment.
     Option 2: Locomotive Assignment--EEBAs are assigned to and
kept in locomotives.
     Option 3: Equipment Pooling--EEBAs are pooled at rail
yards and kept in storage lockers where employees would check-in and
check-out the EEBA when PIH is being hauled.
    For all three options, FRA developed estimates using a closed-
circuit EEBA.\9\ 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 a
railroad's fleet, regardless of whether a locomotive is part of a train
that is transporting PIH material. There are approximately 24,000
locomotives owned by Class I railroads, and FRA estimates that at least
three apparatus would have to be installed in each locomotive, one
apparatus each for the conductor, the engineer, and an additional
covered employee. In the ``Equipment Pooling'' option, FRA considered
only having EEBAs provided in trainsets that were transporting PIH.
EEBAs would be brought on board after a determination is made on a
case-by-case basis.
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    \9\ A closed-circuit EEBA is a device designed for use as
respiratory protection during entry into hazardous atmospheres that
can be immediately dangerous to life and health and are described as
an apparatus of the type in which the exhaled breath is rebreathed
by the wearer after the CO2 has been effectively removed
and oxygen concentration restored to suitable levels.
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    FRA estimates the 10-year costs of the proposed rule to be between
$27.1 million to $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) \10\
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    \10\ Numbers in this table and subsequent tables may not sum due
to rounding.

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                                                                     10-Year cost    Present value 7%   Present value 3%   Annualized 7%   Annualized 3%
                             Category                                     ($)              ($)                ($)               ($)             ($)
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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
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    The SNPRM is expected to improve railroad safety by ensuring that
all covered employees in locomotives on freight trains transporting PIH
material can safely vacate the exposed area if a PIH material release
were to occur. The primary benefits include heightened safety for
covered employees and, as a result, earlier awareness/notification to
the public of any catastrophic release of a PIH material.
Implementation of the SNPRM should mitigate the injuries to 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 could accrue through injury prevention.

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

    Section 413 of the RSIA mandates that the Secretary of
Transportation (Secretary) adopt regulations requiring railroads to
provide EEBAs for the train crews in the locomotive cabs of any freight
train transporting a hazardous material in commerce that would present
an inhalation hazard in the event of a release. Specifically, the
statute instructs the Secretary to prescribe regulations requiring
railroads to: (1) ensure that EEBAs affording suitable ``head and neck
coverage with respiratory protection'' are provided ``for all
crewmembers'' in a locomotive cab on a freight train transporting
``hazardous materials that would pose an inhalation hazard in the event
of a release;'' (2) provide a place for convenient storage of EEBAs in
the locomotive that will allow ``crewmembers to access such apparatus
quickly;'' (3) maintain EEBAs ``in proper working condition;'' and (4)
provide crewmembers with appropriate instruction in the use of EEBAs.
The Secretary has delegated the responsibility to carry out his
responsibilities under this section of the RSIA to the Administrator of
FRA. 49 CFR 1.89(b). Additionally, FRA is issuing this SNPRM under the
authority of 49 U.S.C. 20103 and 49 U.S.C. 20701-

20703, as delegated to the Administrator of FRA pursuant to 49 CFR
1.89(a).

III. Background

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

    As noted in the 2010 NPRM, historical data suggests limited train
crew injuries and fatalities related to the catastrophic release of a
PIH material; in the last decade (2012 to 2021), there were no PIH-
related fatalities of T&E personnel, and only two injuries, both of
which resulted in symptoms due to one-time inhalation exposure to
airborne contamination.
    While rail accidents involving the release of PIH materials are S
as demonstrated by the June 2004 rail accident in Macdona, Texas, and
the January 2005 accident in Graniteville, South Carolina, such
accidents can be deadly to both the crew members involved and others in
the vicinity. Both the Macdona and Graniteville accidents involved the
release of a PIH material (chlorine) and both accidents resulted in the
deaths of crewmembers.
    The collision near Macdona occurred on June 28, 2004. According to
the NTSB's report,\11\ a westbound freight train traveling on the same
main line track as an eastbound freight train struck the midpoint of
the 123-car eastbound train as it was leaving the main line to enter a
parallel siding. The collision derailed the 4 locomotive units and the
first 19 cars of the westbound train as well as 17 cars of the
eastbound train. As a result of the derailment and pileup of railcars,
the 16th car of the westbound train, a pressure car loaded with
liquefied chlorine, was punctured. Chlorine escaping from this car
immediately vaporized into a cloud of chlorine gas that engulfed the
accident area to a radius of more than 700 feet. Three people,
including the conductor of the westbound train and two local residents,
died as a result of chlorine gas inhalation.
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    \11\ ``Collision of Union Pacific Railroad Train MHOTU-23 With
BNSF Railway Company Train MEAP-TUL-126-D With Subsequent Derailment
and Hazardous Materials Release, Macdona, Texas, June 28, 2004,''
Railroad Accident Report NTSB/RAR-06/03, Washington, DC.
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    The Graniteville accident occurred on January 6, 2005, when a
freight train encountered a switch that had been improperly lined. The
improperly lined switch diverted the train from the main line onto an
industry track. Once on the industry track, the train struck an
unoccupied, parked train. The collision resulted in the derailment of
two locomotives and 16 freight cars on the diverted train, as well as
the locomotive and one of the two cars of the parked train. There were
three tank cars containing chlorine among the derailed cars on the
diverted train. One of the cars containing chlorine was breached
causing a release of chlorine gas, which resulted in the train engineer
and eight other people dying from chlorine gas inhalation.\12\
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    \12\ ``Collision of Norfolk Southern Freight Train 192 With
Standing Norfolk Southern Local Train P22 With Subsequent Hazardous
Materials Release at Graniteville, South Carolina, January 6,
2005,'' Railroad Accident Report NTSB RAR-05/04, Washington, DC.
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    Following the Macdona and Graniteville accidents, the NTSB issued
Safety Recommendation R-05-17 to FRA recommending that FRA determine
the most effective methods of providing emergency escape breathing
apparatus for all crewmembers on freight trains carrying hazardous
materials that would pose an inhalation hazard in the event of
unintentional release, and then require railroads to provide those
breathing apparatus to their crewmembers along with appropriate
training.

B. FRA Sponsored Study

    In response to NTSB Safety Recommendation R-05-17, FRA commissioned
a study of EEBAs in cooperation with the railroad industry and railroad
labor. As part of the study, FRA compiled factual information,
performed technical, risk, and economic analyses, and made
recommendations on ``the use of [EEBAs] by train crews who may have
exposure to hazardous materials [that] would pose an inhalation hazard
in the event of unintentional release.'' The study, published in 2009,
provided information and recommendations on the use of EEBAs by train
crews who may be exposed to hazardous materials that pose inhalation
hazards. The study concluded that railroads should consider using EEBAs
on trains transporting hazardous materials that pose in inhalation
hazard.\13\ Part of the preamble to this proposed rule draws from the
study; however, after further consideration of the issues involved and
consultation with representatives of the railroad industry and railroad
labor (as discussed under ``Section VII. Information and
Recommendations Provided by the Railroad Industry and Railroad Labor
Organizations after the Study''), FRA has come to different conclusions
on a number of matters. These matters include the minimum breathing
time that EEBAs should provide, the analysis of different methods of
distribution of the devices, and the costs and benefits of various EEBA
alternatives.
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    \13\ See ``Emergency Escape Breathing Apparatus,'' FRA Office of
Research and Development, Final Report, May 2009, which is posted at
https://railroads.dot.gov/sites/fra.dot.gov/files/fra_net/1419/ord0911.pdf.
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C. FRA's 2016 Guidance for Developing an EEBA Program

    In December 2016, FRA published, in the absence of a final rule,
Guidance for Developing an EEBA Program.\14\ This provided guidance to
railroads for developing and implementing an individualized EEBA
program to protect their crewmembers. The guidance highlights factors
to consider when selecting an appropriate EEBA and explains various
components to evaluate when developing an EEBA program. However, FRA is
unaware of any railroad that has developed an EEBA program or made
EEBAs generally available to their crewmembers.
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    \14\ Federal Railroad Administration Guidance for Developing an
Atmosphere-Supplying Emergency Escape Breathing Apparatus Program
(Dec. 2016). https://railroads.dot.gov/elibrary/federal-railroad-administration-guidance-developing-atmosphere-supplying-emergency-escape.
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IV. Selection of the Appropriate EEBA by Railroads

    As explained in the 2010 NPRM, EEBAs are ``respirators'' and
generally there are two different types of respirators: air purifying
and atmosphere-supplying. Air-purifying respirators remove specific air
contaminants by passing ambient air through an air-purifying element,
such as an air-purifying filter, cartridge, or canister. Atmosphere-
supplying respirators supply breathing air from a source independent
from the ambient atmosphere. Types of atmosphere-supplying respirators
include airline supplied-air respirators and SCBA units. Based on the
factors presented below, FRA is proposing to require an atmosphere-
supplying respirator that provides adequate head and neck protection as
well as giving sufficient time for its user to escape an IDLH
atmosphere.\15\ In the 2010 NPRM, FRA noted that it was aware of three
main organizations that had promulgated standards governing the use and
maintenance of respirators--NIOSH, OSHA, and the ISO.\16\ Since
issuance of the 2010 NPRM, however, FRA has become aware of a third
organization, CEN, that has also developed two relevant standards.
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    \15\ NIOSH defines an IDLH as ``an atmosphere that poses an
immediate threat to life, would cause irreversible adverse health
effects, or would impair an individual's ability to escape from a
dangerous atmosphere.'' See 29 CFR 1910.134(b).
    \16\ 75 FR 61386, 61390 (Oct. 5, 2010).

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    As explained in the 2010 NPRM, NIOSH, located within the Centers
for Disease Control and Prevention of the U.S. Department of Health and
Human Services, worked with government and industry partners to develop
certification standards for respirators. The NIOSH regulations,
codified at 42 CFR part 84, establish the requirements for NIOSH-
certification of respirator equipment. NIOSH has also developed
information on safe levels of exposure to toxic materials and harmful
physical agents and issued recommendations for respirator use.
    ISO has also established standards for respirator maintenance and
use. The ISO is a network of national standards institutes in 162
countries, including the United States, through the American National
Standards Institute. ISO develops international standards to assist in
ensuring the safe performance of a wide range of EEBAs. While ISO is
not a government organization, it works to establish performance
standards that have scientific and technological bases while ensuring
that products, falling within its purview, are safe and reliable for
consumers. The organization has promulgated ISO 23269-1:2008(E),
``Ships and marine technology--Breathing apparatus for ships--Part 1:
Emergency escape breathing devices (EEBD) for shipboard use, First
Edition (2008-02-01).'' While ISO 23269-1:2008 is directed towards
EEBAs on ships and marine technology, the standard can be reasonably
transferred to the railroad environment. ISO 23269-1:2008 establishes
performance specifications for EEBAs that are intended to provide air
or oxygen to a user to facilitate escape from accommodation and
machinery spaces, similar to a locomotive cab, with a hazardous
atmosphere.\17\
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    \17\ However, as explained below, FRA believes that the minimum
breathing capacity allowed by ISO 23269-1:2008, which is 10 minutes,
is insufficient for the anticipated use in a railroad environment.
As a result, the proposed rule requires a minimum breathing capacity
of 15 minutes, which would be equally applicable to EEBAs certified
under the requirements of NIOSH. See 42 CFR part 84, or ISO 23269-
1:2008.
---------------------------------------------------------------------------

    CEN serves a similar purpose as ISO in that it develops consensus
standards for European countries. In creating these standards, CEN
relies on the input of technical experts, business and consumer groups,
and other societal interest organizations. Additionally, there is a
measure of interconnectedness between the ISO and CEN, as CEN has
entered into a cooperative agreement with ISO to avoid duplicative
standards. In the area of escape respirators, CEN has developed two
standards that railroads could use to identify an appropriate EEBA to
provide to an employee. The first standard establishes requirements for
approving closed-circuit escape respirators, see BS EN 13794:2002 E,
``Respiratory Protective Devices--Self-Contained, Closed-Circuit
Breathing Apparatus for Escape--Requirements, Testing, Marking
(November 2002),'' while the second standard establishes requirements
for approving open-circuit escape respirators, see BS EN 1146:2005: E,
``Respiratory Protective Devices--Self-Contained, Open-Circuit
Compressed Air Breathing Apparatus Incorporating a Hood for Escape--
Requirements, Testing, Marking (September 2005).'' While BS EN
13794:2002 and BS EN 1146:2005 are standards created for the European
market, FRA finds that compliance with either standard would be
adequate to establish the reliability of a device, subject to the
provisions of this regulation, specifically, proposed 49 CFR 227.203,
which is discussed in detail below. See VIII. Public Comment on the
NPRM, with FRA's Response and IX. Section-by-Section Analysis.
    Additionally, OSHA, located within the U.S. Department of Labor, is
responsible for developing and enforcing general workplace safety and
health regulations related to respiratory protection. In furtherance of
this responsibility, OSHA has promulgated extensive regulations
governing the maintenance, care, and use of respirators of all types,
including emergency escape devices. See 29 CFR 1910.134.
    In drafting this proposed rule, FRA considered the requirements of
both Federal agencies (NIOSH and OSHA) as well as the ISO and EN
standards to assist in determining the possible types of EEBAs that may
be used by railroad employees covered under this rule. To determine
which type or types of EEBAs are appropriate, FRA has looked to the
comprehensive selection process for respirators developed by NIOSH.\18\
For purposes of EEBAs deployed in the railroad environment, the two
major NIOSH factors to consider in selecting a respirator are to
determine whether the respirator is intended for: (1) use in an oxygen-
deficient atmosphere (i.e., less than 19.5 percent O2); and
(2) use in, entry into, or escape from, unknown or IDLH atmospheres
(e.g., an emergency situation).
---------------------------------------------------------------------------

    \18\ https://www.cdc.gov/niosh/docs/2005-100/default.html.
---------------------------------------------------------------------------

    FRA's investigation into the Graniteville accident found that the
concentration of the toxic chlorine cloud over the accident site area
was estimated to be approximately 2,000 parts per million (ppm).\19\
OSHA classifies chlorine as having an IDLH level of 10 ppm. FRA roughly
estimated the distance between the final resting spot of the breached
chlorine tank car in relation to the train crew, as well as the wind
speed and size of breach, to determine that the chlorine plume reached
the crew within two minutes. The coroner's report on the eight
fatalities to persons who were not railroad employees in the
Graniteville accident indicated that the primary cause of death was
asphyxia, or lack of oxygen. The coroner listed the engineer's primary
cause of death as lactic acidosis. Exposure to chlorine gas was
attributed as the secondary cause of all deaths in the accident. Under
the circumstances presented, it appears that both NIOSH selection
criteria were met. There may have been an oxygen-deficient atmosphere,
and there certainly was toxic-gas concentration exceeding IDLH levels.
---------------------------------------------------------------------------

    \19\ See R.L. Buckley, Detailed Numerical Simulation of the
Graniteville Train Collision, Savannah River National Laboratory,
Report WSRC-MS-2005-00635 October 2005.
---------------------------------------------------------------------------

    The Graniteville accident demonstrated that railroad hazardous
material incidents (meaning collisions, derailments, or other train
accidents) involving the catastrophic loss of certain PIH materials
have the potential to release IDLH concentrations and/or displace
oxygen very quickly without the crew's knowledge. In such
circumstances, the crew may need to respond to an incident by donning
their EEBAs even before assessing the damage caused by an accident.
Considering the variables associated with the transportation of
hazardous materials via rail and the potential hazards that exist, FRA
is, based on the NIOSH selection criteria, proposing to require that
railroads provide an escape-type respirator to covered employees.
    The single function of escape-type EEBAs is to allow sufficient
time for an individual working in a normally safe environment to escape
from suddenly occurring respiratory hazards. Given this function, the
selection of the device does not rely on assigned protection factors
designated by OSHA.\20\ Instead, these escape-type respirators are
selected based on a consideration of the

time needed to escape in the event of IDLH or oxygen-deficient
conditions.
---------------------------------------------------------------------------

    \20\ ``Assigned protection factor'' means the level of safety
that a respirator or a class of respirators is expected to provide
to employees. Assigned protection factors were developed by OSHA to
designate to employers the proper type of device that is required in
selecting a respirator. According to OSHA, assigned protection
factors are not applicable to respirators used solely for escape.
---------------------------------------------------------------------------

    Pursuant to statutory requirements, and as proposed in the 2010
NPRM, this SNPRM would require providing a device with head and neck
coverage. Escape-type SCBA devices are commonly used with full-face
pieces or hoods. Such devices are usually rated from 3- to 60-minute
units depending on the supply of air. The following two types of
atmosphere-supplying SCBA would satisfy the protection requirements of
this proposed regulation:
     Open-Circuit SCBA. These are typically classified as
positive pressure, open-circuit systems whereby the user receives
(inhales) clean air with 21 percent O2 from a compressed air
cylinder worn with a harness on the back. The user's exhaled breath
contains significant amounts (15 percent) of unused oxygen that is
vented to atmosphere. Because much of the user's exhaled breath vents
to atmosphere, the size of open-circuit systems is larger than closed-
circuit systems. Open-circuit SCBA systems may employ full face masks
or hoods and typically require an airtight seal against the head, face,
or aural/nasal area.
     Rebreathers. These can be positive-pressure or negative-
pressure systems. Classified as closed-circuit O2 systems,
rebreathers perform as their name implies. The user rebreathes his or
her breath. A chemical scrubber removes the CO2 from the
user's breath and makes up metabolized O2 from a small
bottle of compressed 100-percent O2. Because the user is
rebreathing his or her exhaled air containing 15 percent oxygen, a
rebreather is four times more efficient than an open-circuit system. As
a result, such systems are capable of either lasting much longer than
open-circuit systems (if size were comparable) or providing the same
breathing duration as an open-circuit system but in a smaller package.
Rebreathers may be employed with full-face masks or hoods. Negative
pressure rebreathers do not require a tight seal.
    First responders (such as firefighters) commonly use open-circuit
positive pressure SCBA systems for entering the scene of an emergency
event. However, such devices may not be best situated to the railroad
environment. In addition to being heavy and cumbersome from
incorporating a large, compressed air cylinder mounted to a harness,
they also commonly incorporate use of a full-face piece. Depending on
the program developed by each railroad, the incorporation of a full-
face piece may be a logistically and economically difficult
undertaking. To be effective, a full-face piece requires an airtight
seal around the user's face, which means that each user must be
personally fitted for the device. It also means the user must be
cleanly shaven or otherwise free of excessive facial hair. The
enforcement of such a requirement would be difficult at best.
    FRA believes that hoods provide a useful alternative to full-face
masks while protecting the face and neck. Hoods are universal fitting
devices and can be used with open and closed-circuit SCBAs. Because
they are universal fitting, hoods do not require personally fitting the
user, and hoods operate efficiently regardless of most eyewear, facial
features, or hair. Significantly, hoods also allow the wearer to
communicate while using the SCBA.
    Experience has shown that a plume of hazardous material can travel
quickly. As a result, it is vitally important that the train crew has
adequate breathing time available to allow each member to move a
significant distance from the site while protected from the ambient
atmosphere. Because such incidents will often result from a collision,
as was the case in Macdona and Graniteville, consideration should be
given to those situations where additional time may be used to assist
or extricate fellow crewmembers that may be hurt or trapped. For
example, if it takes 10 minutes to assist a fellow crewmember and each
is wearing a 15-minute open-circuit respirator, each crewmember is left
with five minutes to escape from any plume that may be present.
Moreover, often individuals will have a tendency to over-breathe in
stressful situations, which will shorten the breathing time available
in a respirator. In selecting an EEBA with sufficient breathing time,
each railroad should take into consideration these factors and others
that contribute to the ``Murphy's Law'' effects of accidents such as an
incident occurring at night or in tight terrain. As a result, FRA is
proposing to require that EEBAs being provided to covered employees
have a 15-minute minimum breathing capacity. Further, FRA encourages
railroads to consider EEBAs with a longer breathing capacity, to
provide an extra margin for escape under stressful circumstances.

V. Provision of EEBAs to Covered Employees

    In proposing this regulation, FRA has decided not to propose a
specific method by which railroads must provide EEBAs to covered
employees. See discussion of covered employees at IX. Section-by-
Section Analysis of Sec. Sec.  227.201 and 227.211, below. FRA
recognizes that there are differing methods for effectively
distributing suitable EEBAs among a railroad's covered employees, its
locomotive fleet, or both. Each of these options has advantages and
disadvantages. Given these factors, FRA believes that the proposed
regulation most efficiently serves the RSIA mandate by allowing each
railroad to choose the method of distribution that works for it as long
as: (1) covered employees are provided with a suitable device while
they are in the locomotive cab of a freight train transporting a PIH
material; and (2) transportation of a covered hazardous material is not
unduly delayed, thereby posing additional risk, particularly where the
covered train (or a locomotive intended to be used to haul a covered
train) is interchanged from one railroad to another. See VII.
Information and Recommendations Provided by the Railroad Industry and
Railroad Labor Organizations after the Study, for relevant remarks. In
the following paragraphs, FRA discusses the potential costs and
benefits of five options available to railroads for providing EEBAs to
covered employees.
    Under this proposed rule, EEBAs may be treated as part of an
employee's permanently issued items, similar to eye protection, radios,
and lanterns. This method of distribution would allow railroads to
permanently issue an EEBA to each potentially covered employee (e.g.,
for a freight railroad that regularly hauls one or more PIH materials,
possibly all of its train employees). The device would be in the user's
control at all times, and each individual would be responsible for
having the device in his or her possession. The carrier would still be
responsible for ensuring the state of the equipment through an
inspection program; however, the company would be relieved of most of
the responsibilities for EEBA management. Theoretically, this option
would tend to result in better cared for equipment and lower
replacement costs. Moreover, personal assignment allows for
customization of the EEBA. However, permanently issuing EEBA to
employees results in substantial costs. Over a 10-year period, total
costs would be approximately $90.8 million. Other negative aspects of
treating EEBAs as a permanently issued item include difficulty in
monitoring the condition of the EEBA and ensuring that the EEBA is with
the user at all times that it is required to be available.
Additionally, permanently issuing the EEBA would add to an already
lengthy list of items expected to be carried by train employees.

    Alternatively, EEBAs may also be permanently assigned to an
individual as a dedicated personal item that would be issued at the
start of each shift and recovered at the end of each shift as part of
the clock-in/clock-out process. This method allows for customization
and allows the EEBA to be with the user at all times the user is on
duty, while supporting centralized inspection and maintenance. However,
the railroad may experience greater costs due to the increased size of
its EEBA inventory since all train employees that have the potential to
work in the locomotive cab of a freight train transporting a PIH
material would require stocked EEBAs. This alternative may also create
difficulties in the provision of EEBAs if the train employees who must
have access to the EEBAs have more than one on-duty location.
    A third option is to treat EEBAs as ``pool'' items. The EEBAs would
not be assigned to a specific individual. They would be issued at the
start of each shift and recovered at the end of each shift as part of
the clock-in/clock-out process. This option supports centralized
inspection and maintenance while minimizing number of EEBAs required,
which could reduce costs substantially. FRA estimates that trains
transporting PIH materials amount to approximately 0.2 percent of all
train traffic, as cars carrying PIH materials are concentrated in
relatively few trains. If railroads chose this option, they could stock
enough EEBAs to cover 10 percent of the entire locomotive fleet for
approximately $33.5 million over a 10-year period. Equipping enough
EEBAs to cover 10 percent of the entire locomotive fleet should allow
for every locomotive that will be part of train transporting a PIH
material to be equipped with the necessary devices for each covered
employee provided that the railroads exercise adequate resource
management with respect to EEBAs. This would ensure that the EEBA would
be with the user throughout his or her entire shift. However, railroads
likely would have to allocate or build space at one or more locations
(depending on the size of the railroad) to warehouse EEBAs that are not
being used by covered employees. Moreover, an employee must be assigned
to monitor the handing out and returning of devices, and the fewer the
devices, the tighter the management will have to be. These factors
increase the management burden for tracking and recovery of EEBAs.
Additionally, this system also may have hidden costs, such as losing
the benefits of ``ownership'' if EEBAs are treated as common property.
    A fourth option is to have EEBAs permanently mounted in each
locomotive cab in the railroad's fleet. This method would ensure that
trains transported by the railroad that include a PIH material are
always adequately equipped, while supporting centralized inspection and
maintenance. The negative aspects of permanently mounting the EEBA
selected by the railroad in the cabs of the railroad's locomotive fleet
include the increased size of the railroad's EEBA inventory if non-
covered consists would transport the EEBAs and if EEBAs must be
provided for worst-case crewing (including possible supernumerary
personnel such as deadheading employees), increased management burden
for tracking/recovery, increased management burden for item inspection
and maintenance, and unavailability of customized EEBAs. Additionally,
FRA has estimated that the total 10-year cost of outfitting all
locomotives to be approximately $105.3 million. These estimates could
be reduced if railroads opted to dedicate a portion of their locomotive
fleet to service for trains transporting PIH materials, but dedicating
locomotives in this manner would likely result in decreased economic
efficiency.
    As discussed in VII. Information and Recommendations Provided by
the Railroad Industry and Railroad Labor Organizations after the Study,
AAR has proposed that Class I railroads interchanging locomotives with
each other will provide the same type of EEBA while also using the same
method of equipping the locomotive, which would expedite interchange
between two Class I railroads. However, the option of permanently
mounting a specific type of EEBA within each locomotive owned by a
Class I railroad could create delays at interchange if the locomotives
from nonparticipating railroads also are offered in interchange to
Class I railroads to haul covered trains. The delay could occur if the
nonparticipating railroad delivers a locomotive in interchange that
either lacks an EEBA of any kind or that has an EEBA that does not
conform to the type specified under the Class I railroad's general EEBA
program under proposed Sec.  227.211.
    EEBAs also may be temporarily mounted in the locomotive cab as the
train containing a shipment of PIH material is made up. Using this
option would help to minimize the number of EEBAs required, while
ensuring that each consist containing a PIH material is appropriately
equipped. It would also allow the railroad to cater efficiently to
differing crew sizes. Drawbacks with this method include increased
management burden for the initial issue of EEBAs to the consist,
increased management burden for tracking/recovery, increased management
burden for item inspection and maintenance, and unavailability of
customized EEBAs.
    FRA recognizes that these are but a few of the numerous options for
the provision of EEBAs, each having its own costs and benefits. Any of
these options (or combination of these options), including options that
have not been discussed above, is acceptable under this proposed rule,
as long as a suitable EEBA is provided by the railroad to each covered
employee while they are in a locomotive cab of a covered train and the
transportation of covered hazardous materials via rail is not unduly
delayed.

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

    As previously mentioned, representatives of both the railroad
industry and railroad labor cooperated with the FRA-sponsored study on
the feasibility of providing EEBAs to train crews, the report of which
was published in May 2009. AAR, UTU,\21\ and BLET also exchanged
information and ideas with FRA on issues related to this rulemaking.
---------------------------------------------------------------------------

    \21\ UTU is now part of the International Association of Sheet
Metal, Air, Rail and Transportation Workers (SMART).
---------------------------------------------------------------------------

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

with the RSIA mandate. Of course, AAR is free to rely on a final
specification to normalize EEBAs among Class I railroads, as long as
the specification complies with the requirements in subpart C.
    Additionally, in the course of drafting the NPRM, FRA
representatives met with UTU and BLET representatives on March 31,
2010, who briefed FRA on issues related to the provision of EEBAs. AAR
was also in attendance at this meeting. UTU felt that EEBAs should be
``placed on all occupied locomotives which operate over a corridor
where freight trains carry hazardous materials that pose an inhalation
hazard in the event of a release.'' Under UTU's recommendation, each
occupied locomotive would be required to have working EEBAs--even if
the occupied locomotive is not part of a train carrying asphyxiants or
PIH materials--as long the locomotive is operating over a rail line
that carries such materials.
    During the March 31, 2010, meeting, UTU indicated that it opposed
issuing EEBAs as personal items. UTU felt that adding an additional
item to each train employee's required personal equipment would
unnecessarily burden crewmembers. UTU was concerned with not only the
added weight, but also the extra responsibility for care and
maintenance that would fall to train employees in the event that EEBAs
are provided as personal equipment. It contended that railroads are in
a better position than the employees to maintain the devices and stated
that treating EEBAs as personal equipment would not satisfy the intent
of Congress in passing the legislation.
    Finally, UTU stressed that there must be sufficient training of
train employees in the use of EEBAs. Such training would ensure that
train employees would know how to use EEBAs if presented with a
situation in the field where their use was required. UTU expressed a
strong desire for regular, hands-on training with devices selected by
the railroads to achieve these ends.

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

A. Introduction

    FRA received 11 sets of comments on the 2010 NPRM from 12 different
entities (BLET and UTU jointly submitted comments), covering a broad
spectrum of interests which resulted in a number of revisions to this
proposed rule. These commenters included the railroad industry, labor
organizations, professional associations, respirator manufacturers,
Federal agencies, and concerned individuals. In updating the proposed
rule, FRA has considered each issue raised by the commenters, and it
addresses those issues in this section.

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

    NIOSH comments regarding footnote 4 in the preamble to the NPRM,
which states that ``[t]he proposed NIOSH regulations would be
applicable to mine workers, but NIOSH provides that once the final rule
is published it would be used to certify respirators in other work
environments where escape respirators are supplied.'' NIOSH suggests
that the above-noted wording implies that the existing regulations only
apply to certification of escape respirators for the mining work
environment. However, the respirators certified for use under the
existing regulations have been and continue to be used to certify
respirators for use in other work environments where escape respirators
are supplied. As the NIOSH rulemaking in question has been finalized,
FRA has removed the footnote to avoid confusion.
    Additionally, NIOSH recommends clarifying the preamble discussion
on the type and performance level of protection to be provided by the
required head and neck coverage (e.g., impact or penetration
resistance, lens abrasion resistance, eye irritation). In the NPRM,
there are several places where these issues were addressed. See 76 FR
61392, 61395, and 61403 (Oct. 5, 2010). FRA understands Congress's
primary intent in requiring protection of the head and neck of covered
employees is to ensure that the eyes, noses, and throats of the
employees are protected from exposure to the irritant properties of any
contaminants. Because the EEBA standard is, to the degree possible, a
performance standard that sets the performance criteria for EEBAs for
use in emergency escape situations, FRA does not seek to prescribe
specific respirator performance measures--with the exception of
breathing capacity--and/or specific respirator type. FRA has therefore
modified its discussion in the Section-by-Section Analysis to state
clearly FRA's intent of providing performance criteria that must be met
by the head and neck protection language--the prevention of eye, nose,
and throat irritation--when considering a specific type of respirator.
    NIOSH also recommends that the NIOSH-certified closed-circuit
escape respirators, which use a chemical source for oxygen (e.g.,
Draeger OXY K plus S and CSE SR-100 units), be mentioned in the
preamble to the final rule as an atmosphere-supplying SCBA that
satisfies the protection requirements of the regulation. FRA takes the
position that any respirator that meets the criteria established under
proposed Sec.  227.203 would be acceptable. The descriptions in the
preamble were not intended to be an exhaustive explanation of the types
of respirator technology available, only to describe some of them for
illustrative purposes.
    An individual commenter states that FRA's own data suggest the rule
appears to be unnecessary, costly, and likely inimical to the safety of
train crews. He contends that, considering the low fatality rate
documented for hazardous material releases, FRA should put its
resources in continuing to minimize the number and consequence of rail
accidents involving hazardous materials. In response to this comment,
FRA notes that the RSIA mandates that the Secretary adopt regulations
requiring railroads to provide EEBAs for train crews in occupying
locomotive cabs of any freight train transporting a hazardous material
in commerce that would present an inhalation hazard in the event of a
release. Given this statutory mandate, FRA is proposing a rule that not
only considers the costs, but also provides a mechanism to enhance
safety for railroad employees transporting hazardous materials
presenting an inhalation hazard if a release occurs. Moreover, it is
important to recognize that FRA has recently undertaken a number of
rulemaking initiatives in a variety of disciplines, including re-
engineering of tank cars (in cooperation with PHMSA), PTC, and
amendments to operating rules, all designed to improve the safety of
railroad operations, and thus reduce the rate of incidents, including
those involving hazardous materials. As with all complex systems,
however, there are occasions when failures do occur. This proposed rule
would provide an additional element of protection for covered employees
should an accident with a PIH release occur in the future.
    The individual commenter also states that, in his experience with
protective breathing gear, it is a liability unless employees are
highly trained in using the devices. The commenter raises the concern
that crews may waste precious time in donning EEBAs when the best
course of action is to exit the predicament. Additionally, the
commenter is concerned that such gear may result in increased panic by
reducing situational awareness when presented with the stress of an
accident. FRA has considered these issues while drafting this proposed
regulation and expects that the time taken to don this gear will be
minimal. In FRA's view, the use of an EEBA can enhance a covered
employee's opportunity to escape a

potentially toxic environment that, absent these devices, they would be
unable to do without an adverse outcome. The Macdona chlorine release
reveals that the conductor, who died, had initially escaped the
locomotive cab, but while trying to walk away from the accident scene,
was exposed to chlorine to the degree that it overcame him. In that
case, had an EEBA been present and used by the conductor, he may have
had sufficient time and breathable air to get far enough away from the
chlorine release to survive.
    BLET and UTU (jointly referred to as Labor) comment that FRA's NPRM
understates the benefits of the proposed regulation. Labor contends
that the value of preventing injuries necessarily requires a subjective
assignment of casualties to several categories of an ``Abbreviated
Injury Scale,'' the most severe of which is a critical injury. A
critical injury is valued at 76.25 percent of the cost of a statistical
human life. Labor then posits that if only 2 percent (14) of the 660
predictable inhalation casualties identified by FRA are deemed
critical, then the benefit of the proposed rule would roughly equal the
$73,900,000 cost that FRA associated with the 2010 NPRM if railroads
permanently equip locomotives with open-circuit type EEBAs.
    While Labor's comment correctly asserts that there were 660
inhalation casualties over the 10-year period presented in the 2010
NPRM, FRA reanalyzed that data to determine the relevance of these
casualties to the issue of transporting hazardous materials that would
pose an inhalation hazard in the event of a catastrophic release. FRA's
analysis matched HMIS \22\ incident data, maintained by PHMSA, with
FRA's part 225 injury and illness records over the 2010 NPRM's 10-year
period. The data were further filtered by removing RCOs and actions
where the employee was walking, adjusting things, throwing switches,
coupling air hoses, etc.--i.e., not in the cab. FRA then removed events
that were not related to the inhalation of a chemical (e.g., burned,
chair/seat, assaulted by another, splashed, or dripped). Of the
remaining incidents, only five casualties occurred on a mainline track
or a siding that would have fallen within the category of events that
this proposed rule seeks to protect against. Of those incidents, two
casualties arose out the Macdona collision, and two casualties arose
out of the Graniteville collision, both of which are discussed in the
preamble.
---------------------------------------------------------------------------

    \22\ PHMSA, the Federal agency within DOT charged with the safe
and secure movement of almost 1 million daily shipments of hazardous
materials by all modes of transportation, developed the HMIS. The
system maintains and provides access to comprehensive information on
hazardous materials incidents, exemptions and approvals, enforcement
actions, and other elements that support the regulatory program.
---------------------------------------------------------------------------

    Additionally, Labor takes issue with the cost-benefit discussion in
the 2010 NPRM preamble because it contends that FRA implies it was
pushed into implementing this rule by a Congressional mandate and
``appears to be apologizing for implementing this rule because it
might, in their analysis, cost the railroads money.'' As a result,
Labor asks that the preamble be edited to remove the following text
``[a]lthough the costs associated with implementation of the proposed
rule would likely exceed the benefits, FRA is constrained by the
requirements of RSIA.'' See 75 FR 61398. FRA is leaving the statement
in this proposed rule as it appears in the 2010 NPRM. The analysis that
FRA undertook was not intended to diminish the real and significant
tragedies that occurred. FRA must ensure that the economic analysis is
done in as objective a manner as possible, and it has a duty to inform
the public when a rule has a negative cost-benefit ratio.

C. Comments Recommending Additional Provisions, With FRA's Responses

    Draeger Safety (Draeger) comments that the closed-circuit SCSR is
the appropriate respirator that should be used for railroads. Draeger
notes that SCSRs have been used extensively in the United States and
internationally by the mining industry and on oil drilling platforms.
Additionally, Draeger states that SCSRs are used by the U.S. Navy and
by railway operations in Switzerland and Austria. SCSRs are currently
approved by NIOSH under 42 CFR part 84. While the device mentioned in
Draeger's comments may be the one selected by a railroad it is not the
only type that will meet the requirements in the RSIA mandate or in the
criteria laid out by FRA.
    Chemical Facility Security News suggests that FRA should include a
requirement to place chemical detectors and alarms on all asphyxiant
gas and PIH railcars that would notify train crews when there is a leak
that might require them to don their EEBAs. The commenter asserts that
such detectors or alarms also would benefit those first responders at
the scene. Additionally, Chemical Facility Security News argues that
any usage requirements for EEBAs should also require a personal
detector for the chemicals involved. Chemical Facility Security News
states that this is the only way that train crewmembers will know if
they have moved to a safe location that is suitable for removing an
EEBA.
    Under this proposed rule, railroads would be required to provide
instruction for covered employees on the proper evacuation procedures
and use of the EEBAs. Employees must also be instructed to evacuate the
locomotive cab immediately during a release of a hazardous material
that would present an inhalation hazard.
    FRA has not included a provision in this proposed rule mandating
that railroads provide chemical detectors or alarms for several
reasons. First, as more than 20 listed PIH chemicals are transported by
rail, it would not be possible to provide a single chemical detection
device that would have the capability of detecting the full range of
PIH materials (or asphyxiants) that may be encountered. According to
the Chemical Facility Security News blog, ``many of the covered
chemicals cannot be detected by the human senses.'' In fact, even the
most innovative chemical detection devices are limited to the detection
of only a handful of toxic industrial chemicals. In addition, chemical
detection devices would only be reliable when the wearer is positioned
downwind of the toxic vapor cloud and external to the locomotive cab.
Also, it should be noted that if the concentration of the PIH material
is high enough to create an IDLH environment, then the detection device
may not provide sufficient time to take protective measures.
    The acquisition and use of the devices would also be very
expensive, especially considering the purchasing, maintenance
(including factory maintenance and calibration), and training costs,
and FRA does not believe it would provide additional protection for
locomotive cab employees. FRA believes that in an emergency situation,
such as an accidental release, covered employees should be focused on
donning the EEBA and safely evacuating the locomotive instead of
looking for a detection device to decide whether donning the EEBA and
evacuating the locomotive is necessary.
    Chemical Facility Security News also comments that there should be
a serious look into whether a similar requirement should be provided
for other transportation workers because trucks may haul similar
chemicals and are involved in more accidents per mile than their
railroad counterparts. FRA's regulatory authority is limited to
establishing safety regulations for the railroad industry and, thus,
this comment is beyond FRA's regulatory authority to implement.

    ASLRRA comments address concerns about the financial impact of the
RSIA mandate on the small railroad industry, which it contends is
already stressed by the cumulative effect of other regulations and a
lack of pricing power. ASLRRA states that this proposed regulation will
not enhance safety for small railroads, since there have not been any
fatalities, to its knowledge, arising out of the shipment of PIH
materials by Class III railroads. Indeed, ASLRRA is concerned that the
new requirements will reduce safety by forcing small railroads to take
money from their capital budgets that would have been used for track
maintenance and other infrastructure improvements. Separately, it notes
that the effect of the proposed rule could be to shift transportation
of PIH materials from rail lines to the nation's roads and highways,
where the potential for catastrophic interaction with the broader
public is much greater. As a result, ALSRRA requests that FRA seek an
exemption from Congress for Class III railroads that handle PIH traffic
on their own lines where train speeds do not exceed 30 miles per hour.
    FRA understands ALSRRA's concerns, but the agency is constrained by
section 413 of the RSIA. Unlike with PTC, Congress did not carve out an
exemption for Class II and Class III railroads from the statutory
requirement. See section 104 of the RSIA. Instead, Congress used broad
language that covers any railroad carrier transporting hazardous
materials that would pose an inhalation hazard in the event of release.
In light of this language, FRA is constrained from instituting an
exception for Class III railroads without Congressional action.
Notwithstanding these constraints, FRA has proposed measures to limit
the costs for railroads. In particular, FRA has proposed allowing
railroads to pursue the most cost-effective way to provide EEBA in
accordance with the statutory and regulatory requirements.
Additionally, small railroads could consider pooling resources wherever
possible for requirements such as periodic training. Moreover, Class
III railroads will have a full 18 months from the effective date of the
rule before they will be expected to be in compliance, which allows for
the ``start-up'' costs related to compliance (e.g., acquiring
respirators and establishing training programs) to be spread out over a
period of time.
    Labor raises concerns about placards and manifest accuracy. Labor
contends that it would defeat Congressional intent in requiring the
provision of the EEBAs if train crews are not aware that the freight
train on which they are working is transporting or will encounter
trains that are transporting materials that could pose an inhalation
hazard if released. It asserts that train manifests must be 100-percent
accurate to ensure that the train crew understands the need to have
EEBAs on the train. As a result, Labor argues that the absence of
clerical employees to verify the accuracy of train manifests could
endanger the safety of operating employees as well as surrounding
communities where PIH materials are transported. Further, Labor
suggests that operating crews and shop employees who prepare locomotive
consists for service should receive regular job briefings on the
requirements for EEBAs in locomotive cabs.
    With respect to Labor's concerns, FRA notes that, while placard and
manifest accuracy are not included in the RSIA mandate, PHMSA already
has regulations governing the accuracy of shipping papers, including
manifests, markings, labels, and placards, see 49 CFR part 172,
subparts C, D, E, and F, and the accuracy of train consists, see 49 CFR
174.26. On the issue of required job safety briefings, FRA has proposed
training standards in Sec.  227.209, Railroad's program of instruction
on EEBAs, which contains requirements for teaching the safe provision
and use of EEBAs. Proposed Sec.  227.209 requires that covered
employees be instructed on the types of products that are PIH
materials. This instruction would be in addition to the initial and
recurrent hazardous materials training required of railroad crewmembers
and other hazardous materials employees in 49 CFR part 172 subpart H.
Given these training requirements along with other regulations that
could cover the risk associated with the transportation of PIH material
such as railroad safety risk reduction programs in 49 CFR parts 270 and
271, this proposed rule does not require regular safety briefings.

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

    FRA did not receive any comments on the proposed changes to the
sections in part 227, subparts A and B; did not receive comments on
proposed Sec. Sec.  227.213 and 227.215 in subpart C; and did not
receive any comments regarding the amendment to part 227, appendix G.
1. Comments on Proposed Sec.  227.201(a)(1), With FRA's Response
    FRA received a number of comments on proposed Sec.  227.201(a)(1).
While FRA continues to propose most of this provision without change,
as discussed in detail below, FRA has modified the paragraph in this
SNPRM by removing simple ``asphyxiants'' from the text of the
regulation that identifies the items being transported that would
trigger the requirement for providing EEBAs to covered employees. As
modified, Sec.  227.201(a)(1) would require the provision of EEBAs to
each train employee, direct supervisor of a train employee, deadheading
employee, and any other employee designated by the railroad when any of
the employees is required to work in or occupy the locomotive cab of a
covered train that is transporting a PIH material, which would include
PIH material asphyxiants.
    NIOSH suggests that FRA could require railroads to place EEBAs
strategically at various locations in rail yards (e.g., maintenance
shop, office, staging areas). This would expand protection to employees
who are conducting local area/yard work with trains carrying hazardous
materials. NIOSH states that placing EEBAs in the rail yard would allow
workers to avoid approaching a locomotive that may be involved in an
incident to obtain an EEBA.
    The RSIA established a limited statutory mandate to promulgate
regulations that require railroads to provide EEBAs ``for all
crewmembers in locomotive cabs on freight trains carrying hazardous
materials that would pose an inhalation hazard in the event of
release.'' If Congress had wanted the Secretary to promulgate expansive
regulations covering areas outside the locomotive cab, then it would
have chosen different language that could be read to cover areas other
than locomotive cabs, including rail yards. Since Congress did not do
so, FRA does not propose to include requiring the provision of EEBAs at
strategically placed locations in rail yards. However, the rule in no
way prohibits railroads from voluntarily locating EEBAs in the rail
yards to allow employees to protect themselves in the event of a
release within a rail yard.
    Draeger suggests that Sec. Sec.  227.1 and 227.201(a)(1) should be
changed to cover any employee located in an occupied space of an in-
service freight train. Draeger also raises the alternative of requiring
that covered employees be provided with belts with EEBAs attached to
them so that an EEBA will be available at all times. As noted in the
preceding paragraph regarding NIOSH's suggestion of placing EEBAs
strategically throughout rail yards, FRA believes the current proposed
language in this section appropriately complies with the mandate
established by the

RSIA. Additionally, given that locomotive cabs are the only ``occupied
space(s)'' on freight trains, FRA views this suggested change as
redundant.
    Labor suggests amending proposed Sec.  227.201(a)(1) to require
every train employee who is required to operate a freight train,
including local freight and transfer service, that may pass, follow, or
operate on tracks adjacent to other trains that are carrying hazardous
materials or residue in their manifest, must be provided with quick
access to an emergency escape breathing apparatus. FRA declines to
adopt this proposal for two reasons. First, as noted above, the RSIA is
clear where EEBAs are required (i.e., ``in locomotive cabs on freight
trains carrying hazardous materials that would pose an inhalation
hazard in the event of release.''). The RSIA does not establish a broad
mandate for the provision of EEBAs to every train employee who is
required to operate a freight train that may pass, follow, or operate
on tracks adjacent to other trains that are carrying hazardous
materials or residue in their manifest. Second, the language proposed
by Labor could be read in a manner that would actually reduce the
protection afforded to other employees who also may be present in the
locomotive cab during an emergency situation. Under Labor's proposal,
only employees who are ``operating'' the train would be covered instead
of all occupants of the cab. This proposal appears to exclude certain
railroad employees located in the locomotive cab as well as employees
deadheading in a following unit since neither would be ``operating''
the train.
    Labor also recommends amending proposed Sec.  227.201(a)(1) to make
clear that an RCO crewmember, who is riding in the locomotive cab of a
freight train moving asphyxiants (presumably, this comment would apply
to PIH materials as well), must be provided an EEBA. FRA addressed this
issue in the preamble to the 2010 NPRM and does not see a need to amend
the proposal in this SNPRM. FRA considered exempting RCOs who are not
in the cab of a locomotive during the movement of an in-service freight
train transporting a PIH material. FRA ultimately decided that a
separate exclusion was unnecessary for RCOs conducting movements from
the ground because an RCO is primarily on the ground when performing
switching operations, which are not considered freight train movements
under this part. As a result, railroads would not be required to
provide EEBAs in the locomotive cab in such a circumstance. However, at
the point that switching operations have ceased, and the crew is ready
to leave the yard with an in-service freight train that is transporting
a PIH material, FRA would expect the RCO to occupy the cab and ride in
the locomotive from point A to point B. In the event that the RCO
enters the locomotive cab for this type of movement, the rationale for
excluding RCOs no longer exists, and is the railroad must provide the
RCO with an EEBA.
    AAR asserts in its comments that the proposed regulations requiring
the provision of EEBAs in locomotive cabs should not apply to those
asphyxiants that are not PIH materials. According to AAR, FRA's 2010
NPRM interpreted the RSIA in an overly broad manner when it proposed to
apply the EEBA requirement to asphyxiants, rather than just PIH
materials. AAR notes that there are a number of substances that would
cause asphyxiation if a person were inhaling that substance and no
oxygen, but Congress did not indicate its intent to require EEBAs for
all such substances. AAR argues that FRA must consider this regulation
in light of the Macdona and Graniteville accidents, which spurred
Congressional action. Macdona and Graniteville both involved chlorine,
a PIH material. Moreover, AAR notes that ``there is no record of any
rail-related fatality attributable to the inhalation of non-PIH
substances.'' Given these factors, AAR asserts that Congress did not
intend to cover asphyxiants.
    Additionally, relying on FRA's finding that the costs of the
rulemaking exceed the benefits, AAR argues that FRA unjustifiably
increases the burden imposed on industry by including asphyxiants in
the proposed regulation that are not classified as PIH materials. AAR
asserts that there are approximately 100,000 shipments of PIH materials
per year, while there are approximately 200,000 shipments of
asphyxiants that are not classified as PIH materials. Thus, according
to AAR non-PIH material asphyxiants should be excluded from the
regulation because they substantially add to the costs of this
regulation without providing a benefit that exceeds such costs. As a
result, AAR contends that FRA does not have an economic justification
for exercising its discretion in manner that would include asphyxiants
in the regulation.
    Congress, in establishing the regulatory mandate in the RSIA,
stated that EEBAs must be provided ``for all crewmembers in locomotive
cabs on freight trains carrying hazardous materials that would pose an
inhalation hazard in the event of release.'' (Emphasis added). However,
Congress did not define the term ``hazardous materials that would pose
an inhalation hazard'' or provide examples that would elucidate its
intended meaning. Accordingly, FRA must define the meaning of that term
based on FRA's experience in regulating hazardous materials transported
by rail and any other relevant information available to the agency.
    There is no dispute that ``hazardous materials that would pose an
inhalation hazard'' includes those products that fit within the PHMSA's
definition of ``materials poisonous by inhalation,'' otherwise known as
PIH materials. AAR appears to recognize that such materials were
intended to be covered when Congress passed the RSIA. There has been
substantial discussion about whether the term used by Congress includes
simple asphyxiants. Because Congress did not use a commonly used and
easily understood term with a specific definition, such as PIH
materials, there seemed to be support for including asphyxiants as a
category of products for which an EEBA must be provided to a crewmember
occupying a locomotive on an in-service freight train. Thus, in the
2010 NPRM, FRA included asphyxiants as a category of products
encapsulated within the term ``hazardous materials that would pose an
inhalation hazard.'' The inclusion of asphyxiants was based on the
concern that simple asphyxiants, such as CO2 and LPG, could
displace oxygen in a manner that would result in IDLH environments.
    After reviewing this issue again and analyzing the comments
received, however, FRA finds that the term ``hazardous materials that
would pose an inhalation hazard'' is best understood as not including
simple asphyxiants and has removed the term ``asphyxiants'' from the
requirements of this proposed rule.
    As noted by AAR, neither the Graniteville nor Macdona accidents,
which appeared to spur Congress to action, involved a simple
asphyxiant. Further, while there are some simple asphyxiants, such as
LPG and CO2, that are shipped in significant quantities, FRA
finds that simple asphyxiants do not pose a substantial risk requiring
the provision of an EEBA for a covered employee occupying the
locomotive cab to escape. A review of LPG releases shows that
asphyxiation has not been a substantial risk. Moreover, in the known
cases of derailments involving LPG, the resultant fire generally
consumes the gas thus minimizing the risk of asphyxiation from the gas
itself. Therefore, while there have been railroad employee fatalities
associated with catastrophic LPG releases, those

fatalities resulted from the LPG igniting rather than causing
asphyxiation. FRA is unaware of any fatalities of railroad employees
caused by asphyxiation in the event of an LPG release. CO2
similarly presents limited risk related to asphyxiation in the context
of a rail accident. As with LPG releases, FRA is not aware of a single
asphyxiation-related railroad employee fatality that was caused by a
catastrophic release of CO2.
    Additionally, FRA is mindful of the potential added costs that may
fall to railroads that transport asphyxiants. Including asphyxiants
within the requirements of this regulation would approximately triple
the number of shipments where crewmembers must be provided with EEBAs
without a resulting safety benefit. Regardless of how railroads intend
to comply with the regulation's requirements, the inclusion of
asphyxiants would require railroads to manage EEBAs on over triple the
number of shipments when compared to requiring the provision of EEBAs
for shipments of PIH materials alone.
    Given all of these factors, FRA concluded it was unlikely that
Congress intended ``hazardous materials that would pose an inhalation
hazard'' to include non-PIH material asphyxiants, as such asphyxiants
have not been shown to present sufficient risk of inhalation injuries
or death to require the provision of EEBAs in the railroad environment.
Accordingly, this proposed rule has been modified to reflect this
determination; however, FRA is seeking additional comments on whether,
and for what reasons, asphyxiants should be included. FRA will review
any comments, will continue to monitor incidents involving these
materials, and reserves the right to revisit this decision and to
include them in a final rule.
2. Comments on Proposed Sec.  227.201(a)(2), With FRA's Response
    Based on comments from Labor on proposed Sec.  227.201(a)(2), FRA
has slightly modified this proposed provision to clarify that any
employee covered by the proposed rule must be provided an EEBA in the
locomotive cab that they are occupying. Additionally, as discussed
above, FRA has removed any reference to asphyxiants. Further, the
provision, as modified in this proposed rule, prohibits railroads from
using locomotives in freight trains transporting a PIH material unless
all the train employees, supervisors of train employees in the
locomotive cab, deadheading employees, and any other employees,
identified by the railroad in writing, have access to EEBAs.
    While Labor agrees with FRA's decision to include deadheading
employees in this provision, they note that deadheading employees are
likely to be riding in the trailing units of a train's consist in order
to minimize the risk that their presence will be a distraction to the
operating crew. As a result, Labor urges FRA to amend proposed Sec.
227.201(a)(2) to clarify that an employee in ``any'' locomotive cab of
the train must have access to an EEBA. Additionally, Labor suggests
deleting ``in an in-service freight train'' from Sec.  227.201(a)(2)
and replacing it with ``on a freight train.''
    In response to this comment, FRA has modified proposed Sec.
227.201(a)(2) to remove ``while in the cab of the locomotive of the
train'' and replace it with, ``while occupying a locomotive cab of the
train.'' FRA finds that this language better reflects FRA's intent,
i.e., that each train employee, supervisor of a train employee,
deadheading employee, and any other persons designated by the railroad,
on an in-service freight train transporting a PIH material must be
provided an EEBA in the locomotive cab that they are occupying. FRA is
not, however, amending proposed Sec.  227.201(a)(2) to remove ``in an
in-service freight train.'' While Labor does not explain the rationale
for this suggested change, FRA believes that such a change could
potentially be interpreted to require EEBAs on freight trains at all
times, even if not in service. This would expand the regulation beyond
the statutory mandate, which only requires EEBAs be provided when a
freight train is transporting a hazardous material that would pose an
inhalation hazard in the event of a release, without significantly
adding to safety.
3. Comments on Proposed Sec.  227.201(b), With FRA's Response
    FRA received comments on proposed Sec.  227.201(b) from Labor and
AAR. As discussed above, FRA has removed any reference to asphyxiants.
    Labor contends that there is no reasonable basis for the exception.
In its view, section 413 of the RSIA indicates that Congress did not
intend for such an exception. It argues that the law requires the
Secretary to establish regulations requiring railroads to provide EEBAs
to train crewmembers in the locomotive whenever sufficient quantities
of the hazardous materials are being transported, and states that
``regardless of what type of rail car is being used, if a release poses
an inhalation hazard, then EEBAs are required by the clear language of
the statute.''
    The RSIA establishes a requirement ``to provide emergency escape
breathing apparatus suitable to provide head and neck coverage with
respiratory protection for all crew members in locomotive cabs on
freight trains carrying hazardous materials that would pose an
inhalation hazard in the event of release . . .'' (Emphasis added). The
italicized words were omitted from Labor's comment, but they are
significant in the context of the subject being discussed. FRA
considered whether to require the provision of EEBAs to railroad
employees on trains that transport intermodal shipments of PIH
materials prior to publishing the NPRM. However, FRA excluded
intermodal shipments from the requirements in this section for two
primary reasons. First, railroads generally do not accept PIH materials
in intermodal shipments. Second, the inhalation risk related to small
quantities of covered substances in the event of a release from an
intermodal shipment is relatively low based on the quantities and
packaging of materials carried by such trains. Given these factors,
there is not a substantial risk that the release of all or most of an
intermodal shipment of a PIH material would present a risk
necessitating an EEBA. Therefore, FRA has decided not to change the
proposed language concerning intermodal shipments in Sec.
227.201(b)(1).
    One issue that was not raised in Sec.  227.201(b) of the 2010 NPRM
was whether there would be a limited exception for foreign operations.
AAR notes that a provision of FRA's alcohol and drug regulation, 49 CFR
219.3(c), exempts limited foreign operations from some of the
requirements of that regulation. The exemption in Sec.  219.3(c)
applies to foreign railroad operations extending up to 10 miles in the
United States. AAR suggests that FRA should include the same type of
exemption in proposed part 227, subpart C. FRA does not find such an
exemption reasonable but welcomes additional comments on whether it
should be included.
4. Comments on Proposed Sec.  227.203(b), With FRA's Response
    FRA received numerous comments on proposed Sec.  227.203(b), which
would have required a railroad to select a respirator type that is
certified for escape-only purposes by NIOSH pursuant to 49 CFR part 84
or ISO pursuant to ISO 23269-1:2008. Most of the comments pertained to
FRA's inclusion of devices that could be built using a standard other
than the one established by NIOSH, specifically, whether it is
appropriate to allow

reliance on the ISO standard. As a result of these comments, FRA has
edited the paragraph in the proposed rule to correct the misstatement
that ISO respirators are certified. However, FRA continues to propose
that railroads be allowed to select EEBAs that comply with ISO
standards as long as the devices have a minimum breathing capacity of
15 minutes. In addition, FRA has added two additional international
standards, BS EN 13794:2002 E, ``Respiratory Protective Devices--Self-
Contained, Closed-Circuit Breathing Apparatus for Escape--Requirements,
Testing, Marking (November 2002),'' and 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).'' Further explanation
of FRA's decision is provided in the following discussion.
    NIOSH suggests that FRA should modify proposed Sec.  227.203(b) to
prohibit ISO-compliant respirators in lieu of NIOSH certification
because it ``may lead to confusion in the regulated community.'' FRA
understands that NIOSH is the only entity in the United States that
certifies respirators. However, FRA finds that permitting respirators
compliant with other standards, such as ISO and BS EN, will permit
railroads to select from a broader range of devices using different
technologies that afford an equivalent level of protection as the
NIOSH-certified respirators. Accordingly, FRA proposes to allow for
reliance on the ISO or BS EN standards.
    Scott Health and Safety Comments (Scott) and the ISEA raise
concerns about FRA's use of the term ``certified'' in proposed Sec.
227.203(b) as it relates to ISO standards. As proposed in the 2010
NPRM, the paragraph stated that the railroad must ensure that the type
of respirator selected has been certified by NIOSH pursuant to 42 CFR
part 84 or by the ISO pursuant to ISO 23269-1:2008. Scott requests
clarification on the following discrepancies between the proposed
alternate certification paths (NIOSH vs. ISO) and the alternate
standards (42 CFR part 84 vs. ISO 23269-1:2008). It notes that ``while
NIOSH provides a clear and effective certification program, it is not
clear how respirators would be certified according to ISO standards and
who would provide oversight to ensure these standards were
maintained.'' Similarly, the ISEA states that ISO develops standards,
but does not issue certifications. As a result, any claim that a
respirator complies with an ISO standard must rely on testing, and any
attestation of conformity to the ISO standard must be issued by the
manufacturer of the device or a third-party certification organization.
Therefore, ISEA asserts that, if FRA plans on accepting the provision
of respirators manufactured to the voluntary ISO standard, then it must
clearly state whether independent certification is required or whether
it will accept the manufacturer's declaration of conformity to the
standard.
    Scott and ISEA raise valid points on the use of the term
``certification.'' FRA understands that ISO does not certify devices as
NIOSH does. Instead, it establishes standards that the manufacturer of
the device must meet to declare its device compliant with the ISO
standard. Therefore, clarification is needed to avoid confusion in the
marketplace and to ensure that the devices provided by the railroads
pursuant to this regulation comply with its terms. FRA has modified the
proposed language in Sec.  227.203(b) to state that the type of
respirator selected by a railroad must be certified for an escape-only
purpose by NIOSH, pursuant to 49 CFR part 84, or must be declared by
the manufacturer, based on verifiable testing by the manufacturer or an
independent third party, to meet the equivalent standard ISO 23269-
1:2008 and have a minimum breathing capacity of at least 15 minutes, as
specified in proposed Sec.  227.203(d)(1).
    Additionally, Scott and ISEA raise the question that if both NIOSH
and ISO certification options are acceptable, then how will FRA's
regulation and AAR's specification reconcile specific differences
between the standards? As an example, Scott cites to 42 CFR part 84,
which specifies a maximum CO2 inhalation of 0.5 percent, or
1.5 percent for escape mouth bit devices, and compares it to ISO 23269-
1:2008, which allows for CO2 levels of 3 percent. ISEA
believes that FRA must clarify the difference in the NIOSH and ISO
requirements and any required variance from either standard.
    FRA does not find it necessary to clarify the differences between
the NIOSH and ISO requirements. The NIOSH and ISO requirements are
explicitly laid out in their respective standards. See 42 CFR part 84
and ISO 23269-1:2008. FRA's concern in establishing this requirement is
not to compare and contrast the respective standards, but to ensure
that the respirators chosen by a railroad comply with this regulation
by meeting an established minimum standard that will facilitate the
escape of train employees and other occupants of a locomotive cab from
a hazardous material posing an inhalation hazard should the need arise.
FRA would not view piecemeal compliance with portions of the NIOSH
standard, portions of the ISO standard, or portions of the EN standards
as meeting the proposed regulatory requirements laid out in part 227,
subpart C. However, if the type of device selected by the railroad
meets the entire regimen of criteria for either the NIOSH, the ISO, or
the applicable EN standard, and complies with the minimum breathing
time requirements specified in proposed Sec.  227.203(d)(1), then FRA
would consider the device acceptable under the regulation.
    Lastly, Scott requests clarification on whether railroads are
exempt from the OSHA requirement found in 29 CFR 1910.134(d)(1)(ii),
which requires employers to select a NIOSH-certified respirator. The
Occupational Safety and Health Act authorizes the Secretary of Labor to
promulgate standards to provide safe and healthful employment and
places of employment. 29 U.S.C. 652(8), 653(b)(1), 655. However, once
FRA exercises its statutory authority to prescribe standards or
regulations covering a specific hazard or practice affecting the
occupational health of railroad employees, as it proposes to do here,
FRA's regulation of the specific area ousts any OSHA requirements
covering the same area. See 29 U.S.C. 653(b)(1). An example would be
FRA's regulations in part 227, subpart B, addressing occupational noise
exposure for railroad operating employees, which covers noise exposure
and hearing conservation for railroad operating employees whose primary
exposure to occupational noise is in the cab of a locomotive. All other
railroad employees who are exposed to occupational noise are covered by
OSHA. The same holds true with respect to the provision of EEBAs by
railroads. Those EEBAs that are provided pursuant to this proposed
regulation would have to comply with the requirements established in
part 227, subpart C. However, OSHA's regulations on respirators may be
applicable to other areas where railroads provide respirators to their
employees.
5. Comments on Proposed Sec.  227.203(c), With FRA's Response
    FRA received comments on proposed Sec.  227.203(c) from AAR and
Draeger and has deleted that paragraph for the reasons explained below.
    In the 2010 NPRM, proposed Sec.  227.203(c) established a
requirement that a railroad must document the adequacy of the EEBA.
However, AAR notes that proposed Sec.  227.203(b) would

require railroads to use an EEBA certified by NIOSH or the ISO, both of
which establish standards for measuring resistance to IDLH atmospheres.
Therefore, AAR argues that if the EEBA meets either the NIOSH or ISO
standard, no further showing of the adequacy of the EEBA should be
necessary. As a result, it suggests that proposed Sec.  227.203(c) be
deleted. FRA agrees and has deleted proposed Sec.  227.203(c) since the
essential information that FRA seeks to require is captured by
complying with either the NIOSH, ISO, or EN standard under Sec.
227.203(b). In light of the deletion, FRA has re-designated Sec.
227.203(d) as Sec.  227.203(c) in this proposed rule.
    While the Sec.  227.203(c) proposed in the 2010 NPRM is being
removed, FRA did receive additional comment from Draeger on this
paragraph which requires discussion. Draeger contends that, except for
the requirements in Sec.  227.203(d), the proposed regulation does not
establish any specific requirements concerning the EEBA's performance.
Therefore, Draeger states that the proposal fails to provide the
necessary regulatory text that will ensure the EEBA type chosen by a
railroad will meet the intended application. FRA considers the proposed
provisions of Sec.  227.203(b) along with the specific items identified
in proposed Sec.  227.203(d) to describe adequately the necessary
performance characteristics of the EEBAs.
    Draeger also raises a number of issues about AAR specification M-
1005 in its comments on Sec.  227.203(c). It is concerned that a number
of the factors laid out in the specification are typically not
evaluated by NIOSH or ISO for industrial respirators that are air-
supplied escape breathing apparatus. These include the specification
requiring protection against 10,000 ppm of anhydrous ammonia, chlorine,
and other toxic inhalation hazards. Draeger suggests identifying other
toxic inhalation hazards to better allow manufacturers to evaluate
their respirators. Additionally, Draeger suggests that there should be
specific information concerning the type of impact and vibration
resistances that would be expected in a ``typical locomotive cab in
order to test whether a device has the necessary performance factors
and structural integrity. Draeger also states in relation to AAR's
draft specification that, while vibration testing is a performance
requirement for NIOSH certification of closed-circuit escape breathing
respirators under 42 CFR part 84, vibration tests are not typically
performed on open-circuit breathing apparatus. Finally, Draeger notes
that testing on some of the specifications identified cannot be
performed by NIOSH or ISO. Therefore, a third-party laboratory would
need to perform the testing. Draeger questions whether FRA will accept
such information if it is presented by the stakeholder for inspection.
Draeger suggests that more information is needed to provide appropriate
respirators to the railroad market and requests additional information
be included that details more of the performance requirements than in
the current specification.
    The draft AAR specification is not part of the performance
requirements established by FRA. Equipment vendors would need to
address questions about those issues to the carriers represented by
AAR. However, FRA does note that the ``other toxic inhalation hazards''
that Draeger asks to have identified, can be found in Sec.  227.5,
where FRA defines ``PIH material.'' With respect to third-party
testing, and additional information detailing performance requirements,
FRA believes the standard, as now proposed, provides appropriate
performance criteria as long as covered railroad employees are provided
at least 15 minutes breathing capacity. Were FRA to propose additional
performance criteria, it would be substituting its judgment for that of
NIOSH, ISO, or EN subject matter expert entities that have developed
the current standards, which FRA declines to do.
6. Comments on Proposed Sec.  227.203(d)(1), With FRA's Response
    FRA received numerous comments on proposed Sec.  227.203(d)(1).
While FRA has continued to propose this provision without substantive
changes, Sec.  227.203(d)(1), as proposed in the 2010 NPRM, has been
re-designated in this proposed rule as Sec.  227.203(c)(1) because of
the deletion of Sec.  227.203(c), discussed above.
    Section 227.203(d)(1) in the 2010 NPRM proposed a requirement that
the EEBA be fully charged and contain a minimum of 15 minutes of
breathing capacity at the time of the pre-trip inspection that is
required by Sec.  227.207(a)(1). NIOSH suggests changing the language
to require that EEBAs ``be maintained and the operational readiness
verified at the frequency recommended by the manufacturer, using the
operational verification procedures, to ensure they contain a minimum
breathing capacity of 15 minutes at the time of the pre-trip inspection
required under Sec. 227.207(a)(1).'' Because NIOSH does not provide an
explanation for the proposed change to the paragraph, FRA is not sure
of NIOSH's rationale for objecting to the language in proposed Sec.
227.203(d)(1). The proposed paragraph covers the capabilities of the
device selected, not the pre-trip inspection procedures. Therefore, FRA
does not view the change suggested by NIOSH as relating to the subject
matter of the proposed Sec.  227.203(d)(1) and does not see a reason to
amend this paragraph in the manner suggested by NIOSH.
    Draeger asks, with respect to proposed Sec.  227.203(d)(1),
``[w]hat is the minimum escape time for a hazardous substance where the
atmosphere has not been assessed for substance concentration and
dissipation over distance?'' Given these circumstances, it states that
an EEBA with a minimum capacity of 15 minutes may not leave time for a
crewmember to assist others and to escape to a safe distance away
because the circumstances surrounding a catastrophic release would
require a higher rate of activity than is normal. Additionally, if an
employee has suffered an injury or otherwise become disabled, they
would not be able to move fast or, if needed, to move the freight train
away from a densely populated location, if that were even possible.
Therefore, ``Draeger believes that a device which is capable of
providing 30 minutes or more would be the better choice for this
application.'' Draeger acknowledges that providing greater breathing
capacity in a device will present logistical issues for storage of
devices but believes that closed-circuit devices would be a suitable
option because they are considerably smaller than comparable open-
circuit devices.
    It is unclear what Draeger means when it asks about atmospheres
that ``have not been assessed for substance concentration and
dissipation over distance.'' Each emergency situation is different and
will present its own set of difficulties. Therefore, FRA is not sure
how Draeger can reach the conclusion that a 15-minute minimum breathing
capacity device is inadequate without conducting an analysis of the
circumstances surrounding the few incidents of catastrophic breaches to
railroad tank cars that resulted in the release of a hazardous material
posing an inhalation hazard. Circumstances, such as local geography and
weather at the time of the release event, can lead to widely differing
circumstances of concentration and distance following an accident.
After analyzing the information available to it, which included the
input of AAR and Labor, FRA proposed requiring a device that has a
minimum breathing capacity of 15

minutes. FRA's proposal is based, in part, on the belief that a 10-
minute capacity device would be too limiting, while larger capacity
devices would challenge the ability of the railroads to meet the
storage requirements of the mandate, given the limited space in the
locomotive cab. FRA expects that a 15-minute device will allow railroad
employees to address the circumstances alluded to in Draeger's comment.
However, it is important to keep in mind that while the 15-minute
breathing capacity is a minimum requirement, there is no regulatory
restriction that would prohibit railroads from providing a device that
has a greater breathing capacity than what is mandated in originally
proposed Sec.  227.203(d)(1).
    Labor supports FRA's proposal to require EEBAs to have a minimum of
15 minutes of useful life in the worst-case scenario. However, Labor is
concerned that ``any reduction in the length of time the EEBA is
effective increases the likelihood of casualty or fatality resulting
from the release and inhalation of an asphyxiant or PIH material.''
Labor notes that that train employees involved in a release of PIH
materials may do two things that could negatively impact the usable
length of time for EEBA. Specifically, Labor identifies ``over-
breathing'' and the time it takes an employee to don the apparatus as
problems that would be expected to reduce the length of effective
breathing time of the apparatus, particularly when dealing with a
stressful situation such as a catastrophic release of a PIH material.
As a result, Labor urges FRA to amend the proposed rule to clarify that
each EEBA provided ``must have at least a 15-minute approval rating,
meaning that the device must function for at least 15 minutes during 3-
mph treadmill tests and 30 minutes for stationary tests.'' See 75 FR
61392.
    FRA notes that the language cited in Labor's comments was taken
from AAR's draft specification, M-1005, upon which FRA specifically
requested comments. Based on FRA's review of information that was
collected from the investigation of the Macdona and Graniteville
collisions, the agency found that a minimum breathing capacity of 15
minutes should be an adequate amount of time for a wearer of an
atmosphere-supplying respirator to escape an IDLH atmosphere.
Experience has shown that a plume of hazardous material can travel
quickly and that the train crew must have adequate breathing time to
allow each crew member to move a significant distance from the plume
while being protected from breathing the potentially hazardous
atmosphere. According to the AAR, investigations and studies by the
railroads found that ``the area of destruction following a release is
such that 15 minutes is a more than adequate time period to escape the
area. Requiring a device with a greater capacity would result in one
that is larger and heavier than called for in this specification.'' FRA
has decided not to modify the language of proposed Sec.  227.203(d)(2).
The change suggested by Labor would put FRA in the position of needing
to establish a testing and certification regime to ensure that the
devices in use meet the specific language in the rule. FRA does not
intend to do this, as the agency does not have the expertise to
establish ratings for the devices.
7. Comments on Proposed Sec.  227.203(d)(2), With FRA's Response
    FRA also received a number of comments on proposed Sec.
227.203(d)(2), which would have required railroads to select an EEBA
that provides a means of protecting an individual's face and neck to
facilitate escape. In response to the comments, FRA has amended the
proposed paragraph to state that the EEBA should protect the head and
neck from the irritating effects of PIH materials. FRA also has removed
any reference to asphyxiants for the reasons discussed earlier.
Finally, originally proposed Sec.  227.203(d)(2) has been re-designated
as Sec.  227.203(c)(2) for the reasons discussed above.
    NIOSH suggests specifying that the EEBA selected must provide a
means of protecting the individual's head and neck ``from the
irritating effects of asphyxiants or PIH materials to facilitate
escape.'' In this proposed rule, FRA has amended the originally
proposed Sec.  227.203(d)(2) to incorporate the language suggested by
NIOSH (excepting that asphyxiants has been deleted). FRA finds this
language better reflects the purpose of the head and neck protection.
    Draeger and ISEA both raise questions about originally proposed
Sec.  227.203(d)(2). Specifically, ISEA questions why face and neck
protection is a requirement in proposed Sec.  227.203(d)(2). It
suggests that if face and neck protection is an important
characteristic for providing additional protection to the wearer beyond
protection to the lungs and respiratory system, then the regulation
should define as clearly as possible the extent of neck and face
coverage that is required as well as how FRA intends to assess whether
sufficient coverage has been provided. Similarly, Draeger asks for
greater specification regarding what is meant by head and neck
protection.
    FRA has replaced ``face'' with ``head'' in this proposed rule to
match the specific language of section 413 of the RSIA. While Congress
did not provide any guidance on the extent of coverage necessary to
comply with the statutory mandate, FRA interprets this language to
require a device that protects the employee's nose and throat from
inhalation and protects the employee's eyes from irritation during an
escape from a hazardous atmosphere. This protection can be afforded by
a respirator with a face piece or a device with a hood as long as the
protection is effective.
    Labor contends that originally proposed Sec.  227.203(d)(2) should
also require railroads to provide the type of device that is easiest to
don. Labor urges FRA to require the use of hooded-type devices rather
than full-face masks. Labor relies on FRA's acknowledgement in the
preamble to the 2010 NPRM, that hoods are more versatile because they
are universally fitting, compensate adequately for eyewear, and allow
for facial hair and differing facial features. Additionally, Labor
notes that hoods are easier to wear and faster for employees to don,
which would allow those employees to assist others who are disoriented
or injured.
    While FRA recognizes that hoods allow for universality in use and
understands that some railroads intend to make use of hooded devices,
FRA does not find that requiring hoods in all circumstances is
warranted. As a result, it has chosen not to propose mandating hooded
devices.
8. Comments on Proposed Sec.  227.205, With FRA's Response
    FRA received comments on proposed Sec.  227.205. FRA modified the
provision in this SNPRM to delete the word ``asphyxiant,'' but has
otherwise not changed the proposed section.
    Proposed Sec.  227.205 seeks to establish the minimum requirements
for storing EEBAs. The essential requirements are that the storage
facility must: (1) where applicable, prevent deformation of the face
piece and exhalation valve; (2) protect the device from incidental
damage, contamination, dust, sunlight, extreme temperatures, excessive
moisture, and damaging chemicals; (3) provide ready access for each
subject employee in the cab; and (4) provide a means to locate the EEBA
under adverse conditions, including darkness or disorientation. The
section, as proposed, does not establish requirements for distributing
EEBA to covered employees.
    Labor suggests that proposed Sec.  227.205 should include a
requirement

that EEBAs be permanently kept in a storage facility that is mounted in
each locomotive cab. Labor's rationale for requiring EEBAs to be
permanently mounted in the locomotive cab rests on multiple factors.
First, it contends that employees on freight trains traveling in the
same corridor on adjacent tracks or following those freight trains that
are transporting asphyxiants or PIH material should also be provided
EEBAs because they are in danger of an inhalation hazard if the
material is released. Labor believes that requiring EEBAs to be
permanently mounted in locomotive cabs will result in maximum
availability of EEBAs for those employees working on freight trains
that are not directly transporting asphyxiants or PIH material. Second,
Labor argues that ``employees already are required to carry many items
to properly perform their duties and address the circumstances of their
job.'' Adding an additional item, it contends, would be overly
burdensome to train employees. Third, any option other than permanently
mounting EEBAs in the locomotive cabs will result in the railroads
passing off the responsibility for ensuring the functionality of EEBAs,
which could result in harassment, intimidation, and disciplinary
actions against employees who request a delay or postpone the departure
of trains to replace or repair EEBAs. Lastly, Labor argues that if a
railroad decides to require an employee to assume custody of an EEBA,
then FRA will inevitably end up using its resources to investigate
individual events and circumstances surrounding an employee's request
to have an EEBA repaired or replaced.
    The current proposed language in Sec.  227.205 follows the
requirements of the RSIA mandate while allowing railroads subject to
this proposed rule to provide EEBAs in a way best suited to their
operations. Given the attendant costs and benefits, FRA proposes to
allow railroads to find the best way to provide EEBAs in a manner that
fully meets the RSIA mandate and Congressional intent. Furthermore, as
FRA cannot anticipate the changes in technology that might affect the
types or sizes of EEBAs or changes in the technology and design of
locomotives cabs that could impact the mounting and storage of EEBAs
the proposed regulation will allow railroads to utilize the latest
equipment.
9. Comments on Proposed Sec.  227.207, With FRA's Response
    FRA received numerous responses to proposed Sec.  227.207, which
would have required railroads to establish a program for inspection,
maintenance, and replacement of EEBAs and to establish certain
inspection procedures. In response to comments from AAR, FRA has
limited the document retention period for pre-trip inspections to 92
days. FRA has also removed reference to asphyxiants in this section of
the proposed rule for the reasons provided above.
    NIOSH comments that the 2010 NPRM fails to specify regular
intervals in which EEBA inspections are to occur. It recommends
incorporating the OSHA inspection requirement from 29 CFR
1910.134(h)(3)(i)(B), which states, ``[a]ll respirators maintained for
use in emergency situations shall be inspected at least monthly and in
accordance with the manufacturer's recommendations and shall be checked
for proper function before and after each use.''
    FRA proposes a requirement for regular inspections in Sec.
227.207(a)(1), which includes a pre-trip inspection prior to using a
locomotive in a train that is transporting a PIH material, and in Sec.
227.207(a)(2), which includes periodic inspections based on the
recommendations and instructions of the manufacturer. FRA's inspection
requirements do not vary significantly from the OSHA requirements.
Notwithstanding this, due to the operational nature of the railroads,
FRA feels that its criteria are better suited to this industry than
specifying an established periodic inspection as used by OSHA. Since
the railroad would not be permitted to operate a locomotive in a train
where operable devices are absent, the necessity of having an arbitrary
inspection schedule is not needed.
    The company, 3M, comments that it supports the rulemaking, but that
it has concerns about proposed Sec.  227.207(b). 3M believes that this
proposed paragraph implies the necessity of using of RFID tags to
identify specific equipment. The commenter encourages FRA ``to separate
the RFID and inspection database requirements from the EEBA
specification . . . because there is no RFID frequency specified for
the tag, and there are multiple frequencies available that are not
cross compatible.'' The company states that handheld RFID readers
currently on the market operate on a specific frequency, which could
present problems when locomotives are interchanged if a foreign
railroad is required to perform periodic EEBA inspections. Absent
identical RFID tags among interchanging railroads, the railroads may
not be able to meet the proposed inspection requirements.
    It appears that 3M may have confused AAR's draft specification with
FRA's proposed regulatory requirements. The draft specification
prepared by AAR is not a part of this proposed regulation. Proposed
Sec.  227.207(b) does not require the use of RFID tags. The proposed
provision merely establishes a requirement of pre-trip and periodic
inspections. It leaves the logistics of performing such inspections to
the railroads. FRA understands, however, that AAR is considering using
RFID tags to track inspections and its member railroads may want to
consider 3M's comments in determining the most efficient way to satisfy
the regulatory requirements of Sec.  227.207(b). Additionally, 3M's
comments may factor into what procedures a railroad will use to ensure
interchangeability, which is an essential element to a railroad's
general EEBA program. See Sec.  227.211(b)(3).
    AIHA suggests that formal inspections of EEBAs under Sec.  227.207
should be conducted at the same time as the locomotive quarterly
inspection. It notes that the current plan is to use a RFID tag for
identifying and tracking each EEBA, which would allow for each unit to
be assigned a unique identifier that would also identify the owning
railroad. The RFID tag would allow for easy scanning during the
quarterly inspection to document what units are currently mounted in
each locomotive and would verify that each EEBA is still in proper
working order with the required oxygen or air level, the case intact,
seals in place, and no tampering has occurred. AIHA states that
railroads can ensure a seamless process for inspections by integrating
EEBA inspections with locomotive inspections, which are well-
established within the railroad industry.
    It appears that AIHA, like 3M, has made the assumption that the
discussion in the NPRM covering the AAR draft specification has been
made part of the proposed rule in some manner. That is not FRA's
intent. FRA published input from both the industry (AAR) and labor
organizations, provided during the development of the NPRM, to invite
feedback and gain a broader understanding of the issues raised by these
stakeholders. AAR's input reflects the intentions of larger railroads
but does not necessarily represent how smaller railroads would respond
to this proposed rule, given their unique set of economic constraints.
    The language in proposed Sec.  227.207 merely requires that each
railroad establish and comply with a written program for inspection,
maintenance, and replacement of EEBAs, which includes pre-trip and
periodic inspections of the EEBAs. FRA understands that it is AIHA's
position

that this proposed schedule is unnecessary and over-burdensome. In
their comments, they cite the chemical, paper, mining, and maritime
industries, which require respirator inspection frequencies of 30-90
days. The AIHA would like to see quarterly inspections of EEBAs.
    FRA is continuing to propose the requirement for pre-trip
inspections, because the nature of railroading demands that the EEBA
must be inspected pre-trip. It is a proposed requirement that an EEBA
for each employee will be present in the locomotive cab prior to
departure thus facilitating the pre-trip inspection. This is so
regardless of the manner in which the EEBA is provided, whether it is
issued to an individual, or mounted within the locomotive cab, or
provided in some other way. The nature of this pre-trip inspection may
be as simple as visually inspecting and verifying that the case has not
been tampered with and that all gauges and other indicators are in an
acceptable range.
    FRA envisions that the pre-trip inspection will be a quick check to
ensure that the appropriate accompaniment of EEBAs is provided and that
those devices are charged to provide a minimum 15-minute breathing
capacity, as well as any of other necessary checks that the
manufacturer recommends. While this type of check could potentially
involve using an RFID tag, FRA is not proposing that each railroad
``hav[e] each unit in a computer database . . . to track each unit and
identify when units are due for factory testing.'' Such a requirement
presumes a level of financial resources that are not necessarily
available to some short line carriers who are covered by this rule.
    Labor urges FRA to modify proposed Sec.  227.207 to make it clear
that EEBAs provided pursuant to this regulation must be fully charged
with an approval rating of 15 minutes during a 3-mph treadmill test.
Labor also proposes that FRA establish a ``quick check'' inspection
process for railroad employees that would include observing an external
gauge that can be easily viewed and understood by all employees.
Specifically, Labor states that the EEBA should have a gauge with a
needle to indicate the length of time the device will operate.
    FRA does not believe that a pre-trip or periodic inspection should
involve re-verifying a specification since it is unclear how this
specification could be verified outside of an established testing and
certification regime. FRA is aware that different types of devices have
different means of verifying readiness for use. Escape devices that
rely on pressurized tanks of air generally have a pressure gauge such
as that mentioned in Labor's comment. Other devices, such as
combination chemical scrubber/oxygen supply devices, may only have a
``go/no go'' window. While FRA stated above that it envisions a ``quick
check'' pre-trip inspection process that verifies that appropriate