Emergency Escape Breathing Apparatus Standards, 61386-61410 [2010-24732]

Agencies

• Federal Railroad Administration
• DEPARTMENT OF TRANSPORTATION

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


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 227

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


Emergency Escape Breathing Apparatus Standards

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

ACTION: Notice of proposed rulemaking (NPRM).

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

DATES: Written comments must be received by December 6, 2010. Comments 
received after that date will be considered to the extent possible 
without incurring additional delay or expense.
    FRA anticipates being able to resolve this rulemaking without a 
public, oral hearing. However, if FRA receives a specific request for a 
public, oral hearing prior to December 6, 2010, one will be scheduled, 
and FRA will publish a supplemental notice in the Federal Register to 
inform interested parties of the date, time, and location of any such 
hearing.

ADDRESSES: You may submit comments related to Docket No. FRA-2009-0044, 
Notice No. 1, by any one of the following methods:
     Fax: 1-202-493-2251;
     Mail: U.S. Department of Transportation, Docket 
Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New 
Jersey Avenue, SE., Washington, DC 20590;
     Hand Delivery: U.S. Department of Transportation, Docket 
Operations, West Building Ground Floor, Room W12-140, 1200 New Jersey 
Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday 
through Friday, except Federal holidays; or
     Electronically through the Federal eRulemaking Portal, 
https://www.regulations.gov. Follow the online instructions for 
submitting comments.
    Instructions: All submissions must include the agency name, docket 
name, and docket number or Regulatory Identification Number (RIN) for 
this rulemaking. Note that all comments received will be posted without 
change to https://www.regulations.gov, including any personal 
information provided. Please see the Privacy Act section of this 
document.
    Docket: For access to the docket to read background documents or 
comments received, go to https://www.regulations.gov at any time or to 
the U.S. Department of Transportation, Docket Operations, M-30, West 
Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., 
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, 
except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Alan Misiaszek, Certified Industrial 
Hygienist, Staff Director, Industrial Hygiene Division, Office of 
Safety Assurance and Compliance, Office of Railroad Safety, FRA, 1200 
New Jersey Avenue, SE., Mail Stop 25, Washington, DC 20590 (telephone: 
(202) 493-6002), alan.misiaszek@dot.gov or Stephen N. Gordon, Trial 
Attorney, Office of Chief Counsel, FRA, 1200 New Jersey Avenue, SE., 
Mail Stop 10, Washington, DC 20590 (telephone: (202) 493-6001), 
stephen.n.gordon@dot.gov.

SUPPLEMENTARY INFORMATION: 

Abbreviations and Terms Used in This Document

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

[[Page 61387]]

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

Table of Contents for Supplementary Information

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

I. Statutory Background and More Detailed Summary of Proposed 
Regulation

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

II. Regulatory Background

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

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

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

[[Page 61388]]

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

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

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

[[Page 61389]]

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

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

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

IV. FRA-Sponsored Study

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

V. Selection of the Appropriate EEBA by Railroads

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

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

49 U.S.C. 20166.

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

[[Page 61390]]

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

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

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

[[Page 61391]]

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

VI. Provision of EEBAs to Covered Employees

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

[[Page 61392]]

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

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

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

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

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

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

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

[[Page 61393]]

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

VIII. Section-by-Section Analysis

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

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

Subpart A--General

Section 227.1 Purpose and Scope

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

Section 227.3 Applicability

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

Section 227.5 Definitions

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

[[Page 61394]]

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

Section 227.7 Preemptive Effect

    FRA proposes deleting this section and reserving it for use for two 
reasons. First, the section is unnecessary because it is duplicative of 
statutory law at 49 U.S.C. 20106 and case law. Second, the section is 
incomplete because it omits reference to the preemptive effect of the 
former LBIA, repealed and recodified at 49 U.S.C. 20701-20703, see 
Public Law 103-272 (July 5, 1994), which has been held to preempt the 
entire field of locomotive safety. See Napier v. Atlantic Coast Line 
R.R., 272 U.S. 605, 613; 47 S.Ct. 207, 210 (1926). See ``Federalism,'' 
below.

Section 227.15 Information Collection

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

Subpart B--Occupational Noise Exposure for Railroad Operating Employees

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

Subpart C--Emergency Escape Breathing Apparatus Standards

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

    Proposed Sec.  227.201(a)(1) requires that an EEBA be provided by a 
railroad to each of its train employees, direct supervisors of train 
employees, deadheading employees, and other employees designated by the 
railroad in writing and at the discretion of the railroad who are 
required to work in or occupy the cab of the locomotive of one of its 
covered trains (i.e., an in-service freight train that is transporting 
an asphyxiant or a PIH material). The EEBA provided must have been 
selected in accordance with the criteria in Sec.  227.203. Moreover, 
the EEBA provided shall have been inspected and determined to be in 
proper working condition under Sec.  227.207.
    Paragraph (a)(2) proposed in this section prohibits utilizing a 
locomotive to transport an asphyxiant or a PIH material in an in-
service freight train unless each of the employees identified in 
paragraph (a)(1) in the cab of the locomotive has access to an EEBA 
that was selected in accordance with Sec.  227.203 and that has been 
inspected and is in proper working order pursuant to Sec.  227.207. 
Paragraph (a)(2) makes clear that it is not enough for a railroad to 
merely issue an EEBA to an employee, e.g., as a uniform item; the EEBA 
must be physically available to the employee in the cab of the covered 
train. For instance, it is not a defense to a violation of Sec.  
227.201(a)(2) that the railroad provided the EEBA to the employee and 
instructed the employee to have it while in the cab, but the employee 
lost or forgot it.
    This proposed section also includes exceptions to its general 
requirements in paragraph (b). FRA has considered whether EEBAs should 
be required on intermodal trains that transport small quantities of 
asphyxiants and PIH materials. FRA proposes excluding intermodal trains 
from the requirements in this section. Railroads generally do not 
accept asphyxiants or PIH materials in intermodal shipments, and the 
risk of poisonous inhalation in the event of a release from an 
intermodal shipment is relatively low based on the quantities and 
packaging of materials carried by such trains. Therefore, there is not 
a substantial risk that the release of all or most of a shipment of an 
asphyxiant or a PIH material on an intermodal train would endanger the 
crew.
    FRA is also aware that certain activities involving low-speed, 
intra-yard movements involve little