Emergency Escape Breathing Apparatus Standards

<RULE> DEPARTMENT OF TRANSPORTATION <SUBAGY>Federal Railroad Administration</SUBAGY> <CFR>49 CFR Part 227</CFR> <DEPDOC>[Docket No. FRA-2009-0044]</DEPDOC> <RIN>RIN 2130-AD01</RIN> <SUBJECT>Emergency Escape Breathing Apparatus Standards</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Federal Railroad Administration (FRA), Department of Transportation (DOT). <HD SOURCE="HED">ACTION:</HD> Final rule; extension of compliance dates. <SUM> <HD SOURCE="HED">SUMMARY:</HD> This document extends the compliance dates in the emergency escape breathing apparatus final rule published on January 26, 2024. FRA is extending the compliance dates in response to concerns raised in a joint petition for reconsideration, as well as FRA's own investigation into the feasibility of these dates. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> This final rule is effective August 7, 2025. </EFFDATE> <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Michael Watson, Occupational Safety and Health Manager, Office of Railroad Safety, telephone: 202-527-2908, email: <E T="03">michael.watson@dot.gov;</E> or Brian Roberts, Attorney-Adviser, Office of the Chief Counsel, telephone: 202-306-4333, email: <E T="03">brian.roberts@dot.gov.</E> </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">I. Background</HD> As mandated by section 413 of the Rail Safety Improvement Act of 2008 (RSIA), Public Law 110-432, 122 Stat. 4848, 4889 (Oct. 16, 2008) (codified at 49 U.S.C. 20166), <SU>1</SU> <FTREF/> FRA published a final rule on January 26, 2024, establishing emergency escape breathing apparatus (EEBA) standards in 49 CFR part 227, subpart C (2024 Final Rule). <SU>2</SU> <FTREF/> The 2024 Final Rule, which became effective on March 26, 2024, requires freight railroads to provide covered employees with an appropriate atmosphere-supplying EEBA when occupying a locomotive cab of a train transporting a hazardous material that would pose an inhalation hazard if released during an accident. Railroad employees covered under the final rule include train employees, their supervisors, deadheading employees, and any other employee designated by the railroad who is in the cab of a locomotive. In addition, the final rule requires railroads to develop and adhere to inventory, storage, maintenance, and employee training requirements related to their EEBAs. <FTNT> <SU>1</SU>  The Secretary of Transportation delegated the authority to conduct the EEBA rulemaking and implement its requirements to the Federal Railroad Administrator. 49 CFR 1.89(b). </FTNT> <FTNT> <SU>2</SU>  89 FR 5113. The notice of proposed rulemaking was published on October 5, 2010 (75 FR 61386) and supplemental notice of proposed rulemaking was published on March 22, 2023 (88 FR 17302). </FTNT> The 2024 Final Rule established two compliance dates: one for Class I and II railroads, and another, later compliance date for Class III railroads. Specifically, Class I and II railroads were required to comply with the rule's requirements within 12 months of the rule's March 26, 2024, effective date ( <E T="03">i.e.,</E> March 26, 2025), while Class III railroads had 18 months from the same effective date to comply ( <E T="03">i.e.,</E> September 26, 2025). On March 15, 2024, FRA received a timely filed, joint petition for reconsideration of the rule from the Association of American Railroads (AAR) and the American Short Line and Regional Railroad Association (ASLRRA). <SU>3</SU> <FTREF/> The petition asked FRA to delay each compliance date for an additional 12 months, citing the production limitations of the few EEBA manufacturers who can make EEBAs that comply with the final rule's requirements and other, related factors. FRA sent questions to AAR seeking additional information on the issues raised in the joint petition, which AAR responded to via email on July 29, 2024. <SU>4</SU> <FTREF/> In evaluating the joint petition, FRA also spoke with several EEBA manufacturers, including Ocenco (a manufacturer of the railroads' preferred model of EEBAs), and their distributors. These manufacturers and distributors expressed concerns to FRA about being able to provide the requested numbers of EEBAs by the 2024 Final Rule's compliance dates, citing, among other things, the need to supply EEBAs to the U.S. military and other governments. <SU>5</SU> <FTREF/> <FTNT> <SU>3</SU>  FRA-2009-0044-0025, available at <E T="03">www.regulations.gov.</E> </FTNT> <FTNT> <SU>4</SU>  Communication with AAR Regarding Final Rule. FRA-2009-0044-0028. </FTNT> <FTNT> <SU>5</SU>  Communication with Ocenco and Other Companies Regarding Final Rule. FRA-2009-0044-0028. </FTNT> With the March 26, 2025, EEBA compliance deadline for Class I and II railroads quickly approaching, FRA issued an interim response to the joint petition on January 29, 2025. <SU>6</SU> <FTREF/> FRA's interim response recognized that railroads may not be able to meet the compliance dates in the 2024 Final Rule, and in the spirit of the Presidential Memorandum issued on January 20, 2025, titled “Regulatory Freeze Pending Review,”  <SU>7</SU> <FTREF/> FRA announced it would exercise its enforcement discretion for 60 days from each compliance date in the rule. The interim response explained this would also allow FRA time to determine how to respond to the joint petition and a separate petition for reconsideration from ASLRRA, which asked FRA to create a <E T="03">de minimis</E> exception to the EEBA final rule. <SU>8</SU> <FTREF/> On May 27, 2025, FRA announced in a follow-up response to the joint petitioners that FRA would exercise its enforcement discretion for an additional 60 days from each compliance date in the Final Rule to allow FRA time to complete its response. <SU>9</SU> <FTREF/> <FTNT> <SU>6</SU>  FRA-2009-0044-0029. </FTNT> <FTNT> <SU>7</SU>  90 FR 8249 (Jan. 28, 2025). </FTNT> <FTNT> <SU>8</SU>  FRA-2009-0044-0025. </FTNT> <FTNT> <SU>9</SU>  FRA-2009-0044-0030 and FRA-2009-0044-0031. </FTNT> As the March 26, 2025, compliance date for Class I and II railroads has passed, and the September 26, 2025, date for Class III railroads approaches, FRA is granting the joint petition's request to extend the compliance dates in the 2024 Final Rule by 12 months. FRA is not aware of a change since issuance of its January 29, 2025 initial, interim response that would otherwise alleviate the railroads' compliance difficulties. Specifically, railroads face various factors outside of their control that prevent them from purchasing enough EEBAs from manufacturers to comply with the 2024 Final Rule's requirements. For example, as the rule establishes specific criteria EEBAs must meet, FRA understands that railroads only have approximately four manufacturers with which they can contract to supply compliant EEBAs: 3M, Dräger, Ocenco, and Semmco. As stated in the joint petition, the major manufacturers of EEBAs have indicated to railroads that they would need significant lead time to ramp up production to provide sufficient EEBAs for railroads to comply with the rule's requirements. <SU>10</SU> <FTREF/> In fact, one EEBA manufacturer told a Class I railroad that it would take approximately 12 months to deliver the quantity of EEBAs necessary for that railroad alone to comply with the final rule's requirements. <SU>11</SU> <FTREF/> The joint petition added that Class II and III railroads could expect even longer delays in receiving compliant devices given their smaller market power and EEBA manufacturers' likeliness to prioritize larger orders from Class I railroads over these smaller railroads. <SU>12</SU> <FTREF/> <FTNT> <SU>10</SU>  AAR/ASLRRA Pet. at 1-2. </FTNT> <FTNT> <SU>11</SU>   <E T="03">Id.</E> at 2. </FTNT> <FTNT> <SU>12</SU>   <E T="03">Id.</E> </FTNT> FRA received the same message as the railroads in conversations with EEBA manufacturers: providing railroads with a sufficient number of EEBA in order to comply with the 2024 Final Rule's requirements was unachievable. <SU>13</SU> <FTREF/> Drager, Ocenco, and Semmco each stated that they could not meet the railroads' EEBA manufacturing demands within the rule's compliance deadlines. <FTNT> <SU>13</SU>  Communication with Ocenco and Other Companies Regarding Final Rule, FRA-2009-0044-0028. </FTNT> Market forces also hinder the railroads' ability to purchase sufficient EEBAs to comply with the rule's requirements. Railroads are not the only entities looking to purchase EEBAs. The U.S. military and foreign governments, as well as other companies and organizations, are also in the market to purchase these devices. This broader, competing demand to obtain EEBAs only exacerbates the “first come, first served” dilemma collectively facing railroads seeking to comply with the rule, as indicated in the joint petition. <SU>14</SU> <FTREF/> Further, it is unreasonable to assume that EEBA manufacturers, and their component manufacturers, which are not subject to the rule's same regulatory pressures, would be willing to devote all of their resources—physical plants and workforces—to supplying railroads with EEBAs that meet the rule's requirements. <FTNT> <SU>14</SU>  AAR/ASLRRA Pet. at 2. </FTNT> In addition to these supply limitations, which are outside of the control of the railroad industry, railroads are constrained from complying with other requirements of the rule. For example, each railroad must, at a minimum: (1) “establish and comply with a written program for inspection, maintenance, and replacement of EEBAs;”  <SU>15</SU> <FTREF/> (2) “adopt and comply with its written program of instruction on EEBAs for all its employees,” including instructing its employees on “[t]he capabilities and limitations of the EEBA” and “[h]ow to inspect, p ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 28k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━