17302 Federal Register / Vol. 88, No. 55 / Wednesday, March 22, 2023 / Proposed Rules 

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). 

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 atmospheresupplying 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 202–493–9544, email: 

michael.watson@dot.gov or Richard 

Baxley, Attorney Adviser, Office of the 

Chief Counsel, telephone: 202–853– 

5053, email: richard.baxley@dot.gov. 

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 § 227.201(a)(1), 

With FRA’s Response 

2. Comments on Proposed § 227.201(a)(2), 

With FRA’s Response 

3. Comments on Proposed § 227.201(b), 

With FRA’s Response 

4. Comments on Proposed § 227.203(b), 

With FRA’s Response 

5. Comments on Proposed § 227.203(c), 

With FRA’s Response 

6. Comments on Proposed § 227.203(d)(1), 

With FRA’s Response 

7. Comments on Proposed § 227.203(d)(2), 

With FRA’s Response 

8. Comments on Proposed § 227.205, With 

FRA’s Response 

9. Comments on Proposed § 227.207, With 

FRA’s Response 

10. Comments on Proposed § 227.209, With 

FRA’s Response 

11. Comments on Proposed § 227.211, With 

FRA’s Response 

12. Comments on Proposed § 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 


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1NTSB Recommendation R–05–17. https://

www.ntsb.gov/investigations/AccidentReports/ 

Reports/RAR0504.pdf. 

2Public Law 110–432, Div. A, 122 Stat. 4848, 

October 16, 2008 (49 U.S.C. 20166). 

3 75 FR 61386 (Oct. 5, 2010). 

4Federal Railroad Administration Guidance for 

Developing an Atmosphere-Supplying Emergency 

Escape Breathing Apparatus Program (Dec. 2016). 

https://railroads.dot.gov/elibrary/federal-railroadadministration-guidance-developing-atmospheresupplying-emergency-escape. 

5 49 CFR 171.8. 

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. 

8Class 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). 

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. 

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. 

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

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. 

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 


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17304 Federal Register / Vol. 88, No. 55 / Wednesday, March 22, 2023 / Proposed Rules 

9A 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. 

10Numbers in this table and subsequent tables 

may not sum due to rounding. 

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. 

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

Category 10-Year cost 

($) 

Present value 7% 

($) 

Present value 3% 

($) 

Annualized 7% 

($) 

Annualized 3% 

($) 

Option 1: Employee Assignment ............................. $92,006,767 $78,979,882 $85,771,368 $11,244,958 $10,055,021 

Option 2: Locomotive Assignment ........................... 106,793,579 91,611,301 99,524,731 13,043,388 11,667,335 

Option 3: Equipment Pooling ................................... 33,527,842 27,100,467 30,398,108 3,858,497 3,563,586 

The 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. 

Category 10-Year benefits 

($) 

Present value 7% 

($) 

Present value 3% 

($) 

Annualized 7% 

($) 

Annualized 3% 

($) 

Total Benefits from Injury Prevention ................ $63,720 $43,110 $53,520 $6,138 $6,274 

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– 


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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. 

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. 

13See ‘‘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. 

14Federal Railroad Administration Guidance for 

Developing an Atmosphere-Supplying Emergency 

Escape Breathing Apparatus Program (Dec. 2016). 

https://railroads.dot.gov/elibrary/federal-railroadadministration-guidance-developing-atmospheresupplying-emergency-escape. 

15NIOSH 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). 

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. 

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

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. 

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. 

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 atmospheresupplying 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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17However, 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. 

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

default.html. 

19See R.L. Buckley, Detailed Numerical 

Simulation of the Graniteville Train Collision, 

Savannah River National Laboratory, Report 

WSRC–MS–2005–00635 October 2005. 

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. 

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

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 closedcircuit 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—SelfContained, 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). 

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 oxygendeficient atmosphere, and there 

certainly was toxic-gas concentration 

exceeding IDLH levels. 

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 


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time needed to escape in the event of 

IDLH or oxygen-deficient conditions. 

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. Opencircuit 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 positivepressure 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 opencircuit 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 closedcircuit 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 opencircuit 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 

§§ 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. 


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21UTU is now part of the International 

Association of Sheet Metal, Air, Rail and 

Transportation Workers (SMART). 

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 § 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. 

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 


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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 

§ 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 


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22PHMSA, 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. 

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. 

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 costbenefit 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. 


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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 ‘‘startup’’ 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 § 227.209, 

Railroad’s program of instruction on 

EEBAs, which contains requirements for 

teaching the safe provision and use of 

EEBAs. Proposed § 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 

§§ 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 

§ 227.201(a)(1), With FRA’s Response 

FRA received a number of comments 

on proposed § 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, 

§ 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 §§ 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 


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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 

§ 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 § 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 railrelated 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 


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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 asphyxiationrelated 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 

§ 227.201(a)(2), With FRA’s Response 

Based on comments from Labor on 

proposed § 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 § 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 

§ 227.201(a)(2) and replacing it with ‘‘on 

a freight train.’’ 

In response to this comment, FRA has 

modified proposed § 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 inservice 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 § 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 § 227.201(b), 

With FRA’s Response 

FRA received comments on proposed 

§ 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 

§ 227.201(b)(1). 

One issue that was not raised in 

§ 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 § 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 § 227.203(b), 

With FRA’s Response 

FRA received numerous comments on 

proposed § 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 


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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—SelfContained, 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 § 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 NIOSHcertified 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 § 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 thirdparty 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 § 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 § 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 § 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 § 227.203(c), 

With FRA’s Response 

FRA received comments on proposed 

§ 227.203(c) from AAR and Draeger and 

has deleted that paragraph for the 

reasons explained below. 

In the 2010 NPRM, proposed 

§ 227.203(c) established a requirement 

that a railroad must document the 

adequacy of the EEBA. However, AAR 

notes that proposed § 227.203(b) would 


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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 

§ 227.203(c) be deleted. FRA agrees and 

has deleted proposed § 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 § 227.203(b). In light of 

the deletion, FRA has re-designated 

§ 227.203(d) as § 227.203(c) in this 

proposed rule. 

While the § 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 

§ 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 § 227.203(b) 

along with the specific items identified 

in proposed § 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 § 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 airsupplied 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 § 227.5, where FRA defines 

‘‘PIH material.’’ With respect to thirdparty 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 

§ 227.203(d)(1), With FRA’s Response 

FRA received numerous comments on 

proposed § 227.203(d)(1). While FRA 

has continued to propose this provision 

without substantive changes, 

§ 227.203(d)(1), as proposed in the 2010 

NPRM, has been re-designated in this 

proposed rule as § 227.203(c)(1) because 

of the deletion of § 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 

§ 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 § 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 

§ 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 

§ 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 closedcircuit 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 


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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 

§ 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 ‘‘overbreathing’’ 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 atmospheresupplying 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 

§ 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 

§ 227.203(d)(2), With FRA’s Response 

FRA also received a number of 

comments on proposed § 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 § 227.203(d)(2) has been redesignated as § 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 

§ 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 

§ 227.203(d)(2). Specifically, ISEA 

questions why face and neck protection 

is a requirement in proposed 

§ 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 § 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 § 227.205, 

With FRA’s Response 

FRA received comments on proposed 

§ 227.205. FRA modified the provision 

in this SNPRM to delete the word 

‘‘asphyxiant,’’ but has otherwise not 

changed the proposed section. 

Proposed § 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 

§ 227.205 should include a requirement 


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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 

§ 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 § 227.207, 

With FRA’s Response 

FRA received numerous responses to 

proposed § 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 § 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 § 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 § 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 § 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 § 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 

§ 227.211(b)(3). 

AIHA suggests that formal inspections 

of EEBAs under § 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 wellestablished 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 § 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 


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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 

§ 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 number of EEBAs have 

been provided and that such EEBAs are 

charged to provide a minimum of 15 of 

minutes breathing capacity, FRA finds 

that, beyond these basic factors, the 

manufacturer is the best source of 

information on the manner in which a 

given device is verified as ready for 

service. 

AAR agrees with FRA’s decision in 

proposed § 227.207(a)(2) to require 

periodic inspections ‘‘in a manner and 

on a schedule in accordance with the 

manufacturer’s instructions’’; however, 

it comments that the proposed pre-trip 

inspection of EEBAs required by this 

proposed section could be overly 

burdensome. As an alternative, AAR 

suggests that the appropriate inspection 

procedure should depend on how a 

railroad chooses to deploy EEBAs. 

While AAR agrees that a pre-trip 

inspection would be appropriate if a 

railroad were to issue EEBAs directly to 

its employees, either permanently or for 

a single trip, it believes a calendar day 

inspection, as part of the required 49 

CFR 229.21 inspection, is more 

appropriate if a railroad chooses to 

mount EEBAs permanently in 

locomotive cabs. 

The RSIA requires that EEBAs be 

provided to all crewmembers in the 

locomotive cab of a freight train 

transporting a hazardous material that 

would pose an inhalation hazard in the 

event of release. FRA considers pre-trip 

inspections the most effective method of 

ensuring compliance with the statutory 

mandate. FRA must anticipate many 

different operating scenarios and means 

of providing the EEBAs to crews. FRA 

can envision scenarios where at least 

two crews could be relying on 

locomotive-mounted EEBAs and, absent 

a pre-trip inspection, the second crew 

would have no means to verify that the 

devices present are ready for service. As 

an example, if EEBAs were inspected as 

part of calendar day inspection under 

part 229, the inspection could occur 

well after the crew (or crews) used a 

locomotive to transport a PIH material. 

This is because the calendar day 

inspection could be performed legally 

after the crew or crews have completed 

their duties, as long as the inspection 

was performed by midnight on the 

calendar day that the locomotive was 

used. As a result, calendar day 

inspections would not assure that the 

required EEBAs were in working order 

for the crew or crews using the 

locomotive at the time that the train is 

transporting a PIH material. Therefore, 

FRA does not think it is appropriate to 

change the proposed pre-trip inspection 

requirement. 

Additionally, AAR asks that FRA 

clarify whether a pre-trip inspection 

consists of a quick visual inspection to 

ensure that the EEBAs appear to be in 

working order. It notes that because 

EEBAs are sealed in air-tight containers, 

FRA cannot expect railroad employees 

to break the seal of the device to inspect 

it. FRA has discussed what it envisions 

as part of the pre-trip inspection in the 

preceding paragraphs; however, AAR’s 

comment presumes that the type of 

device chosen by AAR will be used 

universally in the railroad industry. 

FRA has written the proposed 

regulation to require the device selected 

to have certain characteristics while 

allowing railroads to choose devices 

best suited to their operations. FRA 

expects that the type of device selected 

by each railroad will determine the 

nature of the inspection required, 

presumably based on the 

recommendations of the manufacturer 

of the device. 

AAR opposes the recordkeeping 

requirements in § 227.207(b)(2). Its 

objection is not targeted at the 

requirement to keep records of 

inspections performed pursuant to 

manufacturer instructions, but to the 

requirement that records of pre-trip 

inspections be kept for one year. It 

asserts that keeping pre-trip inspection 

records for one year would not provide 

a safety benefit. AAR suggests that if 

FRA were to require daily inspections 

(as opposed to pre-trip inspections) in 

instances where EEBAs are permanently 

installed in the locomotive cab, then 

keeping records of those inspections as 

part of the daily inspection report 

required by 49 CFR 229.21 would not be 

overly burdensome given that daily 

inspection records are already 

maintained and kept for a period of 92 

days. However, AAR contends that 

railroads should not be burdened with 

new recordkeeping requirements for 

pre-trip inspections, which would not, 

according to AAR, yield useful 

information. 

AAR’s comment draws an analogy to 

the daily inspections required under 49 

CFR 229.21, but FRA believes a more 

appropriate analogy is the pre-trip 

inspection of a train’s braking system as 

required under 49 CFR 229.46. While 

daily inspections may be more 

convenient, the nature of the device 

being inspected, along with the 


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intended use (i.e., emergency escape) is 

similar in the context of (personal) 

safety criticality to ensuring the braking 

systems in the consist are working. 

Nevertheless, FRA does agree that there 

is little reason to keep pre-trip 

inspection records for one year. The 

proposed period of records retention for 

pre-trip inspections has, therefore, been 

reduced to 92 days in this SNPRM. 

While FRA does view pre-trip 

inspection records as necessary to 

ensure compliance with the RSIA 

mandate, it should be noted that the 

record of pre-trip inspections, 

depending on the device selected, may 

be as simple as the check-off/initialed 

card used on fire extinguishers. FRA 

also understands that some of the Class 

I carriers are considering using RFID 

tags to track and record the inspection 

of individual EEBA units. The use of 

this technology could possibly 

minimize the inspection and 

recordkeeping burden. 

Finally, AAR provided comments 

about proposed § 227.207(d), which 

requires railroads to maintain accurate 

records of return, maintenance, repair, 

or replacement of each required EEBA 

for a period of three years. AAR 

questions whether this provision would 

allow for railroads to arrange for EEBA 

suppliers to maintain these records. It is 

FRA’s view that such an arrangement 

would be acceptable; however, as AAR 

notes, the railroad would remain 

responsible for any failure on the part of 

a third party to maintain such records 

for the required time period or to 

provide FRA reasonable access to the 

records. 

10. Comments on Proposed § 227.209, 

With FRA’s Response 

FRA received numerous comments on 

proposed § 227.209 and has adopted the 

provision without change, except for 

deleting reference to asphyxiants. 

Section 227.209 establishes 

requirements for a railroad’s program of 

instruction on EEBAs. The section sets 

out a number of subjects that must be 

covered in training including the 

importance of proper fit, usage, and 

maintenance in the effectiveness of the 

EEBA; the device’s capabilities and 

limitations; and how to use an EEBA 

effectively in an emergency situation. 

Additionally, following initial training, 

it requires periodic training once every 

three years. 

NIOSH recommends that proposed 

§ 227.209 require annual expectation 

training (i.e., training for use of ClosedCircuit Self Contained Escape 

Respirators that simulates the initiation 

procedures, heat, and breathing 

resistance the user will experience in 

the respirator’s performance) and 

‘‘hands-on’’ training that goes over the 

appropriate donning procedures. FRA 

expects that the proposed language in 

§ 227.209(b)(4), which requires training 

on how to inspect, put on, remove, and 

use the EEBA and how to check the 

seals of the EEBA, will ensure that 

railroad employees are sufficiently 

familiar with the EEBAs provided by 

their employing railroads. 

NIOSH, ISEA, and Draeger also 

recommend that proposed § 227.209 be 

modified to follow Mine Safety and 

Health Administration requirements for 

quarterly training of underground coal 

miners, see 30 CFR 75.1504, which 

requires that each miner undergoes 

‘‘hands-on’’ training for donning and 

transferring of self-rescue devices as 

part of the required evacuation drill at 

the start of underground work, with this 

training provided at least four times a 

year. Moreover, ISEA and Draeger raise 

specific concerns about the adequacy of 

training personnel on a triennial basis 

because of concerns that people will 

forget the training received. 

FRA believes there are significant 

differences in the operational practices 

and risks faced by the employees in 

these two populations. Miners report to 

a fixed site each day and face a 

significant frequency of potential 

exposure to the materials against which 

these devices are intended to protect. 

Railroad operating employees often 

report to duty at different locations each 

day, and the frequency of potential 

exposure to inhalation hazards are 

orders of magnitude less. FRA does not 

view the three-year interval between 

training sessions as presenting an 

obstacle to effective use of EEBAs in the 

very rare event that the need for a 

device arises. 

It is also important to keep in mind 

that the proposed instructional program 

established in § 227.209 is a minimum 

requirement. Railroads are encouraged 

to provide additional relevant 

information depending on the types of 

EEBAs selected. FRA is aware that, 

among the larger carriers, on-line 

refresher training is often available to 

employees on an ad-hoc basis. FRA also 

believes that the pre-trip inspections 

and contact with the devices will keep 

their use ‘‘front of mind’’ for the 

purposes of encouraging employees to 

take advantage of the available on-line 

resources. 

Labor acknowledges that the RSIA 

mandates that appropriate training for 

the use of the EEBAs be included in the 

rule, but it is wary that testing will be 

used as a way to withhold certain 

employees from service. It contends that 

even though the RSIA does not require 

testing, it agrees that the employees 

should be proficient in the use of the 

EEBA. However, Labor is ‘‘concerned 

that some railroad will establish 

unachievable, unnecessary or excessive 

performance requirements that, if not 

satisfied, will be used to hold 

employees out of service.’’ As a result, 

Labor requests that FRA modify 

proposed § 227.209 to remove language 

requiring employees demonstrate 

knowledge of each of the elements in 

§ 227.209(b) and that employees only be 

required to show proficiency in how to 

inspect, put on, remove, and use the 

EEBA and how to check the seals of the 

EEBA. 

FRA finds the language proposed in 

§ 227.209(b) as appropriate for the 

proper use of these devices. The 

language requiring a demonstration of 

knowledge was taken directly from 

OSHA’s regulation covering the 

provision of respirators in the 

workplace. See 29 CFR 1910.134(k)(1). 

The requirement is intended to ensure 

that after having been trained, the 

subject employees have the knowledge 

and skills to use the devices properly. 

Both the railroad and its employees 

have a vital interest in ensuring the 

training is both effective and retained. 

FRA does not believe the railroads have 

any incentive to establish 

‘‘unachievable, unnecessary or 

excessive performance requirements’’ in 

this regard. 

AAR requests the deletion of 

proposed paragraph § 227.209(b)(3), 

which requires instruction on how to 

use the EEBA effectively in emergency 

situations, including situations in which 

the EEBA malfunctions. It does not 

understand what FRA envisions will be 

taught other than to leave the scene as 

quickly as possible. As with the other 

provisions in proposed § 227.209(b), 

proposed paragraph (b)(3) was borrowed 

directly from OSHA’s regulation 

covering the provision of respirators in 

the workplace. See 29 CFR 

1910.134(k)(1)(iii). FRA finds no reason 

to delete the provision. While these 

circumstances are likely to be rare, FRA 

believes that, as a basic principle of 

emergency preparedness, it is useful to 

anticipate the kinds of scenarios that 

might occur and plan for them. For 

additional guidance, railroads can look 

to OSHA. See, e.g., 63 FR 1152, 1259 

(Jan. 8, 1998). 

11. Comments on Proposed § 227.211, 

With FRA’s Response 

AAR comments that there is no reason 

to require in proposed § 227.211(b)(1) 

that a railroad identify by name the 

employee managing the railroad’s 

general EEBA program. AAR notes that 


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there could be frequent changes in the 

specific individual in charge of the 

general EEBA program. As a result, AAR 

suggests deleting the proposed 

requirement that the individual be 

identified by name. While FRA is 

concerned with AAR’s assertion that the 

name of the individual managing a 

railroad’s general EEBA program may 

change frequently, FRA is deleting the 

proposed requirement that the person in 

charge of implementing and managing 

the railroad’s general EEBA program be 

identified by name. It is sufficient to 

identify the person managing the 

general EEBA program by title, with all 

additional requirements remaining as 

proposed. 

12. Comments on Proposed § 227.217, 

With FRA’s Response 

FRA received comments from Labor 

on proposed § 227.217. This provision 

proposed to establish a staggered 

compliance schedule, with Class I 

railroads required to comply with the 

requirements of part 227, subpart C no 

later than 24 months from the effective 

date of the final rule, Class II railroads 

required to comply no later than 30 

months from the effective date, and 

Class III railroads required to comply no 

later than 36 months from the effective 

date. 

Labor strongly encourages FRA to 

shorten the implementation schedule to 

no more than 90 days following the date 

of publication of the final rule. Labor 

contends that EEBAs ‘‘will be a 

necessary safety overlay for the totally 

unpredictable work schedules that are 

commonplace in the industry today.’’ 

Moreover, Labor contends that there is 

not a logical reason to delay the 

implementation in the manner 

suggested by AAR, and proposed by 

FRA in the NPRM, when devices are 

readily available at this time. 

While FRA understands the desire for 

more immediate implementation of 

EEBA programs, FRA cannot justify 

shortening the periods proposed in the 

2010 NPRM for compliance to 90 days. 

In the short term, it is not necessarily 

true that the devices are readily 

available in the quantities needed. The 

shortened time frames proposed by 

Labor would also strain the capabilities 

of the railroads with respect to 

developing the management 

infrastructure for deploying and 

maintaining the devices, developing the 

required written programs and training, 

and scheduling and conducting the 

training for all of the operating and 

other employees likely to be covered. 

However, given the length of time since 

the publication of the RSIA mandate as 

well as FRA’s issuance of guidance in 

2016 the railroads have been on notice 

about the need to provide EEBAs. 

Therefore, FRA proposes shortening the 

compliance schedule from the original 

NPRM and now proposes that Class I 

railroads be required to comply with the 

requirements of part 227, subpart C no 

later than 12 months from the effective 

date of the final rule, Class II railroads 

be required to comply no later than 12 

months from the effective date, and 

Class III railroads be required to comply 

no later than 18 months from the 

effective date. 

VIII. Section-by-Section Analysis 

PART 227—OCCUPATIONAL SAFETY 

AND HEALTH IN THE LOCOMOTIVE 

CAB 

FRA proposes to change the name of 

the part from ‘‘OCCUPATIONAL NOISE 

EXPOSURE’’ to ‘‘OCCUPATIONAL 

SAFETY AND HEALTH IN THE 

LOCOMOTIVE CAB’’ in order to reflect 

the broader subject matter of the part. 

Previously, part 227 contained 

regulations related only to dangers from 

occupational noise exposure. Part 227 is 

the most natural place to put the 

proposed regulations related to the 

provision of EEBAs because the 

occupational noise regulations and the 

EEBA regulations both concern dangers 

to the occupational safety and health of 

locomotive cab occupants. However, the 

inclusion of the proposed EEBA 

regulations requires broadening the 

name of the part to accurately capture 

the new subject matter that is now 

covered in that part. 

Subpart A—General 

Section 227.1 Purpose and Scope 

FRA proposes to amend this section 

to reflect the expanded purpose and 

scope of this part. In comparison to the 

NPRM, FRA has modified paragraph (c) 

of this section in the final rule to 

remove reference to asphyxiants. 

Section 227.3 Applicability 

FRA proposes to amend this section 

so that paragraphs (a) and (b) apply to 

subpart B only and that the title 

mentioned, ‘‘Associate Administrator 

for Safety,’’ is updated to reflect the 

current title, ‘‘Associate Administrator 

for Railroad Safety/Chief Safety 

Officer.’’ New paragraphs (c) and (d) 

define the types of railroad operations to 

be covered by subpart C. In particular, 

subpart C applies to a railroad that 

transports an in-service freight train that 

carries a PIH material. FRA has removed 

the references to asphyxiants that were 

in the NPRM, including a residue of 

such PIH material, on track that is part 

of the general railroad system of 

transportation. See 49 CFR part 209, 

appendix A. If a railroad does not haul 

such a material on the general system, 

it is not subject to this subpart. It should 

be noted that, with some exceptions, 

common carriers by railroad have a 

‘‘common carrier’’ obligation to accept 

for rail transportation a PIH material if 

it is properly prepared for 

transportation. If a railroad accepts and 

transports a tank car containing a load 

or residue of a PIH material in an inservice freight train, even if the railroad 

has never done so before, the railroad 

would become subject to this rule. FRA 

realizes that triggering the applicability 

of this rule upon the company’s first 

transporting of a PIH material in a 

freight train could delay the 

transportation of such material if the 

company did not voluntarily take the 

steps required by the rule (e.g., 

preparation of general EEBA program, 

procurement and distribution of EEBAs, 

and instruction of employees in the 

program) in advance. Further, a delay 

related to compliance with this 

proposed rule could conflict with the 

railroad’s duty to expedite the 

transportation of hazardous material, 

pursuant to the Hazardous Materials 

Regulations at 49 CFR 174.14. 

Accordingly, FRA sought comments on 

this aspect of the proposal, but received 

none. 

Section 227.5 Definitions 

The proposed rulemaking would 

amend this section to add definitions for 

key terms used in subpart C. The terms 

defined are set forth alphabetically. FRA 

intends these definitions to clarify the 

meaning of the terms for purposes of 

this part. Many of these definitions have 

been taken from the regulations issued 

by OSHA and NIOSH and are widely 

used by safety and health professionals, 

such as the definition of ‘‘immediately 

dangerous to life or health (IDLH).’’ A 

definition of ‘‘PIH material’’ is included 

in this SNPRM to ensure that the 

universe of materials covered by this 

regulation is adequately described. 

Section 227.15 Information Collection 

FRA proposes to amend this section 

to note the provisions of this part, 

including subpart C, that have been 

reviewed and approved by OMB for 

compliance with the Paperwork 

Reduction Act of 1995. See 44 U.S.C. 

3501 et seq. 

Subpart B—Occupational Noise 

Exposure for Railroad Operating 

Employees 

FRA proposes a set of minor 

corrections to this subpart. The term 

‘‘Class 1’’ is removed wherever it 


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appears and replaced with the corrected 

term ‘‘Class I.’’ The incorrect term 

appeared in, for example, 

§ 227.103(a)(1). 

Subpart C—Emergency Escape 

Breathing Apparatus Standards 

Section 227.201 Criteria for Requiring 

Availability of EEBAs in the Locomotive 

Cab 

Proposed section 227.201(a)(1) 

requires that an EEBA be provided by a 

railroad to each of its train employees, 

direct supervisors of train employees, 

deadheading employees, and other 

employees designated by the railroad in 

writing and at the discretion of the 

railroad who are required to work in or 

occupy the cab of any locomotive of one 

of its covered trains (i.e., an in-service 

freight train that is transporting a PIH 

material). The EEBA provided must 

have been selected in accordance with 

the criteria in § 227.203. Moreover, the 

EEBA provided shall have been 

inspected and determined to be in 

proper working condition under 

§ 227.207. 

Proposed section 227.201(a)(2) 

prohibits utilizing a locomotive to 

transport a PIH material in an in-service 

freight train unless each of the 

employees identified in paragraph (a)(1) 

in the cab of the locomotive has access 

to an EEBA that was selected in 

accordance with § 227.203 and that has 

been inspected and is in proper working 

order pursuant to § 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 § 227.201(a)(2) 

that the railroad provided the EEBA to 

the employee and instructed the 

employee to have it while in the cab, 

but the employee lost or forgot it. 

Proposed section 227.201 also 

includes exceptions to its general 

requirements in paragraph (b). FRA 

excludes trains that contain PIH 

materials exclusively in intermodal 

containers from the requirements in this 

section. Further, employees who are 

involved in activities, such as moving a 

locomotive coupled to a car or group of 

cars containing a PIH material within a 

locomotive maintenance facility, or who 

make incidental movements for the 

purpose of inspection or maintenance, 

are also exempted from coverage. 

Proposed paragraph (c) establishes 

that, notwithstanding the exceptions 

identified in § 227.201, any employee 

who is found to have willfully tampered 

with or vandalized an EEBA will be 

subject to subpart C for enforcement 

purposes. As a result, an employee to 

whom the railroad is not required to 

provide an EEBA may become subject to 

this subpart by vandalizing or willfully 

tampering with an EEBA. By proposing 

this paragraph, FRA intends to foreclose 

a loophole that otherwise would 

preclude FRA from pursuing 

enforcement actions against mechanical 

employees and other employees who 

may have access to EEBAs, but for 

whom the railroads are not required to 

provide a device by these regulations. 

Section 227.203 Criteria for Selecting 

EEBAs 

This proposed section provides the 

basis for selecting an EEBA. See general 

discussion at V. Selection of the 

Appropriate EEBA by Railroads, above. 

The proposed requirements for selection 

of EEBAs are based on the nature and 

extent of the potential hazard to be 

faced. Due to the varying modes of 

toxicity and physical state of 

commodities carried by railroads, the 

selection of EEBA types is limited to 

those that supply a breathable 

atmosphere to the wearer, rather than 

types that simply filter out the toxic 

material. Filtering EEBAs cannot 

provide protection from gasses that can 

displace the oxygen in the atmosphere. 

Filtering EEBAs approved for protection 

against specific materials usually are not 

approved for others of different 

chemical characteristics and generally 

have an upper concentration limit on 

their protective capabilities. 

Paragraph (a) of § 227.203 proposes to 

require a railroad to select an 

atmosphere-supplying EEBA that 

protects against all PIH materials 

(including residues of such 

commodities) that are being transported 

by an in-service freight train. To ensure 

that the EEBAs have met a standard set 

of testing criteria, paragraph (b) requires 

the selection of a NIOSH-certified (42 

CFR part 84) or ISO-compliant (ISO 

23269–1:2008) EEBA, with 15-minute 

minimum breathing capacity. In 

addition, FRA has proposed language to 

paragraph (b) to permit selection of 

devices that comply with BS EN 

13794:2002 or BS EN 1146:2005. 

To ensure that the EEBA provides 

adequate oxygen to allow train 

employees to extricate themselves from 

an IDLH atmosphere, in paragraph 

(c)(1), FRA has proposed that the EEBA 

must contain a minimum breathing 

capacity of 15 minutes under 

§ 227.207(a)(1). 

In paragraph (c)(2), FRA addresses 

head and neck protection. The EEBA 

type that is selected by a railroad must 

facilitate escape from a hazardous 

atmosphere by providing a means of 

protecting a user’s nose and throat from 

inhalation hazards while also protecting 

the user’s eyes from irritation. 

Section 227.205 Storage Facilities for 

EEBAs 

This proposed section addresses the 

mandate in the RSIA that the rule 

require railroads to ‘‘provide convenient 

storage in each freight train locomotive 

to enable crewmembers to access such 

apparatus quickly.’’ FRA has adapted 

the storage requirements promulgated 

by OSHA at 29 CFR 1910.134(h)(2) to 

this proposed rule. 

Section 227.207 Railroad’s Program 

for Inspection, Maintenance, and 

Replacement of EEBAs; Requirements 

for Procedures 

This proposed section requires each 

railroad to establish and carry out 

procedures intended to ensure that 

EEBAs required to be present in the 

locomotive cabs are fully functional. 

This section is adapted from OSHA’s 

inspection documentation requirements. 

See 29 CFR 1910.134(h)(3)(iv). Since the 

EEBAs selected may have differing 

requirements for inspection, 

maintenance, and replacement, this 

section is, for the most part, written for 

as a general standard. However, 

minimum repair and adjustment 

requirements also have been adapted 

from OSHA’s regulations. See 29 CFR 

1910.134(h)(4). 

In paragraph (b), FRA proposes that 

railroads create and maintain pre-trip 

and periodic inspection records and 

retain these records for a period of 92 

days and one year, respectively. 

Paragraph (d) proposes to require 

railroads to create and maintain an 

accurate record of all turn-ins, 

maintenance, repair, and replacement of 

EEBAs required by paragraph (c) of this 

section, including EEBAs that are used; 

and retain these records for three years. 

Section 227.209 Railroad’s Program of 

Instruction on EEBAs 

This proposed section identifies the 

elements of the instructional program 

that the railroad must establish and 

carry out for train employees and other 

employees who are part of the railroad’s 

general EEBA program under § 227.211 

and will be provided with EEBAs. The 

elements outlined in this section are 

partly adapted from OSHA’s 

regulations. See 29 CFR 1910.134(k). 

The program proposed by this section 

should be considered the minimum, and 

the railroads are encouraged to provide 

additional relevant information 

depending on the types of EEBAs 

selected. 


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Proposed paragraph (b) requires that 

any railroad transporting a PIH material 

must provide sufficient training to its 

subject employees. Such employees 

must be able to demonstrate knowledge 

concerning why an EEBA is necessary; 

how improper fit, usage, or maintenance 

can compromise the protective effect of 

an EEBA; the limitations and 

capabilities of the type of EEBA that has 

been provided by the railroad, including 

the limited time for use; how to deal 

with emergency situations involving the 

use of EEBAs or if an EEBA 

malfunctions; how to inspect, put on, 

remove, and use an EEBA, including the 

inspection of seals; procedures for 

maintenance and storage of EEBAs; the 

selection criteria for EEBAs under 

§ 227.203, employee responsibilities 

under subpart C; employee rights 

concerning access to records; and 

identification of hazardous materials 

that are classified as PIH materials. FRA 

is particularly concerned that the 

employees know the limitations of the 

EEBAs provided so that the employees 

can avoid circumstances that would 

lead to reliance on the EEBAs for 

conditions or time frames beyond EEBA 

capabilities. 

This proposed program may be 

integrated with the railroad’s program of 

instruction on the railroad’s operating 

rules required by 49 CFR 217.11 or its 

program of instruction for hazmat 

employees under 49 CFR 172.704. 

Under 49 CFR 172.704(a)(3)(ii), for 

example, hazmat employees (which 

includes crews of freight trains 

transporting hazardous material), must 

receive ‘‘safety training’’ on means ‘‘to 

protect the employee from the hazards 

associated with hazardous materials to 

which they may be exposed in the 

workplace, including special measures 

the hazmat employer has implemented 

to protect employees from exposure.’’ 

Proposed paragraph (c) establishes the 

timing of the initial and refresher 

training. Initial instruction must occur 

no later than 30 days prior to the date 

of compliance with subpart C for the 

subject railroad. New employees must 

receive initial instruction either by 30 

days before the applicable date of 

compliance with subpart C or prior to 

being assigned to jobs where EEBAs are 

required to be provided on a 

locomotive, whichever is later. The 

initial instruction must be 

supplemented with periodic instruction 

at least once every three years. 

Proposed section 227.209(d) requires 

railroads to create and maintain an 

accurate record of employees instructed 

in compliance with § 227.209; and 

retain these records for at least three 

years. 

Section 227.211 Requirement To 

Implement a General EEBA Program; 

Criteria for Placing Employees in the 

General EEBA Program 

In this proposed section, FRA requires 

railroads subject to subpart C to adopt 

and comply with a general EEBA 

program to ensure that the selection and 

distribution of the EEBAs is done in a 

technically appropriate, sustainable 

manner and supported by a 

comprehensive set of policies and 

procedures. These issues have already 

been discussed in detail at IV. FRASponsored Study and V. Selection of the 

Appropriate EEBA by Railroads, above. 

Many of the procedures will likely be 

used as a basis for aspects of the 

required instructional program. 

In paragraph (b)(1), FRA proposes that 

each railroad’s general program identify 

the railroad’s EEBA manager by title. 

The important concern is that the EEBA 

manager is qualified to oversee the 

program. 

Proposed section 227.211(b)(4) 

requires the following individuals to be 

placed in the railroad’s general EEBA 

program: (1) employees of railroads 

subject to this subpart who perform 

service subject to the provisions of the 

hours of service law governing ‘‘train 

employees,’’ see 49 U.S.C. 21103, in the 

locomotive cabs of freight trains that 

transport a PIH material; (2) the direct 

supervisors of these train employees; 

and (3) any employees who deadhead in 

the locomotive cabs of such trains. The 

term ‘‘train employee’’ refers to 

employees who are engaged in functions 

traditionally associated with train, 

engine, and yard service; for example, 

engineers, conductors, brakemen, 

switchmen, and firemen. See 49 U.S.C. 

21101(5); 49 CFR part 228, appendix A; 

and 74 FR 30665, June 26, 2009. 

A railroad may also identify other 

employees and designate them in 

writing to be included in its general 

EEBA program. In making this 

assessment, the railroad should consider 

an employee’s work over the period of 

a year. In doing so, the railroads must 

think about how they use their 

workforces, i.e., review the work that 

their employees perform, determine 

which employees will occupy the cab of 

the locomotive of an in-service freight 

train and therefore experience the risk 

of the release of an inhalation-material 

from the consist, and then place those 

employees in the general EEBA 

program. 

Given the nature of the railroad 

industry, FRA is aware that some of 

these employees may not always work 

in the cab. Due to longstanding labor 

practices in the railroad industry 

concerning seniority privileges and 

concerning the ability of railroad 

employees to bid for different work 

assignments, these railroad employees 

are likely to change jobs frequently and 

to work for extended periods of time on 

assignments that involve duties outside 

the cab. For example, an employee 

might start the year in a job that 

involves mostly outside-the-cab work, 

spend three months working primarily 

inside the cab, and then return to 

outside-the-cab work for the rest of the 

year. In this type of situation, these 

regulations govern the exposure of this 

employee throughout the year despite 

the fact that the employee only spent 

three months inside the cab. This 

employee is covered by this proposed 

part, because he spent time, no matter 

how little, in a locomotive cab where 

the use of an EEBA may be required. As 

a result, the railroad must ensure that 

the employee is properly instructed in 

how to inspect and use an EEBA and 

provide an EEBA for those time periods 

in which the employee is serving as a 

train employee, as a direct supervisor of 

a train employee, or in a capacity that 

the railroad has determined, in its 

discretion and designated in writing, 

should be provided an EEBA while any 

of these individuals is working in the 

cab of the locomotive of an in-service 

freight train transporting a PIH material. 

Note that placement of an employee 

in the railroad’s general EEBA program 

means different things depending on the 

nature of the program that the railroad 

chooses to adopt. For example, if the 

railroad’s program states that the 

railroad will equip its fleet of 

locomotives with sets of EEBAs 

sufficient to accommodate the train 

crew and possible deadheading train 

employees, the railroad would have to 

provide the EEBA to the employee in 

that way, in the locomotive cab. On the 

other hand, if the railroad’s program 

states that the railroad will provide the 

EEBA to the employee as part of his or 

her personal equipment, the railroad 

would have to provide the EEBA in that 

manner. If the employee for whatever 

reason did not have the EEBA with him 

or her while in the locomotive cab, the 

railroad would be prohibited from using 

the locomotive by § 227.201(a)(2), which 

bars using a locomotive to transport a 

covered train if a covered employee 

occupying the cab of the locomotive 

does not access to a working EEBA. One 

constant is that all railroads subject to 

this proposed part are required to 

instruct employees placed in their 

general EEBA program in how to use 

EEBAs; the provision on instruction at 

§ 227.209 requires that all employees 


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identified in § 227.211 be provided 

instruction on EEBAs. 

Finally, proposed § 227.211(c) 

requires railroads to maintain records 

concerning the persons and positions 

designated to be placed in its EEBA 

program and retain these records for the 

duration of the designation and for one 

year after the designation has ended. 

Section 227.213 Employee’s 

Responsibilities 

Since employees, who must be 

provided the EEBAs, are not always 

directly supervised by managers who 

can ensure the identified tasks are done 

at the appropriate time and frequency, 

this proposed section establishes certain 

responsibilities on the part of 

employees. Some of these tasks may 

involve making records of such tasks as 

pre-trip inspections that must be done 

to ensure the EEBAs are ready for use. 

Additionally, FRA proposes prohibiting 

employees from willfully tampering 

with or vandalizing an EEBA in an 

attempt to disable or damage the device. 

See 49 CFR part 209, appendix A for 

definition and discussion of ‘‘willfully.’’ 

Section 227.215 Recordkeeping in 

General 

Proposed section 227.215 sets out the 

general recordkeeping provisions for 

subpart C. Proposed section 227.215(a) 

addresses the availability of required 

records. Section 227.215(a) provides 

that records required under this part, 

except for records of pre-trip 

inspections, be kept at system and 

division headquarters. It proposes 

requiring that a railroad make all 

records available for inspection and 

copying or photocopying by 

representatives of FRA upon request. 

The railroad must also make an 

employee’s records available for 

inspection and copying or photocopying 

by that employee or such person’s 

representative upon written 

authorization by such employee. 

Proposed section 227.215(b) permits 

required records to be kept in electronic 

form. These requirements are almost 

identical to the electronic recordkeeping 

requirements found in FRA’s existing 

Track Safety Standards, 49 CFR 

213.241(e). Section 227.215(b) allows 

each railroad to design its own 

electronic system as long as the system 

meets the specified criteria in 

§ 227.215(b)(1) through (5), which are 

intended to safeguard the integrity and 

authenticity of each record. 

Section 227.217 Compliance Dates 

The specific dates by which certain 

groups of railroads are required to 

comply are set forth in this section. FRA 

recognizes that it will take time to 

procure EEBAs, instruct employees on 

their use, and outfit locomotives with 

the appropriate equipment to carry the 

devices. FRA staggers the compliance 

dates based on the size of the railroad, 

with larger railroads having to comply 

earlier. The AAR’s January 13, 2010, 

letter referenced earlier requests ‘‘that 

FRA allow at least two years from the 

effective date of the final rule for the 

railroad to be compliant with the 

regulation.’’ Under the final rule, FRA 

requires Class I railroads to be 

compliant within 12 months of the 

effective date of the final rule, with 

required compliance following for Class 

II railroads at 12 months and Class III 

and other railroads at 18 months. 

Section 227.219 Incorporation by 

Reference 

Because subpart C proposes to 

incorporate by reference ISO 23269– 

1:2008, BS EN 13794:2002, and BS EN 

1146:2005, FRA is adding this section to 

comply with the requirements of 5 

U.S.C. 552(a) and 1 CFR part 51. ISO 

23269–1:2008 provides specifications 

for emergency escape breathing devices 

intended to supply air or oxygen needed 

to escape from accommodation and 

machinery spaces with a hazardous 

atmosphere. BS EN 13794:2002 provides 

specifications including requirements, 

testing, and marking for self-contained 

closed-circuit breathing apparatus 

intended for an escape from a hazardous 

atmosphere. BS EN 1146:2005 provides 

specifications including requirements, 

testing, and marking for self-contained 

open-circuit compressed air breathing 

apparatus incorporating a hood and 

intended for an escape from a hazardous 

atmosphere. They are reasonably 

available to all interested parties online 

at https://webstore.ansi.org/ and http:// 

shop.bsigroup.com, respectively. 

Further, FRA will maintain copies of the 

standards available for review at the 

Federal Railroad Administration, 1200 

New Jersey Avenue SE, Washington, DC 

20590. 

IX. Regulatory Impact and Notices 

A. Executive Order 12866 

This proposed rule is not a significant 

regulatory action within the meaning of 

Executive Order 12866. Details on the 

estimated costs of this SNPRM can be 

found in the RIA, which FRA has 

prepared and placed in the docket 

(FRA–2009–0044). 

FRA is proposing a rule that would 

enable covered employees to wear 

protective breathing apparatus in the 

event of a catastrophic release of PIH 

materials. This rule would require that 

an EEBA be provided for each covered 

employee transporting PIH materials. 

These EEBAs would provide neck and 

face coverage with respiratory 

protection for these crewmembers. 

Railroads must also ensure that the 

equipment is maintained and in proper 

working condition. Finally, the 

proposed rule would require that 

railroads train crewmembers how to use 

the EEBAs. 

The RIA presents estimates of the 

costs likely to occur over the first 10 

years of the proposed rule. The analysis 

includes estimates of costs associated 

with the purchase of EEBAs and 

installation, employee training, and 

recordkeeping. 

FRA has estimated costs for three 

options that are permissible under the 

rule. These include: 

• Option 1: Employee Assignment— 

EEBAs are assigned to all relevant 

employees and considered part of their 

equipment. 

• Option 2: Locomotive 

Assignment—EEBAs are assigned to and 

kept in locomotives. 

• Option 3: Equipment Pooling— 

EEBAs are pooled at rail yards and kept 

in storage lockers where employees 

would check-in and check-out the EEBA 

when PIH is being hauled. 

For all three options, estimates were 

developed using a closed-circuit EEBA. 

For the ‘‘Employee Assignment’’ option, 

FRA estimates that the costs associated 

with issuing each T&E employee 

($60,000) with an EEBA as their own 

personal equipment. The ‘‘Locomotive 

Assignment’’ option would require 

installing EEBA devices in all 

locomotives in the covered railroad’s 

fleet, regardless of whether a locomotive 

is part of a train that is transporting PIH 

material. There are approximately 

24,000 locomotives owned by Class I 

railroads, and three apparatus would 

have to be installed in each locomotive, 

one apparatus each for the conductor, 

the engineer, and a supervisor. In the 

‘‘Equipment Pooling’’ option, FRA 

considered only having EEBAs provided 

in trainsets that were transporting PIH. 

EEBAs would be brought on board after 

a determination is made on a case-bycase basis. 

The analysis includes estimates of 

costs associated with the purchase of 

EEBAs and installation, employee 

training, and recordkeeping. 

FRA estimates the 10-year costs of the 

proposed rule to be between $27.1 

million and $91.6 million, discounted at 

7 percent. The following table shows the 

total costs of this proposed rule, over 

the 10-year analysis period. 


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23Numbers in this table and subsequent tables 

may not sum due to rounding. 

24U.S. Small Business Administration, ‘‘Table of 

Small Business Size Standards Matched to North 

American Industry Classification System Codes, 

August 19, 2019. https://www.sba.gov/sites/default/ 

files/2019-08/SBA%20Table%20of%20Size%20

Standards_Effective%20Aug%2019,%202019.pdf. 

Total 10-Year Costs (2021 Dollars) 23

Category 10-Year cost 

($) 

Present value 7% 

($) 

Present value 3% 

($) 

Annualized 7% 

($) 

Annualized 3% 

($) 

Option 1: Employee Assignment ............................. $92,006,767 $78,979,882 $85,771,368 $11,244,958 $10,055,021 

Option 2: Locomotive Assignment ........................... 106,793,579 91,611,301 99,524,731 13,043,388 11,667,335 

Option 3: Equipment Pooling ................................... 33,527,842 27,100,467 30,398,108 3,858,497 3,563,586 

The proposed rule is expected to 

improve railroad safety by ensuring that 

all covered employees can safely vacate 

the exposed area if a PIH material 

release were to occur. The primary 

benefits include heightened safety for 

crewmembers and, as a result, earlier 

awareness/notification to the public of 

PIH releases. Implementation of the 

SNPRM should mitigate the injuries of 

covered employees from PIH material 

releasing after an accident/incident. 

During a 10-year period, this analysis 

finds $43,110 (PV, 7 percent) in safety 

benefits that could accrue through 

injury prevention. 

Category 10-Year benefits 

($) 

Present value 7% 

($) 

Present value 3% 

($) 

Annualized 7% 

($) 

Annualized 3% 

($) 

Total Benefits from Injury Prevention ................ $63,720 $43,110 $53,520 $6,138 $6,274 

Although the costs associated with 

implementation of the proposed rule 

would almost certainly exceed the 

benefits, under RSIA, FRA must require 

railroads to: (1) ensure that EEBAs 

affording suitable ‘‘head and neck 

coverage with respiratory protection’’ 

are provided ‘‘for all crewmembers’’ in 

a locomotive cab on a freight train 

‘‘carrying hazardous materials that 

would pose an inhalation hazard in the 

event of release;’’ (2) provide a place for 

convenient storage of EEBAs in the 

locomotive that will allow 

‘‘crewmembers to access such apparatus 

quickly;’’ (3) maintain EEBAs ‘‘in proper 

working condition;’’ and (4) provide 

crewmembers with appropriate 

instruction in the use of EEBAs. 

However, FRA would not require a 

particular method of deployment of 

EEBAs, but rather leave that to the 

railroads’ discretion. In addition, 

railroads would be allowed to select the 

type of apparatus to use in their 

program (closed-circuit or open-circuit). 

This allows railroads to deploy EEBAs 

in the manner best suited to their 

operation. 

B. Regulatory Flexibility Act and 

Executive Order 13272 

The Regulatory Flexibility Act of 1980 

(5 U.S.C. 601 et seq.) and E.O. 13272 (67 

FR 53461, Aug. 16, 2002) require agency 

review of proposed and final rules to 

assess their impacts on small entities. 

An agency must prepare an IRFA unless 

it determines and certifies that a rule, if 

promulgated, would not have a 

significant economic impact on a 

substantial number of small entities. 

FRA has not determined whether this 

proposed rule would have a significant 

economic impact on a substantial 

number of small entities. Therefore, 

FRA prepared this IRFA to facilitate 

public comment on the potential small 

business impacts of the requirements in 

this SNPRM. 

FRA invites all interested parties to 

submit data and information regarding 

the potential economic impact on small 

entities that would result from adoption 

of the proposals in this SNPRM. FRA 

particularly encourages small entities 

that could potentially be impacted by 

the proposed rule to participate in the 

public comment process. FRA will 

consider all information and comments 

received in the public comment process 

when making a determination of the 

economic impact on small entities. 

1. Reasons for Considering Agency 

Action 

Agency action is required under 

Section 413 of the RSIA. 

2. A Succinct Statement of the 

Objectives of, and the Legal Basis for, 

the Proposed Rule 

This proposed rule would help reduce 

the risk of injury to crewmembers due 

to inhalation of PIH. Section 413 of the 

RSIA requires the Secretary of 

Transportation to promulgate 

regulations that require railroads to 

provide emergency escape breathing 

apparatus suitable to provide head and 

neck coverage with respiratory 

protection for all covered employees. 

3. A Description of, and Where Feasible, 

an Estimate of the Number of Small 

Entities to Which the Proposed Rule 

Would Apply 

The Regulatory Flexibility Act of 1980 

requires a review of proposed and final 

rules to assess their impact on small 

entities, unless the Secretary certifies 

that the rule would not have a 

significant economic impact on a 

substantial number of small entities. 

‘‘Small entity’’ is defined in 5 U.S.C. 

601 as a small business concern that is 

independently owned and operated and 

is not dominant in its field of operation. 

The U.S. Small Business Administration 

(SBA) has authority to regulate issues 

related to small businesses, and 

stipulates in its size standards that a 

‘‘small entity’’ in the railroad industry is 

a for profit ‘‘line-haul railroad’’ that has 

fewer than 1,500 employees, a ‘‘short 

line railroad’’ with fewer than 1,500 

employees, a ‘‘commuter rail system’’ 

with annual receipts of less than $16.5 

million dollars, or a contractor that 

performs support activities for railroads 

with annual receipts of less than $16.5 

million.24

Federal agencies may adopt their own 

size standards for small entities in 

consultation with SBA and in 

conjunction with public comment. 

Under that authority, FRA published a 

statement of agency policy that formally 

establishes ‘‘small entities’’ or ‘‘small 

businesses’’ as railroads, contractors, 

and hazardous materials shippers that 

meet the revenue requirements of a 

Class III railroad as set forth in 49 CFR 


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25The Class III railroad revenue threshold is 

$40.4 million or less, for 2021. (The Class II railroad 

threshold is between $40.4 million and $900 

million.) See Surface Transportation Board (STB), 

available at https://www.stb.gov/newscommunications/latest-news/pr-21-16/. 

26American Short Line and Regional Railroad 

Association, Short Line and Regional Railroad Facts 

and Figures, p. 10 (2017 pamphlet). 

1201.1–1, which is $20 million or less 

in inflation-adjusted annual revenues,25

and commuter railroads or small 

Governmental jurisdictions that serve 

populations of 50,000 or less. See 68 FR 

24891 (May 9, 2003) (codified at 

Appendix C to 49 CFR part 209). FRA 

is using this definition for the proposed 

rule. 

When shaping the proposed rule, FRA 

considered the impact that the proposed 

rule would have on small entities. The 

proposed rule would be applicable to all 

railroads with locomotives that 

transport PIH materials. FRA estimates 

there are 733 Class III railroads that 

operate on the general system. These 

railroads are of varying size, with some 

belonging to larger holding companies. 

FRA is aware of 110 Class III railroads 

that transport PIH materials. The 

remaining Class III railroads do not 

transport PIH, and thus would not be 

impacted by this proposed rule. 

4. A Description of the Projected 

Reporting, Recordkeeping, and Other 

Compliance Requirements of the Rule, 

Including an Estimate of the Class of 

Small Entities That Would Be Subject to 

the Requirements and the Type of 

Professional Skill Necessary for 

Preparation of the Report or Record 

Railroads must keep records 

pertaining to pre-trip and periodic 

inspections of EEBAs. The information 

about each pre-trip and periodic 

inspection must be accurately recorded 

on a tag or label that is attached to the 

storage facility for the EEBA or kept 

with the EEBA or in inspection reports 

stored as paper or electronic files. 

Railroads would also be required to 

keep training records. Training records 

must be kept at system and division 

headquarters. A railroad must also make 

all records available for inspection and 

copying by representatives of FRA upon 

request. The section permits that the 

required records can be kept in 

electronic form. 

The type of professional skills needed 

by an employee responsible for 

submitting a special approval request 

includes the ability to plan and organize 

work. Such an employee would also 

need good verbal and written 

communication skills and attention to 

detail. 

5. Summary of Class III Railroad Costs 

Class III Railroads would have all the 

same cost components as larger 

railroads, reduced for the estimated 

number of locomotives and employees 

on Class III railroads. 

The following table shows the 

annualized cost for Class III railroads 

over the 10-year analysis period. The 

total estimated 10-year costs for Class III 

railroads would be $1.0 million (PV, 7 

percent) and the annualized cost for all 

Class III railroads would be $149,326 

(PV, 7 percent). 

Total 10-Year and Annualized Costs, 

Class III Railroads 

Category Present value 

(7%) 

Annualized 

(7%) 

EEBA and Installation .............................................................................................................................................. 716,580 102,025 

Training .................................................................................................................................................................... 232,950 33,167 

Records .................................................................................................................................................................... 99,272 14,134 

Total .................................................................................................................................................................. 1,048,802 149,326 

The industry trade organization 

representing small railroads, ASLRRA, 

reports the average freight revenue per 

Class III railroad is $4.75 million.26 The 

following table summarizes the average 

annual costs and revenue for Class III 

railroads. 

Average Class III Railroads’ Costs and 

Revenue 

Total cost for class III railroads, annualized 7% 

Number of 

class III 

railroads 

with PIH 

Average 

annual cost 

per class III 

railroad 

($) 

Average class 

III annual 

revenue 

($) 

Average 

annual cost 

as a percent 

of revenue 

a b c = a ÷ b d e = c ÷ d 

$149,326 .......................................................................................................... 110 $1,358 $4,750,000 0.03% 

The average annual cost for a Class III 

railroad impacted by this rule would be 

$1,358. This represents a small 

percentage (0.03%) of the average 

annual revenue for a Class III railroad. 

The estimates above show that the 

burden on Class III railroads would not 

be a significant economic burden. FRA 

requests comments on this estimate and 

will consider all comments when 

making a determination for the final 

rule. 

6. Identification, to the Extent 

Practicable, of All Relevant Federal 

Rules That May Duplicate, Overlap, or 

Conflict With the Proposed Rule 

FRA is not aware of any relevant 

Federal rule that duplicates, overlaps 

with, or conflicts with this SNPRM. 

7. A Description of Significant 

Alternatives to the Rule 

One alternative to this rule is the 

baseline approach. The baseline 

alternative (no action) would not fulfill 

requirements under RSIA. This 

proposed rule would allow railroads a 

significant amount of discretion when 

determining their plan for the 

implementation of EEBAs. For example, 

to reduce costs, FRA has allowed 

railroads to choose either open or 

closed-circuit units. Railroads may also 

choose any of the options described 

within this analysis or create any option 

that would still allow the railroad to be 

in compliance with the rule. 


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27FRA will be using the OMB control number 

(OMB No. 2130–0620) that was issued when the 

previous NPRM was issued in 2010 for this 

information collection request. 

28 44 U.S.C. 3501 et seq. 

C. Federalism 

Executive Order 13132, ‘‘Federalism’’ 

(64 FR 43255, Aug. 10, 1999), requires 

FRA to develop an accountable process 

to ensure ‘‘meaningful and timely input 

by State and local officials in the 

development of regulatory policies that 

have federalism implications.’’ ‘‘Policies 

that have federalism implications’’ are 

defined in the Executive Order to 

include regulations that have 

‘‘substantial direct effects on the States, 

on the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government.’’ Under Executive 

Order 13132, the agency may not issue 

a regulation with federalism 

implications that imposes substantial 

direct compliance costs and that is not 

required by statute, unless the Federal 

government provides the funds 

necessary to pay the direct compliance 

costs incurred by State and local 

governments, or the agency consults 

with State and local government 

officials early in the process of 

developing the regulation. Where a 

regulation has federalism implications 

and preempts State law, the agency 

seeks to consult with State and local 

officials in the process of developing the 

regulation. 

This proposed rule has been analyzed 

in accordance with the principles and 

criteria contained in Executive Order 

13132. FRA has determined that the 

proposed rule will not have substantial 

direct effects on the States, on the 

relationship between the national 

government and the States, nor on the 

distribution of power and 

responsibilities among the various 

levels of government. In addition, FRA 

has determined that this proposed rule 

will not impose substantial direct 

compliance costs on State and local 

governments. Therefore, the 

consultation and funding requirements 

of Executive Order 13132 do not apply. 

However, this proposed rule could have 

preemptive effect by operation of law 

under certain provisions of the Federal 

railroad safety statutes, specifically a 

provision of the former FRSA, repealed 

and recodified at 49 U.S.C. 20106, and 

the former LBIA, repealed and 

recodified at 49 U.S.C. 20701–20703. 

See Public Law 103–272 (July 5, 1994). 

A provision of the former FRSA 

provides that States may not adopt or 

continue in effect any law, regulation, or 

order related to railroad safety or 

security that covers the subject matter of 

a regulation prescribed or order issued 

by the Secretary of Transportation (with 

respect to railroad safety matters) or the 

Secretary of Homeland Security (with 

respect to railroad security matters), 

except when the State law, regulation, 

or order qualifies under the ‘‘local safety 

or security hazard’’ exception to section 

20106. Moreover, the former LBIA has 

been interpreted by the Supreme Court 

as preempting the entire field of 

locomotive safety. See Napier v. 

Atlantic Coast R.R., 272 U.S. 605, 611; 

47 S.Ct. 207, 209 (1926). 

In sum, FRA has analyzed this 

proposed rule in accordance with the 

principles and criteria contained in 

Executive Order 13132. As explained 

above, FRA has determined that this 

proposed rule has no federalism 

implications, other than the possible 

preemption of State laws under a 

provision of the former FRSA and under 

the former LBIA. Accordingly, FRA has 

determined that preparation of a 

federalism summary impact statement 

for this proposed rule is not required. 

D. International Trade Impact 

Assessment 

The Trade Agreement Act of 1979 

prohibits Federal agencies from 

engaging in any standards or related 

activities that create unnecessary 

obstacles to the foreign commerce of the 

United States. Legitimate domestic 

objectives, such as safety, are not 

considered unnecessary obstacles. The 

statute also requires consideration of 

international standards and where 

appropriate, that they be the basis for 

U.S. standards. This proposed 

rulemaking is purely domestic in nature 

and is not expected to affect trade 

opportunities for U.S. firms doing 

business overseas or for foreign firms 

doing business in the United States. 

E. Paperwork Reduction Act 

The information collection 

requirements in this proposed rule are 

being submitted for approval to OMB27

under the Paperwork Reduction Act of 

1995.28 The information collection 

requirements and the estimated time to 

fulfill each requirement are as follows: 

CFR section Respondent universe Total annual responses Average time 

per response 

Total annual 

burden 

(hours) 

Total cost 

equivalent 

(A) (B) (C) = A * B (D) = C * wage 29

227.201(a)—Criteria for 

requiring availability of 

EEBAs in the locomotive cab—Employees designated by the 

railroad in writing.

128 railroads ................ 600 designations ......... 3 minutes ..................... 30.00 $2,337.30 

227.203(c)—Criteria for 

selecting EEBAs— 

Railroads to document 

the adequacy of the 

EEBA and provide 

such documentation 

for inspection to FRA 

upon request.

128 railroads ................ 43 written justifications 2 hours ......................... 86.00 $6,700.26 


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CFR section Respondent universe Total annual responses Average time 

per response 

Total annual 

burden 

(hours) 

Total cost 

equivalent 

(A) (B) (C) = A * B (D) = C * wage 29

227.205(c)—Storage facilities for EEBAs— 

Railroads to keep a 

copy of the instructions at their system 

headquarters for FRA 

inspection.

128 railroads ................ 43 instruction copies .... 1 minute ....................... .72 $56.10 

227.207(a)—Railroad’s 

program for inspection, maintenance, 

and replacement of 

EEBAs; requirements 

for procedures—Written program for inspection, maintenance, and replacement of EEBAs.

The paperwork burden for this requirement is covered under § 227.211. 

—(b) Inspection 

procedures and 

records—Tag or 

label that is attached to the 

storage facility for 

the EEBA or kept 

with the EEBA or 

in inspection reports stored as 

paper or electronic files.

128 railroads ................ 10,000 inspection 

records.

30 seconds .................. 83.33 $6,492.24 

—(d) Records of returns, maintenance, repair, 

and replacement—Recordkeeping and retention.

128 railroads ................ 180 records .................. 30 seconds .................. 1.50 $116.87 

227.209(a)—Railroad’s 

program of instruction 

on EEBAs—Written 

program of instruction 

on EEBAs.

The paperwork burden for this requirement is covered under § 227.211. 

—(d) Records of instruction—Railroad to maintain 

a record of employees provided 

instruction in 

compliance with 

this section and 

retain these 

records for three 

years 30.

128 railroads ................ 20,000 initial training 

records.

3 minutes ..................... 1,000.00 $62,670.00 

—(d) Records of intervals for periodic instruction.128 railroads ................ 2,000 refresher or new 

hire training records.

3 minutes ..................... 100.00 $6,267.00 

227.211(a), (b) and 

(d)—Requirement to 

implement a general 

EEBA program; criteria for placing employees in the general 

EEBA program— 

Comprehensive written program.

128 railroads ................ 45.67 written programs 

(2.33 Class I railroads’ programs + 

42.33 Class II and III 

railroads’ programs + 

1 generic program 

developed by 

ASLRRA).

80 hours .......................

+ 2 hours .....................

+ 80 hours ...................

351.33 $30,167.83 


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29The dollar equivalent cost is derived from the 

Surface Transportation Board’s Full Year Wage A&B 

data series using the appropriate employee group 

hourly wage rate that includes a 75-percent 

overhead charge. 30The associated burden related to employees’ 

training are calculated under the economic cost of 

the regulation. 

31Totals may not add up due to rounding. 

CFR section Respondent universe Total annual responses Average time 

per response 

Total annual 

burden 

(hours) 

Total cost 

equivalent 

(A) (B) (C) = A * B (D) = C * wage 29

—(c) Records of 

positions or individuals or both in 

the railroad’s general EEBA—Designated employees by the railroad to be placed 

in its general 

EEBA program 

pursuant to 

§ 227.211(b)(4).

The paperwork burden for this requirement is covered under §§ 227.201 and 227.209. 

227.213—Employee’s 

responsibilities—Notification to railroad of 

EEBA failures and of 

use incidents in a 

timely manner.

128 railroads ................ 1 notification ................ 1 minute ....................... .02 $1.25 

227.215(b)—Recordkeeping in general— 

Electronic records to 

meet FRA requirements.

18 railroads .................. 6 modified systems ...... 1 hour .......................... 6.00 $467.46 

—(b)(5) Paper copies of electronic 

records and 

amendments to 

those records are 

made available 

for inspection and 

copying or 

photocopying by 

representatives of 

FRA.

128 railroads ................ 43 copies ..................... 15 minutes ................... 10.75 $837.53 

Total 31 ............ 128 railroads ................ 32,962 responses ........ N/A ............................... 1,670 $116,114 

All estimates include the time for 

reviewing instructions; searching 

existing data sources; gathering or 

maintaining the needed data; and 

reviewing the information. Pursuant to 

44 U.S.C. 3506(c)(2)(B), FRA solicits 

comments concerning: whether these 

information collection requirements are 

necessary for the proper performance of 

the functions of FRA, including whether 

the information has practical utility; the 

accuracy of FRA’s estimates of the 

burden of the information collection 

requirements; the quality, utility, and 

clarity of the information to be 

collected; and whether the burden of 

collection of information on those who 

are to respond, including through the 

use of automated collection techniques 

or other forms of information 

technology, may be minimized. 

Organizations and individuals desiring 

to submit comments on the collection of 

information requirements or to request a 

copy of the paperwork package 

submitted to OMB should contact Ms. 

Arlette Mussington, Information 

Collection Clearance Officer, at email: 

arlette.mussington@dot.gov or 

telephone: (571) 609–1285 or Ms. 

Joanne Swafford, Information Collection 

Clearance Officer, at email: 

joanne.swafford@dot.gov or telephone: 

(757) 897–9908. 

OMB is required to make a decision 

concerning the collection of information 

requirements contained in this proposed 

rule between 30 and 60 days after 

publication of this document in the 

Federal Register. Therefore, a comment 

to OMB is best assured of having its full 

effect if OMB receives it within 30 days 

of publication. The final rule will 

respond to any OMB or public 

comments on the information collection 

requirements contained in this proposal. 

FRA is not authorized to impose a 

penalty on persons for violating 

information collection requirements that 

do not display a current OMB control 

number, if required. 

F. Compliance With the Unfunded 

Mandates Reform Act of 1995 

Pursuant to Section 201 of the 

Unfunded Mandates Reform Act of 1995 

(Pub. L. 104–4, 2 U.S.C. 1531), each 

Federal agency ‘‘shall, unless otherwise 

prohibited by law, assess the effects of 

Federal regulatory actions on State, 

local, and tribal governments, and the 

private sector (other than to the extent 

that such regulations incorporate 

requirements specifically set forth in 

law).’’ Section 202 of the Act (2 U.S.C. 

1532) further requires that ‘‘before 

promulgating any general notice of 

proposed rulemaking that is likely to 

result in the promulgation of any rule 

that includes any Federal mandate that 

may result in expenditure by State, 

local, and tribal governments, in the 

aggregate, or by the private sector, of 


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32 42 U.S.C. 4321 et seq. 

33 40 CFR parts 1500–1508. 

34 23 CFR part 771. 

35 40 CFR 1508.4. 

36See 23 CFR 771.116(c)(15) (categorically 

excluding ‘‘[p]romulgation of rules, the issuance of 

policy statements, the waiver or modification of 

existing regulatory requirements, or discretionary 

approvals that do not result in significantly 

increased emissions of air or water pollutants or 

noise’’). 

37 23 CFR 771.116(b). 

38 23 CFR 771.116(c)(15). 

39See 54 U.S.C. 306108. 

40See Department of Transportation Act of 1966, 

as amended (Pub. L. 89–670, 80 Stat. 931); 49 U.S.C. 

303. 41 86 FR 7619 (Feb. 1, 2021). 

42 59 FR 7629 (Feb. 16, 1994). 43Available at: https://www.transportation.gov/ 

sites/dot.gov/files/Final-for-OST-C-210312-003- 

signed.pdf. 

$100,000,000 or more (adjusted 

annually for inflation) in any one year, 

and before promulgating any final rule 

for which a general notice of proposed 

rulemaking was published, the agency 

shall prepare a written statement’’ 

detailing the effect on State, local, and 

tribal governments and the private 

sector. This proposed rule will not 

result in such an expenditure, and thus 

preparation of such a statement is not 

required. 

G. Environmental Assessment 

FRA has evaluated this proposed rule 

in accordance with the National 

Environmental Policy Act 32 (NEPA), the 

Council of Environmental Quality’s 

NEPA implementing regulations,33 and 

FRA’s NEPA implementing 

regulations.34 FRA has determined that 

this proposed rule is categorically 

excluded from environmental review 

and therefore does not require the 

preparation of an environmental 

assessment (EA) or environmental 

impact statement (EIS). Categorical 

exclusions (CEs) are actions identified 

in an agency’s NEPA implementing 

procedures that do not normally have a 

significant impact on the environment 

and therefore do not require either an 

EA or EIS.35 Specifically, FRA has 

determined that this proposed rule is 

categorically excluded from detailed 

environmental review.36

This rulemaking would not directly or 

indirectly impact any environmental 

resources and would not result in 

significantly increased emissions of air 

or water pollutants or noise. In 

analyzing the applicability of a CE, FRA 

must also consider whether unusual 

circumstances are present that would 

warrant a more detailed environmental 

review.37 FRA has concluded that no 

such unusual circumstances exist with 

respect to this proposed rule and it 

meets the requirements for categorical 

exclusion.38

Pursuant to Section 106 of the 

National Historic Preservation Act and 

its implementing regulations, FRA has 

determined this undertaking has no 

potential to affect historic properties.39

FRA has also determined that this 

rulemaking does not approve a project 

resulting in a use of a resource protected 

by Section 4(f).40 Further, FRA reviewed 

this proposed rulemaking and found it 

consistent with Executive Order 14008, 

Tackling the Climate Crisis at Home and 

Abroad.41

H. Energy Impact 

Executive Order 13211 requires 

Federal agencies to prepare a Statement 

of Energy Effects for any ‘‘significant 

energy action.’’ (66 FR 28355, May 22, 

2001). FRA evaluated this proposed rule 

in accordance with Executive Order 

13211 and determined that this 

proposed rule is not a ‘‘significant 

energy action’’ within the meaning of 

Executive Order 13211. 

I. Privacy Act 

In accordance with 5 U.S.C. 553(c), 

DOT solicits comments from the public 

to better inform its rulemaking process. 

DOT posts these comments, without 

edit, including any personal information 

the commenter provides, to http://

www.regulations.gov, as described in 

the system of records notice, which can 

be reviewed at http://www.dot.gov/ 

privacy. To facilitate comment tracking 

and response, FRA encourages 

commenters to provide their name, or 

the name of their organization; however, 

submission of names is completely 

optional. Whether or not commenters 

identify themselves, all timely 

comments will be fully considered. If 

you wish to provide comments 

containing proprietary or confidential 

information, please contact the agency 

for alternate submission instructions. 

J. Analysis Under 1 CFR Part 51 

As required by 1 CFR 51.5, FRA has 

summarized the standards it is 

incorporating by reference in the 

section-by-section analysis in this 

preamble. These standards summarized 

herein, are reasonably available to all 

interested parties for inspection. Copies 

can be obtained from the International 

Organization for Standardization, 

Chemin de Blandonnet 8, CP 401, 1214 

Vernier, Geneva, Switzerland, telephone 

+41–22–749–08–88 or https://

www.iso.org/standard/50245.htmland 

from the British Standards Institution, 

12110 Sunset Hills Road, Suite 200, 

Reston, VA 20190–5902, telephone: 

800–862–4977 or http://

shop.bsigroup.com. They are also 

available for inspection at the Federal 

Railroad Administration, 1200 New 

Jersey Avenue SE, Washington, DC 

20590; phone: (202) 493–6052; email: 

FRALegal@dot.gov. 

K. Executive Order 12898 

(Environmental Justice) 

Executive Order 12898, ‘‘Federal 

Actions to Address Environmental 

Justice in Minority Populations and 

Low-Income Populations’’ 42 and DOT 

Order 5610.2C 43 require DOT agencies 

to achieve environmental justice as part 

of their mission by identifying and 

addressing, as appropriate, 

disproportionately high and adverse 

human health or environmental effects, 

including interrelated social and 

economic effects, of their programs, 

policies, and activities on minority 

populations and low-income 

populations. The DOT Order instructs 

DOT agencies to address compliance 

with Executive Order 12898 and 

requirements within the DOT Order in 

rulemaking activities, as appropriate, 

and also requires consideration of the 

benefits of transportation programs, 

policies, and other activities where 

minority populations and low-income 

populations benefit, at a minimum, to 

the same level as the general population 

as a whole when determining impacts 

on minority and low-income 

populations. FRA has evaluated this 

proposed rule under Executive Order 

12898 and the DOT Order and has 

determined it would not cause 

disproportionately high and adverse 

human health and environmental effects 

on minority populations or low-income 

populations. 

L. Executive Order 13175 (Tribal 

Consultation) 

FRA has evaluated this proposed rule 

in accordance with the principles and 

criteria contained in Executive Order 

13175, Consultation and Coordination 

with Indian Tribal Governments, dated 

November 6, 2000. The proposed rule 

would not have a substantial direct 

effect on one or more Indian tribes, 

would not impose substantial direct 

compliance costs on Indian tribal 

governments, and would not preempt 

tribal laws. Therefore, the funding and 

consultation requirements of Executive 

Order 13175 do not apply, and a tribal 

summary impact statement is not 

required. 

List of Subjects in 49 CFR Part 227 

Hazardous materials transportation, 

Incorporation by reference, Locomotive 

noise control, Occupational safety and 

health, Penalties, Railroad employees, 


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Railroad safety, Reporting and 

recordkeeping requirements. 

The Proposed Rule 

For the reasons discussed in the 

preamble, FRA proposes to amend part 

227 of chapter II, subtitle B of title 49 

of the Code of Federal Regulations as 

follows: 

PART 227—OCCUPATIONAL SAFETY 

AND HEALTH IN THE LOCOMOTIVE 

CAB 

■ 1. The authority citation for part 227 

is revised to read as follows: 

Authority: 49 U.S.C. 20103, 20103 note, 

20166, 20701–20703, 21301, 21302, 21304; 

28 U.S.C. 2461 note; and 49 CFR 1.89. 

■ 2. Revise the heading for part 227 to 

read as set forth above. 

■ 3. Revise § 227.1 to read as follows: 

§ 227.1 Purpose and scope. 

(a) General. The purpose of this part 

is to protect the occupational safety and 

health of certain employees who are 

exposed to occupational dangers while 

in the cab of the locomotive. This part 

prescribes minimum Federal safety and 

health standards for certain locomotive 

cab occupants. This part does not 

restrict a railroad or railroad contractor 

from adopting and enforcing additional 

or more stringent requirements. 

(b) Subpart B. The purpose of subpart 

B is to protect the occupational safety 

and health of employees whose 

predominant noise exposure occurs in 

the locomotive cab. This subpart 

prescribes minimum Federal safety and 

health noise standards for locomotive 

cab occupants. 

(c) Subpart C. The purpose of subpart 

C is to protect the occupational safety 

and health of train employees and 

certain other employees in the cab of the 

locomotive of a freight train that is 

transporting a PIH material that, if 

released due to a railroad accident/ 

incident, would pose an inhalation 

hazard to the occupants. In particular, 

subpart C is intended to protect these 

employees from the risk of exposure to 

the material while they are located in, 

or during escape from, the locomotive 

cab. 

■ 4. Revise paragraph (a), the 

introductory text of paragraph (b), and 

paragraph (b)(5), and add paragraphs (c) 

and (d) to read as follows: 

§ 227.3 Application. 

(a) Except as provided in paragraph 

(b) of this section, Subpart B of this part 

applies to all railroads and contractors 

to railroads. 

(b) Subpart B of this part does not 

apply to— 

* * * * * 

(5) Foreign railroad operations that 

meet the following conditions: 

Employees of the foreign railroad have 

a primary reporting point outside of the 

U.S. but are operating trains or 

conducting switching operations in the 

U.S.; and the government of that foreign 

railroad has implemented requirements 

for hearing conservation for railroad 

employees; the foreign railroad 

undertakes to comply with those 

requirements while operating within the 

U.S.; and FRA’s Associate 

Administrator for Railroad Safety/Chief 

Safety Officer determines that the 

foreign requirements are consistent with 

the purpose and scope of subpart B of 

this part. A ‘‘foreign railroad’’ refers to 

a railroad that is incorporated in a place 

outside the U.S. and is operated out of 

a foreign country but operates for some 

distance in the U.S. 

(c) Except as provided in paragraph 

(d) of this section, subpart C of this part 

applies to any railroad that operates a 

freight train that transports a PIH 

material, including a residue of such a 

PIH material, on standard gage track that 

is part of the general railroad system of 

transportation. 

(d) Subpart C of this part does not 

apply to a railroad that operates only on 

track inside an installation that is not 

part of the general railroad system of 

transportation. 

■ 5. In § 227.5, add, in alphabetical 

order, definitions for ‘‘accident/ 

incident’’, ‘‘Associate Administrator for 

Railroad Safety/Chief Safety Officer’’, 

‘‘atmosphere immediately dangerous to 

life or health (IDLH)’’, ‘‘atmospheresupplying device’’, ‘‘deadheading’’, 

‘‘division headquarters’’, ‘‘emergency 

escape breathing apparatus or EEBA’’, 

‘‘foreign railroad’’, ‘‘freight car’’, ‘‘freight 

train’’, ‘‘hazardous material’’, 

‘‘hazardous employee’’, ‘‘In service or 

in-service’’, ‘‘intermodal container’’, 

‘‘ISO’’, ‘‘NIOSH’’, ‘‘PIH material’’, 

‘‘residue’’, ‘‘state’’, ‘‘switching service’’, 

‘‘system headquarters’’, ‘‘train 

employee’’, and ‘‘United States’’ to read 

as follows: 

§ 227.5 Definitions. 

As used in this part— 

Accident/incident has the meaning 

that is assigned to that term by § 225.5 

of this chapter. 

* * * * * 

Associate Administrator for Railroad 

Safety/Chief Safety Officer means the 

Associate Administrator for Railroad 

Safety/Chief Safety Officer, Federal 

Railroad Administration, 1200 New 

Jersey Avenue SE, Washington, DC 

20590. 

Atmosphere immediately dangerous 

to life or health (IDLH) means an 

atmosphere that poses an immediate 

threat to life, would cause irreversible 

adverse health effects, or would impair 

an individual’s ability to escape from a 

dangerous atmosphere. Atmospheresupplying device means a respirator that 

supplies the respirator user with 

breathing air from a source that is 

independent of the ambient atmosphere. 

Such devices include supplied-air 

respirators and self-contained breathing 

apparatus units. 

* * * * * 

Deadheading means the physical 

relocation of a train employee from one 

point to another as a result of a railroadissued oral or written directive. 

Division headquarters means the 

location designated by the railroad 

where a high-level operating manager 

(e.g., a superintendent, division 

manager, or equivalent), who has 

jurisdiction over a portion of the 

railroad, has an office. 

Emergency escape breathing 

apparatus or EEBA means an 

atmosphere-supplying respirator device 

that is designed for use only during 

escape from a hazardous atmosphere. 

* * * * * 

Freight car means a vehicle designed 

to transport freight, or railroad 

personnel, by rail and includes, but is 

not limited to, a— 

(1) Box car; 

(2) Refrigerator car; 

(3) Ventilator car; 

(4) Stock car; 

(5) Gondola car; 

(6) Hopper car; 

(7) Flat car; 

(8) Special car; 

(9) Caboose; 

(10) Tank car; and 

(11) Yard car. 

Freight train means one or more 

locomotives coupled with one or more 

freight cars, except during switching 

service. 

Hazardous material has the meaning 

assigned to that term by § 171.8 of this 

title. 

Hazmat employee has the meaning 

assigned to that term by § 171.8 of this 

title. 

* * * * * 

In service or in-service when used in 

connection with a freight train, means 

each freight train subject to this part 

unless the train— 

(1) Is in a repair shop or on a repair 

track; 

(2) Is on a storage track and its cars 

are empty; or 


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(3) Has been delivered in interchange 

but has not been accepted by the 

receiving carrier. 

Intermodal container means a freight 

container designed and constructed to 

permit it to be used interchangeably in 

two or more modes of transportation. 

ISO means the International 

Organization for Standardization, a 

network of national standards institutes 

in 162 countries, including the United 

States through the American National 

Standards Institute, that develops 

international standards to assist in 

ensuring the safe performance of a wide 

range of devices, including EEBAs. 

* * * * * 

NIOSH means the National Institute 

for Occupational Safety and Health, a 

Federal agency responsible for 

conducting research and making 

recommendations for the prevention of 

work-related injury and illness, which is 

part of the Centers for Disease Control 

and Prevention in the U.S. Department 

of Health and Human Services and 

which certifies industrial-type 

respirators in accordance with the 

NIOSH respiratory regulations (42 CFR 

part 84 (June 8, 1995)). 

* * * * * 

PIH material means any of the 

hazardous materials that are a gas, 

liquid, or other material defined as a 

‘‘material poisonous by inhalation’’ by 

§ 171.8 of this title. 

* * * * * 

Residue has the meaning assigned to 

the term by § 171.8 of this title. 

* * * * * 

State means a State of the United 

States of America or the District of 

Columbia. 

* * * * * 

Switching service means the 

classification of freight cars according to 

commodity or destination; assembling 

of cars for train movements; changing 

the position of cars for purposes of 

loading, unloading, or weighing; placing 

of locomotives and cars for repair or 

storage; or moving of rail equipment in 

connection with work service that does 

not constitute a freight train movement. 

System headquarters means the 

location designated by the railroad as 

the general office for the railroad 

system. 

* * * * * 

Train employee means an individual 

who is engaged in or connected with the 

movement of a train, including a 

hostler, as defined in 49 U.S.C. 21101. 

* * * * * 

United States means all of the States 

and the District of Columbia. 

■ 6. Remove and reserve § 227.7. 

§ 227.7 [Removed and Reserved] 

■ 7. Amend § 227.15 by revising 

paragraph (b) to read as follows: 

§ 227.15 Information collection. 

* * * * * 

(b) The information collection 

requirements are found in the following 

sections: §§ 227.13, 227.103, 227.107, 

227.109, 227.111, 227.117, 227.119, 

227.121, 227.201, 227.203, 227.205, 

227.207, 227.209, 227.211, 227.213, and 

227.215. 

■ 8. Amend § 227.103 by revising 

paragraphs (a)(1) and (a)(2) to read as 

follows: 

§ 227.103 Noise monitoring program. 

(a) * * * 

(1) Class I, passenger, and commuter 

railroads no later than February 26, 

2008. 

(2) Railroads with 400,000 or more 

annual employee hours that are not 

Class I, passenger, or commuter 

railroads no later than August 26, 2008. 

* * * * * 

■ 9. Amend § 227.109 by revising 

paragraph (e)(2)(i) to read as follows: 

§ 227.109 Audiometric testing program. 

* * * * * 

(e) * * * 

(2) * * * 

(i) For all employees without a 

baseline audiogram as of February 26, 

2007, Class I, passenger, and commuter 

railroads, and railroads with 400,000 or 

more annual employee hours shall 

establish a valid baseline audiogram by 

February 26, 2009; and railroads with 

less than 400,000 annual employee 

hours shall establish a valid baseline 

audiogram by February 26, 2010. 

* * * * * 

■ 10. Amend § 227.119 by revising 

paragraph (b)(2) to read as follows: 

§ 227.119 Training program. 

* * * * * 

(b) * * * 

(2) For employees hired on or before 

February 26, 2007, by Class I, passenger, 

and commuter railroads, and railroads 

with 400,000 or more annual employee 

hours, by no later than February 26, 

2009; 

* * * * * 

■ 11. Add subpart C to part 227 to read 

as follows: 

Subpart C—Emergency Escape Breathing 

Apparatus Standards 

Sec. 

227.201 Criteria for requiring availability of 

EEBAs in the locomotive cab. 

227.203 Criteria for selecting EEBAs. 

227.205 Storage facilities for EEBAs. 

227.207 Railroad’s program for inspection, 

maintenance, and replacement of EEBAs; 

requirements for procedures. 

227.209 Railroad’s program of instruction 

on EEBAs. 

227.211 Requirement to implement a 

general EEBA program; criteria for 

placing employees in the general EEBA 

program. 

227.213 Employee’s responsibilities. 

227.215 Recordkeeping in general. 

227.217 Compliance dates. 

227.219 Incorporation by reference. 

Subpart C—Emergency Escape 

Breathing Apparatus Standards 

§ 227.201 Criteria for requiring availability 

of EEBAs in the locomotive cab. 

(a) In general. (1)(i) Except as 

specified in paragraph (b) of this 

section, a railroad is required to provide 

an EEBA to each of the following of its 

employees while the employee is 

located in the cab of a locomotive of an 

in-service freight train transporting a 

PIH material, including a residue of a 

PIH material: 

(1) Any train employee; 

(2) Any direct supervisor of the train 

employee; 

(3) Any employee who is 

deadheading; and 

(4) Any other employee designated by 

the railroad in writing and at the 

discretion of the railroad. 

(ii) Each EEBA provided to an 

employee identified in paragraph 

(a)(1)(i) of this section must meet the 

EEBA-selection criteria of § 227.203 and 

must have been inspected and be in 

working order pursuant to the 

requirements of § 227.207 at the time 

that the EEBA is provided to the 

employee. 

(2) Except as specified in paragraph 

(b) of this section, a railroad shall not 

use a locomotive to transport a PIH 

material, including a residue of a PIH 

material, in an in-service freight train 

unless each of the employees identified 

in paragraph (a)(1)(i) of this section 

while occupying a locomotive cab of the 

train has access to an EEBA that satisfies 

the EEBA selection criteria in § 227.203 

and that has been inspected and is in 

working order pursuant to the 

requirements in § 227.207. 

(b) Exceptions. (1) A railroad is not 

required to provide an EEBA, or make 

accessible an EEBA, to an employee 

while in the locomotive cab of an inservice freight train transporting a PIH 

material if all of the PIH materials in the 

train, including a residue of a PIH 

material, are being transported in one or 

more intermodal containers. 

(2) This subpart does not apply to any 

of the following: 

(i) Employees who are moving a 

locomotive or group of locomotives 

coupled to a car or group of cars 

transporting a PIH material, including a 


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residue of a PIH material, only within 

the confines of a locomotive repair or 

servicing area. 

(ii) Employees who are moving a 

locomotive or group of locomotives 

coupled to a car or group of cars 

transporting a PIH material, including a 

residue of a PIH material for distances 

of less than 100 feet for inspection or 

maintenance purposes. 

(c) Notwithstanding any exceptions 

identified in this subpart, any employee 

who willfully tampers with or 

vandalizes an EEBA shall be subject to 

this subpart for purposes of enforcement 

relating to § 227.213 (Employee’s 

responsibilities). 

§ 227.203 Criteria for selecting EEBAs. 

In selecting the appropriate EEBA to 

provide to an employee, the railroad 

shall do the following: 

(a) Select an atmosphere-supplying 

EEBA that protects against all PIH 

materials (including their residue) that 

are being transported by the freight train 

while in service. 

(b) Ensure that the type of respirator 

selected meets the requirements of 

paragraph (c)(1) of this section regarding 

minimum breathing capacity and is— 

(1) Certified for an escape only 

purpose by NIOSH pursuant to 42 CFR 

part 84, or 

(2) Declared by the manufacturer, 

based on verifiable testing by the 

manufacturer or an independent third 

party, to meet the criteria established by 

one of the following: 

(i) ISO 23269–1:2008(E) (incorporated 

by reference, see § 227.219); 

(ii) BS EN 13794:2002 E (incorporated 

by reference, see § 227.219); or 

(iii) BS EN 1146:2005: E (incorporated 

by reference, see § 227.219). 

(c) Document, and provide such 

documentation for inspection by FRA 

upon request, the rationale for the final 

selection of an EEBA by addressing each 

of the following concerns: 

(1) Breathing time. Each EEBA must 

be fully charged and contain a 

minimum breathing capacity of 15 

minutes at the time of the pre-trip 

inspection required under 

§ 227.207(a)(1). 

(2) Head and neck protection. The 

EEBA selected must provide a means of 

protecting the individual’s head and 

neck from the irritating effects of PIH 

materials to facilitate escape. 

(3) Accommodation for eyeglasses 

and a range of facial features. The EEBA 

selected must provide a means of 

protecting each employee who is 

required to be provided with the EEBA, 

including those who wear glasses, and 

allow for the reasonable accommodation 

of each such employee’s facial features, 

including facial hair. 

§ 227.205 Storage facilities for EEBAs. 

(a) A railroad may not use a 

locomotive if it is part of an in-service 

freight train transporting a PIH material, 

including a residue of a PIH material, 

and the locomotive cab is occupied by 

an employee identified in 

§ 227.201(a)(1)(i)(A)–(D) (subject 

employee), unless the locomotive cab 

has appropriate storage facilities to hold 

the number of EEBAs required to be 

provided. 

(b) The storage facility for each 

required EEBA must— 

(1) Prevent deformation of the face 

piece and exhalation valve, where 

applicable; 

(2) Protect the EEBA from incidental 

damage, contamination, dust, sunlight, 

extreme temperatures, excessive 

moisture, and damaging chemicals; 

(3) Provide each subject employee 

located in the locomotive cab with 

ready access to the EEBA during an 

emergency; and 

(4) Provide a means for each subject 

employee to locate the EEBA under 

adverse conditions such as darkness or 

disorientation. 

(c) A railroad must comply with the 

applicable manufacturer’s instructions 

for storage of each required EEBA and 

must keep a copy of the instructions at 

its system headquarters for FRA 

inspection. 

§ 227.207 Railroad’s program for 

inspection, maintenance, and replacement 

of EEBAs; requirements for procedures. 

(a) General. Each railroad shall 

establish and comply with a written 

program for inspection, maintenance, 

and replacement of EEBAs that are 

required under this subpart. The 

program for inspection, maintenance, 

and replacement of EEBAs shall be 

maintained at the railroad’s system 

headquarters and shall be amended, as 

necessary, to reflect any significant 

changes. This program shall include the 

following procedures: 

(1) Procedures for performing and 

recording a pre-trip inspection of each 

EEBA that is required to be provided on 

a locomotive being used to transport a 

PIH material and procedures for 

cleaning, replacing, or repairing each 

required EEBA, if necessary, prior to its 

being provided under § 227.201(a); 

(2) Procedures for performing and 

recording periodic inspections and 

maintenance of each required EEBA in 

a manner and on a schedule in 

accordance with the manufacturer’s 

recommendations; and 

(3) Procedures for turning in and 

obtaining a replacement for a defective, 

failed, or used EEBA and for recording 

those transactions. 

(b) Inspection procedures and 

records. (1) A railroad’s procedures for 

pre-trip and periodic inspections of 

EEBAs shall require that the following 

information about each pre-trip and 

periodic inspection be accurately 

recorded on a tag or label that is 

attached to the storage facility for the 

EEBA or kept with the EEBA or in 

inspection reports stored as paper or 

electronic files: 

(i) The name of the railroad 

performing the inspection; 

(ii) The date that the inspection was 

performed; 

(iii) The name and signature of the 

individual who made the inspection; 

(iv) The findings of the inspection; 

(v) The required remedial action; and 

(vi) A serial number or other means of 

identifying the inspected EEBA. 

(2) A railroad shall maintain an 

accurate record of each pre-trip and 

periodic inspection required by this 

section. Pre-trip inspection records shall 

be retained for a period of 92 days. 

Periodic inspection records shall be 

retained for a period of one year. 

(c) Procedures applicable if EEBA 

fails an inspection or is used. An EEBA 

that fails an inspection required by this 

section, is otherwise found to be 

defective, or is used, shall be removed 

from service and be discarded, repaired, 

adjusted, or cleaned in accordance with 

the following procedures: 

(1) Repair, adjustment, and cleaning 

of EEBAs shall be done only by persons 

who are appropriately trained to 

perform such work and who shall use 

only the EEBA manufacturer’s approved 

parts designed to maintain the EEBA in 

compliance with one of the following 

standards: 

(i) NIOSH at 42 CFR part 84; 

(ii) ISO 23269–1:2008(E) 

(incorporated by reference, see 

§ 227.219); 

(iii) BS EN 1146:2005: E (incorporated 

by reference, see § 227.219); or 

(iv) BS EN 13794:2002 E 

(incorporated by reference, see 

§ 227.219). 

(2) Repairs shall be made according to 

the manufacturer’s recommendations 

and specifications for the type and 

extent of repairs to be performed. 

(3) Where applicable, reducing and 

admission valves, regulators, and alarms 

shall be adjusted or repaired only by the 

manufacturer or a technician trained by 

the manufacturer. 

(d) Records of returns, maintenance, 

repair, and replacement. A railroad 

shall— 

(1) Maintain an accurate record of 

return, maintenance, repair, or 

replacement for each EEBA required by 

this subpart; and 


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(2) Retain each of these records for 

three years. 

§ 227.209 Railroad’s program of 

instruction on EEBAs. 

(a) General. (1) A railroad shall adopt 

and comply with its written program of 

instruction on EEBAs for all of its 

employees in its general EEBA program 

under § 227.211 (subject employees). 

The program of instruction shall be 

maintained at the railroad’s system 

headquarters and shall be amended, as 

necessary, to reflect any significant 

changes. 

(2) This program may be integrated 

with the railroad’s program of 

instruction on operating rules under 

§ 217.11 of this chapter or its program 

of instruction for hazmat employees 

under § 172.704 of this title. If the 

program is not integrated with either of 

these programs, it must be written in a 

separate document that is available for 

inspection by FRA. 

(b) Subject matter. The railroad’s 

program of instruction shall require that 

the subject employees demonstrate 

knowledge of at least the following: 

(1) Why the EEBA is necessary and 

how improper fit, usage, or maintenance 

can compromise the protective effect of 

the EEBA. 

(2) The capabilities and limitations of 

the EEBA, particularly the limited time 

for use. 

(3) How to use the EEBA effectively 

in emergency situations, including 

situations in which the EEBA 

malfunctions. 

(4) How to inspect, put on, remove, 

and use the EEBA, and how to check the 

seals of the EEBA. 

(5) Procedures for maintenance and 

storage of the EEBA that must be 

followed. 

(6) The EEBA-selection criteria in 

§ 227.203. 

(7) The requirements of this subpart 

related to the responsibilities of 

employees and the rights of employees 

to have access to records. 

(8) The hazardous materials classified 

as PIH materials. 

(c) Dates of initial instruction and 

intervals for periodic instruction. (1) 

The instruction for current subject 

employees shall be provided on an 

initial basis no later than 30 days prior 

to the date of compliance identified in 

§ 227.217. Initial instruction of new 

subject employees shall occur either 30 

days prior to the date of compliance 

identified in § 227.217 or before 

assignment to jobs where the 

deployment of EEBAs on a locomotive 

is required, whichever is later. 

(2) Initial instruction shall be 

supplemented with periodic instruction 

at least once every three years. 

(d) Records of instruction. A railroad 

shall maintain a record of employees 

provided instruction in compliance 

with this section and retain these 

records for three years. 

§ 227.211 Requirement to implement a 

general EEBA program; criteria for placing 

employees in the general EEBA program. 

(a) In general. A railroad shall adopt 

and comply with a comprehensive, 

written, general program to implement 

this subpart that shall be maintained at 

the railroad’s system headquarters. Each 

railroad shall amend its general EEBA 

program, as necessary, to reflect any 

significant changes. 

(b) Elements of the general EEBA 

program and criteria for placing 

employees in program. A railroad’s 

general EEBA program shall— 

(1) Identify the individual that 

implements and manages the railroad’s 

general EEBA program by title. The 

individual must have suitable training 

and sufficient knowledge, experience, 

skill, and authority to enable him or her 

to manage properly a program for 

provision of EEBAs. If the individual is 

not directly employed by the railroad, 

the written program must identify the 

business relationship of the railroad to 

the individual fulfilling this role. 

(2) Describe the administrative and 

technical process for selection of EEBAs 

appropriate to the hazards that may be 

reasonably expected. 

(3) Describe the process used to 

procure and provide EEBAs in a manner 

to ensure the continuous and ready 

availability of an EEBA to each of the 

railroad’s employees identified in 

§ 227.201(a)(1)(i)(A)–(D) (while actually 

occupying the locomotive cab of a 

freight train in service transporting a 

PIH material). This description shall 

include— 

(i) A description of the method used 

for provision of EEBAs, including 

whether the EEBAs are individually 

assigned to employees, installed on 

locomotives as required equipment, or 

provided by other means. If EEBAs are 

installed on locomotives as required 

equipment, the means of securement 

shall be designated. 

(ii) The decision criteria used by the 

railroad to identify trains in which 

provision of EEBAs is not required. 

(iii) A description of what procedures 

will govern the railroad at interchange 

to ensure that the locomotive cab in 

each in-service freight train transporting 

a PIH material has an EEBA accessible 

to each of the employees identified in 

§ 227.201(a)(1)(i)(A)–(D) while in the 

cab of the locomotive, including what 

procedures are in place to ensure that 

the EEBAs provided satisfy the EEBAselection criteria in § 227.203, satisfy 

the EEBA-storage criteria in § 227.205, 

and have been inspected and are in 

working order pursuant to the 

requirements in § 227.207. 

(4) Ensure that each of the following 

employees, except those excluded by 

§ 227.201(b), whose duties require 

regular work in the locomotive cabs of 

in-service freight trains transporting a 

PIH material, including a residue of a 

PIH material, has the required EEBA 

available when they occupy the cab of 

such a train and know how to use the 

EEBA: 

(i) Employees who perform service 

subject to 49 U.S.C. 21103 (train 

employees) on such trains; 

(ii) Direct supervisors of train 

employees on such trains; 

(iii) Deadheading employees on such 

trains; and 

(iv) Any other employees designated 

by the railroad in writing and at the 

discretion of the railroad. 

(c) Records of positions or individuals 

or both in the railroad’s general EEBA 

program. A railroad shall maintain a 

record of all positions or individuals, or 

both, who are designated by the railroad 

to be placed in its general EEBA 

program pursuant to § 227.211(b)(4). 

The railroad shall retain these records 

for the duration of the designation and 

for one year thereafter. 

(d) Consolidated programs. A group of 

two or more commonly controlled 

railroads subject to this subpart may 

request in writing that the Associate 

Administrator for Railroad Safety/Chief 

Safety Officer (Associate Administrator) 

treat them as a single railroad for 

purposes of adopting and complying 

with the general EEBA program required 

by this section. The request must list the 

parent corporation that controls the 

group of railroads and demonstrate that 

the railroads operate in the United 

States as a single, integrated rail system. 

The Associate Administrator will notify 

the railroads of his or her decision in 

writing. 

§ 227.213 Employee’s responsibilities. 

(a) An employee to whom the railroad 

provides an EEBA shall— 

(1) Participate in training under 

§ 227.209; 

(2) Follow railroad procedures to 

ensure that the railroad’s EEBAs— 

(i) Are maintained in a secure and 

accessible manner; 

(ii) Are inspected as required by this 

subpart and the railroad’s program of 

inspection; and 

(iii) If found to be unserviceable upon 

inspection, are turned in to the 

appropriate railroad facility for repair, 

periodic maintenance, or replacement; 

and 


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(3) Notify the railroad of EEBA 

failures and of use incidents in a timely 

manner. 

(b) No employee shall willfully 

tamper with or vandalize an EEBA that 

is provided pursuant to § 227.201(a) in 

an attempt to disable or damage the 

EEBA. 

§ 227.215 Recordkeeping in general. 

(a) Availability of records. (1) A 

railroad shall make all records required 

by this subpart available for inspection 

and copying or photocopying to 

representatives of FRA, upon request. 

(2) Except for records of pre-trip 

inspections of EEBAs under § 227.207, 

records required to be retained under 

this subpart must be kept at the system 

headquarters and at each division 

headquarters where the tests and 

inspections are conducted. 

(b) Electronic records. All records 

required by this subpart may be kept in 

electronic form by the railroad. A 

railroad may maintain and transfer 

records through electronic transmission, 

storage, and retrieval provided that all 

of the following conditions are met: 

(1) The electronic system is designed 

so that the integrity of each record is 

maintained through appropriate levels 

of security such as recognition of an 

electronic signature, or other means, 

which uniquely identify the initiating 

person as the author of that record. No 

two persons have the same electronic 

identity. 

(2) The electronic system ensures that 

each record cannot be modified in any 

way, or replaced, once the record is 

transmitted and stored. 

(3) Any amendment to a record is 

electronically stored apart from the 

record that it amends. Each amendment 

to a record is uniquely identified as to 

the individual making the amendment. 

(4) The electronic system provides for 

the maintenance of records as originally 

submitted without corruption or loss of 

data. 

(5) Paper copies of electronic records 

and amendments to those records that 

may be necessary to document 

compliance with this subpart are made 

available for inspection and copying or 

photocopying by representatives of 

FRA. 

§ 227.217 Compliance dates. 

(a) Class I railroads subject to this 

subpart are required to comply with this 

subpart beginning no later than 12 

months from the effective date of the 

final rule. 

(b) Class II railroads subject to this 

subpart are required to comply with this 

subpart beginning no later than 12 

months from the effective date of the 

final rule. 

(c) Class III railroads subject to this 

subpart and any other railroads subject 

to this subpart are required to comply 

with this subpart beginning no later 

than 18 months from the effective date 

of the final rule. 

§ 227.219 Incorporation by reference. 

(a) Certain material is incorporated by 

reference into this subpart with the 

approval of the Director of the Federal 

Register under 5 U.S.C. 552(a) and 1 

CFR part 51. This incorporation by 

reference (IBR) material is available for 

inspection at the FRA and the National 

Archives and Records Administration 

(NARA). Contact FRA at: Federal 

Railroad Administration, 1200 New 

Jersey Avenue SE, Washington, DC 

20590; phone: (202) 493–6052; email: 

FRALegal@dot.gov. For information on 

the availability of this material at 

NARA, visit www.archives.gov/federalregister/cfr/ibr-locations.html or email 

fr.inspection@nara.gov.Error! Hyperlink 

reference not valid. The material may be 

obtained from the following sources: 

(b) International Organization for 

Standardization, Chemin de Blandonnet 

8, CP 401, 1214 Vernier, Geneva, 

Switzerland, telephone +41–22–749– 

08–88 or https://www.iso.org/standard/ 

50245.html. 

(1) ISO 23269–1:2008(E), Ships and 

marine technology—Breathing 

apparatus for ships—Part 1: Emergency 

escape breathing devices (EEBD) for 

shipboard use, First Edition, February 1, 

2008;, into §§ 227.203(b) and 227.207(c). 

(2) [Reserved] 

(c) The British Standards Institution, 

12110 Sunset Hills Road, Suite 200, 

Reston, VA 20190–5902, telephone: 

800–862–4977 or http://

shop.bsigroup.com. 

(1) BS EN 13794:2002 E, Respiratory 

Protective Devices—Self-Contained, 

Closed-Circuit Breathing Apparatus for 

Escape—Requirements, Testing, 

Marking, November 2002 §§ 227.203(b) 

and 227.207(c). 

(2) BS EN 1146:2005: E, Respiratory 

Protective Devices—Self-Contained, 

Open-Circuit Compressed Air Breathing 

Apparatus Incorporating a Hood for 

Escape—Requirements, Testing, 

Marking; September 2005; into 

§§ 227.203(b) and 227.207(c). 

Issued in Washington, DC. 

Amitabha Bose, 

Administrator. 

[FR Doc. 2023–05074 Filed 3–21–23; 8:45 am] 

BILLING CODE 4910–06–P 


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