Federal Register / Vol. 89, No. 18 / Friday, January 26, 2024 / Rules and Regulations 5113 

reconsideration the Commission granted 

an extension of time for small entities to 

comply with all of the provisions of the 

MDRI. The Order on Reconsideration 

adopted a uniform compliance date for 

all providers which results in 

approximately twenty months (almost 

two full years) from the Federal Register 

publication to implement the 

requirements. This extension accounts 

for the resource concerns expressed by 

Petitioners, while maintaining the 

important role the MDRI requirements 

play in facilitating the ability of the 

American public to call for help, and 

receive emergency information and/or 

assistance during natural disasters, and 

other emergency situations. The 

Commission also granted a presumption 

of confidentiality for filed RuDs which 

eliminates the additional step for small 

entities of having to submit a request for 

confidential treatment under § 0.459 of 

the Commission’s rules when filing an 

RuD with the Commission when 

requested. As discussed above, in the 

Order on Reconsideration the 

Commission considered the other 

alternatives in the Petitioners’ request 

for clarification and/reconsideration and 

we declined to adopt any of those 

approaches. The Commission was not 

persuaded that the increased 

Commission involvement, expenditure 

of Commission resources, and the 

undue delay in implementing the MDRI 

which would have occurred had we 

adopted the alternatives requested by 

Petitioners and commenters was in the 

public interest, or outweighed the 

benefits of moving forward with the 

MDRI requirements as adopted in the 

Report and Order. 

III. Ordering Clauses 

52. Accordingly, it is ordered, 

pursuant to sections 1, 4(i), 4(j), 4(n), 

201(b), 214(d), 218, 251(e)(3), 301, 

303(b), 303(g), 303(r), 307, 309(a), 316, 

332, 403, 405, 615a–1, and 615c of the 

Communications Act of 1934, as 

amended, 47 U.S.C. 151, 154(i) and (j), 

154(n), 201(b), 214(d), 218, 251(e)(3), 

301, 303(b), 303(g), 303(r), 307, 309(a), 

316, 332, 403, 405, 615a–1, and 615c, 

and § 1.429 of the Commission’s rules, 

47 CFR 1.429, that this Order on 

Reconsideration is adopted. 

53. It is further ordered that Part 4 of 

the Commission’s rules, 47 CFR part 4, 

is amended as set forth in the Appendix, 

and that such rule amendments shall be 

effective 30 days after publication in the 

Federal Register. 

54. It is further ordered that the Office 

of the Managing Director, Performance 

Program Management, shall send a copy 

of this Order on Reconsideration in a 

report to be sent to Congress and the 

Government Accountability Office 

pursuant to the Congressional Review 

Act, 5 U.S.C. 801(a)(1)(A). 

List of Subjects in 47 CFR Part 4 

Airports, Communications common 

carriers, Communications equipment, 

Reporting and recordkeeping 

requirements, Telecommunications. 

Federal Communications Commission. 

Marlene Dortch, 

Secretary. 

Final Rules 

For the reasons discussed in the 

preamble, the Federal Communications 

Commission amends 47 CFR part 4 as 

follows: 

PART 4—DISRUPTIONS TO 

COMMUNICATIONS 

■ 1. The authority citation for part 4 

continues to read as follows: 

Authority: 47 U.S.C. 34–39, 151, 154, 155, 

157, 201, 251, 307, 316, 615a–1, 1302(a), and 

1302(b); 5 U.S.C. 301, and Executive Order 

no. 10530. 

■ 2. Amend § 4.17 by revising paragraph 

(e) to read as follows: 

§ 4.17 Mandatory Disaster Response 

Initiative. 

* * * * * 

(e) Compliance with the provisions of 

this section is required beginning May 

1, 2024, or 30 days following 

publication of an announcement that 

OMB review is completed, whichever 

occurs later. The Commission will 

revise this section once the compliance 

date is established. 

[FR Doc. 2023–28834 Filed 1–25–24; 8:45 am] 

BILLING CODE 6712–01–P 

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: Final rule. 

SUMMARY: FRA is amending its 

regulations related to occupational noise 

exposure in three ways. First, in 

response to a congressional mandate, 

FRA is expanding those regulations to 

require that railroads provide an 

appropriate atmosphere-supplying 

emergency escape breathing apparatus 

to every train crew member and certain 

other employees while they are 

occupying a locomotive cab of a freight 

train transporting a hazardous material 

that would pose an inhalation hazard in 

the event of release during an accident. 

Second, FRA is changing 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 final 

rule and to make other conforming 

amendments. Third, FRA is removing 

the provision stating the preemptive 

effect of this part of FRA’s regulations 

because it is unnecessary. 

DATES: This final rule is effective March 

26, 2024. The incorporation by reference 

of certain publications listed in this rule 

is approved by the Director of the 

Federal Register as of March 26, 2024. 

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 

BRS—Brotherhood of Railroad Signalmen 

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 


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5114 Federal Register / Vol. 89, No. 18 / Friday, January 26, 2024 / Rules and Regulations 

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). 

3Collision 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, which 

is posted at https://www.ntsb.gov/investigations/ 

AccidentReports/Reports/RAR0504.pdf. 

4 75 FR 61386 (Oct. 5, 2010). 

5Federal 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. 6 49 CFR 171.8. 

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 

SNPRM—supplemental notice of proposed 

rulemaking 

T&E employees—train and engine service 

employees 

UP—Union Pacific Railroad Company 

UTU—United Transportation Union 

Table of Contents 

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 SNPRM, with 

FRA’s Response 

A. Introduction 

B. Comments on the Preamble, with FRA’s 

Response 

C. Section-Specific Public Comments, with 

FRA’s Response 

1. Comments on § 227.201(a)(1), with 

FRA’s Response 

2. Comments on § 227.203(c), with FRA’s 

Response 

3. Comments on § 227.207, with FRA’s 

Response 

4. Comments on § 227.209, with FRA’s 

Response 

5. Comments on § 227.215, with FRA’s 

Response 

VIII. Section-by-Section Analysis 

IX. Regulatory Impact and Notices 

A. Executive Order 12866 as Amended by 

Executive Order 14094 

B. Regulatory Flexibility Act and Executive 

Order 13272 

1. Statement of the need for, and objectives 

of, the rule 

2. Significant issues raised by public 

comments 

3. Response to comments filed by the Chief 

Counsel for Advocacy of the Small 

Business Administration 

4. Description and estimate of the number 

of small entities to which the rule will 

apply 

5. Description of the projected reporting, 

recordkeeping, and other compliance 

requirements of the rule 

6. A description of the steps the agency has 

taken to minimize the economic impact 

on small entities 

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. Analysis Under 1 CFR Part 51 

J. Environmental Justice 

K. Executive Order 13175 (Tribal 

Consultation) 

I. Executive Summary 

A. Purpose of Regulatory Action 

After railroad worker fatalities 

resulted from the inhalation of chlorine 

gas following rail accidents in 2004 and 

2005, NTSB issued a recommendation 

that FRA require railroads to provide 

emergency escape breathing apparatuses 

(EEBAs) to their locomotive 

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 EEBAs, 

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 final rule is 

to respond to that statutory mandate, 

and it also responds to NTSB Safety 

Recommendation R–05–17.3

FRA first issued an NPRM responsive 

to the mandate of section 413 in October 

2010.4 Based on the cost-benefit 

analysis in the NPRM, and the 

comments received in response to the 

NPRM, FRA issued a guidance 

document 5 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 remained in place. FRA then 

issued an SNPRM, with some revisions 

to the NPRM, on March 22, 2023, to 

open the matter again to public 

comment. Having considered the public 

comments on the SNPRM, FRA is 

promulgating this final rule governing 

the provision of EEBAs as required by 

statute. 

B. Summary of Major Provisions 

This final rule amends subpart C of 49 

CFR part 227 to require any freight 

railroad to provide a covered employee 

an appropriate atmosphere-supplying 

EEBA when occupying a locomotive cab 

of a train transporting a hazardous 

material that would pose an inhalation 

hazard if released during an accident. 

Employees covered under this final rule 

include train employees, their 

supervisor, a deadheading employee, 

and any other employee designated by 

the railroad who is in the cab of a 

locomotive. This this final rule 

addresses the inhalation hazards 

associated with the 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 

172.101.6

This final rule requires railroads that 

transport a PIH material on the general 

railroad system of transportation to 

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 are required to identify 

individual employees or positions to be 


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Federal Register / Vol. 89, No. 18 / Friday, January 26, 2024 / Rules and Regulations 5115 

7A 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. 

8Numbers in this table and subsequent tables 

may not sum due to rounding. 

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 final rule requires 

railroads to 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 new regulation is being 

placed in 49 CFR part 227, 

noncompliance with these regulations 

may trigger enforcement action and 

penalties as described in 49 CFR 227.9. 

FRA is also making conforming changes, 

minor corrections, and updates to some 

of the existing provisions of part 227. 

Further, FRA is removing the provision 

at 49 CFR 227.7 on the preemptive effect 

of part 227 as it is unnecessary because 

it is duplicative of statutory law at 49 

U.S.C. 20106 and case law. See Napier 

v. Atlantic Coast Line R.R., 272 U.S. 

605, 613; 47 S.Ct. 207, 210 (1926). 

C. Costs and Benefits 

FRA analyzed the economic impact of 

this final rule. FRA estimated the costs 

to be incurred by railroads and the 

qualitative benefits of fewer injuries to 

crewmembers from PIH material 

releasing after an accident/incident. 

This final rule requires that a railroad 

provide an EEBA for each covered 

employee in a locomotive cab on a 

freight train transporting any PIH 

material. These EEBAs will provide 

neck and face coverage with respiratory 

protection for the covered employees. 

Railroads must also ensure that the 

equipment is maintained and in proper 

working condition. Finally, railroads are 

required to train covered employees on 

the use of the EEBAs. The main 

objective of this final rule is 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 

final rule can be found in the Regulatory 

Impact Analysis (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 final 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 

final 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.7

For the ‘‘Employee Assignment’’ option, 

FRA estimates that the costs associated 

with issuing each T&E employee (with 

an estimated 60,000 T&E employees) 

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 apparatuses 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 

final rule to be between $27.1 million to 

$91.9 million, discounted at 7 percent. 

The following table shows the total 

costs of this final rule, over the 10-year 

analysis period. 

Total 10-Year Costs (2021 Dollars) 8

Category 10-Year cost 

($) 

Present value 

7% 

($) 

Present value 

3% 

($) 

Annualized 7% 

($) 

Annualized 3% 

($) 

Option 1: Employee Assignment ......................................... 92,327,892 79,247,309 86,066,845 11,283,034 10,089,660 

Option 2: Locomotive Assignment ....................................... 107,153,842 91,909,968 99,855,523 13,085,912 11,706,114 

Option 3: Equipment Pooling ............................................... 33,546,542 27,116,550 30,415,557 3,860,787 3,565,631 

The benefits associated with this final 

rule are qualitative in nature and relate 

to the prevention of causalities and 

injuries. This rule 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 this rule should 

mitigate the injuries to covered 

employees from PIH material releasing 

after an accident/incident. 

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 


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5116 Federal Register / Vol. 89, No. 18 / Friday, January 26, 2024 / Rules and Regulations 

9 ‘‘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. 

10 ‘‘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. 

11See ‘‘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. 

12Federal 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. 

13NIOSH 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). 

14 75 FR 61386, 61390 (Oct. 5, 2010). 

CFR 1.89(b). Additionally, FRA is 

issuing this final rule under the 

authority of 49 U.S.C. 20103 and 20701– 

20703, as delegated to the Administrator 

of FRA pursuant to 49 CFR 1.89(a). 

III. Background 

A. Accident History and NTSB 

Recommendation R–05–17 

As noted in the 2010 NPRM, 

historical data suggests limited train 

crew injuries and fatalities related to the 

catastrophic release of a PIH material; in 

the last decade (2013 to 2022), there 

were no PIH-related fatalities of, or 

injuries to, T&E personnel. 

While rail accidents involving the 

release of PIH materials are rare; 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,9 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.10

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 organizations. 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 an inhalation hazard.11 Part of the 

preamble to this final rule draws from 

the study; however, after further 

consideration of the issues involved and 

consultation with representatives of the 

railroad industry and railroad labor 

organizations (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, including 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.12 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, the statutory 

mandate remains in place, and NTSB 

found that the Guidance did not satisfy 

its recommendation. In addition, FRA is 

unaware of the Guidance leading to any 

railroad developing an EEBA program or 

making 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 requiring an atmospheresupplying respirator that provides 

adequate head and neck protection as 

well as giving sufficient time for its user 

to escape an IDLH atmosphere.13

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.14 Since issuance of the 2010 

NPRM, FRA has become aware of a 


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15However, 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. 

16https://www.cdc.gov/niosh/docs/2005-100/ 

default.html. 

17See R.L. Buckley, Detailed Numerical 

Simulation of the Graniteville Train Collision, 

Savannah River National Laboratory, Report 

WSRC–MS–2005–00635 October 2005. 

18 ‘‘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 

Continued 

fourth organization, CEN, that has also 

developed two relevant standards. 

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. 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, ‘‘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.15

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, ‘‘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, 

‘‘Respiratory Protective Devices—SelfContained, Open-Circuit Compressed 

Air Breathing Apparatus Incorporating a 

Hood for Escape—Requirements, 

Testing, Marking (February 2006).’’ 

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, 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 final rule, FRA 

considered the comments submitted in 

response to the SNPRM and 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.16 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).17 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.18 Instead, 


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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. 

these escape-type respirators are 

selected based on a consideration of the 

time needed to escape in the event of 

IDLH or oxygen-deficient conditions. 

Pursuant to statutory requirements, 

and as proposed in the 2010 NPRM and 

2023 SNPRM, this final rule would 

require providing a device with head 

and neck coverage. Escape-type SCBA 

devices are commonly used with fullface 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 atmospheresupplying SCBA would satisfy the 

protection requirements of this 

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 that of closed-circuit systems. 

Open-circuit SCBA systems may employ 

full face masks or hoods and typically 

require an airtight seal against the head, 

face, or aural/nasal area. 

• Rebreathers. These can be 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 being 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 breathe rapidly and deeply 

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 at 

least 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 

FRA has decided not to mandate 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 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 

five options available to railroads for 

providing EEBAs to covered employees. 

Under this final 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 EEBAs to 

employees results in substantial costs. 

Over a 10-year period, total costs would 

be approximately $92 million. Other 

negative aspects of treating EEBAs as a 

permanently issued item include 

difficulty in monitoring the condition of 


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19UTU is now part of the International 

Association of Sheet Metal, Air, Rail and 

Transportation Workers (SMART). 

the EEBA and ensuring that the required 

EEBA is with the user at all times. 

Additionally, permanently issuing the 

EEBA would add to an already lengthy 

list of items expected to be carried by 

train employees. 

Alternatively, EEBAs may also be 

permanently assigned to an individual 

as a dedicated personal item issued at 

the start of each shift and recovered at 

the end of each shift as part of the clockin/clock-out process. This method 

allows for individual 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 who 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. 

This system also may have hidden costs, 

such as losing the potential benefits of 

a sense of employee ‘‘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 since 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 $106.8 million. These 

estimates could be reduced if railroads 

opted to dedicate a portion of their 

locomotive fleet to service for trains 

transporting PIH materials, subject to 

balancing any impact on operating 

efficiencies. 

As discussed in section 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 

§ 227.211. 

A fifth option is for EEBAs to 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 only a 

few of the numerous options for the 

provision of EEBAs, each involving its 

own considerations. Any of these 

options (or combination of these 

options), including options that have 

not been discussed above, is acceptable 

under this final 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 

organizations cooperated with the FRAsponsored study on the feasibility of 

providing EEBAs to train crews, the 

report of which was published in May 

2009. AAR, UTU,19 and BLET also 

exchanged information and ideas with 

FRA on issues related to this 

rulemaking, as summarized below. 

In July 2009, prior to the publication 

of the 2010 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 


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believes this final rule provides a clearer 

standard for efficiently complying with 

the RSIA mandate. Of course, AAR is 

free to rely on a final specification to 

normalize EEBAs among Class I 

railroads, as long as the specification 

complies with the requirements in 

subpart C. 

Additionally, in the course of drafting 

the 2010 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 

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. 

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 SNPRM, 

With FRA’s Response 

A. Introduction 

FRA received 7 sets of comments on 

the SNPRM from 8 different entities 

(AAR and ASLRRA jointly submitted 

comments), covering a broad spectrum 

of interests which resulted in revisions 

to this final rule. These commenters 

included the railroad industry, a labor 

organization, the NTSB, and concerned 

individuals. In revising this final 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 

AAR and ASLRRA argue that FRA has 

not adequately accounted for the costs 

of installation and recordkeeping 

associated with the managing of an 

EEBA program. They argue that FRA has 

not properly accounted for tasks such as 

developing and implementing testing 

and inspection protocols for devices, 

conducting scrap planning, tracking 

pilferage or damage, anticipating future 

EEBA purchases, assessing employee 

turnover, identifying EEBA reallocation 

needs, tracking wear and tear on 

mounting systems, and developing and 

implementing training for EEBA usage 

and management. However, FRA 

included these very considerations in 

the cost estimates presented in the 

SNPRM. FRA’s estimates were not 

broken down into such granular detail, 

but those same administrative and 

management considerations were 

included. AAR and ASLRRA 

specifically point to the EEBA pooling 

option (the lowest cost option) as having 

the highest of these associated 

administrative costs. In response, FRA 

reexamined its initial administrative 

and management costs estimates, 

particularly as they relate to the EEBA 

pooling option, to ensure they are being 

properly accounted for and concluded 

the original cost estimates were correct. 

AAR and ASLRRA note that the 

hazmat exposure resulting from the 

2014 Texas incident addressed in the 

SNPRM () was to battery acid, which is 

not a PIH or an asphyxiant. FRA has 

examined this incident and concluded 

that AAR and ASLRRA are correct; this 

was not a hazmat release where an 

injury due to contact with the hazmat 

would have been prevented by an EEBA 

as contemplated in this rulemaking. 

FRA has also reexamined the other 

incident (2012, New Jersey) referred to 

in the SNPRM and arrived at the same 

conclusion. Accordingly, FRA has 

removed both incidents from its 

calculation of this rulemaking’s benefits. 

AAR and ASLRRA also state that FRA 

does not address effective usage rates for 

EEBAs when determining the costs and 

benefits. However, usage rates have no 

impact on the costs and since FRA has 

removed the two above incidents the 

effective usage rate has no impact on the 

estimated benefits either. 

AAR and ASLRRA argue that 

‘‘[r]ailroads are safer now than they 

were when the RSIA was passed’’ 

stating that since 2008 there has been a 

‘‘23 percent decrease in the mainline 

accident rate’’ and that ‘‘hazmat 

accident rates have declined by 55 

percent’’ in the same period. They 

contend that ‘‘operational changes 

related to the implementation of 

Positive Train Control, speed 

restrictions that are required for trains 

transporting poisonous-inhalationhazard (PIH) materials, and 

improvements to tank cars have 

substantially reduced the likelihood of a 

PIH material release.’’ They also note 

that in ‘‘the SNPRM, FRA adjusts its 10- 

year benefit estimate downward from 

$13.5 million to $63,720’’ and that this 

‘‘amounts to an annualized societal 

benefit estimate of only $6,138.’’ They 

argue that FRA should not advance this 

EEBA regulation and instead put its 

resources toward continuing to 

minimize the number and consequence 

of rail accidents involving hazardous 

materials. In response to these 

comments, FRA notes that the RSIA 

mandates that the Secretary adopt 

regulations requiring railroads to 

provide EEBAs for train crews 

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 issuing 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, FRA has recently undertaken 

a number of rulemaking initiatives in a 

variety of disciplines, including reengineering 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 final rule 

provides an additional element of 

protection for covered employees 

should an accident with a PIH release 

occur in the future. AAR and ASLRRA 

also suggest that FRA has no reasonable 

basis for issuing a final rule if, in FRA’s 

analysis, the costs exceed the benefits. 

However, a lack of quantifiable (i.e., 

monetized) benefits, or quantifiable 

costs exceeding quantifiable benefits, is 

not dispositive for an agency’s 

rulemaking analysis. Indeed, OMB 

Circular A–4 directs agencies to 

describe benefits qualitatively when it is 

not possible to quantify or monetize all 

of a rule’s important benefits. Agencies 

should also take other factors, such as 

statutory mandates, into account when 

comparing the anticipated costs and 

benefits of a rulemaking. Here, 

Congress, through the RSIA, established 


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20AAR and ASLRRA developed this estimate 

using an equipment pooling approach. 

a 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 and that alone provides a 

reasonable basis for issuing this final 

rule. 

The individual commenter also states 

that a new cost-benefit analysis should 

be conducted. However, FRA already 

conducted a new cost-benefit analysis in 

the SNPRM and again analyzed the 

costs and benefits in this final rule. The 

same individual commenter also 

questions whether the addition of 

EEBAs to locomotive cabs will increase 

the risk of fire. FRA has examined this 

issue and found that EEBAs do not 

themselves present a fire risk and that 

their inclusion in a locomotives cab will 

not increase its flammability. 

AAR and ASLRRA also commented 

on the deadlines for compliance which 

are 12, 12, and 18 months respectively 

for Class I, II, and III railroads. AAR and 

ASLRRA argue that the timeline of the 

2010 NPRM (24, 30, and 36 months 

respectively) is more appropriate. 

However, given the length of time since 

the publication of the 2008 RSIA 

mandate, 2010 NPRM, FRA’s issuance 

of guidance in 2016, and the 2023 

SNPRM, railroads have been on notice 

about the need to provide EEBAs and 

the lengthy timelines from the 2010 

NPRM are no longer necessary. 

AAR and ASLRRA’s comments 

address concerns about the financial 

impact of the RSIA mandate on small 

entities in the railroad industry, which 

they contend lack pricing power to pass 

on the costs of this rule to their 

customers and have small capital 

budgets necessitating that other work, 

such as track maintenance, will have to 

be deferred to pay for it. AAR and 

ASLRRA contend that while the initial 

costs for Class III railroads may indeed 

be modest, the ongoing costs for 

inspection, maintenance, replacement, 

and enforcement penalties will result in 

permanent ongoing expenditures that 

will be particularly impactful on small 

railroads as they are likely to: (1) focus 

on the purchase of EEBAs based on 

crew terminals and number of 

customers, (2) face higher costs than 

estimated and have limited options to 

benefit for bulk orders; and (3) face 

disproportionately high training costs. 

AAR and ASLRRA estimate that the 

total compliance present costs 20 (at 7%) 

to be borne by Class II and III railroads 

at over $6.6 million, or over $945,000 on 

an annualized basis. For just Class III 

railroads, ASLRRA projects total present 

costs (at 7%) to amount to almost $4.9 

million, with the individual annualized 

cost to each of the 110 impacted 

railroads estimated to be $6,333 per 

year, or more than four times the cost 

estimated in the SNPRM. As such, AAR 

and ASLRRA ask that FRA exercise its 

discretion, in this particular instance, to 

provide a ‘‘de minimis’’ exception for 

railroad operations, similar to what FRA 

provided for PTC requirements, to 

exempt Class II and III railroads from 

the requirement to provide EEBAs. 

While FRA understands ALSRRA’s 

concerns, 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 cannot institute an 

exception for Class II and III railroads 

without congressional action. 

Notwithstanding these constraints, FRA 

has enacted measures to limit the costs 

for railroads. In particular, FRA has 

provided flexibility to allow railroads to 

pursue the most cost-effective way to 

provide EEBAs in accordance with the 

statutory requirements and this final 

rule. Additionally, small railroads could 

consider pooling resources wherever 

possible for requirements such as 

periodic training. Indeed, many small 

railroads are jointly owned by the same 

holding companies making resource 

pooling even easier. In light of the 

concerns raised above, FRA has 

reexamined its estimated costs for small 

railroads to ensure that their unique 

conditions are being properly accounted 

for and concluded they have been. 

C. Section-Specific Public Comments, 

With FRA’s Response 

FRA received comments on changes 

to §§ 227.201(a)(1), 227.203(c), 227.207, 

227.209, and 227.215 of the SNPRM. 

1. Comments on § 227.201(a)(1), With 

FRA’s Response 

BRS and an individual commenter 

suggested that EEBAs should also be 

provided to employees working outside 

the locomotive cab such as signalmen 

and yard employees. In particular, BRS 

suggests that signalmen would benefit 

from EEBAs as they are among the first 

responders to rail accidents and would 

benefit from respiratory protection 

systems in the event of a hazardous 

material release. 

The RSIA established a 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 more expansive regulations 

covering areas outside the locomotive 

cab, then it would have chosen different 

language requiring that FRA cover 

personnel in areas other than 

locomotive cabs, including signalmen 

and employees in 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. 

Furthermore, the purpose of EEBAs is to 

allow railroad employees located in the 

cab to better escape an accident, they 

are not intended for use by responders. 

However, the rule in no way prohibits 

railroads from voluntarily distributing 

EEBAs to their employees not covered 

by this regulation. 

AAR and ASLRRA argue that FRA has 

exercised discretion beyond the 

statutory mandate of the RSIA by 

requiring that persons, other than solely 

crewmembers, be provided EEBAs when 

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

material. FRA agrees that the RSIA’s 

mandate is for an EEBA to be provided 

‘‘for all crewmembers.’’ However, the 

RSIA does not limit which railroad 

employees in the cab of a locomotive 

must be provided with an EEBA and 

does not define crewmembers. FRA 

considered worst-case crewing scenarios 

that included possible supernumerary 

personnel such as supervisors and 

deadheading employees who might be 

in the locomotive cab during a PIH 

release and concluded that requiring the 

railroads provide such employees with 

EEBAs to be consistent with RSIA’s 

mandate and in the general interest of 

employee safety. 

2. Comments on § 227.203(c), With 

FRA’s Response 

AAR and ASLRRA note that 

§ 227.203(b) of the SNPRM proposed to 

require railroads to use an EEBA 

certified by NIOSH or meeting criteria 

set by specified industry organizations. 

Therefore, AAR and ASLRRA argue no 

further showing of the adequacy of the 

EEBA should be necessary and that 

§ 227.203(c) should be deleted. FRA 

disagrees because § 227.203(c) provides 

considerations beyond the minimum 

criteria required under the NIOSH, ISO, 

or EN standard. For example, FRA has 

concluded that the minimum breathing 

capacity allowed by ISO 23269–1:2008, 


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21As noted in the SNPRM, FRA has removed 

references to ‘‘asphyxiants’’ that were included in 

the NPRM. The SNPRM explained the reasons for 

not including simple asphyxiants (i.e., non-PIH 

asphyxiants) as covered materials but invited public 

comment on whether they should be included. 88 

FR 17302 at 17312–17313 (Mar. 22, 2023). FRA 

received only one comment on this issue, which 

was supportive of removing asphyxiants from this 

rule. 

22Residue 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. 

which is 10 minutes, is insufficient for 

the anticipated use in a railroad 

environment. As a result, this final rule 

requires a minimum breathing capacity 

of 15 minutes. FRA concluded, by the 

same logic, that the considerations for 

head and neck protection and 

accommodations for eyeglasses and a 

range of facial features contained in 

§ 227.203(c) are necessary even if they 

go beyond the NIOSH, ISO, or EN 

standards. FRA is therefore keeping the 

requirements in § 227.203(c). 

3. Comments on § 227.207, With FRA’s 

Response 

AAR and ASLRRA comment that FRA 

goes beyond the rulemaking discretion 

afforded it in the RSIA in requiring pretrip inspections of EEBAs in 

§ 227.207(a)(1) and that such 

inspections would be overly 

burdensome. AAR suggests that FRA 

should rely instead on the periodic 

inspections required in § 227.207(a)(2). 

The RSIA requires that EEBAs be 

maintained in proper working 

condition. FRA considers pre-trip 

inspections the most effective method of 

ensuring compliance with this statutory 

mandate because the final rule requires 

that an EEBA for each employee will be 

in the locomotive cab prior to departure. 

For example, FRA can envision 

scenarios where at least two crews 

could be relying on locomotivemounted EEBAs and, absent a pre-trip 

inspection, the second crew would have 

no means to verify that the devices were 

present and ready for service. Such 

verification is essential to ensuring 

equipment is properly maintained. 

Therefore, FRA believes that the pre-trip 

inspection requirement is fully 

consistent with FRA’s authority under 

the RSIA. 

FRA also disagrees that the pre-trip 

inspection is an overly burdensome 

requirement. FRA expects that the pretrip 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. 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. 

AAR and ASLRRA also oppose the 

recordkeeping requirements in 

§ 227.207 for the same reasons they 

oppose § 227.207(a)(1) above. FRA’s 

response is also the same; the RSIA 

mandates that EEBAs be maintained in 

proper working condition. Meeting this 

mandate requires some level of 

recordkeeping to ensure compliance. 

While FRA views pre-trip inspection 

records as necessary to ensure 

compliance with the RSIA mandate, it 

should be noted that the record of pretrip 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. 

4. Comments on § 227.209, With FRA’s 

Response 

AAR and ASLRRA comment that 

‘‘there is simply no requirement in the 

statutory text and no functional safety 

rationale for FRA to require all railroad 

employees to be able to demonstrate 

knowledge of EEBA selection criteria, as 

proposed in § 227.209(2)(b)(6).’’ FRA 

believes that a demonstration of 

knowledge of EEBA selection criteria 

would ensure that employees know the 

purpose and limitations of the selected 

EEBAs (minimum breathing time, that it 

covers the full face, etc.). However, this 

information is duplicative of the other 

training requirements in § 227.209(2)(b) 

and so FRA agrees with its removal. 

5. Comments on § 227.215, With FRA’s 

Response 

AAR and ASLRRA comment that FRA 

goes beyond the rulemaking discretion 

afforded it in the RSIA in requiring that 

records be kept as required in § 227.215. 

The RSIA mandates 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 and that all such 

equipment be maintained in proper 

working condition. Meeting this 

mandate necessarily requires some level 

of recordkeeping to ensure compliance 

and § 227.215 simply lays out the 

reasonable requirements for keeping and 

making the records available. 

VIII. Section-by-Section Analysis 

PART 227—OCCUPATIONAL SAFETY 

AND HEALTH IN THE LOCOMOTIVE 

CAB 

FRA is changing 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 best place to put the regulations 

related to 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 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 amends this section to reflect the 

expanded purpose and scope of this 

part. 

Section 227.3 Applicability 

FRA amends 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 transporting an inservice freight train that carries a PIH 

material on track that is part of the 

general railroad system of 

transportation. See 49 CFR part 209, 

appendix A.21 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 22 of a 

PIH material in an in-service freight 

train, even if the railroad has never done 

so before, the railroad would become 

subject to this rule. FRA realizes the 

applicability of this rule to a company’s 

first time transporting 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 a general EEBA program, 

procurement and distribution of EEBAs, 


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and instruction of employees in the 

program) in advance. Further, a delay 

related to compliance with this final 

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. 

Section 227.5 Definitions 

The rulemaking amends 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 final 

rule to ensure that the universe of 

materials covered by this regulation is 

adequately described. 

Section 227.15 Information Collection 

FRA amends 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 is making minor corrections to 

this subpart. The term ‘‘Class 1’’ is 

removed wherever it appears and 

replaced with the corrected term ‘‘Class 

I.’’ The incorrect term appeared in, for 

example, § 227.103(a)(1). 

Subpart C—Emergency Escape 

Breathing Apparatus Standards 

Section 227.201 Criteria for Requiring 

Availability of EEBAs in the Locomotive 

Cab 

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 any other employees 

designated at the railroad’s discretion 

and identified in writing whose duties 

require regular work in the locomotive 

cabs of in-service freight trains 

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. 

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) 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 its employees, e.g., as a uniform item; 

the employee must have access to the 

EEBA 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. 

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. 

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. 

Section 227.203 Criteria for Selecting 

EEBAs 

This section provides the 

requirements for selecting an EEBA. See 

general discussion at V. Selection of the 

Appropriate EEBA by Railroads, above. 

The requirements for selecting 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 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 requires a 

railroad to select an atmospheresupplying 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 

included language in 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, FRA requires in 

paragraph (c)(1) 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 

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 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 final rule. 

Section 227.207 Railroad’s Program 

for Inspection, Maintenance, and 

Replacement of EEBAs; Requirements 

for Procedures 

This 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 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 requires 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) requires railroads to create 

and maintain an accurate record of all 


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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 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 

required 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. 

Paragraph (b) requires that any 

railroad transporting a PIH material 

provide sufficient training to its covered 

employees. Such employees must be 

able to demonstrate knowledge of 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 provided by the railroad, 

including the timeframe for effective 

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; 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 the 

EEBA’s capabilities. 

This 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.’’ 

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. 

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 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, as discussed in detail at 

section IV. FRA-Sponsored Study and 

section 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. 

Paragraph (b)(1) requires that each 

railroad’s general program identify the 

railroad’s EEBA manager by title and 

requires that the EEBA manager is 

qualified to oversee the program. 

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 

consider 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 part 

because he or she 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 


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Federal Register / Vol. 89, No. 18 / Friday, January 26, 2024 / Rules and Regulations 5125 

23 88 FR 21879 (April 6, 2023) located at https:// 

www.federalregister.gov/documents/2023/04/11/ 

2023-07760/modernizing-regulatory-review. 

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 have access to a working 

EEBA. One constant is that all railroads, 

subject to this 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, 

identified in § 227.211, be provided 

instruction on EEBAs. 

Finally, § 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 EEBAs are not always directly 

supervised by managers who can ensure 

the identified tasks are done at the 

appropriate time and frequency, this 

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 prohibits 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 

Section 227.215 sets out the general 

recordkeeping provisions for subpart C. 

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 

requires 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. 

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. 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 incorporates 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 https:// 

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 as Amended 

by Executive Order 14094 

This final rule is not a significant 

regulatory action within the meaning of 

Executive Order 12866, as amended by 

Executive Order 14094, ‘‘Modernizing 

Regulatory Review,’’ 23 and DOT Order 

2100.6A (‘‘Rulemaking and Guidance 

Procedures’’). Details on the estimated 

costs of this final rule can be found in 

the RIA, which FRA has prepared and 

placed in the docket (FRA–2009–0044). 

FRA is issuing a final rule that 

enables covered employees to wear 

protective breathing apparatus in the 

event of a catastrophic release of PIH 

materials. This final rule requires that 

an EEBA be provided for each covered 

employee transporting PIH materials. 

These EEBAs will 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 final rule requires 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 final 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 EEBAs 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 EEBAs 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 

apparatuses would have to be installed 

in each locomotive, one apparatus each 


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5126 Federal Register / Vol. 89, No. 18 / Friday, January 26, 2024 / Rules and Regulations 

24Numbers in this table and subsequent tables 

may not sum due to rounding. 

for the conductor, the engineer, and a 

supervisor. In the ‘‘Equipment Pooling’’ 

option, FRA considered only having 

EEBAs provided in trainsets that were 

transporting PIH. EEBAs would be 

brought on board after a determination 

is made on a case-by-case basis. 

The analysis includes estimates of 

costs associated with the purchase of 

EEBAs and installation, employee 

training, and recordkeeping. 

FRA estimates the 10-year costs of the 

final rule to be between $27.1 million 

and $91.9 million, discounted at 7 

percent. The following table shows the 

total costs of this final rule, over the 10- 

year analysis period. 

TOTAL 10-YEAR COSTS

[2021 Dollars] 24

Category 10-year cost 

($) 

Present value 

7% ($) 

Present value 

3% ($) 

Annualized 

7% ($) 

Annualized 

3% ($) 

Option 1: Employee Assignment ......................................... 92,327,892 79,247,309 86,066,845 11,283,034 10,089,660 

Option 2: Locomotive Assignment ....................................... 107,153,842 91,909,968 99,855,523 13,085,912 11,706,114 

Option 3: Equipment Pooling ............................................... 33,546,542 27,116,550 30,415,557 3,860,787 3,565,631 

The benefits associated with this final 

rule are qualitative in nature and relate 

to the prevention of causalities and 

injuries. This 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 this 

rule should mitigate the injuries of 

covered employees from PIH material 

releasing after an accident/incident. 

Although the monetary costs associated 

with implementation of this rule would 

exceed the correspondingly measured 

benefits, under the 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. 

Additionally, OMB Circular A–4 directs 

agencies to describe benefits 

qualitatively when it is not possible to 

quantify or monetize all of a rule’s 

important benefits. Section 6 of the RIA 

discusses non-quantifiable benefits. 

FRA will not require a particular 

method of deployment of EEBAs, but 

rather leave that to the railroads’ 

discretion. In addition, railroads will 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 operations. 

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. 

FRA prepared this FRFA to evaluate the 

impact of the final rule on small entities 

and describe the effort to minimize the 

adverse impact. The estimated costs on 

small entities is not significant as it 

represents less than one percent of 

average annual revenue of affected 

entities. Even if FRA uses the estimated 

costs per small entity provided by 

ASLRRA, as discussed in section 5 

below, the impact would still not be 

significant. Accordingly, the FRA 

Administrator hereby certifies that this 

rule will not have a significant 

economic impact on a substantial 

number of small entities. 

1. Statement of the Need for, and 

Objectives of, the Rule 

This final rule requires railroads to 

provide an appropriate atmospheresupplying EEBA, in proper working 

order, to train crewmembers, direct 

supervisors of train crewmembers, and 

certain other employees while these 

employees are occupying cabs of freight 

train locomotives transporting 

hazardous material that would pose an 

inhalation hazard in the event of release 

during an accident. This includes 

material poisonous by inhalation 

(poisonous-inhalation-hazard or PIH 

materials), gases poisonous by 

inhalation, and certain other materials 

classified as poisonous by inhalation. 

EEBAs are intended to protect covered 

employees from the risk of exposure to 

such hazardous materials while the 

employees escape from the locomotive 

cab during a catastrophic event. 

The rule requires railroads that 

transport PIH materials on the general 

railroad system to establish and carry 

out a series of programs for: inspection 

and maintenance of the devices; 

instruction of employees in the use of 

the devices; and selection, procurement, 

and provision of the devices. Railroads 

are required to identify individual 

employees or positions to be placed in 

their EEBA programs so that enough 

EEBAs are available and that those 

employees know how to use the 

devices. Finally, the rule requires that 

convenient storage be provided for 

EEBAs in the locomotive to enable 

employees to access such apparatuses 

quickly in the event of a release of a 

hazardous material that poses an 

inhalation hazard. 

2. Significant Issues Raised by Public 

Comments 

FRA received several comments 

related to the anticipated costs of this 

rule. AAR and ASLRRA’s comments 

address concerns about the financial 

impact of the RSIA mandate on small 

entities in the railroad industry, which 

they contend lack pricing power to pass 

on the costs of this rule to their 

customers and have small capital 

budgets necessitating that other work, 

such as track maintenance, will have to 

be deferred to pay for it. AAR and 

ASLRRA stated that while the initial 

costs for Class III railroads may indeed 

be modest the ongoing costs for 

inspection, maintenance, replacement, 

and enforcement penalties will result in 

permanent ongoing expenditures that 

will be particularly impactful on small 

railroads. The comment states that small 

railroads will likely focus on the 

purchase of EEBAs based on crew 

terminals and number of customers, face 


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25U.S. Small Business Administration, ‘‘Table of 

Small Business Size Standards Matched to North 

American Industry Classification System Codes, 

March 27, 2023. https://www.sba.gov/sites/sbagov/ 

files/2023-06/Table%20of%20Size%20Standards_

Effective%20March%2017%2C%202023%20%282

%29.pdf. 

26The Class III railroad revenue threshold is 

$46.3 million or less, for 2022. https://

www.ecfr.gov/current/title-49/subtitle-B/chapter-X/ 

subchapter-C/part-1201. 

27See 68 FR 24891 (May 9, 2003) (codified at 

appendix C to 49 CFR part 209). 

higher costs than estimated, have 

limited options to benefit for bulk 

orders, and will face disproportionately 

high training costs. AAR and ASLRRA 

estimate that the total 10-year 

compliance costs to be borne by Class II 

and III railroads at over $6.6 million 

(PV, 7 percent), or over $945,000 on an 

annualized basis. For just Class III 

railroads, ASLRRA projects total costs to 

amount to almost $4.9 million (PV, 7 

percent), with the individual annualized 

cost to each of the 110 impacted 

railroads estimated to be $6,333 per 

year, or more than four times the cost 

estimated in the SNPRM. As such, AAR 

and ASLRRA ask that FRA exercise its 

discretion, in this particular instance, to 

provide a ‘‘de minimis’’ exception for 

railroad operations, similar to what FRA 

provided for PTC requirements, to 

exempt Class II and III railroads from 

the requirement to provide EEBAs. 

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 II and 

III railroads without congressional 

action. Notwithstanding these 

constraints, FRA has included measures 

to limit the costs for railroads. In 

particular, FRA will allow railroads to 

pursue the most cost-effective way to 

provide EEBAs in accordance with the 

statutory and regulatory requirements. 

Additionally, small railroads could 

consider pooling resources wherever 

possible for requirements such as 

periodic training. Indeed, many small 

railroads are jointly owned by the same 

holding companies making resource 

pooling even easier. In light of the 

concerns raised above, FRA has 

reexamined its estimated costs for small 

railroads based on comments received 

to the NPRM. In the regulatory impact 

analysis for the final rule, FRA has 

increased the cost estimate for Class III 

railroads to purchase EEBAs since each 

railroad may not purchase enough to 

secure a bulk discount on pricing. 

Therefore, FRA estimates that each 

EEBA for Class III railroads will be 

approximately $1,000, instead of $850 

as was estimated in the RIA for the 

proposed rule. 

3. Response to Comments Filed by the 

Chief Counsel for Advocacy of the Small 

Business Administration 

FRA did not receive a comment from 

the Small Business Administration. 

4. Description and Estimate of the 

Number of Small Entities to Which the 

Rule Will 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 $47.0 

million dollars, or a contractor that 

performs support activities for railroads 

with annual receipts of less than $34.0 

million.25

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 has 

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 part 1201, General 

Instruction 1–1, which is $20 million or 

less in inflation-adjusted annual 

revenues,26 and commuter railroads or 

small governmental jurisdictions that 

serve populations of 50,000 or less.27

FRA is using this definition for the final 

rule. 

When shaping the final rule, FRA 

considered the impact that the final rule 

will have on small entities. The final 

rule will 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 

will not be impacted by this final rule. 

5. Description of the Projected 

Reporting, Recordkeeping, and Other 

Compliance Requirements of the Rule 

Class III Railroads will have all the 

same requirements as larger railroads, 

reduced for the estimated number of 

locomotives and employees on Class III 

railroads. Small railroads may not be 

able to benefit from bulk discount rates 

on EEBAs, so FRA has adjusted that cost 

to not include the 15% discount for 

Class III railroads. All other cost 

components will be the same as larger 

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 will be $1.1 million (PV, 7 

percent) and the annualized cost for all 

Class III railroads will be $151,467 (PV, 

7 percent). 

TOTAL 10-YEAR AND ANNUALIZED COSTS, CLASS III RAILROADS

Category Present value 

(7%) 

Annualized 

(7%) 

EEBA and Installation .................................................................................................................................................. 731,620 104,166 

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

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

Total ...................................................................................................................................................................... 1,063,841 151,467 


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28FRA will be using the OMB control number 

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

previous NPRM was published in 2010 for this 

information collection request. 

29 44 U.S.C. 3501 et seq. 

The industry trade organization 

representing small railroads, ASLRRA, 

reports the average freight revenue per 

Class III railroad is $4.75 million. 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 

151,467 110 1,377 4,750,000 0.03% 

The average annual cost for a Class III 

railroad impacted by this rule will be 

$1,377. 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 will not be 

a significant economic burden. 

6. A Description of the Steps the Agency 

Has Taken To Minimize the Economic 

Impact on Small Entities 

When developing the final rule, FRA 

considered the impact that the final rule 

will have on small entities. FRA has 

included measures to limit the costs for 

railroads. In particular, FRA will allow 

railroads to pursue the most costeffective way to provide EEBAs in 

accordance with the statutory and 

regulatory requirements. Small railroads 

could consider pooling resources 

wherever possible for requirements such 

as periodic training. Additionally, under 

the final rule, FRA allows additional 

time for Class III and other railroads to 

implement the rule. Class III railroads 

are allotted 18 months for 

implementation rather than 12 months. 

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 final rule has been analyzed in 

accordance with the principles and 

criteria contained in Executive Order 

13132. FRA has determined that the 

final 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 final 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 final 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 final 

rule in accordance with the principles 

and criteria contained in Executive 

Order 13132. As explained above, FRA 

has determined that this final 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 final 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 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 final rule are being 

submitted for approval to OMB28 under 

the Paperwork Reduction Act of 1995.29

The information collection requirements 

and the estimated time to fulfill each 

requirement are as follows: 


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30The 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. 

31The associated burden related to employees’ 

training are calculated under the economic cost of 

the regulation. 

32Totals 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 

(hours) 

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

wage 30

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 

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 31.

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 

—(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(a)(3)—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 32 .................................................................... 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. 

F. Compliance With the Unfunded 

Mandates Reform Act of 1995 

Pursuant to section 201 of the 

Unfunded Mandates Reform Act of 1995 

(Pub. L. 104–4, 2 U.S.C. 1531), each 

Federal agency ‘‘shall, unless otherwise 

prohibited by law, assess the effects of 

Federal regulatory actions on State, 

local, and tribal governments, and the 

private sector (other than to the extent 

that such regulations incorporate 

requirements specifically set forth in 

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

1532) further requires that ‘‘before 

promulgating any general notice of 

proposed rulemaking that is likely to 

result in the promulgation of any rule 

that includes any Federal mandate that 

may result in expenditure by State, 

local, and tribal governments, in the 

aggregate, or by the private sector, of 

$100,000,000 or more (adjusted 

annually for inflation) in any one year, 

and before promulgating any final rule 

for which a general notice of proposed 

rulemaking was published, the agency 

shall prepare a written statement’’ 

detailing the effect on State, local, and 

tribal governments and the private 

sector. This final rule will not result in 

such an expenditure, and thus 

preparation of such a statement is not 

required. 


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33Executive Order 14096, ‘‘Revitalizing Our 

Nation’s Commitment to Environmental Justice,’’ 

issued on April 26, 2023, supplements Executive 

Order 12898, but is not currently referenced in DOT 

Order 5610.2C. 

G. Environmental Assessment 

FRA has evaluated this final rule in 

accordance with the National 

Environmental Policy Act (NEPA), the 

Council of Environmental Quality’s 

NEPA implementing regulations, and 

FRA’s NEPA implementing regulations. 

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. Specifically, 

FRA has determined that this final rule 

is categorically excluded from detailed 

environmental review. 

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. FRA has concluded that no such 

unusual circumstances exist with 

respect to this final rule and it meets the 

requirements for categorical exclusion. 

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. 

FRA has also determined that this 

rulemaking does not approve a project 

resulting in a use of a resource protected 

by section 4(f). Further, FRA reviewed 

this final rulemaking and found it 

consistent with Executive Order 14008, 

‘‘Tackling the Climate Crisis at Home 

and Abroad.’’ 

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 final rule in 

accordance with Executive Order 13211 

and determined that this final rule is not 

a ‘‘significant energy action’’ within the 

meaning of Executive Order 13211. 

I. 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.html and 

from the British Standards Institution, 

12110 Sunset Hills Road, Suite 200, 

Reston, VA 20190–5902, telephone: 

800–862–4977 or https://

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. 

J. Environmental Justice 

Executive Order 12898, ‘‘Federal 

Actions to Address Environmental 

Justice in Minority Populations and 

Low-Income Populations,’’ requires 

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. DOT Order 

5610.2C (‘‘U.S. Department of 

Transportation Actions to Address 

Environmental Justice in Minority 

Populations and Low-Income 

Populations’’) instructs DOT agencies to 

address compliance with Executive 

Order 12898 and requirements within 

the DOT Order 5610.2C 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.33 FRA has evaluated this 

final rule under Executive Orders 12898 

and 14096 and DOT Order 5610.2C and 

has determined it will not cause 

disproportionate and adverse human 

health and environmental effects on 

communities with environmental justice 

concerns. 

K. Executive Order 13175 (Tribal 

Consultation) 

FRA has evaluated this final 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 final rule would 

not have a substantial direct effect on 

one or more Indian tribes, would not 

impose substantial direct compliance 

costs on Indian tribal governments, and 

would not preempt tribal laws. 

Therefore, the funding and consultation 

requirements of Executive Order 13175 

do not apply, and a tribal summary 

impact statement is not required. 

List of Subjects in 49 CFR Part 227 

Hazardous materials transportation, 

Incorporation by reference, Locomotive 

noise control, Occupational safety and 

health, Penalties, Railroad employees, 

Railroad safety, Reporting and 

recordkeeping requirements. 

The Final Rule 

For the reasons discussed in the 

preamble, FRA amends 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 of this part. The 

purpose of subpart B is to protect the 

occupational safety and health of 

employees whose predominant noise 

exposure occurs in the locomotive cab. 

Subpart B prescribes minimum Federal 

safety and health noise standards for 

locomotive cab occupants. 

(c) Subpart C of this part. 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 poison 

inhalation hazard (PIH) material that, if 

released due to a railroad accident/ 

incident, would pose an inhalation 

hazard to the occupants. In particular, 


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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. Amend § 227.3 by revising 

paragraphs (a), (b) introductory text, and 

(b)(5) and adding 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. Amend § 227.5 by adding, in 

alphabetical order, definitions for 

‘‘Accident/incident’’, ‘‘Associate 

Administrator for Railroad Safety/Chief 

Safety Officer’’, ‘‘Atmosphere 

immediately dangerous to life or health 

(IDLH)’’, ‘‘Atmosphere-supplying 

device’’, ‘‘Deadheading’’, ‘‘Division 

headquarters’’, ‘‘Emergency escape 

breathing apparatus or EEBA’’, ‘‘Freight 

car’’, ‘‘Freight train’’, ‘‘Hazardous 

material’’, ‘‘Hazmat 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. 

* * * * * 

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. 

Atmosphere-supplying device means a 

respirator that supplies the respirator 

user with breathing air from a source 

that is independent of the ambient 

atmosphere. Such devices include 

supplied-air respirators and selfcontained 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 

(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). 

* * * * * 

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. 


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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. 

§ 227.7 [Removed and Reserved] 

■ 6. Remove and reserve § 227.7. 

■ 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 (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, consisting of 

§§ 227.201 through 227.219, 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: 

(A) Any train employee; 

(B) Any direct supervisor of the train 

employee; 

(C) Any employee who is 

deadheading; and 

(D) 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 

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) Employee misconduct. 

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. 

§ 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 (incorporated by 

reference, see § 227.219); 

(ii) BS EN 13794:2002 (incorporated 

by reference, see § 227.219); or 

(iii) BS EN 1146:2005 (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 


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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) through (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 or 

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 (incorporated 

by reference, see § 227.219); 

(iii) BS EN 1146:2005 (incorporated 

by reference, see § 227.219); or 

(iv) BS EN 13794:2002 (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. 

(4) An EEBA may not be returned to 

service unless it meets the requirements 

in § 227.203. 

(d) Records of returns, maintenance, 

repair, and replacement. A railroad 

shall— 

(1) Maintain an accurate record of 

return, maintenance, repair, or 

replacement for each EEBA required by 

this subpart; and 

(2) Retain each of these records for 

three years. 

§ 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 requirements of this subpart 

related to the responsibilities of 

employees and the rights of employees 

to have access to records. 


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5134 Federal Register / Vol. 89, No. 18 / Friday, January 26, 2024 / Rules and Regulations 

(7) 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 who 

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) through (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) through (D) while 

in the cab of the locomotive, including 

what procedures are in place to ensure 

that the EEBAs provided satisfy the 

EEBA-selection criteria in § 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 paragraph (b)(4) of 

this section. 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 

(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 


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Federal Register / Vol. 89, No. 18 / Friday, January 26, 2024 / Rules and Regulations 5135 

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 March 26, 2024. 

(b) Class II railroads subject to this 

subpart are required to comply with this 

subpart beginning no later than 12 

months from March 26, 2024. 

(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 March 26, 2024. 

§ 227.219 Incorporation by reference. 

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 or email 

fr.inspection@nara.gov. The material 

may be obtained from the following 

sources: 

(a) The British Standards Institution, 

12110 Sunset Hills Road, Suite 200, 

Reston, VA 20190–5902, phone: 800– 

862–4977; website: shop.bsigroup.com. 

(1) BS EN 1146:2005, Respiratory 

protective devices—Self-contained, 

open-circuit compressed air breathing 

apparatus incorporating a hood for 

escape—requirements, testing, marking; 

February 2, 2006; into §§ 227.203(b) and 

227.207(c). 

(2) BS EN 13794:2002, Respiratory 

protective devices—Self-contained, 

closed-circuit breathing apparatus for 

escape—requirements, testing, marking, 

November 26, 2002; into §§ 227.203(b) 

and 227.207(c). 

(b) International Organization for 

Standardization, Chemin de Blandonnet 

8, CP 401, 1214 Vernier, Geneva, 

Switzerland; phone +41–22–749–08–88; 

website: www.iso.org. 

(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] 

Issued in Washington, DC. 

Amitabha Bose, 

Administrator. 

[FR Doc. 2024–01074 Filed 1–25–24; 8:45 am] 

BILLING CODE 4910–06–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 679 

[Docket No. 230306–0065; RTID 0648– 

XD669] 

Fisheries of the Exclusive Economic 

Zone Off Alaska; Pacific Cod by 

Catcher Vessels Less Than 60 Feet 

(18.3 Meters) Length Overall Using 

Hook-and-Line or Pot Gear in the 

Bering Sea and Aleutian Islands 

Management Area 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Temporary rule; closure. 

SUMMARY: NMFS is prohibiting directed 

fishing for Pacific cod by catcher vessels 

less than 60 feet (18.3 meters (m)) length 

overall (LOA) using hook-and-line or 

pot gear in the Bering Sea and Aleutian 

Islands management area (BSAI). This 

action is necessary to prevent exceeding 

the 2024 Pacific cod total allowable 

catch (TAC) allocated to catcher vessels 

less than 60 feet (18.3 m) LOA using 

hook-and-line or pot gear in the BSAI. 

DATES: Effective 1200 hours, Alaska 

local time (A.l.t.), January 25, 2024, 

through 2400 hours, A.l.t., December 31, 

2024. 

FOR FURTHER INFORMATION CONTACT: 

Adam Zaleski, 907–586–7228. 

SUPPLEMENTARY INFORMATION: NMFS 

manages the groundfish fishery in the 

BSAI exclusive economic zone 

according to the Fishery Management 

Plan for Groundfish of the Bering Sea 

and Aleutian Islands Management Area 

(FMP) prepared by the North Pacific 

Fishery Management Council under 

authority of the Magnuson-Stevens 

Fishery Conservation and Management 

Act. Regulations governing fishing by 

U.S. vessels in accordance with the FMP 

appear at subpart H of 50 CFR part 600 

and 50 CFR part 679. 

The 2024 Pacific cod TAC allocated to 

catcher vessels less than 60 feet (18.3 m) 

LOA using hook-and-line or pot gear in 

the BSAI is 3,867 metric tons as 

established by the final 2023 and 2024 

harvest specifications for groundfish in 

the BSAI (88 FR 14926, March 10, 

2023), inseason adjustment (88 FR 

88836, December 26, 2023) and 

reallocation (89 FR 2176, January 12, 

2024). 

In accordance with § 679.20(d)(1)(iii), 

the Administrator, Alaska Region, 

NMFS (Regional Administrator), has 

determined that the 2024 Pacific cod 

TAC allocated as a directed fishing 

allowance to catcher vessels less than 60 

feet (18.3 m) LOA using hook-and-line 

or pot gear in the BSAI will soon be 

reached. Consequently, NMFS is 

prohibiting directed fishing for Pacific 

cod by catcher vessels less than 60 feet 

(18.3 m) LOA using hook-and-line or 

pot gear in the BSAI. 

While this closure is effective the 

maximum retainable amounts at 

§ 679.20(e) and (f) apply at any time 

during a trip. 

Classification 

NMFS issues this action pursuant to 

section 305(d) of the Magnuson-Stevens 

Act. This action is required by 50 CFR 

part 679, which was issued pursuant to 

section 304(b), and is exempt from 

review under Executive Order 12866. 

Pursuant to 5 U.S.C. 553(b)(B), there 

is good cause to waive prior notice and 

an opportunity for public comment on 

this action, as notice and comment 

would be impracticable and contrary to 

the public interest, as it would prevent 

NMFS from responding to the most 

recent fisheries data in a timely fashion 

and would delay the closure of Pacific 

cod by catcher vessels less than 60 feet 

(18.3 m) LOA using hook-and-line or 

pot gear in the BSAI. NMFS was unable 

to publish a notice providing time for 

public comment because the most 

recent, relevant data only became 

available as of January 23, 2024. 

The Assistant Administrator for 

Fisheries, NOAA also finds good cause 

to waive the 30-day delay in the 

effective date of this action under 5 

U.S.C. 553(d)(3). This finding is based 

upon the reasons provided above for 

waiver of prior notice and opportunity 

for public comment. 

Authority: 16 U.S.C. 1801 et seq. 

Dated: January 23, 2024. 

Everett Wayne Baxter, 

Acting Director, Office of Sustainable 

Fisheries, National Marine Fisheries Service. 

[FR Doc. 2024–01692 Filed 1–25–24; 8:45 am] 

BILLING CODE 3510–22–P 


ddrumheller on DSK120RN23PROD with RULES1