61386 Federal Register / Vol. 75, No. 192 / Tuesday, October 5, 2010 / Proposed Rules 

Flooding source(s) Location of referenced elevation 

* Elevation in feet 

(NGVD) 

+ Elevation in feet 

(NAVD) 

# Depth in feet 

above ground 

∧Elevation in meters 

(MSL) 

Communities affected 

Effective Modified 

Unincorporated Areas of Palo Pinto County 

Maps are available for inspection at the Palo Pinto County Courthouse, 520 Oak Street, Palo Pinto, TX 76484. 

(Catalog of Federal Domestic Assistance No. 

97.022, ‘‘Flood Insurance.’’) 

Dated: September 13, 2010. 

Sandra K. Knight, 

Deputy Federal Insurance and Mitigation 

Administrator, Mitigation, Department of 

Homeland Security, Federal Emergency 

Management Agency. 

[FR Doc. 2010–24869 Filed 10–4–10; 8:45 am] 

BILLING CODE 9110–12–P 

DEPARTMENT OF TRANSPORTATION 

Federal Railroad Administration 

49 CFR Part 227 

[Docket No. FRA–2009–0044, Notice No. 1] 

RIN 2130–AC14 

Emergency Escape Breathing 

Apparatus Standards 

AGENCY: Federal Railroad 

Administration (FRA), Department of 

Transportation (DOT). 

ACTION: Notice of proposed rulemaking 

(NPRM). 

SUMMARY: FRA is proposing to amend its 

regulations related to occupational 

safety and health in locomotive cabs in 

three ways. First and foremost, pursuant 

to a 2008 Congressional mandate, FRA 

is proposing to include requirements 

that railroads provide an appropriate 

atmosphere-supplying emergency 

escape breathing apparatus (EEBA) to 

the members of the train crew and 

certain other employees while they are 

occupying the locomotive cab of a 

freight train transporting a hazardous 

material that would pose an inhalation 

hazard in the event of release during an 

accident. Second, FRA is proposing to 

reflect the additional subject matter by 

changing the name of the part from 

‘‘Occupational Noise Exposure’’ to 

‘‘Occupational Safety and Health in the 

Locomotive Cab’’ and by making other 

conforming amendments. Third, FRA is 

proposing to remove the provision on 

the preemptive effect of the 

requirements as unnecessary. 

DATES: Written comments must be 

received by December 6, 2010. 

Comments received after that date will 

be considered to the extent possible 

without incurring additional delay or 

expense. 

FRA anticipates being able to resolve 

this rulemaking without a public, oral 

hearing. However, if FRA receives a 

specific request for a public, oral 

hearing prior to December 6, 2010, one 

will be scheduled, and FRA will publish 

a supplemental notice in the Federal 

Register to inform interested parties of 

the date, time, and location of any such 

hearing. 

ADDRESSES: You may submit comments 

related to Docket No. FRA–2009–0044, 

Notice No. 1, by any one of the 

following methods: 

• Fax: 1–202–493–2251; 

• Mail: U.S. Department of 

Transportation, Docket Operations, M– 

30, West Building Ground Floor, Room 

W12–140, 1200 New Jersey Avenue, SE., 

Washington, DC 20590; 

• Hand Delivery: U.S. Department of 

Transportation, Docket Operations, 

West Building Ground Floor, Room 

W12–140, 1200 New Jersey Avenue, SE., 

Washington, DC 20590, between 9 a.m. 

and 5 p.m., Monday through Friday, 

except Federal holidays; or 

• Electronically through the Federal 

eRulemaking Portal, http:// 

www.regulations.gov. Follow the online 

instructions for submitting comments. 

Instructions: All submissions must 

include the agency name, docket name, 

and docket number or Regulatory 

Identification Number (RIN) for this 

rulemaking. Note that all comments 

received will be posted without change 

to http://www.regulations.gov, including 

any personal information provided. 

Please see the Privacy Act section of this 

document. 

Docket: For access to the docket to 

read background documents or 

comments received, go to http:// 

www.regulations.gov at any time or to 

the U.S. Department of Transportation, 

Docket Operations, M–30, West 

Building Ground Floor, Room W12–140, 

1200 New Jersey Avenue, SE., 

Washington, DC, between 9 a.m. and 5 

p.m., Monday through Friday, except 

Federal holidays. 

FOR FURTHER INFORMATION CONTACT: 

Alan Misiaszek, Certified Industrial 

Hygienist, Staff Director, Industrial 

Hygiene Division, Office of Safety 

Assurance and Compliance, Office of 

Railroad Safety, FRA, 1200 New Jersey 

Avenue, SE., Mail Stop 25, Washington, 

DC 20590 (telephone: (202) 493–6002), 

alan.misiaszek@dot.gov or Stephen N. 

Gordon, Trial Attorney, Office of Chief 

Counsel, FRA, 1200 New Jersey Avenue, 

SE., Mail Stop 10, Washington, DC 

20590 (telephone: (202) 493–6001), 

stephen.n.gordon@dot.gov. 

SUPPLEMENTARY INFORMATION: 

Abbreviations and Terms Used in This 

Document 

AAR—Association of American Railroads 

BNSF—BNSF Railway Company 

BLET—Brotherhood of Locomotive Engineers 

and Trainmen 

CFR—Code of Federal Regulations 

DOT—U.S. Department of Transportation 

EEBA—emergency escape breathing 

apparatus 

FRA—Federal Railroad Administration 

FRSA—the former Federal Railroad Safety 

Act of 1970, repealed and reenacted as 

positive law at 49 U.S.C 20106 

IDLH—immediate danger to life or health or 

immediately dangerous to life or health 

ISO—International Organization for 

Standardization 

LBIA—the former Locomotive (Boiler) 

Inspection Act, repealed and reenacted as 

positive law in 49 U.S.C. 20701–20703 

NIOSH—National Institute for Occupational 

Safety and Health 

NPRM—notice of proposed rulemaking 

NS—Norfolk Southern Railway Company 

NTSB—National Transportation Safety Board 

OSHA—Occupational Safety and Health 

Administration 

PHMSA—Pipeline and Hazardous Materials 

Safety Administration 

PIH material—poison inhalation hazard 

material 

ppm—parts per million 

RCO—remote control operator 

RSIA—Rail Safety Improvement Act of 2008, 

Public Law 110–432, Division A 

SCBA—self-contained breathing apparatus 

SBA—Small Business Administration 

T&E employees—train and engine service 

employees 


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1 ‘‘Residue means the hazardous material 

remaining in a packaging, including a tank car, after 

its contents have been unloaded to the maximum 

extent practicable and before the packaging is either 

refilled or cleaned of hazardous material and 

purged to remove any hazardous vapors.’’ 49 CFR 

171.8. 

UP—Union Pacific Railroad Company 

UTU—United Transportation Union 

Table of Contents for Supplementary 

Information 

I. Statutory Background and More Detailed 

Summary of Proposed Regulation 

II. Regulatory Background 

III. Accident History 

IV. FRA-Sponsored Study 

V. Selection of the Appropriate EEBA by 

Railroads 

VI. Provision of EEBAs to Covered 

Employees 

VII. Information and Recommendations 

Provided by the Railroad Industry and 

Railroad Labor Organizations After the 

Study 

VIII. Section-by-Section Analysis 

IX. Regulatory Impact 

A. Executive Order 12866 and DOT 

Regulatory Policies and Procedures 

B. Regulatory Flexibility Determination 

C. Federalism 

D. International Trade Impact Assessment 

E. Paperwork Reduction Act 

F. Compliance With the Unfunded 

Mandates Reform Act of 1995 

G. Environmental Assessment 

H. Energy Impact 

I. Privacy Act 

I. Statutory Background and More 

Detailed Summary of Proposed 

Regulation 

The proposed regulation governing 

the provision of EEBAs is being 

promulgated primarily to satisfy the 

requirements of section 413 of the RSIA, 

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

4848, October 16, 2008 (49 U.S.C. 

20166). The RSIA mandates that the 

Secretary of Transportation (Secretary) 

adopt regulations requiring railroads to 

provide EEBAs for the train crews in the 

locomotive cabs of any freight train 

transporting a hazardous material in 

commerce that would present an 

inhalation hazard in the event of a 

release. Specifically, the statute 

instructs the Secretary to prescribe 

regulations requiring railroads to—(1) 

Ensure that EEBAs affording suitable 

‘‘head and neck coverage with 

respiratory protection’’ are provided ‘‘for 

all crewmembers’’ in a locomotive cab 

on a freight train transporting 

‘‘hazardous materials that would pose an 

inhalation hazard in the event of a 

release’’; (2) provide a place for 

convenient storage of EEBAs in the 

locomotive that will allow 

‘‘crewmembers to access such apparatus 

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

working condition’’; and (4) provide 

crewmembers with appropriate 

instruction in the use of EEBAs. The 

Secretary has delegated the 

responsibility to carry out his 

responsibilities under this section of the 

RSIA to the Administrator of FRA. 74 

FR 26981, 26982, June 5, 2009, 49 CFR 

1.49(oo). In addition, this proposed 

regulation is issued under the authority 

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

20703, as delegated to the Administrator 

of FRA pursuant to 49 CFR 1.49(c) and 

(m). 

If adopted, proposed new subpart C of 

49 CFR part 227 would require any 

railroad transporting a hazardous 

material that would pose an inhalation 

hazard if released during an accident to 

provide an appropriate atmospheresupplying EEBA to train employees, 

direct supervisors of those train 

employees, deadheading employees, 

and, at the discretion of the railroad, 

other employees designated by the 

railroad in writing. FRA’s concern in 

proposing the requirement for the 

provision of EEBAs is focused on 

inhalation hazards that can occur by one 

of two ways: either by displacement of 

oxygen in the atmosphere or by 

poisoning. Termed ‘‘asphyxiants and 

PIH materials’’ in the proposed 

regulation, the covered materials are 

flammable gases; non-flammable, 

nonpoisonous compressed gases; gases 

poisonous by inhalation; and certain 

other materials classified as poisonous 

by inhalation within the meaning of the 

PHMSA’s Hazardous Materials 

Regulations. See 49 CFR parts 171–180. 

The EEBAs are intended to protect these 

employees from the risk of exposure to 

such hazardous materials during the 

period while the employees are located 

in the locomotive cab or escaping from 

the locomotive cab. 

The proposed regulation governing 

EEBAs would also require railroads that 

transport an asphyxiant or a PIH 

material on the general railroad system 

of transportation to establish and carry 

out a series of programs for the 

following purposes: Selection, 

procurement, and provision of the 

devices; inspection, maintenance, and 

replacement of the devices; and 

instruction of employees in the use of 

the devices. Railroads would be 

required to identify individual 

employees or positions to be placed in 

their general EEBA programs so that a 

sufficient number of EEBAs are 

available and to ensure that the 

identified employees or incumbents of 

the identified positions know how to 

use the devices. The proposed 

regulation would require that 

convenient storage be provided for 

EEBAs in the locomotive to enable 

employees to access the apparatus 

quickly in the event of a release of a 

hazardous material that poses an 

inhalation hazard. 

Because the new proposed regulation 

would be placed in 49 CFR part 227, 

FRA also proposes to make conforming 

changes, minor corrections, and updates 

to the existing provisions of part 227. 

Finally, FRA proposes to remove the 

provision at 49 CFR 227.7 on the 

preemptive effect of that part. After 

considering revising the section to 

reflect the preemptive effect of 49 U.S.C. 

20701–20703, FRA has decided to 

eliminate the section as duplicative of 

statutory law and case law. 

II. Regulatory Background 

Hazardous materials that pose an 

inhalation hazard (termed ‘‘asphyxiants 

and PIH materials’’ in the proposed 

regulation) fall into two, sometimes 

overlapping categories defined in the 

Hazardous Materials Regulations. In 

particular, asphyxiants and PIH 

materials are (1) the gases classified by 

49 CFR 173.115 as ‘‘Class 2, Division 2.1 

(Flammable gas)’’; Class 2, ‘‘Division 2.2 

(non-flammable, nonpoisonous 

compressed gas—including compressed 

gas, liquefied gas, pressurized cryogenic 

gas, compressed gas in solution, 

asphyxiant gas and oxidizing gas)’’; or 

Class 2, ‘‘Division 2.3 (Gas poisonous by 

inhalation)’’ and (2) the gases, liquids, 

and other materials defined as a 

‘‘material poisonous by inhalation’’ by 

PHMSA’s Hazardous Materials 

Regulations at 49 CFR 171.8. Under 49 

CFR 171.8— 

‘‘[m]aterial poisonous by inhalation’’ 

means— 

(1) A gas meeting the defining criteria in 

§ 173.115(c) of this subchapter [i.e., Division 

2.3 (Gas poisonous by inhalation)] and 

assigned to Hazard Zone A, B, C, or D in 

accordance with § 173.116(a) of this 

subchapter; 

(2) A liquid (other than as a mist) meeting 

the defining criteria in § 173.132(a)(1)(iii) of 

this subchapter [regarding inhalation 

toxicity] and assigned to Hazard Zone A or 

B in accordance with § 173.133(a) of this 

subchapter; or 

(3) Any material identified as an inhalation 

hazard by a special provision in column 7 of 

the § 172.101 table. 

Asphyxiants and PIH materials that 

are regularly carried by railroads 

include, for example, carbon dioxide, 

chlorine gas, and anhydrous ammonia. 

Such commodities should be easily 

identifiable for train crews, because a 

‘‘rail car transporting any quantity of a 

hazardous material (including either a 

load or the residue 1 of one of these 

covered materials) must be placarded on 

each side and each end’’ pursuant to the 

requirements of 49 CFR 172.504 with 


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61388 Federal Register / Vol. 75, No. 192 / Tuesday, October 5, 2010 / Proposed Rules 

2Class 6, Division 6.1 materials other than 

material poisonous by inhalation must be placarded 

‘‘POISON.’’ See 49 CFR 172.504, Table 2, and 

section on placard design at 49 CFR 172.554. 3AAR data are used here because they permit 

longer term historical comparison of the numbers 

and rates of hazardous materials accidents and 

hazardous material incidents involving rail 

transportation of hazardous material than do the 

analogous data currently available from FRA’s sister 

agency, PHMSA. PHMSA changed the definitions of 

what must be reported to that agency on those 

matters after the year 1998. As a result, PHMSA’s 

data on hazardous materials accidents and 

incidents are not necessarily homogenous in nature 

and do not permit ready comparisons over as long 

a period of time. 

certain specified placards. A car 

containing a Class 2, Division 2.1 

material must have ‘‘FLAMMABLE 

GAS’’ placards. See 49 CFR 172.532. 

Class 2, Division 2.2 materials must 

have ‘‘NON–FLAMMABLE GAS’’ 

placards. See 49 CFR 172.528. A car 

transporting a Class 2, Division 2.3 

material, must have ‘‘POISON GAS’’ 

placards. See 49 CFR 172.540. 

Meanwhile, a car carrying any of the 

subset of Class 6, Division 6.1 materials 

that is a ‘‘material poisonous by 

inhalation’’ must have ‘‘POISON 

INHALATION HAZARD’’ placards, 

except that ‘‘[f]or domestic 

transportation, a POISON INHALATION 

HAZARD placard is not required on a 

transport vehicle [including a rail car] or 

freight container that is already 

placarded with the POISON GAS 

placard.’’ 2 See 49 CFR 172.555 and 49 

CFR 172.504(f)(8). In summary, when a 

train crewmember observes a car 

placarded FLAMMABLE GAS, NON– 

FLAMMABLE GAS, POISON GAS, or 

POISON INHALATION HAZARD while 

the car is part of his or her train, the 

crewmember will know that EEBAs 

must be provided in the locomotive cab 

prior to the train beginning its 

movements. 

III. Accident History 

The historical data suggest that crew 

injuries and fatalities related to the 

catastrophic release of a rail shipment 

(i.e., release of all or nearly all of a rail 

shipment, usually a loaded rail tank car 

or a placarded empty rail tank car, 

which contains a residue of the original 

shipment) of an asphyxiant or a PIH 

material are rare; however, such 

incidents have the potential to be 

deadly. For example, in the 42 years 

between 1965 (the year for which the 

earliest data are available) and 2006, 

there were approximately 2.2 million 

tank car shipments of chlorine. Out of 

these 2.2 million tank car shipments, 

there were only 788 accidents (0.00036 

of all tank car chlorine shipments), 11 

instances where there was catastrophic 

loss (i.e., a loss of all or nearly all) of 

the chlorine lading (0.000005 of all tank 

car chlorine shipments), and 4 of these 

incidents resulted in fatalities 

(0.0000018 of all tank car chlorine 

shipments). See Written Statement of 

Joseph H. Boardman, Administrator, 

FRA, before the Committee on 

Transportation and Infrastructure, 

United States House of Representatives, 

June 13, 2006. Of the four incidents 

with fatalities, two resulted in the 

fatalities of crewmembers. One occurred 

in Macdona, Texas in June of 2004, and 

the other in Graniteville, South Carolina 

in January of 2005. These two fatalities 

involving crewmembers will be 

discussed below. 

While even one death due to 

inhalation of an asphyxiant or a PIH 

material is too many, it is important to 

recognize that there have been dramatic 

improvements in the safety performance 

of rail operations since 1970. Accidents 

and casualty rates declined significantly 

during the 1970s, 1980s, and 1990s, 

with the past decade experiencing a 

leveling off of safety performance. These 

improvements in rail safety have 

resulted in the safer transportation of 

hazardous materials. The AAR has 

found a significant decrease in 

hazardous material incidents since 

1980. According to AAR, hazardous 

material incident release rates are down 

71 percent from 1980 and 56 percent 

from 1990, while hazardous material 

accident rates are down 90 percent from 

1980 and 49 percent from 1990.3 Not 

surprisingly, there also has been a 

corresponding reduction in the number 

of accidents with a hazardous material 

release. Such incidents have fallen 76 

percent since 1980 and 17 percent since 

1990. See Robert Fronczak, ‘‘U.S. 

Railroad Safety Statistics and Trends,’’ 

AAR, May 2005. 

FRA has analyzed the casualty data in 

its possession for on-duty employees in 

train and engine service (T&E) for the 

10-year period from 1997 to 2006. 

During this time frame, a total of 25,941 

non-passenger T&E on-duty casualties 

were reported, with 25,904 injuries and 

37 fatalities. Table 1, below, examines 

those casualties resulting from 

collisions, derailments, and inhalation. 

TABLE 1—NON-PASSENGER T&E EMPLOYEES—ON-DUTY CASUALTIES

[Source: FRA Safety Database—4.02 Casualty Data Reports] 

Reporting year Total 

casualties 

Collision 

casualties 

Collision 

fatalities 

Derailment 

casualties 

Derailment 

fatalities 

Inhalation 

casualties 

Inhalation 

fatalities 

1997 ............................. 2,834 96 8 38 0 58 0 

1998 ............................. 3,004 86 1 37 0 86 0 

1999 ............................. 3,211 76 7 54 1 73 0 

2000 ............................. 3,169 82 2 44 0 63 0 

2001 ............................. 2,872 86 4 50 0 68 0 

2002 ............................. 2,405 84 2 46 1 50 0 

2003 ............................. 2,281 75 2 44 1 63 0 

2004 ............................. 2,211 73 5 55 0 70 1 

2005 ............................. 2,102 84 0 27 0 69 1 

2006 ............................. 1,852 60 1 28 0 64 0 

10-year Average per 

Year .......................... 2,594 .1 80 .2 3 .2 42 .3 0 .3 66 .4 0 .2 

The table includes casualties from 

derailments and collisions because 

derailments and collisions represent the 

most likely events leading to a 

catastrophic hazardous material release 

with T&E personnel present. Similarly, 

these events also have the most 

potential for property damage or injury 

or death to members of the general 

public caused by the release of a 

hazardous material that renders an 

unprotected crew ineffective. As can be 

seen from the table, the overwhelming 

majority of injuries to T&E personnel are 

not attributable to the causes of 

inhalation, collision, or derailment. The 

10-year average of about 193 T&E 

casualties (injured and killed) per year 


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due to inhalation, collision or 

derailment [80.2 + 3.2 + 42.3 + 0.3 + 

66.4 + 0.2] represents just 7.4 percent of 

the average number of 2,594 T&E onduty casualties per year during the same 

period. When just inhalation casualties 

are considered [66.4 + 0.2], the number 

falls to 2.6 percent. Moreover, based on 

a review of the inhalation casualty data 

available to FRA, it appears that a large 

majority of the inhalation casualties 

identified involve (a) employees that 

were not performing train operations or 

(b) environments that fall outside the 

congressional mandate. 

Moreover, the information compiled 

in Table 1 suggests that collisions are 

the most life-threatening event 

experienced by T&E employees. Of the 

37 T&E fatalities identified in the table, 

86.4 percent (32 out of 37) involved a 

collision. This compares to 8.1 percent 

(3 out of 37) involving a derailment. 

Only 5.4 percent (2 out of 37) of T&E 

employee fatalities resulted from 

inhalation. 

To get a better understanding about 

the relative danger of inhalation 

fatalities, the number of deaths resulting 

from inhalation of a hazardous material 

can also be compared to the average 

yearly train-miles and number of 

hazardous material shipments. For the 

period 1997–2006, the average for 

annual train-miles was 734.6 million. 

The 2 on-duty T&E employee deaths 

resulting from the inhalation of 

hazardous material therefore can be 

expressed as a rate of 1 death per 3.67 

billion train-miles. Over the same 

period, this equates to 1 fatality per 5.7 

million shipments of the top 125 

hazardous materials. See ‘‘Annual 

Report of Hazardous Materials 

Transported by Rail, Calendar Year 

2006,’’ AAR, Bureau of Explosives, 

Report BOE 06–1, October 2007. The 

two inhalation fatalities in Table 1 

represent the only known T&E 

employee deaths resulting from a 

hazardous material release. These 

inhalation casualties, both involving the 

release of chlorine, arose out of two 

separate incidents. The first occurred in 

2004 near Macdona, Texas. The second 

occurred in 2005 in Graniteville, South 

Carolina. Each is discussed in turn. 

The incident near Macdona, Texas 

occurred on June 28, 2004. ‘‘A 

westbound Union Pacific Railroad (UP) 

freight train traveling on the same main 

line track as an eastbound BNSF 

Railway Company (BNSF) freight train 

struck the midpoint of the 123-car BNSF 

train as the eastbound train was leaving 

the main line to enter a parallel siding. 

The accident occurred at the west end 

of the rail siding at Macdona, Texas, on 

the UP’s San Antonio Service Unit. The 

collision derailed the 4 locomotive units 

and the first 19 cars of the UP train as 

well as 17 cars of the BNSF train. As a 

result of the derailment and pileup of 

railcars, the 16th car of the UP train, a 

pressure tank car loaded with liquefied 

chlorine, was punctured. Chlorine 

escaping from the punctured car 

immediately vaporized into a cloud of 

chlorine gas that engulfed the accident 

area to a radius of at least 700 feet before 

drifting away from the site. Three 

persons, including the conductor of the 

UP train and two local residents, died 

as a result of chlorine gas inhalation.’’ 

See NTSB’s report on the accident, 

‘‘Collision of Union Pacific Railroad 

Train MHOTU–23 With BNSF Railway 

Company Train MEAP–TUL–126–D 

With Subsequent Derailment and 

Hazardous Materials Release, Macdona, 

Texas, June 28, 2004,’’ Railroad 

Accident Report NTSB/RAR–06/03, 

Washington, DC. 

The Graniteville, South Carolina 

incident occurred on January 6, 2005, 

when a NS freight train encountered a 

switch that had been improperly lined. 

The improperly lined switch diverted 

the train from the main line onto an 

industry track. Once on the industry 

track, the train struck an unoccupied, 

parked train. The collision resulted in 

the derailment of two locomotives and 

16 freight cars on the diverted train, as 

well as the locomotive and one of the 

two cars of the parked train. There were 

three tank cars containing chlorine 

among the derailed cars on the diverted 

train. One of the cars containing 

chlorine was breached causing a release 

of chlorine gas. As a result, ‘‘the train 

engineer and eight other people died as 

a result of chlorine gas inhalation.’’ See 

NTSB’s report on the accident, 

‘‘Collision of Norfolk Southern Freight 

Train 192 With Standing Norfolk 

Southern Local Train P22 With 

Subsequent Hazardous Materials 

Release at Graniteville, South Carolina, 

January 6, 2005,’’ Railroad Accident 

Report NTSB RAR–05/04, Washington, 

DC. 

Following the Macdona and 

Graniteville fatalities, the NTSB issued 

a recommendation that FRA— 

[d]etermine the most effective methods of 

providing emergency escape breathing 

apparatus for all crewmembers on freight 

trains carrying hazardous materials that 

would pose an inhalation hazard in the event 

of unintentional release, and then require 

railroads to provide these breathing 

apparatus to their crewmembers along with 

appropriate training. 

(R–05–17). FRA responded to the NTSB 

recommendation by initiating a study of 

potential emergency escape breathing 

devices for use by crewmembers on 

freight trains transporting hazardous 

material that would pose an inhalation 

hazard if released. 

IV. FRA–Sponsored Study 

Commissioned by FRA and in 

cooperation with the railroad industry 

and railroad labor, the study of EEBAs 

compiled factual information, 

performed technical, risk, and economic 

analyses, and made recommendations 

on ‘‘the use of [EEBAs] by train crews 

who may have exposure to hazardous 

materials [that] would pose an 

inhalation hazard in the event of 

unintentional release.’’ See ‘‘Emergency 

Escape Breathing Apparatus,’’ FRA 

Office of Research and Development, 

Final Report, May 2009, which is posted 

at http://www.fra.dot.gov/downloads/ 

Research/ord0911.pdf and included in 

the docket of this rulemaking. Part of 

this preamble to the NPRM draws from 

the study; however, on further 

consideration of the issues involved and 

on further consultation with 

representatives of the railroad industry 

and railroad labor (as discussed under 

‘‘Section V,’’ below), FRA has come to 

different conclusions on a number of 

matters. These matters include the 

minimum breathing time that EEBAs 

should provide, the analysis of different 

methods of distribution of the devices, 

and the costs and benefits of various 

EEBA alternatives. 

V. Selection of the Appropriate EEBA 

by Railroads 

As previously discussed, section 413 

of the RSIA requires the Secretary to 

promulgate regulations requiring 

railroad carriers— 

to provide emergency escape breathing 

apparatus suitable to provide head and neck 

coverage with respiratory protection for all 

crewmembers in locomotive cabs on freight 

trains carrying hazardous materials that 

would pose an inhalation hazard in the event 

of release. * * * 

49 U.S.C. 20166. 

EEBAs fall within the broad category 

of ‘‘respirators.’’ FRA has examined 

EEBA technologies to determine the 

type of EEBA best suited to satisfy this 

rulemaking mandate of the RSIA. 

Respirators generally fall into two 

categories: Air-purifying respirators and 

atmosphere-supplying respirators. Airpurifying 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. 


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4As of the date of publication for this NPRM, 

NIOSH is in the process of amending its regulations 

in 42 CFR part 84—subpart H, which are applicable 

to closed circuit respirators. See 73 FR 75207, 

December 10, 2008, re Docket No. HHS–OS–2009– 

0025 at http://www.regulations.gov. The proposed 

NIOSH regulations would be applicable to mine 

workers, but NIOSH provides that once the final 

rule is published it would be used to certify 

respirators in other work environments where 

escape respirators are supplied. See also 74 FR 

23815, May 21, 2009, which reopened the comment 

period until October 9, 2009. 

5 ‘‘Assigned protection factor’’ means the level of 

safety that a respirator or a class of respirators is 

expected to provide to employees. Assigned 

protection factors were developed by OSHA to 

designate to employers the proper type of device 

that is required in selecting a respirator. According 

to OSHA, assigned protection factors are not 

applicable to respirators used solely for escape. 

Based on the factors presented, FRA 

proposes 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. 

Two main organizations have 

promulgated performance standards 

governing the use and maintenance of 

respirators. NIOSH, located within the 

Centers for Disease Control and 

Prevention of the U.S. Department of 

Health and Human Services, has worked 

with government and industry partners 

to develop certification standards for 

respirators. The NIOSH regulations 

codified at 42 CFR part 84 establish the 

requirements for NIOSH-certification of 

respirator equipment.4 NIOSH also has 

developed information on safe levels of 

exposure to toxic materials and harmful 

physical agents and issued 

recommendations for respirator use. 

A second entity that has established 

performance standards for respirator 

maintenance and use is the ISO. The 

ISO is a network of national standards 

institutes in 162 countries, including 

the United States through the American 

National Standards Institute. ISO 

develops international standards to 

assist in ensuring the safe performance 

of a wide range of EEBAs. While the ISO 

is not a government organization, it 

works to establish performance 

standards that have scientific and 

technological bases while ensuring that 

products falling within its purview are 

safe and reliable for consumers. The 

organization has promulgated ISO 

23269–1:2008(E), ‘‘Ships and marine 

technology—Breathing apparatus for 

ships—Part 1: Emergency escape 

breathing devices (EEBD) for shipboard 

use.’’ While ISO 23269–1 is directed 

towards EEBAs on ships and marine 

technology, FRA anticipates that this 

ISO standard can be reasonably 

transferred to the railroad environment. 

ISO 23269–1 establishes performance 

specifications for EEBAs that are 

intended to provide air or oxygen to a 

user to facilitate escape from 

accommodation and machinery spaces, 

similar to a locomotive cab, with a 

hazardous atmosphere. However, FRA 

believes that the minimum breathing 

capacity allowed by ISO 23269–1, 

which is 10 minutes, is insufficient for 

the anticipated use in a railroad 

environment. As a result, this NPRM 

proposes a minimum breathing capacity 

of 15 minutes, which would be equally 

applicable to EEBAs certified under the 

requirements of NIOSH. See 42 CFR part 

84, or ISO 23269–1. 

Additionally, OSHA, located within 

the U.S. Department of Labor, is 

responsible for developing and 

enforcing general workplace safety and 

health regulations related to respiratory 

protection. In furtherance of this 

responsibility, OSHA has promulgated 

extensive regulations governing the use 

of respirators of all types, including 

emergency escape devices. See 29 CFR 

1910.134. In drafting this NPRM, FRA 

has considered the requirements of both 

Federal agencies as well as ISO to assist 

in determining the possible types of 

EEBAs that may be used by railroad 

employees whom FRA proposes to 

cover under this rule. 

A comprehensive selection process 

for respirators has been developed by 

NIOSH. See http://www.cdc.gov/niosh/ 

docs/2005-100/pdfs/05-100.pdf. For 

purposes of EEBAs deployed in the 

railroad environment, the two major 

NIOSH factors to consider in selecting a 

respirator are to determine whether the 

respirator is intended for (1) use in an 

oxygen-deficient atmosphere (i.e., less 

than 19.5 percent oxygen (O2)) and (2) 

use in entry into, or escape from, 

unknown or IDLH atmospheres (e.g., an 

emergency situation). 

FRA’s investigation into the 

Graniteville accident found that the 

concentration of the toxic chlorine 

cloud over the accident site area was 

estimated to be approximately 2,000 

ppm. See R. L. Buckley, Detailed 

Numerical Simulation of the 

Graniteville Train Collision, Savannah 

River National Laboratory, Report 

WSRC–MS–2005–00635 October 2005. 

OSHA classifies chlorine as having an 

IDLH level of 10 ppm. FRA roughly 

estimated the distance between the final 

resting spot of the breached chlorine 

tank car in relation to the train crew, as 

well as the wind speed and size of 

breach, to determine that the chlorine 

plume reached the crew within two 

minutes. The coroner’s report on the 

eight civilian fatalities in the 

Graniteville incident indicated that the 

primary cause of death was asphyxia, or 

lack of oxygen. The coroner listed the 

engineer’s primary cause of death as 

lactic acidosis. Exposure to chlorine gas 

was attributed as the secondary cause of 

all deaths in the incident. Under the 

circumstances presented, it appears that 

both NIOSH selection criteria were met. 

There may have been an oxygendeficient atmosphere, and there 

certainly was toxic-gas concentration 

exceeding IDLH levels. 

The Graniteville accident 

demonstrated that railroad hazardous 

material incidents (meaning collision, 

derailment, or other train accident) 

involving the catastrophic loss of certain 

asphyxiants and PIH materials have the 

potential to release IDLH concentrations 

and/or displace oxygen very quickly 

without the crew’s knowledge. In such 

circumstances, the crew may need to 

respond to an incident by donning their 

EEBAs even before assessing the damage 

caused by an accident. Considering the 

variables associated with the 

transportation of hazardous materials 

via rail and the potential hazards that 

exist, FRA proposes, based on the 

NIOSH selection criteria, to require 

railroad to provide an escape-type 

respirator. 

The single function of escape-type 

EEBAs is to allow sufficient time for an 

individual working in a normally safe 

environment to escape from suddenly 

occurring respiratory hazards. Given 

this function, the selection of the device 

does not rely on assigned protection 

factors designated by OSHA.5 Instead, 

these escape-type respirators are 

selected based on a consideration of the 

time needed to escape in the event of 

IDLH or oxygen-deficient conditions. 

Pursuant to statutory requirements, 

FRA’s proposed regulation would 

require the provision of a device with 

head and neck coverage. Escape-type 

SCBA devices are commonly used with 

full-face pieces or hoods. Such devices 

are usually rated from 3- to 60-minute 

units depending on the supply of air. 

The following two types of 

atmosphere-supplying SCBA would 

satisfy the protection requirements of 

this proposed regulation: 

• Open Circuit SCBA. These are 

typically classified as positive pressure, 

open circuit systems whereby the user 

receives (inhales) clean air with 21 

percent O2 from a compressed air 

cylinder worn with a harness on the 

back. The user’s exhaled breath contains 

significant amounts (15 percent) of 

unused oxygen that is vented to 

atmosphere. Because much of the user’s 

exhaled breath vents to atmosphere, the 

size of open circuit systems is larger 

than closed circuit systems. Open 


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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, 

re-breathers perform as their name 

implies. The user re-breathes his or her 

breath. A chemical scrubber removes 

the carbon dioxide (CO2) from the user’s 

breath and makes up metabolized O2

from a small bottle of compressed 100- 

percent O2. Because the user is rebreathing his or her exhaled air 

containing 15 percent oxygen, a rebreather is four times more efficient 

than an open circuit system. As a result, 

such systems are capable of either 

lasting much longer than open circuit 

systems (if size were comparable) or 

providing the same breathing duration 

as an open circuit system but in a 

smaller package. Re-breathers may be 

employed with full-face masks or hoods. 

Negative pressure re-breathers do not 

require a tight seal. 

First responders (such as firefighters) 

commonly use open circuit positive 

pressure SCBA systems for entering the 

scene of an emergency event. However, 

such devices may not be best situated to 

the railroad environment. In addition to 

being heavy and cumbersome from 

incorporating a large compressed air 

cylinder mounted to a harness, they also 

commonly incorporate use of a full-face 

piece. Depending on the program 

developed by each railroad, the 

incorporation of a full-face piece may be 

a logistically and economically difficult 

undertaking. To be effective, a full-face 

piece requires an airtight seal around 

the user’s face, which means that each 

user must be personally fitted for the 

device. It also means the user must be 

cleanly shaven or otherwise free of 

excessive facial hair. The enforcement 

of such a requirement would be difficult 

at best. 

FRA believes that hoods provide a 

useful alternative to full-face masks 

while protecting the face and neck. 

Hoods are universal fitting devices and 

can be used with open and closed 

circuit SCBAs. Because they are 

universal fitting, hoods do not require 

personally fitting the user, and hoods 

operate efficiently regardless of most 

eyewear, facial features, or hair. 

Significantly, hoods also allow the 

wearer to communicate while using the 

SCBA. 

Experience has shown that a plume of 

hazardous material can travel quickly. 

As a result, it is vitally important that 

the train crew has adequate breathing 

time available to allow each member to 

move a significant distance from the site 

while protected from the ambient 

atmosphere. Because such incidents 

will often result from a collision, as was 

the case in Macdona and Graniteville, 

consideration should be given to those 

situations where additional time may be 

used to assist or extricate fellow 

crewmembers that may be hurt or 

trapped. For example, if it takes 10 

minutes to assist a fellow crewmember 

and each is wearing a 15-minute open 

circuit respirator, each crewmember is 

left with 5 minutes to escape from any 

plume that may be present. Moreover, 

often individuals will have a tendency 

to over-breathe in stressful situations, 

which will shorten the breathing time 

available in a respirator. In selecting an 

EEBA with sufficient breathing time, 

each railroad should take into 

consideration these factors and others 

that contribute to the ‘‘Murphy’s Law’’ 

effects of accidents such as an incident 

occurring at night or in tight terrain. As 

a result, FRA proposes a 15-minute 

minimum breathing capacity for an 

EEBA provided to a covered employee. 

Further, FRA encourages railroads to 

consider EEBAs with a longer breathing 

capacity, to provide an extra margin for 

escape under stressful circumstances. 

VI. Provision of EEBAs to Covered 

Employees 

The proposed regulation does not 

specify a particular method by which a 

railroad is to provide EEBAs to the 

employees that Congress intended to 

cover. See discussion of covered 

employees at Section-by-Section 

Analysis of proposed §§ 227.201 and 

227.211, below. FRA recognizes that 

there are differing methods for 

effectively distributing suitable EEBAs 

among a railroad’s covered employees 

or its locomotive fleet or both. Each of 

these options has advantages and 

disadvantages. Given these factors, FRA 

believes that it is best to allow each 

railroad to choose the method of 

distribution that works for it as long 

as—(1) covered employees are provided 

with a suitable device while they are in 

the locomotive cab of a freight train 

transporting an asphyxiant or a PIH 

material and (2) transportation of a 

covered hazardous material is not 

unduly delayed, particularly where the 

covered train (or a locomotive intended 

to be used to haul a covered train) is 

interchanged from one railroad to 

another. See V. Information and 

Recommendations Provided by the 

Railroad Industry and Railroad Labor 

Organizations after the Study, for 

relevant remarks. 

Under the proposed regulation, 

EEBAs may be treated as part of an 

employee’s permanently issued items, 

similar to eye protection, radios, and 

lanterns. This would allow railroads to 

permanently issue an EEBA to each 

potentially covered employee (e.g., for a 

freight railroad that regularly hauls one 

or more asphyxiants or PIH materials, 

possibly all of its train employees). The 

device would be in the user’s control at 

all times, and each individual would be 

responsible for having the device in his 

or her possession. The carrier would 

still be responsible to ensure the state of 

the equipment through an inspection 

program; however, the company would 

be relieved of most of the 

responsibilities for EEBA management. 

Theoretically, this option would tend to 

result in better cared for equipment and 

lower replacement costs. Moreover, 

personal assignment allows for 

customization of the EEBA. Negative 

aspects of treating EEBAs as a 

permanently issued item include 

difficulty in monitoring the EEBA status 

and ensuring that the EEBA is with the 

user at all times that it is required to be 

available. Additionally, permanently 

issuing the EEBA would add to an 

already lengthy list of items expected to 

be carried by train employees. 

Alternatively, EEBAs may also be 

permanently assigned to an individual 

as a dedicated personal item that would 

be issued at the start of each shift and 

recovered at the end of each shift as part 

of the clock-in/clock-out process. This 

method allows for customization and 

allows the EEBA to be with the user at 

all times that the user is on duty, while 

supporting centralized inspection and 

maintenance. However, the railroad may 

experience greater costs due to the 

increased size of its EEBA inventory 

since all train employees that have the 

potential to work in the locomotive cab 

of a freight train transporting an 

asphyxiant or a PIH material would 

require stocked EEBAs. This alternative 

may also create difficulties in the 

provision of EEBAs if the train 

employees who must have access to the 

EEBAs have more than one on-duty 

location. 

The third option is to treat EEBAs as 

‘‘pool’’ items not assigned to a specific 

individual that are issued randomly at 

the start of each shift and recovered at 

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

supports centralized inspection and 

maintenance while minimizing number 

of EEBAs required. Likewise, the EEBA 

would be with the user throughout his 

or her entire shift. However, this system 

may have hidden costs. The railroad 

will likely lose the benefits of 

‘‘ownership’’ if EEBAs are treated as 

common property. This system also 

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6FRA believes that AAR’s reference to ISO 

23269–1:2007(E) is a typographical error made 

either by AAR or the publisher. FRA has been 

informed that the first edition of ISO 23269–1 was 

published in 2008, and that there is no 2007 version 

of this standard. 

7AAR’s draft specification provides an option for 

compliance by following ISO 23269–1. Yet, it also 

requires that the escape device ‘‘function for at least 

15 minutes.’’ FRA recommends that AAR clarify the 

apparent inconsistency in its draft specification to 

indicate that the provision of ISO 23269–1 that calls 

for a 10-minute minimum does not apply. 

size-fits-all EEBAs and increases the 

management burden for tracking and 

recovery of EEBAs. 

A fourth option would be to have 

EEBAs permanently mounted in each 

locomotive cab in the railroad’s fleet. 

This method would ensure that consists 

transported by the railroad that include 

an asphyxiant or a PIH material are 

always adequately equipped, while 

supporting centralized inspection and 

maintenance. The negative aspects of 

permanently mounting the EEBA 

selected by the railroad in the cabs of 

the railroad’s locomotive fleet include 

the increased size of the railroad’s EEBA 

inventory if non-covered consists would 

transport the EEBAs, increased 

management burden for tracking/ 

recovery, increased management burden 

for item inspection and maintenance, 

potential lack of flexibility as EEBAs 

must be provided for worst-case crewing 

(including possible supernumerary 

personnel such as deadheading 

employees), and unavailability of 

customized EEBAs. 

As will be discussed in V. Information 

and Recommendations Provided by the 

Railroad Industry and Railroad Labor 

Organizations After the Study, AAR has 

proposed that Class I railroads 

interchanging locomotives with each 

other provide the same type of EEBA 

using the method of equipping the 

locomotive, which would expedite 

interchange between two Class I 

railroads. However, the option of 

permanently mounting within each 

locomotive an EEBA selected by that 

railroad for its program could create 

delays at interchange if locomotives 

from nonparticipating railroads are 

offered in interchange to Class I 

railroads to haul covered trains. The 

delay could occur if the 

nonparticipating railroad delivers a 

locomotive in interchange that either 

lacks an EEBA of any kind or that has 

an EEBA that does not conform to the 

type specified under the Class I 

railroad’s general EEBA program under 

proposed § 227.211. 

EEBAs also could be temporarily 

mounted in the locomotive cab as the 

train containing a shipment of 

asphyxiant or PIH material is made up. 

This option would help to minimize the 

number of EEBAs required, while 

ensuring that each consist containing an 

asphyxiant or a PIH material is 

appropriately equipped. It would also 

allow the railroad to cater efficiently to 

differing crew sizes. Problems with this 

method include increased management 

burden for the initial issue of EEBAs to 

the consist, increased management 

burden for tracking/recovery, increased 

management burden for item inspection 

and maintenance, and unavailability of 

customized EEBAs. 

FRA recognizes that these are but a 

few of the numerous options for the 

provision of EEBAs, each having its own 

costs and benefits. Any of these options 

(or combination of these options), 

including options that have not been 

discussed above, would be acceptable 

under the proposed regulation as long as 

a suitable EEBA is provided by the 

railroad to each covered employee while 

he or she is in the locomotive cab of a 

covered train without unduly delaying 

the transportation of covered hazardous 

materials via rail. 

VII. Information and Recommendations 

Provided by the Railroad Industry and 

Railroad Labor Organizations After the 

Study 

As previously mentioned, 

representatives of both the railroad 

industry and railroad labor cooperated 

with the FRA-sponsored study on the 

feasibility of providing EEBAs to train 

crews, the report of which was 

published in May 2009. More recently, 

the AAR, the UTU, and the BLET have 

exchanged information and ideas with 

FRA on issues related to this 

rulemaking. 

In July 2009, representatives of the 

AAR briefed FRA with information on 

the AAR’s exploration of alternative 

ways by which the rulemaking mandate 

under section 413 of the RSIA might be 

carried out. The AAR has also offered 

recommendations to FRA on issues 

related to this rulemaking, including the 

type of EEBA and the mode of providing 

it that FRA should accept as satisfying 

the statutory mandate. 

Subsequently, in a letter to FRA dated 

January 13, 2010, which has been 

attached as Appendix A to this NPRM, 

an AAR representative said that— 

the railroads’ Industrial Hygienists have 

finalized a specification for a device that 

meets the objective of the RSIA which is to 

provide for escape from the area where a 

release of hazardous materials has occurred 

that may pose an inhalation hazard. One of 

the important features of this specification is 

the provision for the device to have a 15 

minute functional rating. Investigations and 

studies by the railroads’ Industrial Hygienists 

have found that the area of destruction 

following a release is such that 15 minutes 

is a more than adequate time period to escape 

the area. Requiring a device with a greater 

capacity would result in one that is larger 

and heavier than called for in this 

specification. Real estate in the locomotive 

cab is already at a premium. It is problematic 

for the railroads to install brackets or holders 

for the [emergency escape breathing device] 

called for in this specification. Requiring a 

larger device in the regulation would 

complicate this issue by taking more space. 

Similarly, requiring a device with a greater 

functional rating would necessitate crew 

members to manage a device easily twice the 

size and weight of the six (6) pound unit 

preferred by the Industrial Hygienists. 

Further, the letter said that the 

specification referenced earlier, ‘‘M– 

1005, is presently being worked through 

the approval process for AAR 

Standards. It is this specification that 

we recommend FRA include by 

reference in the forthcoming regulation.’’ 

A copy of the January 20, 2010, draft of 

that specification as provided by the 

AAR is at Appendix B to this NPRM. 

The draft specification would 

establish guidelines for vendors of 

EEBAs that would be used by Class I 

railroads. It requires that the EEBA 

provided by the vendor be certified by 

NIOSH as a ‘‘Self-Contained Breathing 

Apparatus (SCBA)—Escape Only,’’ or 

comply with some other ‘‘National/ 

International standard such as ISO 

23269–1:2007(E): Emergency Escape 

Breathing Device (EEBD).’’ 6 AAR’s draft 

specification allows for EEBAs that are 

either Closed Circuit Escape Respirators 

or Open Circuit Escape Respirators. 

Each EEBA must have at least a 15- 

minute approval rating, meaning that 

the device must function for at least 15 

minutes during 3-mph treadmill tests 

and 30 minutes for stationary tests.7 The 

materials used in each EEBA must be 

resistant to IDLH levels of gaseous 

chlorine, anhydrous ammonia, and 

other toxic inhalation hazard (TIH) 

substances. Additionally, each EEBA 

shall provide respiratory, head, and 

neck protection when tested at 

challenge concentrations of 10,000 ppm 

anhydrous ammonia and chlorine gas 

with a hood that is sufficient in size to 

cover head and neck of larger than 

average head size. To facilitate 

transferability, under the proposed 

specification, the ‘‘escape system must 

interchange with all Class [I] railroads.’’ 

Id. 

AAR’s draft specification also 

establishes requirements for mounting 

EEBAs on locomotives. The EEBAs and 

the mounting devices must be 

sufficiently small (5’’ deep by 8’’ wide by 

10’’ high) and light (6 lbs. or less), so 

that they can be easily mounted in a 

locomotive cab and be easily accessible 


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in an emergency situation. Each wall 

mount case must be bright safety orange 

and contain a photoluminescent label 

marked with the text stating ‘‘Emergency 

Escape Breathing Device.’’ The draft 

specification further requires that the 

mount device contain a clear window 

that allows a train employee to easily 

view the oxygen gauge. For security 

purposes, the draft specification 

provides that the mount device shall 

contain a time-stamped seal and plastic 

tamper tie that is easily identifiable 

when broken. Additionally, each EEBA 

must have a small radio frequency 

indicator (RFID) tag that is attached to 

the EEBA and faces outward while in 

the mount device, which facilitates the 

use of an RFID handheld reader during 

inspections. Moreover, AAR’s draft 

specification requires that the EEBA 

provided by a vendor to any Class I 

railroad must have undergone 

accelerated random vibration test using 

a typical locomotive cab profile and 

there must be evidence of impact and 

vibration resistance resulting from such 

testing. Assuming a 50-percent duty life 

cycle, the device must have a 15-year 

service life based on escape device 

performance and mounting device 

structural integrity tests. Finally, the 

proposed specification requires that 

each EEBA be attachable to a train 

employee’s belt and that the EEBA not 

be activated solely by its removal from 

wall mount case. 

Lastly, AAR’s draft specification 

requires training support. The training 

shall include a video of various 

locomotive models and video portions 

including each Class I railroad. Subjects 

that must be covered during instruction 

include discussion about the proper 

techniques for donning the EEBA, 

requirements for maintenance, 

requirements for inspections, typical 

scenarios where an EEBA will be used, 

and requirements for training. The draft 

specification further requires seminars 

that allow train service trainers to be 

involved in hands-on and face-to-face 

‘‘train-the-trainer’’ situations. 

Additionally, FRA representatives 

also met with UTU and BLET 

representatives on March 31, 2010 to 

brief FRA on issues related to the 

provision of EEBAs. AAR was also in 

attendance at this meeting. Prior to the 

meeting, UTU provided a discussion 

document, which is Appendix C to this 

NPRM, outlining some of its concerns 

about the provision of EEBAs on 

locomotives. UTU felt that EEBAs 

should be ‘‘placed on all occupied 

locomotives which operate over a 

corridor where freight trains carry 

hazardous materials that pose an 

inhalation hazard in the event of a 

release.’’ Under UTU’s recommendation, 

each occupied locomotive would be 

required to have working EEBAs—even 

if the occupied locomotive is not part of 

a train carrying asphyxiants or PIH 

materials—as long the locomotive is 

operating over a rail line that carries 

such materials. 

During the March 31st meeting, UTU 

indicated that it opposed issuing EEBAs 

as personal items. UTU felt that adding 

an additional item to each train 

employee’s required personal 

equipment would unnecessarily burden 

crewmembers. UTU was concerned with 

not only the added weight, but also the 

extra responsibility for care and 

maintenance that would fall to train 

employees in the event that EEBAs are 

provided as personal equipment. It 

contended that railroads are in a better 

position than the employees to maintain 

the devices and stated that treating 

EEBAs as personal equipment would 

not satisfy the intent of Congress in 

passing the legislation. 

Finally, UTU stressed that there must 

be sufficient training of train employees 

in the use of EEBAs. Such training 

would ensure that train employees 

would know how to use EEBAs if 

presented with a situation in the field 

where their use was required. UTU 

expressed a strong desire for regular, 

hands-on training with devices selected 

by the railroads to achieve these ends. 

FRA seeks comment on AAR’s draft 

specification as well as UTU’s 

discussion document. Specifically, FRA 

welcomes comments about whether it 

would be appropriate to incorporate a 

specification of the type that AAR has 

drafted into the final rule and whether 

it would be advisable for FRA to alter 

its proposed regulation based on either 

the AAR specification or the UTU 

discussion document. 

VIII. Section-by-Section Analysis 

Part 227—Occupational Safety and 

Health in the Locomotive Cab 

FRA proposes to change the name of 

the part from ‘‘OCCUPATIONAL NOISE 

EXPOSURE’’ to ‘‘OCCUPATIONAL 

SAFETY AND HEALTH IN THE 

LOCOMOTIVE CAB’’ in order to reflect 

the broader subject matter of the part. 

Previously, part 227 contained 

regulations related only to dangers from 

occupational noise exposure. FRA 

concluded that part 227 was the most 

natural place to put the proposed 

regulations related to the provision of 

EEBAs because the occupational noise 

regulations and the proposed EEBA 

regulations both concern dangers to the 

occupational safety and health of 

locomotive cab occupants. However, the 

inclusion of the proposed EEBA 

regulations requires broader language to 

accurately capture the subject matter 

that would be covered in part 227. 

Subpart A—General 

Section 227.1 Purpose and Scope 

FRA proposes to amend this section 

to reflect the expanded purpose and 

scope of this part. 

Section 227.3 Applicability 

FRA proposes amending this section 

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

subpart B only and that the title 

mentioned, ‘‘Associate Administrator for 

Safety,’’ is updated to reflect the current 

title, ‘‘Associate Administrator for 

Railroad Safety/Chief Safety Officer.’’ 

New paragraphs (c) and (d) define the 

types of railroad operations to be 

covered by proposed subpart C. In 

particular, proposed subpart C applies 

to a railroad that transports an in-service 

freight train that carries an asphyxiant 

or a PIH material, including a residue of 

such asphyxiant or PIH material, on 

track that is part of the general railroad 

system of transportation. See 49 CFR 

part 209, appendix A. If a railroad does 

not haul such a material on the general 

system, it is not subject to this subpart. 

It should be noted that, with some 

exceptions, common carriers by railroad 

have a ‘‘common carrier’’ obligation to 

accept for rail transportation an 

asphyxiant or a PIH material if it is 

properly prepared for transportation. If 

a railroad accepts and transports a tank 

car containing a load or residue of an 

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

has never done so before, the railroad 

would become subject to this rule. FRA 

realizes that triggering the applicability 

of this rule upon the company’s first 

transporting of an asphyxiant or a PIH 

material in a freight train could delay 

the transportation of such material if the 

company did not voluntarily take the 

steps required by the rule (e.g., 

preparation of general EEBA program, 

procurement and distribution of EEBAs, 

and instruction of employees in the 

program) in advance. Further, a delay 

related to compliance with this 

proposed rule could conflict with the 

railroad’s duty to expedite the 

transportation of hazardous material, 

pursuant to the Hazardous Materials 

Regulations at 49 CFR 174.14. 

Accordingly, FRA seeks comment on 

this aspect of the proposal. 

Section 227.5 Definitions 

The proposed rulemaking would 

amend this section to add definitions for 

key terms used in subpart C. The terms 


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defined are set forth alphabetically. FRA 

intends these definitions to clarify the 

meaning of the terms for purposes of 

this part. Many of these definitions have 

been taken from the regulations issued 

by OSHA and NIOSH and are widely 

used by safety and health professionals, 

such as the definition of ‘‘immediately 

dangerous to life or health (IDLH).’’ 

Additionally, FRA defines ‘‘asphyxiant 

or PIH material’’ to clarify the universe 

of materials carried by freight trains for 

which EEBAs must be provided. 

Section 227.7 Preemptive Effect 

FRA proposes deleting this section 

and reserving it for use for two reasons. 

First, the section is unnecessary because 

it is duplicative of statutory law at 49 

U.S.C. 20106 and case law. Second, the 

section is incomplete because it omits 

reference to the preemptive effect of the 

former LBIA, repealed and recodified at 

49 U.S.C. 20701–20703, see Public Law 

103–272 (July 5, 1994), which has been 

held to preempt the entire field of 

locomotive safety. See Napier v. 

Atlantic Coast Line R.R., 272 U.S. 605, 

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

‘‘Federalism,’’ below. 

Section 227.15 Information Collection 

FRA proposes to amend this section 

to note the provisions of this part, 

including subpart C, that have been 

reviewed and approved by the Office of 

Management and Budget (OMB) for 

compliance with the Paperwork 

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

3501 et seq. 

Subpart B—Occupational Noise 

Exposure for Railroad Operating 

Employees 

FRA proposes a set of minor 

corrections to this subpart. The term 

‘‘Class 1’’ is removed wherever it 

appears and replaced with the corrected 

term ‘‘Class I’’. The incorrect term 

appears in, for example, § 227.103(a)(1). 

Subpart C—Emergency Escape 

Breathing Apparatus Standards 

Section 227.201 Criteria for Requiring 

Availability of EEBAs in the Locomotive 

Cab 

Proposed § 227.201(a)(1) requires that 

an EEBA be provided by a railroad to 

each of its train employees, direct 

supervisors of train employees, 

deadheading employees, and other 

employees designated by the railroad in 

writing and at the discretion of the 

railroad who are required to work in or 

occupy the cab of the locomotive of one 

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

freight train that is transporting an 

asphyxiant or a PIH material). The 

EEBA provided must have been selected 

in accordance with the criteria in 

§ 227.203. Moreover, the EEBA provided 

shall have been inspected and 

determined to be in proper working 

condition under § 227.207. 

Paragraph (a)(2) proposed in this 

section prohibits utilizing a locomotive 

to transport an asphyxiant or a PIH 

material in an in-service freight train 

unless each of the employees identified 

in paragraph (a)(1) in the cab of the 

locomotive has access to an EEBA that 

was selected in accordance with 

§ 227.203 and that has been inspected 

and is in proper working order pursuant 

to § 227.207. Paragraph (a)(2) makes 

clear that it is not enough for a railroad 

to merely issue an EEBA to an 

employee, e.g., as a uniform item; the 

EEBA must be physically available to 

the employee in the cab of the covered 

train. For instance, it is not a defense to 

a violation of § 227.201(a)(2) that the 

railroad provided the EEBA to the 

employee and instructed the employee 

to have it while in the cab, but the 

employee lost or forgot it. 

This proposed section also includes 

exceptions to its general requirements in 

paragraph (b). FRA has considered 

whether EEBAs should be required on 

intermodal trains that transport small 

quantities of asphyxiants and PIH 

materials. FRA proposes excluding 

intermodal trains from the requirements 

in this section. Railroads generally do 

not accept asphyxiants or PIH materials 

in intermodal shipments, and the risk of 

poisonous inhalation in the event of a 

release from an intermodal shipment is 

relatively low based on the quantities 

and packaging of materials carried by 

such trains. Therefore, there is not a 

substantial risk that the release of all or 

most of a shipment of an asphyxiant or 

a PIH material on an intermodal train 

would endanger the crew. 

FRA is also aware that certain 

activities involving low-speed, intrayard movements involve little potential 

exposure to the kinds of circumstances 

that this rule is intended to protect 

against. Employees who are involved in 

those activities, such as moving a 

locomotive coupled to a car or group of 

cars containing an asphyxiant or 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. 

FRA considered exempting remote 

control operators (RCOs) who are not in 

the cab of a locomotive during the 

movement of an in-service freight train 

transporting an asphyxiant or a PIH 

material. FRA’s concern was that an 

RCO who is on the ground and some 

distance away from the locomotive 

while the train is being moved normally 

would not be in a position to readily 

access the locomotive to don an EEBA 

in the event of a release. In such a 

circumstance, FRA would not want to 

encourage the RCO to move toward the 

locomotive cab to retrieve an EEBA that 

was provided according to a regulatory 

mandate when the best course of action 

is to immediately retreat to a safe 

distance away from the PIH material or 

asphyxiant. The AAR’s January 13, 

2010, letter also expresses this concern. 

However, FRA ultimately decided that it 

was unnecessary to provide a separate 

exclusion for RCO’s conducting 

movements from the ground. An RCO is 

primarily on the ground when 

performing switching operations. These 

types of activities are not considered 

freight train movements under this part. 

Therefore, there would not be a 

requirement to provide EEBAs in the 

locomotive cab in such a circumstance. 

Alternatively, once switching operations 

have ceased and the crew is ready to 

leave the yard with an in-service freight 

train, FRA would expect the RCO to 

occupy the cab and ride in the 

locomotive from point A to point B. 

Once the RCO has entered the 

locomotive cab for this type of 

movement, the rationale for excluding 

RCOs ceases to exist, and FRA would 

expect the RCO to be provided an EEBA 

as a train employee who is occupying 

the locomotive cab if the movement of 

the in-service freight train includes 

transporting an asphyxiant or a PIH 

material. 

It should be noted that the AAR’s 

January 13, 2010 letter to FRA asserts 

that ‘‘there may not be a justified need 

for an [EEBA] in traditional operations 

involving Yard and Local Freight trains 

as well.’’ The letter reasons that, like an 

RCO— 

a crewman may feel the need to walk 

through a product mist to the locomotive to 

obtain and apply the device rather than 

escaping to a nearby yard office without one. 

Therefore, Yard and Local Freight 

assignments should also be exempt from a 

requirement for [EEBAs]. 

The letter does not define ‘‘Yard and 

Local Freight trains.’’ The proposed rule 

applies only to freight trains, which are 

defined as excluding ‘‘switching 

service,’’ which is in turn defined as the 

classification of cars according to 

commodity or destination, assembling 

cars for train movements, changing the 

position of cars in order to load, unload, 

or weigh them, placing cars for repair or 

storage, and moving rail equipment in 

connection with work service does not 

constitute a train movement. FRA notes 

that yard limits sometimes cover a large 


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area and that a large amount of 

anhydrous ammonia is transported in 

freight trains by local crews. 

Accordingly, FRA has not proposed to 

exclude ‘‘Yard and Local Freight trains.’’ 

FRA requests comment on these issues. 

Finally, proposed paragraph (c) 

establishes that, notwithstanding the 

exceptions identified in § 227.201, any 

employee who is found to have willfully 

tampered with or vandalized an EEBA 

will be subject to subpart C for 

enforcement purposes. As a result, an 

employee to whom the railroad is not 

required to provide an EEBA may 

become subject to this subpart by 

vandalizing or willfully tampering with 

an EEBA. By proposing this paragraph, 

FRA intends to foreclose a loophole that 

otherwise would preclude FRA from 

pursuing enforcement actions against 

mechanical employees and other 

employees who may have access to 

EEBAs, but for whom the railroads are 

not required to provide a device by 

these regulations. 

Section 227.203 Criteria for Selecting 

EEBAs 

This proposed section provides the 

basis for selecting an EEBA. See general 

discussion at III. Selecting an 

Appropriate EEBA, above. The 

requirements for selection of EEBAs are 

based on the nature and extent of the 

potential hazard to be faced. To ensure 

that the EEBAs have met a standard set 

of testing criteria, NIOSH-certified (42 

CFR part 84) or ISO-certified (ISO 

23269–1:2008(E)) EEBAs, with 15- 

minute minimum breathing capacity are 

mandated. Among these EEBAs, the 

necessity to choose specific types of 

EEBAs that address the different 

asphyxiants and PIH materials carried 

by the railroad (or by locomotives 

interchanged by the railroad to another 

railroad), including their varying modes 

of toxicity and physical state, forces the 

selection of EEBA types that supply a 

breathable atmosphere to the wearer 

rather than types that simply filter out 

the toxic material. 

Filtering EEBAs, even those as 

advanced as military-style gas masks, 

cannot provide protection from a simple 

asphyxiant gas such as carbon dioxide 

or liquefied petroleum gas since the 

presence of this type of gas in sufficient 

concentration displaces the oxygen in 

the atmosphere. Filtering EEBAs 

approved for protection against specific 

materials usually are not approved for 

others of different chemical 

characteristics. For example, chlorinefiltering EEBAs do not also protect 

against ammonia. Filtering EEBAs also 

generally have an upper concentration 

limit to their protective capabilities. 

None are approved for use in IDLH 

environments. The IDLH limit for 

chlorine is 10 ppm, while the IDLH 

limit for ammonia is 300 ppm. In a 

situation such as the accident at 

Graniteville, SC, the concentration of 

chlorine was estimated to be several 

hundred times higher. 

Once the choice is forced to an 

atmosphere-supplying EEBA, the issues 

of useful life (how long a user under 

stress can breathe before consuming the 

limited air supply) and usability (e.g., 

the ease of donning and the ability to 

function wearing the EEBA) are critical. 

Over-breathing is a phenomenon that 

occurs when a person under stress 

breathes at a rate that exceeds the 

supply capability of the EEBA. This has 

two major consequences. First, any 

leaks around the sealing surface of the 

respirator will allow the toxic materials 

in the atmosphere to enter the breathing 

space. This may result in anything from 

simple irritation to incapacitation. 

Second, the increased breathing rate 

consumes the limited supply of air more 

quickly than anticipated. To ensure that 

the EEBA provides adequate oxygen to 

allow train employees to extricate 

themselves from an IDLH atmosphere, 

FRA proposes that the EEBA have a 

minimum breathing capacity of 15 

minutes. While this minimum may 

differ from that provided for by NIOSH 

and ISO, FRA considers a 15-minute 

minimum necessary to allow an 

opportunity to escape from an 

asphyxiant or a PIH material in the 

railroad environment. Specifically, FRA 

is concerned that the 10-minute 

minimum provided for in ISO 23269–1 

would not be sufficient to safely escape 

from an asphyxiant or a PIH material 

that has been released, given the 

potential for rough terrain for a 

comparatively long distance, 

uncertainty concerning the location of 

the release, and the possibility that 

other employees may be incapacitated. 

A related issue is that of user 

competence in donning such an EEBA 

properly before leaving the locomotive 

cab under accident conditions. 

Competence in this sense is meant to 

address whether, under severe stress 

and possibly suffering from injury, train 

employees will remember even to don 

the EEBA as well as how to do so 

properly. Anecdotal evidence from 

military experience in recent conflicts 

suggests that even soldiers who have 

trained repeatedly with chemical 

protective gear and EEBAs have 

difficulty under stressful conditions 

properly donning the EEBAs and other 

gear. 

The remaining issues involve face and 

neck protection, particularly preventing 

the possibly highly irritating materials 

from reaching the eyes. The EEBA 

selected must provide a means of 

protecting a user’s eyes to facilitate the 

ability of the user to escape. This issue 

relates to the function of the respirator 

sealing surface to keep contaminants out 

of the breathing space. Some respirators 

use an elastomeric surface to seal the 

respirator to the face of the user, 

covering from the forehead to the chin. 

Others use a hood with a clear window, 

or with the hood made out of 

completely clear plastic, and having a 

flexible seal around the user’s neck to 

provide this protection. Either of these 

designs is capable of accommodating 

users who wear eyeglasses. Respirators 

with the elastomeric face seal encounter 

more difficulty in accommodating those 

users who have very large or very small 

or oddly shaped facial features, facial 

deformities, or beards. It is anticipated 

that the EEBAs selected will 

accommodate these issues by either 

custom fitting of individuals or using 

EEBAs with hoods as the face piece. 

Section 227.205 Storage Facilities for 

EEBAs 

This proposed section addresses the 

mandate in the RSIA that the rule 

require railroads to ‘‘provide convenient 

storage in each freight train locomotive 

to enable crewmembers to access such 

apparatus quickly.’’ FRA has adapted 

the storage requirements promulgated 

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

this NPRM. The storage requirements 

enumerated should assist railroads in 

maintaining viable EEBAs while 

providing the railroads with flexibility 

in meeting the statutory mandate. 

However, there may be a necessity for 

variation from those requirements to 

permit the storage of an EEBA assigned 

to an employee in the employee’s 

luggage if the locomotive already has a 

separate locomotive-mounted EEBA. 

This change would be based on the 

shortage of free space in the locomotive 

cab. FRA requests comments on this 

possible revision and how it would 

square with the stated requirements. 

Section 227.207 Railroad’s Program 

for Inspection, Maintenance, and 

Replacement of EEBAs; Requirements 

for Procedures 

This proposed section requires each 

railroad to establish and carry out 

procedures intended to ensure that 

EEBAs required to be present in the 

locomotive cabs are fully functional. 

This section is adapted from OSHA’s 

inspection documentation requirements. 

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


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EEBAs selected may have differing 

requirements for inspection, 

maintenance, and replacement, this 

section is, for the most part, written as 

a general performance standard. 

However, minimum repair and 

adjustment requirements also have been 

adapted from OSHA’s regulations. See 

29 CFR 1910.134(h)(4). 

Paragraph (b) of the section proposes 

a requirement that railroads create and 

maintain pre-trip and periodic 

inspection records, and retain these 

records for one year. Paragraph (d) 

requires railroads to create and maintain 

an accurate record of all turn-ins, 

maintenance, repair, and replacement of 

EEBAs required by paragraph (c) of this 

section, including EEBAs that are used; 

and retain these records for three years. 

Section 227.209 Railroad’s Program of 

Instruction on EEBAs 

This proposed section identifies the 

elements of the instructional program 

that the railroad must establish and 

carry out for train employees and other 

employees who are part of the railroad’s 

general EEBA program under § 227.211 

and will be provided with EEBAs. The 

elements outlined in this section are 

partly adapted from OSHA’s 

regulations. See 29 CFR 1910.134(k). 

The program proposed in this section 

should be considered the minimum, and 

the railroads are encouraged to provide 

additional relevant information 

depending on the types of EEBAs 

selected. 

Proposed paragraph (b)(2) would 

require that any railroad transporting an 

asphyxiant or PIH material must 

provide sufficient training to its subject 

employees. Such employees must be 

able to demonstrate knowledge 

concerning why an EEBA is necessary; 

how improper fit, usage, or maintenance 

can compromise the protective effect of 

an EEBA; the limitations and 

capabilities of the type of EEBA that has 

been provided by the railroad, including 

the limited time for use; how to deal 

with emergency situations involving the 

use of EEBAs or if an EEBA 

malfunctions; how to inspect, put on, 

remove, and use an EEBA, including the 

inspection of seals; procedures for 

maintenance and storage of EEBAs; the 

selection criteria for EEBAs under 

§ 227.203, employee responsibilities 

under subpart C; employee rights 

concerning access to records; and 

identification of hazardous materials 

that are classified as asphyxiants and 

PIH materials. FRA is particularly 

concerned that the employees know the 

limitations of the EEBAs provided so 

that the employees can avoid 

circumstances that would lead to 

reliance on the EEBAs for conditions or 

time frames beyond EEBA capabilities. 

This 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 work place, including special 

measures the hazmat employer has 

implemented to protect employees from 

exposure.’’ 

Proposed paragraph (c) establishes the 

timing of the initial and refresher 

training. Initial instruction must occur 

no later than 30 days prior to the date 

of compliance for the subject railroad. 

New employees must receive initial 

instruction prior to being assigned to 

jobs where EEBAs are required to be 

provided on a locomotive. The initial 

instruction must be supplemented with 

periodic instruction at least once every 

three years. 

Proposed § 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 three years. 

Section 227.211 Requirement To 

Implement a General EEBA Program; 

Criteria for Placing Employees in the 

General EEBA Program 

In this proposed section FRA requires 

railroads subject to subpart C to adopt 

and comply with a general EEBA 

program to ensure that the selection and 

distribution of the EEBAs is done in a 

technically appropriate, sustainable 

manner and supported by a 

comprehensive set of policies and 

procedures. These issues have already 

been discussed in detail at III. Selection 

of the Appropriate EEBA and IV. 

Provision of EEBAs to Covered 

Employees, above. Many of the 

procedures will likely be used as a basis 

for aspects of the required instructional 

program. 

Proposed § 227.211(b)(4) requires the 

following 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 carry an asphyxiant or 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. In 

general, these employees may 

reasonably be expected to encounter the 

kinds of exposures anticipated by this 

proposed rule while in the locomotive 

cab. Therefore, FRA intends to have 

their needs for protection addressed by 

explicitly identifying them here. 

A railroad may also identify other 

employees and designate them in 

writing to be included in its general 

EEBA program. In making this 

assessment, the railroad should consider 

an employee’s work over the period of 

a year. In doing so, the railroads must 

think about how they use their 

workforces, i.e., review the work that 

their employees perform, determine 

which employees will occupy the cab of 

the locomotive of an in-service freight 

train and therefore experience the risk 

of the release of an inhalation-material 

from the consist, and then place those 

employees in the general EEBA 

program. 

Given the nature of the railroad 

industry, FRA is aware that some of 

these employees may not always work 

in the cab. Due to longstanding labor 

practices in the railroad industry 

concerning seniority privileges and 

concerning the ability of railroad 

employees to bid for different work 

assignments, these railroad employees 

are likely to change jobs frequently and 

to work for extended periods of time on 

assignments that involve duties outside 

the cab. For example, an employee 

might start the year in a job that 

involves mostly outside-the-cab work, 

spend three months working primarily 

inside the cab, and then return to 

outside-the-cab work for the rest of the 

year. In this type of situation, these 

proposed regulations would govern the 

exposure of this employee throughout 

the year despite the fact that the 

employee only spent three months 

inside the cab. This employee would be 

covered by this part, because he spent 

time, no matter how little, in a 

locomotive cab where the use of an 

EEBA may be required. As a result, the 

railroad must ensure that the employee 

is properly instructed in how to inspect 

and use an EEBA and provide an EEBA 

for those time periods in which the 

employee is serving as a train employee, 

as a direct supervisor of a train 

employee, or in a capacity that the 

railroad has determined, in its 


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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 an asphyxiant 

or 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 provide 

the EEBA to the employee in that way, 

in the locomotive cab. On the other 

hand, if the railroad’s program states 

that the railroad will provide the EEBA 

to the employee as part of his or her 

personal equipment, the railroad would 

have to provide the EEBA in that 

manner. If the employee for whatever 

reason did not have the EEBA with him 

or her while in the locomotive cab, the 

railroad would be prohibited from using 

the locomotive by proposed 

§ 227.201(a)(2), which bars using a 

locomotive to transport a covered train 

if a covered employee occupying the cab 

of the locomotive does not access to a 

working EEBA. One constant would be 

that all railroads subject to this part 

would be required to instruct employees 

placed in their general EEBA program in 

how to use EEBAs; the provision on 

instruction at proposed § 227.209 

requires that all employees identified in 

proposed § 227.211 be provided 

instruction on EEBAs. 

Finally, proposed § 227.211(c) 

requires railroads to maintain records 

concerning the persons and positions 

designated to be placed in its EEBA 

program and retain these records for the 

duration of the designation and for one 

year after the designation has ended. 

Section 227.213 Employee’s 

Responsibilities 

Since employees who must be 

provided the EEBAs are not always 

directly supervised by managers who 

can ensure the identified tasks are done 

at the appropriate time and frequency, 

this proposed section establishes certain 

responsibilities on the part of 

employees. Some of these tasks may 

involve making records of such tasks as 

pre-trip inspections that must be done 

to ensure the EEBAs are ready for use. 

Additionally, FRA proposes prohibiting 

employees from willfully tampering 

with or vandalizing an EEBA in an 

attempt to disable or damage the device. 

See 49 CFR part 209, appendix A for 

definition and discussion of ‘‘willfully.’’ 

The AAR’s second January 13, 2010, 

letter requests that FRA treat an EEBA 

as a ‘‘safety device’’ within the meaning 

of 49 CFR part 218, Railroad Operating 

Practices, subpart D, Prohibition Against 

Tampering With Safety Devices, in 

order to discourage tampering or 

vandalism by railroad employees. FRA 

has decided that categorizing EEBAs as 

‘‘safety devices’’ for purposes of the part 

218, subpart D, would not be 

appropriate. The purpose of that subpart 

‘‘is to prevent accidents and casualties 

that can result from the operation of 

trains when safety devices intended to 

improve the safety of their movement 

have been disabled.’’ Part 218 defines 

‘‘safety device’’ as— 

locomotive-mounted equipment that is 

used either to assure that the locomotive 

operator is alert, not physically 

incapacitated, aware of and complying with 

the indications of a signal system or other 

operational control system or to record data 

concerning the operation of that locomotive 

or the train it is powering. 

FRA does not view the specific 

definition of ‘‘safety device’’ in part 218 

as being so broad that it encompasses an 

EEBA provided under this proposed 

rule. While an EEBA may be 

locomotive-mounted equipment and is 

used to ensure the alertness and 

physical capacity of the engineer, it 

does not ‘‘assure’’ that the engineer is 

‘‘complying with the indications of a 

signal system or other operational 

control system’’ because an EEBA will 

not take over the operation of the 

locomotive or the train and, indeed, is 

primarily intended to facilitate a train 

employee’s ability to escape from the 

locomotive, not to enable the engineer 

to operate the locomotive. Nor is an 

EEBA used to record data on the 

operation of the locomotive or the train. 

FRA’s published interpretation reads 

the term ‘‘safety device’’ narrowly as 

including such items as event recorders, 

deadman pedals, alerters, automatic cab 

signals, cab signal whistles, automatic 

train stop equipment, and automatic 

train control equipment. See 49 CFR 

part 218, appendix C. Not classifying an 

EEBA as a safety device is consistent 

with that interpretation. Instead, FRA 

proposes to include a prohibition on 

willfully tampering with or vandalizing 

EEBAs as paragraph (b) of proposed 

§ 227.213. 

Section 227.215 Recordkeeping in 

General 

Proposed § 227.215 sets out some 

general recordkeeping provisions. The 

Secretary is granted authority to inspect 

relevant records by 49 U.S.C. 20107. 

Pursuant to that authority, delegated 

from the Secretary under 49 CFR 1.49 

and from the Administrator through 

internal delegations, FRA inspectors 

must act within certain parameters 

when inspecting records. FRA 

inspectors who enter upon railroad 

property and inspect records must do so 

at a reasonable time and in a reasonable 

manner, must provide proper 

credentials upon request, and must limit 

their request to records that are relevant 

to FRA’s investigation. 

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 will be required to 

comply will be set upon publication of 

the final rule. 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 

envisions staggering the compliance 

dates based on the size of the railroad, 

with larger railroads having to comply 

earlier. The AAR’s January 13, 2010, 

letter referenced earlier requests ‘‘that 

FRA allow at least two years from the 

effective date of the final rule for the 

railroad to be compliant with the 

regulation.’’ Under the proposed rule, 

FRA requires Class I railroads to be 

compliant within 24 months of 

publication of the final rule, with 

required compliance following for Class 

II railroads at 30 months and Class III 

and other railroads at 36 months. FRA 

seeks comment on whether a staggered 

compliance schedule with an initial 

two-year delay between the effective 

date and the compliance date for Class 


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61398 Federal Register / Vol. 75, No. 192 / Tuesday, October 5, 2010 / Proposed Rules 

I railroads is reasonable under the 

circumstances. 

Appendix G—Schedule Of Civil 

Penalties 

Finally, FRA proposes to correct a 

heading within the civil penalty 

schedule by replacing ‘‘Subpart B— 

General Requirements’’ with ‘‘Subpart 

B—Occupational Noise Exposure for 

Railroad Operating Employees’’. 

IX. Regulatory Impact 

A. Executive Order 12866 and DOT 

Regulatory Policies and Procedures 

This rulemaking proposes regulations 

that would require railroads to provide 

effective EEBAs for crewmembers in 

locomotive cabs on freight trains 

transporting asphyxiants or PIH 

materials and provide training in their 

use. The proposed rule has been 

evaluated in accordance with existing 

policies and procedures. It is not 

considered a significant regulatory 

action under section 3(f) of Executive 

Order 12866 and, therefore, was not 

reviewed by the Office of Management 

and Budget. This rule is not significant 

under the DOT Regulatory Policies and 

Procedures. 44 FR 11034. A Regulatory 

Evaluation addressing the economic 

impact of this proposed rule has been 

prepared and placed in the docket. 

FRA estimates that the present value 

of the total ten-year costs, which is 

expected to incur to comply with this 

proposed rule is either $73.9 million for 

the open loop/circuit EEBAs or $81.9 

million for the closed loop/circuit 

EEBAs. 

The benefits associated with 

preventing the casualties identified by 

FRA as potentially preventable through 

the use of EEBAs would total close to 

$13.5 million. The EEBAs would have 

to be used properly and quickly for 

them to be fully effective. Based on 

historical experience, the discounted 

costs of implementing the proposed rule 

would likely exceed the expected 

benefits, even assuming 100 percent 

effectiveness of the EEBAs, not 

discounting the value of the benefits, or 

including indirect benefits. The number 

of fatalities or injury equivalents that 

would have to be prevented for the 

benefits to cover the costs would be 

many times greater than the railroad 

employee fatalities that actually 

occurred. 

Although the costs associated with 

implementation of the proposed rule 

would likely exceed the benefits, FRA is 

constrained by the requirements of 

RSIA, which specifically mandates that 

the Secretary 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. 

Nevertheless, FRA has taken several 

steps to provide railroads with 

flexibility in this proposed rule. For 

instance, FRA is not proposing a 

particular method of deployment of 

EEBAs, but rather leaving that to the 

railroad discretion. In addition, 

railroads will be able to elect the type 

of apparatus to use in their program 

(closed-loop or open-loop). This allows 

railroads to deploy EEBAs in the 

manner best suited to their operation. 

B. Regulatory Flexibility Determination 

The Regulatory Flexibility Act of 1980 

(5 U.S.C. 601 et seq.) and Executive 

Order 13272 (67 FR 53461, August 16, 

2002) require agency review of proposed 

and final rules to assess their impact on 

small entities. Pursuant to the 

Regulatory Flexibility Act of 1980, 5 

U.S.C. 605(b), FRA has prepared and 

placed in the docket a Certification 

Statement that assesses the small entity 

impact of this proposed rule, and 

certifies that this proposed rule is not 

expected to have a significant economic 

impact on a substantial number of small 

entities. 

Document inspection and copying 

facilities are available at the DOT 

Central Docket Management Facility 

located in Room W12–140 on the 

Ground level of the West Building, 1200 

New Jersey Avenue, SE., Washington, 

DC 20590. Docket material is also 

available for inspection electronically 

through the Federal eRulemaking Portal 

at http://www.regulations.gov. 

Photocopies may also be obtained by 

submitting a written request to the FRA 

Docket Clerk at the Office of the Chief 

Counsel, RCC–10, Mail Stop 10, Federal 

Railroad Administration, 1200 New 

Jersey Avenue, SE., Washington, DC 

20590; please refer to Docket No. FRA– 

2009–0044. 

The U.S. Small Business 

Administration (SBA) stipulates in its 

‘‘Size Standards’’ that the largest a 

railroad business firm that is ‘‘for-profit’’ 

may be, and still be classified as a 

‘‘small entity,’’ is 1,500 employees for 

‘‘Line-Haul Operating Railroads,’’ and 

500 employees for ‘‘Switching and 

Terminal Establishments.’’ ‘‘Small 

entity’’ is defined in the Act as a small 

business that is independently owned 

and operated, and is not dominant in its 

field of operation. SBA’s ‘‘Size 

Standards’’ may be altered by Federal 

agencies after consultation with SBA 

and in conjunction with public 

comment. Pursuant to that authority, 

FRA has published a final policy that 

formally establishes ‘‘small entities’’ as 

railroads that meet the line haulage 

revenue requirements of a Class III 

railroad. The revenue requirements are 

currently $20 million or less in annual 

operating revenue, based on 1991 

dollars. The $20-million limit (which is 

adjusted by applying the railroad 

revenue deflator adjustment) is based on 

the Surface Transportation Board’s 

threshold for a Class III railroad carrier. 

FRA uses the same revenue dollar limit 

to determine whether a railroad or 

shipper or contractor is a small entity. 

Additionally, section 601(5) defines as 

‘‘small entities’’ governments of cities, 

counties, towns, townships, villages, 

school districts, or special districts with 

populations less than 50,000. 

There are 567 freight railroads. 

Information available to FRA indicates 

that approximately 110 railroads that 

meet the definition of ‘‘small entity’’ 

would be impacted. However, FRA does 

not anticipate that the proposed rule 

would impose a significant impact on 

these small entities because they would 

be able to manage their EEBA programs 

in such a way as to minimize costs. 

Given their smaller size and limited 

territory in which they operate, they can 

develop a management system that 

allows them to optimally allocate 

EEBAs without necessarily having to 

purchase one for each locomotive or 

train and engine crewmember. In 

addition, many of these small railroads 

are subsidiaries of large short line 

holding companies with the expertise 

and resources comparable to larger 

railroads. The number of EEBAs a small 

railroad would have to install would 

vary in proportion to the number of 

locomotives used for transporting PIH 

materials or asphyxiants. 

FRA invites comments from all 

interested parties on this Certification. 

FRA particularly encourages small 

entities that could potentially be 

impacted by the proposed amendments 

to participate in the public comment 

process by submitting comments on this 

assessment or this rulemaking to the 

official DOT docket. A draft of the 

proposed rule has not been submitted to 

the SBA for formal review. However, 

FRA will consider any comments 

submitted by the SBA in developing the 

final rule. 


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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, the agency consults with 

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 NPRM has been analyzed in 

accordance with the principles and 

criteria contained in Executive Order 

13132. FRA has determined that, if 

adopted, the proposed rule would not 

have substantial direct effects on the 

States, on the relationship between the 

national government and the States, nor 

on the distribution of power and 

responsibilities among the various 

levels of government. In addition, FRA 

has determined that this proposed rule 

will not impose substantial direct 

compliance costs on State and local 

governments. Therefore, the 

consultation and funding requirements 

of Executive Order 13132 do not apply. 

However, this proposed rule could 

have preemptive effect by operation of 

law under certain provisions of the 

Federal railroad safety statutes, 

specifically 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). 

The former FRSA provides that States 

may not adopt or continue in effect any 

law, regulation, or order related to 

railroad safety or security that covers 

the subject matter of a regulation 

prescribed or order issued by the 

Secretary of Transportation (with 

respect to railroad safety matters) or the 

Secretary of Homeland Security (with 

respect to railroad security matters), 

except when the State law, regulation, 

or order qualifies under the ‘‘local safety 

or security hazard’’ exception to section 

20106. Moreover, the former LBIA has 

been interpreted by the Supreme Court 

as preempting the entire field of 

locomotive safety. See Napier v. 

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

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

In sum, FRA has analyzed this 

proposed rule in accordance with the 

principles and criteria contained in 

Executive Order 13132. As explained 

above, FRA has determined that this 

proposed rule has no federalism 

implications, other than the possible 

preemption of State laws under the 

former FRSA and the former LBIA. 

Accordingly, FRA has determined that 

preparation of a federalism summary 

impact statement for this proposed rule 

is not required. 

D. International Trade Impact 

Assessment 

The Trade Agreement Act of 1979 

prohibits Federal agencies from 

engaging in any standards or related 

activities that create unnecessary 

obstacles to the foreign commerce of the 

United States. Legitimate domestic 

objectives, such as safety, are not 

considered unnecessary obstacles. The 

statute also requires consideration of 

international standards and where 

appropriate, that they be the basis for 

U.S. standards. This rulemaking is 

purely domestic in nature and is not 

expected to affect trade opportunities 

for U.S. firms doing business overseas or 

for foreign firms doing business in the 

United States. 

E. Paperwork Reduction Act 

The information collection 

requirements in this proposed rule have 

been submitted for approval to the 

Office of Management and Budget 

(OMB) under the Paperwork Reduction 

Act of 1995, 44 U.S.C. 3501 et seq. The 

sections that contain the new 

information collection requirements and 

the estimated time to fulfill each 

requirement are as follows: 

CFR section Respondent universe Total annual responses Average time 

per response 

Total annual 

burden 

hours 

227.13—Waivers ................................................... 200 Railroads ................ 13 waiver requests ....... 16 hours ........................ 208 

227.201—Designations ......................................... 200 Railroads ................ 700 designations ........... 3 minutes ...................... 35 

227.203—EEBA Selection Criteria—EEBA 

Adequacy Justification documents.

200 Railroads ................ 67 written justifications .. 2 hours .......................... 134 

227.205—Copies of EEBA Instructions ................ 200 Railroads ................ 26,250 instr. copies ...... 3 minutes ...................... 1,313 

227.207—Pre-trip and Periodic EEBA Inspections/Records.200 Railroads ................ 73,000 insp./records ..... 1 minute ........................ 1,217 

—Records of EEBA Returns, Maintenance, 

Repairs/Replacements.

200 Railroads ................ 233 records ................... 5 minutes ...................... 19 

227.209—Employee Instruction on EEBA—Initial 

Training.

200 Railroads ................ 70,000 tr. employees .... 2 hours .......................... 140,000 

—Periodic/Refresher Training ........................ 200 Railroads ................ 23,333 tr. employees .... 15 minutes .................... 5,833 

—Records of Initial Training .......................... 200 Railroads ................ 70,000 records .............. 5 minutes ...................... 5,833 

—Records of Periodic Training ...................... 200 Railroads ................ 23,333 records .............. 2 minutes ...................... 778 

227.211—General EEBA Implementation Program.200 Railroads ................ 67 programs .................. 80 hours ........................ 5,360 

227.213—Notification to Railroad of EEBA Failure/Use Incidents.200 Railroads ................ 100 notifications ............ 1 minute ........................ 2 

227.215—Electronic Recordkeeping—Railroad 

Modification of Electronic Recordkeeping System to Meet FRA Requirements.

18 Railroads .................. 18 modified Systems .... 120 hours ...................... 2,160 


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All estimates include the time for 

reviewing instructions; searching 

existing data sources; gathering or 

maintaining the needed data; and 

reviewing the information. Pursuant to 

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

comments concerning: Whether these 

information collection requirements are 

necessary for the proper performance of 

the functions of FRA, including whether 

the information has practical utility; the 

accuracy of FRA’s estimates of the 

burden of the information collection 

requirements; the quality, utility, and 

clarity of the information to be 

collected; and whether the burden of 

collection of information on those who 

are to respond, including through the 

use of automated collection techniques 

or other forms of information 

technology, may be minimized. For 

information or a copy of the paperwork 

package submitted to OMB, contact Mr. 

Robert Brogan, Information Clearance 

Officer, at 202–493–6292, or Ms. 

Kimberly Toone at 202–493–6132. 

Organizations and individuals 

desiring to submit comments on the 

collection of information requirements 

should direct them to Mr. Robert Brogan 

or Ms. Kimberly Toone, Federal 

Railroad Administration, 1200 New 

Jersey Avenue, SE., 3rd Floor, 

Washington, DC 20590. Comments may 

also be submitted via e-mail to Mr. 

Brogan or Ms. Toone at the following 

address: Robert.Brogan@dot.gov; 

Kimberly.Toone@dot.gov. 

OMB is required to make a decision 

concerning the collection of information 

requirements contained in this proposed 

rule between 30 and 60 days after 

publication of this document in the 

Federal Register. Therefore, a comment 

to OMB is best assured of having its full 

effect if OMB receives it within 30 days 

of publication. The final rule will 

respond to any OMB or public 

comments on the information collection 

requirements contained in this proposal. 

FRA is not authorized to impose a 

penalty on persons for violating 

information collection requirements 

which do not display a current OMB 

control number, if required. FRA 

intends to obtain current OMB control 

numbers for any new information 

collection requirements resulting from 

this rulemaking action prior to the 

effective date of the final rule. The OMB 

control number, when assigned, will be 

announced by separate notice in the 

Federal Register. 

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) [currently 

$140,800,000] in any 1 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. The proposed 

rule would not result in the 

expenditure, in the aggregate, of 

$140,800,000 or more in any one year, 

and thus preparation of such a 

statement is not required. 

G. Environmental Assessment 

FRA has evaluated this proposed rule 

in accordance with its ‘‘Procedures for 

Considering Environmental Impacts’’ 

(FRA’s Procedures) (64 FR 28545, May 

26, 1999) as required by the National 

Environmental Policy Act (42 U.S.C. 

4321 et seq.), other environmental 

statutes, Executive Orders, and related 

regulatory requirements. FRA has 

determined that this proposed rule is 

not a major FRA action (requiring the 

preparation of an environmental impact 

statement or environmental assessment) 

because it is categorically excluded from 

detailed environmental review pursuant 

to section 4(c)(20) of FRA’s Procedures. 

(See 64 FR 28547, May 26, 1999). 

Section 4(c)(20) reads as follows: 

(c) Actions categorically excluded. Certain 

classes of FRA actions have been determined 

to be categorically excluded from the 

requirements of these Procedures as they do 

not individually or cumulatively have a 

significant effect on the human environment. 

* * * * * 

The following classes of FRA actions are 

categorically excluded: 

* * * * * 

(20) Promulgation of railroad safety rules 

and policy statements that do not result in 

significantly increased emissions or air or 

water pollutants or noise or increased traffic 

congestion in any mode of transportation. 

In accordance with section 4(c) and 

(e) of FRA’s Procedures, the agency has 

further concluded that no extraordinary 

circumstances exist with respect to this 

regulation that might trigger the need for 

a more detailed environmental review. 

As a result, FRA finds that this 

proposed rule is not a major Federal 

action significantly affecting the quality 

of the human environment. 

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). Under the Executive Order, a 

‘‘significant energy action’’ is defined as 

any action by an agency (normally 

published in the Federal Register) that 

promulgates or is expected to lead to the 

promulgation of a final rule or 

regulation, including notices of inquiry, 

advance notices of proposed 

rulemaking, and notices of proposed 

rulemaking: (1)(i) That is a significant 

regulatory action under Executive Order 

12866 or any successor order, and (ii) is 

likely to have a significant adverse effect 

on the supply, distribution, or use of 

energy; or (2) that is designated by the 

Administrator of the Office of 

Information and Regulatory Affairs as a 

significant energy action. FRA has 

evaluated this NPRM in accordance 

with Executive Order 13211. FRA has 

determined that this NPRM is not likely 

to have a significant adverse effect on 

the supply, distribution, or use of 

energy. Consequently, FRA has 

determined that this NPRM is not a 

‘‘significant energy action’’ within the 

meaning of Executive Order 13211. 

I. Privacy Act 

FRA wishes to inform all potential 

commenters that anyone is able to 

search the electronic form of all 

comments received into any agency 

docket by the name of the individual 

submitting the comment (or signing the 

comment, if submitted on behalf of an 

association, business, labor union, etc.). 

You may review DOT’s complete 

Privacy Act Statement in the Federal 

Register published on April 11, 2000 

(65 FR 19477–78) or you may visit 

http://www.regulations.gov/search/ 

footer/privacyanduse.jsp. 

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 Proposal 

In consideration of the foregoing, FRA 

proposes to amend part 227 of chapter 

II, subtitle B of title 49 of the Code of 


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Federal Regulations is amended as 

follows: 

PART 227—OCCUPATIONAL SAFETY 

AND HEALTH IN THE LOCOMOTIVE 

CAB 

1. The authority citation for part 227 

is amended to read as follows: 

Authority: 49 U.S.C. 103, 20103, 20103, 

note, 20166, 20701–20703, 21301, 21302, 

21304; 28 U.S.C. 2461, note; 49 CFR 1.49. 

2. The heading for part 227 is 

amended to read as set forth above. 

3. Section 227.1 is revised to read as 

follows: 

§ 227.1 Purpose and scope. 

(a) General. The purpose of this part 

is to protect the occupational safety and 

health of certain employees who are 

exposed to occupational dangers while 

in the cab of the locomotive. This part 

prescribes minimum Federal safety and 

health standards for certain locomotive 

cab occupants. This part does not 

restrict a railroad or railroad contractor 

from adopting and enforcing additional 

or more stringent requirements. 

(b) Subpart B. The purpose of subpart 

B is to protect the occupational safety 

and health of employees whose 

predominant noise exposure occurs in 

the locomotive cab. This subpart 

prescribes minimum Federal safety and 

health noise standards for locomotive 

cab occupants. 

(c) Subpart C. The purpose of subpart 

C is to protect the occupational safety 

and health of train employees and 

certain other employees in the cab of the 

locomotive of a freight train that is 

transporting an asphxiant or a PIH 

material that, if released due to a 

railroad accident/incident, would pose 

an inhalation hazard to the occupants. 

In particular, subpart C is intended to 

protect these employees from the risk of 

exposure to the material while they are 

located in, or during escape from, the 

locomotive cab. 

4. Section 227.3 is amended as 

follows: 

a. In paragraph (a) remove the phrase 

‘‘this part’’ and add ‘‘subpart B’’ in its 

place. 

b. In the introductory text of 

paragraph (b) remove the phrase ‘‘This 

part’’ and add ‘‘Subpart B’’ in its place. 

c. In paragraph (b)(5)— 

i. Remove the phrase ‘‘Associate 

Administrator for Safety’’ and add 

‘‘Associate Administrator for Railroad 

Safety/Chief Safety Officer’’; and 

ii. Remove the phrase ‘‘this part’’ and 

add ‘‘subpart B’’ in its place. 

d. Add paragraphs (c) and (d) to read 

as follows: 

§ 227.3 Applicability. 

* * * * * 

(c) Except as provided in paragraph 

(d) of this section, subpart C applies to 

any railroad that operates a freight train 

that transports an asphyxiant or a PIH 

material, including a residue of such an 

asphyxiant or PIH material, on standard 

gage track that is part of the general 

railroad system of transportation. 

(d) Subpart C 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. Section 227.5 is amended by 

adding the following definitions to read 

as follows: 

§ 227.5 Definitions. 

* * * * * 

Accident/incident has the meaning 

that is assigned to that term by § 225.5 

of this chapter. 

* * * * * 

Asphyxiant or PIH material means— 

(1) Any of the hazardous materials 

defined in § 173.115 of this title as— 

(i) Class 2, Division 2.1 (Flammable 

gas); 

(ii) Class 2, Division 2.2 (nonflammable, non-poisonous compressed 

gas—including compressed gas, 

liquefied gas, pressurized cryogenic gas, 

compressed gas in solution, asphyxiant 

gas and oxidizing gas); or 

(iii) Class 2, Division 2.3 (Gas 

poisonous by inhalation); 

(2) Any of the hazardous materials 

that is a gas, liquid, or other material 

defined as a ‘‘material poisonous by 

inhalation’’ by § 171.8 of this title. 

The term ‘‘asphyxiant or PIH material’’ 

includes only the foregoing material that 

is in ‘‘commerce’’ as defined by § 171.8 

of this title. The term does not, for 

example, include personal care items 

and toiletries possessed by an occupant 

of a locomotive, such as aerosols 

containing chemicals that would be 

classified in Division 2.2 if they were in 

commerce (e.g., shaving cream and hair 

spray). 

Associate Administrator for Railroad 

Safety/Chief Safety Officer means the 

Associate Administrator for Railroad 

Safety/Chief Safety Officer, Federal 

Railroad Administration, 200 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 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 


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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 

certifies industrial-type respirators in 

accordance with the NIOSH respiratory 

regulations (42 CFR part 84 (June 8, 

1995)). 

* * * * * 

PIH material means poison inhalation 

hazard material. See definition of 

asphyxiant or PIH material, above. 

* * * * * 

Residue has the meaning assigned to 

the term by § 171.8 of this title. 

* * * * * 

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 train movement. 

System headquarters means the 

location designated by the railroad as 

the general office for the railroad 

system. 

* * * * * 

Train employee means an individual 

who is engaged in or connected with the 

movement of a train, including a 

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

§ 227.7 [REMOVED AND RESERVED] 

6. Remove and reserve § 227.7. 

7. Section § 227.15 is amended 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, 227.207, 227.209, 

227.211, 227.213, and 227.215. 

§ 227.103 [AMENDED] 

8. Section 227.103 is amended as 

follows: 

a. In paragraph (a)(1) remove the 

phrase ‘‘Class 1’’ and add ‘‘Class I’’ in its 

place. 

b. In paragraph (a)(2) remove the 

phrase ‘‘Class 1’’ and add ‘‘Class I’’ in its 

place. 

§ 227.109 [AMENDED] 

9. Section 227.109, paragraph (e)(2)(i) 

is amended by removing the phrase 

‘‘Class 1’’ and adding ‘‘Class I’’ in its 

place. 

§ 227.119 [AMENDED] 

10. Section 227.119, paragraph (b)(2) 

is amended by removing the phrase 

‘‘Class 1’’ and adding ‘‘Class I’’ in its 

place. 

11. Add new subpart C to part 227 to 

read as follows: 

Subpart C—Emergency Escape Breathing 

Apparatus Standards 

Sec. 

227.201 Criteria for requiring availability of 

EEBAs in the locomotive cab. 

227.203 Criteria for selecting EEBAs. 

227.205 Storage facilities for EEBAs. 

227.207 Railroad’s program for inspection, 

maintenance, and replacement of EEBAs; 

requirements for procedures. 

227.209 Railroad’s program of instruction 

on EEBAs. 

227.211 Requirement to implement a 

general EEBA program; criteria for 

placing employees in the general EEBA 

program. 

227.213 Employee’s responsibilities. 

227.215 Recordkeeping in general. 

227.217 Compliance dates. 

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 an 

asphyxiant or a PIH material, including 

a residue of an asphyxiant or 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 an 

asphyxiant or a PIH material, including 

a residue of an asphyxiant or a PIH 

material, in an in-service freight train 

unless each of the employees identified 

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

while in the cab of the locomotive 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 an 

asphyxiant or a PIH material if all of the 

asphyxiants or PIH materials in the 

train, including a residue of an 

asphyxiant or a PIH material, are being 

hauled 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 an asphyxiant or PIH 

material, including a residue of an 

asphyxiant or 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 an asphyxiant or PIH 

material, including a residue of an 

asphyxiant or a PIH material for 

distances of less than 100 feet for 

inspection or maintenance purposes. 

(c) Notwithstanding any exceptions 

identified in this subpart, any employee 

who willfully tampers with or 

vandalizes an EEBA shall be subject to 

this subpart for purposes of enforcement 

relating to § 227.213 (Employee 

responsibilities). 

§ 227.203 Criteria for selecting EEBAs. 

In selecting the appropriate EEBA to 

provide to an employee, the railroad 

shall do the following: 

(a) Select an atmosphere-supplying 

EEBA that protects against all 

asphyxiants or PIH materials (including 

their residue) that are being transported 

by the freight train while in service. 

(b) Ensure that the type of respirator 

selected has been certified for an escape 

only purpose by the National Institute 

for Occupational Safety and Health 

pursuant to 49 CFR part 84 or by the 

International Organization for 

Standardization pursuant to ISO 23269– 

1:2008(E). 

(c) Document the adequacy of 

protection for all potential hazardous 

atmospheres reasonably expected to be 

encountered and provide such 

documentation for inspection by FRA 

upon request. 


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(d) Document, and provide such 

documentation for inspection by FRA 

upon request, the rationale for the final 

selection of an EEBA by addressing each 

of the following concerns: 

(1) Breathing time. Each EEBA must 

be fully charged and contain a 

minimum breathing capacity of 15 

minutes at the time of the pre-trip 

inspection required under 

§ 227.207(a)(1). 

(2) Face and neck protection. The 

EEBA selected must provide a means of 

protecting the individual’s face and 

neck 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 an asphyxiant 

or a PIH material, including a residue of 

an asphyxiant or a PIH material, and the 

locomotive cab is occupied by an 

employee identified in 

§ 227.201(a)(1)(i)(A)–(D) (subject 

employee), unless the locomotive cab 

has appropriate storage facilities to hold 

the number of EEBAs required to be 

provided. 

(b) The storage facility for each 

required EEBA must— 

(1) Prevent deformation of the face 

piece and exhalation valve, where 

applicable; 

(2) Protect the EEBA from incidental 

damage, contamination, dust, sunlight, 

extreme temperatures, excessive 

moisture, and damaging chemicals; 

(3) Provide each subject employee 

located in the locomotive cab with 

ready access to the EEBA during an 

emergency; and 

(4) Provide a means for each subject 

employee to locate the EEBA under 

adverse conditions such as darkness or 

disorientation. 

(c) A railroad must comply with the 

applicable manufacturer’s instructions 

for storage of each required EEBA and 

must keep a copy of the instructions at 

its system headquarters for FRA 

inspection. 

§ 227.207 Railroad’s program for 

inspection, maintenance, and replacement 

of EEBAs; requirements for procedures. 

(a) General. Each railroad shall 

establish and comply with a written 

program for inspection, maintenance, 

and replacement of EEBAs that are 

required under this subpart. The 

program for inspection, maintenance, 

and replacement of EEBAs shall be 

maintained at the railroad’s system 

headquarters and shall be amended, as 

necessary, to reflect any significant 

changes. This program shall include the 

following procedures: 

(1) Procedures for performing and 

recording a pre-trip inspection of each 

EEBA that is required to be provided on 

a locomotive being used to transport an 

asphyxiant or 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 and retain each of these records 

for one year. 

(c) Procedures applicable if EEBA 

fails an inspection or is used. An EEBA 

that fails an inspection required by this 

section, is otherwise found to be 

defective, or is used, shall be removed 

from service and be discarded, repaired, 

adjusted, or cleaned in accordance with 

the following procedures: 

(1) Repair, adjustment, and cleaning 

of EEBAs shall be done only by persons 

who are appropriately trained to 

perform such work and who shall use 

only the EEBA manufacturer’s approved 

parts designed to maintain the EEBA in 

NIOSH-certified (49 CFR part 84) or 

ISO-certified (ISO 23269–1:2008(E)) 

condition. 

(2) Repairs shall be made according to 

the manufacturer’s recommendations 

and specifications for the type and 

extent of repairs to be performed. 

(3) Where applicable, reducing and 

admission valves, regulators, and alarms 

shall be adjusted or repaired only by the 

manufacturer or a technician trained by 

the manufacturer. 

(d) Records of returns, maintenance, 

repair, and replacement. A railroad 

shall— 

(1) Maintain an accurate record of 

return, maintenance, repair, or 

replacement for each EEBA required by 

this subpart; and 

(2) Retain each of these records for 

three years. 

§ 227.209 Railroad’s program of 

instruction on EEBAs. 

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

and comply with its written program of 

instruction on EEBAs for all of its 

employees in its general EEBA program 

under § 227.211 (subject employees). 

The program of instruction shall be 

maintained at the railroad’s system 

headquarters and shall be amended, as 

necessary, to reflect any significant 

changes. 

(2) This program may be integrated 

with the railroad’s program of 

instruction on operating rules under 

§ 217.11 of this chapter or its program 

of instruction for hazmat employees 

under § 172.704 of this title. If the 

program is not integrated with either of 

these programs, it must be written in a 

separate document that is available for 

inspection by FRA. 

(b) Subject matter. The railroad’s 

program of instruction shall require that 

the subject employees demonstrate 

knowledge of at least the following: 

(1) Why the EEBA is necessary and 

how improper fit, usage, or maintenance 

can compromise the protective effect of 

the EEBA. 

(2) The capabilities and limitations of 

the EEBA, particularly the limited time 

for use. 

(3) How to use the EEBA effectively 

in emergency situations, including 

situations in which the EEBA 

malfunctions. 

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

and use the EEBA, and how to check the 

seals of the EEBA. 

(5) Procedures for maintenance and 

storage of the EEBA that must be 

followed. 

(6) The EEBA-selection criteria in 

§ 227.203. 

(7) The requirements of this subpart 

related to the responsibilities of 

employees and the rights of employees 

to have access to records. 


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(8) The hazardous materials classified 

as asphyxiants and PIH materials. 

(c) Dates of initial instruction and 

intervals for periodic instruction. (1) 

The instruction shall be provided for 

current subject employees on an initial 

basis no later than 30 days prior to the 

date of compliance identified in 

§ 227.217 or for new subject employees, 

before assignment to jobs where the 

deployment of EEBAs on a locomotive 

is required. 

(2) Initial instruction shall be 

supplemented with periodic instruction 

at least once every three years. 

(d) Records of instruction. A railroad 

shall maintain a record of employees 

provided instruction in compliance 

with this section and retain these 

records for three years. 

§ 227.211 Requirement to implement a 

general EEBA program; criteria for placing 

employees in the general EEBA program. 

(a) In general. A railroad shall adopt 

and comply with a comprehensive, 

written, general program to implement 

this subpart that shall be maintained at 

the railroad’s system headquarters. Each 

railroad shall amend its general EEBA 

program, as necessary, to reflect any 

significant changes. 

(b) Elements of the general EEBA 

program and criteria for placing 

employees in program. A railroad’s 

general EEBA program shall— 

(1) Identify the individual that 

implements and manages the railroad’s 

general EEBA program by name, title, 

and contact information. The individual 

must have suitable training and 

sufficient knowledge, experience, skill, 

and authority to enable him or her to 

manage properly a program for 

provision of EEBAs. If the individual is 

not directly employed by the railroad, 

the written program must identify the 

business relationship of the railroad to 

the individual fulfilling this role. 

(2) Describe the administrative and 

technical process for selection of EEBAs 

appropriate to the hazards that may be 

reasonably expected. 

(3) Describe the process used to 

procure and provide EEBAs in a manner 

to ensure the continuous and ready 

availability of an EEBA to each of the 

railroad’s employees identified in 

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

occupying the locomotive cab of a 

freight train in service transporting an 

asphyxiant or 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 

an asphyxiant or a PIH material has an 

EEBA accessible to each of the 

employees identified in 

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

cab of the locomotive, including what 

procedures are in place to ensure that 

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

the EEBA-storage criteria in § 227.205, 

and have been inspected and are in 

working order pursuant to the 

requirements in § 227.207. 

(4) Ensure that each of the following 

employees, except those excluded by 

§ 227.201(b), whose duties require 

regular work in the locomotive cabs of 

in-service freight trains transporting an 

asphyxiant or a PIH material, including 

a residue of an asphyxiant or a PIH 

material, has the required EEBA 

available when he or she does occupy 

the cab of such a train and knows how 

to use the EEBA: 

(i) Employees who perform service 

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

employees) on such trains; 

(ii) Direct supervisors of train 

employees on such trains; 

(iii) Deadheading employees on such 

trains; and 

(iv) Any other employees designated 

by the railroad in writing and at the 

discretion of the railroad. 

(c) Records of positions or individuals 

or both in the railroad’s general EEBA 

program. A railroad shall maintain a 

record of all positions or individuals, or 

both, who are designated by the railroad 

to be placed in its general EEBA 

program pursuant to § 227.211(b)(4). 

The railroad shall retain these records 

for the duration of the designation and 

for one year thereafter. 

(d) Consolidated programs. A group of 

two or more commonly controlled 

railroads subject to this subpart may 

request in writing that the Associate 

Administrator for Railroad Safety/Chief 

Safety Officer (Associate Administrator) 

treat them as a single railroad for 

purposes of adopting and complying 

with the general EEBA program required 

by this section. The request must list the 

parent corporation that controls the 

group of railroads and demonstrate that 

the railroads operate in the United 

States as a single, integrated rail system. 

The Associate Administrator will notify 

the railroads of his or her decision in 

writing. 

§ 227.213 Employee’s responsibilities. 

(a) An employee to whom the railroad 

provides an EEBA shall— 

(1) Participate in training under 

§ 227.209; 

(2) Follow railroad procedures to 

ensure that the railroad’s EEBAs— 

(i) Are maintained in a secure and 

accessible manner; 

(ii) Are inspected as required by this 

subpart and the railroad’s program of 

inspection; and 

(iii) If found to be unserviceable upon 

inspection, are turned in to the 

appropriate railroad facility for repair, 

periodic maintenance, or replacement; 

and 

(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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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 24 

months from the effective date of the 

final rule. 

(b) Class II railroads subject to this 

subpart are required to comply with this 

subpart beginning no later than 30 

months from the effective date of the 

final rule. 

(c) Class III railroads subject to this 

subpart and any other railroads subject 

to this subpart are required to comply 

with this subpart beginning no later 

than 36 months from the effective date 

of the final rule. 

Appendix G to Part 227—Schedule of 

Civil Penalties [AMENDED] 

10. In appendix G, remove ‘‘Subpart B— 

General Requirements’’ and add in its place 

‘‘Subpart B—Occupational Noise Exposure 

for Railroad Operating Employees’’. 

Issued in Washington, DC, on September 

28, 2010. 

Karen J. Rae, 

Deputy Administrator, Federal Railroad 

Administration. 

Note: The following appendices will not 

appear in the Code of Federal Regulations. 

BILLING CODE 4910–06–P 


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[FR Doc. 2010–24732 Filed 10–4–10; 8:45 am] 

BILLING CODE 4910–06–C 


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