Rule2025-15022
Emergency Escape Breathing Apparatus Standards
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
August 7, 2025
Effective
August 7, 2025
Issuing agencies
Transportation DepartmentFederal Railroad Administration
Abstract
This document extends the compliance dates in the emergency escape breathing apparatus final rule published on January 26, 2024. FRA is extending the compliance dates in response to concerns raised in a joint petition for reconsideration, as well as FRA's own investigation into the feasibility of these dates.
Full Text
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<title>Federal Register, Volume 90 Issue 150 (Thursday, August 7, 2025)</title>
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[Federal Register Volume 90, Number 150 (Thursday, August 7, 2025)]
[Rules and Regulations]
[Pages 38071-38075]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-15022]
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DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
49 CFR Part 227
[Docket No. FRA-2009-0044]
RIN 2130-AD01
Emergency Escape Breathing Apparatus Standards
AGENCY: Federal Railroad Administration (FRA), Department of
Transportation (DOT).
ACTION: Final rule; extension of compliance dates.
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SUMMARY: This document extends the compliance dates in the emergency
escape breathing apparatus final rule published on January 26, 2024.
FRA is extending the compliance dates in response to concerns raised in
a joint petition for reconsideration, as well as FRA's own
investigation into the feasibility of these dates.
DATES: This final rule is effective August 7, 2025.
FOR FURTHER INFORMATION CONTACT: Michael Watson, Occupational Safety
and Health Manager, Office of Railroad Safety, telephone: 202-527-2908,
email: <a href="/cdn-cgi/l/email-protection#35585c565d5450591b425441465a5b75515a411b525a43"><span class="__cf_email__" data-cfemail="74191d171c1511185a031500071b1a34101b005a131b02">[email protected]</span></a>; or Brian Roberts, Attorney-Adviser,
Office of the Chief Counsel, telephone: 202-306-4333, email:
<a href="/cdn-cgi/l/email-protection#b1d3c3d8d0df9fc3ded3d4c3c5c2f1d5dec59fd6dec7"><span class="__cf_email__" data-cfemail="c2a0b0aba3acecb0ada0a7b0b6b182a6adb6eca5adb4">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Background
As mandated by section 413 of the Rail Safety Improvement Act of
2008 (RSIA), Public Law 110-432, 122 Stat. 4848, 4889 (Oct. 16, 2008)
(codified at 49 U.S.C. 20166),\1\ FRA published a final rule on January
26, 2024, establishing emergency escape breathing apparatus (EEBA)
standards in 49 CFR part 227, subpart C (2024 Final Rule).\2\ The 2024
Final Rule, which became effective on March 26, 2024, requires freight
railroads to provide covered employees with an appropriate atmosphere-
supplying EEBA when occupying a locomotive cab of a train transporting
a hazardous material that would pose an inhalation hazard if released
during an accident. Railroad employees covered under the final rule
include train employees, their supervisors, deadheading employees, and
any other employee designated by the railroad who is in the cab of a
locomotive. In addition, the final rule requires railroads to develop
and adhere to inventory, storage, maintenance, and employee training
requirements related to their EEBAs.
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\1\ The Secretary of Transportation delegated the authority to
conduct the EEBA rulemaking and implement its requirements to the
Federal Railroad Administrator. 49 CFR 1.89(b).
\2\ 89 FR 5113. The notice of proposed rulemaking was published
on October 5, 2010 (75 FR 61386) and supplemental notice of proposed
rulemaking was published on March 22, 2023 (88 FR 17302).
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The 2024 Final Rule established two compliance dates: one for Class
I and II railroads, and another, later compliance date for Class III
railroads. Specifically, Class I and II railroads were required to
comply with the rule's requirements within 12 months of the rule's
March 26, 2024, effective date (i.e., March 26, 2025), while Class III
railroads had 18 months from the same effective date to comply (i.e.,
September 26, 2025).
On March 15, 2024, FRA received a timely filed, joint petition for
reconsideration of the rule from the Association of American Railroads
(AAR) and the American Short Line and Regional Railroad Association
(ASLRRA).\3\ The petition asked FRA to delay each compliance date for
an additional 12 months, citing the production limitations of the few
EEBA manufacturers who can make EEBAs that comply with the final rule's
requirements and other, related factors. FRA sent questions to AAR
seeking additional information on the issues raised in the joint
petition, which AAR responded to via email on July 29, 2024.\4\ In
evaluating the joint petition, FRA also spoke with several EEBA
manufacturers, including Ocenco (a manufacturer of the railroads'
preferred model of EEBAs), and their distributors. These manufacturers
and distributors expressed concerns to FRA about being able to provide
the requested numbers of EEBAs by the 2024 Final Rule's compliance
dates, citing, among other things, the need to supply EEBAs to the U.S.
military and other governments.\5\
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\3\ FRA-2009-0044-0025, available at <a href="http://www.regulations.gov">www.regulations.gov</a>.
\4\ Communication with AAR Regarding Final Rule. FRA-2009-0044-
0028.
\5\ Communication with Ocenco and Other Companies Regarding
Final Rule. FRA-2009-0044-0028.
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With the March 26, 2025, EEBA compliance deadline for Class I and
II railroads quickly approaching, FRA issued an interim response to the
joint petition on January 29, 2025.\6\ FRA's interim response
recognized that railroads may not be able to meet the compliance dates
in the 2024 Final Rule, and in the spirit of the Presidential
Memorandum issued on January 20, 2025, titled ``Regulatory Freeze
Pending Review,'' \7\ FRA announced it would exercise its enforcement
discretion for 60 days from each compliance date in the rule. The
interim response explained this would also allow FRA time to determine
how to respond to the joint petition and a separate petition for
reconsideration from ASLRRA, which asked FRA to create a de minimis
exception to the EEBA final rule.\8\ On May 27, 2025, FRA announced in
a follow-up response to the joint petitioners that FRA would exercise
its enforcement discretion for an additional 60 days from each
compliance date in the Final Rule to allow FRA time to complete its
response.\9\
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\6\ FRA-2009-0044-0029.
\7\ 90 FR 8249 (Jan. 28, 2025).
\8\ FRA-2009-0044-0025.
\9\ FRA-2009-0044-0030 and FRA-2009-0044-0031.
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[[Page 38072]]
As the March 26, 2025, compliance date for Class I and II railroads
has passed, and the September 26, 2025, date for Class III railroads
approaches, FRA is granting the joint petition's request to extend the
compliance dates in the 2024 Final Rule by 12 months. FRA is not aware
of a change since issuance of its January 29, 2025 initial, interim
response that would otherwise alleviate the railroads' compliance
difficulties.
Specifically, railroads face various factors outside of their
control that prevent them from purchasing enough EEBAs from
manufacturers to comply with the 2024 Final Rule's requirements. For
example, as the rule establishes specific criteria EEBAs must meet, FRA
understands that railroads only have approximately four manufacturers
with which they can contract to supply compliant EEBAs: 3M,
Dr[auml]ger, Ocenco, and Semmco. As stated in the joint petition, the
major manufacturers of EEBAs have indicated to railroads that they
would need significant lead time to ramp up production to provide
sufficient EEBAs for railroads to comply with the rule's
requirements.\10\ In fact, one EEBA manufacturer told a Class I
railroad that it would take approximately 12 months to deliver the
quantity of EEBAs necessary for that railroad alone to comply with the
final rule's requirements.\11\ The joint petition added that Class II
and III railroads could expect even longer delays in receiving
compliant devices given their smaller market power and EEBA
manufacturers' likeliness to prioritize larger orders from Class I
railroads over these smaller railroads.\12\
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\10\ AAR/ASLRRA Pet. at 1-2.
\11\ Id. at 2.
\12\ Id.
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FRA received the same message as the railroads in conversations
with EEBA manufacturers: providing railroads with a sufficient number
of EEBA in order to comply with the 2024 Final Rule's requirements was
unachievable.\13\ Drager, Ocenco, and Semmco each stated that they
could not meet the railroads' EEBA manufacturing demands within the
rule's compliance deadlines.
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\13\ Communication with Ocenco and Other Companies Regarding
Final Rule, FRA-2009-0044-0028.
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Market forces also hinder the railroads' ability to purchase
sufficient EEBAs to comply with the rule's requirements. Railroads are
not the only entities looking to purchase EEBAs. The U.S. military and
foreign governments, as well as other companies and organizations, are
also in the market to purchase these devices. This broader, competing
demand to obtain EEBAs only exacerbates the ``first come, first
served'' dilemma collectively facing railroads seeking to comply with
the rule, as indicated in the joint petition.\14\ Further, it is
unreasonable to assume that EEBA manufacturers, and their component
manufacturers, which are not subject to the rule's same regulatory
pressures, would be willing to devote all of their resources--physical
plants and workforces--to supplying railroads with EEBAs that meet the
rule's requirements.
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\14\ AAR/ASLRRA Pet. at 2.
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In addition to these supply limitations, which are outside of the
control of the railroad industry, railroads are constrained from
complying with other requirements of the rule. For example, each
railroad must, at a minimum: (1) ``establish and comply with a written
program for inspection, maintenance, and replacement of EEBAs;'' \15\
(2) ``adopt and comply with its written program of instruction on EEBAs
for all its employees,'' including instructing its employees on ``[t]he
capabilities and limitations of the EEBA'' and ``[h]ow to inspect, put
on, remove, and use the EEBA, and how to check the seals of the EEBA;''
\16\ and (3) ``adopt and comply with a comprehensive, written, general
program to implement'' the rule.\17\ As a prerequisite to fulfilling
these requirements in any practical manner for an individual railroad,
let alone for railroads that operate over multi-state networks and
interchange their equipment,\18\ procurement of the EEBA devices is a
necessity.
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\15\ 49 CFR 227.207(a).
\16\ 49 CFR 227.209(a), (b)(2) and (4).
\17\ 49 CFR 227.211(a).
\18\ AAR/ASLRRA Pet. at 3.
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The RSIA, the governing statutory framework for the 2024 Final
Rule, does not establish compliance deadlines for FRA's EEBA
requirements. In setting the compliance dates in the 2024 Final Rule,
FRA recognized ``it will take time to procure EEBAs, instruct employees
on their use, and outfit locomotives with the appropriate equipment to
carry the devices.'' \19\ FRA underestimated this time.
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\19\ 89 FR at 5125.
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In consideration of the foregoing, FRA delays each of the
compliance dates in the 2024 Final Rule, found in 49 CFR 227.217(a),
(b), and (c), by 12 months so that railroads will have adequate time to
procure and receive compliant EEBAs from manufacturers, and then fully
implement the rule's requirements once the EEBAs are in the railroads'
possession. However, this delay does not affect the ability of any
railroad to comply with the rule's requirements in advance of any
compliance date.
Finally, this action should not be construed as a response to
ASLRRA's separate petition for reconsideration, which asked FRA to
create a de minimis exception to the 2024 Final Rule's requirements for
certain Class II and Class III train operations for failing to comply
with the rule when they would not otherwise be required to do so.\20\
This action provides immediate relief from the rule's requirements for
all railroads and does not preclude FRA from granting additional
relief. A full response to ASLRRA's separate petition will be
forthcoming.
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\20\ ASLRRA Pet. at 3.
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II. Section-by-Section Analysis
Subpart C--Emergency Escape Breathing Apparatus Standards
Section 227.217 Compliance Dates
The compliance dates in this section are delayed by 12 months so
all railroads will have an additional year to procure sufficient EEBAs
to comply with the 2024 Final Rule's requirements, including
establishing and complying with a written program for the inspection,
inventory, maintenance, and replacement of the devices, and training
employees how to use EEBAs properly. Specifically, paragraphs (a) and
(b) now will provide Class I and II railroads with a new compliance
date of no later than 12 months from March 26, 2025, i.e., March 26,
2026, and paragraph (c) will now provide Class III railroads with a new
compliance date of no later than 18 months from March 26, 2025, i.e.,
September 26, 2026.
III. Public Proceedings
[[Page 38073]]
The Administrative Procedure Act generally requires agencies to
provide the public with notice of proposed rulemaking and an
opportunity to comment prior to publication of a substantive rule.
However, 5 U.S.C. 553(b)(B) authorizes agencies to dispense with notice
and comment ``when the agency for good cause finds (and incorporates
the finding and a brief statement of reasons therefor in the rules
issued) that notice and public procedure thereon are impracticable,
unnecessary, or contrary to the public interest.'' FRA finds that
providing notice and an opportunity to comment would be impracticable
and contrary to the public interest. The compliance deadlines for Class
I and II railroads have already passed, and the deadline for Class III
railroads is approaching. Railroads face various factors outside of
their control that prevent them from purchasing enough EEBAs from
manufacturers to comply with the 2024 Final Rule's requirements by the
existing regulatory deadlines, as discussed above.\21\ Though FRA has
exercised its forbearance through enforcement discretion in an interim
and a follow-up response to railroad petitions for reconsideration,\22\
amending the applicable regulation to delay the compliance dates is
necessary to ensure certainty and an orderly implementation of the
rule's requirements. If FRA does not delay the compliance dates, costs
to the regulated community to obtain compliant EEBAs will escalate
greatly, as railroads compete to purchase available EEBAs, and
compliance by all railroads still will be impossible, given the
currently insufficient supply of EEBAs. In addition, the quality of
training employees on the proper use of EEBAs and meaningfully
fulfilling other requirements of the 2024 Final Rule likely will
suffer, as railroads rush to comply with the deadlines FRA now
understands are unreasonable. For these reasons, providing notice and
an opportunity to comment on the compliance date delay is impracticable
and contrary to the public interest.
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\21\ See Section I (Background), discussing the information
gathered by FRA and the railroads demonstrating that the 2024 Final
Rule's compliance dates are unachievable.
\22\ FRA-2009-0044-0029, FRA-2009-0044-0030, and FRA-2009-0044-
0031.
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For the foregoing reasons, the good cause exception in 5 U.S.C.
553(d)(3) also applies to FRA's decision to make this final rule
effective upon publication, rather than not less than 30 days before
its effective date.
IV. Regulatory Impact and Notices
A. Executive Order (E.O.) 12866 (Regulatory Planning and Review) and
DOT Regulatory Policies and Procedures
FRA has evaluated this final rule in accordance with E.O. 12866,
Regulatory Planning and Review (58 FR 51735, Oct. 4, 1993), and DOT
Order 2100.6B, Policies and Procedures for Rulemaking (Mar. 10, 2025).
The Office of Information and Regulatory Affairs within the Office of
Management and Budget (OMB) determined that this final rule is not a
significant regulatory action under section 3(f) of E.O. 12866. This
final rule extends the compliance dates for all railroads to comply
with FRA's EEBA requirements by one year, which will provide railroads
with additional time to procure EEBAs as well as to adopt and to comply
with the other requirements in the 2024 Final Rule in an efficient and
effective manner. FRA has analyzed the potential costs and benefits of
this final rule's compliance date extension. The extension of time for
compliance will grant some relief to the railroads and will not impose
any additional burdens on regulated entities.
FRA estimates the 10-year costs of the 2024 final rule to be
between $24.4 million to $84.2 million, discounted at 7 percent, after
taking into account the extension provided in this final rule. By
comparing those costs to the costs that were provided with the 2024
final rule, FRA calculates the extension in compliance date will result
in an estimated 10-year cost savings of between $2.7 million to $7.7
million, discounted at 7 percent. Table 1 shows the revised total costs
over the 10-year analysis period.
Table 1--Total 10-Year Costs
[2021 Dollars]
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10-Year cost Present value 7% Present value 3% Annualized 7% Annualized 3%
Category ($) ($) ($) ($) ($)
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Option 1: Employee Assignment..................................... $89,202,440 $72,578,026 $81,302,151 $10,333,478 $9,531,092
Option 2: Locomotive Assignment................................... 103,516,340 84,169,015 94,319,301 11,983,774 11,057,099
Option 3: Equipment Pooling....................................... 31,575,340 24,406,067 28,105,629 3,474,875 3,294,837
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FRA estimates the 10-year benefits of the 2024 final rule to be
$36,926, discounted at 7 percent, after taking into account the
extension provided by this final rule. This is a reduction of $6,184
compared to the benefits that were provided with the 2024 final rule,
discounted at 7 percent. Table 2 shows the total revised benefits over
the 10-year analysis period.
Table 2--Total 10-Year Benefits
[2021 Dollars]
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10-Year benefits ($) Present value 7% ($) Present value 3% ($) Annualized 7% ($) Annualized 3% ($)
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$56,640 $36,926 $46,846 $5,257 $5,492
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Generally, extending the compliance dates for all railroads to
comply with FRA's EEBA requirements by one year will result in a net
cost savings. However, other factors such as market conditions, the
possibility for manufacturers requiring deposits on large orders, and
the possibility of railroads having already begun procuring EEBAs in
anticipation of this final rule, could influence the extent of the cost
savings.
[[Page 38074]]
B. E.O. 14192 (Unleashing Prosperity Through Deregulation)
E.O. 14192, Unleashing Prosperity Through Deregulation (90 FR 9065,
Jan. 31, 2025), requires that for ``each new [E.O. 14192 regulatory
action] issued, at least ten prior regulations be identified for
elimination.'' \23\ Implementation guidance for E.O. 14192 issued by
OMB (Memorandum M-25-20, March 26, 2025) defines two different types of
E.O. 14192 actions: an E.O. 14192 deregulatory action, and an E.O.
14192 regulatory action.\24\
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\23\ E.O. 14192, Unleashing Prosperity Through Deregulation (90
FR 9065, Feb. 6, 2025).
\24\ OMB, Memorandum M-25-20, Guidance Implementing Section 3 of
Executive Order 14192, Titled ``Unleashing Prosperity Through
Deregulation'' (Mar. 26, 2025).
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An E.O. 14192 deregulatory action is defined as ``an action that
has been finalized and has total costs less than zero.'' This final
rule is expected to have total costs less than zero, and therefore it
would be considered an E.O. 14192 deregulatory action. The extension in
compliance date is expected to result in an estimated 10-year cost
savings of between $2.7 million to $7.7 million, discounted at 7
percent.
C. Regulatory Flexibility Act and E.O. 13272
The Regulatory Flexibility Act of 1980 ((RFA), 5 U.S.C. 601 et
seq.) and E.O. 13272, Proper Consideration of Small Entities in Agency
Rulemaking (67 FR 53461, Aug. 16, 2002), require an agency to prepare
and make available to the public a regulatory flexibility analysis that
describes the effect of the rule on small entities (i.e., small
businesses, small organizations, and small governmental jurisdictions).
A regulatory flexibility analysis is not required when a rule is exempt
from notice and comment rulemaking. FRA has determined that this rule
is exempt from notice and comment rulemaking. Therefore, a regulatory
flexibility analysis is not required for this rule.
D. Federalism Implications
This rule will not have a substantial effect 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. Thus, in accordance with E.O. 13132, Federalism (64 FR
43255, Aug. 10, 1999), preparation of a Federalism Assessment is not
warranted.
E. 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 final rule 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 U.S.
F. Paperwork Reduction Act
There are no new information requirements contained in this final
rule and, in accordance with the Paperwork Reduction Act of 1995, 44
U.S.C. 3501 et seq., an information collection submission to the Office
of Management and Budget (OMB) is not required. The recordkeeping and
reporting requirements already contained in this rule were approved by
OMB on March 22, 2024. The information collection requirements of this
rule thereby became effective when they were approved by OMB. The OMB
approval number is OMB No. 2130-0620, and OMB approval expires on March
31, 2027.
G. Unfunded Mandates Reform Act of 1995
Under section 201 of the Unfunded Mandates Reform Act of 1995
((UMRA), Public Law 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 UMRA (2 U.S.C. 1532) further requires that ``before promulgating any
general notice of proposed rulemaking that is likely to result in the
promulgation of any rule that includes any Federal mandate that may
result in expenditure by State, local, and tribal governments, in the
aggregate, or by the private sector, of $100,000,000 or more (adjusted
annually for inflation) in any one year, and before promulgating any
final rule for which a general notice of proposed rulemaking was
published, the agency shall prepare a written statement'' detailing the
effect on State, local, and tribal governments and the private sector.
This final rule will not result in such an expenditure, and thus
preparation of such a statement is not required.
H. Environmental Assessment
FRA has analyzed this rule for the purposes of the National
Environmental Policy Act of 1969 (NEPA). In accordance with 42 U.S.C.
4336 and DOT NEPA Order 5610.1D, FRA has determined that this rule is
categorically excluded pursuant to 23 CFR 771.118(c)(4), ``[p]lanning
and administrative activities not involving or leading directly to
construction, such as: [p]romulgation of rules, regulations, and
directives.'' This rulemaking is not anticipated to result in any
environmental impacts, and there are no unusual or extraordinary
circumstances present in connection with this rulemaking.
I. Energy Impact
E.O. 13211, Actions Concerning Regulations that Significantly
Affect Energy Supply, Distribution, or Use (66 FR 28355, May 22, 2001),
requires Federal agencies to prepare a Statement of Energy Effects for
any ``significant energy action.'' FRA has evaluated this rule in
accordance with E.O. 13211 and determined that this rule is not a
``significant energy action'' within the meaning of E.O. 13211.
J. E.O. 13175 (Tribal Consultation)
FRA has evaluated this final rule in accordance with the principles
and criteria contained in E.O. 13175, Consultation and Coordination
with Indian Tribal Governments (65 FR 67249, Nov. 9, 2000). The final
rule would not have a substantial direct effect on one or more Indian
tribes, would not impose substantial direct compliance costs on Indian
tribal governments, and would not preempt tribal laws. Therefore, the
funding and consultation requirements of E.O. 13175 do not apply, and a
tribal summary impact statement is not required.
List of Subjects in 49 CFR Part 227
Hazardous materials transportation, Locomotive noise control,
Occupational safety and health, Penalties, Railroad employees, Railroad
safety, Reporting and recordkeeping requirements.
The Final Rule
For the reasons discussed in the preamble, FRA amends part 227 of
chapter II, subtitle B of title 49 of the Code of Federal Regulations
as follows:
PART 227--OCCUPATIONAL SAFETY AND HEALTH IN THE LOCOMOTIVE CAB
0
1. The authority citation for part 227 continues to read as follows:
[[Page 38075]]
Authority: 49 U.S.C. 20103, 20103 note, 20166, 20701-20703,
21301, 21302, 21304; 28 U.S.C. 2461 note; and 49 CFR 1.89.
0
2. Revise Sec. 227.127 to read as follows:
Sec. 227.217 Compliance dates.
(a) Class I railroads subject to this subpart are required to
comply with this subpart beginning no later than 12 months from March
26, 2025.
(b) Class II railroads subject to this subpart are required to
comply with this subpart beginning no later than 12 months from March
26, 2025.
(c) Class III railroads subject to this subpart and any other
railroads subject to this subpart are required to comply with this
subpart beginning no later than 18 months from March 26, 2025.
Issued in Washington, DC.
Robert Andrew Feeley,
Acting Administrator.
[FR Doc. 2025-15022 Filed 8-6-25; 8:45 am]
BILLING CODE 4910-06-P
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