Friday, October 27, 2006

Part II

Department of Transportation Federal Railroad Administration

49 CFR Parts 227 and 229 Occupational Exposure for Railroad Operating Employees; Final Rule

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DEPARTMENT OF TRANSPORTATION Railroad Administration, 1120 Vermont the use of unsafe locomotives and Avenue, NW., Mail Stop 25, authorizes FRA to issue standards for Federal Railroad Administration Washington, DC 20590 (e-mail: locomotive maintenance and testing. In [email protected] and telephone: order to further FRA’s ability to respond 49 CFR Parts 227 and 229 202–493–6283); or Jennifer Schwab, effectively to contemporary safety [Docket No. FRA 2002–12357, Notice No. Trial Attorney, Office of Chief Counsel, problems and hazards as they arise in 2] Federal Railroad Administration, 1120 the railroad industry, Congress enacted Vermont Avenue, NW., Mail Stop 10, the Federal Railroad Safety Act of 1970 RIN 2130–AB56 Washington, DC 20590 (e- (‘‘Safety Act’’) (formerly 45 U.S.C. 421, 431 et seq., now found primarily in Occupational Noise Exposure for mail:[email protected] and chapter 201 of Title 49 of the United Railroad Operating Employees telephone: 202–493–6349). SUPPLEMENTARY INFORMATION: Note that States Code). The Safety Act grants the AGENCY: Federal Railroad for brevity, all references to CFR parts Secretary of Transportation rulemaking Administration (FRA), Department of will be to parts in Title 49 of the Code authority over all areas of railroad safety Transportation (DOT). of Federal Regulations (49 CFR), unless (49 U.S.C. 20103(a)) and confers all ACTION: Final rule. otherwise noted. powers necessary to detect and penalize violations of any rail safety law. This SUMMARY: FRA is amending its Table of Contents for Supplementary authority was subsequently delegated to occupational noise standards for Information the FRA Administrator (49 CFR 1.49). railroad employees whose predominant I. Background (Until July 5, 1994, the Federal railroad noise exposure occurs in the locomotive A. Statutory and Regulatory Framework safety statutes existed as separate acts cab. FRA’s previous standard (issued in 1. Railroad Safety, In General found primarily in Title 45 of the 2. FRA–OSHA Jurisdiction for United States Code. On that date, all of 1980) limited cab employee noise Occupational Safety and Health Issues exposure to certain levels based on the 3. Federal Occupational Noise Standards the acts were repealed, and their duration of their exposure. This rule B. History of FRA’s Treatment of provisions were recodified into Title modifies that standard and also sets out Occupational Noise 49.) additional requirements. 1. FRA’s Past Noise Standard The term ‘‘railroad’’ is defined in the FRA is requiring railroads to conduct 2. Studies of Noise Safety Act to include all forms of non- noise monitoring and to implement a C. Fundamental Principles of Sound highway ground transportation that runs on hearing conservation program for D. Occupational Noise in the Railroad rails or electromagnetic guideways, * * * railroad operating employees whose Industry other than rapid transit operations within an noise exposure equals or exceeds an 8- II. The Railroad Safety Advisory Committee urban area that are not connected to the (RSAC) Process general railroad system of transportation. hour time-weighted average (TWA) of A. RSAC 85 decibels. FRA is also establishing B. Working Group This definition makes clear that FRA design, build, and maintenance III. FRA’s Noise Standard has jurisdiction over (1) rapid transit standards for new locomotives and A. FRA’s Approach to Cab Noise operations within an urban area that are maintenance requirements for existing B. Responsibilities of Railroads and connected to the general railroad system locomotives. FRA expects that this rule Employees of transportation, and (2) all freight, will reduce the likelihood of noise- C. Compliance intercity, passenger, and commuter rail induced for railroad IV. Summary of Comments passenger operations regardless of their operating employees. A. In General connection to the general railroad B. Approaches Other Than the OSHA HCA DATES: This final rule is effective system of transportation or their status C. Hierarchy of Controls as a common carrier engaged in February 26, 2007. The incorporation by D. Triggering Criteria reference of certain publications listed E. interstate commerce. FRA has issued a in the rule is approved by the Director F. Electronic Communication Headsets policy statement describing how it of the Federal Register as of February G. Location of the Train Horn determines whether particular rail H. Report to Congress passenger operations are subject to 26, 2007. Any petitions for 1 reconsideration with this final rule must I. Regulatory Impact Analysis FRA’s jurisdiction. That policy be submitted no later than December 26, V. Section-by-Section Analysis statement is located in Appendix A to VI. Regulatory Impact and Notices 2006. part 209. A. Executive Order 12866 and DOT Pursuant to its statutory authority, ADDRESSES: Docket: For access to the Regulatory Policies and Procedures FRA promulgates and enforces a docket to read background documents B. Regulatory Flexibility Act of 1980 and comprehensive regulatory program to or comments received, go to http:// Executive Order 13272 address railroad track, signal systems, dms.dot.gov at any time or to Room PL– C. Paperwork Reduction Act of 1995 D. Federalism Implications railroad communications, rolling stock, 401 on the plaza level of the Nassif rear-end marking devices, safety glazing, Building, 400 Seventh Street, SW., E. Environmental Impact F. Unfunded Mandates Reform Act of 1995 railroad accident/incident reporting, Washington, DC, between 9 a.m. and 5 G. Energy Impact locational requirements for dispatching p.m., Monday through Friday, except H. Privacy Act of U.S. rail operations, safety integration Federal holidays. plans governing railroad consolidations, FOR FURTHER INFORMATION CONTACT: I. Background merger and acquisitions of control, Alan Misiaszek, Senior Industrial A. Statutory and Regulatory Framework operating practices, passenger train Hygienist, Office of Safety, Federal emergency preparedness, alcohol and Railroad Administration, 1120 Vermont 1. Railroad Safety, in General drug testing, locomotive engineer Avenue, NW., Mail Stop 25, FRA has broad statutory authority to certification, and workplace safety. In Washington, DC 20590 (e-mail: regulate railroad safety. The Locomotive the area of workplace safety, the agency [email protected] and telephone: Inspection Act (‘‘LIA’’) (formerly 45 has issued a variety of standards 202–493–6002); Jeffrey Horn, U.S.C. 22–34, now 49 U.S.C. 20701– Economist, Office of Safety, Federal 20703) was enacted in 1911. It prohibits 1 See 65 FR 42529 (July 2, 2000).

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designed to protect the health and safety ‘‘movement of equipment over the evaluated in light of overall safety of railroad employees. For instance, rails’’) in which FRA has special considerations. 43 FR 10588. FRA requires ladders and handholds to competence and expertise. See 43 FR 3. Federal Occupational Noise be installed on rail equipment in order 10585. Often, railroad working Standards to prevent employee falls (part 231). conditions are so unique that a FRA requires locomotive cab floors and regulatory body other than FRA would OSHA’s occupational noise standard passageways to remain clear of debris not possess the requisite expertise to was promulgated under the Walsh- 4 and oil in order to prevent employee determine appropriate safety standards. Healey Public Contracts Act of 1969 slips, trips, and falls (§ 229.119). FRA As a general rule, FRA exercises its for the purpose of protecting employees requires blue signal protection in order statutory jurisdiction over railroad from workplace exposure to damaging to protect employees working on employee working conditions where noise levels. The Walsh-Healey Act railroad equipment from injuries due to employees are engaged in duties that are contained very limited provisions. Its the unexpected movement of the intrinsic to ‘‘railroad operations,’’ where noise standard allowed for a permissible equipment (part 218). FRA has rules the identical conditions generally do not exposure level of 90 dB(A), a 5 dB that provide for the protection of occur in typical industrial settings, and exchange rate, and a 90 dB(A) threshold. railroad employees working on or near where the hazard falls within the scope OSHA adopted the Walsh-Healey railroad tracks in order to decrease the of FRA’s expertise. Historically, the standard as an OSHA standard pursuant risk of employees falling from railroad concept of ‘‘railroad safety’’ has to section 6(a) of the OSH Act. bridges and of being struck by moving included the health and safety of In January 1981, OSHA promulgated trains (part 214). employees when they are engaged in a Hearing Conservation Amendment railroad operations. In its 1978 (HCA) to its occupational noise 2. FRA–OSHA Jurisdiction for exposure standard. See 46 FR 4078 Occupational Safety and Health Issues Statement concerning employee workplace safety, FRA stated: (January 16, 1981). The amendment FRA and the U.S. Occupational Safety consisted of requirements for noise and Health Administration 2 (OSHA) The term ‘‘safety’’ includes health-related measurements, audiometric testing, the have a complementary relationship with aspects of railroad safety to the extent such use and care of hearing protectors, considerations are integrally related to respect to occupational safety and operational safety hazards or measures taken employee , employee , health issues in the railroad industry. to abate such hazards. 43 FR 10585. and recordkeeping. Portions of the OSHA regulates conditions and hazards amendment were subsequently stayed affecting the health and safety of Hazards that impact the health of for reconsideration and clarification. employees in the workplace. OSHA’s railroad employees engaged in railroad See 46 FR 42622 (August 21, 1981). In jurisdiction extends to working operations may also result in adverse 1983, OSHA finalized the provisions of conditions in all types of , impacts on railroad safety, and so there its Hearing Conservation Amendment except where another Federal agency is often a clear nexus between railroad by revoking various stayed provisions, exercises statutory authority to prescribe safety and employee health. An example lifting the stay on other provisions, and or enforce standards or regulations of this jurisdiction is seen in FRA’s making other technical corrections.5 covering the working conditions issuance of locomotive sanitation OSHA’s revised regulation included a pursuant to § 4(b)(1) of the OSH Act. See standards. See 67 FR 16032 (April 4, detailed hearing conservation program 29 U.S.C. 653(b)(1). Section 4(b)(1) 2002). There, FRA promulgated (HCP).6 OSHA’s occupational noise preempts OSHA’s jurisdiction where regulations that address toilet and standard applies, for the most part, to all another federal agency issues its own washing facilities for employees who industry engaged in interstate regulations or standards or articulates a work in locomotive cabs. See 49 CFR commerce.7 OSHA’s noise standard can formal position that a particular §§ 229.137 through 139. be found at 29 CFR 1910.95. As will be working condition should go FRA has also exercised this discussed in subsequent sections, FRA’s unregulated. jurisdiction with regard to occupational standard is quite similar to OSHA’s In 1978, FRA issued a Statement of noise in the locomotive cab. FRA issued standard. Policy setting out the respective areas of its current standard for locomotive cab While OSHA is the primary regulator jurisdiction between FRA and OSHA in noise in 1980. While OSHA, in general, of noise in the workplace, other federal the railroad industry. See 43 FR 10583 regulates occupational noise in the agencies, in addition to FRA, regulate 3 (March 14, 1978). In that Policy workplace, FRA is the more specific occupational settings. FRA Statement, FRA drew the jurisdictional appropriate entity to regulate noise in regulates employee noise exposure in line between ‘‘occupational safety and the locomotive cab, because the the locomotive cab. The U.S. Air Force health’’ issues in the railroad industry locomotive cab is so much a part of regulates the noise environment of Air and work related to ‘‘railroad ‘‘railroad operations.’’ With respect to Force personnel.8 The Mine Safety and operations,’’ with FRA exercising noise in the locomotive cab, FRA wrote, Health Administration (MSHA) authority over railroad operations and in its Policy Statement, that: regulates the occupational noise OSHA over occupational safety and FRA views the question of occupational exposure of miners. health issues. Further, the Policy noise exposure of employees engaged in In 1999, MSHA issued a Statement pointed to FRA’s ‘‘proper railroad operations, during their involvement comprehensive rule that establishes role’’ as concentrating its ‘‘limited in such operations, as a matter uniform requirements for all miners. See resources in addressing hazardous comprehended by the regulatory fields over which FRA has exercised its statutory working conditions in those traditional 4 See 41 U.S.C. 35, et seq. jurisdiction. FRA is therefore responsible for areas of railroad operations’’ (i.e., 5 See 48 FR 9738 (March 8, 1983). determining what exposure levels are 6 Throughout the rule, FRA uses ‘‘hearing permissible, what further regulatory steps 2 conservation program’’ and HCP interchangeably. OSHA is an agency within the U.S. Department may be necessary in this area, if any, and of Labor. Congress created OSHA with the 7 OSHA has a separate occupational noise Occupational Safety and Health Act of 1970 (‘‘OSH what remedial measures are feasible when regulation that applies to the industry. Act’’). Pursuant to the OSH Act, employers have a See 29 CFR 1926.52. duty to protect workers from workplace hazards, 3 See 29 CFR 1910.95 and 29 CFR 1926.52 8 See Air Force Occupational Safety and Health including noise. (‘‘Occupational Noise Exposure’’). Standard 48–20, ‘‘Hearing Conservation Program.’’

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64 FR 49548 (September 13, 1999). In also acknowledged that there would be included in the docket.10 With respect that rule, MSHA adopted a permissible problems with the technical feasibility to noise, FRA conducted a exposure level of 90 dB(A) as an 8-hour of, and economic impact associated comprehensive survey, reviewed TWA. MSHA also requires employers to with, an 85 dB(A) requirement. Based historical data on noise-related use all feasible engineering and on the information available and incidents and investigations, and in order to technology of the time, FRA determined gathered information on hearing reduce a miner’s noise exposure to the that the 90 dB(A) 8-hour noise exposure protection programs. permissible exposure level. Where a limit would ‘‘provide adequate 2. Studies of Noise mine operator is unable to reduce the protection for the hearing, noise exposure to the permissible level, communication, and comfort of In the proposed rule, FRA provided the mine operator must provide the locomotive crews under presently an extensive discussion on studies miner with hearing protectors (HP) and accepted standards.’’ See 45 FR 21092, related to noise in the locomotive cab. is required to ensure that the miner uses 21106 (March 31, 1980). This includes a 1971 study on highway- them. In addition, where a miner is rail grade crossings 11 and an addendum exposed at or above a TWA of 85 dB(A), The then-existing § 229.121 did not on the sound environment in the the employer must place the miner in a address hearing conservation for locomotive cab,12 a 1980 study on in- hearing conservation program. The locomotive cab employees, including cab occupational noise exposure,13 an program must include exposure the use of personal protective FRA Report to Congress on cab working monitoring, the use of hearing equipment, ongoing hearing testing, conditions,14 the Wyle Report (the protectors, audiometric testing, training, employee training on the cause and Association of American Railroads’ and recordkeeping. See 64 FR 49550. prevention of hearing loss, and periodic (AAR) review of FRA’s Report to noise monitoring in the workplace. Congress),15 a 1997 Technical B. History of FRA’s Treatment of These are standard components of an Memorandum on the FRA Report to Occupational Noise occupational hearing conservation Congress and subsequent review,16 and 1. FRA’s Past Noise Standard program, and OSHA requires them of an FRA Administrator’s Roundtable In part 229, FRA establishes other general industry workplaces Discussion on Noise. Copies of these minimum federal safety standards for within its jurisdiction. documents are included in the docket. locomotives. These regulations In 1992, Congress enacted section 10 In the interest of space, FRA is not prescribe inspection and testing of The Rail Safety Enforcement and republishing its discussion here. See 69 requirements for locomotive Review Act (RSERA) (Pub. L. 102–365, FR 35145, 35148–35151; June 23, 2004. components and systems. They also September 3, 1992; codified at 49 U.S.C. C. Fundamental Principles of Sound prescribe minimum locomotive cab 20103, note) in response to concerns safety requirements. In 1980, FRA FRA provided an extensive discussion raised by employee organizations, in the proposed rule on fundamental issued standards for acceptable noise Congressional members, and levels aboard a locomotive (49 CFR principles of sound. The topics covered recommendations of the National include sound, hearing, hearing loss, 229.121).9 Transportation Safety Board (NTSB) Section 229.121 was promulgated to and instrumentation. See 69 FR 35145, concerning crashworthiness of and 35152–35154. protect the hearing and health of cab working conditions in locomotive cabs. occupants and to facilitate crew Section 10 of RSERA, entitled D. Occupational Noise in the Railroad communication. It provided that noise Locomotive Crashworthiness and Industry level exposure in the cab may not Working Conditions, required FRA ‘‘to Noise is one of the most pervasive exceed specific prescribed levels. The consider prescribing regulations to hazardous agents in the American provision limited employee noise improve the safety and working exposure to an eight-hour time-weighted conditions of locomotive cabs’’ 10 See document 4 of docket number 12357 on average (TWA) of 90 dB(A) with a throughout the railroad industry. In DOT’s Docket Web site (dms.dot.gov). doubling rate of 5 dB(A). It also 11 order to determine whether regulations John Aurelius and Norman Korebor, ‘‘The provided for an absolute upper noise Visibility and Audibility of Trains Approaching limit of 115 dB(A). In addition, it would be necessary, Congress required Rail-Highway Grade Crossings,’’ Report No. FRA– FRA to assess ‘‘the extent to which RP–71–2, May 1971. established procedures for noise testing. 12 At the time of the promulgation of the environmental, sanitary, and other John P. Aurelius, ‘‘The Sound Environment in working conditions in locomotive cabs Locomotive Cabs,’’ Report No. FRA–RP–71–2A, July rule, there was discussion as to the 1971. proposed noise exposure limits. One affect productivity, health, and the safe 13 Roger D. Kilmer, ‘‘Assessment of Locomotive commenter to the 1980 proposed rule operation of locomotives.’’ Crew In-Cab Occupational Noise Exposure,’’ took exception to the proposed 90 dB(A) In response to the Congressional National Bureau of Standards. Report No. FRA– ORD–80/91, December 1980. 8-hour time limit and suggested that 85 mandate set forth in Section 10 of 14 FRA Report to Congress, ‘‘Locomotive dB(A) was more appropriate. FRA RSERA, FRA undertook steps to Crashworthiness and Cab Working Conditions.’’ explained that, in selecting the determine the health and safety effects September 1996. proposed noise exposure limits, it of locomotive cab working conditions. 15 Eric Stusnick for Wyle Laboratories, ‘‘A Review attempted to ‘‘strike a balance between of the Noise and Vibration Sections of the Federal FRA studied a variety of working Railroad Administration’s Report to Congress that which is most desirable and that conditions in locomotive cabs, Entitled ‘Locomotive Crashworthiness and Cab which is feasible.’’ See 45 FR 21092, including sanitation, noise, temperature, Working Conditions.’’’ December 1996. See 21106 (March 31, 1980). FRA air quality, ergonomics, and vibration. document 6 of docket number 12357 on DOT’s acknowledged that more crew members FRA prepared the Locomotive Docket Web site (dms.dot.gov). 16 Technical Memorandum from Hugh J. would be at a lower risk at 85 dB(A), but Crashworthiness and Cab Working Saurenman and Lance D. Meister of Harris Miller, Conditions Report to Congress Miller & Hanson, Inc., ‘‘Comments on AAR Review 9 For the Final Rule, see 45 FR 21092, 21105 and (‘‘Report’’), dated September 1996, of Chapter 6, FRA Report to Congress ‘‘Locomotive 21117 (March 31, 1980). For the Notice of Proposed which outlines the results of these Crashworthiness and Cab Working Conditions.’’ Rulemaking, see 44 FR 29604, 29618 and 29627 June 1997. See document 7 of docket number 12357 (May 21, 1979). studies. A copy of the Report is on DOT’s Docket Web site (dms.dot.gov).

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workplace. In the 1980’s, the National metal, loose cab side windows, and American Public Transportation Association Institute for Occupational Safety and miscellaneous loose and/or poorly fitted (APTA) Health (NIOSH) identified noise- cab equipment—and cause them to American Short Line and Regional Railroad induced hearing loss (NIHL) as one of resonate. Other potential noise sources Association (ASLRRA) the ten leading work-related diseases include fans on dynamic brake systems; American Train Dispatchers Department 17 (ATDD) and injuries. In the 1990’s, NIOSH alerters; wheel/rail contact at cruising Association of American Railroads (AAR) listed noise-induced hearing loss as one speed; rooftop or retrofitted air Association of Railway Museums (ARM) of the eight most critical occupational conditioning/cooling units; bells that Association of State Rail Safety Managers diseases and injuries requiring research are sounded to indicate that the train is (ASRSM) and development activities within the about to move; and radios that are used Brotherhood of Locomotive Engineers and framework of the National Occupational for crew communication. Noise can also Trainmen (BLET) Research Agenda.18 Noise is also one of result from the cab structure, depending Brotherhood of Maintenance of Way the most intrusive aspects of locomotive on the particular design of the Employes Division (BMWED) operations.19 locomotive as it pertains to noise or Brotherhood of Railroad Signalmen (BRS) There are many noise sources in a vibration isolation. Maintenance, or the Federal Transit Administration (FTA)* High Speed Ground Transportation locomotive cab. The primary noise lack thereof, can also impact noise. sources are engine noise, locomotive Association Engines in less than ideal condition will International Association of Machinists and horns, and brake noise. The nature and run rougher and noisier. Mountings can Aerospace Workers level of noise generated by each source wear and loosen, which can create new International Brotherhood of Electrical varies greatly. Diesel engine noise is vibrations or decrease vibration Workers (IBEW) continuous, but it varies according to damping. Also, worn engine Labor Council for Latin American the engine load and engine speed. The components (e.g., bearings) can create Advancement (LCLAA)* noise from locomotive horns (and other noise. League of Railway Industry Women* audible warning devices) is sporadic but The locomotive is also subject to National Association of Railroad Passengers can be very loud if the window is open several external noise sources. Since the (NARP) and can be very frequent if there are locomotive cab is a mobile workplace, National Association of Railway Business many highway-rail grade crossings. Women* the level of noise exposure varies greatly National Conference of Firemen & Oilers Brake noise results from the air by the route traveled. Noise results from exhaust that comes from the brake National Railroad Construction and the sound that is reflected into the cab Maintenance Association valves when the brakes are released. Air (especially if through open windows) National Railroad Passenger Corporation brake exhaust is a high frequency sound from reflective surfaces such as tunnels, (AMTRAK) and can be very intense. In the past, air bridges, sheds, and close embankments. National Transportation Safety Board brake exhaust vented directly into the Other conditions that can also impact (NTSB)* locomotive cab. By 1980, locomotive noise include the topography and grade Railway Supply Institute (RSI) manufacturers, maintenance facilities, of the work assignment and the use of Safe Travel America Secretaria de Communicaciones y Transporte and railroads had started venting the locomotive horns to provide notice at exhaust below the cab floor. FRA noted (Mexico)* highway-rail grade crossings. Sheet Metal Workers International this change in its 1980 locomotive cab Predicting and addressing noise noise rule. See 45 FR 21092 (March 31, Association (SMWIA) exposures in the locomotive cab is Tourist Railway Association Inc. 1980). FRA recognized the effectiveness difficult not only because of the wide Transport Canada* of this redesign, noting that it reduced variety of possible conditions, but Transport Workers Union of America the cab occupant’s noise dose by an because of the mobile railroad (TWUA) estimated 15 to 20 percent while still workforce. It is a challenge to create and Transportation Communications providing an audible indication of brake implement effective training and testing International Union/BRC (TCIU/BRC) United Transportation Union (UTU) performance. See 45 FR 21092, 21015 programs, because locomotive crews are (March 31, 1980). Manufacturers not on the same run or same locomotive * Indicates associate membership. continued to re-design locomotives from one day to the next. In addition, accordingly, and today the vast majority When appropriate, FRA assigns a task locomotive crews can work shifts that of locomotives have their air brake to the RSAC, and after consideration last up to twelve hours. exhaust vented below the floor and and debate, the RSAC may accept or away from the crew. There are some II. The Railroad Safety Advisory reject the task. If the RSAC accepts the older locomotives, though (such as the Committee (RSAC) Process task, the RSAC establishes a working ones used by some short lines), which group that possesses the appropriate A. RSAC still use the older equipment that vents expertise and representation of interests air brake exhaust into the cab. In March 1996, FRA established the to develop recommendations to FRA for Another noise source comes from RSAC, which provides a forum for action on the task. The working group vibrations which loosen cab developing consensus recommendations develops the recommendations by components—such as loose cab sheet on rulemakings and other safety consensus. The working group may program issues. The Committee establish one or more task forces to 17 National Institute for Occupational Safety and includes representation from all of the develop the facts and options on a Health (NIOSH), ‘‘Criteria for a Recommended agency’s major customer groups, particular aspect of a given task. The Standard: Occupational Noise Exposure, Revised Criteria 1998,’’ National Institute for Occupational including railroad carriers, labor task force reports to the working group. Safety and Health, DHHS (NOISH) Pub. No. 98–126, organizations, suppliers, manufacturers, If a working group reaches unanimous Cincinnati, OH (1998). and other interested parties. A list of consensus on recommendations for 18 NIOSH, ‘‘National Occupational Research member groups follows: action, the working group presents the Agenda,’’ National Institute for Occupational Safety package to the RSAC for a vote. If a and Health, DHHS (NIOSH), Pub. No. 96–115, American Association of Private Railroad Car Cincinnati, OH (1996). Owners (AARPCO) simple majority of the RSAC accepts the 19 Human Factors Guidelines for Locomotive American Association of State Highway & proposal, the RSAC formally Cabs, DOT/FRA/ORD–93/03 (November 1998). Transportation Officials (AASHTO) recommends the proposal to FRA.

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FRA then determines what action to The Working Group’s goal was to to the RSAC. On June 27, 2003, the take on the recommendation. Because produce recommendations for RSAC accepted these recommendations, FRA staff has played an active role at locomotive cab noise exposure which had been reviewed and accepted the working group level in discussing standards warranted by an assessment by FRA. the issues and options and in drafting of available information on hearing loss, On June 23, 2004, FRA published an the language of the consensus proposal, hearing conservation programs, existing NPRM containing the recommendations and because the RSAC recommendation federal standards, and occupational of the Working Group and the full constitutes the consensus of some of the injury data. The Working Group decided RSAC. See 69 FR 35146. The NPRM industry’s leading experts on a given that specific expertise would be needed provided for a 90-day comment period subject, FRA is often favorably inclined to analyze pertinent information and so and provided interested parties the toward the RSAC recommendation. it formed the Noise Task Force. opportunity to request a public hearing. However, FRA is in no way bound to The Noise Task Force, which was The comment period closed on follow the recommendation, and the established in September 1997, was September 21, 2004. FRA received agency exercises its independent made up of industrial hygiene, safety, comments from approximately 50 engineering, and medical staff from judgement on whether the interested parties. There were a wide carriers, labor organizations, and FRA. recommended rule achieves the variety of commenters, including The Noise Task Force met regularly over agency’s regulatory goal, is soundly individual locomotive engineers; a period of several years to discuss supported, and is in accordance with professional, scientific, and several topics, including hearing loss policy and legal requirements. Often, credentialing associations; congressmen; and noise exposure among locomotive FRA varies in some respects from the individual audiologists; an acoustical cab employees; existing railroad hearing RSAC recommendation in developing consulting firm; a commuter railroad; loss prevention programs; OSHA’s the actual regulatory proposal. If the and a manufacturing company. occupational noise standards; working group or the RSAC is unable to FRA reconvened the Task Force on equipment changes and procedures that March 1, 2005 and the Working Group reach consensus on recommendations improve noise levels in the cab; hearing for action, FRA moves ahead to resolve on March 2–3, 2005 to discuss the testing and training programs; and noise comments that FRA received about the the issue through traditional rulemaking monitoring. proceedings. NPRM. The Task Force and the Working The Noise Task Force concluded that Group considered all the comments and On June 24, 1997, FRA presented the OSHA’s standard for noise was an again reached consensus on subject of locomotive cab working appropriate framework and starting recommendations for a final standard. conditions to the RSAC. The purpose of point for an update and revision to These recommendations were presented this task was defined as follows: ‘‘To FRA’s existing . The to the RSAC and on May 18, 2005, the safeguard the health of locomotive Noise Task Force also identified several RSAC accepted these recommendations. crews and to promote the safe operation areas where OSHA’s regulation might be The RSAC voted to forward these of trains.’’ The RSAC accepted this task modified to create a FRA regulation that recommendations to FRA as the basis (No. 97–2) and formed a Locomotive could better address the occupational for a final occupational noise standard. Cab Working Conditions Working Group noise exposure of the rail industry. The FRA has reviewed the RSAC’s (‘‘Working Group’’). Noise Task Force forwarded these recommendations and has adopted the findings to the Working Group. B. Working Group recommendations in this final rule. The Working Group conducted a FRA has worked closely with the number of meetings and discussed each Task 97–2 addressed several issues, RSAC in the development of its of the matters proposed in the NPRM. one of which was noise exposure. With recommendations and believes that the FRA has placed the minutes of these respect to noise exposure, RSAC asked RSAC effectively addressed meetings in the docket for this the Working Group to complete two occupational noise exposure for cab proceeding. Throughout this preamble, items: (1) Revise existing cab noise employees. FRA has greatly benefitted FRA frequently discusses issues that the limits to take into account current from the open, informed exchange of Noise Task Force and Working Group requirements of the OSHA standard, information that has taken place during raised and views that they shared. FRA specifically as it relates to hearing meetings. There is general consensus discusses these points to show the conservation programs, and (2) among labor, management, and origin of certain important issues and Continue efforts to evaluate engineering manufacturers concerning the primary controls and other measures used to the course of discussion on these issues at the task force and working group principles FRA sets forth in this final minimize noise exposure in locomotive rule. FRA believes that the expertise cabs. levels. FRA believes that this helps illuminate the facts FRA has weighed in possessed by the RSAC representatives The Working Group consisted of making its regulatory decisions and the enhances the value of the representatives of the following logic behind those decisions. The reader recommendations, and FRA has made organizations, in addition to FRA: should keep in mind, of course, that every effort to incorporate them in this AASHTO only the full RSAC makes rule. APTA recommendations to FRA, and it is the III. FRA’s Noise Standard ASLRRA consensus recommendation of the full AAR RSAC on which FRA is acting. A. FRA’s Approach to Cab Noise BLET The Working Group, using the As OSHA governs workplace safety, BMWED* IBEW preliminary findings of the Noise Task and OSHA has already issued AMTRAK Force, developed recommendations for regulations in the area of occupational RSI (formerly Railway Progress Institute) reducing the likelihood of hearing loss noise, FRA used OSHA’s standard as a SMWIA for cab employees. In June 2003, the foundation for its own standard. TWUA Working Group reached consensus on However, there are many areas in which UTU recommendations for the proposed rule the OSHA standard differs from the FRA * Indicates associate membership. and forwarded these recommendations standard. The purpose of this

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rulemaking is to adapt the OSHA rule to transmission path that reduces the noise [MSHA] will continue to monitor the the unique circumstances of the railroad level at the employee’s ear (not feasibility of adopting a 3 dB exchange rate. environment. The working environment including hearing protectors). They 64 FR 49548, 49589 (September 13, 1999). for railroad cab employees is quite include such changes as the re-design of FRA, like MSHA, recognizes that the different than that of the typical machinery or the use of different tools. cost and feasibility of a 3 dB exchange American worker. Also, the noise Administrative controls involve efforts rate is prohibitive. Furthermore, there exposure of railroad employees is not to limit worker noise exposure by was a consensus decision of the RSAC uniform throughout the industry. modifying work schedules, work Working Group that 5 dB is most Railroad employees may work in a locations, or the operating of appropriate. Taking all of those factors different location each day, i.e., a noisy machinery. An example of into account, FRA has decided to use a different locomotive and/or a different Administrative Controls would be doubling rate of 5 dB. Thus, a 5 dB route. Employee assignments and actual schedules for rotation of employees increase in the time weighted average time in the cab may vary significantly from tasks that are near noisy machinery level reduces the permitted time of during a typical week. The level of noise to quieter areas. The objective is exposure duration by half. in any individual locomotive cab will employee exposures with lower time FRA recognizes the same noise vary greatly, depending on the weighted average levels of exposure. control measures as OSHA (i.e., locomotive model, locomotive age, FRA’s standard on locomotive cab noise engineering controls, administrative condition of the locomotive, length of is based very heavily on OSHA’s controls, and hearing protection); the route, traffic on the route, number of standard. In this final rule, FRA requires however, FRA uses different terms to highway-rail grade crossings on the railroads to limit employee noise describe some of those controls. OSHA route, physical characteristics of the exposure to an 8-hour TWA of 90 uses the term, ‘‘administrative route, weather conditions during the dB(A).20 Also, FRA requires railroads to controls,’’ while FRA uses the term run, and any one or more of several implement a hearing conservation ‘‘noise operational controls.’’ These two other factors. FRA’s rule has taken into program for those employees who are terms are the functional equivalent. account these unique characteristics of exposed to noise levels that equal or Also, OSHA uses the term ‘‘engineering the railroad operating environment and exceed an 8-hour TWA of 85 dB(A). controls,’’ while FRA uses no equivalent has modified OSHA’s standard to fit the FRA’s doubling, or exchange, rate is 5 term—FRA instead describes the railroad industry. dB(A). FRA’s decision to use a 5 dB specific actions which railroads and Since FRA’s rule is based on OSHA’s doubling rate is notable, because a 5 dB manufacturers must take when rule, it is helpful to review OSHA’s doubling rate is different than the designing, building, and maintaining standard before explaining FRA’s scientific principle for a doubling rate. locomotives. standard. OSHA’s noise standard limits Technically, an increase of 3 dB FRA’s overall approach toward employee noise exposure to an 8-hour represents a doubling of sound energy.21 controls differs from that of OSHA. FRA TWA of 90 dB(A). OSHA identifies a In making its decision, FRA considered does not explicitly adopt OSHA’s hierarchy of controls that should be a doubling rate of 3 dB, 4 dB, and 5 dB. hierarchy of controls. As explained used to limit noise exposure. If FRA ultimately decided on a 5 dB above, OSHA places controls in a employee noise exposure exceeds the doubling rate. NIOSH recommends a 3 hierarchy and mandates their use permissible exposure level, the dB doubling rate, the Air Force uses a according to that hierarchy. FRA has no employer must reduce the exposure (so 3 dB doubling rate, and OSHA and such hierarchy. Rather, FRA has specific that it is within permissible exposure MSHA use a 5 dB doubling rate. requirements that railroads must satisfy. limits) through the use of feasible In its 1999 rulemaking on FRA requires railroads to obtain and engineering controls, administrative occupational noise for miners, MSHA maintain locomotives built to meet the controls, or a combination of both. faced a similar decision, choosing performance standard for maximum Where such controls cannot reduce between a 3 dB or 5 dB exchange rate. noise level in the cab defined by the employee exposure to permissible MSHA conducted a study and found standards in § 229.121. (This is limits, employers are to supplement the that the exchange rate substantially somewhat equivalent to OSHA’s engineering and administrative controls affects the measured noise exposure; ‘‘engineering controls’’). FRA mandates with hearing protection. The OSHA nonetheless, MSHA retained the 5 dB that railroads require employees to use noise standard also requires that the exchange rate because of feasibility hearing protectors when employees are employer administer a continuing concerns.22 In its final rule, MSHA exposed to noise levels that exceed an effective hearing conservation program concluded that 8 hour-TWA of 90 dB(A). (This is equivalent to OSHA’s hearing protector for employees who are exposed to levels it would be extremely difficult and that equal or exceed an 8-hour TWA of prohibitively expensive for the requirement). And, FRA gives railroads 85 dB(A). industry to comply with the existing the option of using noise operational OSHA places engineering and permissible exposure level with a 3 dB controls when employees are exposed to administrative controls at the top of its exchange rate, using currently available noise levels that exceed 90 dB(A) as an hierarchy and takes the position that engineering and administrative noise 8 hour-TWA. (This is equivalent to these controls are the best method for controls. MSHA therefore cannot OSHA’s ‘‘administrative controls’’). It is controlling noise exposure. These demonstrate that implementation of such an very important to note that FRA does controls reduce employee exposure to exchange rate would be feasible. However, not require the use of noise operational hazardous noise levels by eliminating controls. Thus, when a railroad learns 20 For a complete list of the permissible noise (or at least reducing) the noise at the exposures, see Table 1 in § 227.103. According to that an employee is exposed to noise source, by modifying the noise path or Table 1, railroads must limit employee noise levels that exceed an 8-hour TWA of 90 by decreasing employee exposure time exposure to 85 dB(A) as a 16-hour TWA, 87 dB(A) dB(A), the railroad must provide the to the noise source. Engineering controls as a 12-hour TWA, 90 dB(A) as an 8-hour TWA, and employee with HP, but need only are generally understood to be the so on. consider the use of noise operational 21 See discussion in § IV(A) of the background modification or replacement of section. controls. Using noise operational equipment or any other related physical 22 64 FR 49548, 49588–49589 (September 13, controls as an option rather than a change at the noise source or along the 1999). requirement was done in recognition of

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the nature of railroad operations and the employees of smaller railroads by engineering controls to reduce exposure impact of other federal laws, specifically providing basic guidance regarding would require re-engineering the cab the Hours of Service law. This law noise monitoring, hearing conservation, structure, the and other limits crew working hours to 12 hours, training, and recordkeeping. To the elements of the locomotive to achieve thus also permitting work shifts of up to extent that many comments filed by the required noise reduction at a cost 12 hours. Given the fact that non-railroad parties assume a much approaching that of buying a new administrative controls use periods of more dire situation, those comments locomotive. As a compromise, rather time removed from exposure to reduce have missed the mark and, in many than imposing a general engineering the dose, and the fact that the only way cases, have called for measures not controls requirement on railroads, FRA to be removed from exposure on a train warranted by the facts. identified limited and specific (except passenger trains) would be to The RSAC Working Group also found engineering controls—the design and leave the train, mandating that certain maintenance tasks—e.g., build requirements in § 229.121(a) and administrative controls to reduce noise repair, replacement, or installation of the maintenance requirements in exposure would have the effect of cab insulation, door seals, window § 229.121(b)—which railroads must use. changing the operating practices of the seals, weatherstripping, and electrical This background section has sought to entire industry without regard to other cabinet insulation and seals—can help provide an overview of FRA’s rule, as issues such as where and how to get the reduce in-cab noise levels. The group well as a broad comparison to OSHA’s exposed crews off the trains and how to also discussed other engineering rule. A more thorough discussion of the get replacement crews on them. controls and maintenance items which differences between OSHA’s and FRA’s The RSAC Working Group spent a have been shown to reduce noise standards is provided in the Section-by- great deal of time discussing options exposure in the cab, e.g., venting piping Section Analysis below. and developing the recommended for air brake exhaust and power control requirements for § 229.121 and thus a devices out and under the locomotive; B. Responsibilities of Railroads and discussion is warranted here. An using air cooling devices so that Employees Engineering Controls Task Force, a windows can be closed; and using The primary responsibility for subgroup of the Noise Task Force, met noise-dampening window glass which compliance with this regulation lies to discuss the feasibility of engineering limits the penetration of noise and with employers, i.e., railroads. As such, controls. Among its findings, the group thereby limits the contribution of railroads have several enumerated identified certain items that might help outside noise. In addition, the group responsibilities. This regulation requires reduce noise exposure in the locomotive discussed the location of locomotive railroads to: Develop and implement a cab. In identifying these items, FRA has horns and agreed that relocation of the noise monitoring program; administer a given serious consideration to those horn to the center position had reduced hearing conservation program; establish items which are feasible and those items crew noise exposure. and maintain an audiometric testing which are not feasible. FRA recognizes that there are many program; make audiometric testing In developing the proposed and final benefits to using engineering and available to employees; implement rules, the RSAC Working Group maintenance controls. First, they do not noise operational controls (if desired); participants noted that since the early interfere with crew and radio require the use of hearing protection; 1990s, the industry has taken delivery of communication, which personal make hearing protection available to thousands of newer locomotives Hearing Protection (HP) devices can do. employees at no cost; train employees in engineered to reduce noise levels. HP can interfere with crew and radio the use and care of hearing protection; Original equipment manufacturers used communication by blocking out ensure proper fitting of and supervise a variety of strategies to sharply reduce necessary sounds in addition to the correct use of hearing protection; the portion of noise dose derived from unwanted noise. Second, engineering give employees the opportunity to select the prime mover and to filter out other and maintenance controls do not hearing protection from a variety of noise sources. The cabs of most of these present the potential hazard of suitable hearing protection; evaluate locomotives provide an environment overprotection that HP may present. hearing protection attenuation; initiate where, for the great majority of Engineering controls block out noise at and offer a training program, maintain operating circumstances, employees its source, or along its transmission and retain records; and obtain and will not experience 8 hour TWA path, thus there is no concern that maintain locomotives that meet exposures approaching 90 dB(A), and necessary sounds will be blocked out specified standards for limiting in-cab under most circumstances, exposures too. Third, engineering controls put less noise. are not expected to reach the action burden on the employee and as a result, level. Railroads have also specified are easier for employees to use. With The responsibilities of employees placement of horns in the center of the HP, railroads must ensure that derive from those of the railroad. locomotive, rather than immediately employees are properly trained on the Employees’ responsibilities come from over the cab, further reducing noise use of the devices, and employees must railroad policies, which are issued pursuant to this regulation. This levels experienced by employees. ensure that they don and wear the 23 Finally, as noted below, the practice of devices properly. Due to the benefits of regulation would require employees venting the airbrake system into the cab engineering controls, FRA did not want to: Use their hearing protection when has been largely abandoned. to exclude their use. However, due to mandated by the railroad; care for their Accordingly, the challenges in this burden that it would impose on hearing protection as trained by the proceeding have principally to do with railroads if there was a general railroad; and complete the training management of noise exposure in older requirement for the use of engineering program which is offered by the locomotives, at least minimal controls, FRA did not include the railroad. There is one additional standardization of hearing conservation requirement as found in OSHA’s rule. obligation for which employees have programs that have grown up without The burden was recognized when it was 23 In their comments, the AAR pointed out that regulation, ensuring the progress in made clear by experts in locomotive the preamble inaccurately used the term engineering of locomotives is noise reduction engineering that ‘‘employers’’ in place of ‘‘employees.’’ FRA has maintained, and addressing the needs of imposing the requirement to first use corrected that typo in this final rule.

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primary responsibility—employees IV. Summary of Comments and not after an alternative standard such as NIOSH’s 1998 revised criteria, must report for audiometric testing once A. In General every three years. While railroads have FRA notes that FRA did not adopt each an affirmative obligation to offer testing, Overwhelmingly, the commenters to one of OSHA’s provisions without employees have an affirmative this rule applauded FRA for amending question. FRA incorporated several new obligation to report for testing. Without its noise standard. They commended changes into its revised noise standard, FRA for taking the initiative to prevent adequate audiometric testing, a hearing including some changes at this final rule noise-related hearing loss among conservation program will not succeed, . Throughout the process, FRA has railroad workers. They also expressed and so FRA is identifying an employee’s tried to strike a balance between their support for FRA’s effort to deferring to OSHA, the lead federal audiometric testing obligation as a establish a uniform noise exposure rule primary responsibility. agency in the field of occupational for railroad operating employees, safety and health, and incorporating Because employee responsibilities explaining that a uniform noise changes based on scientific advances, are, for the most part, derivative, standard for the railroad industry will technological improvements, compliance would generally take place facilitate understanding of, and recognition of some of the unique through the railroad disciplinary compliance with, regulatory circumstances present in the railroad process, rather than direct enforcement requirements. One commenter was operating environment, and field by FRA. FRA does, however, recognize pleased to see that FRA had addressed experiences. FRA believes that this rule one major exception. FRA may assess both (part 229 strikes the proper balance at this time. civil penalties for a wilful violation 24 requirements) and hearing conservation In the paragraphs below, FRA for an employee who does not report for (part 227 requirements) in this rule, discusses several overarching because, based on their observations, audiometric testing. Overall, FRA comments. FRA discusses comments the most successful hearing loss expects that employees will fully specific to the rule text in the section- prevention programs are those that by-section analysis. comply with all of their responsibilities. include both noise control and hearing Railroads should perform required conservation components. B. Approaches Other Than the OSHA actions, and employees should The commenters acknowledged that HCA reciprocate with their commensurate FRA’s rule would bring about some responsibilities. Railroads should set FRA modeled this rule after OSHA’s significant improvements in certain Hearing Conservation Amendment expectations of compliance, and areas of hearing conservation and would (HCA). Several commenters strongly employees should meet those significantly improve the health and encouraged FRA to rewrite this rule expectations of compliance. safety conditions for cab occupants. based on the 1998 Revised Criteria for However, several commenters felt that a Recommended Standard. They noted C. Compliance the proposed rule still fell short of an that NIOSH’s more stringent standards, effective hearing conservation program. FRA’s principal method of such as an exposure limit of 85 dB(A) Chief among that concern, commenters enforcement will be through audits. or an exchange rate of 3 dB, will better felt that FRA was relying too heavily on With an industrial hygienist as team protect railroad workers by significantly OSHA’s standard. Commenters agreed leader, an audit team will examine a reducing their risk of noise-induced that OSHA’s standard was a good railroad’s hearing conservation program. hearing loss. Once commenter wrote starting point, but explained that that FRA, by choosing the OSHA model, The team will examine whether the OSHA’s standard could use some had proposed what amounts to a railroad is adequately protecting its updating. employees. The team will speak with They explained that OSHA’s rule is watered down ‘‘hearing loss the program manager, review records over 20 years old and rooted in even documentation program.’’ (e.g., noise monitoring records, older data. One commenter explained Another commenter, the doseBusters 25 audiograms, standard threshold shift that the OSHA standard was based Company, questioned why FRA gave records, etc.) and determine the extent largely on the NIOSH recommended little ‘‘consideration’’ to other to which the railroad is complying with criteria from 1972, which was based on prevention strategies. The doseBusters the requirements of this regulation. If research in the 1950s and 1960s. The Company argued that OSHA’s HCA is a warranted, FRA will take enforcement commenters went on to explain that, flawed approach to the prevention of action against the railroad. since that time, there have been new hearing loss and cited several reasons scientific findings (including advances why it believes that FRA should have In addition, if FRA has reason to considered other prevention strategies: believe that certain locomotive crews in the fields of acoustics and bioacoustics), technological (1) The HCA is based on information, are being exposed to high noise doses, advancements, and years of field analyses, thinking, and technology that FRA inspectors will ride in the experience. The commenters felt that is 25 years old; (2) At the time of its locomotive cab with those crews to FRA should make more efforts to adoption, the HCA represented a measure the sound levels and determine incorporate these advances into its compromised approach; and (3) The the crews’ exposure. FRA inspectors standard. They explained that their prescriptive approach of the HCA may may also review maintenance records to comments tended to reflect this preclude more effective and/or determine whether railroads have viewpoint. Along these lines, some conservative alternatives and stifle corrected defective conditions (e.g., commenters encouraged FRA to future innovation in prevention efforts. loose windows, deteriorated seals). consider incorporating components of The doseBusters Company suggested Additionally, FRA will investigate ‘‘stronger’’ standards such as MSHA’s that FRA provide a performance- employee complaints of excessive noise. recent rule and the 1998 NIOSH revised oriented framework for the prevention criteria. 25 FRA notes that the doseBusters Company Web 24 Under the railroad safety laws, civil penalties FRA was very cognizant of these site no longer exists and that FRA has been unable may be assessed against individuals only for willful issues in drafting the rule. While FRA to find the doseBusters Company through any other violations. See 49 U.S.C. 21304. modeled its rule after OSHA’s standard means on the Internet.

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of noise-induced hearing loss by either noise exposure monitoring and the implementation of the controls in the adopting, or at least allowing, associated recordkeeping requirements). railroad industry. alternative strategies. As one of those While the doseBuster Company’s Several members of Congress alternate strategies, the doseBusters concept is interesting, FRA does not submitted comments about the Company advocated for its own believe that there is sufficient evidence hierarchy of controls. Each of them solution—a program of continuous that the device would be effective in expressed concern that FRA was using monitoring using a proprietary device increasing the protection of employees an approach different than OSHA and that also serves as a hearing protector. or that the system would be either MSHA with respect to engineering The Exposure Smart Protector (ESP) practical or affordable for employers. controls. They explained that the system simultaneously measures a As explained above, FRA modeled primary tool under the OSHA and workers’s actual noise exposure and this rule after the OSHA HCA. FRA MSHA scheme is the elimination of provides protection to the worker. This chose not to use alternate prevention noise from the workplace through allows the employer to routinely strategies such as NIOSH’s engineering controls. They also pointed determine the efficacy of the personal Recommended Standard 26 or the out that both OSHA and MSHA require HP for individual users in real doseBuster Company’s ESP system. the use of engineering controls only if workplaces. It also provides the While FRA has not chosen to use these they are commercially viable and employee with individual feedback on alternate strategies, there is nothing in economically feasible. In urging FRA to his or her own daily noise exposure. the rule that precludes a railroad follow the lead of the other Federal After discussion with the RSAC employer from using any individual agencies, one Congressman wrote that Working Group, FRA decided that it components of these strategies, as long ‘‘OSHA is well-versed in the scientific would not specify such alternate as the components are consistent with and technical capabilities of engineering prevention strategies and that it would the requirements of FRA’s rule. For controls.’’ He also wrote that ‘‘the OSHA instead continue to model its rule after example, if a railroad wished to use standard has been proven to OSHA’s HCA. FRA has chosen to follow doseBuster Company’s ESP hearing successfully protect the hearing of workers and the adoption of the OSHA OSHA’s lead in this matter, because protectors, the railroad is free to do so, OSHA is the lead agency in the field of standards will allow our nation’s as long as the railroad satisfies all the occupational safety and health. workplaces to have a consistent requirements of this rule. Presumably OSHA used its expertise standard across all industries.’’ These and resources to determine that the Finally, an individual engineer Congressmen and Senators urged FRA HCA is the most appropriate method for suggested that FRA consider another to consider revising the proposed rule hearing conservation. Moreover, the issue as part of its approach to hearing so that, consistent with the other HCA approach is a proven and effective conservation. Specifically, the Federal noise standards, FRA’s rule method in the work place environment. commenter wrote that FRA should would require employers to use With respect to the doseBuster mandate the use of air ride seats to engineering controls as the primary Company’s ESP System, FRA is address the problem of bone conduction method of reducing employee noise unaware of any peer review or other whole body vibration. He asserted that exposure. scientific of that approach. vibration has an impact on hearing. FRA Other commenters also expressed As the doseBuster Company pointed is not mandating the use air ride seats concern about FRA’s approach. Several out, the approach is still undergoing in this final rule, because the issue of organizations wrote that FRA should testing and review. In addition, there are vibration in locomotives is out of the base its rule on the ‘‘widely accepted several fundamental issues that the scope of this rulemaking. It is possible concept of a hierarchy of controls.’’ doseBusters Company did not address that FRA will address this issue in the Cooper Tire and Rubber Company and would need to be addressed before future. Vibration is listed as item (‘‘Cooper Tire’’), which specializes in FRA could employ this alternate number 3 on RSAC Task Statement 97– the manufacturing of transportation prevention strategy. Among those issues 2 on Locomotive Cab Working industry products, likewise disagreed are: Under what circumstances does the Conditions and is discussed in Chapter with FRA’s decision not to mandate the railroad decide to equip the employees 10 of FRA’s September 1996 Report to use of engineering controls as the with these devices? Should the railroad Congress. However, FRA is not issuing primary strategy to combat workplace equip all potentially exposed employees regulations on the issue of vibration at noise. Cooper Tire noted that FRA failed or only a predefined group? What this time. to follow OSHA’s and MSHA’s lead criteria would the railroad use to C. Hierarchy of Controls ‘‘due to unspecified concerns about the identify the predefined group? burden engineering controls would Furthermore, these devices have the As explained above in section III(A), impose on railroads.’’ Cooper Tire felt potential to create an unsafe operating OSHA and FRA differ with respect to that it was ‘‘unclear how the FRA came environment. Railroad employees need the controls each employs. OSHA to the conclusion regarding the costs of to focus their attention on their and identifies a hierarchy of controls that engineering controls.’’ Cooper Tire the safe operation of trains. These should be used to limit noise explained that it has scientific and devices, which depend on significant exposure—engineering controls and/or, technological expertise in the area of employee attention, would prevent administrative controls, and then noise reduction and control and that it employees from focusing all their hearing protection. FRA recognizes the is aware of current, off-the-shelf attention on their jobs. Finally, FRA same controls but utilizes a specific technology that will adequately address does not believe it is appropriate to strategy to ensure cost effective low-frequency locomotive noise. As a identify a single commercial product as result, Cooper Tire believes that a means of meeting the requirements of 26 Please note that while FRA has not adopted railroads can implement engineering the rule. This is of even greater concern NIOSH’s standard in whole (e.g., exposure limit controls at modest cost with maximum given that the use of the ESP devices based on 85 dB(A) limit and a 3 dB exchange rate, benefit to employees. or annual training), FRA notes that it has adopted would impose a significant, increased some components of the NIOSH standard (e.g., Cooper Tire also felt that FRA’s burden on railroads in complying with integrating sound levels up to 140 dB and approach to engineering controls (i.e., other requirements of the rule (i.e., conducting audiometric tests at 8000 Hz). specific prescriptive requirements)

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stifles the advancement of technology. FRA welcomes demonstration of the that the best approach for the railroad Cooper Tire believes that by not technology on locomotives in service, industry was the approach proposed in allowing engineering controls generally, and FRA is prepared to assist in the NPRM—identify those specific ‘‘FRA seems to presuppose that the facilitating such a demonstration. engineering controls which were proposed rule reflects all current However, FRA is not prepared to feasible and mandate them. FRA is technology and that no new technology mandate an abstract requirement for further convinced of the will address the problem of workplace engineering controls based upon a appropriateness of that approach by the noise-induced hearing loss.’’ Like the single supplier’s representation that the fact that it evolved out of the consensus above commenters, Cooper Tire technology is available and affordable. process of the RSAC Working Group, recommended that FRA adopt the same FRA believes that the more specific which was comprised of representatives approach as OSHA and MSHA, ‘‘one requirements for engineering controls from railroads, manufacturers, unions, which does not dictate specific embodied in this final rule are more and others. engineering controls * * * but instead suitable given existing knowledge. Given the number and nature of allows the employer to evaluate various With regard to the issue of freezing comments on engineering controls, FRA engineering controls on the basis of technology as asserted by Cooper Tire, is reiterating its approach toward their effectiveness, cost, technical FRA does not mandate any specific engineering controls specifically and feasibility, as well as their implications approach to manufacturing quieter controls generally.27 FRA’s overall for equipment, use, service, and locomotives, only that they meet a approach toward controls differs from maintenance.’’ Cooper Tire advocated performance standard of a maximum OSHA. Although OSHA and FRA both that FRA use an Active Noise Reduction permitted level of noise. Manufacturers have the same three controls, FRA uses approach and discussed information on and railroads are free to use any different terminology for two of them: an actual installation of an Active Noise technology they wish to meet this (1) OSHA uses the term ‘‘administrative Reduction System tested by Cooper requirement and FRA would expect the controls,’’ and FRA uses the term ‘‘noise Tire. railroads and OEMs to continue to seek operational controls.’’ (2) OSHA uses In contrast, FRA also received better (and perhaps cheaper) ways to do the term ‘‘engineering controls,’’ and comments indicating that FRA should this. FRA uses no comparable term. FRA be less reliant on engineering controls. Throughout the rulemaking process, does however, require specific The doseBusters Company wrote that FRA devoted a great deal of time to engineering controls. Those items are ‘‘the role of engineering controls is considering OSHA’s rule and exploring found in § 229.121. (3) Finally, both always emphasized, yet in reality their alternative options. The RSAC Working OSHA and FRA use the term ‘‘hearing impact on prevention of hearing loss is Group engaged in extensive discussions protector.’’ problematic.’’ The doseBusters on this issue and even formed a Task OSHA places controls in a hierarchy Company argued that engineering Force to solely consider the issue of and mandates their use according to that controls are not superior to hearing engineering controls. The RSAC hierarchy—first engineering controls, protection; that even if successfully Working Group generally agreed that and/or administrative controls, and implemented, engineering controls only engineering controls should be finally hearing protectors. (Occupational prevent hearing loss for a fraction of emphasized as the first approach where noise exposure standard, administrative workers (since few exposures are feasible, but rather than leaving controls and engineering controls are on reduced to the action level through the determinations of feasibility to later equal footing. See 29 CFR use of engineering controls); and that interpretation, the Working Group 1910.95(b)(1).) FRA has no such engineering controls are not truly that recommended that FRA specify the hierarchy. FRA expects that railroads effective (as evidenced by the fact that actions to be taken (i.e., new will comply with the requirements in employers tend to rely on conventional locomotives required to meet static § 229.121 (equivalent to OSHA’s hearing protection rather than testing requirements, protection of engineering controls) and that railroads engineering controls as the principal sound-insulating properties in existing will comply with the requirements means of preventing hearing loss). locomotives, repair of certain noise regarding hearing protectors. FRA gives FRA appreciates the theoretical merit sources as identified by crews). The railroads the option of using noise of active noise control (‘‘noise RSAC Working Group had the operational controls (OSHA’s equivalent cancellation’’) and has researched this confidence to take this approach of administrative controls). subject in prior years in the context of because, over the past decade and a half, Engineering controls are generally community noise impacts. FRA believes locomotive manufacturers have understood to be the modification or that technology for active noise control produced new locomotives that protect replacement of equipment or any other may be useful in the future for reducing against excessive noise levels. At the related physical change at the noise noise exposure in cab environments same time, the RSAC Working Group source or along the transmission path generally or in connection with audio recognized that there are operational that reduces the noise level at the headsets. Nothing in this rule prohibits conditions where, due to the limitations employee’s ear (not including hearing use of this technology either in of glazing material or the need to run protectors). They include such changes connection with initial qualification of with windows open, occasional as the re-design of machinery or the use locomotives or with respect to railroads’ excessive doses might be encountered of different tools. providing HP to employees. However, and that avoiding the need to employ Rather than impose the general FRA is not aware of any rigorous HP under these circumstances might not requirement to ‘‘use engineering demonstration that existing technology be feasible. OSHA, by contrast, controls,’’ FRA has identified the is feasible and ‘‘cost effective’’ for this generally deals with fixed work places specific engineering controls which purpose. The commenter provided no and needs a more general approach in railroads must use. Specifically, economic information supporting the order to address a wide range of railroads must buy locomotives claim that its proprietary technology is industrial and commercial manufactured such that they do not ready for application in the railroad establishments. environment, and FRA is not aware of As a result of these discussions, FRA 27 For a more detailed discussion, see the any other supplier making such a claim. and the RSAC Working Group decided preamble to proposed rule at 69 FR 35145, 35155.

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exceed a certain decibel level (see above the action level (i.e., an 8-hour- permissible exposure limit and a 3 dB § 229.121(a)(1)), must maintain those TWA of 85 dB(A) with a 5dB exchange exchange rate. This includes ‘‘new’’ locomotives in such a way that rate). The second one, which is located organizations such as the U.S. alterations do not cause the sound level in § 227.105, delineates when a railroad Department of Defense, U.S. to increase beyond certain decibel levels should actively protect employee Environmental Protection Agency, and (see § 229.121(a)(2)), and must maintain hearing. It requires railroads to provide the National Institute for Occupational all pre-existing locomotives so that they appropriate protection to employees Safety and Health. The commenters also do not reach excessive noise levels (see whose noise exposure exceeds the pointed out that most European § 229.121(b)(1)). In maintaining permissible limit of an 8-hour-TWA of countries use 85 dB(A) or less and that locomotives, railroads must be 90 dB(A) with a 5 dB exchange rate. both the International Organization for cognizant of items, including but not Several commenters were displeased Standards (ISO) and the American limited to, defective cab window seals, with these triggering criteria. They National Standards Institute (ANSI) defective cab door seals, broken or recommended that FRA lower the have adopted standards that rely on a 3 inoperative windows, deteriorated exchange rate to 3 dB and the criterion dB exchange rate. One commenter insulation or insulation that has been level to an 8-hour-TWA of 85 dB(A) and asserted that ‘‘virtually all other removed for other reasons, broken or that FRA use this as the sole trigger for industrialized countries use a 3 dB inoperative doors, and air brakes that compliance. The commenters asserted exchange rate.’’ vent outside of the cab (see that an exposure limit based on 90 In suggesting a 3 dB exchange rate, § 229.121(b)(2)). dB(A) and a 5 dB exchange rate is not commenters made several other In addition to the items unique to this protective enough for employees. The arguments. American Speech-Language- rulemaking, FRA has several other pre- National Hearing Conservation Hearing Association (ASHA) and the existing maintenance requirements that Association (NHCA) wrote that these American Industrial Hygiene reduce cab noise levels. Conditions that limits ‘‘will expose workers to an Association (AIHA) asserted that a 3 dB can contribute to the noise dose, such as unacceptably high risk of noise induced exchange rate was ‘‘more appropriate leaking manifolds, flat spots on wheels, hearing loss.’’ Similarly, NIOSH wrote and protective for railroad employees.’’ insecurely attached components, and that the 90 dB(A) limit exposes They rejected FRA’s decision to follow general conditions addressed in § 229.45 ‘‘workers to a statistically significant MSHA, arguing that the ‘‘noise exposure are already required to be maintained increase in the risk of occupational conditions, legacy of engineering properly under FRA’s regulations or the hearing loss.’’ Likewise, a locomotive controls, and other criteria surrounding Locomotive Inspection Act itself for engineer wrote that ‘‘90 dBA over 8 MSHA’s adoption of the 5 dB rule are other safety reasons. hours is a ridiculously high amount of not necessarily germane to the railroad In practice, all of these items, both the noise. Anyone exposed to this day in industry.’’ Theresa Schulz, who has maintenance items listed in the final and day out will certainly suffer hearing spent more than 20 years as a hearing rule and pre-existing maintenance loss * * *. The one thing I was hoping conservation audiologist in the U.S. requirements in part 229, function like you would do was lower the allowable military, wrote that the 3 dB exchange engineering controls, because they noise level in all of our locomotive cabs rate is ‘‘based on scientific principle and modify or replace equipment at the and you have not done that.’’ the physics of sound.’’ Cooper Tire noise source so that it reduces the noise NIOSH pointed to statistics, which explained that ‘‘US and international level at the employee’s ear. So, while show that there is a increased risk to regulatory agencies have eschewed the FRA does not use the term ‘‘engineering employees exposed to noise at higher 5 dB exchange rate because of certain controls,’’ FRA still employs levels. NIOSH quoted a 1997 article by inherent deficiencies * * * [and] have engineering controls. Indeed, over the Stayner Prince and Gilbert Smith, which embraced a more scientifically-sound, past decade and a half, the locomotive explained that, with at least 10 years of worker-friendly 3 dB exchange rate that fleet has come to be dominated by cabs occupational noise exposure, eight is based on much better data than that are sufficiently quieter such that percent of 65-year old workers would existed in the 1970s when the 5 dB hearing protection is not required under develop a material hearing impairment exchange rate was first utilized.’’ most conditions of operation. at 85 dB(A), twenty-two percent at 90 Commenters proposed various Finally, FRA’s standard is different dB(A), thirty-eight percent at 95 dB(A), alternatives. NHCA recommended that from OSHA’s in the following way. and forty-four percent at 100 dBA. A FRA revise the rule to include the OSHA imposes a general requirement Minnesota audiologist with a 20-year Threshold Limit Values (TLVs) for noise that their regulated industries must use in audiology, Ted Madison, cited established by the ACGIH. The TLVs are engineering controls where they are additional NIOSH statistics, in his based on an 8-hour TLV of 85 dB(A) and technically and economically feasible. attempt to show that FRA’s proposed a 3 dB exchange rate. NIOSH suggested By contrast, FRA imposes specific standard would result in noise-induced that if FRA ultimately decided to retain requirements with which railroads hearing loss for an ‘‘unacceptably high the 90 dB(A) exposure limit and the absolutely must comply. Railroads have percentage of railroad workers.’’ Mr. 5 dB exchange rate, then FRA should much less leeway when it comes to Madison wrote that the estimated excess include a non-mandatory appendix these controls than do OSHA’s regulated risk of incurring material hearing containing tables from the 1998 NIOSH industries. impairment over a 40-year working revised criteria document. Those tables lifetime with average daily noise would be analogous to the existing D. Triggering Criteria exposure of 90 dB(A) is 20% while the OSHA/FRA tables, however, they would The rule has two triggering criteria estimated excess risk with an average calculate the numbers with a 85 dB(A) levels. The first one, which is located in daily noise exposure of 85 dB(A) is only exposure limit/3 dB exchange rate § 227.107, delineates when a railroad 15%. (LNIOSH) in addition to calculating the should place an employee in a hearing In addition, a number of commenters numbers with a 90 dB(A) exposure conservation program. It requires pointed out that many government, limit/5 dB exchange rate (LOSHA). railroads to place employees in a scientific, and professional Commenters explained that, by having hearing conservation program if organizations recommend (and in some both sampling protocols, railroad safety employees are exposed to noise at or cases, mandate the use of) an 85 dB(A) and health professionals would be able

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to better understand the spectrum of equivalent to exposures to steady state whether OSHA’s position had changed hearing risks faced by railroad noise. The second theory is the equal- since the issuance of the HCA and employees and could better choose the TTS theory. It ‘‘is based on the whether OSHA had any plans in the most relevant method for protecting hypothesis that daily exposures that near future to modify its exchange rate. employee hearing. Overwhelmingly, produce the same temporary effects will In referring to scientific and technical though, the commenters advocated for eventually produce the same permanent issues including the exchange rate, FRA to ‘‘follow the NIOSH expert effects.’’ 30 This theory does not have the OSHA replied in a March 16, 2005 letter advice’’ and adopt an 85 dB(A) exposure same problem as the equal-energy that ‘‘OSHA has not re-addressed these limit and a 3 dB exchange rate. theory, for it does not make the mistake issues since [the issuance of the HCA] For several reasons, FRA has decided of ignoring temporal patterns. and our position remains essentially to leave the triggering criteria as Neither of these approaches, however, unchanged.’’ (Copies of the letters are proposed. First, with respect to the are well-suited for the locomotive cab included in the docket). In addition, exchange rate, many commenters argue noise environment. FRA experience has FRA notes that in a 1999 rulemaking, that the 3 dB rate is much more shown that exposures for crews of older MSHA adopted hearing conservation protective than the 5 dB rate that FRA and relatively ‘‘noisy’’ locomotive cabs requirements for miners, using the same proposed and now adopts. The issue, are a mixture of periods of generally limits and exchange rate as OSHA. See however, is not as clear as the steady state noise at low to medium 64 FR 49548 (September 13, 1999). commenters suggest. There are two levels (80–90 dB(A)) interspersed with Third, FRA notes that the data major approaches that have been taken short periods with high noise levels supported by several of the commenters in attempts to develop a simple scheme (e.g., horn blowing, operations through (to support a 3 dB exchange rate) fails for determining the appropriate level of tunnels and underpasses, and other to take into account the actual nature of protection: the equal-energy approach relatively short term events). Given that employee exposure. Studies cited in the and the equal-TTS approach. ‘‘The crew exposures vary in intensity and comments (that compare the risk of equal-energy approach is an example of over time, the equal energy approach hearing loss over time based on the level attempts to equate exposures on the (which ignores these temporal patterns) of the employee’s noise exposure) basis of their physical characteristics is not appropriate. As for the equal-TTS presume that employees experience directly, while the equal-TTS method is approach, it might be a seemingly more these exposures without any protective based on an assumed correlation accurate method of assessing damage measures. That is not necessarily true. between permanent and temporary risk, but it is not suitable for regulatory Employees who are included in a compliance purposes, because its effects of noise exposure.’’ 28 hearing conservation program are criteria are extremely complicated to The equal energy approach ‘‘makes presumably educated about the risk of the assumption that damage depends apply. During the development of the OSHA noise, have been offered HP at certain only on the daily amount of A-weighted HCA, OSHA was likewise faced with noise levels, and have been required to sound energy that enters the ear of the the practical reality of these approaches. wear HP at certain levels. Thus, worker, and that the temporal pattern OSHA wanted a simplified approach to employees in a HCP are a ‘‘protected’’ during the day is irrelevant.’’ 29 This establishing an equivalent exposure, but population and their hearing loss will approach ultimately leads to the ‘‘3 dB one that would account for the be less than that of the ‘‘unprotected rule,’’ which is that one should reduce intermittence of exposures inherent in populations’’ (that are cited in the the permissible time of exposure by half many occupational noise settings. studies). And so the risk of hearing loss for every 3 dB increase in dose level. Accordingly, OSHA came up with the with a 5 dB exchange rate is not as high Thus, the argument for a 3 dB exchange 5 dB exchange rate. They ‘‘decided that as commenters suggest. rate assumes that since 3 dB represents the best way to take into account the Fourth, even if FRA were to accept a doubling in the acoustical energy, it reduction of hazard associated with the argument that the 3 dB exchange also represents a doubling of the damage intermittence was to use a trading rate is more protective and appropriate risk based on the daily exposure rate. relation of 5 dB per halving of exposure for the noise experienced by locomotive However, this is not necessarily true. A time.’’ 31 FRA, like OSHA, believes that crews, FRA cannot adopt the lower limit doubling in energy does not necessarily the 5 dB exchange rate is the most given the implications that would represent a doubling of the damage risk, appropriate one to use at this time. result. While the railroads are subject to because there is a serious shortcoming Second, FRA does not feel FRA’s noise standard for their noise- with this theory. This theory only comfortable changing the triggering exposed employees in the locomotive applies to single steady uninterrupted criteria, since it would be a radical cab, railroads are subject to OSHA’s exposures. This theory does not account departure from the existing leading noise standard for noise-exposed well for exposures to noise federal regulation on occupational noise employees in areas outside of the environments where the noise levels exposure. The leading federal regulatory locomotive cab. See § 227.101. If FRA vary widely in intensity and throughout authority for occupational hearing loss adopted a 3 dB exchange rate and OSHA the work shift. Where exposures vary is OSHA, and the leading federal continued with its 5 dB exchange rate, widely in intensity and over time, there regulation on occupational noise railroads would have to comply with is an opportunity for some auditory exposure is OSHA’s general industry two different regulatory criteria for their recovery and so the damage risk is not standard. See 29 CFR 1910.95. The employees. That would be overly current OSHA permissible exposure burdensome, difficult, and costly. For 28 Berger, E.H. (2000). ‘‘Auditory and Non- example, it would most likely auditory Effects of Noise’’ in The Noise Manual, 5th limit, action level, and exchange rate are Edition, edited by E.H. Berger, L.H. Royster, J.D. the same as those that FRA is using in substantially increase the railroad’s Royster, D.P. Driscoll, and M. Layne, Am. Ind. Hyg. this final rule. During this rulemaking recordkeeping burden and the railroad’s Assoc., Fairfax, VA, 137. proceeding, FRA sent a letter dated cost for medical services. There are 29 Berger, E.H. (2000). ‘‘Auditory and Non- January 11, 2005 to OSHA and asked limits to what technology permits and auditory Effects of Noise’’ in The Noise Manual, 5th Edition, edited by E.H. Berger, L.H. Royster, J.D. what the regulated industry can afford. Royster, D.P. Driscoll, and M. Layne, Am. Ind. Hyg. 30 Id. at 138. FRA would be pushing those limits by Assoc., Fairfax, VA, 137. 31 Id. at 139. imposing the 3 dB exchange rate.

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Fifth, the use of the 3 dB exchange frequency), and so FRA should use a the conditions of their use, i.e., non- rate is not as widespread as some weighting scale that appropriately temperature controlled locomotive cabs commenters suggest. FRA believes there measures low-frequency noise (i.e., the make for a warm cab environment with is a marked distinction between C-weighted scale). Cooper Tire explains the resulting heat build-up under the professional organizations that that ‘‘A-weighted noise measurements headsets causing discomfort. Labor recommend a 3 dB exchange rate and filter out low-frequency noise content representatives believe that these Federal agencies that actually enforce a characteristic of locomotive noise prior hearing protection devices enhance 3 dB exchange rate on a regulated to the , giving an communication and that crews would community. Most of the entities that artificially low measure of an more widely and readily accept these recommend the use of the 3 dB environment’s likelihood of causing devices if the circumstances of their use exchange rate are professional harm to the locomotive employee.’’ By were improved. organizations like NIOSH, ACGIH, contrast, Cooper Tire believes that the In the NPRM, FRA sought comment NHCA, ASHA, and the American C-weighted scale will better measure the from the public on the use of different Academy of Audiology (AAA), as well low-frequency noise and thus ‘‘will types of hearing protection, including as standards organizations like ANSI afford railroad workers better protection electronic communication headsets. and ISO. Few Federal regulatory against the negative hearing and health Several commenters, all of whom agencies actually enforce a 3 dB effects that low frequency noise can appear to be railroad operating exchange rate standard on a regulated cause.’’ Similarly, an individual BLET employees, questioned why FRA did community. OSHA and MSHA use a 5 member submitted comments, not require the railroad industry to use dB exchange rate. DOD is one of the few requesting that FRA use a C-scale noise canceling headsets with built-in federal agencies that has a 3 dB instead of an A-scale in order to better communication microphones. The exchange rate, but even DOD is in an measure low frequency noise. commenters explained that the headsets unique position, for they have internal Consistent with its position in the work well for airline pilots, and so guidelines, as opposed to regulations in proposed rule and OSHA’s position in would probably also work well for the Code of Federal Regulations. (In its general industry standard, FRA will locomotive engineers. Another addition, the Air Force is an especially require railroads to use the A-weighted commenter explained that these unique situation since the Air Force’s scale for measuring occupational noise headsets would keep out the locomotive employees face unusually high noise in the workplace. Not only is the A- noise and make it easier to hear the levels, and so the 3 dB exchange rate is weighted scale the most appropriate dispatcher. Overall, these commenters warranted). For the reasons listed above, weighing filter for this purpose, but it is felt strongly that these headsets would FRA believes that the adopted triggering also the most widely accepted. make a significant difference and would criteria is the best approach currently According to the AIHA Noise Manual, decrease the noise level in locomotives. ‘‘As a result of investigations in which available to achieve the regulatory and One individual, in particular, wrote that a variety of weighing filters have been occupational health objectives of this ‘‘[these headsets] would not be compared, it has been concluded that rule. Accordingly, in this final rule, FRA inexpensive, but [these headsets] are empirically derived measures using A- is using the same triggering criteria as worth their weight in gold in an aircraft weighting gives a better estimation of proposed in the NPRM. environment and would likely be the the threat to hearing * * * than do the same in a locomotive.’’ E. Weighting Filter other weightings. Because of simplicity FRA used the A-weighted scale and substantiated results, A-weighting The AAR, however, disagreed as to throughout the proposed rule. FRA has continued to receive wide the value of these headsets when used explicitly acknowledges its use in acceptance.’’ 32 The Working Group as hearing protection. The AAR noted § 227.105(a), where FRA writes ‘‘A members agreed with this position, as that several of their members have had railroad shall provide appropriate does FRA. Accordingly, FRA has not extensive experience with radio protection for its employees who are changed the weighting scale it uses in headsets and have found that their use exposed to noise that exceeds the limits this rule. is limited. The AAR explained that the of those shown in Table 1 of this headsets have been poorly received by section, as measured on the dB(A) scale F. Electronic Communication Headsets most crews and that many employees as set forth in Appendix A of this part.’’ During pre-NPRM Working Group found the headsets to be uncomfortable. (A weighting filter is an electronic meetings, the matter of electronic The AAR also explained that many device in the sound measuring communication headsets generated employees lost their headsets or left instrument that changes the way the extensive discussions. Railroad them at home. The consensus of the instrument detects the intensity of representatives strongly disfavor the use AAR members is that ‘‘the different frequencies of sound. The A- of these devices. They maintain that disadvantages and cost of radio headsets weighting filter is designed to they are ineffective and have gained far outweigh any benefits they might approximate the sensitivity of the poor acceptance by crews. They also offer.’’ human ear to the different sound assert that it is expensive for them to FRA considered this issue and frequencies.) Two commenters, Cooper purchase such devices and to apply the decided to leave this provision the same Tire and an individual railroad necessary wiring to locomotives to use as in the proposed rule. As noted above, employee, suggested that FRA should them. Labor representatives, in the Working Group had discussed this use the C-weighted scale instead of the response, agree that these devices have issue at length in past meetings and A-weighted scale. gained poor acceptance by crews, but reached the same conclusion. Absent Cooper Tire asserts that the A- assert that the poor acceptance is due to any new information or justification to weighting scale is not appropriate for support a change, neither FRA nor the the locomotive cab noise environment. 32 Earshen, John J. (2000). ‘‘Sound Measurement: Working Group saw any reason to Cooper Tire explains that the noise Instrumentation and Noise Descriptors’’ in The change its position. FRA thinks, at this Noise Manual, edited by Elliott H. Berger, Larry H. generated by a locomotive is radically Royster, Dennis P. Driscoll, Julia Doswell Royster, time, that it is most appropriate that different than the noise found in other and Martha Lane, American Industrial Hygiene FRA allow the use of the electronic industrial environments (i.e., of a lower Association, 54. headset technology but not require it.

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FRA has previously examined the because they decrease the crew’s ability H. FRA Report to Congress issue of temperature control in to hear the radio. Yet another asserted In the NPRM, FRA discussed the locomotive cabs and came to the that the ‘‘biggest cause of cab noise [is] noise chapter of its 1996 Report to conclusion that it was not possible to the horns mounted on top of the Congress.35 The AAR commented on the mandate use of air conditioning during locomotive cab on all the older engines’’ data relied upon for the Report to hot periods of the year. In reporting and recommended that the new rule Congress. The AAR asserted that there these findings to the RSAC, FRA did ‘‘include mandatory relocation of the were problems with that data, that is call attention to the importance of roof mounted horns to the long hood ‘‘that FRA made time weighted temperature control and urge railroads area where all new locomotive horns are measurements using an eight hour to include full temperature control in its mounted.’’ metric, but then reported the results as specifications for new locomotives and FRA has a long history of working a percent of dose using a twelve hour to maintain the systems in service. with the railroad industry on the issue metric as a reference. This resulted in Absent firm requirements that of locomotive horn noise, both in the overstating the percentage of exposures temperature control be provided, and context of locomotive cab working that exceeded the permissible exposure given the long hours that employees conditions and of unwanted noise in limit and also overstating the percentage work in the cab setting, FRA agrees it is communities through which active of exposures that exceeded the OSHA not practical to require use of headsets railroad lines pass. FRA has addressed 33 threshold for hearing conservation in the normal course of business. train horn issues in depth through the programs.’’ The AAR believes that it In sum, FRA will not require a rulemaking proceedings for its Final ‘‘could lead to overestimating the degree railroad to offer electronic (or radio) Rule on the Use of Locomotive Horns at to which train crews are exposed to communication headsets (wired or Highway-Rail Grade Crossings (‘‘Train sound levels.’’ wireless), however FRA does not intend Horn Rule.’’) 34 The issues ranged from The AAR noted that FRA had to discourage railroads from using this setting maximum horn sound output acknowledged in the preamble technology. Railroads are welcome to levels to limiting horn sound discussion to the NPRM that the Report use this technology if they so wish. Of (emanating to the side of the to Congress was ‘‘not rigorous.’’ course, if a railroad elects to locomotive) to relocating the horn on However, the AAR wants FRA to accommodate an employee with hearing locomotives. In order to fully consider publicly correct the averages and loss by providing that employee with an these issues, FRA held a Technical percentages in the Report to Congress electronic headset, the railroad would Conference on Locomotive Horns during that were affected by these errors. The also need to provide the other regularly the comment period to the NPRM (for information that FRA endeavored to assigned crew members with compatible the Train Horn Rule), conducted tests summarize in the Report is now more equipment. Because of the safety need through the Volpe National than a decade old and could not, even attendant to good intra-crew Transportation Systems Center, and if drawn from a representative sample of communication, this is an reviewed the results of Transport assignments (which it was not), and accommodation that would be Canada tests. even if re-characterized as AAR particularly appropriate where one Research in support of the Train Horn suggests, be used to describe current member of the crew has known hearing Rule confirmed that placing the horn in industry conditions in any quantitative loss and the locomotive is an older the middle of the locomotive results in way. However, the Report to Congress model known to have significant the need to have louder output from the provides data supporting the background noise. In this case, all crew source in order to achieve adequate proposition that excessive noise doses members should cooperate in utilization warning to motorists, which, in turn, are possible in the worst of the older of the technology. As a related aside, causes concern in communities along locomotives. And, industry FRA notes that, with respect to crew the rail line. However, the placement of representatives themselves pointed out members with documented hearing loss, the horn in the middle of the locomotive during RSAC Working Group this rule does not vary or add to the clearly reduces the impact on crews. deliberations that occasional excessive railroad’s duties under the Americans Research conducted in Canada suggests doses are possible in new locomotives with Disabilities Act. that front-mounted horns may be more under challenging conditions of G. Location of the Train Horn effective (than center-mounted horns) in operations (e.g., windows open, many providing warning under dynamic grade crossings, heavy loading). Several individual commenters, all conditions. Industry noise monitoring has railroad employees, expressed concern confirmed these points (see data about the location of the train horn. One In the Train Horn Rule, FRA decided reported in Appendix C to the commenter asserted that the location of not to mandate the relocation of the Regulatory Impact Analysis for this final the train horn was unsafe with respect train horn. FRA explained that further rule), and all parties agree that a hearing to hearing protection for personnel on research would be necessary before conservation approach is warranted to the train. Another commenter suggested making any further regulatory changes. address potential exposures. that railroads with cab-roof-mounted FRA continues to research these issues. Accordingly, FRA, having responded horns should relocate their horns to the For purposes of this rulemaking, the repeatedly and candidly to criticisms of back of the cab on the engine issue is whether employee hearing is the Report, sees no purpose relevant to compartment hood. This commenter adequately protected. The provisions of this rulemaking for revisiting the details also stated that cab-mounted horns this rule will achieve that result. of the Report. create a greater safety risk, because they Accordingly, FRA, with the agreement reduce the communication between the of the RSAC Working Group, is not I. Regulatory Impact Analysis engineer and conductor in the cab and mandating that railroads locate the train horn in any particular location. The doseBusters Company submitted comments on the Regulatory Impact 33 See Pilcher, J., Nadler, E., and Busch, C., ‘‘Effects of Hot and Cold Temperature Exposure on 34 See FRA Docket No. 1999–6439, including 65 Analysis (RIA) that FRA prepared to Performance: A Meta-Analytic Review,’’ FR 2230 (January 13, 2000), 68 FR 70586 (December Ergonomics, vol. 45, no. 10, 682–688. 18, 2003), and 70 FR 21844 (April 27, 2005). 35 See 69 FR 35146, 35149 (June 23, 2004).

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accompany the NPRM. FRA has a comment about the microphone Part 227—Occupational Noise Exposure responded to these comments in the location. In addition, no structural final economic analysis, of which a errors were observed in the data. As the Subpart A—General copy can be found in the docket. FRA variance in microphone location Section 227.1 Purpose and Scope is addressing one comment here, appears to be small from the comments, however, because it is related to the the error introduced by this variance is This section identifies the purpose reasons that FRA issued this rule and likely to be small as well. A small and scope of this part. This is a general not just the RIA. amount of error would not invalidate provision. Section 227.1(a) provides that The doseBusters Company the study results. the purpose of this part is to protect the commented on Appendix C of the RIA. occupational health and safety of Appendix C of the RIA cited railroad The data displayed in the two tables employees involved in specified data that FRA had reviewed before in Appendix C to the RIA, Locomotive railroad activities and/or operations. issuing the rule. A Class 1 railroad has Cab TWA(80) Measurements and More specifically stated, the purpose of gathered and submitted to FRA data on Locomotive Cab TWA(90) this part is to protect the hearing of employee noise exposure in the Measurements, were a simple count of individuals who experience their locomotive cab. FRA reviewed that data, the number of employees that fell below primary noise exposure in the as described in Appendix C to the RIA. or above the OSHA standards. The TWA locomotive cab. Hearing loss occurs The doseBusters Company felt that the or number of employees was not cumulatively over time and thus, the data readings from the dosimeter were arithmetically averaged. FRA agrees that purpose of this rule is to protect flawed because of the placement of the a longitudinal study would have individuals over the span of their dosimeter microphones during testing provided additional information on railroad career. Section 227.1(b) states (i.e., the microphones were placed at which employees were overexposed to that this part prescribes minimum different locations—at the collar lapel, noise and how their noise exposure Federal health and safety noise ball cap, or shoulder). The doseBusters changed over time. FRA notes that no standards for locomotive cab occupants. Company asserted that using different new data was gathered for the analysis FRA did not receive any comments on microphone locations could cause in Appendix C; rather, a previously- this section, and so FRA did not make substantial errors in the data. conducted study provided a cost any changes based on public comments The doseBusters Company also effective source of data. FRA feels that or RSAC Working Group discussions. disagreed with FRA’s conclusions from the data review provides a good However, FRA did make a few minor the testing about the risk of NIHL. The indication of the number of employees changes in order to clarify this section. doseBusters Company stated that the overexposed to noise in those FRA revised the language in § 227.1(b) results from the noise sampling environments in which the noise to reflect the fact that the rule provides represented the average number of sampling was conducted, given that ‘‘noise standards for locomotive cab workers overexposed to noise on any railroad routes and schedules tend to occupants,’’ not general ‘‘health and particular day, not the actual number of stay fairly constant. With similar work safety standards for specified workplace workers that may be overexposed over activities performed over time, the noise safety subjects.’’ time. The doseBusters Company exposure can be expected to Section 227.3 Application explained that, based on similar approximate the noise exposure exposure data that they collected on measured in the study. This section identifies the applicability of this part and states that underground coal miners, they estimate Without further information, FRA is that nearly twice the number of railroad part 227 will apply to all railroads and uncertain whether the coal mining contractors to railroads. This section workers (than FRA identifies) are example cited by the doseBusters overexposed to noise. identifies five exceptions. First, this part Company applies to the railroading FRA does not believe that the will not apply to railroads that operate environment. There are likely many dosimeter data is flawed, and FRA only on track inside an installation that believes that it can rely on this data differences between the coal mining is not part of the general railroad system which it received from a Class 1 environment and the railroading of transportation. Second, this part will railroad. FRA believes that the primary environment. For example, the noise not apply to rapid transit operations in objective of this data collection was met sources, noise duration, sound an urban area that are not connected to placing the microphone near the frequencies, and reflective the general railroad system of employee’s ear. It is widely accepted characteristics of the surroundings may transportation. Aside from the exception that, as long as the dosimeter all be different. Although FRA finds the noted below, this part will apply to microphone is located in the employee’s coal mining comparison to be rapid transit operations in an urban area hearing sphere (i.e., a sphere with a two- interesting anecdotally, there is no that are connected to the general foot diameter surrounding the head),36 information presented that indicates railroad system. the tester will get a reasonable how noise exposure in an underground Third, this part will not apply to rapid representation of the employee’s noise coal mine correlates with noise transit (light rail) operations in an urban exposure. In addition, FRA notes that exposure in a railroad cab. area that are connected to the general this data was collected from field V. Section-by-Section Analysis system and operate under a shared use surveys, not a controlled laboratory waiver. This exception is a departure study. As such, small variations in the This section-by-section analysis from the proposed rule, and one that microphone testing location may be explains the provisions of the final rule. was decided upon after the RSAC expected. FRA also notes that, out of A number of the issues and provisions consensus. These operations are 512 valid samples, 17 samples included of the final rule have been discussed provided using electrical powered or and addressed in the preceding diesel powered light rail vehicles. Most 36 This definition comes from Appendix III(A), discussions. Accordingly, the preceding of these systems operate as street- ‘‘Instruments Used to Conduct a Noise Survey’’ of discussions should be considered in running trolleys and over track OSHA’s Technical Manual. See http://www. osha.gov/dts/osta/otm/noise/exposure/ conjunction with those below and will segments shared with conventional instrumentation.html#dosimeter. be referred to as appropriate. railroads using the approach referred to

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as temporal separation. FRA has FRA has considered that they are often exposure occurs in the locomotive cab.’’ attempted to maintain consistency in seasonal and generally use older or This standard does not require a finding sorting out those matters that FRA historic equipment. of equivalence in terms of program should regulate (because of interface In the NPRM, FRA solicited public effectiveness, because making such a with conventional railroads) and those comment on how to handle the finding would require an estimation of that the Federal Transit Administration employees covered in these types of incremental hearing loss over the should regulate (under their State Safety operations but did not receive any working life of specific populations and Oversight program). FRA has used the comments. FRA has no evidence that that is scientifically impracticable. waiver process to implement this employees and volunteers providing Further, more important than precise arrangement, following the general this service are at serious risk of hearing equivalence is the integrity of each of principles set forth in FRA’s relevant loss. Accordingly, FRA will continue to the North American governments’ policy statements. See 49 CFR part 209, exempt these operations from this programs. Employees and program Appendix A ‘‘Statement of Agency regulation. FRA notes, however, that managers need to know what rules Policy Concerning Enforcement of the operations utilizing steam locomotives apply and need to be able to carry out Federal Railroad Safety Laws’’ and 49 with extended duty periods for those programs without the confusion CFR part 211, Appendix A ‘‘Statement locomotive engineers and firemen that would be inherent in changing the of Agency Policy Concerning Waivers should make vigorous use of hearing rules at international boundaries. FRA Related to Shared Use Trackage or protection to reduce crew doses to will request similar treatment of U.S. Rights-of-Way by Light Rail and acceptable levels. railroads operating into Canada and Conventional Operations.’’ Fifth, this part will not apply to Mexico, in order to achieve the goal of With the passage of time, FRA and the certain foreign railroad operations. harmonization. affected transit authorities have found Specifically, it will not apply to FRA did not receive any comments on this complex of issues increasingly operations where employees of foreign this section, and so FRA did not make unwieldy. FRA believes that where FRA railroads have a primary reporting point any changes based on public comments is issuing or revising a regulation, outside the U.S. but are operating in the or RSAC Working Group discussions. matters are greatly simplified both for U.S., and they satisfy the following However, FRA did make two minor the regulated entity and for FRA, if FRA requirements: (1) The government of the changes on its own. FRA realized that provides for appropriate exceptions country in which the foreign railroad is it had failed to state in § 227.3(a) that outright. This is such a case. Light rail based must have established the rule covers contractors in addition operations are typically conducted requirements for hearing conservation to railroads. While the preamble to the using equipment designed for passenger for railroad employees in that NPRM included such a statement,37 the and operator comfort, and FRA has jurisdiction; (2) the foreign railroad regulatory text did not. The regulatory received no information that any shared must undertake to comply with those text now indicates that this rule covers use light rail operation is affected by a requirements while operating within the railroad contractors. FRA also realized serious noise exposure problem. U.S.; and (3) the Associate that there was a drafting inconsistency Further, to the extent a transit authority Administrator for Safety must determine in § 227.3(b)(4) and corrected it. In order needs to address hearing conservation that the foreign government to provide for consistency within the issues among its employees, there is no requirements are consistent with the section, FRA started § 227.3(b)(4) with reason to single out just the employees purpose and scope of part 227. A the term ‘‘railroad operations’’ instead operating on the general rail system. ‘‘foreign railroad’’ refers to a railroad of the term ‘‘employees.’’ 38 Finally, from a practical standpoint, that is incorporated in a place outside Section 227.5 Definitions most shared use operations involve line the United States and is operated out of segments not under FRA jurisdiction, a foreign country but operates for some This section contains definitions for and it would make no sense to bifurcate distance in the U.S. (e.g., Canadian key terms. The definitions are set forth hearing conservation between the time National Railroad). Employees excepted alphabetically. FRA intends these the trolley operator is on the shared use from application would be those definitions to clarify the meaning of segment and the time the trolley employees of a foreign railroad whose terms as they are used in the text of the operator is on the street running primary reporting point is in Canada final rule. segment. Accordingly, FRA has and Mexico. Many of these definitions have been provided for an appropriate exception The Associate Administrator’s taken from the standards issued by in this final rule. evaluation and determination would OSHA and MSHA and the Fourth, this part will not apply to only be made at the request of the recommendations issued by NIOSH and railroads that operate tourist, scenic, foreign railroad. As a practical matter, the American Conference of historic, or excursion operations, this evaluation could be accomplished Governmental Industrial Hygienists whether they are on or off the general at the request of an association of (ACGIH). These are definitions that are railroad system of transportation. The foreign railroads (e.g., the Railway widely used by noise professionals. This term ‘‘tourist, scenic, historic, or Association of Canada), and the includes definitions such as excursion operations’’ is defined in exception would then be available to all ‘‘Audiologist,’’ ‘‘Decibel,’’ ‘‘dB(A),’’ § 227.5 to mean ‘‘railroad operations railroads of that country entering the ‘‘Hertz,’’ ‘‘Medical Pathology,’’ and that carry passengers, often using U.S. ‘‘Otolaryngologist.’’ This section also antiquated equipment, with the The Associate Administrator will contains some basic definitions that are conveyance of the passengers to a determine whether the foreign standard to several of FRA’s regulations. particular destination not being the government’s requirements are This includes definitions such as principal purpose.’’ Congress has consistent with the purpose and scope directed that, in issuing safety rules, of this part, specifically that the purpose 37 See 69 FR 35157. FRA take into account the unique of the foreign government’s 38 The language in the NPRM had provided: ‘‘This part does not apply to * * * Employees of a foreign financial, operational, and other factors requirements are ‘‘to protect the railroad whose primary reporting point is outside that may apply to such railroads. 49 occupational health and safety of the U.S. while operating trains or conducting U.S.C. 20103(f). For those operations, employees whose predominant noise switching operations in the U.S., if * * *’’

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‘‘Administrator,’’ ‘‘FRA,’’ ‘‘Person,’’ problems if that organization went out audiologists near the shortline ‘‘Railroad,’’ and ‘‘Tourist, scenic, of existence or if a new licensing operations would not have state historic, or excursion operations.’’ organization was created. As a result, licenses. Accordingly, FRA decided to Several of the definitions, however, are the Working Group members decided retain in the definition of audiologist a new or fundamental concepts that are not to link licensing to any one provision for states which do not license discussed below. organization. audiologists. The term ‘‘Action Level’’ has been In addition, one railroad The definition in the final rule is a revised since the proposed rule. FRA, representative explained that he had hybrid of the above recommendations. It with the agreement of the RSAC, reservations about AAA’s combines the description of the tasks changed the upper limit for noise recommendation that the audiologist be from the ASHA (i.e., ‘‘a professional measurements from 130 dB(A) to 140 licensed in the state in which the who provides comprehensive diagnostic dB(A). FRA also made this change in audiologist furnishes service. The and treatment/rehabilitative services for § 227.103(c)(1). See § 227.103(c)(1) for a railroad representative explained that auditory, vestibular, and related discussion of the revision. since railroads operate through several impairments’’) with the qualification The term ‘‘Audiogram’’ has been states, railroad audiologists will provide requirements from AAA (i.e., requires added to the final rule. The Council for services in many states. It would be (1) a masters or doctoral degree and (2) Accreditation in Occupational Hearing impracticable to expect railroad a state license or alternate state Conservation (CAOHC) and AAA audiologists to become licensed in each certification). (Note also that FRA has recommended that FRA add this state in which the railroad operates. formatted the qualification requirements definition. Since FRA uses this term FRA agrees that it would be slightly different than AAA.) This throughout the rule, FRA decided, and impracticable to impose such a burden hybrid definition addresses both the RSAC Working Group agreed, that it on railroads, and thus FRA did not commenters’ concerns that audiologists is appropriate for FRA to provide a adopt AAA’s recommendation. OSHA’s are adequately qualified, as well as definition. rule did not require in the Working Group members’ concerns that The term ‘‘Audiologist’’ has been state in which the audiologist furnishes railroads are able to comply with the revised from the proposed rule. Several service. FRA also does not have such a rule. commenters suggested that FRA revise requirement. Moreover, FRA does not The term ‘‘’’ has been the definition, and most suggested expect that this will present any added to the final rule. The Council for alternative definitions. ASHA suggested problems. As a general matter, FRA Accreditation in Occupational Hearing a revised definition and explained it expects that audiologists will perform Conservation (CAOHC) and AAA would be consistent with that contained broad duties associated with the hearing recommended that FRA add this in ASHA’s Scope of Practice in conservation program. Presumably, the definition. Since FRA uses this term Audiology (2004). An individual audiologist will perform such duties throughout the rule, FRA decided, and commenter suggested an almost from the state in which the railroad is the RSAC Working Group agreed, that it identical definition, except that it headquartered and where the is appropriate for FRA to provide a contained a different certification and audiologist is licensed. Furthermore, definition. licensing requirement. AAA also FRA’s experience has indicated that The term ‘‘Continuous Noise’’ is submitted a revised definition, most railroad audiometric testing tends intended to clarify the use of the word explaining that their recommended to be conducted by contractor in § 227.105. The term is used in definition came from the Social Security technicians hired by the railroad. As OSHA’s standard,40 though OSHA does Act 39 and by using it, FRA would foster such, audiologists are unlikely to travel not include a definition in its definition uniformity among Federal health into the field in mobile vans (i.e., section. FRA decided to add a definition programs. Finally, an individual ASHA potentially other states) and provide for the sake of clarity. member requested that FRA ensure that audiological services. The term ‘‘Employee’’ refers to the audiologists are fully educated and As a related matter, one Working individuals engaged or compensated by trained. In particular, she suggested that Group member suggested that FRA a railroad, as well as to contractors to a an audiologist should have at least a remove the provision in the second half railroad. One of FRA’s objectives in master’s degree (or Ph.D. or Au.D), the definition of audiologist, which sets covering contractors is to promulgate experience and training in hearing the parameters for states which do not standards that are applicable to all those conservation, and certification from a license audiologists. The Task Force individuals that are exposed to the national organization (and state member asserted that the provision was specified levels of locomotive cab noise. licensure). unnecessary, since the revised rule only Whether an individual is paid by a RSAC Working Group members requires audiologists to be licensed in railroad or a contractor is irrelevant. The expressed concerns about certain any one state, and so therefore there was most important issue is preventing aspects of the comments. One member no need to make provisions for states hearing loss. FRA holds no position on was concerned that it might be without audiologist licensing the practice of a railroad contracting unreasonable to expect audiologists to requirements. The Task Force, as a work out to another company, but FRA have masters or doctoral degrees, whole, however, decided that removing strongly believes that contract however the other members pointed out this provision could create a problem employees are entitled to the same level that the vast majority of audiologists for shortlines. A shortline operating in of safety as railroad employees. To the already have either masters or doctoral only one state which did not have extent that contract employees work degrees. Another member was licensing requirements for audiologists under the circumstances presenting the concerned about linking audiologist might have difficulty finding noise hazards addressed in this certification to a single organization. (In audiologists. With the provision regulation, those contractors must be the NPRM, FRA had required ASHA removed, the rule would require protected. certification for audiologists). Members audiologists to have a state license, and The term ‘‘Exchange Rate’’ refers to were concerned that this might present yet if the state didn’t require the change in sound levels which would audiologists to get licensed, it would be 39 See 42 U.S.C. 1395x(ll)(3)(b). likely that most, if not all, the 40 See 29 CFR § 1910.95(b)(2).

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require halving or doubling the AAR wrote that railroads should not be FRA developed the term ‘‘noise allowable exposure time to maintain the limited to the NRR for evaluating HP operational controls’’ in conjunction same noise dose. FRA has set the attenuation, because it does not provide with the RSAC Working Group during exchange rate for this regulation at 5 dB. the flexibility to employ current science. the NPRM stage. FRA re-opened the As previously discussed, both OSHA The AAR explained that there is current discussion on this matter during the and MSHA also use a 5 dB exchange technology, such as in-the-ear comment period, and FRA, with the rate. Regarding this definition and the microphones, which measure actual RSAC Working Group’s input, has re- definition of ‘‘Time-Weighted Average,’’ attenuation, and that technology would affirmed its decision to use this term. several commenters suggested that FRA not be available if railroads were limited FRA uses a different term to distinguish instead adopt a 3 dB exchange rate. For only to the NRR. it from OSHA’s term. While the a discussion of those comments, see The Working Group discussed these definition of the two terms is identical, section IV(D) above. comments and expressed concern that the application of the two terms is The term ‘‘Hearing Protector’’ refers to replacing that phrase with the NRR (or different. Administrative controls are ‘‘any device or material, which is any other specific indicator) would mandatory in OSHA’s hierarchy, capable of being worn on the head, ultimately be limiting. It would prevent whereas noise operational controls are covering the ear canal or inserted in the the industry from availing themselves of optional in FRA’s hierarchy-free ear canal; is designed wholly or in part advances in science and technology. By scheme. FRA is using this different term to reduce the level of sound entering the not listing any particular indicator, FRA to make it clear that FRA treats noise ear; and has a scientifically accepted leaves it open for the development of operational controls differently than the indicator of its noise reduction value.’’ new standards. This is particularly way OSHA treats administrative At the suggestion of NHCA and with the important, since the EPA is currently controls. consensus of the RSAC Working Group, working to develop a new standard. The term ‘‘Occasional Service’’ refers FRA added the words ‘‘covering the ear Given that there are several possible to service of not more than a total of 20 canal opening’’ after the phrase ‘‘worn indicators that FRA could use and given days with one or more assignments in on the head’’ and ‘‘inserted’’ before ‘‘in that there is not widespread public a calendar year. The term is used only the ear canal.’’ FRA believes that these support for any particular one, as well once in this rule in § 227.101. Theresa words make the definition more clear. as the fact that listing a particular Schulz commented on this definition, In the NPRM, FRA sought comment indicator might ultimately preclude the noting that it is an ‘‘important but on inclusion of the phrase ‘‘has a use of new technology, FRA will not previously unrecognized element for a scientifically accepted indicator of its mandate the use of any particular noise standard.’’ She explained that this noise reduction value.’’ The RSAC indicator in the definition of hearing provision ensures that the focus of the Working Group had discussed this protector. HCP is on employees who are routinely phrase during the proposed rule stage The term ‘‘Noise Operational exposed to noise and therefore at higher and had considered several variations. Controls’’ is the functional equivalent of risk for noise-induced hearing loss. Certain Working Group members had, at OSHA’s term ‘‘administrative one point, thought the phrase was too The term ‘‘Periodic Audiogram’’ has controls.’’ 41 MSHA 42 and NIOSH 43 been revised in the final rule. The new general and provided too much leeway. also use the term. FRA proposed the use They wanted that phrase replaced with definition states that a periodic of this term in the NPRM and has audiogram is ‘‘a record of follow-up a requirement to use a specific decided to retain it in this final rule. indicator, the Noise Reduction Rating audiometric testing conducted at regular A few commenters, including the intervals after the baseline audiometric (NRR). FRA sought comment from the ASHA, Teresa Schulz, and Aearo public, asking whether FRA should use test.’’ FRA made this change in response Company, recommended that FRA use to commenters who explained that the a general description for an indicator, the term ‘‘administrative controls’’ the NRR, or some other specific NPRM incorrectly referred to instead of ‘‘noise operational controls.’’ audiograms as something that is ‘‘done’’ indicator. They acknowledged that FRA enforces A few commenters, including Aearo or ‘‘conducted.’’ CAOHC, for example, noise operational controls differently Company, ASHA, and Theresa Schulz, explained that an audiogram is a than OSHA, MSHA and NIOSH; responded to FRA’s request for document or report of audiometric however, they thought that FRA should comments, explaining that they felt that testing, and so it is not something that use the same term as the others since the the phrase was too vague. Aearo is ‘‘done’’ or ‘‘conducted.’’ This new Company and ASHA suggested that terms are functionally equivalent. The definition corrects that inaccuracy. FRA should mandate the use a specific commenters explained that FRA should The term ‘‘Professional of rating(s) for enforcing hearing protector be consistent and uniform with other the Audiometric Monitoring Program’’ attenuation and include that rating(s) in Federal agencies in order to minimize was added to the final rule. This this definition. They noted that there confusion. They thought that it was definition arose in the context of were several options, including NRR, particularly important for FRA to be qualifications for individuals who NRR (SF), and Method B, though did clear, since OSHA and FRA share perform audiometric tests. See not assert a preference for any jurisdiction over certain aspects of the § 227.109(c) for a discussion of this term individual one. Similarly, Theresa rail industry. Aearo Company also felt and of qualifications, in general. Schulz noted that there are new that the term itself could be potentially The term ‘‘Qualified Technician’’ was products and testing methods, including confusing; a newcomer might question added to the final rule. This definition Fit Testing, Method B and Predicted whether the term applies to worker was not a product of the RSAC Personal Attenuation Rating (P-PAR), schedules since those could be thought consensus. FRA added this definition in that have been accepted scientifically of as ‘‘noise operations.’’ order to simplify the rule. Rather than and that provide real-world testing of restate the definition several times in 41 See 29 CFR § 1910.95(b)(1) and 29 CFR attenuation. § 1926.52(a). the rule, FRA states it in this definition The AAR also responded to FRA’s 42 See 30 CFR § 62.130. section once and then uses the term request for comments, noting its support 43 See www.cdc.gov/niosh/hpterms.html for throughout the rule. For a discussion of for the proposed definition of HP. The NIOSH Common Hearing Loss Prevention Terms. the comments that FRA received about

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technicians, see the section-by-section Any person who violates any the requirements of this part. Requests analysis for § 227.109(c). requirement of this part or causes the for such waivers may be filed by any The terms ‘‘Sound Level’’ and ‘‘Sound violation of any such requirement will interested party. In reviewing such Pressure Level’’ can be used be subject to a civil penalty of at least requests, FRA conducts investigations to interchangeably. The definition comes $550, and not more than $11,000, per determine if a deviation from the from OSHA’s regulation. See Appendix violation. Civil penalties may be general criteria can be made without I to 29 CFR 1910.95. OSHA’s regulation, assessed against individuals only for compromising or diminishing rail in addressing SLOW time response, willful violations. Where a grossly safety. This section is consistent with referenced a now-outdated ANSI negligent violation or a pattern of the general waiver provisions contained standard, S1.4–1971 (R1976). FRA repeated violations creates an imminent in other Federal regulations issued by updated that standard with the current hazard of death or injury to persons, or FRA. FRA received no comments on standard, ANSI S1.43–1997 (R2002), causes death or injury, a civil penalty this section and so FRA left it the same ‘‘Specifications for Integrating- not to exceed $27,000 per violation may as proposed in the NPRM. Averaging Sound Level Meters.’’44 be assessed. In addition, each day will constitute a separate offense. Section 227.15 Information Collection The term ‘‘Time-weighted-average Furthermore, a person may be subject to This section notes the provisions of eight-hour (or 8-hour TWA)’’ includes a criminal penalties under 49 U.S.C. this part that will be submitted to the reference to the 5 dB exchange rate. 21311 for knowingly and willfully Office of Management and Budget Regarding this definition and the falsifying reports required by these (OMB) for compliance with the definition of ‘‘Exchange Rate,’’ several regulations. FRA believes that the Paperwork Reduction Act of 1995. See commenters suggested that FRA instead inclusion of penalty provisions for 44 U.S.C. 3501 et seq. adopt a 3 dB exchange rate. For a failure to comply with this regulation is discussion of those comments, see important in ensuring that compliance Subpart B—Occupational Noise section IV(D) above. is achieved. FRA received no comments Exposure for Railroad Operating Employees Section 227.7 Preemptive Effect on this section and it remains the same as proposed in the NPRM. Section 227.101 Scope and This section informs the public of With respect to the penalty amounts Applicability FRA’s intention and views on the contained in this section, the Federal preemptive effect of the rule. The Civil Penalties Inflation Adjustment Act This section identifies the individuals preemptive effect of this rule is broad, of 1990 (Inflation Act), Pub. L. 101–410 to whom this rule will apply. FRA did as its purpose is to create a uniform Stat. 890, 28 U.S.C. 2461 note, as not receive any comments on this national standard. Section 20106 of amended by the Debt Collection section, and so FRA did not make any Title 49 of the United States Code Improvement Act of 1996 Pub. L. 104– changes based on public comments or provides that all regulations prescribed 134, April 26, 1996, requires agencies to RSAC discussions. However, FRA did by the Secretary related to railroad periodically adjust by regulation each make a few minor changes in order to safety preempt any State law, maximum civil monetary penalty or clarify this section. FRA changed the regulation, or order covering the same range of minimum and maximum civil name of this section, from ‘‘scope’’ in subject matter, except a provision monetary penalties. By final rule the NPRM to ‘‘scope and applicability’’ necessary to eliminate or reduce an effective June 28, 2004,45 FRA adjusted in the final rule. FRA believes that the essentially local safety hazard that is not its civil monetary penalties. In this final revised name more accurately reflects incompatible with a Federal law, rule, FRA has included those adjusted the content of this section. In regulation, or order and that does not penalty amounts. § 227.101(a), FRA added the words unreasonably burden interstate ‘‘noise-related,’’ to clarify that this commerce. Exceptions would be rare. In Section 227.11 Responsibility for subpart applies to noise-related working general, 49 U.S.C. 20106 will preempt Compliance conditions, not just working conditions any State law—whether statutory or This section clarifies FRA’s position in general. Additionally, at the end of common law—and any state regulation, that the requirements contained in this § 227.101(a)(1), FRA added the clause rule, or order, that concerns the same rule are applicable not only to any ‘‘subject to a railroad’s election in subject matter as the regulations in this ‘‘railroad’’ subject to this part but also paragraph (3) of this section.’’ This rule. FRA received no comments on this to any ‘‘person’’ (as defined in § 227.5) clarifies the interplay between section and it remains the same as that performs any function required by paragraphs (a)(1) and (a)(3) of this proposed in the NPRM. this rule. Although various sections of section. FRA believes these changes the rule address the duties of a railroad, make the rule more clear and accurate. Section 227.97 Penalties FRA intends that any person who Section 227.101(a)(1) provides that This section identifies the civil performs any action on behalf of a this rule covers employees who penalties that FRA may impose upon railroad or any person who performs regularly perform service subject to the any person, including a railroad or an any action covered by this rule is provisions of the hours of service law independent contractor providing goods required to perform that action in the governing ‘‘train employees.’’ See 49 or services to a railroad, that violates same manner as required of a railroad or U.S.C. 21101(5) and 21103. This refers any requirement of this part. These be subject to FRA enforcement action. to employees who are engaged in penalties are authorized by 49 U.S.C. FRA received no comments on this functions traditionally associated with 21301, 21302, and 21304. This penalty section and it remains the same as train, engine, and yard service; for provision parallels penalty provisions proposed in the NPRM. example, engineers, conductors, brakemen, switchmen, and firemen. In included in numerous other safety Section 227.13 Waivers regulations that FRA has issued. general, these employees encounter This section sets forth the procedures their predominant occupational noise 44 For a general discussion on the use of ANSI for seeking waivers of compliance with exposure in the locomotive cab, and standards in this rule, see the section-by-section therefore, FRA plans to appropriately analysis for § 227.103(c)(2). 45 See 69 FR 30591 (May 28, 2004). tailor the noise monitoring and noise

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testing programs in this section to locomotives for distances of less than provide limited service and thus will address the exposure that these 100 feet for inspection or maintenance have limited exposure to noise in a employees experience. purposes (see § 227.101(a)(1)(ii)). The locomotive cab. Railroads should note, With respect to the term ‘‘regularly’’ assignments of these employees however, that this provision will not in § 227.101(a)(1), FRA intends to cover usually involve consistent and exempt regular railroad employees who individuals who perform some level of significant work outside the cab, such as happen to perform this occasional work in a locomotive cab. In making moving about on the shop floor, service on historic equipment. this assessment, the railroad should working on the ground to connect the FRA realizes that earlier provisions in consider an employee’s work over the air hoses and MU cable for locomotives, this rule have discussed historic period of a year. FRA would like and performing locomotive servicing operations. In particular, § 227.3(b)(3) railroads to think about how they use (e.g., sanding or fueling). This is why excludes from this part railroads that their workforces, i.e., take a serious look these types of employees are being perform historic operations. Despite the at the work that their employees excepted from FRA’s regulation. apparent similarity, these provisions are perform, determine which employees Increasingly, however, inside hostling different. The earlier provision excludes will experience potentially hazardous duties are commingled with other railroads that operate, among other noise exposure in the cab, and then mechanical duties involving major things, historic operations, while this place those employees in a hearing additional sources of noise exposure. provision excludes contract employees conservation program. These employees would remain under who work for a freight railroad (such as Given the nature of the railroad the authority of OSHA with respect to Union Pacific Railroad or CSX Railroad) industry, FRA is aware that some of occupational noise exposure, unless the operating tourist, scenic, and excursion these employees may not always railroad elected to place them in the equipment. experience their predominant noise FRA program based upon their expected Section 227.101(a)(2) provides that exposure in the cab. Due to mix of assignments. (See § 227.103). this rule covers any direct supervisor of longstanding labor practices in the In addition, this rule will not extend the persons described in § 227.101(a)(1) railroad industry concerning seniority to contractors who operate historic whose duties require frequent work in privileges and concerning the ability of equipment in occasional service, as long the locomotive cab. railroad employees to bid for different as those contractors have been provided Section 227.101(a)(3) provides that work assignments, these railroad with hearing protection and are required this rule covers, at the election of the employees are likely to change jobs to use the hearing protection while railroad, any other person whose duties frequently and to work for extended operating the historic equipment. (See require frequent work in the locomotive periods of time on assignments that § 227.101(a)(1)(iii)). Although these cab and whose primary noise exposure involve duties outside the cab. For contractors will not be in the railroad’s is reasonably expected to be example, an employee might start the HCP, it is still important that they use experienced in the cab, if the position year in a job that involves mostly HP, because they will be working in occupied by such person is designated outside-the-cab work, spend three noisy environments (e.g., historic in writing by the railroad, as required by months working primarily inside the locomotives). Occasional service is § 227.121(d). Note that, pursuant to cab, and then return to outside-the-cab defined in § 227.5 and refers to service § 227.101(a)(3), a railroad can elect to work for the rest of the year. In this type of not more than a total of 20 days with cover an employee that would otherwise of situation, FRA’s regulations can one or more assignments in a calendar be excluded by §§ 227.101(a)(1). govern the noise exposure of this year. This exception will apply to all Section 227.101(b) provides that all employee throughout the year despite members of the crew responsible for other railroad employees who are the fact that the employee only spent operating the train. That includes, but is exposed to noise hazards but are outside three months inside the cab. This not limited to, engineers, conductors, the scope of this regulation will employee can be covered by FRA’s firemen, and brakemen. When originally continue to be covered by OSHA’s noise regulations, because he spent time, no raised, this exception contemplated standard, which is located at 29 CFR matter how little, in a locomotive cab. service only on steam locomotives; 1910.95. The MTA/Long Island Railroad Under an alternative scope provision however, FRA instead used the term (LIRR) submitted comments on this that the RSAC Working Group ‘‘historic equipment,’’ thereby provision. LIRR believes that this rule considered at the NPRM stage, OSHA’s encompassing in the definition diesel will cause them to administer a hearing regulations would have applied to these locomotives and other antiquated conservation program to a much larger employees when they were outside the equipment typically used in tourist and percentage of their workforce than they cab, and FRA’s regulations would have scenic operations, in addition to steam currently do and that it will have a applied to these employees when they locomotives. significant monetary cost and with a were inside the cab. The employee FRA added this historic equipment greatly increased administrative burden. would have had to switch back and exception as a result of a Working They explained that they would forth between OSHA’s and FRA’s Group member’s comment during a pre- probably be forced to reallocate hearing conversation programs NPRM meeting. The member explained resources to the detriment to other throughout the year. FRA believes this that a railroad will occasionally hire a aspects of operations, which in turn, would have been both illogical and contractor with special expertise to could affect the service it provides to unworkable. operate a steam locomotive for one or the general public. This section identifies groups of two days as part of a special excursion FRA believes the scope of this rule is employees to whom this subpart does operation. The member was concerned appropriate and is leaving it as not apply. This rule will not extend to that the railroad would have to place proposed in the NPRM. LIRR provided employees who occasionally and briefly those temporary, contract employees in no reason why the rule would enter the cab. That includes employees a hearing conservation program. At the necessitate inclusion of a much larger who move equipment only within the recommendation of the Working Group, portion of their workforce in a HCP. confines of locomotive repair or FRA decided to include this exception. Based upon the typical cab environment servicing areas protected by blue signals Pursuant to this provision, those on LIRR and similar commuter (see § 227.101(a)(1)(i)) or who move contractors are exempted, because they railroads, FRA does not believe that will

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be the case. To the extent LIRR ensures that the hearing conservation equipment, procedures, trained employees are exposed above the action program addresses the full noise personnel, and reporting techniques of a level, as a Federal grantee and public exposure that is experienced by noise-monitoring program have existed benefits corporation of the state of New employees who are within the scope of for decades.’’ By contrast, LIRR, York, LIRR bears at least the same this rule. indicated that the 12-month-period is a responsibility to its employees as other Section 227.103(a) provides the short time frame and recommended that railroads. Finally, FRA notes that this general requirement that all railroads FRA allow for 24 months instead. rule is the product of the RSAC, of must develop and implement a noise FRA has decided to retain the phase- which railroad representatives monitoring program. FRA used the in dates that FRA proposed in the including APTA, were members. The provision from OSHA’s rule as a starting NPRM. FRA is providing smaller railroad representatives on the RSAC point and then tailored it to suit FRA’s operations with extra time to comply, Working Group noted that most needs. FRA identifies dates by which because FRA understands that they are railroads already had HCPs and so as a railroads must develop their programs. in a unique situation. Smaller practical matter, this rule would not be The dates are staggered based on operations lack the resources, overly burdensome on railroads. railroad size, giving smaller railroads manpower, and money of larger more time and larger railroads less time operations. In addition, FRA is required, Section 227.103 Noise Monitoring by law, to consider the impact of its Program to develop a noise monitoring program.46 FRA provides railroads with regulations on smaller entities. SBREFA Railroad noise monitoring programs a defined purpose for the noise requires agencies to employ entail a system of monitoring that monitoring program—that is, ‘‘to communication, enforcement, and evaluates employee noise exposure. determine whether any employee regulatory systems that consider the Noise monitoring is performed for one covered by the scope of this subpart unique aspects of small entities. or more of the following reasons: To may be exposed to noise that may equal SBREFA specifically provides that determine whether hearing hazards or exceed an 8-hour TWA of 85 dB(A).’’ agencies should avoid ‘‘one size fits all’’ exist; to ascertain whether noise Note that FRA has changed the enforcement and regulatory programs presents a safety hazard by interfering organization of this section since the and should, to the extent possible, with oral communication; to ascertain proposed rule in order to make the rule minimize unnecessary economic whether noise presents a safety hazard easier to understand, however, the burdens. One of the SBREFA’s by impairing recognition of audible substance of the section remains the suggestions is that agencies use phase- warning signals; to identify which same. FRA received several comments in implementation dates to permit employees need to be included in a about the phase-in implementation gradual compliance where no hearing conservation program; to define dates found in § 227.103(a). The immediate safety risk exists, and that is and establish the amount of hearing comments fell on both side of the issue. what FRA has done here. protection that is necessary; to evaluate The specific dates in this rule are Several of the commenters, including specific noise sources for noise control based on FRA’s assessment of the ASHA, AIHA, NHCA, and Theresa purposes; and to evaluate the success of current resources and abilities of the Schulz, suggested that FRA has given noise control efforts. railroad industry, as well as FRA’s railroads too much time with these FRA’s rule requires railroads to assessment of employee safety. FRA implementation dates. AHSA and develop and implement a noise believes these phase-in dates are the several individual ASHA members monitoring program by a specific date; most appropriate since they strike a suggested that all aspects of the rule be the date varies depending on the size of balance between employee safety and phased in within 12 months of the the railroad. The noise monitoring the practical realities of current railroad program is intended to determine effective date of the rule. They operations. As a practical matter, too, whether an employee’s exposure to explained that the Small Business 47 many, if not most, railroads already noise may equal or exceed an 8-hour Regulatory Enforcement Fairness Act have hearing conservation programs in time-weighted average of 85 dB(A). (‘‘SBREFA’’) supports phase-in dates, place, and so employees will not be Factors which suggest that noise but only where there is no immediate completely unprotected during the exposure in the cab may meet or exceed safety risk. They believe there is an phase-in months. Furthermore, these a TWA of 85 dB(A) include: employee immediate safety risk for railroad dates are based upon the consensus complaints about the loudness of the operating employees. Theresa Schulz agreement of the affected parties (e.g., noise, indications that train employees wrote that there is significant evidence union and railroad representatives) as are experiencing hearing loss, noisy showing that excessive noise levels ‘‘can part of the RSAC. For all the reasons conditions that make conversation impair mental processes, increase discussed here, FRA has provided difficult, and route-specific or fatigue, and increase the number of phase-in implementation dates here and locomotive-specific factors that suggest errors, while simultaneously decreasing in two other locations in this proposed the possibility of an excessive noise vigilance.’’ NHCA suggested that FRA rule: in § 227.109(e)(2) (audiometric dose. In addition, actual workplace give railroads 12 to 18 months to testing) and § 227.119(b) (training). noise measurements can indicate that comply with the rule. NHCA stated that Also of note regarding the phase-in railroad should initiate a monitoring 18 to 30 months appears to be an implementation dates is FRA’s use of an program. ‘‘indulgence,’’ given that ‘‘the alternate size standard. Rather than use FRA’s noise monitoring requirements the size standard promulgated by the cover noise in cabs and noise in exterior 46 Class I, passenger, and commuter railroads Small Business Administration 48 or the have 12 months from the effective date of this rule environments in which employees work to establish a noise monitoring program. Railroads size standard adopted in FRA’s ‘‘Final during their work shifts. FRA’s rule with 400,000 or more annual employee hours, but Policy Statement Concerning Entities involves the monitoring of some that are not a class I, passenger, or commuter employees whose daily functions are railroad have 18 months to comply. Railroads with 48 The SBA Table of Size Standards specifices fewer than 400,000 annual employee hours have 30 entirely outside of the cab and some that line-haul railroads with 1,500 or fewer months to comply. employees and short-line railroads with 500 fewer employees whose daily functions are 47 Pub. L. No. 104–121, 110 Stat. 857 (codified at employees are considered small businesses. 13 CFR both inside and outside of the cab. This 5 U.S.C. § 601 et seq.). 121.201.

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Subject to the Railroad Safety Laws,’’49 Cooper Tire’s comment is similar to employee noise dose. Several FRA is using an alternate size standard the doseBuster Company’s comment commenters responded in support of the that implicitly defines a small business about alternative prevention strategies. 140 dB upper limit, all of whom as a railroad with fewer than 400,000 As discussed above in section IV(B), the explained that technology has improved annual employee work hours. doseBusters Company advocated the use considerably since OSHA promulgated Accordingly, FRA has identified three of their ESP system, which includes its general industry standard and that categories of railroads and given the continuous monitoring. FRA does not technology now supports the 140 dB smaller railroads more time to comply. believe it is necessary to mandate upper limit. ASHA explained that FRA sought approval from the SBA in continuous monitoring. Sampling is a ‘‘today’s dosimeters and integrating a January 11, 2005 letter for the use of well-established and widely-accepted sound level meters are capable of this alternate size standard and received statistical principle. In addition, FRA dynamic ranges from 80 dB to 140 dB,’’ that approval from SBA Administrator does not believe it is appropriate to link and AAA explained that ‘‘modern Hector V. Barreto in a May 12, 2005 any requirement (e.g., continuous sound level measurement systems now letter. (Copies of the letters are included monitoring) to individual commercial routinely integrate noise levels to 140 in the docket). products. Finally, FRA believes that the dB(A).’’ NIOSH made an additional FRA has decided to use this alternate costs of continuous monitoring would point, explaining that ‘‘impulsive-type size standard for several reasons. First, outweigh any benefits. If railroads were noise may frequently exceed 130 dB the specific safety problem at issue here to employ continuous monitoring, their peak SPL’’ and so ‘‘limiting is employee health and specifically compliance with other portions of the measurements to 130 dB may exclude employee hearing. An employee hours regulation (e.g., recordkeeping) could be the most harmful events in a given definition is most appropriate given that very burdensome. exposure and seriously underestimate a the nature of the safety issue is Please note that while FRA does not worker’s risk of hearing loss.’’ Wilson, protecting employee hearing. Second, require the use of continuous Ihrig, & Associates, an acoustical FRA can more readily identify a monitoring, FRA also does not prohibit consulting firm, responded that the railroad’s size according to annual its use. Railroads are free to employ upper limit should be at least 140 dB. employee hours, because FRA collects continuous monitoring if they so wish. Only one commenter, the AAR, did data related to annual employee hours. Section 227.103(c) specifies how not support the 140 dB upper limit. The See 49 CFR part 225. Furthermore, railroads should conduct noise AAR explained that ‘‘most AAR FRA’s safety inspectors and industrial measurements. Section 227.103(c)(1) members already own equipment that hygienists have easy access to this data requires all continuous, intermittent, was purchased to comply with existing through FRA’s safety data Web site. By and impulsive sound levels from 80 dB OSHA rules. Some of this equipment is contrast, FRA does not maintain to 140 dB to be integrated into the noise old enough that it will not have the updated information identifying measurements. FRA has changed this increased range.’’ Without evidence that railroads by class. Third, FRA has provision in the final rule by increasing the expanded range would yield successfully used this definition in its the upper limit from 130 dB to 140 dB. benefits outweighing the costs, the AAR regulations in the past. See 49 CFR In the proposed rule, FRA used an thought FRA should not increase the 217.9 and 49 CFR 220.11. Fourth, FRA 130 dB upper limit. FRA had adopted range. At the RSAC Working Group meeting, believes that the SBA size standard, that limit from OSHA though with the members discussed the capabilities which would encompass 650 railroads, reservation. In the NPRM, FRA of railroads with respect to this would be over inclusive. FRA’s alternate explained that, while OSHA’s 1981 equipment. Members acknowledged that size standard encompasses 634 general industry noise standard used a 130 dB upper limit, OSHA wrote in the this change would impose neither an railroads. Section 227.103(b) discusses administrative nor an economic burden. sampling strategy. Aside from some preamble that its intent was to increase the upper limit to 140 dB as dosimeters Given OSHA’s statement in its 2002 minor language changes, it is identical ANPRM, the RSAC consensus, and the to OSHA’s provision, which is found in were improved and became readily available.50 According to OSHA in the widespread belief among commenters 29 CFR 1910.95(d)(i) and (ii). Cooper that modern technology supports this Tire commented on FRA’s statistical preamble to the 1981 standard, the decision to use the 130 dB upper limit change, FRA raised the upper limit to approach, advocating that FRA employ 140 dB. FRA notes that noise a 100 percent monitoring program. was the result of technological limitations on sound level meters and monitoring data conducted prior to this Cooper Tire noted that 100% rulemaking (i.e., with the upper limit of monitoring technology, which did not dosimeters. In addition, FRA explained in the NPRM that it had looked to 130 dB(A)) is still good data. exist when FRA began proceedings for On a related matter, Wilson, Ihrig, & OSHA’s 2002 Advance Notice of this rule seven years ago, is now Associates submitted comments on the Proposed Rulemaking (ANPRM) for a available and can provide continuous lower limit. Wilson, Ihrig, & Associates Hearing Conservation Program for weighted eight hour noise data. Cooper asserted that there should be no lower Construction Workers,51 in which Tire explained that new technology limit. They explained that ‘‘there is no OSHA noted that ‘‘most, if not all, of permits the capturing and transmitting practical reason for limiting the lower today’s noise dosimeters and integrating of data continuously. They also noted range to 80 dB(A), as the levels below sound level meters are capable of that railroads could measure all this range contribute little to the total dynamic ranges from 80 dB to 140 locomotives for compliance noise dose.’’ FRA has decided not to dB.’’ 52-53 automatically, thereby relieving the remove the lower limit. FRA does not FRA sought comment on whether 130 railroads from having to collect the data believe there is any justification dB or 140 dB was the appropriate upper as proposed in the rule. supporting such a change. Given that limit for calculating railroad operating there is little contribution to dose by 49 68 FR 24, 891 (May 9, 2003). This Policy levels below 80 dB(A), given that Statement defines a ‘‘small entity’’ as a railroad that 50 See 29 CFR 1910.95(d)(2)(i). meets the line haulage revenue requirements of a 51 See 67 FR 50610 (August 5, 2002). eliminating the lower level is not a Class III railroad (i.e., a railroad with annual 52 ndash;53 See 67 FR 50610, 50605 (August 5, commonly accepted practice, and given oeprating revenue of $20 million or less). 2002). that it could potentially result in a

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heavy financial burden (e.g., complying While the rule provides that a railroad require hearing protectors and those that with this provision might require the re- may use either a noise dosimeter, SLM, do not. FRA fully recognizes that no design of dosimeters, SLMs, and or iSLM to conduct noise sustainable amount of monitoring could iSLMs), FRA sees no reason to mandate measurements, it also permits a railroad support a job-by-job analysis at all such a change. to use any combination of those locations on the railroad. FRA also Section 227.103(c)(2) specifies that instruments. Using several instruments recognizes that such a level of railroads shall take noise measurements helps to develop a more complete monitoring is not appropriate given the under typical operating conditions picture of the noise environment, objective of the hearing conservation using a sound level meter (SLM), because the instruments provide program. integrating-averaging sound level meter different information. A SLM and an Examples of situations where hearing (iSLM), or noise dosimeter. The iSLM measure the sound levels at fixed protection may be omitted include: (1) instrumentation should meet the locations in the cab and during transient Cabs designed for sound reduction. appropriate standard set forth by ANSI; events (e.g., application of the alerter, These cabs should be monitored over these standards set performance and brakes, or horn). They also characterize time on a sample basis to ensure that accuracy tolerances. An SLM used to the emissions of suspected noise their noise-insulating qualities continue comply with this part shall meet ANSI sources (e.g., vibrating panels). A noise to function as intended; and (2) S1.4–1983 (Reaffirmed 2001), dosimeter and an iSLM measure an ‘‘Ground’’ assignments where ‘‘Specification for Sound Level Meters.’’ employee’s overall noise exposure. An employees work around moving An iSLM used to comply with this part iSLM is particularly useful, because it equipment but have limited exposure to shall meet ANSI S1.43–1997 characterizes the contribution of loud and persistent noise sources such (Reaffirmed 2002). A noise dosimeter transient events to an employee’s as locomotives or retarders. used to comply with this part shall meet overall dose. A noise dosimeter, which Aearo Company commented on ANSI S1.25–1991 (Reaffirmed 2002), is worn by the employee, is useful § 227.103(e), asserting that it is ‘‘Specification for Personal Noise because it accumulates all the noise redundant with §§ 227.103(b) and 227.115. FRA does not believe these Dosimeters.’’ Each instrument should be exposure data from an employee’s work provisions are redundant, for they serve set to an A-weighted SLOW response. shift. From that, a tester can determine an employee’s noise dose during a work different purposes. Section 227.103(b) Section 227.103(c)(2), for the most addresses the sampling strategy for the part, is adopted from FRA’s previous shift. Section 227.103(c)(3) specifies that all noise monitoring program, § 227.103(e) noise standard (i.e., the previous instruments used to measure employee identifies one of the factors that § 229.121(d)). Note, however, that FRA noise exposure shall be calibrated to employers need to consider when has added the ANSI standard for noise ensure accurate measurements. This administering the noise monitoring dosimeters, updated the ANSI standard paragraph is the same as OSHA’s program, and § 227.115 identifies the for SLMs (from ANSI S1.4–1971 to provision, which is found in 29 CFR levels at which railroads must require ANSI S1.4–1983 (Reaffirmed 2001)), and 1910.95(d)(2)(ii). FRA received no HP use. included a reference and citation to comments on this section and it remains In the proposed rule, FRA listed iSLMs. In doing so, FRA has made this the same as proposed in the NPRM. several benefits that accrue when regulation more current and Section 227.103(d) provides that a employees refrain from over-using comprehensive. railroad shall repeat noise monitoring hearing protectors. That list included In conformance with Office of whenever there is a change in operation, the following: reducing the danger of Management and Budget (OMB) Revised process, equipment, or controls that infection from the misuse of HP; Circular A–119 (February 10, 1998), increases noise exposures to the extent strengthening overall employee FRA is using voluntary national that either: (1) Additional employees compliance with HP use by focusing consensus standards here and in several may be exposed at the action level, or requirements where it makes a other locations throughout the rule. (2) the attenuation provided by the difference; and maximizing the FRA’s use of standards established by hearing protectors may be inadequate to availability of auditory cues associated other organizations such as ANSI is a meet the requirements of § 227.103. This with the movement of equipment among means of establishing technical paragraph is the same as OSHA’s ground personnel, which results in requirements without increasing the provision, which is located at 29 CFR improved personal safety. volume of the Code of Federal 1910.95(d)(3). FRA received no Aearo Company commented on this Regulations. See 1 CFR part 51. In this comments on this section and it remains preamble discussion, asserting that final rule, FRA has used the most the same as proposed in the NPRM. some of those items, specifically a current version of each ANSI standard, Section 227.103(e) provides that, in reduction in the danger of infection and however FRA understands that over administering the monitoring program, a a strengthening of overall compliance, time, ANSI will revisit these standards railroad shall take into consideration the were not benefits of refraining from and likely update them. FRA intends to identification of work environments overuse of HP. Regarding infections, regularly update the rule, most likely where the use of hearing protectors may Aearo Company cited a 1985 through the use of technical be omitted. This provision is unique to monograph that found that regular amendments, in order to incorporate FRA’s rule; no comparable provision wearing of HP does not normally ANSI’s newer standards. Note that in exists in OSHA’s standard. The purpose increase the likelihood of contracting an the NPRM, FRA had proposed to adopt of this provision is to ensure that ear infection. Regarding compliance, successor standards. Given the Federal railroads do not excessively rely on Aearo Company explained that law requires that a publication reflexive use of hearing protectors when compliance improves, not by ‘‘having incorporated by reference be identified structuring their hearing conservation less people wear [HPs] in less by its title, date, edition, author, programs. FRA believes that well applications,’’ but by developing a publisher, and identification number, managed programs already focus on this hearing conservation culture and FRA amended this final rule to issue, incorporating such monitoring as empowering employees to believe they incorporate the current standards only. necessary, to determine general can make a difference in protecting their See 1 CFR 51.9(b)(2). categories of work assignments that hearing.

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Aearo’s comments generated a great § 227.103(g)(2), requires railroads to information on the particulars of that deal of discussion at the post-NPRM post monitoring results. The posting train, i.e., car counts, the number of RSAC Working Group meeting. Aearo should include sufficient information to loaded cars, the number of empty cars, Company had presented data which permit other crews to interpret the the length of the train, tonnage, and shows it will not cause an infection. meaning of the results in the context of power consist details. The monitoring Several members presented information the operations monitored. The circumstances are useful, as well, at the RSAC Working Group meeting information is intended to help crews because they convey the specifics of the suggesting that overuse of HP can cause and labor officials to understand the railroad’s monitoring efforts. an infection. Overuse of HP may or may conditions under which the monitoring Section 227.103(g) is the product of not cause ear infections. Without further was conducted. There are a wide range extensive RSAC Working Group study or more conclusive data, FRA is of data elements that a railroad could discussions. It reflects a compromise of unable to reach any conclusions about include in its posting. FRA believes that labor and management concerns. To the danger of ear infections from HP. the railroad should include enough reach this compromise, the RSAC With respect to compliance, FRA, in information so that the monitored crew, Working Group considered numerous conjunction with the RSAC Working as well as other crews, are able to proposals concerning monitoring Group, has determined that there are understand, interpret, and assess the observations and reporting. The RSAC compliance benefits from refraining results of the monitoring. Theresa Working Group’s initial proposals did from overuse of HP. Overprotection can Schulz commented on this provision, not include an observation provision erode compliance. Where an employee commending FRA for requiring and instead focused on reporting is instructed to wear HP at all times and railroads to post noise measurements requirements. One proposal, without an in all circumstances, it creates the results ‘‘in an ‘understandable way’ so observation requirement, required a impression for the employee that the HP that employees are aware of the hazard railroad to notify each employee requirement is just a pro forma and what they can do to protect exposed during a monitored exposure, requirement, not part of a larger themselves.’’ as well as the employee’s designated program designed to protect their In order to make the posting representative, of the results of the hearing. With that mindset, the meaningful and understandable to monitoring. A variation to that proposal employee is less likely to wear HP. This crews, railroads should include required a railroad to notify each is particularly significant for information on the following types of employee and employee’s representative transportation employees who are not data elements: (1) A description of the upon written request by the employee. subject to direct supervision during monitoring event: The date of the Another proposal, also without an most of their work shift. monitoring, the start time and end time observation requirement, required In short, FRA has included of the monitoring, the locations of the railroads to provide the monitoring § 227.103(e) to ensure that railroads do beginning and end of the monitoring; information to the president of each not overuse HP. FRA wants to ensure the assignment or train identification labor organization that represented that there is not an excessive reduction number or train symbol; the locomotive monitored employees. In yet another in hearing from the use of HP such that consist (including locomotive numbers, proposal, railroads would have been it interferes with employee models, and dates of manufacture); and required to submit to FRA an annual communication and with auditory cues a train profile (including car counts, summary of its noise monitoring related to job duties. length of train, tonnage, and power activity. FRA would then have made Section 227.103(f) specifies that a consist details); and (2) circumstances of this information publicly available. railroad shall provide affected the monitoring: Number of crew In the end, the RSAC Working Group employees or their representatives with members monitored, job title(s) of the recommended, and FRA adopted, this an opportunity to observe any noise crew members monitored, duration of provision which retains the observation dose measurements conducted pursuant crew member exposure, number of crew provision contained in OSHA’s to this part. This parallels OSHA’s members monitored, placement of provision located at 29 CFR 1910.95(f). provision, which is found at 29 CFR measurement equipment, results of the In addition, the RSAC Working Group 1910.95(f). FRA received no comments monitoring, and the equipment used for recommended, and FRA adopted, the on this section and it remains the same monitoring. requirement that railroads shall notify as proposed in the NPRM. These data elements are useful, monitored employees of the results of Section 227.103(g) identifies a because they contain information on monitoring (irrespective of the TWA) railroad’s obligation for reporting items and conditions that can impact and shall post monitoring results at monitoring results to employees and the noise level in the locomotive cab. appropriate crew origination points. their representatives. There are two The date of monitoring is important, FRA believes this provision is the most components to this reporting provision. because it indicates the time of year of effective one, because it satisfies both The first component is § 227.103(g)(1), the monitoring, which in turn indicates labor’s request for access to information which requires railroads to notify each general weather conditions (e.g., it was and management’s request for a monitored employee of the results of the likely that there was ice on the rail). The reasonable and practical means of monitoring. This is similar, but not start and end time indicate the length of complying with the observation and identical, to OSHA’s notification the crew exposure to noise. The location reporting provisions. FRA did not provision located at 29 CFR 1910.95(e). of the monitoring indicates the receive any comments recommending Whereas OSHA requires an employer to topography of the specific run (e.g., that FRA revise this section and so it notify each employee that is exposed at there were many hills, curves, or closed remains the same as proposed in the or above an 8-hour TWA of 85 dB(A) of embankments). The assignment or train NPRM. the results of his or her monitoring, FRA identification number or train symbol requires a railroad to notify each indicate the type of equipment and the Section 227.105 Protection of monitored employee, irrespective of his make-up of the train. The locomotive Employees or her exposure. consist provides information which can In this section, FRA establishes the The second component of this be used to figure out tractive effort. The permissible noise exposures for railroad reporting provision, which is found at train profile provides specific employees. These limits are the same as

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FRA’s previous noise standard, OSHA’s AIHA also commented on run. In other words, if the industrial permissible noise exposures (29 CFR § 227.105(a). They suggested that FRA hygienist were to maintain a log during 1910.95(a), Table G–16), and OSHA’s add a requirement for a 140 dB the run in which he documented all occupational noise exposure limits (29 unweighted peak limit in Table 1 to noise sources he observed, (e.g., horn, CFR 1926.52(a), Table D–2). § 227.105. They asserted that ‘‘this grade crossing bell), and he later Section 227.105(a) prescribes the would eliminate exposures to high-level discovered that there were additional noise exposure limits and requires impulse noise, which is not captured unexplained events (over 115 dB(A)) in railroads to provide appropriate with current SLMs.’’ As discussed in the the noise monitoring data, he could protection if employees are exposed to preceding paragraphs, FRA has removed remove those unexplained events. Of noise that exceeds those limits. The Table 1 in this final rule. Accordingly, course, the industrial hygienist only has limits are identified in Appendix A to this issue became moot. However, FRA the option of removing those noise part 227. For purposes of clarity, FRA notes that FRA did add an entry for 140 events where the records of his or her has slightly revised § 227.105(a). FRA dB in Table A–1 to Appendix A. direct observations do not show a noise replaced the phrase ‘‘as measured on the Section 227.105(b) addresses the event at the time the artifact appears in dB(A) scale as set forth in Appendix A’’ treatment of measurement artifacts the record. with ‘‘as measured according to when assessing exposures exceeding FRA decided to retain the provision § 227.103.’’ FRA believes that re- 115 dB(A). Artifacts include events such whereby railroads have the option of wording more accurately captures the as unintentionally coughing into or removing artifacts, because FRA wanted requirement of that section. In addition, brushing against the dosimeter to address Working Group members’ since Table 1 contained information that microphone. Artifacts cause the noise concerns. FRA does not want members is equivalent to the information in level to spike, which, in turn, results in to be in a predicament where they try Tables A–1 and A–2 in Appendix A, higher overall noise dose levels. to identify an artifact and are unable to This provision has undergone several FRA has removed Table 1 from this do so. Moreover, FRA believes that, changes. The initial version required section and referred readers to the limits from a statistical perspective, it makes railroads to remove measurement in Appendix A. Related to that, FRA has sense to remove the artifacts. It is artifacts. The sentence provided that taken the provision on impulsive or accepted scientific practice to remove ‘‘the apparent source of the noise impact noise from the footnote to Table directly observed artifacts from any data exposures shall be noted and 1 and has put it into section I of set, because artifacts will affect other measurement artifacts shall be statistical aspects of the data such as the Appendix A to this part. With respect to removed.’’ During pre-NPRM meetings, variance. FRA recognizes that data Appendix A, FRA has made some a railroad representative explained that manipulation is a concern when data additional clarifying edits, e.g., use the while he wants to remove all artifacts, editing is allowed, however, FRA hopes term ‘‘work day’’ throughout the he is concerned about a getting into a that it can rely on the professionalism appendix as opposed to alternating predicament where he tries to identify of the individuals testing employees and between ‘‘work shift’’ and ‘‘work day;’’ an artifact but is unable to do so. Unable that those individuals will not replace ‘‘reference duration’’ with to identify the artifact, he would be manipulate the data. Finally, FRA ‘‘duration permitted,’’ add an entry for unable to remove it. To accommodate intends to develop a compliance guide 140 dB in Table A–1, etc. All of these that concern, the version in the NPRM that provides direction to its inspectors changes are drafting clarifications and gave railroads the option of removing on how it intends on enforcing the as such, they were not part of the RSAC measurement artifacts. The sentence various elements of compliance. This consensus. provided that ‘‘the apparent source of guide will be available to the regulated More significantly, FRA has added a noise exposures shall be noted and community as well as the public when provision on deadheading in section I of measurement artifacts may be it is finalized after the final rule is Appendix A. Both Wilson, Ihrig, & removed.’’ Aearo Company submitted published. Associates and NHCA had suggested comments on this provision. Aearo Practical concerns aside, FRA that FRA add language in the rule to Company acknowledged that the maintains that it is in the best interest address deadheading. RSAC Working opportunity to remove measurement of a railroad to remove measurement Group and FRA agreed with the artifacts is reasonable on the surface. artifacts. Artifacts are not experienced comment. FRA addressed this issue in However, they believe it is unnecessary, as noise exposure by the employee, and section (I)(D), which provides that, and they are concerned that if done so they should not be included in an when calculating the noise dose, a carelessly or with bias, it could employee’s noise dose. railroad shall include any time that an materially distort the data. With respect to this provision, FRA employee spends deadheading. In the final rule, FRA requires has made a one additional minor Deadheading is a practice unique to the railroads to observe and document the change. Since FRA removed Table 1 railroad industry. It refers to the time apparent source of noise exposures and from § 227.105(a), FRA removed the when railroad employees are being allows them, but does not require them, reference to Table 1 in § 227.105(b). transported (whether by van, taxi, to remove measurement artifacts. This Section 227.105(c) provides that locomotive, or other vehicle) between artifact removal provision addresses employee exposure to continuous noise their home base and a point where they only those phenomena that result in shall not exceed 115 dB(A). Paragraph begin or end operation of a train. peaks above 115 dB(A) as recorded by (c) contains the same requirement that Although these employees are not a dosimeter. Where an industrial had been located in FRA’s previous operating a train when deadheading, hygienist (or other appropriately noise regulation at § 229.121(c). they continue to be exposed to noise. qualified individual) is present in a Section 227.105(d) addresses Since noise dose is based on time of locomotive cab during a monitoring run continuous noise exposure above 115 exposure as well as intensity of and observes the noise events to which dB(A). This requirement differs from exposure, railroads must consider the a monitored individual is subject, the OSHA’s standards. OSHA prohibits time employees spend deadheading in industrial hygienist has the option of unprotected exposures above 115 dB(A) locomotives when calculating an removing noise sources that cannot be (See 29 CFR 1910.95(a) and 29 CFR employee’s noise dose. explained by his or her record of the 1926.52(a)). By contrast, FRA permits

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very brief exposures to continuous noise this short cumulative time limit will programs. Section 227.109(a) sets out (which is defined as noise that exceeds effectively distinguish incidental, and the general requirement that each one second) between 115 dB(A) and 120 perhaps unavoidable and necessary railroad shall establish and maintain an dB(A) as long as the total daily duration noise exposures, from longer exposures audiometric testing program as set forth does not exceed 5 seconds. that stem from undesirable noise in this section and include employees Wilson, Ihrig, & Associates overexposure found in deficient rolling who are required to be included in a commented on this provision, stating stock that should not be in use. hearing conservation program pursuant that there is no practical reason for to § 227.107. FRA has made one Section 227.107 Hearing Conservation relaxing the standard. Wilson, Ihirg, & clarifying change to this section. Section Program Associates believes that ‘‘it results in a 227.109(a) of the NPRM had contained lax standard and one that does not Section 227.107 sets out the the phrase ‘‘by making audiometric tests encourage railroads to reduce the noise requirement that railroads establish a available to all of its employees.’’ levels that their employees are exposed hearing conservation program for all Because one of the paragraphs in this to.’’ They explained that this provision employees exposed to noise at or above section (see § 227.109(f)) specifically might be acceptable if FRA were to the action level. It also provides that addressed this issue, FRA thought it was adopt a 3 dB exchange rate, but that is railroads shall compute employee noise confusing and unnecessary to include not the case. Wilson, Ihirg, & Associates exposure in accordance with the tables this phrase here, and so FRA removed believe that FRA’s logic for relaxing the found in Appendix A and without this phrase. In place of that phrase, FRA standard is faulty—i.e., that FRA has no regard to any attenuation provided by included language clarifying that the technical justification for this change the use of hearing protectors. Since the railroad shall include in the audiometric ‘‘other than the fact that these noise RSAC consensus, FRA made some testing program all employees who are levels occur, so these levels can be drafting changes to better clarify the required to be included in the HCP. allowed to exist.’’ provisions of this section. FRA divided Section 227.109(b) provides that RSAC Working Group discussions on the section into two separate audiometric tests shall be provided for this matter had revealed that some paragraphs. FRA added an explanatory employees, at no cost to employees. members did not wish to penalize the clause (‘‘required by § 227.103’’) when This paragraph refers only to the railroads for these brief unavoidable referring to the noise monitoring audiometric test itself. It does not refer excursions above 115 dB(A). At the program. FRA revised § 227.107(a) to to additional costs that an employee same time, other RSAC members did not reflect the fact that the hearing might incur, e.g., missed trips or missed wish to stray, to any great extent, from conservation program is set forth in work time as a result of the test. FRA the existing OSHA standard. It should §§ 227.109 through 227.121, not just in received no comments on this section be noted, however, that certain RSAC § 227.121. In addition, since FRA has and it remains the same as proposed in Working Group members expressed the removed Table 1, FRA removed the the NPRM. view that there may be health effects reference to Table 1 in this section. The Section 227.109(c) requires that associated with longer exposures over drafting changes aside, § 227.107 is the appropriate professionals or qualified 115 dBA, while other RSAC Working same as the comparable provision found technicians administer the audiometric Group members contended that health in OSHA’s standard at 29 CFR test. FRA received several comments on effects will not occur until much higher 1910.95(c). this provision. Commenters included noise levels. FRA received one comment on this ASHA, AAA, AIHA, CAOHC, NHCA, At the proposed rule stage, FRA section. The doseBusters Company Aearo Company, and Theresa Schulz. determined that it was necessary to requested that FRA clarify the meaning The comments were very similar in relax OSHA’s standard because of the of the last sentence in § 227.107. The nature. operational realities of railroading and doseBusters Company asked: ‘‘Is the With respect to physician the resulting safety implications. FRA intent to prohibit any adjustment to the qualifications, the commenters stated stands by those reasons and thus is dose measurement, based on the hearing that it is unwise to let any physician leaving this provision as proposed. As protector manufacturer’s published administer or supervise audiometric explained in the proposed rule, in the attenuation data? FRA believes that the testing. Because there is a wide range of railroad industry, it is generally language (which is the identical medical specialities, and because recognized that very brief excursions language which OSHA uses) speaks for hearing testing and hearing conservation above 115 dB(A) sometimes occur in the itself. The relevant portion of the last program management are not usually cab. For the most part, these noise sentence of § 227.107 provides that: part of medical training programs, most exposures are brief, non-recurring ‘‘Noise exposure shall be computed physicians are not well-informed on the events. Some of these excursions are * * * without regard to any attenuation details of hearing, its measurement, and due to external conditions that may be provided by the use of hearing its impairment. Theresa Schulz went difficult, or unwise, to prevent. The protectors.’’ This means that a further, suggesting that FRA require sounding of the locomotive horn is a professional reviewer should not adjust physicians to attend training on how to prime example. The locomotive horn is an employee’s exposure dose based on supervise the audiometric testing a safety device used to warn the public any attenuation provided by the portion of a hearing conservation and railroad employees of oncoming employee’s hearing protection. Or as the program. train traffic. If the horn is used while Working Group answered the question, With respect to technician cab windows are open or while the cab ‘‘You do not adjust the dose based on competency, all of the commenters is adjacent to reflective surfaces, the the hearing protection worn by the shared the same basic concern. They noise level in the cab may exceed 115 employee.’’ In short, the answer to the disagreed with the second method that dB(A). FRA would not want to eliminate doseBuster Company’s question is, yes. FRA permitted in the NPRM for the sounding of the horn, however, qualifying technicians (i.e., allowing because the horn is very important to Section 227.109 Audiometric Testing technicians to demonstrate their safe rail operations. Unfortunately, then, Program competence to a audiologist, these types of noise exposures are This section sets out the requirements otolaryngologist, or physician). The unavoidable. FRA has concluded that for railroad audiometric testing commenters think it contributes to the

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weakening of the competence of the has experience and expertise in hearing audiometric tests, has experience personnel conducting the audiometric and hearing loss. (Italics indicate conducting audiometric tests, and has tests. They questioned whether a revised language). ‘‘Experience and demonstrated success in audiometric technician who had merely expertise’’ means that the individual has conducting tests. Consistent with this ‘‘satisfactorily demonstrated the knowledge and skills to conduct change, FRA added a definition of competence’’ would be skilled enough audiometric tests, has experience Professional Supervisor to the to perform some of the necessary duties, conducting audiometric tests, and has Definitions section (§ 227.5). However, e.g., problem solving for judgment calls demonstrated success in audiometric FRA used a different definition than encountered during testing or serving as conducting tests. that suggested by commenters. Several a resource for employees with FRA did not, however, add a commenters had suggested that FRA questions. provision requiring physicians to attend define a Professional Supervisor as ‘‘an As an alternative, the commenters training on how to supervise the audiologist, an otolaryngologist, or a suggested that the rule only allow audiometric testing portion of a HCP. physician who supervises the technicians to be qualified by the first FRA did not think it was necessary to audiometric testing program, reviews method (i.e., successful completion of require that training, especially given audiograms, and reviews audiometric the CAOHC certification requirements). the addition of the ‘‘experience and tests.’’ Rather than focus on the tasks They explained that CAOHC has a board expertise’’ requirement. By requiring involved in being an audiologist, FRA of multi-disciplinary professionals that that physicians have ‘‘experience and instead chose to focus on the collectively strive to maintain and expertise,’’ FRA ensures that the doctors qualifications of an audiologist. increase the minimum standard of are knowledgeable about hearing Despite several commenters’ competency. By requiring railroads to conservation and so there is no point to suggestions, FRA did not eliminate the use only CAOHC-certified technicians, also require those doctors to attend second method for qualifying FRA would assure a high level of training. technicians (i.e., satisfactorily quality for this component of the HCP. Second, subsequent to the RSAC demonstrating competence). FRA Also, regarding technician consensus, FRA added a definition for adopted this provision from OSHA’s qualifications, there were a few ‘‘qualified technician’’ to § 227.5 . FRA rule. FRA does not know of any comments about FRA’s decision in the used language from § 227.109(c)(2) of problems with weakened competence NPRM to allow a technician to be the proposed rule for the definition among technicians performing under qualified by CAOHC or any equivalent (though with some modifications, which OSHA’s rule, and so FRA believes it is organization. This differs from OSHA’s are discussed below). FRA believes this appropriate to use it here. Furthermore, standard, which only allows technicians change simplifies the rule. Rather than if FRA were to remove this provision at to be certified by CAOHC. CAOHC repeat the definition throughout the this point in time, FRA would strongly opposed this provision, rule, FRA states it once in the potentially disqualify an entire group of explaining that CAOHC is the only beginning. According to § 227.5, individuals who have been performing national accreditation program of its audiometric tests shall be performed by these tasks (and presumably well) under kind for Occupational Hearing a qualified technician who can become OSHA’s rule for years. However, Conservationists. CAOHC further qualified in one of two ways: (1) By acknowledging that technicians must be explained that § 227.109(c)(2) should successfully completing a course adequately qualified, FRA revised this not include the words ‘‘equivalent designed for the training and second method. As explained above, organization, because there is no certification of audiometric technicians, FRA now requires a technician to be equivalent to CAOHC’s unique or (2) by satisfactorily demonstrating responsible to a Professional Supervisor capabilities.’’ CAOHC pointed out that competence to the Professional who must have experience and MSHA recognized CAOHC’s uniqueness Supervisor of the Audiometric expertise in hearing and hearing loss. in its 1999 rule.54 Monitoring Program in administering FRA anticipates that this will ensure Finally, regarding technician audiometric exams and in the use and that technicians are fully qualified. qualifications, Theresa Schulz care of audiometers. Qualified FRA also retained the provision commended FRA for removing OSHA’s technicians might include trained allowing technicians to be certified by ‘‘unsupportable exemption [from technicians as well as hearing aid an ‘‘equivalent organization.’’ FRA CAOHC certification] for technicians specialists, industrial hygienists, and wants the rule to be forward looking. At using microprocessors.’’ nurses who have the appropriate the time of this final rule, CAOHC is the FRA made three changes to this qualifications. A technician (of either only national accreditation program for provision. Two were the product of qualification type) must be responsible hearing conservationists, however, in RSAC consensus, and one was a drafting to the Professional Supervisor of the coming years, there may be additional clarification that FRA added on its own. Audiometric Monitoring Program. organizations comparable to CAOHC. First, with RSAC consensus, FRA added Third, with RSAC consensus, FRA FRA wants to ensure that the rule has a qualification requirement for modified the qualification requirement the flexibility to accommodate such physicians. According to for technicians. Technicians must be changes. FRA notes that MSHA § 227.109(c)(1), audiometric tests shall responsible to a Professional Supervisor included a comparable phrase in its be performed by an audiologist, of the Audiometric Program, instead of Final Rule on occupational noise otolaryngologist, or other physician who simply an ‘‘audiologist, exposure of miners.55 otolaryngologist, or a physician.’’ A Section 227.109(d) is intentionally left 54 In contrast, Aearo Company and CAOHC Professional Supervisor of the blank. The proposed § 227.109(d) had asserted that MSHA recognized the uniqueness of Audiometric Monitoring Program is ‘‘an CAOHC ‘‘(with no equivalent organization).’’ That addressed audiometric instrumentation, does not appear to be the case. In 29 CFR 62.101, audiologist, an otolaryngologist, or a providing that instruments used for MSHA defines a ‘‘qualified technician’’ as ‘‘a physician with experience and expertise audiometric testing must meet the technician who has been certified by the Council in hearing and hearing loss.’’ As requirements of the Appendix C for Accreditation in Occupational Hearing Conservation (CAOHC), or by another recognized explained above, ‘‘experience and ‘‘Audiometric Testing Requirements.’’ organization offering equivalent certification.’’ expertise’’ means that the individual has (Italics added). the knowledge and skills to conduct 55 See 29 CFR 62.101 and footnote 54 supra.

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Since FRA has removed Appendix C: know what noise environment any railroad should require that employee to ‘‘Audiometric Testing Requirements’’ individual employee is going to wear hearing protection until the from the rule, this regulatory provision encounter on any given day since the railroad can obtain an audiogram. As is now unnecessary. For a discussion of noise level can vary greatly depending explained at the beginning of this FRA’s decision to remove the proposed on several variables, e.g., which paragraph, FRA has already adopted Appendix C, see the section-by-section locomotive, which run, what time of that requirement but located it analysis for Appendix C. day, what geographical characteristics, elsewhere in the rule. Section 227.109(e) provides the etc. As such, it would be difficult for Section 227.109(e)(2) sets out the requirements for baseline audiograms. A railroads to know when they would requirements for establishing baseline baseline audiogram is the reference have to test any given employee. audiograms for existing employees. audiogram to which all future Exacerbating the situation further, it Section 227.109(e)(2)(i) covers existing audiograms are compared. Baseline would be administratively difficult, and employees who have not had a baseline audiograms are necessary, because they potentially very costly, for railroads to audiogram as of the effective date of the can then be used as points of have to plan, schedule, and arrange for rule. Class 1, passenger, and commuter comparison for subsequent audiograms. each individual audiometric test as an railroads, and railroads with 400,000 or Note that FRA has changed some of the employee moves across company more annual employee hours have two formatting of this section since the locations throughout the country. FRA years from the effective date of the rule proposed rule in order to make the rule found, and the RSAC Working Group to establish a baseline audiogram for easier to understand, however, the agreed, that it is necessary and this group of employees. Railroads with substance of the section remains the reasonable to give railroads six months 400,000 or fewer annual employee same. Section 227.109(e)(1) sets out the to obtain a new employee’s baseline hours have three years from the effective requirements for establishing baseline audiogram and to give them one year for date of the rule to establish a baseline audiograms for new employees. A new employees tested on mobile test audiogram for this group of employees. railroad has six months from a new vans. For a further discussion on allowances employee’s first tour of duty to establish FRA also found this allowance for for small entities, see the section-by- a valid baseline audiogram for that new employees to be reasonable because section analysis for § 227.103(a). employee. See § 227.109(e)(1)(i). Where a railroad may not know that a newly ASHA and AIHA did not like the two a railroad uses a mobile test van, a hired employee has exposures that year allowance that FRA gave railroads railroad has one year from a new require baseline audiometric testing for existing employees. They suggested employee’s first tour of duty to obtain a until the employee is assigned to, or that railroads treat existing employees valid baseline audiogram. See bids certain jobs. Once the jobs the without baseline audiograms as if they § 227.109(e)(1)(ii). Pre-employment employee is doing are known the fact were new employees. NHCA likewise audiometric tests can be used as that those jobs have triggering exposures did not like this allowance, suggesting baseline audiograms. requiring inclusion in the Hearing that FRA phase in all aspects of the rule Regarding § 227.109(e)(1), ASHA, Conservation program, and thus a within 12 to 18 months. NHCA wrote AIHA, and Theresa Schulz submitted baseline audiometric test will be known. that SBREFA, which FRA cited to virtually identical comments and In addition, FRA would note that the support the phase-in implementation, opposed several of the provisions. employees covered by the scope of the only applies where no immediate safety Contrary to FRA’s 6 month allowance rulemaking are not highly dosed risks exist. NHCA believes there is an for new employees, they recommended workers, which are more likely to be immediate safety risk here, and so it is that FRA require railroads to complete found in other industries. not appropriate to phase in an audiometric test before the employee Furthermore, the concern underlying implementation dates. works in an environment where sound the comment is that employees need to FRA, along with a Working Group levels are going to be equal to or greater have adequate protection for their recommendation, decided to leave that than 85 dBA or pre-placement. hearing. As a practical matter, provision as proposed in the NPRM. At Similarly, contrary to FRA’s 1 year employees are going to be adequately the NPRM stage, FRA made a decision allowance for new employees tested on protected, because most of them will to distinguish between new employees a mobile test van, ASHA, AIHA, and have had audiometric tests during their and existing employees and to give Theresa Schulz suggested that FRA pre-employment tests. At the post- railroads more time to test existing require railroads to obtain baseline NPRM Working Group meeting, Class 1 employees. That was one of the big audiograms in 90 days for new railroad representatives explained that it differences between OSHA’s rule and employees who are tested on mobile test is common practice for their railroads to FRA’s rule with respect to baseline vans. They explained that ‘‘it is in the use pre-employment tests as baseline audiograms. FRA had specifically employer’s best interest to obtain an audiograms. deviated from OSHA and extended the accurate measurement of an employee’s Furthermore, the commenters’ time frame for compliance in order to hearing levels as soon as possible.’’ concern is also addressed by another accommodate the unique aspects of the FRA and the Working Group did not provision in the rule. According to rail industry. FRA recognizes that there adopt these recommendations and is § 227.115(c)(2), a railroad must require are serious administrative difficulties, leaving the language as proposed in the the use of hearing protectors when: an and potentially high costs, of testing a NPRM. While FRA agrees that it is in employee is exposed to sound levels large number of mobile employees in a the employer’s best interest to obtain a that meet or exceed the action level and short period of time. This extra time was measurement as soon as possible, FRA the employee has not yet had a baseline intended to give railroads an also realizes that the commenters’ audiogram. ASHA, AIHA and Theresa opportunity to ‘‘catch up’’ on their recommendation is not practical, given Schulz had made another testing. Also, contrary to NHCA’s the mobile nature of railroad operating recommendation, suggesting that when assertion, FRA does not believe there is work and the large size of the railroad a railroad does not obtain an audiogram an immediate safety risk. FRA expects workforce. Railroad operating before placing an employee on the job that many of the rail employees will be employees are constantly moving and if that employee’s noise exposure tested well before the end of the two- throughout the country. It is hard to meets or exceeds the action level, the year period. Moreover, as a practical

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matter, FRA expects that many railroad Engineer Qualification. See 49 CFR information such as the name and job employees will already have been tested 240.121. FRA expects that the majority classification of the employee, the date as part of existing railroad hearing of these audiograms will have met of the audiogram, the examiner’s name, conservation programs. Accordingly, OSHA’s 29 CFR 1910.95(h) the date of the last acoustic or FRA did not adopt the commenters’ requirements. FRA notes that railroads exhaustive calibration of the suggestions. must accept these baseline audiograms audiometer, and accurate records of the Sections 227.109(e)(2)(ii) and (iii) if they were obtained in compliance measurements of the background sound cover existing employees who have had with the requirements found in 29 CFR pressure levels in the audiometric test a baseline audiogram as of the effective 1910.95(h)(1)–(5). rooms. At the NPRM stage, railroads date of the rule. FRA has decided to Per § 227.109(e)(2)(iii), where an explained that they will not be able to grandfather many of these baseline existing employee has already had a provide all the required information for audiograms. This is in line with OSHA, baseline audiogram as of the effective grandfathered baseline audiograms. which had adopted a lenient policy on date of this rule, and it was obtained FRA is fully aware of the railroads’ accepting baseline audiograms that were under conditions that satisfied the concerns and so FRA reiterates in this produced before the promulgation of the requirements in 29 CFR 1910.95(h)(1) final rule what FRA explained in the hearing conservation amendment. but not the requirements found in 29 proposed rule. FRA recognizes that, in OSHA had noted that it was flexible in CFR 1910.95(h)(2)–(5), the railroad may some cases, railroads will not have some grandfathering old baseline audiograms, elect to use that baseline audiogram as of that information and will not be able because in most cases, this would be long as the Professional Supervisor of to obtain some of that information (e.g., more protective of employees. the Audiometric Monitoring Program a railroad might not know the examiner For the same reasons, FRA is makes a reasonable determination that or the last exhaustive calibration for a grandfathering baseline audiograms. the baseline audiogram is valid and is baseline audiogram that was obtained FRA believes that the grandfathered clinically consistent with the other five years ago). FRA will be cognizant of baseline audiograms will provide a material in the employee’s medical file. that fact when evaluating what records more accurate picture of an individual’s At the suggestion of AAA and are available and when evaluating the hearing ability. A grandfathered CAOHC, FRA revised this section by adequacy of the available records. baseline audiogram will show an replacing the phrase ‘‘individual Overall, FRA will take a practical employee’s initial hearing level and so, administering the Hearing Conservation approach toward the audiometric test when compared with subsequent Program’’ (which was used in the record-keeping requirements for audiograms, it will be possible to NPRM) with ‘‘Professional Supervisor of grandfathered baseline audiograms. determine the extent of an employee’s the Audiometric Monitoring Program.’’ Section 227.109(e)(3) addresses one of hearing loss. Also, by allowing railroads Professional Supervisor of the the details of baseline audiogram tests, to grandfather baseline audiograms, Audiometric Monitoring Program is specifically, that baseline audiograms FRA eliminates unnecessary costs for defined in § 227.5. While the RSAC must be preceded by a 14-hour quiet the railroad, because railroads do not Working Group agreed to add a period and that HP may be used in place need to re-test employees that have definition in the final rule for of the 14-hour quiet period. Aearo already been tested. Whether or not a ‘‘Professional Supervisor of the Company submitted comments on the railroad can grandfather a particular Audiometric Monitoring Program,’’ the second part of this subparagraph. Aearo baseline audiogram depends on how the RSAC Working Group did not Company has concerns about allowing railroad conducted that baseline specifically address the substitution in employees to substitute hearing audiogram. this situation. FRA has made this protection in place of a 14-hour quiet Per § 227.109(e)(2)(ii), where an change, because it ensures that the period. Aearo Company asserts that existing employee has already had a determination in § 227.109(e)(2)(iii) is hearing protectors do not provide high baseline audiogram as of the effective made by a qualified professional who levels of protection and do not always date of this rule, and it was obtained understands hearing loss. FRA made a prevent noise-induced hearing loss. under conditions that satisfied the similar change in § 227.109(i). They explain that hearing protectors fail requirements found in 29 CFR ASHA, AIHA, and Theresa Schulz to prevent permanent threshold shifts, 1910.95(h), the railroad must use that commended FRA for grandfathering and so they must also fail to prevent baseline audiogram. Section 1910.95(h) these pre-existing baseline audiograms. temporary threshold shifts. In essence, identifies OSHA’s audiometric test They also agreed with FRA that it then, Aearo Company doesn’t think requirements for employees who should be the responsibility of the hearing protectors are an effective obtained audiograms as part of a hearing professional supervising the hearing substitute for a quiet period. However, conservation program. The requirements conservation program to determine Aearo Company recognizes that it in 29 CFR 1910.95(h) are similar to the which pre-existing audiograms are would be impossible and impracticable requirements that are now found in acceptable and which should be chosen to require employees to rely solely on FRA’s rule at § 227.109. as the baseline. the 14-hour quiet period, because, for FRA notes that many locomotive An issue closely related to example, it is not always possible for an engineers will have baseline audiograms grandfathering baseline audiograms is employer to obtain an audiogram prior that were obtained as part of the hearing recordkeeping. During pre-NPRM to a workshift. acuity 56 testing for FRA’s Locomotive Working Group meetings, many railroad Aearo Company proposes that FRA representatives expressed concern about continue to allow the use of the 14-hour 56 Aearo Company commented that FRA used the the record-keeping requirements quiet period, but with stipulations. An term ‘‘hearing acuity’’ incorrectly in the preamble associated with grandfathered baseline employee would be able to use hearing and suggested that FRA use ‘‘sensitivity’’ instead. FRA used the term ‘‘hearing acuity’’ in the audiograms. Section 227.121 requires protectors as long as, within 5 days preamble, and again in this final rule, to refer to an railroads to maintain records of prior to the audiogram: (1) The existing regulatory provision that contains the term. employee audiometric tests and to employee received individual refresher See § 240.121 ‘‘Criteria for vision and hearing acuity training on the use of his or her hearing data.’’ Moreover, FRA’s use is consistent with retain them for the duration of the OSHA’s use. See 66 FR 52031, 52032 (October 12, employee’s employment plus thirty protector, (2) the condition of the 2001). years. Those records should include employee’s hearing protector is checked

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and found to be satisfactory, (3) the used as a substitute for the requirement The commenters identified several hearing protector to be used is either an that baseline audiograms be preceded by other reasons why FRA should require earmuff or a foam or is a device 14 hours without exposure to annual testing. Aearo Company wrote that has been fit-tested and shown to occupational noise.’’ that the test data is of less value when provide adequate protection to reduce Section 227.109(e)(4) provides that spread out over 3 year periods. Aearo exposure to levels equivalent to less ‘‘the railroad shall notify its employees Company explained that audiometric than 80 dB(A), and (4) an employee of the need to avoid high levels of non- test results can be very variable, and so exposed to sound levels about 100 occupational noise exposure during the a doctor reviewing data for potential dB(A) would be required to wear an 14-hour period immediately preceding shifts might want to review additional earplug with an earmuff for the 14-hour the audiometric examination.’’ FRA did test results spanning a period of years. quiet period. not receive any comments on this With triennial tests, it would take too FRA and the Working Group section and so it remains the same as long to develop a database of periodic considered Aearo Company’s suggestion proposed in the NPRM. audiograms. Aearo Company also wrote but decided to leave the rule as Section 227.109(f) provides the that the annual audiogram is the best proposed. FRA believes this change requirements for periodic audiograms. training opportunity that a professional would impose very rigorous standards Periodic audiograms are the subsequent hearing conservationist has to educate that would greatly increase the audiograms that are conducted at and motivate employees. Having a requirements of the rule and are not regular intervals in the future. They can triennial testing requirement means justified. In addition, there are practical be used to identify deterioration in there are much fewer training problems with this approach. For hearing ability and to track the opportunities. In addition, ASHA, example, regarding #1, FRA’s standard effectiveness of a hearing conservation AIHA, and Aearo Company noted that it already requires training whenever an program. would more logical for FRA to be employer provides an employee with This section has undergone several consistent with other Federal noise HP, so it is unnecessary to duplicate permutations. The starting point was standards (OSHA, MSHA, DOD) and that requirement. Regarding #2, it is OSHA’s rule. OSHA requires an have an annual audiometric test unclear who would check the employer to obtain a new audiogram at requirement. CAOHC and Aearo employee’s HP and whether there least annually for each employee Company acknowledged that the mobile would be a record made of the check. exposed at or above the 8-hour TWA of railroad workforce presents some If so, there would then be an additional 85 dB(A). See 29 CFR 1910.95(g)(6). logistical challenges and recognized recordkeeping burden on employers. During RSAC Working Group meetings, FRA’s desire to reduce that burden for Regarding #3 & 4, this specific standard labor representatives tended to disfavor railroads, yet still thought that FRA contradicts the performance standard mandatory hearing testing and railroad should require annual audiometric tests. that FRA uses in § 227.115(a)(4) for representatives tended to favor Finally, ASHA and AIHA also stated giving employees an opportunity to mandatory hearing testing. The RSAC that it will be administratively more select from a ‘‘variety’’ of HPs with a Working Group members reached a difficult for FRA to track compliance if ‘‘range’’ of attenuation levels. Finally, compromise position that was used in there is as much as 3 years between FRA pulled this provision directly from the proposed rule. It required railroads audiograms. OSHA’s general industry noise to test employees at least once every There was one commenter who took standard. See 29 CFR 1910.95(g)(5)(iii). three years but to offer a test at least a different position. Attorney/ As OSHA is the lead agency in this area, once a year. audiologist Michael Fairchild of and FRA does not see any compelling FRA received several comments on Michael Fairchild and Associates wrote reason to veer from OSHA’s rule, FRA this provision. The commenters, that ‘‘OSHA and MSHA do not make the is leaving the rule the same as FRA’s including ASHA, AAA, AIHA, NHCA, hearing test mandatory which results in proposed rule and OSHA’s general CAOHC, Aearo Company, Theresa some individuals ‘slipping through the industry standard. Schulz, and 12 individual ASHA cracks’ until it is far too late to preserve Since the post-NPRM RSAC Working members, overwhelmingly supported an their hearing.’’ He felt that obtaining Group meeting, FRA realized that there annual audiometric testing requirement. triennial hearing tests would help to were some drafting errors in this section Theresa Schulz wrote that the annual alleviate that problem to at least some and corrected them . Section audiogram is a ‘‘critical tool to extent. 227.109(e)(3) referred to ‘‘the level determine the effectiveness of a hearing At the post-NPRM RSAC Working specified in § 227.115’’ and yet there are conservation program.’’ NHCA wrote Group meeting to discuss comments to several levels listed in § 227.115 and so that ‘‘annual audiometric monitoring the proposed rule, the AAR raised a new it was not clear to which level in will allow for early identification, concern. They noted that they had not § 227.115 the rule was referring. To leading to early intervention, and thus raised this concern in their comment clear up this type of confusion which the potential to prevent noise-induced submission but that it followed the same can result from cross-referencing, FRA hearing loss.’’ Aearo Company logic as their comment submission has revised § 227.109(e)(3) such that it explained that, with triennial regarding calendar days in the training refers directly to the specified level, i.e., audiometric testing, an employer’s requirement. The AAR argued that the the action level. In addition, FRA ability to catch changes in time and to testing should be based on a calendar changed the term ‘‘workplace’’ to halt the progression [of hearing loss] year, not 365 days from the last test. The ‘‘occupational’’ in the second sentence will be substantially diminished. ASHA AAR explained that they had not of § 227.115, so that the terminology is and AIHA went on to explain that a contemplated the issue when the RSAC consistent throughout the paragraph. significant amount of irreversible Working Group was drafting Accordingly, § 227.115 now provides hearing loss can occur in 3 years. recommendations for the NPRM, but at that ‘‘testing to establish a baseline Theresa Schulz and NHCA added that this stage, they had realized that it audiogram shall be preceded by at least the progression of hearing loss is more would too difficult for them to comply 14 hours without exposure to aggressive in early years of an with the proposed requirement. They occupational noise in excess of the employee’s career, especially the first 3 explained that it would be virtually action level. Hearing protectors may be to 6 years of noise exposure. impossible to offer testing to each

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covered employee every 365 days, given tests to employees virtually back-to- If the retest audiogram does not show their large workforce, mobile nature of back. For example, a railroad could test the same shift, the restest audiogram the workforce, and lack of clinics in an employee in December 2006 and becomes the test of record and there is certain rural communities. The railroad again in January 2007. To prevent that, no need for a confirmatory test within representatives explained that they FRA has established a minimum time 30 days. ASHA and AIHA also needed more time and more flexibility period between tests of 280 days, or 9 recommended that FRA require to meet the testing requirement. In turn, months. FRA chose 9 months, because employers to conduct confirmation the labor representatives pointed out it allows for equal increments of time in audiograms within 30 days of any that a calendar year requirement raised relation to the 450 day requirement. The monitoring or retest audiogram that some serious practical concerns. For final rule also requires railroads to continues to show an STS. They believe example, a railroad could offer testing to require each employee included in the that the 90-day window permits too an employee in January 2008 and would hearing conservation program to take an much time to lapse to permit effective not have to offer testing again to that audiometric test at least once every 1095 comparison of tests, and they believe employee until December 2009. In days. See § 227.109(f)(2). 1095 days is that 30 days is more appropriate. One effect, then, employees could go as long the equivalent of 36 months or 3 years. commenter supported this provision. as 23 months without having the This triennial requirement is consistent Michael Fairchild and Associates, noted railroad offer them a test. with the triennial hearing acuity that the 90-day retest period ‘‘makes There was a great deal of discussion requirement for locomotive engineers. sense given the mobile nature of the on this topic during the post-NPRM See 49 CFR 240.201(c). target worker population and the fact Working Group meeting. The RSAC Contrary to some of the comments that some conditions that may cause a Working Group members were faced received, FRA believes that these spurious STS may not resolve within with various sets of competing provisions are, in fact, comparable to the 30 days required by OSHA and positions. There was the railroad-labor OSHA provisions because they mandate MSHA.’’ difference of opinion as to the time employers’ offering testing annually and FRA and the Working Group frame. The railroad wanted the require employee’s participation not discussed the issue and decided to leave requirement based on the calendar year less than triennially. the retest period at 90 days. Most but labor thought that allowed for far Section 227.109(g) provides the importantly, this 90-day retest period too much time between tests. There was requirements for the evaluation of accommodates the mobile nature of the also a railroad-commenter difference of audiograms. Paragraph (g)(1) provides railroad work force. OSHA’s 30-day opinion. On one hand, commenters that each employee’s periodic retest period would not be appropriate rejected a triennial testing requirement examination should be compared to that here. OSHA regulates employers that and instead recommended an annual employee’s baseline audiogram to tend to have employees at fixed audiometric testing requirement. On the determine if the audiogram is valid and facilities, and so it is practically other hand, the railroad representatives to determine whether a standard possible to retest those employees adamantly asserted that they were threshold shift (STS) has occurred. The within 30 days. Railroad employees, by unable to comply with the proposed second sentence of paragraph (g)(1) contrast, are not at fixed facilities, but triennial testing requirement, no less an provides that this comparison may be are widely dispersed, constantly moving annual requirement. done by a technician. AAA and CAOHC throughout the country, and often work In the end, the RSAC Working Group commented on this second sentence, irregular hours. As well, many are recommended, and FRA adopted, a suggesting that FRA require this subject to the Hours of Service laws, variation on the provision that was used comparison to be done by a technician which further limits the railroad’s in the proposed rule. The final rule ‘‘under the supervision of a Professional ability to test employees on certain requires a railroad to offer an Supervisor of the Audiometric Testing dates and at certain times. In addition, audiometric test to each employee Program.’’ FRA adopted that change, FRA and the Working Group believe included in the hearing conservation though not in the precise manner the that the 90-day period might allow for program at least once every calendar commenter suggested. Instead of adding a better retest than the 30-day period. year, however, the rule qualifies the that phrase here, FRA added that phrase For example, medical conditions that time frame. For any individual elsewhere—i.e., in the definition of are likely to interfere with the employee, the interval between the date ‘‘qualified technician’’ located in audiometric test, such as the common offered for a test in a calendar year and § 227.5. FRA believes it important to cold, are more likely to resolve the date offered in the subsequent have the Professional Supervisor themselves in 90 days than 30 days. calendar year shall be no more than 450 oversee these determinations, because it Section 227.109(g)(3) provides that days and no less than 280 days. See will ensure consistency of application the audiologist, otolaryngologist, or § 227.109(f)(1). across all determinations. physician shall review problem The provision giving railroads up to Paragraph (g)(2) states that if the audiograms and shall determine 450 days to offer a test to any individual periodic audiogram demonstrates a STS, whether there is a need for further employee is important, because it will a railroad may obtain a retest within 90 evaluation. A railroad shall provide provide railroads with sufficient time to days and use the retest as the periodic various pieces of information to the offer testing to their large, mobile audiogram. This provision differs from person performing this review. That workforce. This provision was part of OSHA’s regulation. OSHA gives an information includes: The baseline the RSAC recommendation for this employer 30 days to obtain a re-test if audiogram of the employee to be rulemaking. an annual audiogram shows that an evaluated, the most recent audiogram of The provision that requires railroads employee has experienced a standard the employee to be evaluated, to offer audiometric tests at least 280 threshold shift. See 29 CFR measurements of background sound days apart was not a product of the 1910.95(g)(7)(ii). pressure levels in the audiometric test RSAC consensus. FRA added this Several commenters opposed the 90- rooms, and records of audiometer provision after the RSAC Working day retest period, suggesting that FRA calibrations. Group meeting. Without this provision, follow NIOSH’s recommendation for an As used in this paragraph, ‘‘problem railroads would have been able to offer immediate retest if an STS has occurred. audiograms’’ refers to audiograms that

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have had technical or administrative writing within 30 days of the employee. Rather than discontinue the problems. In a general sense, it refers to determination. FRA’s rule gives use of HP, the employer should see it as situations where the testing equipment railroads 30 days while OSHA’s rule an indicator that they need to intervene did not work, where there is evidence gives employers 21 days. See 29 CFR and promote the effective use of HP by that the test-taker skewed the test 1910.95(g)(8)(i). FRA’s rule provides offering a different selection of devices. results, or where the results are railroads with more time, because FRA These commenters overwhelmingly medically atypical. Examples of is taking into account the mobile emphasized that to discontinue problem audiograms include railroad workforce and railroads’ intervention is to allow a TTS to become audiograms that show large differences difficulty in providing notice to that a permanent threshold shift (or in hearing thresholds between the two mobile workforce. Moreover, FRA permanent hearing loss) and that does ears, audiograms that show unusual believes there is no substantial harm if not further the goal of preventing hearing loss configurations that are the railroads have an additional nine hearing loss. They wrote that the current atypical of noise induced hearing loss, days to notify employees. language in the rule means that and audiograms with thresholds that are Section 227.109(h)(2) identifies the employers are merely documenting the not repeatable.57 steps that a railroad should take if the TTS, but not doing anything to prevent NHCA commented on this paragraph, railroad learns that an employee has further hearing loss. As Theresa Schulz noting that FRA had not required experienced a standard threshold shift wrote, this provision ‘‘makes the railroads to provide the worker’s most and specifies further notification hearing conservation program an recent noise exposure. NHCA thinks procedures for subsequent audiometric hearing loss documentation program!!’’ this information is critical to the testing. It provides that ‘‘if subsequent CAOHC recommended a variation, professional reviewer in making audiometric testing of an employee specifically that FRA require employees appropriate follow-up decisions. NHCA whose exposure to noise is less than an who show a STS that is not persistent also wrote that ‘‘although it can be 8-hour TWA of 90 dB indicates that a but who are exposed to noise levels difficult to obtain this information from standard threshold shift is not between 85 and 90 dB(A) to use HP. the worker, it is not impractical persistent, the railroad shall inform the AAA also recommended a very similar especially since FRA has a requirement employee of the new audiometric variation, suggesting that employees to keep a list of employees or positions interpretation and may discontinue the who (1) show a STS that is not in the hearing conservation program.’’ required use of hearing protectors for persistent and (2) are exposed to <90 FRA is not sure what the NHCA is that employee.’’ dBA TWA not be allowed to terminate recommending here. NHCA seems to be Several commenters, including use of HP. implying that the employee provide this Theresa Schulz, ASHA, AAA, AIHA, FRA, with the consensus of the RSAC information to the railroad, which does CAOHC, and NHCA strongly opposed Working Group, has decided to leave not make sense. Moreover, OSHA the language in § 227.109(h)(3). Before this provision as presented in the requires employers to retain a record of summarizing their comments, it is proposed rule. FRA does not believe it the employee’s most recent noise necessary to provide a context for their makes sense to change this provision exposure assessment (see 29 CFR comments. According to § 227.115(c)(2), according to the commenters’ 1910.95(m)(2)(e)), but FRA, in the a railroad must require the use of HP recommendations. If FRA adopted the recordkeeping section, made a when an employee is exposed to sound commenters’ recommendations, FRA conscious decision not to include this levels that meet or exceed the action would create a ‘‘new class’’ of noise- requirement in FRA’s rule. level, and the employee has experienced exposed employees—that is, employees FRA specifically excluded, and a STS and is required to use HP under who are exposed to noise below an 8- continues to exclude, the employee’s § 227.109(h). However, according to hour TWA of 90 dB(A) and who do not most recent noise exposure, because the § 227.109(h)(3), the railroad may have an STS upon retest. Also, FRA workforce in question typically discontinue the required use of HP if an would require that ‘‘new class’’ of noise- experiences a relatively wide range of employee’s STS resolves, i.e., is not exposed employees to wear hearing exposures. Thus, there is no reason to persistent. In other words, if the railroad protection all the time. As long as these believe that any individual’s last finds that an employee’s STS was only employees continued in the same job exposure data will be particularly a TTS (temporary threshold shift), then and experienced the same noise relevant to the evaluation of an the railroad need not require that exposure, they would have to wear audiogram. Further, this rule authorizes employee to continue wearing HP. hearing protection for the rest of their monitoring of exposures on a sampling The commenters were opposed to working . That would be illogical basis, so for any given employee, the language in § 227.109(h)(3), and several given that the STS could have been last exposure may not be available or requested that FRA delete it. They caused by one or more conditions other may be months or years out of date. stated that it is illogical to discontinue than hearing loss, e.g., poor technique, Section 227.109(h) provides the the use of HP if an STS is not deemed an undetected illness that suppresses follow-up procedures for subsequent persistent. They explained that a TTS is hearing, an intentional effort to test audiograms. Section 227.109(h)(1) an indication that intervention is poorly, or some other non-noise related provides that a railroad shall notify an necessary, not that intervention should condition. In addition, in order to employee if the railroad determines that be discontinued. AAA explained that ‘‘If ensure that this ‘‘new class’’ of exposed the employee has experienced a a retest indicates that hearing may have employees were in compliance, FRA standard threshold shift (STS). The improved due to the use of HP prior to would have to require a new set of employer will be able to identify that a the retest, individuals should be aware records, which would impose an STS has occurred by comparing the of the need to continue use of HP when additional recordkeeping burden on employee’s baseline audiogram with the exposed to noise, rather than simply railroads. Finally, this change would be employee’s periodic audiogram. A ignore this early warning and continue a significant departure from OSHA. FRA railroad shall inform the employee in with the sloppy use of [personal adopted this provision from OSHA’s protective equipment].’’ Similarly, general industry noise standard. See 29 57 OSHA Interpretation Letter from OSHA to Mr. AIHA wrote that a TTS may be an early CFR 1910.95(g)(8)(iii). Throughout this J. Christopher Nutter dated May 9, 1994. indication of a noise-susceptible rulemaking, FRA has followed OSHA’s

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lead and veered from it only when FRA these guidelines in 1996 in response to Appendix F is a non-mandatory thought it was necessary to frustrations among hearing appendix that employers can use to accommodate the unique aspects of the conservationists who wanted calculate and apply age correction to rail industry or when there have been clarification of what OSHA intended for audiograms. Consistent with their 1998 advances in technology that warranted a baseline audiograms in its general criteria document, NIOSH submitted change. As OSHA is the lead agency in industry standard.58 The commenters comments, recommending that FRA this area and FRA does not see any explained that the OSHA guidelines should not provide employers with the compelling reason to veer from OSHA’s lack precision. They explained that the option of using age-corrected hearing rule in this case, FRA is leaving this NHCA Guidelines, in contrast, provide levels to determine the presence or provision as proposed. specific recommendations concerning absence of a STS. NIOSH explained that Section 227.109(i) identifies the when audiometric baselines should be ‘‘it is statistically inappropriate to apply methods which railroads should use to revised. The NHCA Guidelines offer a aggregate data to individuals.’’ In revise baseline audiograms. The first standardized method of determining addition, NIOSH asserted that the method, which is provided in when baselines will be revised, and so Appendix F tables are racially biased § 227.109(i)(1), should be used by they assure consistency and uniformity and are discriminatory against persons railroads for the two years immediately among professional reviewers. Several older than 60 years old. NIOSH following the effective date of this rule. commenters also noted that these explained that the data sources for the It states that there are two situations guidelines ‘‘have been commonly age correction tables in Appendix F where a Professional Supervisor of the accepted.’’ were surveys conducted in the late Audiometric Monitoring Program may FRA agrees with the commenters that, 1960s and early 1970s. The tables are substitute a periodic audiogram in place from a technical and programmatic representative of Caucasian male and of the baseline audiogram. The two point of view, the information contained female hearing thresholds from age 20 to situations are: (1) the audiogram reveals in the NHCA Guidelines is very useful 60 and therefore not of people of other that the standard threshold shift is information. OSHA is silent on this races and above 60 years old. persistent, or (2) the hearing threshold issue, and these NHCA Guidelines NIOSH went on to suggest that FRA shown in the periodic audiogram provide much-needed guidance in this should make some changes to the age- indicates significant improvement over area. The NHCA Guidelines create a correction charts if FRA decides to use the baseline audiogram. FRA adopted consistent methodology for revising age correction tables. Specifically, this concept from OSHA’s general baselines and in the process, make NIOSH suggested that FRA make the industry noise standard. See 29 CFR FRA’s rule more clear. They fill the gap following adjustments—compute age 1910.95(g)(9). that has developed since OSHA issued corrections based on hearing levels of At the suggestion of AAA and its rule. And it fills the gap with a the 84th or 98th percentiles, i.e., mean CAOHC, FRA revised this section by document created by and widely minus 1 or 2 standard deviations; use replacing the phrase ‘‘audiologist, supported by the hearing conservation tables that have representative age- otolaryngologist, or physician’’ (which community. related changes for both genders of all was used in the NPRM) with the more Accordingly, with the consensus of major ethnic groups; and use tables that specific phrase ‘‘Professional Supervisor the RSAC Working Group, FRA added accurately represent age-related hearing of the Audiometric Monitoring the NHCA Guidelines as Appendix C to changes for workers over age 60. NIOSH Program.’’ Professional Supervisor of this final rule: ‘‘Audiometric Baseline also recommended that, if FRA wishes the Audiometric Monitoring Program is Revision.’’ FRA has made some edits to to use age correction tables, FRA should defined in § 227.5. While the RSAC the document to tailor them for FRA’s use tables derived from the National Working Group agreed to add a use (e.g., changing ‘‘OSHA’’ to ‘‘FRA’’ Health and Nutrition Examination definition in the final rule for and changing the ‘‘30-day retest’’ to a Survey (NHANES), a joint National ‘‘Professional Supervisor of the ‘‘90-day retest’’). The appendix is Institutes of Health (NIH)–Centers for Audiometric Monitoring Program,’’ the initially non-mandatory, but the Disease Control (CDC) effort, in order to RSAC Working Group did not discuss appendix will become mandatory two ensure that the racial, gender, and age the substitution in this situation. FRA years from the effective date of the final specific corrections are valid. has made this change, because it rule. The RSAC Working Group agreed AAA and NHCA also submitted ensures that the substitution in that this two-year period is a fair and comments on this matter. Similar to § 227.109(i) is made by a qualified reasonable amount of time. It should NIOSH, AAA and NHCA do not support professional who understands hearing provide railroads with sufficient time to the use of the tables in Appendix F, loss. FRA made a similar change in make any necessary administrative because they are racially biased and § 227.109(e)(2)(iii). changes. discriminatory against persons greater The second method, which is Section 227.109(j) addresses standard than 60 years old. AAA raised a separate provided in § 227.109(i)(2), should be threshold shifts. It provides that when issue too. AAA asserts that the OSHA used by railroads for the period of time determining whether a standard method for permitting use of age after the date that this rule has been in threshold shift has occurred, the corrections (when computing STSs) is effect for two years. This method is individual evaluating the audiogram can not a best practice for identifying virtually identical to the NHCA consider the contribution of age meaningful changes in hearing. AAA Professional Guide for Audiometric (presbycusis) to the change in hearing believes that age correction of Baseline Revision (NHCA Guidelines). level. The individual evaluating the individual audiograms is NHCA recommended that FRA adopt audiogram should use the procedure counterproductive to the goal of the NHCA Guidelines and use it to described in Appendix F: ‘‘Calculation detecting temporary hearing changes better explain what OSHA meant in 29 and Application of Age Correction to before they become permanent hearing CFR 1910.95(g) and what FRA now Audiograms.’’ losses. AAA asserts that a STS should means in § 227.109(i). AAA, CAOHC, be a sentinel for identifying significant and Aearo Company also endorsed the 58 The Executive Council of the National Hearing changes in hearing. use of the NHCA Guidelines. According Conservation Association approved these On one hand, FRA understands that to the commenters, NHCA developed guidelines on February 24, 1996. there are problems with the historical

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data used to create the tables in audiometric testing at the 8000 Hz commenters asserted that FRA had Appendix F. It is older data that fails to frequency. They explained that the allowed for the use of insert earphones take into account racial differences or information provided by the 8000 Hz by adopting the updated ANSI standard the fact that people now have longer life threshold is valuable in determining the for audiometers (ANSI S3.6–2004) in spans. On the other hand, FRA does not classic ‘‘noise notch’’ pattern. It § 227.111(b). They explained that ANSI have a viable alternative to use in place enhances clinical decisions about the S3.6–2004 includes, among other things, of the tables in Appendix F. probable etiology of hearing losses. In requirements for the use of insert NIOSH did not present FRA with a order to determine that hearing loss is earphones and so therefore, FRA must viable alternative option. NIOSH did related to noise exposure and is a implicitly be allowing for the use of recommend that FRA use data from ‘‘work-related hearing loss,’’ clinicians insert earphones in § 227.111(b). NHANES, but the NHANES effort is still must observe an audiometric notch at The commenters also discussed pending, so there is nothing conclusive 4000 Hz or 6000 Hz. This notch cannot OSHA’s position on insert earphones. to use. There is no good scientific data be calculated without observing hearing OSHA does not explicitly permit the use available yet. NIOSH also offered that its thresholds at 8000 Hz. In addition, of insert earphones in its standard scientists could provide technical commenters noted that the cost, time, (although, as one commenter pointed assistance to FRA. However, that is not and effort of adding one frequency per out, that is probably because this a feasible option for FRA either. FRA test is negligible, particularly when technology did not exist at the time has neither the resources nor the compared to the reviewer time lost OSHA promulgated its standard). In expertise to conduct its own studies, when a case’s status regarding work- fact, as indicated in a August 31, 1993 obtain the new data, and create new age related, noise-induced hearing loss is interpretation letter, OSHA considers correction tables, even with NIOSH’s unclear. the use of insert earphones to be a technical assistance. Accordingly, FRA has decided, and violation, albeit a de minimis one. Since there is no viable replacement the RSAC Working Group has agreed, to Employers who wish to use insert for the Appendix F tables, FRA require audiometric testing at the 8000 earphones under OSHA standards can considered the option of removing the Hz frequency. It is important to include do so and avoid a citation , however, if age correction charts completely. this frequency, because it will allow they satisfy specified conditions (which Essentially, the age correct decision employers to identify hearing loss are listed in the August 31, 1993 letter). would be left up to the professional sooner. It is possible to include this Commenters concurred that OSHA’s judgment of the Professional Supervisor frequency because the technology to test position on insert earphones is difficult of the Audiometric Monitoring Program. it is available while the time and effort with which to contend. One commenter However, FRA decided that might do necessary to test it is negligible. specifically wrote that OSHA has made more harm than good. Without these Moreover, railroads with hearing the use of insert earphones difficult in tables, there would be absolutely no conservation programs are probably industrial settings. guidance for Professional , already testing at this frequency. It is Overwhelmingly, commenters praised and FRA would have created a gap. important to note that all existing tests the idea of permitting the use of insert Finally, OSHA, not FRA, is the lead (i.e., tests conducted prior to this rule earphones. Commenters pointed out federal agency on this matter and OSHA and which did not include the 8000 Hz that insert earphones are increasingly continues to use age correction charts. frequency) are still considered to be used in hospital-based and clinical FRA is reluctant to make such a radical valid tests. practices, and so it is logical to permit departure from OSHA at this time. Section 227.111(b) provides that their use in the regulation. Aearo Given the above reasons and the fact audiometric tests shall be conducted Company wrote that insert earphones that these tables are non-mandatory, with audiometers that meet the not only provide the same level of test FRA and the Working Group decided to specifications of and are maintained and validity and reliability as supra-aural leave these tables as proposed in the used in accordance with ANSI S3.6– headphones but eliminate several of the NPRM. When, and if, OSHA decides to 2004, ‘‘Specification for most vexing limitations of supra-aural change these tables, FRA will consider Audiometers.’’ 59 Aearo Company earphones. AAA noted that it is a change. brought to FRA’s attention the fact that desirable to use insert earphones since FRA had published an outdated ANSI they provide better isolation of the Section 227.111 Audiometric Test stimulus (than supra-aural headphones) Requirements standard in the proposed rule (i.e., ANSI S3.6–1996), FRA has since updated the from the ambient room noise. AAA also This section sets out the requirements wrote that insert earphones provide standard. for audiometric tests. FRA used OSHA’s Section 227.111(b)(1) addresses the significant advantages in testing patients standard at 29 CFR 1910.95(h) as a requirements for pulsed-tone with background noise levels, with starting point and then tailored the audiometers. In the proposed rule, the asymmetrical hearing loss, and with provisions for FRA’s use. requirement for pulsed-tone collapsing canals, and for reducing Section 227.111(a) provides that audiometers was found in § 227.111(c). cross-contamination in cases of external audiometric tests shall be pure tone, air FRA has substantially revised this ear canal infections. conduction, hearing threshold The RSAC Working Group considered requirement since the proposed rule. examinations with test frequencies the issue of insert earphones. The For a discussion of the changes, see the including 500, 1000, 2000, 3000, 4000, members felt strongly that FRA should section-by-section analysis for 6000, and 8000 Hz. Tests at each not require the use of insert earphones. Appendix C to this part. The Working Group members explained frequency shall be taken separately for Section 227.111(b)(2) is new to this that there were logistical problems with each year. final rule. This provision allows In the proposed rule, FRA sought their required use. Railroad contractors railroads to use insert earphones while comment on whether FRA should add who perform hearing tests do not conducting audiometric testing. Some the 8000 Hz frequency. Several generally use insert earphones, because, commenters, including AAA, CAOHC, 59 For a general discussion on the use of ANSI among other things, they have to keep Aearo Company, NHCA, and NIOSH standards in this rule, see the section-by-section several different types of tips and that recommended that FRA require analysis for § 227.103(c)(2). becomes too difficult when they are

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operating out of mobile vans. As well, Appendix D are too high. The real world environment nor necessary.’’ there are data problems with using commenters explained that excessive He explained that the very low ambient insert earphones. The data from tests background noise levels in the room can sound levels suggested by the with insert earphones and tests with interfere with an individual’s ability to professional organizations are necessary supra-aural headphones would not be detect stimuli. As a result, clinicians do for clinical diagnosis and research but comparable since the testing conditions not know whether hearing shifts are not for occupational hearing for each vary. Despite these problems, valid or are caused by interfering conservation screening tests. He also the Working Group agreed that insert background noise. In addition, Aearo explained that audiometric testing in a earphones are a useful and emerging Company explained that the Appendix rail yard can be difficult under the technology and wanted to provide D levels, which FRA adopted from current OSHA standards. Given the railroads with the option of using them. OSHA, are outdated. Aearo Company noise in the rail yard environment, The Working Group recommended that explained that the OSHA requirements clinicians often have to stop and re-start FRA permit their use but left it to FRA were based on a 1960 ANSI standard the test or move the test away from the to work out the details. and its values were based on work area. Both increase employee Consistent with the Working Group’s audiometric zero as defined in 1951. travel time and costs. recommendation, FRA is allowing The 1951 threshold values are about 10 The RSAC Working Group discussed railroads to avail themselves of this new dB less sensitive than today’s values, this issue of background sound levels at technology. FRA could have relied on and the science behind the 1960 the post-NPRM meeting. The Working the implication in § 227.111(b) that permissible noise standard was not as Group identified three options: (1) Use permits the use of insert earphones, but well developed. the OSHA background sound levels FRA believes that is too ambiguous. To The commenters proposed various found in Appendix D, (2) use the more avoid ambiguity, § 227.111(b)(2) of this alternatives. Theresa Schulz stringent standards (i.e., lower levels) rule explicitly permits the use of insert recommended that FRA adopt the found in ANSI S3.1–1999 or (3) use a earphones. Although FRA is not background noise levels specified by the modified version of the ANSI S3.1–1999 mandating the use of insert earphones, DOD in their Instruction 6055.12 (DOD, standard (i.e., relax 500 Hz by 5 dB). when they are in fact used, they must 1996). AAA, NHCA, ASHA, and Aearo Railroad representatives of the be used consistent with the Company recommended that FRA adopt Working Group were concerned that requirements listed in Appendix E: the compromise position established by they would experience substantial ‘‘Use of Insert Earphones for NHCA—that is, adopt the latest ANSI administrative difficulties if they had to Audiometric Testing.’’ In drafting the standard on background noise levels, comply with ANSI S3.1–1999 standard. requirements for Appendix E, FRA used ANSI S3.1–1999, ‘‘Maximum One representative explained that, when the conditions from OSHA’s August 31, Permissible Ambient Noise Levels for this rule goes into effect, some railroad 1993 letter as a starting point and Audiometric Rooms’’ but with a 5 dB employees will be covered by the OSHA tailored them to meet FRA’s needs. Of relaxation at 500 Hz.61 NIOSH suggested HCA while others will be covered by note are the background sound level that FRA adopt the ANSI S3.1–1999 FRA. If FRA adopted the ANSI standard, requirements for insert earphones. They standard for testing frequencies of 1000 railroads would have to test some are discussed below in the section-by- to 8000 Hz but did not assert a position employees with existing equipment that section analysis for § 227.111(c). on how FRA should handle 500 Hz. meets the OSHA standards and others Section 227.111(c) provides that With respect to the ANSI S3.1–1999 with new equipment that meets the railroads should administer audiometric standard, the commenters were ANSI standard. There would also be examinations in rooms that meet the concerned about railroads’ ‘‘real world’’ difficulties with mobile test vans. requirements listed in Appendix D: ability to comply with ANSI S3.1–1999, Mobile test vans are already set to the ‘‘Audiometric Test Rooms.’’ Appendix specifically the maximum noise level at OSHA standards, so all vans would D specifies that employers shall use 500 Hz. They pointed out that studies have to be re-worked to accommodate rooms that do not have background have shown that a large percentage of the ANSI standards. AAR sound pressure levels that exceed the audiometric booths and test vans would representatives stated that they do not levels in Table D–1 of Appendix D. fail those requirements at 500 Hz. know of any vans currently available on Railroads are required to measure sound Mobile facilities did not fail, however, the market that are set to the new ANSI pressure levels with equipment when the requirement for 500 Hz was standard. In addition, some Working conforming to at least Type 2 relaxed. Aearo Company also pointed Group members pointed out that, given requirements of ANSI S1.4–1983 out that the 5 dB relaxation has minimal the noise environment in a rail yard, it (Reaffirmed 2001), ‘‘Specification for negative effect. Aearo Company is often difficult to perform audiometric Sound Level Meters’’ and to the Class 2 explained that ambient background tests using OSHA’s background sound requirements of ANSI S1.11–2004, noise is typically high at 500 Hz and at levels. To change the requirements to ‘‘Specification for Octave-Band and the same time, occupational noise ANSI’s more stringent standard would Fractional-Octave-Band Analog and exposure has little measurable effect on be even more difficult. Overall, the Digital Filters.’’ 60 Note that FRA has the hearing thresholds that are masked Working Group felt strongly that it was updated the octave-band filter ANSI (i.e., elevated) by those background difficult to expect employers to switch between the standards in Appendix D standard from the outdated standard noise levels. and the latest ANSI standard. As a used in the proposed rule, ANSI S1.11– By contrast, one commenter, Michael result, FRA decided to leave the 1971 (R1976) ‘‘Specification for Octave, Fairchild and Associates suggested that requirements as proposed—that is, Half-Octave, and Third-Octave Band the proposed Appendix D is a workable railroads should comply with the Filter Sets.’’ solution. He asserted that the proposals Several commenters asserted that the from the various professional background sound levels that FRA background noise levels in Table D–1 of organizations are ‘‘neither workable in a adopted from OSHA and placed in Appendix D. 60 For a general discussion on the use of ANSI 61 This relaxes the 1991 ANSI requirements by 3.5 A related issue is the background standards in this rule, see the section-by-section dB (and the current 1999 ANSI standard by 5 dB) sound levels for insert earphones. As analysis for § 227.103(c)(2). to a value of 24.5 dB. several commenters pointed out, insert

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earphones provide more attenuation the proposed Appendix E: ‘‘Acoustic the following: placement of a newer than supra-aural headphones and so the Calibration of Audiometers’’ was (i.e., quieter) locomotive in the lead; background sound levels can be higher outdated and unnecessary. The rotation of employees in and out of when hearing tests are performed with information in the proposed Appendix noisy locomotives; and variation of insert earphones. Accordingly, the E had come from OSHA’s Appendix E, employee’s routes, e.g., rotation of relevant ANSI standard (ANSI S3.1– and most of that information, in turn, employees on routes that have many 1999) sets higher background levels for appears to have come from ANSI S3.6– grade crossings (which means that the insert earphones. The RSAC Working 1969. FRA deleted that outdated horn is sounded more often). Group members discussed this issue at information. FRA has placed in Operational controls are beneficial, the post-NPRM meeting. The Working § 227.111(d)(2) the requirement that because they help reduce the total daily recommended that FRA allow the use of railroads comply with ANSI S3.6–2004. noise exposure of employees, thereby insert earphones but left it to FRA to FRA has also included some reducing the harmful cumulative effects implement the requirements for their particularly salient parts of the ANSI of noise. They also make the use. standard and provided them in environment safer and take the burden FRA considered two options for § 227.111(d)(2). off the employee to protect himself or background sound levels for insert FRA notes that this updated ANSI herself. earphones: (1) the Appendix D levels standard includes procedures for the Noise operational controls are the which FRA adopted from OSHA (and calibration of audiometers with insert functional equivalent of OSHA’s term which apply to supra-aural headphones) earphones. FRA expects that railroads ‘‘administrative controls.’’ Unlike or (2) the levels in ANSI S3.1–1999. who elect to use insert earphones will OSHA, FRA does not mandate the use FRA has decided to use the background follow those calibration procedures. of controls. This difference is rooted in noise levels specified in ANSI S3.1– Section 227.111(d)(3) requires an practicality. In general industry, if an exhaustive calibration, performed in 1999. Note, however, that FRA is not employee’s noise exposure is too high, accordance with ANSI S3.6–2004, once adopting ANSI S3.1–1999 in whole (and an employer can often simply move the every two years for audiometers not specifically not the background noise employee to a different location. That used in mobile test vans and once a year levels for supra-aural headphones). FRA option is not necessarily available in the for audiometers used in mobile test is merely adopting the background noise railroad industry. Certain railroad vans. This stricter requirement for levels from ANSI S3.1–1999 as they employees, by the nature of their job, mobile vans is necessary because of the relate to insert earphones. FRA has are limited as to their ability to be nature of mobile service work. Mobile placed the noise levels for insert moved to a quieter location. For vans are constantly in movement, and earphones in a new row in Table D–1 example, locomotive engineers have to thus the audiometric equipment in of Appendix D. The background noise work in a locomotive, which can be levels for insert earphones are higher those mobile vans are subject to greater mechanical stress. An exhaustive noisy. Management can rotate than the background noise levels for employees through a quieter locomotive supra-aural earphones. This is due to annual calibration will ensure that the audiometer is continually producing or a quieter route, but even those the fact that insert earphones provide options are limited, given that higher attenuation. accurate test results. Moreover, the cost of such a calibration is low. Because of locomotives are constantly moving Section 227.111(d) addresses the throughout the country and a quieter calibration of audiometers. Section that, FRA concluded that the minimal cost of this stricter requirement would locomotive might not be available or a 227.111(f)(1) requires a check of the quieter route might not exist on a audiometer’s functional operation be easily offset by the assurance of more accurate test data. particular day for a particular employee. before each day’s use. This requirement Because there are far fewer options in is slightly different than the related Theresa Schulz commented on this stringent mobile van requirement, the railroad industry for employing provision in OSHA’s standard. In operational controls, FRA did not OSHA’s rule, the audiometer must be noting that it helps to maintain quality in a difficult-to-control environment. mandate the use of noise operational checked by testing a person with controls in this rule. known, stable hearing thresholds. In She went further, suggesting that FRA require ‘‘daily listening checks’’ that This section provides that railroads FRA’s rule, the audiometer can be may use noise operational controls to checked by either a person or with an railroads should conduct whenever they move equipment or turn it on or off. reduce noise exposures to levels below appropriate calibration device. those required by Table A–1 of Section 227.111(d)(2) requires an While FRA believes it’s important to Appendix A of this part and that acoustic calibration annually. This have more stringent standards for railroads are encouraged to use noise section also directs railroads to perform mobile test van audiometers, however, operational controls when employees the acoustic calibration in accordance FRA does not believe it is necessary to are exposed to sound exceeding an 8- with ANSI S3.6–2004.62 Just as FRA go so far as to require daily listening hour TWA of 90 dB(A). This section has replaced ANSI S3.6–1996 with ANSI checks. FRA believes the exhaustive been revised slightly since the proposed S3.6–2004 in § 227.111(b), so FRA has annual calibration for mobile test vans rule. The revision does not make any done here. FRA made this change at the is sufficient. substantive changes; it merely ensures recommendation of a couple of Section 227.113 Noise Operational that the regulatory language commenters and with the agreement of Controls. accomplishes what FRA had intended the RSAC Working Group. This section addresses noise and what FRA had expressed in the Upon replacing the information in operational controls. Operational preamble to the proposed rule. In Appendix E with the requirement to controls refer to efforts to limit workers’ particular, railroads may consider noise comply with an ANSI standard, FRA noise exposure by modifying workers’ operational controls at any point in realized that most of the information in schedules or locations or by modifying time. The proposed rule provision had 62 For a general discussion on the use of ANSI the operating schedule of noisy implied that railroads should wait until standards in this rule, see the section-by-section machinery. Examples of operational sound reaches an 8-hour TWA of 90 analysis for § 227.103(c)(2). controls include, but are not limited to, dB(A) before using or considering noise

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operational controls, and that is not the (3) helmets that encase the entire employers instead need to consider case. head.63 several factors-including an employee’s As stated above, railroads have the FRA has reorganized § 227.115 since comfort, an employee’s ability to option of using noise operational the proposed rule. The content remains understand and respond to voice and controls. Railroads can use noise the same; however, the section is radio communication, and an operational controls, by themselves, to structured differently. This was brought employee’s ability to hear and respond lower the total noise exposure (as long about by Aearo Company’s comment to audible warnings—when selecting HP as the total noise exposure does not that the proposed §§ 227.115(a) and for an employee. Theresa Schulz noted exceed 90 dB(A) as an 8-hour TWA, in 227.115(c)(1) were redundant. By that these two new considerations that which case the railroad must also reorganizing the section, FRA believes it FRA added (i.e., an employee’s ability to require hearing protection). Railroads has removed the redundancy and also hear and respond to (1) voice made this section more clear. Paragraph can also use noise operational controls communication and (2) audible (a) contains the general requirements for in combination with the other controls. warnings) are important considerations hearing protectors, while paragraphs (b) Those other controls include FRA’s that directly address the problem of through (d) address employee use of design, build, and maintenance overprotection.’’ Overall, these hearing protectors. commenters expressed their belief that requirements (i.e., those items found in Section 227.115(a) contains the § 229.121, through which FRA has employees will be safer and more general requirements for hearing satisfied with HP if overprotection is embodied OSHA’s concept of protectors. Railroads are required to limited or eliminated. engineering controls). FRA realizes provide hearing protectors to employees NHCA also applauded FRA for operating requirements and labor at no cost (§ 227.115(a)(1)) and replace including this language. NHCA agreements may affect a railroad’s hearing protectors as necessary suggested that the use of low- ability to use noise operational controls; (§ 227.115(a)(2)). These requirements are attenuating devices or flat-attenuating nevertheless, FRA would like railroads similar to the comparable provision in devices may be an option to address the to remain open to their use. OSHA’s standard, which is found at 29 problem of employees’ inability to While noise operational controls will CFR 1910.95(i). understand and respond to voice radio be an option for all railroads, FRA Section 227.115(a)(3) is unique to communications and audible warnings. expects that the smaller railroads will be FRA’s rule; there is no comparable Likewise, an individual railroad in the best position to use them and provision in OSHA’s rule. This operating employee with 35 years of benefit from the flexibility that they provision requires railroads to consider engine service submitted comments provide. Small railroad work is two important factors when offering applauding FRA’s efforts with this rule. characterized by more limited hours of (and requiring) hearing protectors: (1) While he didn’t specifically link his operation and more flexible work rules, Employees’ ability to understand and comment to this provision, he raised a and thus it is more conducive to the use respond to voice communications, and point directly related to it. He of operational controls. Noise (2) employees’ ability to hear and acknowledged that he sometimes has operational controls are even more respond to audible warnings. This difficulty hearing the alerter when he is useful to small railroads since they requirement addresses FRA’s concern wearing his hearing protection. rarely have the opportunity to that the overuse of hearing protection Another commenter, Aearo Company, implement engineering controls. Unlike may be counter-productive, especially initially explained that, based on their larger railroads, small railroads for employees with existing hearing experience, the problem is usually infrequently buy new locomotives or loss. For example, an employee who is inadequate use of HP, not overuse of rebuild old locomotives. exposed to a TWA of 85 or 86 dB(A) HP. While responding to the preamble should not wear HP that provides 30 dB A couple of commenters, including discussion on avoiding excessive in noise reduction, because that will ASHA and AIHA, submitted comments, reflexive use of HPs, Aearo Company reduce the employee’s hearing ability supporting FRA’s decision to make asserted that the ‘‘problem is truly one and thus the employee’s ability to listen noise operational controls optional of getting those in need to be protected and communicate in the cab. The ability rather than mandatory. The commenters without focusing undue attention on the of these employees to discriminate point out that administrative controls few who may be wearing hearing speech and recognize other auditory have proven to be problematic in protection that need not be.’’ However, cues is critical to avoiding train further in their comments, Aearo general industry. They explain that accidents and incidents. Company noted that ‘‘FRA’s interest in administrative controls tend to take a FRA specifically sought comments accommodating hearing loss and use of secondary role to production from the public on this issue. In general, HPs in moderate noise is well founded.’’ requirements and that they have been commenters supported this provision. Aearo Company pointed to data difficult to administer and enforce.’’ ASHA, Theresa Schulz, and AIHA supporting FRA’s provisions; Aearo said Section 227.115 Hearing Protectors submitted similar comments, that the studies have found that the use applauding FRA’s recognition of the of HPs in lower-level noise increases the This section addresses hearing potential adverse impacts of likelihood that the HPs ‘‘will interfere protectors (HP), another measure that overprotection. They explained that with the audibility of warning signals can be used to minimize employee overprotection is prevalent because and communication, especially for the exposure to noise in the locomotive cab. ‘‘purchasing authorities often * * * hearing impaired.’’ Similar to the The term ‘‘hearing protector’’ is defined operate under the false assumption that comments mentioned above, Aearo in § 227.5. Hearing protectors can be higher noise reduction is better— Company noted that ‘‘simple blanket divided into three main categories: (1) regardless of local exposure conditions recommendations are not possible.’’ Ear plugs that are placed in or against and need.’’ They noted that a ‘‘one size Aearo Company suggested that it is the entrance of the ear canal to form a fits all’’ approach for HP is generally necessary to do case-by-case seal and block sound; (2) ear muffs that inappropriate. They explained that analyses for each critical fit over and around the ears to provide communication scenario and that such an acoustic seal against the head; and 63 Berger at 383. an analysis might include speech

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intelligibility or signal detection testing the same light as all other mandatory this paragraph is identical to OSHA’s in a simulated occupational noise personal protective equipment. They rule. See 29 CFR 1910.95(i)(3). The environment, as well as the services of also noted that ‘‘enforcement of this second sentence is unique to FRA’s rule. a consulting audiologist. policy should be uniform and The requirements in both sentences Similarly, Wilson, Ihrig, & Associates consistent’’ and that neither labor nor underscore the importance of railroads had a mixed reaction. They agreed with management should view the use of HP offering employees with sufficient FRA that employees with existing as punitive or as a disciplinary tool. options—a variety of hearing protectors hearing loss will have more problems Aearo Company was surprised by this with a range of hearing attenuation communicating with HPs and that a 30 statement, explaining that it is levels. FRA believes that providing a dB noise reduction for a employee with unsupported by literature. Aearo choice of suitable devices increases the existing hearing loss would be Company explained that ‘‘discipline likelihood that the employee will use inappropriate. However, Wilson, Ihrig, may certainly be needed for those who the device as required. & Associates then asserted that a 30 dB fail to wear their safety products, but FRA received various comments noise reduction is unlikely even if the viewing the required use of safety about the phrase ‘‘variety of suitable NRR rating indicated such. Wilson, products as discipline is hearing protectors’’ in the first sentence. Ihrig, & Associates explained that ‘‘FRA counterproductive.’’ Aearo Company Overwhelmingly, commenters noted should assume the reduction indicated went on to explain that individuals who that the rule does not define the term in the NIOSH recommended standard have studied and written on this topic ‘‘variety’’ and requested that FRA document. [Accordingly,] it would emphasize the need for ‘‘strong provide a definition. Aearo Company appear that over protection would be a enforcement, good motivation, and the pointed out that OSHA’s regulation did minor problem and that the main development of a safety culture within not adequately define ‘‘variety’’ and as problem is outfitting a population of an organization.’’ a result, OSHA has had to issue workers who already have hearing loss, The AAR also submitted comments subsequent interpretations. where it is a problem of bad signal to similar to those they had made at the Several commenters provided specific noise ratio that precludes proper RSAC Working Group meetings. They suggestions as what a ‘‘variety’’ should communication.’’ wrote that they supported these be. Aearo Company wrote that a choice In addition to the above comments, requirements; however, they disagreed between two protectors, as per OSHA’s Aearo Company had an organizational with a comment made by FRA in the HCA, is inadequate because ‘‘it fails to suggestion. Aearo Company suggested preamble discussion accompanying this provide sufficient choice to assist in that the concept in § 227.115(a)(3) provision in the NPRM. The AAR noted persuading the employee that they are a (which requires consideration of that during Working Group meetings, welcome participant in the HCP, and communications ability) would work there was an open exchange of ideas hence to encourage their ‘buy-in’ to the better as the latter part of the proposed and opinions, some of which were program.’’ Aearo Company noted that a § 227.115(a)(4) (which requires railroads ultimately rejected by the Working 2000 study and MSHA both recommend to provide a variety of hearing Group. With respect to labor’s concern a minimum of four devices. ASHA, protectors). While FRA did not merge that a mandatory HP provision could be Theresa Schulz, and AIHA submitted the two concepts, FRA has re-organized used as a disciplinary tool, the AAR similar comments, all suggesting that the section. As part of that says they explained, during the Working FRA require employers to provide a reorganization, these two concepts are Group discussions, that most railroads minimum number of HPs, i.e., ‘‘at least now back-to-back. FRA believes that have had mandatory HP requirements four different models of HPs with an change addresses the intent of Aearo and many of the requirements have been appropriate range of attenuation levels Company’s comment; it makes these in place for 20 years. The AAR says they including at least two types of concepts more understandable. invited FRA or labor ‘‘to provide and one type of earmuff.’’ ASHA In the NPRM, FRA sought comment examples of any abuse of these rules, explained that the effectiveness of a from the public on a related matter—the and none were forthcoming.’’ ‘‘Given HCP is dependent on the workers’ potential use by railroads of a this background, AAR believes that it is willingness to wear HPs. By ensuring mandatory hearing protection provision inconsistent with the history and spirit that workers have sufficient options, it as a disciplinary tool. During pre-NPRM of the RSAC process to include a increases the likelihood that workers Working Group meetings, some labor comment like this in the NPRM.’’ will willingly wear their HP. NHCA members of the RSAC Working Group Given FRA’s belief that § 227.115(a)(3) made a similar suggestion, though with stated that they were uneasy with the is a valuable addition to FRA’s noise slightly different language. NHCA wrote HP requirement in § 227.115(a)(3). They standard, coupled with the that railroads should be required to worried that railroads might use a overwhelming positive response that ‘‘offer a minimum of four hearing mandatory HP provision as a FRA received from the public, FRA is protection devices (HPDs), including at disciplinary tool or as a means for leaving this provision as proposed in least two different styles of plugs (e.g., harassing an employee. They were also the NPRM. FRA believes there are many foam and flanged), and at least one type concerned that compliance could beneficial aspects to the use of HP of earmuff.’’ ultimately erode as a result of this especially when employers carefully Aearo Company went further, provision and employees would select an employee’s HP (i.e., consider explaining that ‘‘suitable variety’’ refers encounter even worse noise exposure, the employee’s ability to understand to more than just providing HPs with a i.e., if railroads were to unnecessarily and respond to communications and range of potential levels of protection; it mandate the use of HP, employees who warnings). also means that an employer should find HP uncomfortable would stop Section 227.115(a)(4) provides that provide HPs with differing feels and wearing them altogether and receive ‘‘The railroad shall give employees the ergonomic characteristics. As Aearo even less hearing protection. opportunity to select their hearing Company wrote, ‘‘a ‘menu’ of options The commenters on this subject did protectors from a variety of suitable from which to choose conveys to not seem to think this would be a hearing protectors. The selection shall employees that their opinion counts, problem. ASHA and AIHA noted that include devices with a range of and this in turn will enhance their the use of HPs should be considered in attenuation levels.’’ The first sentence of feelings of self-efficacy and the

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likelihood of wearing their HPs comfortable noise-blocking seal, which commented on this provision, noting consistently and properly.’’ can be consistently maintained during that the initial fitting is critical. NHCA At the meeting to discuss public all noise exposures. Additional explained that employers often gloss comments, the Working Group important issues include: The noise over the HPD fitting and simply tell considered these recommendations. The reduction of the device, the wearer’s employees to ‘‘follow the directions on Working Group recommended that the daily equivalent noise exposure, the package.’’ NHCA wrote that ‘‘the rule should remain as stated in the variations in noise level, user employee should be given the NPRM, i.e., to refrain from specifying a preference, communication needs, opportunity [at the proper fitting] to minimum number of HPs which an hearing ability, compatibility with other sample a variety of HPDs to determine employer must offer. FRA agrees and is safety equipment, the wearer’s physical the proper fit, comfort, preference, reluctant to specify a minimum number limitations, climate and other working appropriateness, and ability to use as representing a ‘‘variety,’’ because conditions, and HPD replacement, care correctly.’’ FRA agrees that it is FRA is concerned that employers may and use requirements.’’ important that employers take the time interpret that number as a maximum FRA also received a comment about and effort with employees at their initial rather than a minimum. In addition, the ‘‘range of attenuation levels’’ fitting to ensure that the employees have FRA wants to provide employers with language found in the second sentence the proper HP. the flexibility to consider the specific of § 227.115(a)(4). Aearo Company Sections 227.115(b) through (d) working environment of their explained that the provision ‘‘range of address the use of hearing protectors by employees. By specifying a number, attenuation levels’’ is helpful but too employees. Section 227.115(b) requires FRA would be greatly limiting the vague. Aearo Company is concerned railroads to make hearing protectors employer’s flexibility. that an employer ‘‘could easily interpret available to all of its employees exposed FRA, however, would like to clarify a range of attenuation values as being to noise at or above the action level. the meaning of ‘‘variety.’’ When offering only 27–33 dB, just as likely as being Section 227.115(c) provides that hearing protectors, employers should from 12–33 dB,’’ and so they suggested railroads shall require the use of HP offer employees several different types, some alternative language. FRA decided where employees are exposed to sound whether ear plugs, ear muffs, and/or not to adopt Aearo Company’s suggested levels that meet or exceed the action electronic headsets. Within any given language. The Working Group agreed, level, and the employee has not yet had type, the employer should offer several but recommended that FRA include a baseline audiogram established different designs and models. For more guidance in the preamble. pursuant to § 227.109 or the employee example, with respect to ear plugs, there As used in this paragraph (a)(4), a has experienced a STS and is required are several options, including, but not ‘‘range of attenuation levels’’ means that to use HP under § 227.109(h). Section limited to, roll down foam earplugs, an employer should provide HP types 227.115(d) provides that railroads shall push-in foam earplugs, premolded- with ranges that are sufficient to protect require the use of HP when an employee flanged earplugs, premolded-unflanged the employee from the level of noise is exposed to sound levels equivalent to earplugs, banded ear protectors. The expected but still permit the employee an 8-hour TWA of 90 dB(A) or greater. employee should have the opportunity to communicate effectively for the job. The HP should be used to reduce sound to try a variety of devices, so that he can In addition to offering devices with high levels to within the levels required by determine what fits best and most attenuation, railroads should offer § 227.105 and Appendix A to § 227.105. comfortably. devices with low or moderate Note that, since FRA has removed Table Railroad industrial hygiene attenuation. Low or moderate 1 (to § 227.105) from the rule, FRA has representatives of the Working Group attenuation devices further safety by removed the reference to Table 1 here in indicated that a lack of variety of HP has facilitating communication and the § 227.115(d). FRA received some not been a problem in the past, and they detection of audible cues in the comments suggesting that FRA re- do not foresee that it will be a problem workplace. FRA expects that railroads organize the proposed §§ 227.115(a) and in the future. Several of the major will employ or consult professionals, (c). FRA has done so and believes that railroads indicated that they have such as industrial hygienists, who can this section is now easier to understand. developed practices that seem to work. guide employees in their selections and One railroad industrial hygienist noted ensure that employees are adequately Section 227.117 Hearing Protector that he tries to keep a large variety of protected. Attenuation hearing protectors readily available for Section 227.115(a)(5) provides that Section 227.117(a) provides that a employees. Another railroad industrial railroads shall provide training in the railroad shall evaluate HP attenuation hygienist explained that he tries to work use and care of all hearing protectors for the specific noise environments in with employees on an individual basis provided to employees. This section sets which the protector will be used and if the employee has a special need, such out the general requirement that directs that a railroad shall use one of as a STS. railroads must train employees on the the methods described in Appendix B to As further guidance, FRA is including use and care of HP. Section 227.119 this part, ‘‘Methods for Estimating the the hearing protector selection criteria addresses this issue further. It requires Adequacy of Hearing Protector set forth in the report of the NHCA Task railroads to have a training program that Attenuation.’’ Those methods include: Force on Hearing Protector Effectiveness includes, among other things, derating by type, Method B from ANSI in 1995. FRA included this information instructions on selection, fitting, use, S12.6–1997 (Reaffirmed 2002), and at the suggestion of the NHCA. ‘‘No and care of hearing protectors. See objective measurement. single HPD characteristic, such as § 227.119(c)(4). FRA did not receive any This is a change from the proposed attenuation (as represented by the comments on § 227.115(a)(5), and rule. In the NPRM, FRA had adopted present NRR), or any other feature, accordingly FRA has left this provision OSHA’s Appendix B to 29 CFR 1910.95, should be the sole arbiter influencing as proposed. which provided for the following selection of an HPD. The most critical Section 227.115(a)(6) provides that methods: Noise Reduction Rating (NRR), consideration in selecting and railroads shall ensure proper initial and NIOSH methods #1, #2, and #3. dispensing a hearing protector is the fitting and supervise the correct use of There were two main issues with ability of the wearer to achieve a all hearing protectors. NHCA respect to the changes to this section:

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the inclusion of Method B as an hearing protectors (e.g., the ‘‘fit-check’’ In the interest of simplicity, FRA acceptable method and the overall and the Predicted Personal Attenuation provides for three methods of estimating revision of Appendix B. Rating) and recommending that FRA real world HP protection levels. Using In the NPRM, FRA had not included also encourage the use of those the first method, one subtracts 7 dB Method B but had sought comment on methods. from the published NRR and then whether FRA should include it. Method Other commenters, such as NHCA derates based on a percentage of the B refers to the use of ‘‘subject-fit’’ and Aearo Company, acknowledged that remainder. This is similar to NIOSH attenuation data measured according to the Method B ‘‘subject-fit’’ attenuation recommendations based on type. The Method B from ANSI S12.6–1997 data provides a better estimate of the justification for derating by device type (Reaffirmed 2002). That ANSI standard, average real world attenuation but has to do with the potential effect HP fit ‘‘Methods for Measuring Real-Ear expressed concern about using Method has on the attenuation level, with muffs Attenuation of Hearing Protectors,’’ B. Both noted that there is ‘‘still wide being the least prone to fitting poorly ‘‘provides attenuation estimates based debate about Method B and questions and non-formable ear plugs being the on the responses of subject who are about whether it will be adopted or most prone to fitting poorly. Using the given the manufacturer’s directions and widely used.’’ NHCA, along with some second method, one would derate based are told to fit the device themselves as other commenters, recommended that on ANSI S12.6–1997 (Reaffirmed 2002) best they can.’’ 64 Instead of the railroads have the option to follow the Method B. And finally, using the third traditional method of obtaining NIOSH recommendations for derating method, one uses objective attenuation estimates, which uses HPs for the purpose of estimating the measurement. One conducts testing in experimenters who fit highly trained average workplace protection attainable user environments that measure actual subjects, this method uses subjects that by groups of HP users. The Aearo levels inside the users HPs. FRA wants are untrained in the fitting of hearing Company suggested a more complex to emphasize that it recognizes that all protectors. Arguably, ‘‘the NRR derived scheme, whereby the use and type of of the methods mentioned, with the from Method B more closely resembles attenuation varies based on the possible exception of the objective the real-world performance of hearing employee’s level of exposure. measurements, are estimates and may protectors.’’ 65 FRA and the Working Group not precisely reflect the true level of Several commenters responded to considered this issue and decided to protection. FRA acknowledges that the FRA’s request for comment, stating that allow railroads to use Method B as a level of protection is as much related to FRA should allow railroads to use method of evaluating hearing protector the quality of training, practice and Method B as a method for evaluating attenuation. It provides railroads with motivation of the users as it is to the hearing protector noise reduction. The an additional option, thereby giving NRR of the devices used. president and principal of Wilson, Ihrig, railroads more flexibility to choose the Finally, with respect to HP & Associates explained that, based on method which is most appropriate for attenuation, NHCA submitted further his experience as a consultant, of those them. comments, specifically that FRA should individuals who had filed hearing loss The other issue related to HP include cautions about HP attenuation claims, most who used HP had done so attenuation was the overall revision of in the rule text. The cautions are based without any explicit training. Thus, Appendix B. Aearo Company had on conclusions of the NHCA Task Force submitted comments, asserting that it Wilson et al. explained, ‘‘determining on Hearing Protector Effectiveness. The was ‘‘regrettable’’ that FRA chose to the attenuation without training or with Working Group, along with FRA, did adopt OSHA’s Appendix B without only verbal training would provide a not think it was necessary to include change. Aearo Company explained that very valuable tool with respect to the this information in the rule text but did Appendix B is confusing and actual attenuation achieved under think it was useful to include it here in misleading and recommended that FRA actual field conditions.’’ the preamble. Accordingly, FRA rewrite and clarify it in the final rule. Similarly, ASHA and AIHA agreed encourages railroads to be cognizant of The RSAC Working Group discussed with FRA’s assessment that Method B the following when evaluating HP Aearo Company’s comment at the post- more closely resembles the real-world attenuation: performance of hearing protectors and NPRM meeting and decided that it was most appropriate to leave Appendix B When comparing hearing protectors, supported its inclusion in Appendix B. differences between hearing protector ratings They explained that hearing protector as proposed, with the exception that, FRA would add Method B as an option of less than 3 dB are not important. ratings included in the NRR are based The labeled values of noise reduction are for estimating the adequacy of HP on data obtained under optimal based on laboratory tests. It is not possible to attenuation. The Working Group also laboratory conditions and therefore use these data to reliably predict levels of noted that Aearo Company had not differ greatly from the noise reduction protection achieved by a given individual in provided FRA with any viable that employees actually experience on a particular environment. To ensure alternatives to use in place of Appendix protection, those wearing hearing protectors the job. They pointed to a few studies, B. for occupational exposures must be enrolled including one that ‘‘demonstrated that As FRA attempted to incorporate in a hearing conservation program. having untrained subjects fit their own Method B into Appendix B, FRA The remaining provisions in § 227.117 hearing protectors provided much better encountered difficulty. FRA found that are identical to FRA’s proposed rule and estimates of the hearing protectors’ the proposed appendix was, in fact, to OSHA’s standard at 29 CFR noise attenuation in the workplace than confusing. Given the confusion and 1910.95(j). Section 227.117(b) provides having the experimenter fit them.’’ complications, FRA is unable to simply that hearing protectors shall attenuate Theresa Schulz went further, explaining add Method B, and so FRA is revising employee exposure to an 8-hour TWA of that there are other methods available to Appendix B. While the decision to add 90 decibels or lower, as required by test the ‘‘real world’’ performance of Method B to Appendix B was part of the § 227.115. RSAC Working Group consensus, the Section 227.117(c) provides that 64 Council for Accreditation in Occupational Hearing Conservation ‘‘Hearing Conservation revision of Appendix B was not. FRA hearing protectors for employees who Manual,’’ Fourth Edition, 114 (2002). has modified Appendix B as explained have experienced a STS must attenuate 65 Id. below. exposure to an 8-hour time-weighted

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average of 85 decibels or lower. During hearing loss is a lack of adequate FRA should compromise at requiring pre-NPRM RSAC Working Group training. He asserts that railroad HCPs training at least every 2 years. discussions, a railroad representative have ‘‘not been comprehensive or The RSAC Working Group discussed raised some practical concerns about thorough enough with respect to this matter at length. The AAR, an this requirement. Per § 227.115(d), an educating on both the need for and how active member of the RSAC Working employee selects his hearing protection. to properly use appropriate hearing Group present during the proposed rule The railroad representative is concerned protection devices.’’ discussions, raised a new issue in their that an employee might select hearing Sections 227.119(a)(1) and (2) have comments to the proposed rule. The protection that is not protective enough, evolved through the rulemaking process AAR asserted that railroads would have e.g., an employee might want to use HP and therefore a discussion is warranted. great difficulty complying with a 12 with lower attenuation because he or In the NPRM, FRA proposed that month period. Faced with factors such she finds it more comfortable. FRA railroads shall offer training annually as a highly mobile workforce and a lack notes that a railroad should offer its and shall require each employee to of clinics in certain rural communities, employees a variety of hearing complete training triennially. This railroads would be unable to offer protectors with several different types of differed from OSHA’s requirement, training once every 12 months. Other attenuation, all of which provide which requires employees to complete a RSAC Working Group members, adequate protection. hearing training program at least once a however, were concerned that a Section 227.117(d) provides that the year. calendar year requirement would create railroads should re-evaluate the FRA received numerous comments on the potential for very large gaps between adequacy of hearing protector this matter. On one end of the spectrum training. In a worst case scenario, an attenuation whenever noise exposures was the AAR, which suggested that the employee offered training in January increase to the extent that hearing training requirements should be based 2006 might have to wait until December protectors may no longer provide on a calendar year, not 365 days from 2007 to be offered training again, a adequate attenuation. FRA believes it is the last training. They explained that period of almost 2 years. Or, an necessary for railroads to conduct noise this would provide flexibility in offering employee offered training in December monitoring in order to know whether and completing the training but would 2006 could next be offered training in noise exposures have changed. not substantially change the intervals January 2007, a period of only two for any given employee. So, for months. Section 227.119 Training Program example, if a railroad offered training to In the spirit of compromise, the RSAC This section governs a railroad’s an employee in June 2006, the railroad Working Group decided on the training program. FRA’s training would be required to offer the next provision that is now in the final rule. requirements are based heavily on training session any time in 2007 up Each railroad shall offer training to each OSHA’s training requirements found at until December 2007. employee at least once each calendar 29 CFR 1910.95(k), however there are On other end of the spectrum were year. As to any employee, the interval some differences, which are noted ASHA, AIHA, AAA, NHCA, CAOHC, between the date offered for a test in a below. Section 227.119(a) sets forth the NIOSH, Aearo Company, and Michael calendar year and the date offered in the basic requirement that railroads must Fairchild and Associates, all who subsequent calendar year shall be no institute an occupational noise and advocated for FRA to require annual, more than 450 days and no less than hearing conservation training program not triennial, training. They all noted 280 days. See § 227.119(a)(1). The for all employees included in the that training is very important, railroad shall require each employee to hearing conservation program. explaining that motivation and complete the training at least once every LIRR submitted comments about the education of employees is a key element 1095 days. See § 227.119(a)(2). These training requirement generally. They to hearing conservation success and is provisions are identical to those in noted that they already have a four-day one of the most effective and critical § 227.109(f)(2) on audiometric testing. process to re-certify/re-qualify crews (on components of a HCP. Michael Fairchild With respect to the 450-day provision, rules, air brakes, and parts 238 and 239). and Associates doubted that employees FRA is trying to give railroads sufficient To add hearing training would extend would retain information if not time to train the large number of the process to five days, which LIRR reinforced annually. Similarly, NIOSH railroad employees spread through the asserts would be at a significant cost asserted that training would be more country while also trying to ensure that and with added administrative burdens. effective if presented annually, based on the training sessions are appropriately As FRA has noted earlier in preamble, the acquisition, retention, and spaced. This section requires that every this rule evolved out of the RSAC application of new knowledge and employee be offered training every process, of which several railroad skills. The commenters also noted that calendar year but to prevent training in representatives were members. Those the success or failure of HCPs has been two calendar years from being too far members felt that this rule would not be shown to depend on the ‘‘buy-in’’ of apart, is providing that the training overly burdensome on railroads, employees. They explained that training interval may not exceed 450 days. especially considering that most not only educates employees but it In order to prevent railroads from railroads already have HCPs in place. serves to reveal problems that offering training too close together, FRA Moreover, the RSAC Working Group employees face in complying with has established a minimum interval of and FRA, as well as the majority of components of a HCP. The commenters 280 days (or 9 months). This provision other commenters, feel that hearing also pointed out that an annual prevents railroads from offering training conservation is an important enough requirement would be consistent with to an employee back-to-back, e.g., offer issue to warrant this rulemaking and its OSHA’s general industry standard as training in December 2006 and again in associated training. In fact, one well as with other federal agencies such January 2007. FRA chose 280 days, commenter, a consultant who has as MSHA and DOD. Aearo Company, because it allows for equal increments consulted on over 200 hearing loss acknowledging FRA’s desire to of time in relation to the 450 day claims, wrote that, based on his minimize intrusion into the mobile requirement. This 280 day provision is observations, he believes that one of the railroad workforce, suggested that if not a product of the RSAC Working two main reasons for cab employees’ FRA had to reduce training frequency, Group consensus. FRA added this

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provision after the RSAC Working The RSAC Working Group discussed the unique needs of the railroad Group meeting. this issue and recommended to FRA to operating environment—e.g., the mobile Section 227.119(b) is new to FRA’s leave this provision as proposed. The nature of his or her work, the variety of rule; no comparable provision exists in RSAC Working Group felt that it was noise sources to which he or she is OSHA’s standard. Section 227.119(b) not necessary to require early training, exposed—while FRA’s training program identifies the times when a railroad since the important issue is employee does. These items were added to should initiate training for employees. protection and employees are otherwise address the unique aspects of the For new employees, a railroad shall protected during this interim, initial railroad operating environment—e.g., provide training within six months of period through the operation of other the mobile nature of the employees’ the employee’s first tour of duty in a provisions of the rule. Other provisions work, the variety of noise sources to position identified within the scope of of the rule ensure that the employee is which they are exposed, etc. These this part. For existing employees, a protected. Specifically, if a new items are discussed in the following railroad shall provide training within employee has not yet received a paragraphs. two years of the effective date of this baseline audiogram and is exposed to Section 227.119(c)(6) requires rule, except for railroads with 400,000 sound exceeding an 8-hour TWA of 90 railroads to provide an explanation of or less employees hours, who shall dB(A), the employee is required to use noise operational controls, where used. provide training in three years.66 Note HP. See § 227.115(c)(2)(i). Plus, the This is most relevant for short lines, that FRA has changed some of the railroad is supposed to ensure ‘‘proper because they are most likely to use noise formatting in this section. The substance initial fitting and supervise the correct operational controls. of the provision remains the same. use of hearing protectors.’’ See Section 227.119(c)(7) requires railroads to provide employees with FRA received several comments on § 227.115(f). Thus, a new employee, if exposed to hazardous noise, will receive general information concerning the this paragraph. One comment was to expected range of workplace noise change the word ‘‘after’’ to ‘‘of’’ before HP and basic instructions on its use. Moreover, railroad members of the exposure levels associated with major the words ‘‘employee’s first tour of categories of railroad equipment and duty.’’ FRA took that suggestion and RSAC Working Group felt that this issue was moot given standard practice. They operations (e.g., switching and road changed the rule accordingly. The explained railroads typically provide assignments, hump yards proximate to revised provision now permits an new employees with initial training retarders) and appropriate reference to employer to provide the training before, covering all topics when they start their requirements of the railroad concerning in addition to after, the employee’s first jobs, and therefore new employees are the use of hearing protectors. As tour of duty. generally trained before they are originally conceived, this provision FRA sought, and received, several exposed to noise. Some employees required railroads to provide employees comments on the start date. FRA asked might even receive their noise training with workplace noise exposure levels, whether railroads should initiate as part of their pre-employment including examples of where hearing training no later than six months after training. protectors are, or are not, necessary; the the employee’s first occupational Section 227.119(c) lists the items that types of equipment that emit excessive exposure or whether railroads should a railroad should address in its hearing noise; and the types of operations that initiate training prior to the expiration conversation training program and produce excessive noise. During of the six months (i.e., when the include in its training materials. This is meetings at the proposed rule stage, occupational exposure occurs or before a list of the minimum items that a some Working Group members the occupational exposure first occurs). railroad should address; railroads are expressed concern that railroads would ASHA, AIHA, NHCA, NIOSH, Aearo free to include additional items if they have to provide detailed information Company, and Theresa Schulz all so wish. The first five items listed in specific to each employee. That would responded that it is best to train §§ 227.119(c)(1) through (5) are the same have been administratively difficult for employees and to fit hearing protection items that OSHA requires in its railroads. before employees enter noise-hazardous standard. See 29 CFR 1910.95(k)(3). After discussing the issue, the RSAC areas. AIHA wrote that the 6-month and Those items are: The effects of noise on Working Group recommended that the 2-year windows were ‘‘unnecessary and hearing; the purpose of hearing requirement be expressed in more counterproductive.’’ The commenters protectors; the advantages, general terms. FRA accepted that explained that there are negative disadvantages, and attenuation of recommendation. The general language consequences of allowing employees to various types of hearing protectors; addresses the railroad’s administrative work in noise hazardous environments instructions on selection, fitting, use, concerns and also addresses FRA’s for up to the proposed time periods in and case of hearing protectors; and the intention that railroads provide a that it provides a substantial time frame purpose of audiometric testing and an general discussion of the ranges of noise for employees to develop bad habits and explanation of test procedures. exposure levels that an employee might to experience incipient hearing loss. The remaining six items found in encounter. FRA does not intend that a Theresa Schulz wrote that, at the very §§ 227.119(c)(6) through (11) are railroad provide an individualized minimum, railroads should have to train additional items which FRA has added report to each employee. new employees within 6 months. The to its standard. and which do not exist Furthermore, FRA notes that railroads commenters also pointed out the in OSHA’s standard. may provide details of requirements for importance of training. Aearo Company Given that FRA has added these the use of hearing protectors during explained that HCP training should be additional training requirements, it is safety or operating rules training, if the viewed and treated as equally as not sufficient for railroads to use only a railroad so chooses, as long as the important as the other pieces of safety ‘‘canned’’ OSHA training program railroad retains the appropriate records information that a new employee (although a ‘‘canned’’ OSHA training required by this part. This should receives. program does suffice as training for the address railroad representatives’ OSHA-related elements in the FRA concerns about the timing of this 66 For a discussion on small entities, see the training program). A ‘‘canned’’ OSHA training. Some railroad representatives section-by-section analysis for § 227.103(a). training program does not contemplate asserted that this material was already

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covered at the time of the audiometric § 229.121(b). This information will be The AAR replied, objecting to FRA’s test. Others asserted that a portion of helpful to employees, because it will conclusion ‘‘on the desirability of this information was already covered in enable them to identify when noise classroom training over training by the railroad safety rules training. exposures are excessive in the video or computer.’’ The AAR stated Accordingly, FRA did not specify the locomotive cab. Also, it will educate that there was no empirical data delivery time for these training employees, so that they know how to presented to the Working Group that requirements. A railroad may choose to respond to excessive noise in the would support the proposition that present this information at the safety locomotive cab. These two training traditional teaching methods are more rules training, operating rules training, elements were not found in the NPRM effective than video or computer during audiometric testing, and/or at consensus document that the RSAC training. The AAR pointed out that any other time. A railroad can even forwarded to FRA. Rather, these two there are benefits to video and computer present this information to an employee elements were added after OSHA’s training, such as avoiding distractions at different times, as long as an review of the NPRM during the pre- inherent to teaching groups and employee can reasonably understand publication clearance process. potentially maximizing the attention to the information and make sense of it. FRA sought comment on these two the training by allowing the employee to Section 227.119(c)(8) requires items which FRA added as a result of choose the time of the training. The railroads to explain the purposes of OSHA’s review of the proposed rule. AAR explained that computer and video noise monitoring and a general Most commenters, including ASHA, training are well accepted by description of noise monitoring AIHA, and Theresa Schulz, supported professional educators and felt that they procedures. The intention of this FRA’s decision to include these should be maintained as options. provision is that railroads will provide additional items. One commenter wrote Several other commenters, including employees with an understanding of that the additional requirements were ASHA, AAA, and AIHA, were in favor how monitoring is conducted and how ‘‘excellent.’’ The commenters went on to of interactive training. They stated that monitoring helps to identify potentially explain that these requirements will interactive training is usually more high exposures of excessive doses. allow an employee to recognize effective, if not the ‘‘most effective way Railroads do not have to provide excessive noise and use HP, which will to communicate the message.’’ They employees with a complex, technical provide an early intervention to prevent explained that live training permits discussion. Rather, railroads should hearing loss. The AAR requested that employees to interact with the provide employees with enough FRA clarify what would be adequate to instructor and to ask questions. Several information so that they know what will satisfy § 227.119(c)(10) (i.e., train mentioned that it provides a ‘‘teachable occur and what equipment will be used employees on how to determine what moment,’’ where an employee is open to during monitoring. can trigger an excessive noise report). receiving information. ASHA and AIHA Section 227.119(c)(9) requires During the post-NPRM RSAC Working acknowledged, however, that face-to- railroads to provide information Group meeting, the AAR withdrew this face training can be ‘‘burdensome and concerning the availability of a copy of comment, noting that definition in the costly’’ and so ASHA suggested an this rule, the requirements of this rule rule and preamble language in the alternative whereby employers would as they affect the responsibilities of NPRM (much of which is reproduced in provide resources for answering employees, and employees’ rights to this final rule) sufficiently defines employee questions as they arose, access records required under this part. excessive noise report. The AAR also instead of conducting face-to-face Because FRA mandates that employees noted that training should include the training. participate in the audiometric testing definition of excessive noise. FRA In this final rule, FRA does not program specified in this rule, it is agrees and encourages railroads to share specify a delivery method for training. important that the railroads, at a not only the definition of ‘‘excessive A railroad can provide the training minimum, explain this rule’s noise’’ with employees but also the information through any medium it requirements as they affect their information contained in the preamble chooses. Given the nature of the mobile employees. This provision is not too discussion on ‘‘excessive noise.’’ railroad workforce and the cost of this different from OSHA’s requirement; Another issue which arose in the type of training, FRA recognizes that OSHA’s rule contains a provision context of training is delivery method. traditional classroom/live training could whereby the employer shall make The NPRM did not specify the delivery be costly and administratively available copies of this standard and method for training. FRA noted that burdensome. However, FRA reiterates shall also post a copy in the workplace. traditional classroom training is the its belief that traditional classroom See 29 CFR 1910.95(l)(1). FRA had, at most beneficial, followed by interactive training (i.e., face-to-face or live) is an one point, considered a more general (e.g., computer) training, and then video excellent and often highly effective provision that would have broadly training. It is FRA’s understanding that method of training. Traditional required railroads to provide most class I railroad employees are classroom training is beneficial, because information on the requirements of this generally trained by viewing a video it allows employees to ask questions subpart. However, FRA decided that presentation or by operating an and receive immediate feedback. this more narrow requirement struck a interactive computer program. Similarly, training with interactive better balance between the need to Railroad representatives felt strongly components (e.g., the ability to test provide employees relevant information that FRA should not mandate classroom employees’ knowledge of the subject and the scope of the information that training. They felt that any requirement matter as they learn and the ability of railroads will have to provide. that departs from a standardized OSHA employees to obtain further information Section 227.119(c)(10) requires training program might result in during the session) creates a more railroads to train employees on how to significantly increased costs with effective learning environment than determine what can trigger an excessive questionable additional benefit. FRA training without those components. noise report, pursuant to § 229.121(b). sought comment as to whether railroads FRA recognizes that there are many Section 227.119(c)(11) requires railroads should conduct training through the use creative training options, especially to train employees on how to file an of traditional classroom methods, video given today’s technological capabilities. excessive noise report, pursuant to presentations, or computer training. For example, a railroad could use on-

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line interactive training. Or a railroad works in the same yard where the FRA require employers to retain both could supplement a computer or video monitoring occurred. However, FRA sets of records for the duration of the presentation with content experts that never intended for an individual employee’s employment plus 30 years. are available through e-mail or phone. It employee to be able to obtain the They explained that this would be is FRA’s belief that these methods, individual testing records of another consistent with other health record while not necessarily exactly equivalent employee. FRA notes that it realized the maintenance standards. to classroom training, can be effective in need for this change after the RSAC FRA notes that the three-year- conveying necessary information to Working Group meeting and so this retention period in the proposed employees. change was not the result of the RSAC § 227.121(b)(2) was an oversight. FRA consensus recommendation. and the Working Group had sought to Section 227.121 Recordkeeping Section 227.121(a)(2) permits records track OSHA’s requirement and in doing This section contains the to be kept in electronic form. FRA has so, FRA failed to take into account the recordkeeping requirements for this added language to this section since the connection between OSHA’s general regulation. Section 227.121(a) sets out proposed rule. FRA added this language industry standard in 29 CFR some general recordkeeping provisions, since the post-NPRM RSAC Working 1910.95(m)(3)(i) and OSHA’s access to and §§ 227.121(b) through (f) specify the Group meeting, and so it is not a employee exposure and medical records records which railroads must maintain product of the RSAC consensus standards in 29 CFR 1910.1020(d)(1)(ii). and retain. FRA is granted authority to recommendation. With this additional While OSHA’s general industry inspect records by 49 U.S.C. 20107. language, FRA has clarified the standard requires employers to retain Pursuant to that authority, FRA must act requirements for the use of electronic noise exposure measurements for 2 within certain parameters when records. These requirements are almost years, OSHA’s access to records inspecting records. FRA must enter identical to the electronic recordkeeping standards requires employers to retain upon property and inspect records at a requirements found in FRA’s existing employee exposure records for at least reasonable time and in a reasonable track safety standards, § 213.241(e), 30 years. FRA should have tracked the manner and must seek records that are though FRA has tailored them slightly retention requirements in 29 CFR relevant to FRA’s investigation. to fit the nature of noise records. Section 1910.1020, because FRA employee Section 227.121(a)(1) addresses the 227.121(a)(2) allows each railroad to exposure measurement records more availability of records. Section design its own electronic system as long closely resemble employee exposure 227.121(a)(1) provides that a railroad as the system meets the specified records than noise exposure shall make all records available for criteria in §§ 227.121(a)(2)(i) through measurement records. Accordingly, FRA inspection and copying/photocopying to (v), which is intended to safeguard the is correcting its original mistake. representatives of FRA upon request; integrity and authenticity of each Section 227.121(b)(2) requires railroads make an employee’s records available record. Section 227.121(a)(3) discusses to maintain employee exposure for inspection and copying/ the transfer of records from a railroad measurement records for the duration of photocopying to that employee, former that ceases to do business. the covered employee’s employment employee or such person’s Section 227.121(b) requires railroads plus thirty years. FRA notes that the representative upon written to maintain and retain employee noise Working Group members indicated that authorization by such employee; make exposure measurement records. In the most major railroads are already exposure measurement records for a NPRM, FRA proposed to require retaining these documents for this time given run or yard available for railroads to retain employee exposure period, so this requirement will be inspection and copying/photocopying to measurement records for three years. consistent with current practice. all employees who were present in the Several commenters voiced strong Section 227.121(c) requires railroads locomotive cab during the given run opposition to this proposal. NHCA to maintain employee audiometric test and/or who work in the same yard; and wrote that it was ‘‘unrealistic,’’ and records. Consistent with the retention make exposure measurements for Theresa Schulz wrote that it was a period for § 227.121(b), FRA requires specific locations available to regional ‘‘questionable practice.’’ Many railroads to maintain these records for or national labor representatives, upon commenters noted that there was a the duration of the covered employee’s request. marked inconsistency between this employment plus thirty years. In This section has been revised since requirement (i.e., retaining exposure § 227.121(c)(1), FRA specifies the items the proposed rule. FRA has formatted it records for 2 years) and § 227.121(c)(2) which railroads must include in the slightly differently and has better (i.e., retaining audiometric test records audiometric test records. FRA included clarified who can have access to which for the duration of the covered in the NPRM all of OSHA’s items (see records. Along those lines, FRA revised employee’s employment). 29 CFR 1910.95(m)(2)(ii)) except for the provisions found in Wilson, Ihrig, & Associates noted that one, ‘‘the employee’s most recent noise § 227.121(a)(1)(i), (ii), and (iv) and the three-year requirement could be exposure assessment.’’ NHCA, AIHA, added § 227.121(a)(1)(iii). The proposed detrimental to an employee’s ability to Theresa Schulz, and ASHA indicated rule seemed to permit an individual file a Federal Employers Liability Act that they think FRA should have the employee to obtain any records (FELA) claim. According to Wilson et same recordkeeping requirements as (including audiometric testing/medical al., an employee’s FELA claim is OSHA, including the provision which records) required under this part of supported or refuted using previously FRA eliminated in the NPRM. In another individual employee. FRA did obtained-noise exposure information. If addition, as NHCA explained, ‘‘this not think that was appropriate since it employers aren’t required to keep those important piece of information provides raises privacy concerns. What FRA records, they won’t keep them, and then assistance to the professional reviewer intended in the NPRM and what is more employees will have great difficulty who must make follow-up decisions explicit in this final rule is that making a hearing loss claim because based on the audiometric record.’’ individual employee would be able to they will not have information they FRA agrees that this information is receive the records of a monitored run need. Several other commenters, important, however, FRA believes that if the employee was in the cab during including ASHA, Theresa Schulz, the rule already provides for the the monitoring and/or if the employee AIHA, and NHCA, recommended that retention of this item. The railroad will

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already have a copy of the employee’s unnecessary to include the name of the these copies and records for three years. most recent noise exposure assessment individual supervising the HCP. It is This is a requirement that is new to pursuant to § 227.121(b). As such, there important to include the name of the FRA’s rule; it is not in OSHA’s general is no need to duplicate the requirement individual conducting the test; industry standard for noise. ASHA, in § 227.121(c). In addition, as FRA therefore, the rule, in § 227.121(c)(1)(iii), AIHA, and Theresa Schulz suggested pointed out in the NPRM, it is requires railroads to include that that it might be too burdensome for impracticable to expect railroads to information. Moreover, it is important to railroads to have to keep copies of all store the employee’s most recent nose ensure that the individual conducting the training materials, and so they exposure assessment with the the test is qualified, and so the rule suggested that FRA instead require audiometric test records. Realistically addresses that issue in § 227.109(c). railroads to document the date, content, speaking, the individual performing the However, neither the Working Group attendees, and faculty for each training employee’s audiometric test would not nor FRA saw the need to require program. The Working Group have access to the noise measurement railroads to record the name of the considered this recommendation but data and thus would not be able to enter individual supervising the HCP, and so decided not to adopt it. FRA agrees and it on the audiogram. FRA does not require railroads to accordingly, FRA is leaving this With respect to § 227.121(c), several include this additional item in the provision as proposed in the NPRM. commenters, including AIHA, ASHA, audiometric test record. Section 227.121(f) requires railroads and Theresa Schulz, recommended that FRA is ‘‘grandfathering’’ certain pre- to maintain a list of employees who FRA require railroads to include existing baseline audiograms depending have experienced a standard threshold additional information in the on the conditions under which the shift (STS) within the prior calendar audiometric test records. Specifically, audiometric test for that baseline year. A STS should be noted on the list they suggested that railroads record: (1) audiogram was conducted. For a for the year in which it occurred; the The model and serial number of the complete discussion of the STS need not be re-entered on the list audiometer used for testing; (2) the grandfathering provisions, see the for subsequent years. The final rule measurements of the background sound section-by-section analysis for requires railroads to retain this list for pressure levels in the audiometric test § 227.109(e)(2). In short, FRA expects five years. Although OSHA does not room; and (3) the name of the individual railroads to make a good faith effort in require employers to maintain this supervising the hearing conservation obtaining the audiometric test records information, FRA requires this program. FRA, in conjunction with the for grandfathered baseline audiograms. information, because it can help assess Working Group, decided to require At the same time, FRA understands that, the effectiveness of a railroad’s HCP railroads to include the first item but in certain cases it might be very over time. This information is not not the second and third item. difficult, if not impossible, since the reportable per se, under part 225. With respect to the first item, there baseline audiograms were, in many However, it triggers an evaluation as to was consensus among the members of cases, obtained years ago. Accordingly, work-relatedness 67 and if it is work- the Working Group that there was value FRA recognizes that railroads will related, then the railroad would have to in including the model and serial sometimes be unable to provide some of record/report it as required by part 225. number of the audiometer. That the required information from the With respect to § 227.121(f), FRA sought information can help an employer to audiometric testing records for comment as to whether five years was easily and readily identify a problem grandfathered baseline audiograms. an appropriate amount of time for audiometer. This is especially the case Section 227.121(d) requires railroads railroads to retain a list of STSs. FRA where an employer uses several to maintain a record of all positions did not receive any comments and audiometers and has intermittent and/or persons designated by the accordingly is leaving it as proposed. problem results. The Working Group railroad to be placed in a HCP. The rule members also noted that, practically requires railroads to retain these records Appendices to Part 227 speaking, the burden of including this for the duration of the designation. LIRR In the proposed rule, FRA had information on the audiometric test wrote that, because of the their bidding adopted appendices A–F from OSHA’s record is minimal. Most audiometers and bumping process, it would be noise standard. For the most part, FRA’s already automatically include this administratively burdensome and costly proposed appendices were virtually information on the audiogram. for them to comply with this identical to the appendices for OSHA’s Accordingly, FRA, with the Working requirement. The preamble to the NPRM general industry standard. FRA has Group consensus, added a provision (see 69 FR 35169) had been missing the since made a number of substantive whereby railroads must include the word ‘‘or,’’ which may have been what changes to the appendices. Those model and serial number of the generated this comment. Given the changes are discussed below and/or in audiometer used for testing on the ‘‘and/or’’ nature of this provision, a the relevant section-by-section analysis audiometric test record. See railroad is compliant with this provision above. Also please note that FRA has re- § 227.121(c)(1)(vi). if they simply list the positions that are numbered much of the appendices that With respect to the second item, the required to be placed in a HCP were carried over from the proposed Working Group noted that this issue (although they can also, or in addition, rule so that the numbering is consistent was already addressed elsewhere in the list the persons that are required to be across appendices. rule. Section 227.121(c)(1)(v) requires placed in a HCP). Neither FRA nor the With respect to appendices in general, railroads to maintain in the audiometric Working Group believe that this is one commenter suggested that FRA add test records ‘‘accurate records of the overly burdensome, and so FRA is a non-mandatory appendix that contains measurements of the background sound retaining the proposed requirement in pressure levels in audiometric test the final rule. 67 For purposes of the § 227.121(f) list, a railroad rooms.’’ As such, FRA thought it was Section 227.121(e) requires railroads must maintain a list of all STSs regardless of work- unnecessary to include this additional to maintain copies of the training relatedness. For purposes of part 225, a railroad must report STSs that meet the reporting criteria item in the audiometric test record. materials required by § 227.119 and a (i.e., among other things, only those that are work- With respect to the third item, the record of all employees trained. The related). See § 225.5 for the definition of Working Group felt that it was final rule requires railroads to retain ‘‘occupational hearing loss’’ and § 225.19(d).

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two tables, Tables 1–1 and 1–2, from the proposed in the NPRM was adopted Appendix D. It sets the background 1998 NIOSH Revised Criteria from OSHA’s general industry noise noise levels for hearing tests conducted Document.68 The NIOSH tables are standard. Proposed Appendix C with insert earphones. For a discussion analogous to Tables A–1 and A–2 in discussed self-recording audiometers of the changes made in the final rule, mandatory Appendix A in FRA’s rule. and also included one sentence see the section-by-section analysis for The difference is that the NIOSH tables addressing a requirement in the event § 227.111(e). are based on an 85 dB(A) exposure limit that pulsed-tone audiometers are used. and a 3 dB exchange rate, and the FRA Several commenters recommended that Appendix E to Part 227 tables are based on a 90 dB(A) exposure FRA delete all references in the rule to The proposed Appendix E addressed limit and a 5 dB exchange rate. NIOSH self-recording audiometers. The believes that the additional non- commenters explained that self- the acoustic calibration of audiometers. mandatory appendix would supply recording audiometers are no longer Most of the information in that additional materials to help users make produced, supported, or used, and so appendix was based on an outdated informed decisions about preventing there is no point to reference them. ANSI standard, and so FRA removed the hearing loss among railroad employees. Another commenter explained that it appendix. FRA put the relevant FRA and the Working Group decided was unnecessary to discuss the requirements for calibration in not to add these tables based on the ‘‘possibility’’ of using pulsed-tone § 227.111(f)(2). For a discussion of the view that including several conflicting audiometers, since they are routinely changes in the final rule, see the tables is more likely to create confusion used. section-by-section analysis for than provide assistance. FRA and the RSAC Working Group § 227.111(f)(2). agreed to incorporate these technical In this final rule, FRA has placed the Appendix A to Part 227 changes in the final rule. FRA removed requirements for insert earphones in Appendix A is a mandatory appendix all references to self-recording Appendix E. Appendix E is a mandatory that provides tables with which an audiometers, including references in the employer can compute an employee’s proposed § 227.111(c) and the proposed appendix that establishes the noise dose. FRA has made some changes Appendix C. With the self-recording requirements that railroads must use if to Appendix A, most of which are audiometer discussion removed, there they choose to conduct hearing tests discussed above in the section-by- was almost nothing left in Appendix C. with insert earphones. For a discussion section analysis for § 227.105. FRA also FRA modified the remaining sentence to of this appendix, see the section-by- made a purely cosmetic change, which address the commenter’s concern by section analysis for § 227.111(c). removing the phrase ‘‘in the event that is discussed here. At the suggestion of Appendix F to Part 227 Aearo Company and with the agreement pulsed-tone audiometers are used’’ and of the RSAC Working Group, FRA moved the modified sentence to Appendix F is a non-mandatory italicized all levels above 115 dB(A) in § 227.111(b)(1). appendix that employers can use to Table A–1. FRA (and OSHA, from FRA further revised the requirement calculate and apply age correction to whom FRA adopted this appendix) for pulsed-tone audiometers, as a result audiograms. For a discussion of the included these levels, not because they of CAOHC’s comments. CAOHC comments that FRA received related to recommended that FRA’s specifications are permitted levels, but because they Appendix F, see the section-by-section for pulsed stimuli should be 200 can be necessary for the computation of analysis for § 227.109(j). noise dose. The commenter pointed out milliseconds on and 200 milliseconds that OSHA had written in the preamble off. They explained this would be Appendix G to Part 227 to their 1981 Hearing Conservation consistent with audiometric Amendment 69 that they were italicizing instrumentation. FRA agreed that In the final rule, FRA has placed in these levels, however, there were no requirement should be expanded but Appendix G the schedule of civil italics in the regulatory text of OSHA’s chose to do so in a different manner. penalties that FRA will use in final rule. By italicizing these levels and Using the requirement from ANSI S3.6– connection with part 227. This is including a footnote to Table A–1, FRA 2004, FRA wrote that ‘‘Pulsed-tone different than the Appendix G that was makes it clear that these levels are audiometers, where used, should be proposed in the NPRM. The proposed different from the others. It allows FRA used with the following on and off Appendix G was an informational index to avoid giving the impression that these times: F–J and J–K shall each have that provided employers with basic levels are permitted. values of 225 ± 35 milliseconds.’’ information on complying with the Because FRA had removed proposed noise monitoring provisions contained Appendix B to Part 227 Appendix C, FRA also removed the in the rule. It was the same as OSHA’s Appendix B is a mandatory appendix. language in the proposed § 227.109(d) Appendix G. In the proposed rule, FRA FRA identifies the methods which that referred to Appendix C. Rather than sought comment on whether or not FRA railroads should use for estimating the renumber the remaining paragraphs of should adopt this appendix. FRA did adequacy of HP attenuation. FRA has § 227.109, FRA has intentionally left not receive any comments on that issue. revised this appendix since the § 227.109(d) blank in the final rule. FRA has since removed the proposed In this final rule, FRA has inserted a proposed rule. For a discussion of the Appendix G from this final rule. It new Appendix C. For a discussion of changes, see the section-by-section addressed conventional workplaces, analysis for § 227.117. new Appendix C , please see the section-by-section analysis for rather than the railroad industry. As Appendix C to Part 227 § 227.109(i). such, it did not accurately characterize Appendix C is a mandatory appendix the noise environment in the locomotive Appendix D to Part 227 that contains procedures for revising cab. In addition, much of the general baseline audiograms. Appendix C as Appendix D addresses the material in that appendix is also requirements for audiometric test covered in the preamble discussion of 68 See § III(D) above for a related analysis. rooms; it is a mandatory appendix. FRA this NPRM, and so it is unnecessary to 69 46 FR 4078–1 (January 16, 1981). has added a row to the Table in repeat in an appendix.

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Part 229—Railroad Locomotive Safety masker).’’ 70 In the railroad operating calculated from a given set of sample Standards environment, the masked sound can be data. For example, if the upper 99% an alarm or warning sound, speech from confidence limit for the noise level of a Section 229.4 Information Collection a coworker or over a radio, or a sound population of locomotives is 87 dB(A), This section notes the provisions of produced by a machine (e.g., air brake then in a sample of 100 locomotives, at this part that have been submitted to the exhaust, engine noise). Masking least 99 will be found to have a noise Office of Management and Budget becomes a problem when an intentional level of 87 dB(A) or less. or incident sound that is conveying (OMB) for compliance with the Section 229.121 Locomotive Cab Noise Paperwork Reduction Act of 1995. See useful information is rendered inaudible 44 U.S.C. 3501 et seq. or when speech that is conveying (a) Performance Standards for critical information is rendered Locomotives Section 229.5 Definitions unintelligible. Where noise masks FRA commends, railroads and necessary speech or other warning The term ‘‘Decibel’’ refers to a unit of manufacturers for their efforts in making signals, it disrupts speech, interferes locomotives quieter. In recent years, measurement of sound pressure levels, with the communication, and prevents and the term ‘‘dB(A)’’ refers to the locomotive manufacturers have built a cab occupant from safely performing new locomotives with better sound sound pressure levels in decibels his or her job. As these employees measured on the A-weighted scale. reduction techniques and with lower operate large pieces of equipment and noise exposure levels. Many new These terms are commonly accepted transport large quantities of (sometimes and widely used by noise professionals. locomotives now have several of the dangerous) materials, there are serious following features, which reduce the cab The term ‘‘Excessive Noise Report,’’ consequences for errors in operation. noise exposure level: Horn placement in This rule does not identify the precise as used in § 229.121(b), refers to a report the center of the locomotive; insulation decibel level at which communication is filed by a locomotive cab occupant that of the cab; insulation of the cab floor; deemed to have been ‘‘significantly indicates that the locomotive is venting the exhaust from the air brake interfered,’’ because it is impossible to producing an unusual level of noise system outside of the cab; and identify any single number due to the such that the noise significantly installation of air conditioning in the fact each individual has a different interferes with normal cab cab to allow cab windows to be closed. communications or that the noise raises sensitivity to hearing and different In addition to the above features, a concern with respect to hearing susceptibility to hearing loss. Moreover, manufacturers have developed and conservation. the identification of a single decibel offered ‘‘quiet cabs,’’ which isolate the level would be meaningless to cab When a cab occupant in a locomotive cab occupant from noise sources of both occupants. As crew members do not high and low frequencies. One operating in service experiences an have measurement instrumentation with unusual noise level, he or she may file manufacturer, in particular, has them on their runs (nor do they know developed a locomotive cab that is a report with the railroad. In that report, how to use them), the crew occupants the occupant should indicate those vibrationally isolated from the would be unable to determine the locomotive body, thereby resulting in items which he or she believes are precise decibel levels during any single substantially contributing to the noise. substantially less noise in the cab and run. arguably less vibration in the cab. The An ‘‘unusual level of noise’’ refers to a A noise level raises hearing manufacturer has recently discontinued noise level in the cab that is much conservation concerns if, for example, it offering this feature. Another higher or much different than that to causes the occupant to question the manufacturer has developed a which the occupant is normally effectiveness of his or her hearing locomotive design that isolates the accustomed; it is, for example, a banging protection or if the occupant is diesel engine, which decreases the or squealing sound. It is, however, not experiencing new noise-related medical transfer of noise and vibration just any irritating noise. Not only must conditions such as tinnitus (i.e., a throughout the locomotive. the noise level be excessive and ringing, buzzing, roaring, or other sound Manufacturers claim that they can unusual, but it must also either (1) in the ear). This rule operates under the achieve normal noise exposure levels of significantly interfere with normal cab assumption that the person identifying 75 dB(A) in these locomotive cabs. At communications and/or (2) raise hearing this hearing conservation concern is an the time of the issuance of this rule, conservation concerns. individual who has been trained in these units are not yet pervasive hearing protection (as most employees A noise level significantly interferes throughout the industry. likely will be) and understands the basic with normal cab communications if it Section 229.21(a)(1) establishes a principles of hearing protection and prevents the locomotive cab occupants design requirement for all locomotives attenuation—that is why this person is from safely and effectively conducting that are manufactured by a specified informed enough to determine that there their job assignments. Noise can degrade date. That date is 12 months after this is a hearing conservation concern. job safety in several ways. Certain rule is published in the Federal The term ‘‘Upper 99% Confidence parameters, such as high noise levels, Register. The proposed rule had set that Limit’’ is a statistical probability high-frequency noise; and intermittent, date at January 1, 2005. Given that time statement. A confidence limit refers to unexpected, uncontrollable, or has passed, FRA decided to extend that the lower and upper boundaries of a continuous noise can jeopardize job date. This section provides that all statistic confidence interval. A safety by distracting, disrupting, or locomotives of each design or model confidence interval gives an estimated annoying an individual. In addition, shall average less than or equal to 85 range of values which is likely to noise can be a safety hazard if it dB(A), with an upper 99% confidence include an unknown population ‘‘masks’’ alarm signals or warning limit of 87 dB(A). This performance parameter. The estimated range is shouts. Masking is ‘‘an increase in the standard ensures that newly-built threshold of audibility of one sound (the 70 ‘‘Speech Communications and Signal Detection locomotives will not produce excessive masked sound) caused by the presence in Noise,’’ G.S. Robinson & J.G. Casali in The Noise noise levels. For the most part, this of another sound (the masking sound or Manual, 569 (2000). section imposes requirements that

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reflect current equipment and design, place to ensure product consistency. To would be 85 dB(A). Certain railroad and, therefore, they should not impose determine whether the standard in this representatives of the Working Group a substantial burden on railroads or regulation is met, the railroad may rely opposed this provision, because they locomotive manufacturers. FRA has on certification from the equipment felt that it limited their ability to specifically chosen to use the terms manufacturer for a production run. conduct maintenance on equipment. To ‘‘design’’ and ‘‘model.’’ While the term Section 229.121(a)(2) discusses the address those concerns and to produce ‘‘model’’ tends to be accepted issue of alterations on locomotives that a better defined standard, FRA is using terminology in the U.S., the term are manufactured in accordance with the provision now found in the rule ‘‘design’’ is used more internationally, paragraph (a)(1). If the average sound text, which was the provision ultimately and, therefore, the inclusion of both level for a particular locomotive design recommended by the RSAC. terms provides a more complete or model is less than 82 dB(A), a The AAR was not pleased with this understanding of this provision. railroad shall not make any alterations maintenance provision for newly-built FRA received two comments on this that cause the average sound level for locomotives and suggested that FRA requirement. First, an individual BLET that locomotive design or model to instead set the maintenance limit at the member suggested that FRA require exceed 82 dB(A). If the average sound same level as the level for new railroads to check all locomotives in a level for a particular locomotive design equipment level, 85 dB(A). The AAR fleet, not just a percentage. It is a or model is 82 dB(A) to 85 dB(A), believes that 82 dB(A) is ‘‘an artificial common industry practice and an inclusive, then a railroad shall not make number that is not grounded in hearing accepted statistical practice to use a any alterations that cause the average science’’ and that ignores other sampling strategy, and FRA does not see sound level for that locomotive design potentially important realities. As any reason to veer from that practice. In or model to increase to 85 dB(A). The example, they explained that if there this rule, FRA specifies a quality control purpose underlying this provision is was a new technology that permitted process that is consistent with good FRA’s desire that railroads retain increased safety to occupants or practice in modern manufacturing. FRA equipment’s essential quiet cab status increased fuel efficiency but resulted in proposed a 99% upper confidence limit through the life of that locomotive and sound levels about 82 dB(A), railroads for determining that new locomotives especially after the railroad performs could buy this new technology on are being produced in accordance with maintenance on the locomotive. Please newly-built equipment but could not the following characteristics: Where the note that FRA has re-formatted this modify existing newly-built equipment mean noise level equals 85 dB and the section slightly since the proposed rule to include it. The AAR stated that their upper limit equals 87 dB, there is a 1% and after the post-NPRM RSAC Working experience has shown that ‘‘reducing chance that sample of locomotives will Group meeting. The changes are sound levels cannot be permitted to exceed a mean noise level of 87 dB (1 intended to better clarify this provision drive design changes focused on a single in 100 samples of appropriate size). This and do not change the substance of this issue (in this case, noise) at the expense procedure is desirable, because it allows section. of reliability and other safety issues.’’ a quality control check on the For purposes of the maintenance The AAR, an active participant in the manufacture of the locomotives with conducted pursuant to § 229.121(a), RSAC Working Group throughout the regard to the rule without imposing replacement in kind is not considered to entire process for this rulemaking, was undue expense on the manufacturer. be an alteration. Replacement in kind present during the post-NPRM Working There would surely be undue expense refers to a situation where an individual Group meeting. The AAR reiterated the on the manufacturer if the manufacturer removes a part and replaces that part point above, stating that they believe 85 had to test all locomotives. with the identical part of the same make dB(A) is a ‘‘safe level’’ from a noise Second, Wilson, Ihrig, & Associates and model. That identical part must be perspective, and so they believe it wrote that the design requirement of 85 of equivalent or better quality. should be the standard for the design dB(A) with an upper 99% confidence In developing this provision, the and the maintenance of locomotives. limit of 87 dB(A) should be a minimum RSAC Working Group considered Other Working Group members requirement. They assert that several other possible provisions. One of expressed serious reservations about locomotives that have been tested to those provisions stated that the railroad that change, explaining that this lower levels should be required to should not alter any portion of the proposed rule was a compromise maintain those lower levels. They equipment originally designed to reduce document, of which the 85 dB(A) further explained that locomotives with interior noise unless the alteration provision represented a great deal of isolated cabs are well known to achieve essentially maintained the existing compromise. The Working Group had noise levels well below 85 dB(A), and noise level or decreased the existing initially considered, among other things, they believe those locomotives should noise level. As that provision was setting the noise level for newly built be required to maintain that lower level. somewhat vague, the Working Group locomotives at 75 dB(A), but had The RSAC Working Group has sought to better define the term lowered that level as a result of recommended, and the FRA has agreed, ‘‘alteration.’’ FRA suggested that an concerns of Working Group members. to leave this provision as proposed. FRA alteration would be permissible if it To attempt to change the terms now and the Working Group is satisfied with only resulted in a modest increase in would veer from the spirit of the the previous consensus that was noise. A modest increase referred to the compromise and from what the RSAC achieved and do not see any reason at lesser amount as between an increase of Working Group had decided was the this point to revise this provision. 3 dB or 85 dB(A). An alteration could most appropriate level. Given that Section 229.121(a)(1) also includes not increase the noise level by more background and given the fact that there requirements for a build provision. A than 3 dB and where the noise level was was no new information upon which to manufacturer may determine the 83 dB(A), an alteration could not act, the Working Group decided to leave average by testing a representative increase the noise level by more than 2 this level as proposed. sample of locomotives or an initial dB. If the noise level was 84 dB(A), an Section 229.121(a)(3) directs railroads series of locomotives, provided that alteration could not increase the noise and manufacturers to conduct static there are suitable manufacturing quality level by more than 1 dB. In all cases, the testing, as specified in Appendix H. controls and verification procedures in maximum permissible noise level Appendix H to part 229 contains a set

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of procedures for conducting in-cab maintenance or attempted maintenance. within the RSAC Working Group.71 This static test measurements on (Records are discussed further in list contains items that are likely to locomotives. Through the static test, § 229.121(b)(4)). deteriorate over time and thus would railroads and manufacturers can If the repair of the item supposedly contribute to the noise level in the cab. determine whether newly-built contributing to the noise requires This includes: defective cab window locomotives meet the requirements of significant shop or material resources seals, defective cab door seals, broken or § 229.121. The rule states that a railroad inoperative windows, deteriorated that are not readily available, the or manufacturer shall follow the insulation or insulation that has been railroad is not required to repair that Appendix H static test protocols to removed for other reasons, and locomotive at the 92-day periodic determine compliance with paragraph unsecured panels in the cab. The list (a)(1). The rule also states that a railroad inspection. In that situation, the railroad also notes that air brakes that vent or manufacturer shall also follow the shall schedule its maintenance of that inside the cab can be a noise source. Appendix H static test protocols to item to coincide with other major The task force recommended the list determine compliance with paragraph equipments repairs commonly used for of items to the Working Group, which (a)(2), but only to the extent reasonably the particular type of maintenance in turn recommended them to the necessary to evaluate the effect of needed. The types of repairs to which RSAC. The RSAC accepted this list and alterations during maintenance. In sum, FRA is referring include difficult-to- recommended it to FRA. FRA adopted then, a railroad or manufacturer must access equipment; vibration-isolating the RSAC’s list, though with one conduct static testing pursuant to systems such as bushings or elastomers; exception. FRA removed ‘‘unsecured paragraph (a)(1) and may conduct static and situations where the railroad had to appurtenances in the cab’’ from the list. testing to determine compliance with replace the insulation padding under One of FRA’s existing regulations, paragraph (a)(2) if they find it is needed. the cab or remove the insulation from § 229.7, addresses this item, so FRA FRA did not receive any comments on the inside of the cab walls. believes it is unnecessary to also this provision and therefore it remains A few commenters suggested that include that item here. Section 229.7 as proposed in the NPRM. FRA should require railroads to perform identifies prohibited acts for locomotive safety standards. It provides that a (b) Maintenance of Locomotives regular, routine maintenance on locomotives (such as adding window locomotive and its appurtenances must Section 229.121(b) governs the noise- be in proper condition and safe to seals or installing minor installation) as related maintenance requirements for operate. locomotives. Please note that FRA has a means of noise control. One While some of the other listed items made some minor editorial changes in locomotive engineer wrote that he might appear duplicative of other this section since the proposed rule and believes that maintenance would greatly regulatory provisions, they are, in fact, after the post-NPRM RSAC Working reduce the noise levels in locomotive not fully addressed by FRA’s existing Group meeting. These changes are cabs. Another engineer wrote that he regulations. For example, cab doors are meant to clarify the language in the rule. believes that interior noise, such as mentioned in § 229.119(a); that section They are minor in nature and do not ‘‘worn bearing in the refrigerator’’ is the provides that ‘‘cab doors shall be change any of the substantive most harmful to one’s ears, followed by equipped with a secure and operable provisions. ‘‘ ‘undercarriage squeaks’’’ at certain latching device.’’ While a secure and Upon receiving an excessive noise speeds and over certain bumps in the operable latching device is one report pursuant to § 229.121(b)(1), a track.’’ The RSAC Working Group, along component of a door, there are several railroad must immediately correct any with the FRA, considered this other components to a door; some of conditions that are required to be recommendation, but decided to leave which could result in noisy conditions, immediately corrected under part 229. the language as proposed. The Working such as door hinges, missing doors, or Examples are broken or missing Group put a great deal of time and a damaged door. Another item on the windows or broken or loose handholds thought into developing these list is cab windows; they are mentioned that are hitting the car body. For all maintenance standards. Without any in § 229.119(b), which provides that other items, the railroad can allow the new information upon which to act, the windows of the lead locomotive shall locomotive to operate until that FRA and RSAC Working Group do not provide an undistorted view of the locomotive’s next 92-day periodic think it is appropriate to revise this right-of-way for the crew from their inspection (as per § 229.23). At that provision. normal position in the cab, and in time, the railroad must inspect the Section 229.121(b)(2) identifies section 223, which discusses window locomotive and attempt to identify the glazing. But there are other conditions item or items that it believes is specific conditions which might lead a locomotive cab occupant to file an that might exist. Worn window framing substantially contributing to the noise. that permits a window to rattle is The mechanical employee inspecting excessive noise report. This list is not meant to be exhaustive; other items not probably not viewed as a defect under the locomotive will be held to the FRA’s existing regulations but it might standard of a reasonably prudent and on this list may also lead an employee to file an excessive noise report. These be an unwanted noise source. The other competent mechanical employee. When listed items—cab window seals, cab the railroad can identify that item, FRA listed maintenance items, along with the design and build requirements in door seals, and insulation—are not expects that the railroad will repair and/ currently covered in this context in any or replace that item. FRA understands § 229.121(a), FRA believes, embody the concept of OSHA’s engineering controls. of FRA’s existing regulations. that there might be situations in which Section 229.121(b)(3) prescribes the Whereas OSHA imposes a general a railroad brings a locomotive to the railroad response to an excessive noise requirement on employers to use shop and makes reasonable efforts to report. The rule provides that a railroad engineering controls, FRA identifies identify a condition but is unable to do has an obligation to respond to an specific items that railroads must so. FRA does not intend to penalize a excessive noise report that a locomotive railroad in those situations. The railroad address. This particular list evolved out of discussions of an engineering shall maintain a record of the excessive 71 See § III(C) for a discussion of the engineering noise report, as well as records of any controls task force, a smaller group controls task force.

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cab occupant files with the railroad. integrity and authenticity of each that would not necessarily be replicable This sentence, which was not contained record. during static testing. in the RSAC’s recommendation for the Pursuant to § 229.121(b)(4)(ii), The RSAC Working Group, with FRA, NPRM, makes explicit a railroad’s railroads shall retain these records for again concluded that it is best to retain obligation to make an appropriate 92 days if they are made pursuant to the proposed language. Railroad response to cab occupant noise § 229.21; or for one year if they are made interests are represented on the RSAC concerns. FRA added this sentence as a pursuant to § 229.23. During RSAC by several railroad representatives, who result of OSHA’s review of the NPRM. Working Group discussions, several had agreed to this position. Moreover, The rest of this section was part of the members suggested that railroads retain this recordkeeping requirement is consensus document from the RSAC. these records for two years. Other consistent with existing requirements The rule also provides that a railroad members suggested that a two-year under §§ 229.21 and 229.23. meets its obligation to appropriately retention requirement was Presumably, railroads have a framework respond to an excessive noise report if unreasonable. The RSAC Working in place for maintaining records for this the railroad makes a good faith effort to Group discussed this two-year retention time frame and so railroads should identify the cause of the reported noise. option and instead decided to easily be able to add these excessive In addition, if the railroad successfully recommend the 92 day/1 year retention noise reports to that framework. Finally, determines the cause of the reported proposal. FRA adopted the RSAC FRA notes that there is no static testing noise, then the railroad meets its Working Group’s recommendation. FRA requirement associated with the obligation to respond to the excessive believes the 92 day/1 year retention requirements in § 229.121(b). The static noise report if it repairs or replaces the proposal is most appropriate, because it testing requirements apply to items causing the noise. is consistent with the retention § 229.121(a). Section 229.121(b)(3) addresses a requirements in existing FRA Section 229.121(b)(4)(iii) requires concern that railroad representatives locomotive inspection regulations at railroads to establish an internal, raised during Working Group § 229.21 (‘‘Daily Inspection’’) and auditable monitorable system that tracks discussions. The representatives were § 229.23 (‘‘Periodic inspection: the above-mentioned records, i.e., the concerned that they might be cited for General’’). noise-related maintenance tasks. The violations in situations where they had There were commenters on both sides system should include, at a minimum, inspected a condition (in response to a of the issue regarding the record information such as the locomotive excessive noise report) but were unable retention period. Wilson, Ihrig, & number, the date of the complaint or to find a problem or where they had Associates wrote that the proposed inspection (from which the maintenance inspected the locomotive, identified the retention periods were too short and task arose), the items thought to have problem, and repaired that problem that FRA should require railroads to caused the problem, and the actions only to later find out that the noise keep these records for the life of the taken to correct the problem. These concern continued to persist. It is not locomotive. With those records, records can be maintained in writing or FRA’s intention to cite railroads in these railroads could then follow a trail of electronically. As this is an auditable situations. The purpose of this noise problems and identify system, FRA will review these records regulation is to address unusually noisy locomotives with chronic noise as part of compliance audits. conditions in the cab and commensurate problems. Wilson et al pointed out that Nothing in § 227.121(b) should be with that, to ensure that railroads make proposed retention period is read to discourage or limit the use of concerted, good faith efforts to identify particularly inadequate given current equipment improvements or and, if possible, correct, such noisy computer technology. innovations that arise after publication conditions. During RSAC Working Group of the final rule. In addition, nothing in Section 229.121(b)(4) contains the discussions, some members noted that § 227.121(b) should be read to recordkeeping requirements for this they do retain repair records for compromise existing duties found in section. The basic requirement is extended periods of times. However, part 229 to make prompt repairs to other located in § 229.121(b)(4)(i). Railroads Working Group members felt that they components and systems (e.g., to shall maintain a record of any excessive did not want to require railroads to keep malfunctioning turbo chargers) that noise report, inspection, test, records for extended periods of times. generate noise in the cab and along the maintenance, replacement, or repair that Because they believe it makes the most wayside. occurred pursuant to § 229.121(b)(1). In sense to treat repairs items related to that record, the railroad shall include noise the same as other related items in Appendix B to Part 229 the date on which the employee filed part 229, the RSAC Working Group, and FRA has amended the existing the excessive noise report; and the date FRA, decided to leave this requirement schedule of civil penalties in Appendix on which the railroad conducted the as proposed. B to Part 229 and listed the penalties inspection, test, maintenance, On the other side of the issue, LIRR that FRA will use in connection with replacement, and/or repair. The railroad asserted that the retention requirement § 229.121. shall note any attempts to identify was too long and that it would result in conditions and any attempts to correct an administrative burden and Appendices F–G to Part 229 conditions. The railroad may maintain significant cost for their commuter Appendices F through G are being these records in written or electronic railroad. In addition, LIRR asserted that reserved for future use. form. If a railroad elects to maintain the the re-creation of potential noise reports records electronically, the railroad must of crews might be impossible during Appendix H to Part 229 satisfy the conditions listed in static testing, thereby resulting in an Appendix H is a set of procedures for § 227.121(a)(2)(i) through (v). These additional maintenance burden. For conducting in-cab static test conditions are almost identical to the example, the crew scenario might measurements of locomotives. Railroads electronic recordkeeping requirements include an Automatic Speed Control and locomotive manufacturers should found in FRA’s existing track safety warning sound while the whistle is use this protocol to determine whether standards, § 213.241(e). These blowing, the bell is ringing, and the they have built and, where necessary, conditions are intended to safeguard the engine is in high throttle position, but maintained locomotives that meet the

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performance standards prescribed in After discussing these concerns, the use a Type 1 instrument, but where a § 229.121(a). In formulating this Working Group reformulated its Type 1 instrument is not available, the protocol, FRA looked to several sources, approach. The RSAC ultimately agreed testing entity may use a Type 2 including the procedures used by with this reformulated approach and instrument. General Electric and General Motors’ recommended it to FRA. FRA adopted An earlier draft of the appendix Electric Motor Division, other that recommendation. The overall goal included more specific calibration regulations concerning railroad noise for Appendix H changed from the requirements, meter specifications, and measurement,72 and various development of an all-encompassing mounting/orientation requirements. The measurement manuals and technical specific, step-by-step measurement provisions in that draft required the reports on transportation noise procedure for testing entities to the testing entity to follow the measurement and analysis.73 development of a minimum set of manufacturer’s instruction for mounting FRA presented an initial draft of measurement requirements necessary and orienting the microphone; to Appendix H at a RSAC Working Group for compliance with § 229.121(a). The calibrate the sound level measurement meeting in July 2002. At that meeting, testing entities could use these system at least annually (as well as the Working Group established an requirements as a basis for developing conduct field/routine calibration); and Appendix H task force to further their own more detailed measurement to use iSLMs that have the capability to develop the procedures. The Task Force, procedures, if they so desired. store for later retrieval the A-weighted, which consisted of FRA, railroad, Accordingly, the recommended equivalent sound level and maximum locomotive manufacturers, and labor practices were revised, modified, and in sound level. In addition, the draft representatives met several times and some cases, removed. The paragraphs suggested that the testing entity use an produced several drafts. The Task Force below will discuss many of the iSLM with tripod mountings or with a made recommendations to the Working recommended practices that were found secured handhold. Some members of Group, which in turn made in the earlier versions of the appendix the RSAC Working Group suggested the recommendations to the full RSAC. but have been removed from this removal of these specific requirements. RSAC ultimately recommended a version. As one RSAC Working Group member version of Appendix H to FRA that FRA While most of these recommended explained, these provisions are not found acceptable. FRA considered all of practices have been removed from this relevant to this section because they the factors and arguments raised in document, FRA still acknowledges their apply to procedures, not these extensive discussions and utility and encourages railroads and instrumentation specifications. FRA produced this appendix. With the manufacturers to use them. FRA would decided that, overall, the removal of exception of changing the measurement like to emphasize that if the agency these provisions would not be metric, FRA did not make any changes were to conduct a compliance test (or detrimental since most of these items to this appendix between the proposed re-test), its representatives (i.e., are already addressed within the ANSI rule and final rule. inspectors) would probably employ standard, and many of these items Earlier drafts of the appendix set forth many of these recommended practices, would be addressed in other sections of procedures that covered a wide range of along with the minimum standards set this appendix. The original draft also topics and addressed many elements out in Appendix H. FRA is likely to use contained citations to certain associated with measurement. Those these measurement practices, because International Organization for drafts contained specific provisions for they constitute good measurement Standardization (ISO) and International data collection, compliance, practices and add to the validity, Electrotechnical Commission (IEC) environmental criteria, test site accuracy, and repeatability of standards.75 At the request of an RSAC requirements, and record keeping. Most measurements. As an aside, FRA notes Working Group member, FRA removed notably, those drafts contained that railroads and manufacturers are free these citations. The RSAC Working recommended measurement practices to use procedures that are more Group member had explained that ISO for each of those provisions. stringent than those provided in this and IEC standards were unnecessary Some members of the Working Group protocol. and that the ANSI standards were sufficient. expressed concern with that approach. I. Measurement Instrumentation They asserted that it was unnecessary to FRA sought comment from the public include most of those recommended This section discusses the on whether FRA should include ANSI measurement practices in the protocol, instrumentation that the testing entity standards only or whether FRA should since some of those recommended should use when conducting also include reference to these ISO and/ practices are common practices already measurements. This testing entity shall or IEC standards. The AAR submitted used in the industry, are frequently use an integrating sound level meter comments, reiterating its support for incorporated in ANSI standards, and are (iSLM) that meets the requirements of using ANSI standards only. ASHA and often explained in manufacturer’s ANSI S1.43–1997 (Reaffirmed 2002), AIHA also noted its approval of using instructions.74 ‘‘Specification for Integrating-Averaging ANSI standards only. Given that Sound Level Meters’’ and shall calibrate response, FRA decided not to add cites 72 See 40 CFR part 201, EPA’s ‘‘Noise Emission the iSLM with an acoustic calibrator to the additional standards. In this final Standards for Transportation Equipment; Interstate that meets the requirements of ANSI rule, FRA has cited only to ANSI Rail Carriers,’’ and 49 CFR part 210, FRA’s S1.40–1984 (Reaffirmed 2001), standards. ‘‘Railroad Noise Emission Compliance Regulation.’’ ‘‘Specification for Acoustical The decision whether to require a 73 See ‘‘Railroad Noise Control: The Handbook for Type 1 or Type 2 instrument generated the Measurement, Analysis, and Abatement of Calibrators.’’ The testing entity should Railroad Noise,’’ Report No. DOT/FRA/ORD–82/02– a great deal of discussion. FRA had H (1982). See also ‘‘Measurement of Highway- SLM should be used with a tripod mountings or considered requiring the use of Type 1 Related Noise,’’ Report No. DOT/VNTSC/FHWA– positioned with a secure handhold. This provision 96–5 (1996). was ripe for removal, since it is often covered in 75 For example, the relevant IEC standards were 74 Many of the recommended practices, which the manufacturer’s instructions and is also International Standard IEC 61672–1 (2002–05) were removed from this appendix, are discussed in discussed in ANSI S1.43–1997 (Reaffirmed 2002), (concerning SLMs) and International Standard IEC the paragraphs below. They include the following: ‘‘Specifications for Integrating-Averaging Sound 60942 (1997–11) (concerning microphone the SLM should be calibrated annually, and/or the Level Meters.’’ windscreens and acoustic calibrators).

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instruments, because they are more directly in front of or behind the test a tested locomotive’s performance is precise instruments and because they locomotive from that 400 foot typical of a normally-operating are used by other U.S. DOT modes.76 requirement. Subsequent drafts also locomotive, and to ensure that any Some RSAC Working Group members considered minimum distances of 100 results are replicable based on a felt strongly that testing entities should feet, 25 feet, and zero feet. FRA decided standardized locomotive operational not be required to use Type 1 that the 25 foot requirement was the criteria. instruments. They asserted that the most appropriate distance, because it Number 6 provides that ‘‘[t]he minimal benefit derived from using did not impose a financial burden on locomotive shall not be tested in any Type 1 instruments did not justify the the testing entities (as a 100 or 400 foot site specifically designed to artificially expensive cost of Type 1 instruments. requirement would have) yet it still lower in-cab noise levels.’’ For example, They asserted that there would be little provided a minimum distance of a site should not contain sound variance in the readings for the two separation between the locomotive and absorbent materials. This concept was instruments, yet a Type 1 instrument reflective surfaces. Also, 25 feet is a originally contemplated in more specific would cost $600 to $3,000 more than a smaller distance, so it allows for an terms, i.e., the ‘‘test site railroad track Type 2 instrument. In addition, they easily-duplicated test area. An earlier shall be tie and ballast, free of special pointed to other noise-related federal draft also specified track conditions (tie track work and bridges or trestles.’’ The regulations that allow the use of Type 2 and ballast track that is free of track purpose of that concept was to ensure devices.77 After extensive discussions, work, bridges, and trestles) and that testing entities did not create the Working Group agreed to the recommended the removal of all conditions that artificially lower the proposal in its current state. The RSAC unnecessary equipment from the cab. noise measurements. In order to capture Working Group adopted that proposal, The intent of these more restrictive this concept in broader and more as did the FRA. The proposal reflects a provisions for numbers 1 and 2 was to generic terms, the FRA drafted this compromise between FRA’s initial ensure that there was an adequate provision with this current language. preference to use Type 1 instruments distance between the tested locomotive and certain industry member’s concerns and other noise sources and/or III. Procedures for Measurement about a Type 1 requirement. reflective surfaces. This would isolate This section provides detailed in-cab noise (due to the locomotive) II. Test Site Requirements measurement procedures to be used from other contaminating noise sources, during testing. Number 1 specifies the This section sets forth the which in turn, would produce the best settings for the integrating-averaging requirements for the testing site where quality measurements. sound level meters (iSLM). FRA has in-cab static measurements are Members of the RSAC Working Group made a change to this provision since conducted. This section specifies the raised several concerns with these the NPRM. FRA changed the metric here placement of the locomotive, the provisions. They felt that several of and in two other locations (§§ III(8) and installation of locomotive these requirements were ambiguous. (9)). In the proposed rule, FRA used L appurtenances, the operational They also explained that noise sources av. L is a non-ANSI metric that was requirements for locomotives, and the and reflecting objects, for the most part, av developed for this regulation in order to condition of the testing environment. affect measurements by making the in- accommodate certain RSAC Working Number 1 provides that a locomotive cab noise levels higher, so if a Group members’ desire to use a 5 dB should not be positioned in an area locomotive complies with FRA’s exchange rate for this measurement. In where large reflective surfaces are regulatory requirements when measured this final rule, FRA is using the L directly adjacent to or within 25 feet of in these noisy circumstances, then the Aeq, T. L is a standardized metric defined the locomotive cab, and number 2 locomotive is performing better than Aeq, T in ANSI S1.1–1994, ‘‘Acoustical provides that a locomotive should not expected. In addition, they stated that be positioned where other locomotives the creation of a specified test area free Terminology’’ and is a commonly used or rail cars are present on directly of large, reflecting surfaces and other acoustic metric. adjacent tracks next to or within 25 feet noise sources would create an economic One commenter explained that the Lav of the locomotive cab. burden on the testing entities. Following was an inappropriate measure. He stated FRA had considered more specific lengthy discussions, Working Group that most sound level meters do not requirements for numbers 1 and 2. FRA consensus, and RSAC approval, FRA have the capability to measure the Lav; considered an initial draft listed types of adopted the current proposal—i.e., the they instead measure the LAeq, T. Under large reflective surfaces from which the testing entity has discretion to decide the requirement in the proposed rule, test site should be free (barriers, hills, whether it wants to conduct these railroads would have had to purchase signboards, parked vehicles, measurements in a test area that is free completely new equipment, which locomotives, or rail cars on adjacent of reflecting objects and noise sources or would be very costly. Another tracks, bridges, or buildings); required in a test area that is a less ideal commenter wrote that use of the Lav was both sides of the locomotive to be clear environment. not justified technically, since the of large reflective surfaces (for a Number 3 specifies the condition of acoustical community would normally minimum distance of 400 feet); and locomotive appurtenances during use LAeq, T. FRA, and the Working excluded locomotives and rail cars testing. It provides that ‘‘[a]ll windows, Group, agreed with these commenters doors, cabinets, seals, etc., must be and changed Appendix H accordingly. 76 Federal Aviation Administration (FAA) installed in the locomotive and be Numbers 2 and 3 address the standards require the use of Type 1 instruments. closed.’’ Numbers 4 and 5 contain calibration procedure for iSLMs. See 14 CFR part 36, Appendix G, Section G36.105(b). Federal Highway Administration operational requirements. They specify Calibration is a method of validating the (FHWA) standards recommend the use of Type 1 that a locomotive must be warmed up to performance of the measurement meters. See ‘‘Measurement of Highway-Related standard operating temperature and that equipment and is important, because it Noise,’’ Report No. DOT/VNTSC/FHWA–96–5 the heating/ventilation/air conditioning verifies the accuracy of measurements. (1996) for the specific FHWA criteria and recommendations. (HVAC) system must be operating on Both field system (routine) and 77 See e.g., 49 CFR 393.94(c)(4); 40 CFR 201.22(a); high. FRA has included these laboratory (comprehensive) calibration and 49 CFR 229.129(b). operational requirements to ensure that should be conducted on iSLMs.

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Number 4 identifies the four locations however the data indicated a mean and The LAeq, T equation obtained from the at which microphones should be placed median sound level difference of two relevant ANSI standard (ANSI S1.1– and measurements taken. There are four decibels between locomotives under 1994, ‘‘Acoustical Terminology’’) is a measurements in the cab: above the left load and locomotives not under load. calculus equation while the LAeq, T seat, above the right seat, between the FRA had proposed a four decibel equation used in FRA’s rule is a non- seats, and near the center of the back adjustment (i.e., the mean of calculus equation. The two equations wall. FRA had considered the inclusion approximately two decibels plus one are equivalent, as described below. of two additional microphone standard deviation of 1.518). The The LAeq, T equation from the relevant positions—one above the toilet and one Working Group, and ultimately the ANSI standard is as follows: in the front vestibule of the locomotive RSAC, recommended an adjustment of cab. As explained by various RSAC three decibels.  N 2   1 pA  Working Group members, these =× ×i  After considering the RSAC Working LAeq, T10 log10 ∑ t i 2 positions are not representative of Group recommendation, FRA decided to T i=1 po  positions inside the locomotive cab use a three decibel adjustment. where crew members spend a Where: However, FRA is also requiring T = the total time duration of the substantial amount of time; they are manufacturers and railroads to record merely transient points through which measurement; the load conditions during testing. The pA(t)= instantaneous, A-weighted sound cab employees pass through to enter or records requirement is located in the pressure as a function of time (t); and exit the cab or to go to the bathroom. In record keeping section; it states that a po = the reference pressure. addition, these locations vary by testing entity should maintain records of locomotive, including some locomotives This equation deals with a continuous testing conditions and procedures, sound pressure as a function of time that do not have these positions. including whether or not the locomotive Accordingly, FRA did not include those (pA(t)), and the integral of that was tested under self loading continuous sound pressure over the two measurement positions. conditions. (See § IV, number 5). Number 5 specifies that the measurement interval divided by the Number 7 requires manufacturers and individual conducting the test should be duration represents an average of that railroads to record the sound level at the as far away as possible from the sound pressure. When looking at highest horsepower or throttle setting. measurement microphone. This is so discretely sampled sound pressure data, These settings were selected, because that the individual does not impact the this average may be represented by a they produce the highest noise level measurement, e.g., shield the sum of the discrete samples divided by inside the locomotive cab. microphone from noise sources. For the the measurement duration. See below. same reason, the procedure also Number 8 specifies the metric, specifies that only two people can be sampling rate, and measurement  2 ()   1 T ptA  inside the locomotive cab during duration for in-cab static measurements. L =×10 log  ∫ dt Aeq, T 10 0 2 testing. FRA has changed the metric from Lav to T po  LAeq, T, as discussed in § III(1) above. Number 6 requires the manufacturer Where: or railroad to test a locomotive under LAeq, T represents a level of continuous constant sound that is equivalent to the N = number of time intervals over which the self-loading conditions if the locomotive measurements are taken; is equipped with self-load. The purpose same amount of A-weighted acoustic energy of the actual time-varying source. ti = time duration of the I-th interval; of this provision is to ensure that the in- T = the total time duration of the cab noise level during testing is For this rulemaking, the following measurement (i.e.: = t1 + t2 + * * * + tN); representative of the in-cab noise level equation should be used to calculate pA i = the A-weighted sound pressure of the during operation (i.e., under load). LAeq, T. I-th interval. Conducting the test in self-load mode Sound pressure level is related to simulates the operation of a locomotive  1 N  =× ×Li 10 sound pressure by the following that is pulling cars. It is important that LAeq, T10 log10  ∑ t i 10  T =  equation: the noise measurements are obtained i 1 under self-load, because the locomotive Where: 2 pA is under additional stress and generates N = number of time intervals over which the i = 10Li 10 measurements are taken, 2 more noise while under self-load. In-cab po noise levels of a locomotive that is self- ti = time duration of the I-th interval, loaded are noticeably louder than those T = the total time duration of the Where: Li = the A-weighted sound level of the I-th interval. in a locomotive that is not self-loaded measurement (i.e.: = t1 + t2 + * * * + tN), and so this provision is necessary. and The combination of the two above If the locomotive is not equipped with Li = the A-weighted sound level of the I-th equations produces the equation for interval. the ability to operate in the self-load calculating LAeq, T presented in this mode, the manufacturer or railroad shall LAeq, T should be measured, either rulemaking. test the locomotive with ‘‘no-load’’ and directly or by using a one second Number 9 specifies the standard for add three decibels to the measured sampling interval, for a minimum determining compliance with 49 CFR level. ‘‘No-load’’ is defined as maximum duration of 30 seconds (LAeq, 30s). The 229.121(a). It provides that the highest RPM, with no electric load. The AAR sampling rate and measurement (i.e., loudest) measurement of the four submitted a report to FRA in June 2003. duration rate specify how often samples LAeq, 30s measurements in the locomotive The report, ‘‘Locomotive Static Noise are taken over a specified time range cab should be used as the end metric to Tests,’’ provided data on the noise and are used to compute the equivalent determine whether the locomotive levels for locomotives that are self- sound level. FRA determined that, due complies with § 229.121(a). Although loading and those that are not self- to the continuous nature of in-cab noise, this standard uses a measurement that is loading. The testing data showed little a 30-second measurement duration was not representative of all four correlation between the condition of sufficient to accurately represent in-cab measurements in the locomotive cab, it various cab features and noise levels, noise levels. provides a measurement that is most

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representative of how loud it can be in IV. Recordkeeping instrumentation. This requirement was a locomotive cab. It accounts for the This section requires testing entities initially placed in the appendix to worse noise levels in the locomotive to maintain records of their testing. account for the temperature and cab. Also, the ‘highest LAeq, 30s standard’ They must retain these records for a humidity restrictions specified by has the advantage of requiring little minimum of three years and may keep microphone and acoustic measurement instrumentation manufacturers in their processing. In addition, locomotive these records in either written or supplemental literature. Members of the manufacturers currently use the ‘highest electronic form. Those records include: RSAC Working Group acknowledged LAeq, 30s standard.’ Please note that, as the name of the person conducting the that these restrictions are mentioned in discussed in § III(1) above, FRA has test and date of the test; the description the ANSI standard and are part of the changed the metric from Lav to LAeq, T. of the tested locomotive; the description proper operation of a sound level meter. of the sound level meter and calibrator; While drafting the NPRM, FRA had As a result, FRA decided that it was the recorded measurement during considered energy-averaging across the unnecessary to repeat these calibration and for each microphone four measurement positions. While requirements in this appendix. energy-averaging is a very good location during operating conditions; representation of the overall noise levels any other information necessary to B. Quantities Measured in the locomotive cab (because it describe the testing conditions and The ‘‘Quantities Measured’’ section averages together all the energy levels), procedures (e.g., whether the specified the metrics that should be averaging, in general, is not locomotive was tested under self- used in the measurement procedure. It representative of the worst, or loudest, loading conditions); and, where noted that all instances of exterior noise noise levels in the cab. Accordingly, applicable, the suspected reason for a contamination that is audible inside the FRA chose not to energy-average across test failure (where a locomotive fails a cab should be noted and that any noise the four positions. test and can be re-tested under § III(9)). level above 115 dB(A) would invalidate Number 10 provides that if a V. Removed Sections the noise test. All of the information contained in this section was already locomotive fails to meet the There were several provisions which stated in other parts of the appendix and requirements of § 229.121, the were considered but ultimately were not NPRM, so FRA decided to simplify the locomotive may be re-tested according included in the appendix. In particular, appendix and remove this section. to the requirements of Section II of this there were two notable sections: appendix, ‘‘Test Site Requirements.’’ Environmental Criteria and Quantities C. Pre- and Post-Background Testing This concept originated as a provision Measured, as well as the requirement of FRA had considered pre- and post- allowing a re-test in an area free of pre- and post-background testing. background testing requirements. There reflective surfaces and noise sources for was much discussion about this A. Environmental Criteria a locomotive that fails a test. That requirement, and ultimately, the RSAC provision provided that: ‘‘If the test fails The Environmental Criteria specified Working Group recommended not to under original acoustical field optimal meteorological conditions that include it in this protocol. In an early conditions, adverse weather, or other should be followed during testing. The proposal, this provision required factors that may have contributed to the criteria provided that meteorological manufacturers and railroads to observe failure, the test may be repeated in an conditions, such as precipitation or the sound levels before and after the acoustic free field, fair weather, etc.’’ wind, should not interact with the static test measurements (at each of the RSAC Working Group members locomotive or rail car such that they are in-cab measurement locations) and explained that railroads and audible from within the cab. The ensure that those sound levels were at manufacturers already conduct these purpose of specifying this criteria was to least 10 dB(A) below the sound level types of tests, and they wanted to ensure prevent those factors from interfering observed during the in-cab static that this appendix allowed them to with the measurements and invalidating measurements. Manufacturers and continue doing so. As an alternative to the test. In general, conducting noise railroads were to measure the pre- and that provision, the RSAC Working measurements under favorable post-tests when the locomotive was shut Group considered permitting such a test meteorological conditions is a good, and down, and the sound level as long as the test area was well-defined, common, practice. However, some measurements were to be representative e.g., where the test area was defined as RSAC Working Group members of the ambient noise in the cab during an area free of large reflecting surfaces believed that these conditions should be the test. In a later revised form, this or noise sources and that there was a left up to the testing entity’s best provision required manufacturers and minimum distance of 200 feet around judgement. Moreover, they asserted that railroads to establish baseline noise the locomotive. That proposal was also they did not believe that entities would levels in the cab (on a locomotive that rejected, because some RSAC Working conduct noise testing during severe has been shut down) after completing weather conditions that would be Group members felt that the 200-foot the testing at the high horsepower/ audible in the cab. Because these minimum distance was too restrictive. throttle setting. conditions would only serve to raise the FRA presented this requirement Ultimately, then, FRA decided to noise level inside the cab (and would because of the utility of background include the provision contained here in only make it more difficult, not easier, noise measurements; they provide key number 9 (in the ‘‘Procedures for for a locomotive to pass a test), this pieces of information that can be vital Measurement’’ section); it provides that requirement was not included in the to the procedure and the validity of the a railroad or manufacturer may re-test a appendix. measurements. First, pre- and post-noise locomotive if that locomotive fails a The Environmental Criteria also measurements ensure that ambient static test. FRA also decided that the provided that the air temperature and noise does not interfere with the test testing entity must record the suspected relative humidity inside the cab should measurement. If the background noise is reason for the failure in its records. That be within the manufacturer’s the same (or at least very similar) during requirement is located in the record recommended operational ranges for the the pre- and post-background noise keeping section (see § IV, number 7). iSLM or the individual measurement measurement, one can infer that the

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background noise did not impact the pm, Monday through Friday, except SBA, and to include in the preamble to noise measurement test. Second, pre- Federal holidays. the rule the agency’s response to any and post-testing, along with notation of As part of the regulatory impact written comments by the SBA unless extraneous noise contamination during analysis, FRA has assessed quantitative the agency head certifies that including the test measurement, ensures that the measurements of costs expected from such material would not serve the measurements are not affected by the adoption of this final rule. Over a public interest. See 67 FR 53461 additional noise sources that are twenty-year period, the Present Value (August 16, 2002). (PV) of the estimated costs is $15.4 atypical of the in-cab noise The SBA stipulates in its Table of Size million. The analysis also includes environment. If there is a variation Standards 78 that the largest a ‘‘for- between the pre- and post-noise qualitative discussions and quantified examples of the benefits for this final profit’’ railroad business firm can be, measurements and there are notations of and still be classified as a ‘‘small extraneous during the test rule. The analysis concludes that an average savings of 24 noise-induced entity,’’ is 1,500 employees for ‘‘Line- measurement, that might indicate that Haul Operating’’ Railroads and 500 there were changes in the test hearing loss cases per year would cover the average annual costs of the final employees for ‘‘Switching and Terminal environment (e.g., changing weather Establishments.’’ ‘‘Small entity’’ is conditions, additional noise sources, rule. The costs anticipated from adopting defined in 5 U.S.C. 601 as a small etc.). Third, the use of pre- and post- business concern that is independently testing ensures that the measurements this final rule include: implementation of noise monitoring programs, owned and operated and is not obtained are actually from the source dominant in its field of operation. SBA’s that is being measured. They ensure that implementation of hearing conservation programs, audiometric testing, hearing ‘‘size standards’’ may be altered by the sound levels measured in the Federal agencies in consultation with locomotive cab are actually due to the protection, provisions of hearing conservation training, and additional the SBA and in conjunction with public loaded locomotive, and not due to some comment. Pursuant to that authority, other noise source. locomotive maintenance related to noise issues. FRA has published a final policy which Several RSAC Working Group The major benefit anticipated from formally establishes ‘‘small entities’’ as members did not want to include a pre- implementing this final rule will be the being railroads which meet the line and post-background noise savings from a reduction in noise- haulage revenue requirements of a Class measurement requirement in the induced hearing loss cases among III railroad. See 68 FR 24891 (May 9, appendix. They explained that they railroad operating employees. Other 2003). Currently, the revenue were not concerned with background quantifiable benefits include: reductions requirements are $20 million or less in noise if it did not impact the in employee absenteeism due to noise annual operating revenue. The $20 locomotive’s ability to pass the test. exposures, reductions in employee million limit is based on the Surface They further asserted that a background injuries related to noise exposures, and Transportation Board’s (STB’s) noise level shift, even if it were 10 dB reductions in human factor caused train threshold of a Class III railroad carrier, or more, is still probably below the accidents. In addition, qualitative which is adjusted by applying the criterion level and thus, is most likely benefits should accrue from improved railroad revenue deflator adjustment.79 irrelevant to whether or not the cab crew communications; increased The same dollar limit on revenues is locomotive meets the criteria of this employee performance due to decreased established to determine whether a protocol. They also explained that, if noise exposures; decreased vision issues railroad shipper or contractor is a small there were external noise occurrences related to noise exposures; and entity. However, in this rule, FRA is during the static test and those external decreased stress and fatigue. using a different size standard. noise occurrences effected the test, then Consistent with FRA’s proposal in the the testing entity would simply conduct B. Regulatory Flexibility Act of 1980 and NPRM, FRA is defining small entities as another test. Finding these arguments Executive Order 13272 those having ‘‘less than 400,000 annual persuasive, FRA has decided to remove The Regulatory Flexibility Act of 1980 employee hours.’’ FRA has used this the pre- and post-background testing (5 U.S.C. 601 et seq.) requires a review standard in the past 80 to alleviate requirement, in accordance with RSAC of proposed and final rules to assess reporting requirements. By using this Working Group’s recommendation. their impact on small entities. FRA has standard for small railroads, FRA is prepared and placed in the docket a capturing most small entities that would VI. Regulatory Impact and Notices Regulatory Flexibility Assessment (RFA) be defined by the SBA as small A. Executive Order 12866 and DOT which assesses the small entity impact. businesses. Since FRA published this Regulatory Policies and Procedures For access to the docket to read the alternate standard in the NPRM, FRA RFA, go to http://dms.dot.gov at any has sought and received written This rule has been evaluated in time or to Room PL–401 on the plaza permission from the SBA to use the accordance with existing policies and level of the Nassif Building, 400 alternative size standard for purposes of procedures, and determined to be Seventh Street, SW., Washington, DC, this rulemaking. FRA did not receive significant under both Executive Order between 9 am and 5 pm, Monday any comments during the public 12866 and DOT policies and procedures through Friday, except Federal holidays. comments related to this issue or (44 FR 11034; February 26, 1979). FRA Executive Order No. 13272, ‘‘Proper request. has prepared and placed in the docket Consideration of Small Entities in For this rulemaking there are a regulatory analysis addressing the Agency Rulemaking,’’ requires a Federal approximately 410 small railroads that economic impact of this final rule. For agency, inter alia, to notify the Chief could potentially be affected by this access to the docket to read the Counsel for Advocacy of the U.S. Small regulatory analysis, go to http:// Business Administration (SBA) of any of 78 dms.dot.gov at any time or to Room PL– its draft rules that would have a 13 CFR part 121. 79 For further information on the calculation of 401 on the plaza level of the Nassif significant economic impact on a the specific dollar limit please see 49 CFR Part Building, 400 Seventh Street, SW., substantial number of small entities, to 1201. Washington, DC, between 9 am and 5 consider any comments provided by the 80 See 49 CFR parts 217, 219, and 220.

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regulation.81 FRA does not expect this of these programs. In general, the costs 400,000 annual employee hours will regulation to impose a significant are proportional to the number of receive additional time to comply with burden on these small railroads. Tourist, employees that would be affected on a the three most significant burdens and Steam and Historic operations are not railroad. Thus, the impacts on small costs. First, these railroads will have an required to meet any of the entities should be relatively less than additional 18 months to establish requirements. Thus, approximately 220 they would be for medium and large hearing conservation programs. Second, very small railroad operations will incur railroads. However, most large and some these railroads will have an additional no burden from this rulemaking. medium railroads currently have 12 months to establish valid baseline This final rule will also not extend to voluntary and/or OSHA hearing audiograms for employees that have contractors who operate historic conservation programs, which would been placed in the FRA hearing equipment in occasional service, as long simplify and ease compliance with this conservation program. Third, these as those contractors have been provided final rule. FRA anticipates that the railroads will have an additional 12 with hearing protection and are required burdens would be from developing months to establish hearing (where necessary) to use the hearing hearing conservation programs, conservation training programs. The protection while operating the historic conducting noise monitoring, providing rulemaking process for this final rule equipment. Most of these type of hearing protectors, and locomotive included outreach to small entities. The contractors are very small businesses noise maintenance related to responding proposal for the NPRM and this final operated by self-employed current, excessive noise reports. rule was produced by the RSAC. former, or retired railroad employees. The two requirements that have the Representation on this committee These operations would certainly be greatest impact are the audiometric included the ASLRRA. classified as a small business. FRA does testing requirement and the training not know how many of these types of requirement. The purpose of FRA’s This final Regulatory Flexibility operations could potentially be affected audiometric testing program section is Assessment (RFA) concludes that the by this final rule. Since this regulation to provide the requirements for railroads rule would not have a significant is not extending coverage to these to establish and maintain an economic impact on a substantial operations, none of them would be audiometric testing program for number of small entities. Thus, the FRA impacted. employees that are covered by the certifies that this final rule is not FRA’s final rule requires railroads to hearing conservation program. It expected to have an ‘‘significant’’ establish a hearing conservation requires railroads to establish a baseline economic impact on a ‘‘substantial’’ program for railroad operating audiogram and then to conduct periodic number of small entities. In order to employees’ who have noise exposures audiograms. It also specifies the determine the significance of the that equal or exceed an 8-hour time- requirements for conducting, evaluating, economic impact for the final rule’s weighted average of 85 dB(A), i.e., the and following-up with the audiograms. RFA, FRA reviewed and considered all action level. Railroad noise monitoring FRA estimates that the average cost of pertinent comments from all interested data 82 indicates that only about 45 audiograms, (i.e., hearing tests) is $40 parties concerning the potential percent of the employee assignments each, and that each audiogram will take economic impact on small entities. would require inclusion in a hearing an average of 25 minutes. FRA also As noted above Executive Order No. conservation program. Therefore, FRA requires railroads to conduct periodic 13272 requires Federal agencies to expects that less than 50 percent of the audiometric testing of covered notify the SBA Office of Advocacy of affected employees on small railroads employees at least once every three any of its draft rules that would have a will be included in a hearing years. FRA requires that audiograms be significant economic impact on a conservation program. FRA expects that offered annually to all covered substantial number of small entities. after initial noise exposure monitoring, employees. Since FRA has determined that this some small railroads will not need to FRA’s training program, in general, is final rule would not have significant establish hearing conservation similar to OSHA’s hearing conservation impact on a substantial number of small programs, because none of their work training program. FRA requires each entities, FRA has not provided any assignments will meet or exceed the employee to complete the hearing notification to the SBA. action level. training program at least once every This final rule contains a few three years. By contrast, OSHA requires C. Paperwork Reduction Act of 1995 reporting and recordkeeping employees to complete a hearing requirements. The requirements that do training program at least once a year. The information collection exist primarily involve records that are FRA anticipates that the short line requirements in this final rule will be needed for medical purposes, railroad association will develop a submitted to the Office of Management compliance assessment, and program generic program for training that its and Budget (OMB) under the Paperwork evaluation. members can utilize. Reduction Act of 1995, 44 U.S.C. 3501 The impacts from this final rule are For compliance purposes, this final et seq. The sections that contain the new primarily a result of complying with the rule provides an exception for Tourist, information collection requirements and requirements for establishing hearing Steam and Historic railroad operations. the estimated time to fulfill each conservation programs and the elements In addition, railroads with less than requirement are as follows:

Respondent Total annual Total annual burden CFR Section—49 CFR universe Total annual responses Average time per response burden hours cost

227.13—Waivers ...... 460 Railroads ...... 5 petitions ...... 1 hour ...... 5 $190 227.103—Noise Monitoring Program 460 Railroads ...... 460 programs ...... 2 hours/8 hours/600 hours ..... 5,165 0 (incl. in RIA) —Notification to Employee of 460 Railroads ...... 905 lists ...... 30 minutes ...... 453 17,214 Monitoring.

81 680 railroads¥220 (Tourist, Steam & Historic) 82 See FRA’s Regulatory Impact Analysis, railroads¥50 (large, medium, passenger and Appendix C. commuter) = 410 railroads.

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Respondent Total annual Total annual burden CFR Section—49 CFR universe Total annual responses Average time per response burden hours cost

227.107—Hearing Conservation Pro- 460 Railroads ...... 461 HCPs ...... 150 hours/2 hours/31 hours/ 2,875 0 (incl. in RIA). gram (HCP). 7.5 hours. —Revised Hearing Conserva- 460 Railroads ...... 92 HCPs ...... 1.74 hours ...... 160 0 (incl. in RIA). tion Programs (HCPs). 227.109—Audiometric Testing 78,000 Employees 60,000 audiograms + 6,000 7 min./25 min ...... 7,000 + 2,500 0 (incl. in RIA). Prog.—Existing Employees; Base- audiograms. line Audiograms. —Periodic Audiograms ...... 78,000 Employees 8,000 audiograms ...... 25 minutes ...... 3,333 0 (incl. in RIA). —Evaluation of Audiograms ...... 78,000 Employees 2,330 evaluations + 93 retests 6 min./2.5 hours ...... 466 0 (incl. in RIA). —Problem Audiograms ...... 8,000 Employees ... 45 documents ...... 10 minutes ...... 8 304. —Follow-up Procedures—Notifi- 8,000 Employees ... 93 notifications ...... 15 minutes ...... 24 912. cations. —Fitting/Training of Employees: 240 Employees ...... 240 training sess ...... 2 minutes ...... 8 0 (incl. in RIA). Hearing Protectors. —Referrals for Clinical/ 240 Employees ...... 20 referrals/result ...... 2 hours ...... 40 4,800. Otological Examinations. —Notification to Employee of 240 Employees ...... 20 notifications ...... 5 minutes ...... 2 76. Need: Otological Exam. —New Audiometric Interpreta- 240 Employees ...... 20 notifications ...... 20 notifications ...... 2 76. tion. 227.111—Audiometric Test Require- 1,000 Mobile Vans 1,000 tests ...... 45 minutes ...... 750 52,500. ments. 227.117—Hearing Protection Attenu- 460 Railroads ...... 50 evaluations ...... 30 minutes ...... 25 1,750. ation Evaluation. —Re-Evaluations ...... 460 Railroads ...... 10 re-evaluations ...... 30 minutes ...... 5 350. 227.119—Hearing Conservation 460 Railroads ...... 461 programs ...... 8 hours/2 hours/116 hours/1 956 0 (incl. in RIA). Training Prog—Development. hour. —Employee Training ...... 460 Railroads ...... 26,000 trained employees ...... 30 minutes ...... 13,000 0 (incl. in RIA). —Periodic Training ...... 460 Railroads ...... 7,000 tr. empl ...... 30 minutes ...... 3,500 0 (incl. in RIA). 227.121—Record Keeping—Author- 460 Railroads ...... 10 requests + 10 responses ... 10 min. + 15 min ...... 5 130. ization: Records. —Requests for Copies of Re- 460 Railroads ...... 150 requests + 150 responses 21 min. + 45 min ...... 166 0 (incl. in RIA). ports. —Records Transfer When Car- 460 Railroads ...... 10 records ...... 24 minutes ...... 4 152. rier Becomes Defunct. —Railroad Audiometric Test 460 Railroads ...... 26,000 records ...... 2 minutes ...... 867 0 (incl. in RIA). Records. —Hearing Conservation Pro- 460 Railroads ...... 54,000 records ...... 45 seconds ...... 675 0 (incl. in RIA). gram (HCP) Records. —HCP Training Records of Em- 460 Railroads ...... 26,000 records ...... 30 seconds ...... 217 8,246. ployees. —Records: Standard Threshold 460 Railroads ...... 280 records ...... 7 minutes ...... 33 0 (incl. in RIA). Shifts of Employees. 229.121—Locomotive Cab Noise— 3 Equipment Manuf 700 tests/certific ...... 40 min. + 5 min ...... 111 7,770. Tests/Certifications. —Equipment Maintenance: Ex- 460 Railroads ...... 3,000 reports + 3,000 records 10 min. + 5 min ...... 750 22,500. cessive Noise Reports. —Maintenance Records ...... 460 Railroads ...... 3,750 records ...... 8 minutes ...... 500 0 (incl. in RIA). —Internal Auditable Monitoring 570 Railroads ...... 570 systems ...... 36 min. + 8.25 hour ...... 572 0 (incl. in RIA). Systems. Appendix H—Static Test Protocols/ 700 Locomotives .... 2 retests + 2 ...... 35 min. + 5 min ...... 1 0 (incl. in RIA). Records.

All estimates include the time for collection requirements resulting from responsibilities among the various reviewing instructions; searching this rulemaking action prior to the levels of government.’’ Under Executive existing data sources; gathering or effective date of this final rule. The Order 13132, the agency may not issue maintaining the needed data; and OMB control number, when assigned, a regulation with Federalism reviewing the information. For will be announced by separate notice in implications that imposes substantial information or a copy of the paperwork the Federal Register. direct compliance costs and that is not package submitted to OMB, contact Mr. required by statute, unless the Federal D. Federalism Implications Robert Brogan, FRA’s Information government provides the funds Clearance Officer, at 202–493–6292. Executive Order 13132, ‘‘Federalism’’ necessary to pay the direct compliance OMB is required to make a decision (64 FR 43255, Aug. 10, 1999), requires costs incurred by State and local concerning the collection of information FRA to develop an accountable process governments, the agency consults with requirements contained in this proposed to ensure ‘‘meaningful and timely input State and local governments, or the rule between 30 and 60 days after by State and local officials in the agency consults with State and local publication of this document in the development of regulatory policies that government officials early in the process Federal Register. have federalism implications.’’ ‘‘Policies of developing the proposed regulation. FRA is not authorized to impose a that have federalism implications’’ are Where a regulation has Federalism penalty on persons for violating defined in the Executive Order to implications and preempts State law, information collection requirements include regulations that have the agency seeks to consult with State which do not display a current OMB ‘‘substantial direct effects on the States, and local officials in the process of control number, if required. FRA on the relationship between the national developing the regulation. intends to obtain current OMB control government and the States, or on the This is a rule with preemptive effect. numbers for any new information distribution of power and Subject to a limited exception for

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essentially local safety hazards, its promulgating any general notice of List of Subjects requirements will establish a uniform proposed rulemaking that is likely to 49 CFR Part 227 Federal safety standard that must be result in the promulgation of any rule met, and State requirements covering that includes any Federal mandate that Incorporation by reference, the same subject are displaced, whether may result in the expenditure by State, Locomotives, Noise Control, those standards are in the form of State local, and tribal governments, in the Occupational Safety and Health, statutes, regulations, local ordinances, aggregate, or by the private sector, of Penalties, Railroad safety, Reporting and or other forms of State law, including $100,000,000 or more (adjusted recordkeeping requirements. State common law. Preemption is annually for inflation) in any 1 year, and 49 CFR Part 229 addressed in § 227.7 ‘‘Preemptive before promulgating any final rule for effect,’’ as it was in the NPRM. As stated Incorporation by reference, which a general notice of proposed Locomotives, Penalties, Railroad safety, in the corresponding preamble language rulemaking was published, the agency for § 227.7, section 20106 of Title 49 of Reporting and recordkeeping shall prepare a written statement’’ the United States Code provides that all requirements. detailing the effect on State, local, and regulations prescribed by the Secretary The Rule related to railroad safety preempt any tribal governments and the private State law, regulation, or order covering sector. This final rule will not result in I For the reasons discussed in the the same subject matter, except a the expenditure, in the aggregate, of preamble, the Federal Railroad provision necessary to eliminate or $128,100,000 or more in any one year, Administration amends chapter II, reduce an essentially local safety hazard and thus preparation of such a subtitle B of Title 49, Code of Federal that is not incompatible with a Federal statement is not required. Regulations, as follows: I 1. Part 227 is added to read as follows: law, regulation, or order and that does G. Energy Impact not unreasonably burden interstate PART 227—OCCUPATIONAL NOISE commerce. This is consistent with past Executive Order 13211 requires EXPOSURE practice at FRA, and within the Federal agencies to prepare a Statement Department of Transportation. of Energy Effects for any ‘‘significant Subpart A—General FRA has analyzed this final rule in energy action.’’ See 66 FR 28355; May Sec. accordance with the principles and 22, 2001. Under the Executive Order a 227.1 Purpose and scope. criteria contained in Executive Order ‘‘significant energy action’’ is defined as 227.3 Application. 13132. The RSAC, which recommended any action by an agency that 227.5 Definitions. 227.7 Preemptive effect. the final rule, has as permanent promulgates or is expected to lead to the members two organizations representing 227.9 Penalties. promulgation of a final rule or State and local interests: the American 227.11 Responsibility for compliance. regulation, including notices of inquiry, Association of State Highway and 227.13 Waivers. 227.15 Information collection. Transportation Officials (AASHTO), and advance notices of proposed the Association of State Rail Safety rulemaking, and notices of proposed Subpart B—Occupational Noise Exposure Managers (ASRSM). The RSAC regularly rulemaking: (1)(i) That is a significant for Railroad Operating Employees provides recommendations to the FRA regulatory action under Executive Order 227.101 Scope and applicability. Administrator for solutions to regulatory 12866 or any successor order, and (ii) is 227.103 Noise monitoring program. issues that reflect significant input from likely to have a significant adverse effect 227.105 Protection of employees. its State members. on the supply, distribution, or use of 227.107 Hearing conservation program. energy; or (2) that is designated by the 227.109 Audiometric testing program. E. Environmental Impact Administrator of the Office of 227.111 Audiometric test requirements. 227.113 Noise operational controls. FRA has evaluated these regulations Information and Regulatory Affairs as a 227.115 Hearing protectors. in accordance with its procedures for significant energy action. FRA has 227.117 Hearing protector attenuation. ensuring full consideration of the evaluated this final rule in accordance 227.119 Training program. environmental impact of FRA actions, with Executive Order 13211. FRA has 227.121 Recordkeeping. as required by the National determined that this final rule is not Appendix A to Part 227—Noise Exposure Environmental Policy Act (42 U.S.C. likely to have a significant adverse effect Computation 4321 et seq.), other environmental Appendix B to Part 227—Methods for on the supply, distribution, or use of Estimating the Adequacy of Hearing statutes, Executive Orders, and DOT energy. Consequently, FRA has Protector Attenuation Order 5610.1c. This final rule meets the determined that this final rule is not a Appendix C to Part 227—Audiometric criteria that establish this as a non-major ‘‘significant energy action’’ within the Baseline Revision action for environmental purposes. meaning of the Executive Order. Appendix D to Part 227—Audiometric Test Rooms F. Unfunded Mandates Reform Act of H. Privacy Act Appendix E to Part 227—Use of Insert 1995 Earphones for Audiometric Testing Pursuant to Section 201 of the Anyone is able to search the Appendix F to Part 227—Calculations and Unfunded Mandates Reform Act of 1995 electronic form of all comments Application of Age Corrections to (Pub. L. 104–4, 2 U.S.C. 1531), each received into any of DOT’s dockets by Audiograms the name of the individual submitting Appendix G to Part 227—Schedule of Civil Federal agency ‘‘shall, unless otherwise Penalties prohibited by law, assess the effects of the comment (or signing the comment, Federal regulatory actions on State, if submitted on behalf of an association, Authority: 49 U.S.C. 20103, 20103 (note), 20701–20702; 49 CFR 1.49. local, and tribal governments, and the business, labor union, etc). You may private sector (other than to the extent review DOT’s complete Privacy Act Subpart A—General that such regulations incorporate Statement published in the Federal requirements specifically set forth in Register on April 11, 2000 (Volume 65, § 227.1 Purpose and scope. law).’’ Section 202 of the Act (2 U.S.C. Number 70, Pages 19477–78) or you (a) The purpose of this part is to 1532) further requires that ‘‘before may visit http://dms.dot.gov. protect the occupational health and

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safety of employees whose predominant adversely impact the accuracy of the worn on the head, covering the ear canal noise exposure occurs in the locomotive occupational noise measurement. or inserted in the ear canal; is designed cab. Audiogram means a record of wholly or in part to reduce the level of (b) This part prescribes minimum audiometric testing, showing the sound entering the ear; and has a Federal health and safety noise thresholds of hearing sensitivity scientifically accepted indicator of its standards for locomotive cab occupants. measured at discrete frequencies, as noise reduction value. This part does not restrict a railroad or well as other recordkeeping Hertz (Hz) means a unit of railroad contractor from adopting and information. measurement of frequency numerically enforcing additional or more stringent Audiologist means a professional, equal to cycles per second. requirements. who provides comprehensive diagnostic Medical pathology means a condition and treatment/rehabilitative services for or disease affecting the ear which is § 227.3 Application. auditory, vestibular, and related medically or surgically treatable. (a) Except as provided in paragraph impairments and who Noise operational controls means a (b) of this section, this part applies to all (1) Has a Master’s degree or doctoral method used to reduce noise exposure, railroads and contractors to railroads. degree in audiology and other than hearing protectors or (b) This part does not apply to— (2) Is licensed as an audiologist by a equipment modifications, by reducing (1) A railroad that operates only on State; or in the case of an individual the time a person is exposed to track inside an installation that is not who furnishes services in a State which excessive noise. part of the general railroad system of does not license audiologists, has Occasional service means service of transportation; successfully completed 350 clock hours not more than a total of 20 days in a (2) A rapid transit operation in an of supervised clinical practicum (or is in calendar year. urban area that is not connected to the the process of accumulating such Otolaryngologist means a physician general railroad system of supervised clinical experience), specializing in diagnosis and treatment transportation; performed not less than 9 months of of disorders of the ear, nose, and throat. (3) A rapid transit operation in an supervised full-time audiology services Periodic audiogram is a record of urban area that is connected to the after obtaining a master’s or doctoral follow-up audiometric testing general system and operates under a degree in audiology or a related field, conducted at regular intervals after the shared use waiver; and successfully completed a national baseline audiometric test. (4) A railroad that operates tourist, examination in audiology approved by scenic, historic, or excursion operations, Person means an entity of any type the Secretary of the U.S. Department of covered under 1 U.S.C. 1, including but whether on or off the general railroad Health and Human Services. system of transportation; or not limited to the following: a railroad; Audiometry means the act or process a manager, supervisor, official, or other (5) Foreign railroad operations that of measuring hearing sensitivity at meet the following conditions: employee or agent of a railroad; an discrete frequencies. Audiometry can owner, manufacturer, lessor, or lessee of Employees of the foreign railroad have also be referred to as audiometric a primary reporting point outside of the railroad equipment, track, or facilities; testing. an independent contractor providing U.S. but are operating trains or Baseline audiogram means an goods or services to a railroad; and any conducting switching operations in the audiogram, recorded in accordance with employee of such owner, manufacturer, U.S.; and the government of that foreign § 227.109, against which subsequent lessor, lessee, or independent railroad has implemented requirements audiograms are compared to determine contractor. for hearing conservation for railroad the extent of change of hearing level. employees; the foreign railroad Class I, Class II, and Class III railroads Professional Supervisor of the undertakes to comply with those have the meaning assigned by the Audiometric Monitoring Program in a requirements while operating within the regulations of the Surface hearing conservation program means an U.S.; and FRA’s Associate Transportation Board (49 CFR part 120; audiologist, otolaryngologist, or a Administrator for Safety determines that General Instructions 1–1). physician with experience and expertise the foreign requirements are consistent Continuous noise means variations in in hearing and hearing loss. with the purpose and scope of this part. sound level that involve maxima at Qualified Technician is a person who A ‘‘foreign railroad’’ refers to a railroad intervals of 1 second or less. is certified by the Council for that is incorporated in a place outside Decibel (dB) means a unit of Accreditation in Occupational Hearing the U.S. and is operated out of a foreign measurement of sound pressure levels. Conservation or equivalent organization; country but operates for some distance dB(A) means the sound pressure level or who has satisfactorily demonstrated in the U.S. in decibels measured on the A-weighted competence in administering scale. audiometric examinations, obtaining § 227.5 Definitions. Employee means any individual who valid audiograms, and properly using, As used in this part— is engaged or compensated by a railroad maintaining, and checking calibration Action level means an eight-hour or by a contractor to a railroad to and proper functioning of the time-weighted-average sound level perform any of the duties defined in this audiometers used; and is responsible to (TWA) of 85 dB(A), or, equivalently, a part. the Professional Supervisor of the dose of 50 percent, integrating all sound Exchange rate means the change in Audiometric Testing Program. levels from 80 dB(A) to 140 dB(A). sound level, in decibels, which would Railroad means any form of non- Administrator means the require halving or doubling of the highway ground transportation that runs Administrator of the Federal Railroad allowable exposure time to maintain the on rails or electromagnetic guide-ways Administration or the Administrator’s same noise dose. For purposes of this and any entity providing such delegate. part, the exchange rate is 5 decibels. transportation, including: Artifact means any signal received or FRA means the Federal Railroad (1) Commuter or other short-haul recorded by a noise measuring Administration. railroad passenger service in a instrument that is not related to Hearing protector means any device metropolitan or suburban area and occupational noise exposure and may or material, which is capable of being commuter railroad service that was

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operated by the Consolidated Rail measured. For purposes of this part, the contain the information required by part Corporation on January 1, 1979; and exchange rate is 5 decibels. 211 of this chapter. (2) High speed ground transportation Tourist, scenic, historic, or excursion (c) If the Administrator finds that a systems that connect metropolitan areas, operations means railroad operations waiver of compliance is in the public without regard to whether those systems that carry passengers, often using interest and is consistent with railroad use new technologies not associated antiquated equipment, with the safety, the Administrator may grant the with traditional railroads. The term conveyance of the passengers to a waiver subject to any conditions the ‘‘railroad’’ is also intended to mean a particular destination not being the Administrator deems necessary. person that provides transportation by principal purpose. § 227.15 Information collection. railroad, whether directly or by § 227.7 Preemptive effect. contracting out operation of the railroad (a) The information collection to another person. The term does not Under 49 U.S.C. 20106, issuance of requirements of this part were reviewed include rapid transit operations in an these regulations preempts any State by the Office of Management and urban area that are not connected to the law, regulation, or order covering the Budget pursuant to the Paperwork general railroad system of same subject matter, except an Reduction Act of 1980 (44 U.S.C. 3501 transportation. additional or more stringent law, et seq.) and are assigned OMB control Representative personal sampling regulation, or order that is necessary to number 2130–NEW. means measurement of an employee’s eliminate or reduce an essentially local (b) The information collection noise exposure that is representative of safety hazard; is not incompatible with requirements are found in the following the exposures of other employees who a law, regulation, or order of the United sections: §§ 227.13, 227.103, 227.107, operate similar equipment under similar States Government; and does not 227.109, 227.111, 227.117, 227.119, and conditions. impose an unreasonable burden on 227.121. interstate commerce. Sound level or Sound pressure level Subpart B—Occupational Noise means ten times the common logarithm § 227.9 Penalties. Exposure for Railroad Operating of the ratio of the square of the (a) Any person who violates any Employees. measured A-weighted sound pressure to requirement of this part or causes the the square of the standard reference § 227.101 Scope and applicability. violation of any such requirement is pressure of twenty micropascals, subject to a civil penalty of at least $550 (a) This subpart shall apply to the measured in decibels. For purposes of and not more than $11,000 per noise-related working conditions of— this regulation, SLOW time response, in violation, except that: penalties may be (1) Any person who regularly accordance with ANSI S1.43–1997 assessed against individuals only for performs service subject to the (Reaffirmed 2002), ‘‘Specifications for willful violations, and, where a grossly provisions of the hours of service laws Integrating-Averaging Sound Level negligent violation or a pattern of governing ‘‘train employees’’ (see 49 Meters,’’ is required. The Director of the repeated violations has created an U.S.C. 21101(5) and 21103), but, subject Federal Register approves this imminent hazard of death or injury to to a railroad’s election in paragraph incorporation by reference of this persons, or has caused death or injury, (a)(3) of this section, does not apply to: standard in this section in accordance a penalty not to exceed $27,000 per (i) Employees who move locomotives with 5 U.S.C. 552(a) and 1 CFR part 51. violation may be assessed. Each day a only within the confines of locomotive You may obtain a copy of the violation continues shall constitute a repair or servicing areas, as provided in incorporated standard from the separate offense. See appendix H to this §§ 218.5 and 218.29(a) of this chapter, or American National Standards Institute part for a statement of agency civil (ii) Employees who move a at 1819 L Street, NW., Washington, DC penalty policy. locomotive or group of locomotives for 20036 or http://www.ansi.org. You may (b) Any person who knowingly and distances of less than 100 feet and this inspect a copy of the incorporated willfully falsifies a record or report incidental movement of a locomotive or standard at the Federal Railroad required by this part may be subject to locomotives is for inspection or Administration, Docket Room, 1120 criminal penalties under 49 U.S.C. maintenance purposes, or Vermont Ave., NW., Suite 700, 21311. (iii) Contractors who operate historic Washington, DC 20005, or at the equipment in occasional service, National Archives and Records § 227.11 Responsibility for compliance. provided that the contractors have been Administration (NARA). For Although the duties imposed by this provided with hearing protectors and, information on the availability of this part are generally stated in terms of the where necessary, are required to use the material at NARA, call 202–741–6030, duty of a railroad, any person, including hearing protectors while operating the or go to http://www.archives.gov/ a contractor for a railroad, who performs historic equipment; _ federal register/ any function covered by this part must (2) Any direct supervisor of the _ _ _ code of federal regulations/ perform that function in accordance persons described in paragraph (a)(1) of _ ibr locations.html. with this part. this section whose duties require Standard threshold shift (STS) means frequent work in the locomotive cab; a change in hearing sensitivity for the § 227.13 Waivers. and worse, relative to the baseline (a) A person subject to a requirement (3) At the election of the railroad, any audiogram, or relative to the most recent of this part may petition the other person (including a person revised baseline (where one has been Administrator for a waiver of excluded by paragraph (a)(1) of this established), of an average of 10 dB or compliance with such requirement. The section) whose duties require frequent more at 2000, 3000, and 4000 Hz in filing of such a petition does not affect work in the locomotive cab and whose either ear. that person’s responsibility for primary noise exposure is reasonably Time-weighted-average eight-hour (or compliance with that requirement while expected to be experienced in the cab, 8-hour TWA) means the sound level, the petition is being considered. if the position occupied by such person which, if constant over 8 hours, would (b) Each petition for waiver under this is designated in writing by the railroad, result in the same noise dose as is section must be filed in the manner and as required by § 227.121(d).

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(b) Occupational noise exposure and § 227.103(h)) and set to an A-weighted Meters, incorporation by reference (IBR) hearing conservation for employees not SLOW response. approved for § 227.103(c)(2)(i). covered by this subpart is governed by (3) All instruments used to measure (2) ANSI S1.43–1997 (Reaffirmed the appropriate occupational noise employee noise exposure shall be 2002), Specifications for Integrating- exposure regulation of the U.S. calibrated to ensure accurate Averaging Sound Level Meters, IBR Department of Labor, Occupational measurements. approved for § 227.103(c)(2)(ii). Safety and Health Administration (d) The railroad shall repeat noise (3) ANSI S1.25–1991 (Reaffirmed located at 29 CFR 1910.95. monitoring, consistent with the 2002), Specification for Personal Noise requirements of this section, whenever Dosimeters, IBR approved for § 227.103 Noise monitoring program. a change in operations, process, § 227.103(c)(2)(iii). (a) Schedule. A railroad shall develop equipment, or controls increases noise § 227.105 Protection of employees. and implement a noise monitoring exposures to the extent that: (a) A railroad shall provide program to determine whether any (1) Additional employees may be appropriate protection for its employees employee covered by the scope of this exposed at or above the action level; or who are exposed to noise, as measured subpart may be exposed to noise that (2) The attenuation provided by according to § 227.103, that exceeds the may equal or exceed an 8-hour TWA of hearing protectors being used by limits specified in appendix A of this 85 dB(A), in accordance with the employees may be inadequate to meet following schedule: part. the requirements of § 227.103. (b) In assessing whether exposures (1) Class 1, passenger, and commuter (e) In administering the monitoring railroads no later than February 26, exceed 115 dB(A), as set forth in program, the railroad shall take into paragraph (a) of this section and 2008. consideration the identification of work (2) Railroads with 400,000 or more appendix A to this part, the apparent environments where the use of hearing source of the noise exposures shall be annual employee hours that are not protectors may be omitted. Class 1, passenger, or commuter observed and documented and (f) Observation of monitoring. The railroads no later than August 26, 2008. measurement artifacts may be removed. railroad shall provide affected (3) Railroads with fewer than 400,000 (c) Except as set forth in paragraph (d) employees or their representatives with annual employee hours no later than of this section, exposure to continuous an opportunity to observe any noise August 26, 2009. noise shall not exceed 115dB(A). (b) Sampling strategy. dose measurements conducted pursuant (d) Exposures to continuous noise (1) In its monitoring program, the to this section. greater than 115 dB(A) and equal to or railroad shall use a sampling strategy (g) Reporting of monitoring results. less than 120 dB(A) are permissible, that is designed to identify employees (1) The railroad shall notify each provided that the total daily duration for inclusion in the hearing monitored employee of the results of the does not exceed 5 seconds. monitoring. conservation program and to enable the § 227.107 Hearing conservation program. proper selection of hearing protection. (2) The railroad shall post the (2) Where circumstances such as high monitoring results at the appropriate (a) Consistent with the requirements worker mobility, significant variations crew origination point for a minimum of of the noise monitoring program in sound level, or a significant 30 days. The posting should include required by § 227.103, the railroad shall component of impulse noise make area sufficient information to permit other administer a continuing, effective monitoring generally inappropriate, the crews to understand the meaning of the hearing conservation program, as set railroad shall use representative results in the context of the operations forth in §§ 227.109 through 227.121, for personal sampling to comply with the monitored. all employees exposed to noise at or monitoring requirements of this section, (h) Incorporation by reference. The above the action level. (b) For purposes of the hearing unless the railroad can show that area materials listed in this section are conservation program, employee noise sampling produces equivalent results. incorporated by reference in the (c) Noise measurements. corresponding sections noted. These exposure shall be computed in (1) All continuous, intermittent, and incorporations by reference were accordance with the tables in appendix impulse sound levels from 80 decibels approved by the Director of the Federal A of this part, and without regard to any to 140 decibels shall be integrated into Register in accordance with 5 U.S.C. attenuation provided by the use of the noise measurements. 552(a) and 1 CFR part 51. You may hearing protectors. (2) Noise measurements shall be made obtain a copy of the incorporated § 227.109 Audiometric testing program. materials from the American National under typical operating conditions (a) Each railroad shall establish and Standards Institute at 1819 L Street, using: maintain an audiometric testing NW., Washington, DC 20036 or http:// (i) A sound level meter conforming, at program as set forth in this section and www.ansi.org. You may inspect a copy a minimum, to the requirements of include employees who are required to of the incorporated standards at the ANSI S1.4–1983 (Reaffirmed 2001) be included in a hearing conservation Federal Railroad Administration, Docket (incorporated by reference, see program pursuant to § 227.107. § 227.103(h)), Type 2, and set to an A- Room, 1120 Vermont Ave., NW., Suite (b) Cost. The audiometric tests shall weighted SLOW response; 700, Washington, DC 20005, or at the be provided at no cost to employees. (ii) An integrated sound level meter National Archives and Records (c) Tests. Audiometric tests shall be conforming, at a minimum, to the Administration (NARA). For performed by: requirements of ANSI S1.43–1997 information on the availability of this (1) An audiologist, otolaryngologist, (Reaffirmed 2002) (incorporated by material at NARA, call 202–741–6030, or other physician who has experience reference, see § 227.103(h)), Type 2, and or go to http://www.archives.gov/ and expertise in hearing and hearing _ set to an A-weighted slow response ; or federal register/ loss; or (iii) A noise dosimeter conforming, at code_of_federal_regulations/ (2) A qualified technician. a minimum, to the requirements of ibr_locations.html. (d) [Reserved] ANSI S1.25–1991 (Reaffirmed 2002) (1) ANSI S1.4–1983 (Reaffirmed (e) Baseline audiogram. This (incorporated by reference, see 2001), Specification for Sound Level paragraph (e) applies to employees who

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are required by § 227.107 to be included calendar year and the date offered in the hearing protectors, the railroad shall in a hearing conservation program. subsequent calendar year shall be no refer the employee for a clinical (1) New employees. more than 450 days and no less than audiological evaluation or an otological (i) Except as provided in paragraph 280 days. examination. (e)(1)(ii), for employees hired after (2) The railroad shall require each (iv) If the railroad suspects that a February 26, 2007, the railroad shall employee included in the hearing medical pathology of the ear unrelated establish a valid baseline audiogram conservation program to take an to the use of hearing protectors is within 6 months of the new employee’s audiometric test at least once every 1095 present, the railroad shall inform the first tour of duty. days. employee of the need for an otological (ii) Where mobile test vans are used (g) Evaluation of audiogram. examination. to meet the requirement in paragraph (1) Each employee’s periodic (3) If subsequent audiometric testing (e)(1)(i), the railroad shall establish a audiogram shall be compared to that of an employee, whose exposure to valid baseline audiogram within one employee’s baseline audiogram to noise is less than an 8-hour TWA of 90 year of the new employee’s first tour of determine if the audiogram is valid and dB, indicates that a standard threshold duty. to determine if a standard threshold shift is not persistent, the railroad shall (2) Existing employees. shift has occurred. This comparison inform the employee of the new (i) For all employees without a may be done by a qualified technician. audiometric interpretation and may baseline audiogram as of February 26, (2) If the periodic audiogram discontinue the required use of hearing 2007, Class 1, passenger, and commuter demonstrates a standard threshold shift, protectors for that employee. railroads, and railroads with 400,000 or a railroad may obtain a retest within 90 (i) Revised baseline. A railroad shall more annual employee hours shall days. The railroad may consider the use the following methods for revising establish a valid baseline audiogram by results of the retest as the periodic baseline audiograms: February 26, 2009; and railroads with audiogram. (1) Periodic audiograms from less than 400,000 annual employee (3) The audiologist, otolaryngologist, audiometric tests conducted through hours shall establish a valid baseline or physician shall review problem February 26, 2009, may be substituted audiogram by February 26, 2010. audiograms and shall determine for the baseline measurement by the (ii) If an employee has had a baseline whether there is a need for further Professional Supervisor of the audiogram as of February 26, 2007, and evaluation. A railroad shall provide all Audiometric Monitoring Program who it was obtained under conditions that of the following information to the is evaluating the audiogram if: satisfy the requirements found in 29 person performing this review: (i) The standard threshold shift CFR 1910.95(h), the railroad must use (i) The baseline audiogram of the revealed by the audiogram is persistent; that baseline audiogram. employee to be evaluated; or (iii) If the employee has had a (ii) The most recent audiogram of the (ii) The hearing threshold shown in baseline audiogram as of February 26, employee to be evaluated; the periodic audiogram indicates 2007, and it was obtained under (iii) Measurements of background significant improvement over the conditions that satisfy the requirements sound pressure levels in the baseline audiogram. in 29 CFR 1910.95(h)(1), but not the audiometric test room as required in (2) Baseline audiograms from requirements found in 29 CFR appendix D of this part: Audiometric audiometric tests conducted after 1910.95(h)(2) through (5), the railroad Test Rooms; and February 26, 2009, shall be revised in may elect to use that baseline audiogram (iv) Records of audiometer accordance with the method specified provided that the Professional calibrations required by § 227.111. in appendix C of this part: Audiometric Supervisor of the Audiometric (h) Follow-up procedures. Baseline Revision. Monitoring Program makes a reasonable (1) If a comparison of the periodic (j) Standard threshold shift. In determination that the baseline audiogram to the baseline audiogram determining whether a standard audiogram is valid and is clinically indicates that a standard threshold shift threshold shift has occurred, allowance consistent with other materials in the has occurred, the railroad shall inform may be made for the contribution of employee’s medical file. the employee in writing within 30 days aging (presbycusis) to the change in (3) Testing to establish a baseline of the determination. hearing level by correcting the annual audiogram shall be preceded by at least (2) Unless a physician or audiologist audiogram according to the procedure 14 hours without exposure to determines that the standard threshold described in appendix F of this part: occupational noise in excess of the shift is not work-related or aggravated Calculation and Application of Age action level. Hearing protectors may be by occupational noise exposure, the Correction to Audiograms. used as a substitute for the requirement railroad shall ensure that the following that baseline audiograms be preceded by steps are taken: § 227.111 Audiometric test requirements. 14 hours without exposure to (i) Employees not using hearing (a) Audiometric tests shall be pure occupational noise. protectors shall be fitted with hearing tone, air conduction, hearing threshold (4) The railroad shall notify its protectors, shall be trained in their use examinations, with test frequencies employees of the need to avoid high and care, and shall be required to use including 500, 1000, 2000, 3000, 4000, levels of non-occupational noise them. 6000, and 8000 Hz. Tests at each exposure during the 14-hour period (ii) Employees already provided with frequency shall be taken separately for immediately preceding the audiometric hearing protectors shall be refitted, shall each ear. examination. be retrained in the use of hearing (b) Audiometric tests shall be (f) Periodic audiogram. protectors offering greater attenuation, if conducted with audiometers (including (1) The railroad shall offer an necessary, and shall be required to use microprocessor audiometers) that meet audiometric test to each employee them. the specifications of and are maintained included in the hearing conservation (iii) If subsequent audiometric testing and used in accordance with ANSI program at least once each calendar is necessary or if the railroad suspects S3.6–2004 ‘‘Specification for year. The interval between the date that a medical pathology of the ear is Audiometers.’’ The Director of the offered to any employee for a test in a caused or aggravated by the wearing of Federal Register approves the

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incorporation by reference of this (i) At least once every two years on § 227.117 Hearing protector attenuation. standard in accordance with 5 U.S.C. audiometers not used in mobile test (a) A railroad shall evaluate hearing 552(a) and 1 CFR part 51. You may vans. Test frequencies below 500 Hz protector attenuation for the specific obtain a copy of the incorporated and above 6000 Hz may be omitted from noise environments in which the standard from the American National this calibration. protector will be used. The railroad Standards Institute at 1819 L Street, (ii) At least annually on audiometers shall use one of the evaluation methods NW., Washington, DC 20036 or http:// used in mobile test vans. described in appendix B of this part; www.ansi.org. You may inspect a copy ‘‘Methods for Estimating the Adequacy § 227.113 Noise operational controls. of the incorporated standard at the of Hearing Protector Attenuation.’’ Federal Railroad Administration, Docket (a) Railroads may use noise (b) Hearing protectors shall attenuate Room, 1120 Vermont Ave., NW., Suite operational controls at any sound level employee exposure to an 8-hour TWA of 700, Washington, DC 20005, or at the to reduce exposures to levels below 90 decibels or lower, as required by National Archives and Records those required by Table A–1 of § 227.115. Administration (NARA). For more appendix A of this part. (c) For employees who have information on the availability of this (b) Railroads are encouraged to use experienced a standard threshold shift, material at NARA, call 202–741–6030, noise operational controls when hearing protectors must attenuate or go to http://www.archives.gov/ employees are exposed to sound _ employee exposure to an 8-hour time- federal register/ exceeding an 8-hour TWA of 90 dB(A). weighted average of 85 decibels or code_of_federal_regulations/ _ § 227.115 Hearing protectors. lower. ibr locations.html. (d) The adequacy of hearing protector (1) Pulsed-tone audiometers should be (a) General requirements for hearing attenuation shall be re-evaluated used with the following on and off protectors. whenever employee noise exposures times: F–J and J–K shall each have (1) The railroad shall provide hearing increase to the extent that the hearing values of 225 ± 35 milliseconds (ms). protectors to employees at no cost to the (2) Use of insert earphones shall be protectors provided may no longer employee. provide adequate attenuation. A railroad consistent with the requirements listed (2) The railroad shall replace hearing in appendix E of this part: Use of Insert shall provide more effective hearing protectors as necessary. protectors where necessary. Earphones for Audiometric Testing. (3) When offering hearing protectors, (c) Audiometric examinations shall be a railroad shall consider an employee’s § 227.119 Training program. administered in a room meeting the ability to understand and respond to (a) The railroad shall institute an requirements listed in appendix D of voice radio communications and occupational noise and hearing this part: Audiometric Test Rooms. audible warnings. (d) Audiometer calibration. conservation training program for all (1) The functional operation of the (4) The railroad shall give employees employees included in the hearing audiometer shall be checked before each the opportunity to select their hearing conservation program. day’s use by testing a person with protectors from a variety of suitable (1) The railroad shall offer the training known, stable hearing thresholds or by hearing protectors. The selection shall program to each employee included in appropriate calibration device, and by include devices with a range of the hearing conservation program at listening to the audiometer’s output to attenuation levels. least once each calendar year. The make sure that the output is free from (5) The railroad shall provide training interval between the date offered to any distorted or unwanted sounds. in the use and care of all hearing employee for the training in a calendar Deviations of 10 decibels or greater protectors provided to employees. year and the date offered in the require an acoustic calibration. (6) The railroad shall ensure proper subsequent calendar year shall be no (2) Audiometer calibration shall be initial fitting and supervise the correct more than 450 days and no less than checked acoustically at least annually use of all hearing protectors. 280 days. according to the procedures described (b) Availability of hearing protectors. (2) The railroad shall require each in ANSI S3.6–2004. Frequencies below A railroad shall make hearing protectors employee included in the hearing 500 Hz and above 8000 Hz may be available to all employees exposed to conservation program to complete the omitted from this check. The sound levels that meet or exceed the training at least once every 1095 days. audiometer must meet the sound action level. (b) The railroad shall provide the pressure accuracy requirements of (c) Required use at action level. A training required by paragraph (a) of this section 7.2 of ANSI S3.6–2004 of 3 dB railroad shall require the use of hearing section in accordance with the at any test frequency between 500 and protectors when an employee is exposed following: 5000 Hz and 5 dB at any test frequency to sound levels that meet or exceed the (1) For employees hired after February 6000 Hz and higher for the specific type action level, and the employee has: 26, 2007, within six months of the of transducer used. For air-conduction (1) Not yet had a baseline audiogram employee’s first tour of duty in a supra-aural earphones, the established pursuant to § 227.109; or position identified within the scope of specifications in Table 6 of ANSI S3.6– (2) Experienced a standard threshold this part. 2004 shall apply. For air-conduction shift and is required to use hearing (2) For employees hired on or before insert earphones, the specifications in protectors under § 227.109(h). February 26, 2007, by Class 1, Table 7 of ANSI S3.6–2004 shall apply. (d) Required use for TWA of 90 dB(A). passenger, and commuter railroads, and Audiometers that do not meet these The railroad shall require the use of railroads with 400,000 or more annual requirements must undergo an hearing protectors when an employee is employee hours, by no later than exhaustive calibration. exposed to sound levels equivalent to an February 26, 2009; (3) Exhaustive Calibration. An 8-hour TWA of 90 dB(A) or greater. The (3) For employees hired on or before exhaustive calibration shall be hearing protectors should be used to February 26, 2007, by railroads with performed in accordance with ANSI reduce sound levels to within those fewer than 400,000 annual employee S3.6–2004, according to the following levels required by appendix A of this hours, by no later than February 26, schedule: part. 2010.

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(c) The training program shall include (2) Electronic records. All records (2) Retain the records required by and the training materials shall reflect, required by this part may be kept in § 227.107 for the duration of the covered at a minimum, information on all of the electronic form by the railroad. A employee’s employment plus thirty following: railroad may maintain and transfer years. (1) The effects of noise on hearing; records through electronic transmission, (d) Positions and persons designated (2) The purpose of hearing protectors; storage, and retrieval provided that: records. The railroad shall: (3) The advantages, disadvantages, (i) The electronic system be designed (1) Maintain a record of all positions and attenuation of various types of so that the integrity of each record is or persons or both designated by the hearing protectors; maintained through appropriate levels railroad to be placed in a Hearing (4) Instructions on selection, fitting, of security such as recognition of an Conservation Program pursuant to use, and care of hearing protectors; electronic signature, or other means, § 227.107; and (5) The purpose of audiometric which uniquely identify the initiating (2) Retain these records for the testing, and an explanation of the test person as the author of that record. No duration of the designation. procedures; two persons shall have the same (e) Training program materials (6) An explanation of noise electronic identity; records. The railroad shall: operational controls, where used; (ii) The electronic system shall ensure (1) Maintain copies of all training (7) General information concerning program materials used to comply with the expected range of workplace noise that each record cannot be modified in § 227.119(c) and a record of employees exposure levels associated with major any way, or replaced, once the record is categories of railroad equipment and transmitted and stored; trained; and (iii) Any amendment to a record shall (2) Retain these copies and records for operations (e.g., switching and road be electronically stored apart from the assignments, hump yards near retarders, three years. (f) Standard threshold shift records. etc.) and appropriate reference to record which it amends. Each requirements of the railroad concerning amendment to a record shall be The railroad shall: (1) Maintain a record of all employees use of hearing protectors; uniquely identified as to the person (8) The purpose of noise monitoring making the amendment; who have been found to have and a general description of monitoring (iv) The electronic system shall experienced a standard threshold shift procedures; provide for the maintenance of records within the prior calendar year and (9) The availability of a copy of this as originally submitted without include all of the following information part, an explanation of the requirements corruption or loss of data; and for each employee on the record: of this part as they affect the (v) Paper copies of electronic records (i) Date of the employee’s baseline responsibilities of employees, and and amendments to those records, that audiogram; employees’ rights to access records may be necessary to document (ii) Date of the employee’s most recent under this part; compliance with this part shall be made audiogram; (10) How to determine what can available for inspection and copying/ (iii) Date of the establishment of a trigger an excessive noise report, photocopying by representatives of the standard threshold shift; pursuant to § 229.121(b); and FRA. (iv) The employee’s job code; and (11) How to file an excessive noise (3) Transfer of records. If a railroad (v) An indication of how many report, pursuant to § 229.121(b). ceases to do business, it shall transfer to standard threshold shifts the employee the successor employer all records has experienced in the past, if any; and § 227.121 Recordkeeping. required to be maintained under this (2) Retain these records for five years. (a) General requirements. subpart, and the successor employer Appendix A to Part 227—Noise (1) Availability of records. Each shall retain them for the remainder of Exposure Computation railroad required to maintain and retain the period prescribed in this part. records under this part shall: (b) Exposure measurements records. This appendix is mandatory. (i) Make all records available for The railroad shall: I. Computation of Employee Noise Exposure inspection and copying/photocopying to (1) Maintain an accurate record of all representatives of the FRA, upon employee exposure measurements A. Noise dose is computed using Table A– request; 1 as follows: required by § 227.103; and 1. When the sound level, L, is constant (ii) Make an employee’s records (2) Retain these records for the available for inspection and copying/ over the entire work day, the noise dose, D, duration of the covered employee’s in percent, is given by: D = 100 C/T, where photocopying to that employee, former employment plus thirty years. C is the total length of the work day, in employee, or such person’s (c) Audiometric test records. The hours, and T is the duration permitted representative upon written railroad shall: corresponding to the measured sound level, authorization by such employee; (1) Maintain employee audiometric L, as given in Table A–1. (iii) Make exposure measurement test records required by § 227.109, 2. When the work day noise exposure is records for a given run or yard available including: composed of two or more periods of noise at for inspection and copying/ (i) The name and job classification of different levels, the total noise dose over the photocopying to all employees who the employee; work day is given by: were present in the locomotive cab (ii) The date of the audiogram; D = 100 (C1/T1 + C2/T2 + . . . + Cn/Tn), during the given run and/or who work (iii) The examiner’s name; where Cn indicates the total time of exposure in the same yard; and (iv) The date of the last acoustic or at a specific noise level, and Tn indicates the (iv) Make exposure measurement duration permitted for that level as given by exhaustive calibration of the Table A–1. records for specific locations available audiometer; to regional or national labor (v) Accurate records of the B. The eight-hour TWA in dB may be computed from the dose, in percent, by representatives, upon request. These measurements of the background sound means of the formula: TWA = 16.61 log10 (D/ reports shall not contain identifying pressure levels in audiometric test 100) + 90. For an eight-hour work day with information of an employee unless an rooms; the noise level constant over the entire day, employee authorizes the release of such (vi) The model and serial number of the TWA is equal to the measured sound information in writing. the audiometer used for testing; and level.

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C. Exposure to impulsive or impact noise 8 TABLE A–2.—CONVERSION FROM should not exceed 140 dB peak sound T = ()L−90/ 5 ‘‘PERCENT NOISE EXPOSURE’’ OR pressure level. 2 ‘‘DOSE’’ TO ‘‘8-HOUR TIME-WEIGHT- D. Any time that an employee spends where L is the measured A-weighted sound ED VERAGE OUND EVEL deadheading shall be included in the level. A S L ’’ calculation of the noise dose. (TWA)—Continued E. A table relating dose and TWA is given II. Conversion Between ‘‘Dose’’ and ‘‘8-Hour in Section II of this Appendix. Time-Weighted Average’’ Sound Level Dose or percent noise TWA A. Compliance with subpart B of part 227 exposure TABLE A–11 is determined by the amount of exposure to noise in the workplace. The amount of such 99 ...... 89.9 Duration exposure is usually measured with a 100 ...... 90.0 A-weighted sound level, L permitted dosimeter which gives a readout in terms of 101 ...... 90.1 (decibel) T ‘‘dose.’’ In order to better understand the 102 ...... 90.1 (hour) requirements of the regulation, dosimeter 103 ...... 90.2 readings can be converted to an ‘‘8-hour 104 ...... 90.3 80 ...... 32 TWA.’’ 105 ...... 90.4 81 ...... 27 .9 B. In order to convert the reading of a 106 ...... 90.4 82 ...... 24 .3 dosimeter into TWA, see Table A–2, below. 107 ...... 90.5 83 ...... 21 .1 This table applies to dosimeters that are set 108 ...... 90.6 84 ...... 18 .4 by the manufacturer to calculate dose or 109 ...... 90.6 85 ...... 16 percent exposure according to the 110 ...... 90.7 86 ...... 13 .9 relationships in Table A–1. So, for example, 111 ...... 90.8 87 ...... 12 .1 a dose of 91 percent over an eight-hour day 112 ...... 90.8 88 ...... 10 .6 results in a TWA of 89.3 dB, and a dose of 113 ...... 90.9 89 ...... 9 .2 50 percent corresponds to a TWA of 85 dB. 114 ...... 90.9 90 ...... 8 C. If the dose as read on the dosimeter is 115 ...... 91.1 91 ...... 7 .0 less than or greater than the values found in 116 ...... 91.1 92 ...... 6 .1 Table A–2, the TWA may be calculated by 117 ...... 91.1 93 ...... 5 .3 using the formula: TWA = 16.61 log10 (D/ 118 ...... 91.2 94 ...... 4 .6 100) + 90 where TWA = 8-hour time- 119 ...... 91.3 95 ...... 4 weighted average sound level and D = 120 ...... 91.3 96 ...... 3 .5 accumulated dose in percent exposure. 125 ...... 91.6 97 ...... 3 .0 130 ...... 91.9 98 ...... 2 .6 TABLE A–2.—CONVERSION FROM 135 ...... 92.2 140 ...... 92.4 99 ...... 2 .3 ‘‘PERCENT NOISE EXPOSURE’’ OR 100 ...... 2 145 ...... 92.7 OSE TO OUR IME EIGHT 101 ...... 1.7 ‘‘D ’’ ‘‘8-H T -W - 150 ...... 92.9 102 ...... 1.5 ED AVERAGE SOUND LEVEL’’ (TWA) 155 ...... 93.2 103 ...... 1.3 160 ...... 93.4 165 ...... 93.6 104 ...... 1.1 Dose or percent noise TWA 105 ...... 1 exposure 170 ...... 93.8 106 ...... 0.87 175 ...... 94.0 107 ...... 0.76 10 ...... 73.4 180 ...... 94.2 108 ...... 0.66 15 ...... 76.3 185 ...... 94.4 109 ...... 0.57 20 ...... 78.4 190 ...... 94.6 110 ...... 0.5 25 ...... 80.0 195 ...... 94.8 111 ...... 0.44 30 ...... 81.3 200 ...... 95.0 112 ...... 0.38 35 ...... 82.4 210 ...... 95.4 113 ...... 0.33 40 ...... 83.4 220 ...... 95.7 114 ...... 0.29 45 ...... 84.2 230 ...... 96.0 115 ...... 0.25 50 ...... 85.0 240 ...... 96.3 116 ...... 0.22 55 ...... 85.7 250 ...... 96.6 117 ...... 0.19 60 ...... 86.3 260 ...... 96.9 118 ...... 0.16 65 ...... 86.9 270 ...... 97.2 119 ...... 0.14 70 ...... 87.4 280 ...... 97.4 120 ...... 0.125 75 ...... 87.9 290 ...... 97.7 121 ...... 0.11 80 ...... 88.4 300 ...... 97.9 122 ...... 0.095 81 ...... 88.5 310 ...... 98.2 123 ...... 0.082 82 ...... 88.6 320 ...... 98.4 124 ...... 0.072 83 ...... 88.7 330 ...... 98.6 125 ...... 0.063 84 ...... 88.7 340 ...... 98.8 126 ...... 0.054 85 ...... 88.8 350 ...... 99.0 127 ...... 0.047 86 ...... 88.9 360 ...... 99.2 128 ...... 0.041 87 ...... 89.0 370 ...... 99.4 129 ...... 0.036 88 ...... 89.1 380 ...... 99.6 130 ...... 0.031 89 ...... 89.2 390 ...... 99.8 140 ...... 0.078 90 ...... 89.2 400 ...... 100.0 91 ...... 89.3 410 ...... 100.2 1 Numbers above 115 dB(A) are italicized to 92 ...... 89.4 420 ...... 100.4 indicate that they are noise levels that are not 93 ...... 89.5 430 ...... 100.5 permitted. The italicized numbers are included 94 ...... 89.6 440 ...... 100.7 only because they are sometimes necessary 95 ...... 89.6 450 ...... 100.8 for the computation of noise dose. 96 ...... 89.7 460 ...... 101.0 In the above table the duration permitted, 97 ...... 89.8 470 ...... 101.2 T, is computed by 98 ...... 89.9 480 ...... 101.3

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TABLE A–2.—CONVERSION FROM B. Reduce the resulting amount by: detect improvement in the average (average ‘‘PERCENT NOISE EXPOSURE’’ OR 1. 20% for , of thresholds at 2, 3, and 4 kHz) and to detect 2. 40% for form-able earplugs, or an FRA STS. The two ears are examined ‘‘DOSE’’ TO ‘‘8-HOUR TIME-WEIGHT- 3. 60% for all other earplugs. separately and independently for ED AVERAGE SOUND LEVEL’’ C. Subtract the remaining amount from the improvement and for worsening. If one ear (TWA)—Continued A-weighted TWA. You will have the meets the criteria for revision of baseline, estimated A-weighted TWA for that hearing then the baseline is revised for that ear only. Dose or percent noise protector. Therefore, if the two ears show different exposure TWA hearing trends, the baseline for the left ear II. Method B From ANSI S12.6–1997 may be from one test date, while the baseline 490 ...... 101.5 (Reaffirmed 2002) for the right ear may be from a different test 500 ...... 101.6 Use Method B, which is found in ANSI date. 510 ...... 101.8 S12.6–1997 (Reaffirmed 2002) ‘‘Methods for E. Age corrections do not apply in 520 ...... 101.9 Measuring the Real-Ear Attenuation of considering revisions for improvement (Rule 530 ...... 102.0 Hearing Protectors.’’ The Director of the 1). The FRA-allowed age corrections from 540 ...... 102.2 Federal Register approves the incorporation appendix F of Part 227 2 may be used, if 550 ...... 102.3 by reference of this standard in accordance desired, before considering revision for 560 ...... 102.4 with 5 U.S.C. 552(a) and 1 CFR part 51. You persistent STS. Rule 2 operates in the same 570 ...... 102.6 may obtain a copy of the incorporated way, whether age corrections are used or not. 580 ...... 102.7 standard from the American National II. Rule 1: Revision for Persistent 590 ...... 102.8 Standards Institute at 1819 L Street, NW., Improvement 600 ...... 102.9 Washington, DC 20036, or http:// 610 ...... 103.0 www.ansi.org. You may inspect a copy of the If the average of the thresholds for 2, 3, and 620 ...... 103.2 incorporated standard at the Federal Railroad 4 kHz for either ear shows an improvement 630 ...... 103.3 Administration, Docket Room, 1120 Vermont of 5 dB or more from the baseline value, and the improvement is present on one test and 640 ...... 103.4 Ave., Suite 700, Washington, DC 20005, or at persistent on the next test, then the record 650 ...... 103.5 the National Archives and Records should be identified for review by the 660 ...... 103.6 Administration (NARA). For information on audiologist, otolaryngologist, or physician for 670 ...... 103.7 the availability of this material at NARA, call potential revision of the baseline for 680 ...... 103.8 202–741–6030, or go to http:// persistent improvement. The baseline for that 690 ...... 103.9 www.archives.gov/federal_register/code_of_ ear should be revised to the test which shows 700 ...... 104.0 federal_regulations/ibr_locations.html. 710 ...... 104.1 the lower (more sensitive) value for the 720 ...... 104.2 III. Objective Measurement average of thresholds at 2, 3, and 4 kHz 730 ...... 104.3 Use actual measurements of the level of unless the audiologist, otolaryngologist, or physician determines and documents 740 ...... 104.4 noise exposure (as an A-weighted SLOW specific reasons for not revising. If the values 750 ...... 104.5 response dose) inside the hearing protector of the three-frequency average are identical 760 ...... 104.6 when the employee wears the hearing for the two tests, then the earlier test becomes 770 ...... 104.7 protector in the actual work environment. 780 ...... 104.8 the revised baseline. 790 ...... 104.9 Appendix C to Part 227—Audiometric III. Rule 2: Revision for Persistent Standard 800 ...... 105.0 Baseline Revision 810 ...... 105.1 Threshold Shift 820 ...... 105.2 This appendix is mandatory beginning on A. If the average of thresholds for 2, 3, and 830 ...... 105.3 February 26, 2009. 4 kHz for either ear shows a worsening of 10 840 ...... 105.4 dB or more from the baseline value, and the I. General 850 ...... 105.4 STS persists on the next periodic test (or the 860 ...... 105.5 A. A professional reviewer (audiologist, next test given at least 6 months later), then 870 ...... 105.6 otolaryngologist, or physician) shall use these the record should be identified for review by 880 ...... 105.7 procedures when revising baseline the audiologist, otolaryngologist, or 890 ...... 105.8 audiograms. physician for potential revision of the 900 ...... 105.8 B. Although these procedures can be baseline for persistent worsening. Unless the 910 ...... 105.9 programmed by a computer to identify audiologist, otolaryngologist, or physician 920 ...... 106.0 records for potential revision, the final determines and documents specific reasons 930 ...... 106.1 decision for revision rests with a human for not revising, the baseline for that ear 940 ...... 106.2 being. Because the goal of the guidelines is should be revised to the test which shows the 950 ...... 106.2 to foster consistency among different lower (more sensitive) value for the average 960 ...... 106.3 professional reviewers, human override of of thresholds at 2, 3, and 4 kHz. If both tests 970 ...... 106.4 the guidelines must be justified by specific show the same numerical value for the 980 ...... 106.5 concrete reasons. average of 2, 3, and 4 kHz, then the 990 ...... 106.5 C. These procedures do not apply to: The audiologist, otolaryngologist, or physician 999 ...... 106.6 identification of standard threshold shifts should revise the baseline to the earlier of the (STS) other than an FRA STS 1 or to the two tests, unless the later test shows better Appendix B to Part 227—Methods for calculation of the 25-dB average shifts that (more sensitive) thresholds for other test Estimating the Adequacy of Hearing are reportable on the Form FRA F 6180.55a. frequencies. Protector Attenuation D. Initially, the baseline is the latest B. Following an STS, a retest within 90 audiogram obtained before entry into the days of the periodic test may be substituted This appendix is mandatory. hearing conservation program. If no for the periodic test if the retest shows better Employers must select one of the following appropriate pre-entry audiogram exists, the (more sensitive) results for the average three methods by which to estimate the baseline is the first audiogram obtained after threshold at 2, 3, and 4 kHz. adequacy of hearing protector attenuation. entry into the hearing conservation program. C. If the retest is used in place of the Each subsequent audiogram is reviewed to periodic test, then the periodic test is I. Derate by Type retained in the record, but it is marked in Derate the hearing protector attenuation by 1 OSHA and FRA use the same definition for type using the following requirements: Standard Threshold Shift (STS). FRA’s definition is 2 FRA and OSHA use the same age-correction A. Subtract 7 dB from the published Noise located in § 227.5. OSHA’s definition is located in provisions. FRA’s is found in appendix F of part Reduction Rating (NRR). 29 CFR 1910.95(g)(10)(i). 227 and OSHA’s in appendix F of 29 CFR 1910.95.

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such a way that it is no longer considered in Appendix D to Part 227—Audiometric S.1.11–2004 in this section in accordance baseline revision evaluations. If a retest Test Rooms with 5 U.S.C. 552(a) and 1 CFR part 51. You within 90 days of periodic test confirms an may obtain a copy of the incorporated FRA STS shown on the periodic test, the This appendix is mandatory. standard from the American National A. Rooms used for audiometric testing baseline will not be revised at that point Standards Institute at 1819 L Street, NW., shall not have background sound pressure because the required six-month interval Washington, DC 20036 or http:// levels exceeding those in Table D–1 when between tests showing STS persistence has www.ansi.org. You may inspect a copy of the measured by equipment conforming at least incorporated standard at the Federal Railroad not been met. The purpose of the six-month to the Type 2 requirements of ANSI S1.4– Administration, Docket Room, 1120 Vermont requirement is to prevent premature baseline 1983 (Reaffirmed 2001) and to the Class 2 Ave., NW., Suite 700, Washington, DC 20005, revision when STS is the result of temporary requirements of ANSI S1.11–2004, or at the National Archives and Records medical conditions affecting hearing. ‘‘Specification for Octave-Band and Administration (NARA). For information on D. Although a special retest after six Fractional-Octave-Band Analog and Digital the availability of this material at NARA, call months could be given, if desired, to assess Filters.’’ 202–741–6030, or go to http:// whether the STS is persistent, in most cases, B. The Director of the Federal Register www.archives.gov/federal_register/ the next annual audiogram would be used to approves the incorporation by reference of code_of_federal_regulations/ evaluate persistence of the STS. ANSI S1.4–1983 (Reaffirmed 2001) and ibr_locations.html.

TABLE D–1.—MAXIMUM ALLOWABLE OCTAVE-BAND SOUND PRESSURE LEVELS FOR AUDIOMETRIC TEST ROOMS

Octave-band center frequency (Hz) 500 1000 2000 4000 8000

Sound pressure levels—supra-aural earphones...... 40 40 47 57 62 Sound pressure levels—insert earphones...... 50 47 49 50 56

Appendix E to Part 227—Use of Insert Docket Room, 1120 Vermont Ave., NW., VI. Revised Baseline Audiograms Earphones for Audiometric Testing Suite 700, Washington, DC 20005, or at the A. If an STS is confirmed by the re-test National Archives and Records with supra-aural earphones, the audiogram This appendix is mandatory. Administration (NARA). For information on Section 227.111(d) allows railroads to use may become the revised baseline audiogram the availability of this material at NARA, call per the requirements of § 227.109(i) for all insert earphones for audiometric testing. 202–741–6030, or go to http:// Railroads are not required to use insert future hearing tests with supra-aural www.archives.gov/federal_register/ earphones, however, where they elect to use earphones. The insert-earphone audiogram code_of_federal_regulations/ insert earphones, they must comply with the _ will become the new reference baseline requirements of this appendix. ibr locations.html. audiogram for all future hearing tests B. Audiometers used with insert earphones performed with insert earphones. I. Acceptable Fit must be calibrated using one of the couplers B. If an STS is not indicated by the test listed in Table 7 of ANSI S3.6–2004. A. The audiologist, otolaryngologist, or with supra-aural earphones, the baseline C. The acoustical calibration shall be other physician responsible for conducting audiogram remains the reference baseline conducted annually. the audiometric testing, shall identify ear audiogram for all future supra-aural earphone D. The functional calibration must be canals that prevent achievement of an tests, until such time as an STS is observed. acceptable fit with insert earphones, or shall conducted before each day’s use of the In this case, the insert-earphone audiogram assure that any technician under his/her audiometer. taken at the same time will become the new authority who conducts audiometric testing with insert earphones has the ability to IV. Background Noise Levels reference baseline audiogram for all future identify such ear canals. Testing shall be conducted in a room hearing tests performed with insert B. Technicians who conduct audiometric where the background ambient noise octave- earphones. tests must be trained to insert the earphones band sound pressures levels meet appendix C. Transitioning Employees with Partial correctly into the ear canals of test subjects D to this part. Shifts. Employers must account for the and to recognize conditions where ear canal workers who are in the process of developing size prevents achievement of an acceptable V. Conversion From Supra Aural Earphones an STS (e.g., demonstrate a 7 dB average insertion depth (fit). At the time of conversion from supra-aural shift), but who at the time of the conversion C. Insert earphones shall not be used for to insert earphones, testing must be to insert earphones do not have a 10 dB audiometric testing of employees with ear performed with both types of earphones. average shift. Employers who want to use canal sizes that prevent achievement of an A. The test subject must have a quiet insert earphones must enter the 7 dB shift acceptable insertion depth (fit). period of at least 14 hours before testing. information in the employee’s audiometric II. Proper Use Hearing protectors may be used as a test records although it is not an ‘‘STS’’. substitute for the quiet period. When the next annual audiogram using insert The manufacturer’s guidelines for proper B. The supra-aural earphone audiogram earphones shows an average threshold shift use of insert earphones must be followed. shall be compared to the baseline audiogram, at 2000, 3000 and 4000 Hz of 3 dB, III. Audiometer Calibration or the revised baseline audiogram if completing the full shift (7 dB + 3 dB), A. Audiometers used with insert earphones appropriate, to check for a Standard employers must then label that average shift must be calibrated in accordance with ANSI Threshold Shift (STS). In accordance with as an STS. This triggers the follow-up S3.6–2004, ‘‘Specification for Audiometers.’’ § 227.109(f)(2), if the audiogram shows an procedures at § 227.109(h). STS, retesting with supra-aural earphones The Director of the Federal Register approves VII. Records the incorporation by reference of this must be performed within 90 days. If the standard in this section in accordance with resulting audiogram confirms the STS, then All audiograms (including both those 5 U.S.C. 552(a) and 1 CFR part 51. You may it is adopted as the current test instead of the produced through the use of insert earphones obtain a copy of the incorporated standard prior one. and supra-aural headsets), calculations, pure- from the American National Standards C. If retesting with supra-aural earphones tone individual and average threshold shifts, Institute at 1819 L Street, NW., Washington, is performed, then retesting with insert full STS migrations, and audiometric DC 20036 or http://www.ansi.org. You may earphones must be performed at that time to acoustical calibration records, are to be inspect a copy of the incorporated standard establish the baseline for future audiometric preserved as records and maintained at the Federal Railroad Administration, tests using the insert earphones. according to § 227.121(c).

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Appendix F to Part 227—Calculations National Institute for Occupational Safety B. Finding the age at which the baseline and Application of Age Corrections to and Health in a criteria document. See audiogram was taken and recording the Audiograms ‘‘Criteria for a Recommended Standard: corresponding values of age corrections at Occupational Exposure to Noise,’’ 1000 Hz through 6000 Hz. This appendix is non-mandatory. Department of Health and Human Services II. Subtract the values found in step (I)(B) In determining whether a standard (NIOSH) Publication No. 98–126. For each threshold shift (STS) has occurred, allowance from the value found in step (I)(A). may be made for the contribution of aging to audiometric test frequency: III. The differences calculated in step (II) the change in hearing level by adjusting the I. Determine from Tables F–1 or F–2 the represented that portion of the change in most recent audiogram. If the employer age correction values for the employee by: hearing that may be due to aging. chooses to adjust the audiogram, the A. Finding the age at which the most Example: Employee is a 32-year-old male. employer shall follow the procedure recent audiogram was taken and recording The audiometric history for his right ear is described below. This procedure and the age the corresponding values of age corrections at shown in decibels below. correction tables were developed by the 1000 Hz through 6000 Hz;

Audiometric test frequency Employee’s age (Hz) 1000 2000 3000 4000 6000

26 ...... 10 5 5 10 5 27* ...... 0 0 0 5 5 28 ...... 0 0 0 10 5 29 ...... 5 0 5 15 5 30 ...... 0 5 10 20 10 31 ...... 5 10 20 15 15 32* ...... 5 10 10 25 20

a. The audiogram at age 27 is considered at 4000 Hz between the audiograms taken at confirmed this shift. The contribution of the baseline since it shows the best hearing ages 27 and 32. aging to this change in hearing may be threshold levels. Asterisks have been used to b. (The threshold shift is computed by estimated in the following manner: identify the baseline and most recent subtracting the hearing threshold at age 27, c. Go to Table F–1 and find the age audiogram. A threshold shift of 20 dB exists which was 5, from the hearing threshold at correction values (in dB) for 4000 Hz at age age 32, which is 25). A retest audiogram has 27 and age 32.

Frequency (Hz) 1000 2000 3000 4000 6000

Age 32 ...... 6 5 7 10 14 Age 27 ...... 5 4 6 7 11

Difference ...... 1 1 1 3 3

d. The difference represents the amount of dB. This value is subtracted from the hearing subtracted from the adjusted annual hearing loss that may be attributed to aging level at 4000 Hz, which in the most recent audiogram hearing threshold at 4000 Hz (22). in the time period between the baseline audiogram is 25, yielding 22 after Thus the age-corrected threshold shift would audiogram and the most recent audiogram. In adjustment. Then the hearing threshold in be 17 dB (as opposed to a threshold shift of this example, the difference at 4000 Hz is 3 the baseline audiogram at 4000 Hz (5) is 20 dB without age correction).

TABLE F–1.—AGE CORRECTION VALUES IN DECIBELS FOR MALES

Audiometric test frequencies Years (Hz) 1000 2000 3000 4000 6000

20 or younger ...... 5 3 4 5 8 21 ...... 5 3 4 5 8 22 ...... 5 3 4 5 8 23 ...... 5 3 4 6 9 24 ...... 5 3 5 6 9 25 ...... 5 3 5 7 10 26 ...... 5 4 5 7 10 27 ...... 5 4 6 7 11 28 ...... 6 4 6 8 11 29 ...... 6 4 6 8 12 30 ...... 6 4 6 9 12 31 ...... 6 4 7 9 13 32 ...... 6 5 7 10 14 33 ...... 6 5 7 10 14 34 ...... 6 5 8 11 15 35 ...... 7 5 8 11 15

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TABLE F–1.—AGE CORRECTION VALUES IN DECIBELS FOR MALES—Continued

Audiometric test frequencies Years (Hz) 1000 2000 3000 4000 6000

36 ...... 7 5 9 12 16 37 ...... 7 6 9 12 17 38 ...... 7 6 9 13 17 39 ...... 7 6 10 14 18 40 ...... 7 6 10 14 19 41 ...... 7 6 10 14 20 42 ...... 8 7 11 16 20 43 ...... 8 7 12 16 21 44 ...... 8 7 12 17 22 45 ...... 8 7 13 18 23 46 ...... 8 8 13 19 24 47 ...... 8 8 14 19 24 48 ...... 9 8 14 20 25 49 ...... 9 9 15 21 26 50 ...... 9 9 16 22 27 51 ...... 9 9 16 23 28 52 ...... 9 10 17 24 29 53 ...... 9 10 18 25 30 54 ...... 10 10 18 26 31 55 ...... 10 11 19 27 32 56 ...... 10 11 20 28 34 57 ...... 10 11 21 29 35 58 ...... 10 12 22 31 36 59 ...... 11 12 22 32 37 60 or older ...... 11 13 23 33 38

TABLE F–2.—AGE CORRECTION VALUES IN DECIBELS FOR FEMALES

Audiometric test frequencies Years (Hz) 1000 2000 3000 4000 6000

20 or younger ...... 7 4 3 3 6 21 ...... 7 4 4 3 6 22 ...... 7 4 4 4 6 23 ...... 7 5 4 4 7 24 ...... 7 5 4 4 7 25 ...... 8 5 4 4 7 26 ...... 8 5 5 4 8 27 ...... 8 5 5 5 8 28 ...... 8 5 5 5 8 29 ...... 8 5 5 5 9 30 ...... 8 6 5 5 9 31 ...... 8 6 6 5 9 32 ...... 9 6 6 6 10 33 ...... 9 6 6 6 10 34 ...... 9 6 6 6 10 35 ...... 9 6 7 7 11 36 ...... 9 7 7 7 11 37 ...... 9 7 7 7 12 38 ...... 10 7 7 7 12 39 ...... 10 7 8 8 12 40 ...... 10 7 8 8 13 41 ...... 10 8 8 8 13 42 ...... 10 8 9 9 13 43 ...... 11 8 9 9 14 44 ...... 11 8 9 9 14 45 ...... 11 8 10 10 15 46 ...... 11 9 10 10 15 47 ...... 11 9 10 11 16 48 ...... 12 9 11 11 16 49 ...... 12 9 11 11 16 50 ...... 12 10 11 12 17 51 ...... 12 10 12 12 17 52 ...... 12 10 12 13 18 53 ...... 13 10 13 13 18 54 ...... 13 11 13 14 19 55 ...... 13 11 14 14 19

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TABLE F–2.—AGE CORRECTION VALUES IN DECIBELS FOR FEMALES—Continued

Audiometric test frequencies Years (Hz) 1000 2000 3000 4000 6000

56 ...... 13 11 14 15 20 57 ...... 13 11 15 15 20 58 ...... 14 12 15 16 21 59 ...... 14 12 16 16 21 60 or older ...... 14 12 16 17 22

Appendix G to Part 227—Schedule of Civil Penalties

Willful Section Violation violation

Subpart A—General 227.3 Application: (b)(4) Failure to meet the required conditions for foreign railroad operations ...... $2,500 $5,000 Subpart B—General Requirements 227.103 Noise monitoring program: (a) Failure to develop and/or implement a noise monitoring program ...... 7,500 10,000 (b) Failure to use sampling as required ...... 2,500 5,000 (c) Failure to integrate sound levels and/or make noise measurements as required ...... 2,500 5,000 (d) Failure to repeat noise monitoring where required ...... 2,500 5,000 (e) Failure to consider work environments where hearing protectors may be omitted ...... 2,500 5,000 (f) Failure to provide opportunity to observe monitoring ...... 2,000 4,000 (g) Reporting of Monitoring Results: (1) Failure to notify monitored employee ...... 2,500 5,000 (2) Failure to post results as required ...... 2,500 5,000 227.105 Protection of employees: (a) Failure to provide appropriate protection to exposed employee ...... 7,500 10,000 (b) Failure to observe and document source(s) of noise exposures ...... 2,500 5,000 (c)–(d) Failure to protect employee from impermissible continuous noise ...... 5,000 7,500 227.107 Hearing conservation program: (a) Failure to administer a HCP ...... 7,500 10,000 (b) Failure to compute noise exposure as required ...... 3,500 7,000 227.109 Audiometric testing program: (a) Failure to establish and/or maintain an audiometric testing program ...... 7,500 10,000 (b) Failure to provide audiometric test at no cost to employee ...... 2,500 5,000 (c) Failure to have qualified person perform audiometric test ...... 2,500 5,000 (d) [Reserved] ...... (e) Failure to establish baseline audiogram as required ...... 3,500 7,000 (f) Failure to offer and/or require periodic audiograms as required ...... 2,500 5,000 (g) Failure to evaluate audiogram as required ...... 2,500 5,000 (h) Failure to comply with follow-up procedures as required ...... 2,500 5,000 (i) Failure to use required method for revising baseline audiograms ...... 2,500 5,000 227.111 Audiometric test requirements: (a) Failure to conduct test as required ...... 2,500 5,000 (b) Failure to use required equipment ...... 2,500 5,000 (c) Failure to administer test in room that meets requirements ...... 2,500 5,000 (d) Complete failure to calibrate ...... 5,000 7,500 (1) Failure to perform daily calibration as required ...... 2,000 4,000 (2) Failure to perform annual calibration as required ...... 2,000 4,000 (3) Failure to perform exhaustive calibration as required ...... 2,000 4,000 227.115 Hearing protectors (HP): (a) Failure to comply with general requirements ...... 3,000 6,000 (b) Failure to make HP available as required ...... 2,500 5,000 (c) Failure to require use of HP at action level ...... 5,000 7,500 (d) Failure to require use of HP at TWA of 90 dB(A) ...... 5,000 7,500 227.117 Hearing protector attenuation: (a) Failure to evaluate attenuation as required ...... 2,500 5,000 (b)–(c) Failure to attenuate to required level ...... 2,500 5,000 (d) Failure to re-evaluate attenuation ...... 2,500 5,000 227.119 Training program: (a) Failure to institute a training program as required ...... 5,000 7,500 (b) Failure to provide training within required time frame ...... 2,500 5,000 (c) Failure of program and/or training materials to include required information ...... 2,500 5,000 227.121 Recordkeeping: (a) General Requirements: (1) Failure to make record available as required ...... 2,500 5,000

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Willful Section Violation violation

(3) Failure to transfer or retain records as required ...... 2,000 4,000 (b)–(f) Records: (1) Failure to maintain record or failure to maintain record with required information ...... 2,000 4,000 (2) Failure to retain records for required time period ...... 2,000 4,000

PART 229—[AMENDED] section, all locomotives of each design repair commonly used for the particular or model that are manufactured after type of maintenance needed. I 2. The authority citation for part 229 October 29, 2007, shall average less than (2) Conditions that may lead a continues to read as follows: or equal to 85 dB(A), with an upper locomotive cab occupant to file an Authority: 49 U.S.C. 20102–03, 20107, 99% confidence limit of 87 dB(A). The excessive noise report include, but are 20133, 20137–38, 20143, 20701–03, 21301– railroad may rely on certification from not limited to: defective cab window 02, 21304; 49 CFR 1.49. the equipment manufacturer for a seals; defective cab door seals; broken or production run that this standard is met. I 3. Section 229.4 is amended by inoperative windows; deteriorated The manufacturer may determine the revising paragraph (b) to read as follows: insulation or insulation that has been average by testing a representative removed for other reasons; broken or § 229.4 Information collection. sample of locomotives or an initial inoperative doors; and air brakes that * * * * * series of locomotives, provided that vent inside of the cab. (b) The information collection there are suitable manufacturing quality (3) A railroad has an obligation to requirements are found in the following controls and verification procedures in respond to an excessive noise report sections: §§ 229.9, 229.17, 229.21, place to ensure product consistency. that a locomotive cab occupant files. 229.23, 229.25, 229.27, 229.29, 229.31, (2) In the maintenance of locomotives The railroad meets its obligation to 229.33, 229.55, 229.103, 229.105, that are manufactured in accordance respond to an excessive noise report, as 229.113, 229.121, 229.135, and with paragraph (a)(1) of this section, a set forth in paragraph (b)(1) of this appendix H to part 229. railroad shall not make any alterations section, if the railroad makes a good I 4. Section 229.5 is amended by that cause the average sound level for that locomotive design or model to faith effort to identify the cause of the adding, in alphabetical order, the exceed: reported noise, and where the railroad following definitions. (i) 82 dB(A) if the average sound level is successful in determining the cause, § 229.5 Definitions. for a locomotive design or model is less if the railroad repairs or replaces the * * * * * than 82 dB(A); or items cause the noise. dB(A) means the sound pressure level (ii) 85 dB(A) if the average sound (4) Recordkeeping. level for a locomotive design or model in decibels measured on the A-weighted (i) A railroad shall maintain a written scale. is 82 dB(A) to 85 dB(A), inclusive, (3) The railroad or manufacturer shall or electronic record of any excessive * * * * * follow the static test protocols set forth noise report, inspection, test, Decibel (dB) means a unit of in appendix H of this part to determine maintenance, replacement, or repair measurement of sound pressure levels. compliance with paragraph (a)(1) of this completed pursuant to § 229.121(b) and * * * * * section; and, to the extent reasonably the date on which that inspection, test, Excessive noise report means a report necessary to evaluate the effect of maintenance, replacement, or repair by a locomotive cab occupant that the alterations during maintenance, to occurred. If a railroad elects to maintain locomotive is producing an unusual determine compliance with paragraph an electronic record, the railroad must level of noise that significantly (a)(2) of this section. satisfy the conditions listed in interferes with normal cab (b) Maintenance of Locomotives. § 227.121(a)(2)(i) through (v). communications or that is a concern (1) If a railroad receives an excessive (ii) The railroad shall retain these with respect to hearing conservation. noise report, and if the condition giving records for 92 days if they are made * * * * * rise to the noise is not required to be pursuant to § 229.21, or for one year if Upper 99% confidence limit means immediately corrected under part 229, they are made pursuant to § 229.23. the noise level below which 99% of all the railroad shall maintain a record of (iii)The railroad shall establish an noise level measurements must lie. the report, and repair or replace the item internal, auditable, monitorable system identified as substantially contributing * * * * * that contains these records. I 5. Section 229.121 is revised to read to the noise: as follows: (i) on or before the next periodic I 6. Appendix B to part 229 is amended inspection required by § 229.23; or by revising the entry related to § 229.121 § 229.121 Locomotive cab noise (ii) if the railroad determines that the to read as follows: (a) Performance Standards for repair or replacement of the item Appendix B to Part 229—Schedule of Locomotives. requires significant shop or material (1) When tested for static noise in resources that are not readily available, Civil Penalties accordance with paragraph (a)(3) of this at the time of the next major equipment * * * * *

Willful Section Violation violation

******* 229.121 Locomotive Cab Noise: (a) Performance Standards

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Willful Section Violation violation

(1) Failure to meet sound level ...... 5,000 7,500 (2) Improper maintenance alterations ...... 2,500 5,000 (3) Failure to comply with static test protocols ...... 2,500 5,000 (b) Maintenance of Locomotives (1) Failure to maintain excessive noise report record or respond to report as required ...... 2,500 5,000 (3) Failure to make good faith effort as required ...... 2,500 5,000 (4) Failure to maintain record as required ...... 2,000 4,000

*******

* * * * * incorporated standards from the American (5) The heating, ventilation and air I 7. Appendices F and G are added to National Standards Institute at 1819 L Street, conditioning (HVAC) system or a dedicated part 229 and reserved. NW., Washington, DC 20036 or http:// heating or air conditioner system must be I www.ansi.org. You may inspect a copy of the operating on high, and the vents must be 8. Appendix H is added to part 229 to incorporated standards at the Federal read as follows: open and unobstructed. Railroad Administration, Docket Room, 1120 (6) The locomotive shall not be tested in Appendix H to Part 229: Static Noise Vermont Ave., NW., Suite 700, Washington, any site specifically designed to artificially Test Protocols—In-Cab Static DC 20005, or at the National Archives and lower in-cab noise levels. Records Administration (NARA). For This appendix prescribes the procedures information on the availability of this III. Procedures for Measurement for the in-cab static measurements of material at NARA, call 202–741–6030, or go (1) L is defined as the A-weighted, _ Aeq, T locomotives. to http://www.archives.gov/federal register/ equivalent sound level for a duration of T code_of_federal_regulations/ I. Measurement Instrumentation _ seconds, and the sound level meter shall be ibr locations.html set for A-weighting with slow response. The instrumentation used should conform (2) The sound level meter shall be to the following: An integrating-averaging II. Test Site Requirements calibrated with the acoustic calibrator sound level meter shall meet all the The test site shall meet the following requirements of ANSI S1.43–1997 requirements: immediately before and after the in-cab static (Reaffirmed 2002), ‘‘Specifications for (1) The locomotive to be tested should not tests. The calibration levels shall be recorded. Integrating-Averaging Sound Level Meters,’’ be positioned where large reflective surfaces (3) Any change in the before and after for a Type 1 Instrument. In the event that a are directly adjacent to or within 25 feet of calibration level(s) shall be less than 0.5 dB. Type 1 instrument is not available, the the locomotive cab. (4) The sound level meter shall be measurements may be conducted with a (2) The locomotive to be tested should not measured at each of the following locations: Type 2 instrument. The acoustic calibrator be positioned where other locomotives or rail (A) 30 inches above the center of the left shall meet the requirement of the ANSI cars are present on directly adjacent tracks seat; S1.40–1984 (Reaffirmed 2001), ‘‘Specification next to or within 25 feet of the locomotive (B) Centered in the middle of the cab for Acoustical Calibrators.’’ The Director of cab. between the right and left seats, and 56 the Federal Register approves the (3) All windows, doors, cabinets seals, etc., inches above the floor; incorporation by reference of ANSI S1.43– must be installed in the locomotive cab and (C) 30 inches above the center of the right 1997 (Reaffirmed 2002) and ANSI S1.40– be closed. seat; and 1984 (Reaffirmed 2001) in this section in (4) The locomotive must be running for (D) One foot (0.3 meters) from the center accordance with 5 U.S.C. 552(a) and 1 CFR sufficient time before the test to be at normal of the back interior wall of the cab and 56 part 51. You may obtain a copy of the operating temperature. inches above the floor. See Figure 1.

(5) The observer shall stand as far from the people (tester, observers or crew members) (6) The locomotive shall be tested under microphone as possible. No more than two shall be inside the cab during measurements. self-loading conditions if so equipped. If the locomotive is not equipped with self load,

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the locomotive shall be tested with no-load IV. Recordkeeping (4) The recorded measurement during (No-load defined as maximum RPM—no To demonstrate compliance, the entity calibration and for each microphone location electric load) and an adjustment of 3 dB during operating conditions. conducting the test shall maintain records of added to the measured level. (5) Other information as appropriate to the following data. The records created under (7) The sound level shall be recorded at the describe the testing conditions and highest horsepower or throttle setting. this procedure shall be retained and made procedure, including whether or not the (8) After the engine speed has become readily accessible for review for a minimum locomotive was tested under self-loading constant and the in-cab noise is continuous, of three years. All records may be maintained conditions, or not. LAeq, T shall be measured, either directly or in either written or electronic form. (6) Where a locomotive fails a test and is using a 1 second sampling interval, for a (1) Name(s) of persons conducting the test, re-tested under the provisions of § III(9) of minimum duration of 30 seconds at each and the date of the test. this appendix, the suspected reason(s) for the measurement position (LAeq, 30s). (2) Description of locomotive being tested, failure. (9) The highest LAeq, 30s of the 4 including: make, model number, serial Issued in Washington, DC, on September measurement positions shall be used for number, and date of manufacture. 29, 2006. determining compliance with § 229.121(a). (3) Description of sound level meter and Joseph H. Boardman, (10) A locomotive that has failed to meet calibrator, including: make, model, type, Federal Railroad Administrator. the static test requirements of this regulation serial number, and manufacturer’s calibration [FR Doc. 06–8612 Filed 10–26–06; 8:45 am] may be re-tested in accordance with the date. requirements in section II of this appendix. BILLING CODE 4910–06–P

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